ML20135D753

Forwards, Procedures for Emergency Suspension Termination & Suspension of Section 274b Agreement & Procedure for Placing Agreement State on Probation, & Revised Table of Contents, for Use & to Provide Guidelines for NRC Decisions

ML20135D753
Person / Time
Issue date:	02/11/1997
From:	Lohaus P NRC OFFICE OF STATE PROGRAMS (OSP)
To:	Craig Gordon, Jeffery Lynch, Woodruff R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III)
References
NUDOCS 9703050473
Download: ML20135D753 (158)

Text

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FEB 111397.

MEMORANDUM TO: Those on the Attached List

~OriginalSigned By: . #

FROM: Paul H. Lohaus, Deputy Director . PAUL H. LOHAUS Office of State Programs 4 s'

-.- sy

SUBJECT:

PROCEDURES FOR EMERGENCY SUSPENSION, TERMINATION AND SUSPENSION OF A SECTION 274b AGREEMENT AND PROCEDURE FOR PLACING AN '

l AGREEMENT STATE ON PROBATION -

i The subject procedures (D.13, D.21, D.22 and D.23, respectively) and the revised table of a contents for the procedures are attached for your use and provide guidelines that will govern NRC decisions to exercise authority contained in Section 274) of the Atomic Energy Act.

. If you have any questions concerning these procedures, please contact me at j (301) 415-2326.

Attachments:

As stated cc:

CDolinka, EDO/AO Distribution:

DIR RF (6S-300)

DCD (SP01)

PDR (YES_X_ NO,_)

RLBangart PLohaus Policy & Guidance File Agreement State File Ik OOCUMENT NAME: G:\PROCMEMO. ROV 'See previous concurrence.

To receive a copy of this document, indicate in the box: "C" = Copy without attachment / enclosure

'E" = Copy with attachment / enclosure "N" = No copy OFFICE OSP OSP OSP:DD OSP:D l NAME ROVirgilio:ndb KNSchneider PHLohaus RLBangart DATE 01/08/97* 01'14/97* l 0:117/97*' 02/07/97*

.- OSP FILE CODE: SP-P-2, SP-A-4 c50g53 O '"

h6G be ennuiCOPY 9703050473 970211 PDR STPRG ESGGEN PDft x ,

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MEMORANDUM TO: Those on the Attached List FROM: Paul H. Lohaus, Deputy Directo/ r Office of State Programs

SUBJECT:

PROCEDURES FOR EMER ' ENCY SUSPENSION, TERMINATION AND SU PENSION OF A SECTION 274b AGREEMENT AND PRpCEDURE FOR PLACING AN AGREEMENT STATE N PROBATION The subject procedures (D.13, D.21, D.22 d D.23, respectively) and the revised table of contents for the procedures are attached fo'r your use and provide guidelines that will govern NRC decisions to exercise authority contained in Section 274) of the Atomic Energy Act.

- If you have any questions concerning' these procedures, please contact me at 301/415 2326.

[

Attachments:

As stated Distribution: / j x DlR RF /

- EDO RF - ,

CD (SP01)-  !

HLThompson - PDR (YES X NO )

RLBangart PLohaus CDolinks Policy & Guidance File -

Agreement Stafe File  !

/

DOCUMENT NAME: G:\PROCMEMO. ROV 'See previous concurrence.

To receive a copy op,this document, indicats in the box: "C" = Copy without attachment / enclosure "E' = Copy with aAtachment/ enclosure "N" = No copy ,

OFFICE joSP l OSP l OSP:DD OSP:D f /j(

NAME ROV /rgilio:ndb KNSchneider PHLohaus f/J3 W RLBangartl DATE / 01/08/97* 01/14/97* 01/f ']/97 NJ (,2(j/96 OSP FILE CODE: SP-P-2, SP-A-4

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MEMORANDUM FOR: Those ory Attached I.ist

FROM

Paul H. L , us, Deputy Director

! Office of State Programs

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SUBJECT:

PROCEDURES FOR EMERGENCY SUSPENSION,

i. TERMINATION AND SUSPENSION OF A SECTION 274b t AGREEMENT AND PROCEDURE FOR PLACING AN j AGREEMENT STATE ON PROBATION ,

i \

\

!. The subject procedures (D.13, D.21, D.22 and D.23, respectively) and the revised table of

. contents for the procedures are attached for yp use and provide guidelines that will govern NRC decisions to exercise authority contained in Section 274j of the Atomic Energy  !

Act.

If you have any questions concerning these procedures, please contact me at 301/415-2326.

Attachments:

As stated Distnbution:  ;

DlR RF  !

EDO RF  ;

JMTaylor- DCD (SP01)

HLThompson PDR (YES X NO )

RLBangart PLohaus g SDroggitis KSchneider RVirgilio CDolinka Policy & Guidance File Agreement State File DOCUMENT NAME: G:\PROCMEMO. ROV To receive a copy of this document, indcate in the box: "C" = Copy. with t attachment / enclosure

'E' = Copy with attachment / enclosure "N" = No copy -

3 OFFICE OSP l OSPg4 l OSP:DD l O$P:D l l NAME ROVirgilio:ndb KNSchneider PHLohaus RLBangart '

DATE 01/f /97 01/g4/97 01/ /97 12)g /96 OSP FILE CODE: SP-A-4; SP-P-02 \

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Addrosacos - Memorandum dated February 11, 1997 i

SUBJECT:

OFFICE OF STATE PROGRAMS' PROCEDURES i

i i Craig Z. Gordon, Regional State Agreements Officer, RI I Richard L. Woodruff, Regional State Agreements Officer, Ril

James L. Lynch, Regional State Agreements Officer, Rlli j Charles A. Hackney, Regional State Liaison Officer, RIV

Jack W. Horner, Regional State Agreements Officer, RIV/WCFO i Charles W. Hohl, Director, DNMS/Rl i Bruce A. Mallett, Director, DNMS/Ril i Cynthia D. Pederson, Director, DNMS/ Rill i Ross A. Scarano, Director, DNMS/RIV l Francis X. Cameron, OGC l Donald A. Cool, Director, IW,NS/NMSS i John T. Greeves, Director, DWM/NMSS l

Charles E. Rossi, Director, SPD/AEOD

Newton Stablein, EDO Office of State Programs Staff 4

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g UNITED STATES 4

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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20066-0001

% ,, ,! February 11, 1977 MEMORANDUM TO: Those on the Attached List j FROM: Paul H. Lohaus, Deputy Directo j

Office of State Programs y k

SUBJECT:

PROCEDURES FOR EMERGENCY SUSPENSION, TERMINATION AND SUSPENSION OF A SECTION 274b

) AGREEMENT AND PROCEDURE FOR PLACING AN AGREEMENT STATE ON PROBATION The subject procedures (D.13, D.21, D.22 and D.23, respectively) and the revised table of

! contents for the procedures are attached for your use and provide guidelines that will

' govern NRC decisions to exercise authority contained in Section 274j of the Atomic Energy Act. 1 l

if you have any questions concerning these procedures, please contact me at (301) 415-2326.  ;

Attachments:

j As stated

cc

CDolinka, EDO/AO i

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Table of Contents Distribution List 1/14/97 PROCEDURES i l

Number litle D.itt.t i A.1 Format For Procedures 6/21/82 A.2 Development of Changes to Suggested 11/16/83

State Regulations A.3 Cancelled 6/21/82 A.4 Cancelled 6/17/82

. A.5 Procurement of Invitational Travel 6/03/77 Authorizations and Process of Travel Vouchers A.6 Reporting of Congressional Inquiries 12/ /80 A.7 Procedures for Transmitting Documents 8/26/83 to the PDR A.8 Cancelled 6/17/82 A.9 Distribution of All Agreement State 6/17/82 Letters A.10 Program Description Documentation 1/14/97 l

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Revision 4 l 1/14/97 i

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

l Number Tit 1e M  ;

B.1 General Policy Statements for State 12/6/84 i Agreements Program j B.2 Policy for Regionalization 11/5/82 B.3 Policy for Correspondence with States 6/21/82 i Related to Review Meetings 1 B.4 Policy for Routine Agreement State 6/21/82 Correspondence i

B.5 Folicy for Training and Qualifications 6/21/82 of Staff Responsible for Reviewing Agreement State Programs B.6 Policy for Meetings and Testimony on 6/21/82 State Agreements Program B.7 Criteria for Compatibility 1/25/84 Determinations i l

Revision 4 1/14/97

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Number g g C.1 Processing a New Agreement 4/7/93 1

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Revision 4 1/14/97

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D.1 Procedures for Review, Retention, 11/18/82 i and/or Distribution of Agreement  !

State Licenses i

D.2 Scheduling, Conducting and Reporting 12/27/84 l On-Site Reviews of Agreement State Regulatory Programs D.2-1 Procedure for Review of the Status of 1/25/82  !

Uranium Mills and Mill Tailings Piles l

D.2-2 Procedure for Site Visit, Review of 8/26/75 and Reporting on Agreement State Commercial Radioactive Waste Burial Grounds D.2-3 Agreement State Program Review Report 7/5/95 Procedure and Handbook D.3 Procedures for Selection, Review and 2/3/83 l Reporting - Agreement State License  !

Files D.4 Procedures for Selection, Review and 2/17/83 Reporting - Agreement State Compliance Files D.5 Preparation of Semi-Annual Statistics 1/7/85 D.6 Procedure for Annual Meeting of All 12/22/82 Agreement States D.7 Procedures for Reviewing State 8/30/85 Regulations D.8 Procedure for Determination 9/2/83

, of Jurisdiction D.9 Notice of Non-Routine Event Involving 12/11/84 Agreement States or Agreement Materials D.10 Cancelled 1/27/83 D.11 Technical Assistance From NRC Offices

^ 11/10/82 for Agreement State Review Meetings Revision 4 1/14/97

l Number Title gaig D.12 Special Technical Assistance to 6/24/83 Agreement States D.13 Procedure for Emergency Suspension 12/19/96 of a Section 274b Agreement D.14 Procedure for Team Reviews of Selected 2/16/82 Agreement State Regulatory Programs D.15 Criteria for Recommending Individual 4/21/83 Training for State Personnel (formerly E.2)

D.16 Consultation with U.S. Department of 1/27/83 Labor - OSHA D.17 Collection of Data on Agreement State 12/27/84 Incidents Involving Radioactive Materials D.18 Procedure for Review and Distribution 1/31/85 of Agreement State Abnormal Occurrence Reports D.19 Procedure for Handling SS&D Data 1/30/86 D.20 Procedure for Management of Allegation pending D.21 Procedure for Termination of a 12/19/96 I Section 274b Agreement l

D.22 Procedure for Suspension of a 12/19/96 l Section 274b Agreement l D.23 Procedure for Placing an Agreement 12/19/96  !

State on Probation 1

l Revision 4 1/14/97

l Number li.tle Dalt E.1 Planning, Development, Implementation 7/8/85 and Evaluation of Training Programs E.2 Cancelled (Revised as D.15) 6/17/82 E.3 Cancelled 2/16/78 E.4 Training and Qualification Criterir 6/21/82 Agreement State Reviewers E.5 Appraisal of Regional State Agreements 1/24/86 Functions Revision 4 1/14/97 i

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k j ofson of state programa standard Approval t

Tre ettsched Revision 1 to intemel Procedure D.13 " Procedure for Emergency Suspension of a 3ection 274b Agreement" is approved.

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% d., .. <> 5.4,wdw i117117 Kathleen N. Schneider Date l

fi M .t a ru /J.$- [1 h,ut q f f/7 f97 Paul H. Lohaus, Deputy Director Date Office of State Programs 1

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N IGeher'd L. Sangart, Direct Dat's Office of State Programs /

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i OFFICE OF STATE PROGRAMS

! INTERNAL PROCEDURE f

DIVISION 1

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i Post-Agreement D.13 Procedure for Emergency Activities Suspension of a Section 274b Agreement l 1. INTRODUCTION This procedure provides the guidelines that will govem NRC decisions to exercise j the authority contained in Section 274j(2) of the Atomic Energy Act.-

j 11. GENERAL Section 274j(2) of the Act provides the Commission with authority to temporarily

! suspend all or part of its agreement with a State without a hearing when an i emergency situation exists requiring immediate action to protect public health and

sefety and the State has failed to taire steps to contain or eliminate the cause of I danger within a reasonable time. The Commission will exercise this authority only i during the period of the emergency. Unless acting pursuant to the Governor's 8

request, the NRC will notify the Governor of the State prior to issuing the I

temporary suspension (Appendix A). The authority may be exercised with respect i to all or part of the State's agreement.

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j 111. EMERGENCY An emergency situation is one creating a danger which requires immediate action to protect the health and safety of persons either within or outside the State.  !

l IV. INITIATION OF EMERGENCY SUSPENSION ACTION l A. If the Governor of a State requests that the NRC temporarily suspend part of its agreement, OSP should advise the State to make the request by telephone call to the Executive Director for Operations, in coordination with the Director, Office of State Programs, or in off hours, to the NRC Emergency Operations Center. Such a request should include the specific nature of the emergency and its possible impacts using the guidance in Part V below.

B. When the NRC determines an event warrants emergency suspension of an agreement, it will follow the guidelines and criteria stated in Part V below.

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j C. The Governor and the radiation control program director of the affected i

State will be consulted and kept fully informed of the actions taken by the NRC. For events which may warrant consideration of emergency l

auspension, but for which there is a reasonable basis for presumption that a State will satisfactorily resolve the emergency situation, the NRC will inform

, the State of necessary actions that the State should take and that an j emergency suspension under Section 274)(2) will not be issued. NRC will j provide appropriate technical assistance within the limits of its resources.

l D. Emergency suspension orders under Section 274(j)(2) will be issued by the Executive Director for Operations or the Commission (Appendix B). The Commission will be kept informed as to the nature of the emergency situation and the actions taken to contain or eliminate the danger (Appendix C).

E. The Office of State Programs should request the Office of Public Affairs to prepare and issue a press release regarding the emergency suspension (Appendix D).

F. The Office of State Programs will coordinate with the Office of Congressional Affairs in order to notify the appropriate State representatives and Congressional committees (Appendix E).

G. The Office of State Programs should request that the appropriate NRC Regional office notify the affected licensee or groups of licensees in the State after obtaining information regarding the affected licensee or groups of licensees from the Agreement State radiation control program (Appendix F).

V. MINIMUM CRITERIA A. The NRC may suspend an agreement pursuant to Section 274j(2) in the case of an emergency involving byproduct, source, or special nuclear material when the situation presents a danger to the public health and safety and the Agreement State program is not able, or has not taken effective steps, to eliminate the cause of the danger.

B. In evaluating emergency situations, the NRC will consider whether the '

Agreement State has failed to take, or is prevented from taking, necessary steps to protect the public health and safety. Factors that are appropriate for consideration include:

1. The timeliness and adequacy of actions being taken by the State in response to the emergency;

2. Whether the State can satisfactorily resolve the emergency situation; and 2 Revision 1 12/19/96

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, 3. Whether the State is implementing, or is committed to implement,

} program improvements to address the cause of the emergency I

situation.

C. The following types of conditions, if not appropriately addres'4ed by the j State to prevent the danger are examples that could result M a consideration j of emergency suspension:

l 1. A condition or conditions that cause or could cease an individual or i j individuals to receive a dose significantly in ex'.:ess of those basic j dose limits set forth in Subpart C of 10 CFR Part 20:

i l 2. Conditions that caused or could cause an ',ndividual to receive a dose

significantly in excess of those basic dor.a limits set forth in Subpart j D of 10 CFR Part 20; or

! 3. Conditions that caused or could cau'4e individuals to receive a dose

l. significantly in excess of those dor,e limits applicable to a certain

class of licenses set forth in other parts of 10 CFR that Agreement States must adopt under the Commission policy for compatibility and I adequacy, such as Part 35 limits for patient release.

VI. WITHDRAWAL OF EMERGENCY SUSPEN'dlON l

When the emergency situation is contrined or eliminated, the Executive Director for j Operations will lift the suspension.  !

The Executive Director for Operatire ns will notify the Governor of the State that the emergency suspension is no long'4r in effect (Appendix G). The affected licensee or groups of licenses in the State will also be notified that the emergency suspension is no longer in effect. Such a decision will be made when NRC has determined that the danger which made the r;mergency suspension necessary has been eliminated.

The NRC willinform the State of continuing actions which the State must carry out in order to prevent another emergency.

Vll. IMPACT OF THE EMERGENCY SUSPENSION The State's inability to address the emergency situation will be censidered by the Management Review Board in the evaluation of the Agreement State's continued ability to protect public health and safety. Depending on the nature of the emergency, it may be necessary to place the State on probation, with NRC heightening :ts oversight of the program.

Attachments:

Appendices A, B, C, D, E, F, G I

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. Appendix A Emergency Suspension Procedure l

l DRAFT SAMPLE: Notification to the Governor of [ State) of Emergency Suspension j

Dear Governor [Namel:

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As you are aware, Section 274j(2) of the Atomic Energy Act gives the Commission the '

authority to temporarily suspend all or part of its agreement with a State without notice or i

! hearing if an emergency situation exists requiring immediate action to protect public health 3 and safety and the State fails to take steps to contain or eliminate the cause of danger j

, within reasonable time. The Commission is invoking this authority since it has found a

, situation in your State that presents an [ choose the pertinent reason or reasons]

immediate, significant, or unacceptable threat to the public health and safety which necessitates immediate suspension of [all or partl of the agreement.

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[This section should provide a brief description of the situation. Provide pertinent 1 information as to how the situation came to the NRC's attention, the State's action in

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3 response, etc. Describe briefly the steps taken by the NRC which led it to suspend all or

. part of the State's agreement.)

i When the emergency situation is contained or eliminated, the Commission will consider whether to lift the suspension. Such a decision will be based on the NRC's determination that the conditions which initiated the emergency suspension no longer exists. The NRC will notify (name the appropriate State office) of continuing actions which the State must implement to prevent another emergency.

The Order will be issued immediately. [ Inform the State of the timing for any press releases or correspondence with Congressional Committees,if appropriate.]

1 Sincerely, Chairman  !

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l Appendix B Emergency Suspension Procedure l DRAFT Order Temporarily Suspending Agreement State Program j

! UNITED STATES

! NUCLEAR REGULATORY COMMISSION i

l In the Matter of I

! IName of State]

IAgreement State Program]

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ORDER TEMPORARILY SUSPENDING AGREEMENT STATE PROGRAM l (EFFECTIVE IMMEDIATELY) i

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! (Set forth the name of the Agreement State program and backgsound information as to l j when the program was irstieted, what type of agreement mater:tts are covered, and the l j authority of the Comm;ssion and the Governor of the particular State to enter into this J type of agreement. In addition, the authority of the Commission to temporarily suspend the Agreement State program, effective immediately, should be stated. The following is i provided as a sample discussion for this section).

On [Datel, the State of [Namel entered into an agreement (Agreement) with the Nuclear Regulatory Commission (NRC or Commission) pursuant to Section 274 of the Atomic Energy Act of 1954, as amended (Act),42 U.S.C. Section 2021. The Agreement discontinued the NRC's reg 91 story authority within the State of [Namel with respect to (byproduct material as defined !n Section 11e(1) of the Act (radioisotopes) and/or byproduct material as defined in Section 11e(2) of the Act (mill tailings or wastes) and/or source material (uranium and thorium) and/or special nuclear material (uranium 233, uranium 235 and plutonium) in quantities not sufficient to form a critical mass and/or permanent disposal of low-level waste containing one or more of the materials stated above but not including mill tailings). The Agreement authorized the State of INamel to regulate these materials for the protection of public health and safety.

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[This section should provide a description of relevant events, facts, violations, technical or legal reasons that provide the substantive basis for issuing the Order. The following example is provided as a sample text for this section.]  ;

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! l l The Commission has determined that an emergency situation exists in the State of I i

(NAME). [NRC discovered this situation as a result of (phone call, allegation letter, etc)) or l i- IProvide reasons for NRC's finding] [ Provide any appropriate additional information  !

! regarding the emergency situation.)

l i The Commission has determined that due to (facts requiring implementation of Section l 274)(2)], an emergency situation exists which requires immediate action by the i i Commission to protect the health and safety of Idescription of the public impacted). The j Cornmission has also determined that the State of [Namel has failed to take steps l necessary to contain or eliminate the cause of danger within a reasonable time. This latter

finding is based on [ facts pertaining to State's failure to contain or eliminate the cause of i i the emergency situation). The Commission has notified the Govemor of (State) of its l l intent'on to issue this emergency suspension order. I lit i

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[This section should provide the justification for issuing the Order, in light of the facts i described in Section 11. The following example is provided as a sample text for this

! section).

Section 274)(2) of the Atomic Energy Act authorizes the Commission, upon its own initiative or upon the request of the Governor of any State, to temporarily suspend all or part of its Agreement with the State without notice or hearing if, in the judgment of the Commission, an emergency situation exists with respect to any material covered by such an Agreement creating danger which requires immediate action to protect the health and safety of persons either within or outside of the State, and the State has failed to take steps necessary to contain or eliminate the cause of the danger within a reasonable time after the situation arose. A temporary suspension of the Agreement under Section 274j(2) of the Atomic Energy Act shall remain in effect for such time as the emergency situation exists. During the period of temporary suspension, the Commission is authorized to exercise its authority only to the extent necessary to contain or e! imine,te the danger.

The NRC must be able to rely on [ State's] Agreemer.t Giate program to adequately protect public health and safety. The facts and the circumstances enumerated in Section 11 of this Order, in the judgment of the Commission, lead to an emergency situation with respect to materials regulated pursuant to the AEA. Immediate action is necessary to protect public health and safety. The State of (Statal has failed to take the steps necessary to contain or eliminate the cause of the danger to public health and safety. Therefore, the public health and safety require that the Agreement [or portions identified] [or facility) between the Commission and (State] be temporarily suspended. Furthermore, pursuant to Section 274)(2) of the Atomic Energy Act , I find that the public health, safety, and interest requires that this Order be immediately effective. J IV Accordingly, pursuant to Sections 161b,161c,1611,161o, and 274 of the Atomic Energy Act of 1954, as amended, IT IS HEREBY ORDERED THAT THE AGREEMENT for portion of B-2 Revision 12/19/96

the Agreement] BETWEEN THE COMMISSION AND ISTATEl, DATED [datel, IS TEMPORARILY SUSPENDED, EFFECTIVE IMMEDIATELY, AS FOLLOWS:

A. IlDENTIFY PART OF AGREEMENT AFFECTED AND MATERIAL AFFECTED];

i B. [lDENTIFY WHAT ACTIONS THE STATE MUST DO TO COME INTO COMPLIANCE WITH COMMISSION REQUIREMENTS AND WHEN];

C. [lDENTIFY WHAT MUST HAPPEN TO REINSTATE THE AGREEMENT];

FOR THE NUCLEAR REGULATORY COMMISSION Executive Director for Operations

Dated at Rockville, Maryland l this day of ,19[XXI 1

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Appendix C j Emergency Suspension Frocedure l DRAFT SAMPLE: Memorandum to the Commission Regarding the Emergency Suspension of All or j Part of an Agreement MEMORANDUM TO: Chairman Jackson i Commissioner Rogers i Commissioner Dicus

! Commissioner Diaz Commissioner McGaffigan s

FROM

Executive Director for Operations

SUBJECT:

ISSUANCE OF AN ORDER TO TEMPORAR!LY SUSPEND THE

! [ STATE'S NAME) AGREEMENT i

j The attached Order was issued to [ Statal on [Datel, temporarily suspending [ State's

.l Namel effective immediately over [ identify part of agreement affected 6nd material i affected).

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The staff has determined that an emergency situation exists in the State of (NAME). [The j staff discovered this situation as a result of (phone call, allegation letter, etc)] or [ Provide

reasons for the staff's finding) [ Provide any appropriate additional information regarding j the emergency situation.)

l l The staff has determined that due to [ facts requiring implementation of Section 274j(2)],

j en emergency situation exists which requires immediate action by the Commission to

protect the health and safety of [ description of the public impacted). The staff has also  !

i determined that [ State's Namel has failed to take steps necessary to contain or eliminate l 1

the cause of the emergency situation within a reasonable time. This latter finding is based j i on [ facts pertaining to State's failure to contain or eliminate the cause of the emergency  ;

} situation). )

j The staff has notified the Governor of the this action. In addition, the staff's efforts have j been coordinated with Governor [Namel and his/her staff. A press release will be issued.

j Letters to the appropriate Congressional committees will be sent. A letter notifying the 1 affected State licensees will be sent by the Regional Office.

Attachment:

j As stated 1

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Appendix D Emergency Suspension Procedure DRAFT SAMPLE: Public Announcement NRC ISSUES ORDER TO TEMPORARILY SUSPEND l THE [ STATE'S NAME) REGULATORY AUTHORITY I The Nuclear Regulatory Commission is temporarily suspending the (State's Name]  !

regulatory authority over [ identify part of agreement affected and material affected).

The action, which is effective on [Dete], is being taken in order to ensure that

! public health and safety will be protected. An emergency situation exists in [ State's l Name] due to (facts requiring implementation of Section 274)(2)).

j Under Section 274 of the Atomic Energy Act of 1954, as amended, individual States can assume part of the NRC's regulatory authority over the possession and use of l byproduct, source, and special nuclear materials. In order to effect and maintain such a transfer of authority, the State must demonstrate that its program is adequate to protect the public health and safety and is also compatible with the Commission's program for regulating those materials.

1 The Atomic Energy Act also authorizes NRC to temporarily suspend all or part of its j agreement with the State without notice or hearing if an emergency situation exists with i respect to any material covered by such an agreement creating danger which requires immediate action to protect the health and safety of persons. In order to take such action, the Commission must also determine that the State has failed to take steps necessary to i contain or eliminate the cause of the danger within a reasonable time after the situation j arose. A temporary suspension of the agreement shall remain in effect for such time as I the emergency situation exists. During the period of temporary suspension, the Commission is authorized to exercise its authority only to the extent necessary to contain f or eliminate the danger, i Licensees in [ State's Name] are being advised of the NRC's action in Order [Date).

In the meantime, the affected [ State's Name] licenses, as currently issued, will remain in  ;

effect under NRC's authority.

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4 Appendix E Emergency Suspension Procedure l DRAFT SAMPLE: Congressional Letter

)' [ Appropriate Congressional Oversight Committees) i

Dear Mr. Chairman:

l The Nuclear Regulatory Commission has issued the enclosed Order, effective immediately,

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9 dated IDatel, to temporarily suspend [Statel regulatory authority over [ identify part of agreement affected and material affected). The action is being taken in order to ensure that public health and safety will be protected. The Commission is taking this action 1 j

pursuant to its authority under Section 274) of the Atomic Energy Act. An emergency  !

j situation exists in [Statel due to ifacts requiring implementation of Section 274)(2)].

Licensees in [Statel are being advised of the NRC's action in an Order [datel. The affected IStatal licenses, as currently issued, will remain in effect under NRC's authority. We are j

] also issuing a public announcement. j i  !

j The temporary suspension of (State's) agreement will be lifted when [ identify what will be l necessary to contain or eliminate the danger).

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Sincerely, i

Director Office of Congressional Affairs

Enclosure:

! As stated i

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o Appendix F Emergency Suspension Procedure DRAFT SAMPLE: Letter to Affected Agreement State Licensees Rogerding the Emergency Suspension TO ISTATE] Licensees:

The Nuclear Regulatory Commission has issued an Order, effective immediately, dated (Datel, to temporarily suspend [ State's] regulatory authority over [ identify part of egreement affected and material affected). The action is being taken in order to ensure that public health and safety will be protected. An emergency situation exists in (Statel due to [ facts requiring implementation of Section 274j(2)].

Your [affected Statel licenses, as currently issued, will remain in effect under NRC's authority [except for modifications necessary to contain or eliminate the danger.) The temporary suspension of [ State's) agreement will be lifted when [ identify what will be necessary to contain or eliminate the danger].

Any questions or concerns regarding the NRC emergency suspension should be addressed to [ Appropriate Regional Contact].

Appropriate Regional Administrator l

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i Appendix G l Emergency Suspension Procedure l

l DRAFT SAMPLE: Notification of Lifting Suspension I i i

Dear Governor (Namel:

f As you are aware, under Section 274 of the Atomic Energy Act of 1954, as amended, the j Nuclear Regulatory Commission is authorized to temporarily suspend all or part of its

agreement with the State without notice or hearing if an emergency situation exists with j respect to any material covered by such an agreement creates danger which requires j immediate action to protect the health and safety of persons and the State has failed to j take steps necessary to contain or eliminate the cause of the danger within a reasonable i time after the situation arose. A temporary suspension of tha agreement shall remain in j effect for such time as the emergency situation exists. During the period of temporary i suspension, the Commission is authorized to exercise its authority only to the extent l necessary to contain or eliminate the danger.

The Nuclear Regulatory Commission issued an immediately effective Order dated [Datel, to j temporarily suspend [ Statal regulatory authority over [ identify part of agreement affected j and material affected). The action was taken in order to ensure that public health and i safety would be protected. An emergency situation existed in [ State] due to [ facts i requiring implementation of Section 274](2)).

l l The Commission has determined that the emergency situation which necessitated NRC's i action no longer exists. Therefore, the agreement between the Commission and [Statel  !

, has been reinstated. The State must continue to [ describe the continuing actions which j the State must carry out in order to prevent another emergency].

I 1 If you have any questions, please contact me, or your staff may contact (Namel, Director,  !

Office of State Programs, at (telephone number).

l Sincerely.

1 Executive Director for Operations G-1 Revision 1 12/19/96

i Office of State Programs Standard Approval The attached intomal Procedure D.21 ' Procedure for Termination of a Section 274b l Agreement" is approved.

j h.Olv.ie d 5 /. ia c O '~ 1ll1 l9 */

Kathison N. Schneider Date f , Ttt. : . w d

, , / i . . . v u ,,:, . ll;Jl1;f Paul H. Lohous, Deputy Director i Date Office of State Programs Ul6 S*k?-

a Co Arrat Richard L. Bangart, Direct Date /

Office of State Programs 1 12/19/96

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! OFFICE OF STATE PROGRAMS {

! INTERNAL PROCEDURE I

I DIVISION I Post-Agreement D.21 Procedure for Activities Termination of a Section 274b Agreement

1. INTRODUCTION Thir procedure provides the guidelines that will be followed by NRC when considering whether or not to terminate an agreement pursuant to the authority contained in Section 274)(1) of the Atomic Energy Act.

This procedure will describe the method for processing the termination, whether initiated at the request of the State or at the initiative of the NRC.

II. TERMINATION A. Background Section 274) of the Atomic Energy Act gives the Commission authority to terminate its agreement with a State if'auch termination is required to protect the public health and safety, or if the State has not complied with one or more of the requirements of Section 274 of the Act (e.g., is found to be not compatible with the Commission's program). When the Commission finds that program deficiencies are such that the State can no longer protect the public health and safety or continuing incompatibility results in significant national disruption, the Ccmmission willinstitute proceedings to terminate the agreement with the State. The Commission can institute procedures to terminate an agreement even though the State has not been on probation. Procedures to address emergency situations to )

temporarily suspend all or part of an agreement with a State can be found in l Procedure D.13. .

In cases where a State has failed to respond in an acceptable manner during a I probationary or suspension period, and there is no prospect for improvement, the  !

Commission may also institute formal proceedings to terminate the agreement. i Before reaching a final decision on termination, the Commission will notify the State and provide the State the opportunity for a hearing on the proposed termination as discussed in Part V. Notice of the proposed termination will also be published in the Federal Register.

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B. Minimum Criteria for Termination i i

1. At the request of the Governor, NRC may terminate all or part of its  ;

agreement with a State and reassert its authority. The letter should be i addressed to the Chairman, NRC, from the Governor.

2. The Commission will institute formal procedures to terminste an agreement l under the following circumstances-  ;

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s. The State radiation control program is found to be inadequate to I protect public health and safety, and no compensating program has i been implemented; f

b. The State has been on probation for a period of time during which it failed to respond to NRC concerns regarding the State's ability to carry out a program to protect public health and safety; or  ;

c. The State radiation control program is not compatible with the NRC program and the State has refused, or is unable, to address those ,

areas previously identified as compatibility concerns and the i non-compatibility is significantly disruptive to the national program l among NRC and Agreement States for the regulation of Atomic l Energy Act material.  !

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3. The following are examples of situations where NRC would consider  ;

initiating formal procedures to terminate an agreement. This list is not i irwfusive and other situations may require consideration by the Commission  :

at the recommendation of the Management Review Board (MRB) and the Office of the Executive Director (EDO). )

a. Significant loss of staff, which includes number of staff or those with critical skills, coupled with a State's inability to hire appropriate replacements.

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b. Continual problems which manifest in the State's inability to perform >

udequate inspections or issue appropriate licenses.

c. State's inability to adopt compatible program elements over a significant period of time.

d. Continued probationary or suspension status for a State program.

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!. 111. MANAGEMENT REVIEW BOARD ROLE I

A. The Management Review Board (MRB) is responsible for making the

! adequacy assessment of each Agreement State's program based on the j reviews of the program, using both common performance indicators and i i non-common performance indicators, and the compatibility determination.

! The MRB consists of senior NRC managers, or their designees, to include:

l Deputy Executive Director for Regulatory Programs l Director, Office of Nuclear Material Safety and Safeguards i

Director, Office of State Programs l Director, Office for Analysis and Evaluation

! of Operational Data

General Counsel Agreement State Liaison to the MRB

]

i j B. The MRB will consider the results of the Agreement State review and any other appropriate information in making a determination of adequacy and i

compatibility with respect to an Agreement State. MRB meetings to discuss specific program review findings normally will be open and Agreement j States' representatives will be invited to attend. MRB's internal deliberation i regarding the overall Agreement State program rating may be closed, given j the prodocisional nature of those discussions.

, C. If it is the recommendation of the MRB and EDO that NRC initiate the i proceedings to terminate an agreement, the Office of State Programs will be l assigned the lead for preparation of a Commission paper. The Commission j paper will contain the information supporting the termination. The i Commission paper will be coordinated with the Office of General Counsel, j the Office of Nuclear Material Safety and Safeguards, and the affected j l

Region, j IV. STAFF WORK i

! Before the Commission can terminate a State's program, it must provide reasonable

! notice and opportunity for a hearing to the State as required by Section 274j(1).

Section 274)(1) does not require such a hearing if termination is requested by the i Governor. ,

I i Before the opportunity for a hearing can arise, the Office of State Programs must  ;

I submit to the Commission a paper containing a rec'wnmendation to terminate the j

! State program in question. This Commission pace " 'nclude the

! recommendations of the MRB and any other infcw a pertinent to the staff's

recommendation to terminate the agreement. Before a decision is made on the MRB's recommendation, the Commission must provide the State with notice and an j opportunity to request a hearing on the issue. (See Appendix A for a suggested j format for the Commission paper including a sample Federal Register Notice.)

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If the State does not request a hearing, the Commission will proceed to make a 1 final decision on the issue. Once directed by the Commission, the Office of General 1 Counsel will submit a Commission paper which will include the termination order l and the Federal Renister Notice announciag the Commission decision. The Office of

. State Programs will provide for inclusion in the Commission paper the letter notifying the Governor of the termination. Congressional Committees will be

! notified and a public announcement will be made by the Offices of Congressional i Affairs and Public Affairs respectively. (See Appendix B for samples of all of the

above.)

! If the Stato does request a hearing, the Commission willinitiate the hearing process j described below.

l Whether or not a hearing is requested, if the Commission decides not to support the j recommendation to terminste the State's program, the Governor will be notified of 1 this result. Congressional Committees will be notified and a public announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively, i

i V. HEARINGS The hearing for the termination [ including the termination of a program that had been previously suspended) of an Agreement State program will be an informal hearing conducted either by the Commission itself, or at the Commission's

discretion, by a Special Agreement State Board appointed by the Commission. In i cases where the Commission determines that a Special Board will be used, the l Board will consist of three members

1

! (1) the Chair of the Organization of Agreement States (OAS) (unless the j- Chair is from the State in question, in which case the Agreement i State representative will be the past Chair of the OAS);

1 1 (2) an official from the Office of General Counsel; and

! (3) the Deputy Regional Administrator of a NRC Regional Office (outside l of the Region in which the State is located).

The Commission, or the Special Board, as appropriate, will conduct an informal hearing to address the issues in question. At the hearing, the NRC staff, representatives of the Agreement State, and interested third parties will have an i opportunity to offer their views, answer questions, and submit written materials.

Third parties whose interests may be affected may submit written material and may j offer their views for a limited period of time. After consideration of the issues, the Commission or the Special Board willissue a decision on termination. A majority of

! the Commission or the Special Board will be required to support a decision. in

! cases where a Special Board is used, the Commission will have discretion to review 3

the decision of the Special Board, and either uphold or overturn the Board's j decision.

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l VI. COORDINATION A. Aareement State and NRC Activities Durina Termination Proceedinos During the period of time NRC is pursuing termination of an agreement with a State, State and NRC activities should be coordinated so that there is continued protection of the public health and safety. The State should be urged to request.

technical assistance in any area where there is a concern regarding the State's ability to carry out its responsibilities under the agreement. The Office of State Programs will coordinate with the State, Region, and the Office of Nuclear Material i Safety and Safeguards as to the necessary technical assistance to continue the protection of public health and safety.

1 B. Additional Coordination After Terminations

1. NRC will conduct a meeting with the licensees in the State to explain the reassertion of NRC authority and the present fee structure. Lead for the meeting should be the Region in consultation with the Office of Nuclear

, Material Safety and Safeguards, the Office of General Counsel and the Office of the Controller.

I 2. After the termination of the agreement, the Office of State Programs will prepare a letter to the U.S Department of Labor advising the Department of l the effective date of the termination of the agreement (Appendix C).

3. The Regional State Agreements Officer (RSAO) should obtain from the State a computer printout of all specific and generallicenses under the State's agreement. Mailing labels should be obtained, if possible, from the State. A j letter should be prepared notifying each licensee of the termination, l reassertion by NRC, and appropriate information (Appendix D).

4. The Office of State Programs will prepare a letter to All Agreement and

, Non-Agreement States notifying them of the effective date of the 1

termination and, if appropriate, enclosing a copy of the Order or Federal Reaister Notice (Appendix E).

! 5. The Region will coordinate with the State so that all necessary action is taken to have the files for the licenses transferred to the NRC.

Vll. RENEWED INTEREST IN 274b A State that has had an agreement terminated by the NRC, may at a later date j express interest in obtaining a new agreement. The State should be treated as other Non-Agreement States interested in agreements, and OSP Procedure C.1 for processing new agreements should be followed for these negotiations.

i Attachments:

Appendices A, B, C, D, E

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Appendix A ;

Termination Procedure  ;

1 DRAFT SAMPLE: Commission Paper for Reassertion of NRC Authority in en Agreement State and Request for Hearings  !

EQa: The Commissioners EBQM: Executive Director for Operations

SUBJECT:

STAFF'S RECOMMENDATIONS REGARDING TERMINATION OF (STATE'S]

AGREEMENT WITH THE COMMISSION AND OPPORTUNITY FOR HEARING PURPOSE:

To present the results of the staff review of the (State] program, the Management Review I Board's (MRB) recommendation for termination of lall or part] of the (Statel agreement and ,

request that a special Agreement State Board be convened to provide [ Statal with an ,

opportunity for a hearing if requested. l l

SUMMARY

)

i A review of [ State's] Agreement State program was conducted on [Datel. As a result of '

this review and results of the MRB, the staff finds that IState's] regulatory program lis l inadequate to protect public health and safety and/or has not complied with one or more l requirements of Section 274 of the Atomic Energy Act (AEA)). Accordingly, the staff is l recommending that the Commission initiate hearing procedures for the suspension of  ;

IState's] program.

DISCUSSION:

Section 274) of the AEA authorizes the Commission to terminate the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission termination is required to adequately protect public health and safety or because the State has not complied with one or more requirements of the AEA.

[This section should contain facts concerning the State's program, why termination is appropriate versus suspension. Reviews, Management Review Board Meetings, and discussions and correspondence with the State addressing the deficiencies should be documented.]

[The staff should document any information on whether the State will be requesting a hearing regarding the termination. If a hearing request is likely, staff should discuss the options of the informal hearing conducted by the Commission or by the Special Agreement l

State Board.)

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i I COORDINATION: This paper has been coordinated with the Office of the General Counsel, which has no legal objection.

! RECOMMENDATION: That the Commission:

! 1. Notifv IState) of an opportunity for a hearing on the proposed termination through

ISpecial Agreement State Board or Commission itself). If requested, approve such j a request.

I Executive Director for Operations Attachments:

1. MRB Recommendations or Letter from Governor Requesting Termination

2. Proposed Federal Reaister Notice Notifying (State) of an Opportunity for a Hearing A-2 12/19/96

s Attachment 1 i l

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DRAFT SAMPLE

Management Review Board Recommendations 4

i MEMORANDUM TO: Executive Director for Operations FROM: Deputy Executive Director for I

Regulatory Programs l Chairman, Management Review Board

SUBJECT:

MANAGEMENT REVIEW BOARD RECOMMENDATIONS FOR  ;

i THE TERMINATION OF THE ISTATE] AGREEMENT PROGRAM On [datel, the Management Review Board (MRB) met to consider the review of the (Statel 4

Agreement State program [ attached are meeting minutes). [Give details on the program deficiencies, the MRB adequacy and compatibility findings, and the State's response to the

findings.]

Given the responsibility of the NRC to protect the public health and safety, the MRB l I recommends that you direct the staff to prepare a Commission paper to initiate termination of the agreement between IState) and NRC, dated (Date).

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Attachment:

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Attachment 2 DRAFT SAMPLE: Proposed Federal Register Notice Regarding Opportunity

for Hearing on Reassertion

! Opportunity for Hearing on Termination of [ State's] Regulatory Authority and the 3 Reassertion of NRC Authority f AGENCY: U.S. Nuclear Regulatory Commission (NRC)

! ACTION: Notice of Opportunity for Hearing on Termination of the (State) Regulatory l Authority and the Reassertion of the NRC Authority l

}

SUMMARY

The NBC staff has proposed that the Commission terminate (State's]

{ regulatory authority over [ identify part of agreement affected and material

! affected] and reassert NRC's authority in (Statel. The staff believes that

! such action is necessary in order to ensure that public health and safety will i be protected. Accordingly, the Commission is providing the State with this

notice of opportunity for a hearing on the proposed termination of the l [ State's] regulatory authority.

i

FOR FURTHER INFORMATION CONTACT:

i j [OSP CONTACT), Office of State Programs, U.S. Nuclear Regulatory i Commission, Washington, DC 20555, telephone [ telephone number).

SUPPLEMENTARY INFORMATION:

Under Section 274 of the Atomic Energy Act, as amended in 1959, individual States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source, and special nuclear materials in order to effect and maintain such a transfer of authority, the State must demonstrate that its program is adequate to protect the public health and safety and is also compatible with the Commission's program for regulating those materials.

[ Narrative on whether the State has requested termination).

Staff review and recommendations regarding the adequacy and compatibility of Agreement State Programs are made through the Management Review Board (MRB) which consists of senior NRC managers and an Agreement State representative. The MRB makes its decisions regarding the adequacy of each Agreement State's program based on the staff's reviews of the '

program. In reviewing [ State's) program, the MRB has recommended that the Commission terminate the State's agreement with NRC ! Narrative of MRB findings and any hearings.]

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! Pursuant to the provisions of Section 274) of the Atomic Energy Act of 1954, as amended, the staff has proposed that the Commission terminate  !

.! the [ Statal agreement over ! identify part of agreement affected and material )

i affected] and reassert NRC's authority in (State) in order to protect the '

public health and safety.

i Section 274)(1) of the Act requires that before termination or suspension of l all or part of an agreement, reasonable notice and opportunity for hearing 4 must be provided to the State. If the State does not request a hearing i i within 30 days, the Commission will make a final decision on the staff's i recommendation to terminate the State's Agreement. If a hearing is

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requested by the State, [ provide details regarding the conduct of hearing including the question as to whether the hearing will be conducted by the Special Agreement State Board or the Commission itself.) After 4 consideration of information obtained from the hearing, the Commission will  !

make a final determination on termination of the agreement with the State of j [ State's Name).

Existing licensees in [ State) will be advised of this potential change in i regulatory authority if the Commission decides to initiate termination proceedings.

For information regarding this reassertion action contact [ Director), Office of State Programs.

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r Appendix B

[ Termination Procedure

! DRAFT SAMPLE: Commission Paper for Reassertion of j 2

NRC Authority in an Agreement State l f.QB: The Commissioners l

EBQM: General Counsel t

SUBJECT:

REASSERTION OF NRC REGULATORY AUTHORITY OVER

! (ALL OR PART OF) THE [ STATE] AGREEMENT f

i PURPOSE: '

To inform the Commission that (Statel was offered an opportunity for a hearing and not ,

j having requested one, to recommend termination of [all or part) of the [Statel agreement.

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SUMMARY

{ As stated in SECY lidentification Number), a review of IState's] Agreement State program i was conducted on IDatel. As a result of this review and results of the Management i Review Board (MRB), the staff finds that [ State's] regulatory program lis inadequate to i protect public health and safety and/or has not complied with one or more requirements of

j. the Atomic Energy Act (AEA)). On (Datel, NRC published a notice of opportunity for a ,

hearing on the proposed suspension in the Federal Renister. The State has not requested a i hearing on the matter. Accordingly, the staff recommends that the Commission suspend j [ State's) Agreement.

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I DISCUSSION:

5 Section 274) of the AEA authorizes the Commission to terminate the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert i the Commission's licensing and regulatory authority if the Commission finds that such l termination is required to adequately protect public health and safety, or because the State j has not complied with one or more requirements of the AEA.

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ICite this section from previous SECY. This section should contain facts concerning the

State's program, why termination is appropriate versus suspension. Reviews,

{ Management Review Board Meetings, and discussions and correspondence with the State i addressing the deficiencies should be documented.)

{

i [The staff should document that the State was offered an opportunity for a hearing, but

did not request one.)

1 i COORDINATION: This paper has been coordinated with the Office of State Programs.

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RECOMMENDATION: That the Commission: l l

J 1. Anorove the Order provided in Attachment 1 and direct the Secretary to issue such  :

! Order.

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2. Anorove the publication of the Federal Renister Notice announcing the Commission decision (Attachment 2). The Commission Order will be published in the Federal .

Register along with the notice of reassertion of authority. 1

< 3. Annrove the letter notifying the Governor of (State) of the termination (Attachment a 3). l i 1

! 4. Nola a public announcement will be is:6ued by the Office of Public Affairs I (Attachment 4).

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, 5. Hola that the appropriate Congressional Committees will be informed of the Commission's decision by the Office of Congressional Affairs (Attachment 5).

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General Counsel  ;

, Attachments:

1. Proposed Commission Order  ;

j 2. Proposed Federal Register Notice

3. Draft Letter to the Governor l 4. Proposed Public Announcement

5. Proposed Congressional Letters j

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Attachment 1 l

l Draft Order Terminating Agreement State Program UNITED STATES l NUCLEAR REGULATORY COMMISSION I in the Matter of l 1

[Name of Statal

[ Agreement State Programl  !

l ORDER TERMINATING AGREEMENT STATE PROGRAM l

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l ISet forth the name of the Agreement State program and background information as to I when the program was initiated, what type of agreement materials are covered, and the

authority of the Commission and the Governor of the particular State to enter into this l l type of agreement. In addition, the authority of the Commission to terminate the l Agreement State program should be stated. The following is provided as a sample j i discussion for this section.] l l

On (Datel, the State of [Namel entered into an agreement (Agreement) with the Nuclear Regulatory Commission (NRC or Commission) pursuant to Section 274 of the Atomic Energy Act of 1954 (AEA), as amended,42 U.S.C. Section 2021. The Agreement discontinued the NRC's regulatory authority within the State with respect to [ byproduct material as defined in Section lle(1) of the AEA (radioisotopes) and/or byproduct material as defined in Section lle(2) of the AEA (mill tailings or wastes) and/or source material (uranium and thorium) and/or special nuclear material (uranium 233, uranium 235 and plutonium) in quantities not sufficient to form a critical mass and/or permanent disposal of low-level waste containing one or more of the materials stated above, but not including mill tailings). The Agreement authorized the State of [Namel to regulate these materials for the protection of public health and safety.

Il

[This section should provide a description of , levant events, facts, deficiencies, technical or legal reasons that provide the substantive basis for issuing the Order. The following example is provided as a sample discussion for this section.]

l A review of [ State's] Agreement State program was conducted on [Datel. As a result of l this review and Management Review Board (MRB) recommendations, the Commission has i

determined that [ State's] regulatory program is inadequate to protect public health and .

l safety. The review ascertained that (( State's] Agreement State program failed to I l

B-3 12/19/96 i l

adequately protect public health and safety by (facts directly bearing on failure of the program to adequately maintain public health and safety).

land /or the following:]

in addstion, the review and MRB evaluation ascertained that IState's] Agreement State program has not complied with one or more requirements of the AEA, i.e., it is incompatible. (Describe facts directly bearing on incompatibility between the two programs.]

Ill (This section abould provide the justification for issuing the Order, in light of the facts described in Section 11. The following example is provided as a sample discussion for this section.]

Section 274d of the AEA provides, in part, that the Commission sha!l enter into an Agreement with a State to discontinue the Commission's regulatory authority if the Commission finds that the State's regulatory program is adequate to protect the public health and safety with respect to materials covered by the proposed agreement and the State's regulatory program complies with Section 274o of the AEA and in all other respects is compatible with the Commission's program for the regulation of such materials.

Section 274j(1) of the AEA authorizes the Commission to terminate its agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission finds that such suspension is required to protect public health and safety or the State has not complied with one or more requirements of Section 274 of the Atomic Energy Act..

The NRC must be able to rely on [ State's] Agreement State program to ladequately protect public health and safety) land /or) Ito be compatible with the Commission's requirements and standards applicable to the agreement material]. The facts and circumstances enumerated in Section 11 of this Order raise serious doubts as to whether [Statel can be relied upon to the AEA [ Explain why facts are severe enough to warrant termination as opposed to suspension.1 Consequently, I have determined that the termination is required (to prote'ct the public health and safety] OR [because the State has not complied with one or more of the requirements of Section 274 of the Atomic Energy Act of 1954, as amended].

IV Accordingly, pursuant to Sections 161b,161c,161i,161o, and 274 of the Atomic Energy Act of 1954, as amended, IT IS HEREBY ORDERED THAT THE AGREEMENT BETWEEN THE COMMISSION AND ISTATEl, DATED , TERMINATE AS FOLLOWS:

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A. [lDENTIFY PART OF AGREEMENT AFFECT "D AND MATERIAL AFFECTED];

FOR THE NUCLEAR REGULATORY COMMISSION I

Secretariat Dated at Rockville, Maryland this day of ,19IXX]'

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l Attachment 2 i DRAFT SAMPLE: fadef.at Reaister Notice Regarding Reassertion Termination of IStatel Regulatory Authority and the Reassertion of NRC Authority in l IState]

l~ AGENCY: U.S. Nuclear Regulatory Commission (NRC)

ACTION: Notice of Termination of the (State] Regulatory Authority and the i Reassertion of the NRC Authority in [Statel.

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SUMMARY

The NRC has terminated (State's] regulatory authority over lidentify part of

agreement affected and material affected] and reasserting NRC's authority in j- [ State). The action, which is effective on (Datel, is being taken in order to ensure that public health and safety will be protected [or because of j compatibility concerns).

FOR FURTHER INFORMATION CONTACT:

! IOSP CONTACT), Office of State Programs, U.S. Nuclear Regulatory l Commission, Washington, DC 20555, telephone [ telephone number).

SUPPLEMENTARY INFORMATION:

I l Under Section 274 of the Atomic Energy Act (AEA), as amended in 195g, j individual States can assume part of the NRC's regulatory authority over the

possession and use of byproduct, source and special nuclear materials. In

! order to effect and maintain such a transfer of authority, the State must l demonstrate that its program is adequate to protect the public health and l safety and is also compatible with the Commission's program for regulating i those materials.

j [ Narrative on whether the State has requested termination).

}

j Staff review and recommendations regarding the adequacy and compatibility

of Agreement State Programs are made through the Management Review j Board (MRB) which consists of senior NRC managers and an Agreement

State representativs. The MRB makes its decisions regarding tha adequacy j of each Agreement State's progra'n based on the staff's reviews of the

! program, in reviewing (State's] program, the MRB recommended that the l Commission terminate the State's agreement with NRC. The Commission has considered the State of [ State's] radiation control program and has

, agreed with the findings of the MRB, as well as with its recommendation to terminate the program. [ Narrative of MRB findings and any hearings.)

]

}

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> d Pursuant to the provisions of Section 274) of the Atomic Energy Act of 1954, as amended, the Commission found that it is necessary to terminate the (Statel agreement over [idontify part of agreement affected and material

( affected] and reassert NRC's authority in [ State) in order to protect the l public health and safety. This finding ensures that there will be adequate licensing inspection of AEA activities. This reassertion of authority will become effective on [datel.

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! Persons seeking licenses for activities within [ State) involving [ materials  !

affected) should file such applications with [ Regional Office information).

Existing licensees in (Statel are being advised of this change in regulatory

, authority. Pursuant to a Commission Order published with this notice, existing [Statallicenses affected by this change will become effective NRC licenses under conditions set forth in the Order.

1 For information regarding this reassertion action, contact IDirector), Office of 1

Nuclear Material Safety and Safeguards.

Inquiries regarding the status of licenses or applications should be directed to

[ Regional Office contact).

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Attachment 3 i

] DRAFT SAMPLE: Letter to Governor Regarding the Cornmission Decision on Termination

Dear Governor [Name):

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[As a result of your letter of [Datel, the Commission, on [Dete), agreed to terminate

{ [ State's! lidentify part of agreement affected and material affected) and reasserting NRC's j authority in [ State). The action, which is effective on [Date), is being taken in order to j ensure that public health and safety will be protected.

j for]

[As a result of a finding of inadequacy and/or incompatibility of the State's radiation control program, the Commission, on [Date), terminated [ State's] agreement discontinuing .

the NRC authority over [ldentify part of agreement affected and material affected] and )

, reasserting NRC's authority in (State). [ Describe hearings, if held.] The action, which is '

. effective on IDatel, is being taken in order to ensure that public health and safety will be l protected.)

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! Enclosed is a copy of the Federal Register Notice which announces NRC reassertion. We l will also issue a public announcement and inform the appropriate Congressional Oversight l Committees in conjunction with the issuance of the Federal Reaister Notice.

l [ Radiation Control Program Director), [ State), was informed of the decision on [datel. l l understand (Name of Director] is making arrangements for transfer of the appropriate files i l and material to the NRC.  !

! We appreciate the State's cooperation in this matter. [Namel, Director, Office of State l Programs, at [ telephone number] can answer any questions that your staff may have.

Sincerely, i

i  !

Chairman

Enclosure:

i As stated j l

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40 Attachment 4 DRAFT SAMPLE: Public Announcement to be issued by the Office of Public Affairs NRC TO REASSERT REGULATORY AUTHORITY IN ISTATE]

The Nuclear Regulatory Commission is reasserting its regulatory authority over the possession and use of byproduct, source, and special nuclear materials in [ State).

The action, which is effective on IDatel, is being taken in order to ensure that public health and safety will be protected. [ Facts requiring termination should be given, including information on a hearing, if held.]

Under Section 274 of the Atomic Energy Act, as amended in 1959, individual States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source, and special nuclear materials. In order to effect and maintain such a transfer of authority, the State must demonstrate that its program is adequate to protect the public health and safety and is also compatible with the Commission's program for regulating those materials. The State of [ State Namel signed an agreement with the NRC in [Yearl that authorized the State to regulate these radioactive materials.

Section 274) of the Atomic Energy Act gives the Commission authority to terminate all or part of its agreement with a State if the termination is required to protect the public health and safety, or if the State has not complied with one or more of the requirements of Section 274 of the Act, in cases where the Commission finds that program deficiencies related to either adequacy or compatibility are such that the Commission must take action, the Commission will terminate all or part of its agreement with the State.

Licensees in (Statel are being advised of the NRC's action in Order [Datel, and the NRC staff has identified files which are to be transferred from [Statel authorities. In the meantime, the affected [ State's Namel licenses, as currently issued, will remain in effect until they can be revised, if necessary, to meet NRC's requirements.

B-9 12/19/96

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. Attschment 5

, DRAFT SAMPLE

Letters to Congressional Committees

[ Appropriate Congressional j Oversight Committees) 4

Dear Mr. Chairman:

l At the request of the Governor of [Statel, the Nuclear Regulatory Commission, on [Datel,

, egreed to terminate [ State's) agreement relinquishing the Nuclear Regulatory Commission (NRC) regulatory authority over [ identify categories of material under the agreement), and

, to reassert NRC licensing and regulatory authority over these materials, in order to protect the public health and safety.

! (or if appropriatel

[ Describe circumstance by which NRC is terminating the agreement and details of a

hearing if held.]

^

l The effective date of the termination is (Datel. Enclosed is a copy of the Federal Reaister j Notice announcing NRC reassertion of regulatory authority. A Press Release will be

released in conjunction with the issuance of the Federal Register Notice.

Sincerely, l ]

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Director l Office of Congressional Affairs

Enclosure:

1 As stated

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. _._____m ... _. . ___ _ - . - _ _ _ _ _ . _ . _ . _ . . _ _ _ _ _ _ _ . _ _ _ . . . . _ . . _ _ . . . _ . . . _ _ . . .

Appendix C Termination Procedure DRAFT SAMPLE: Letter to U.S. Department of Labor on Termination Occupational Safety and Health Administration Department of Labor

Dear Administrator:

This is to advise the Department of Labor that under Section 274 of the Atomic Energy Act, the Nuclear Regulatory Commission terminated [ State's) agreement relinquishing the Nuclear Regulatory Commission INRC) regulatory authority over [ identify categories of material under the agreement). >

The effective date of the termination is (Datel. Enclosed is a copy of the Order for your information.

Sincerely, 1

Director Office of State Programs -

Enclosure:

As stated 1 l

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$ Appendix D

Termination Procedure l

j DRAFT SAMPLE: Letter to Licensees Regarding Termination j and Reassertion j Attention: [ State] Licensees l

The Nuclear Regulatory Commission has terminated (State's] regulatory authority over .

[ identify part of agreement affected and material affected] and reasserting NRC's authority i

. in (Statel by an Order issued [Date).

The action, which is effective on (Datel, is being taken in order to ensure that public health and safety will be protected.

1 This letter is to advise licensees that activities being conducted under your [ State's)

license will be subject to regulatory control by the Nuclear Regulatory Commission. In the i

meantime, your [ State) licenses, as currently issued, will remain in effect until they can be j revised, if necessary, to meet NRC's requirements. All communications concerning your use of lappropriate materials) should be addressed to:

l Regional Office

! Address j Phone number i

i A copy of the Order is enclosed.

k I i

Director l Office of Nuclear Material I

Safety and Safeguards j

Enclosure:

As stated i

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l Appendix E Termination Procedure i

DRAFT SAMPLE: Letter to All States Regarding Termination i and Reassertion

}

l ALL AGREEMENT AND NON-AGREEMENT STATES

?

1 i TRANGMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-96-XXX)

I- Your attention is invited to the enclosed correspondence which contains:

l lNCIDENT AND EVENT INFORMATION.......

! PROGRAM MANAGEMENT INFORMATION.......XX NRC ORDER TO

} TERMINATE ISTATE'S j NAME) REGULATORY j AUTHORITY AND i REASSERT NRC

! REGULATORY AUTHORITY j TRAINING COURSE INFORMATION..........

! TECHNICAL INFORMATION................

I

! OTHER INFORMATION....................

i Suppiementary Information: Enclosed, for your information, is the Order issued by the j Nuclear Regulatory Commission terminating [ State's] regulatory authority over ! identify j part of agreement affected and material affected) and reasserting NRC's authority in

[ State).

} The action, which was effective on IDatel, is being taken to ensure that public health and i safety will be protected.

?

Licensees in [ State] are being advised of the NRC's action, in the meantime, the affected j (State's Namel licenses, as currently issued, will remain in effect until they can be revised, if necessary, to mest NRC's requirements.

l If you have any questions regarding this correspondence, please contact me or the

~

individual named below.

POINT OF CONTACT: Staff Contact TELEPHONE: Director FAX: Office of State Programs

INTERNET

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Enclosure:

I As stated l E-1 12/19/96

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d Office of State Programa Standard Approval ,

l The attached intergel Procedure D.22 ' Procedure for Suspension of a Section 274b

Agreement" is opproved. i

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4 god!Lj~ fJ . 5 chr*L 1/i7y7

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Kathisen N. Schneider Date 6thb~ /3 sswIkbu d

//nl57

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Paul H. Lohaus, Deputy Director Date  ;

Office of State Programs ll

)r A4 d11GGs '

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Nicbrd L'. Bengart, Direct Date Office of State Programs 1 12/19/96 l

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! OFFICE OF STATE PROGRAMS i INTERNAL PROCEDURE DIVISION 1

Post-A0reement D.22 Procedure for

! Activities Suspension of a i Section 274b Agreement i

i 1. INTRODUCTION i

} This procedure provides the guidelines that will be followed by NRC staff when i

considering whether to exercise the authority contained in Section 274)(2) of the Atomic Energy Act to suspend an agreement with a State.

} This procedure does not address the emergency situation where there is a danger to i the public health and safety. Guidelines for emergency suspension are found in l Procedure D.13. i

11. SUSPENSION l A. Section 274) of the Atomic Energy Act gives the Commission authority to i suspend all or part of its agreement with a State if the suspension is required to protect the public health and safety, or if the State has not complied with i one or more of the requirements of Section 274 of the Act. In cases where l the Commission f:nds that program deficiencies related to either adequacy or j compatibility are such that the Commission must take action, the Commission may suspend all or part of its agreement with the State.

l B. The Commission can also suspend an agreement in circumstances where the

! State radiation control program has not complied with one or more l l requirements of the Act,i.e., the State program is not compatible with the

NRC program and the State has refused or is unable to address those areas l J

previously identified as compatibility concerns and the non-compatibility is disruptive to the national program conducted by NRC and Agreement States  ;

! for the regulation of Atomic Energy Act material. j i

j C. Before reaching a final decision on suspension, the Commission will notify i the State and provide the State an opportunity for a hearing on the proposed q

suspension as discussed in Part V. Notice of the suspension will also be j published in the fadatal Renister. Suspension, rather than termination, will i be the preferred option in those cases where the Commission agrees that the i State has provided evidence that the program deficiencies are temporary and

. that the State is committed to implementing program improvements.

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111. MANAGEMENT REVIEW BOARD ROLE A. The Management Review Board (MRB) is responsible for mr. king the adequacy assessment of each Agreement State's program based on the reviews of the program, using both common perforrnr,nce indicators and non-common performance indicators, and the comgetibility determination.

The MRB consists of senior NRC managers, or their designees, to include:

Deputy Executive Director for Regulatory Programs Director, Office of Nuclear Material Safety and Safeguards Director, Office of State Programs Director, Office for Analysis and Evaluation of Operational Data General Counsel Agreement State Liaison to the MRB B. The MRB will consider the results of the Agreement State review and any other appropriate information in making a determination of adequacy and compatibility with respect to an Agreement State. MRB meetings to discuss specific program review findings normally will be open and Agreement States' reprosentatives from the State under review will be invited to attend.

C. If it is the recommendation of the MRB and EDO that NRC initiate the proceedings to suspend an agreement, the Office of State Programs will be

• ossigned the loed for preparation of a Commission paper. The Commission paper will contain the information supporting the suspension as described in Pat IV, and will assess potential recource implications of NRC reasserting authority. The Commission paper will be coordinated with the Office of General Counsel, the Office of Nuclear Material Safety and Safeguards, and the affected Region.

IV. STAFF WORK Before the Commission can suspend a State's program, it must provide reasonable notice and opportunity for a hearing to the State as required by Section 274J(1).

Section 274j(1) does not require such a hearing if suspension is requested by the Governor.

Before initiating the opportunity, the Office of State Programs must submit to the Commission a paper crintaining a recommendation to suspend the State's program l

in question. This Com.nission paper willinclude the recommendations of the MRB and any other information pertinent to the staff's recommendation to suspend the agreement. Before a decision is made on the MRB's recommendation, the Commission must provide the State with notice and an opportunity to request a hearing on the issue. (See Appendix A for a sample Commission paper including a sample Federal Reaister Notice.)

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If the State does not request' a hearing, the Commission will make a final decision on the issue. The Offic9 of General Counsel will submit a Commission paper which willinclude the suspension order and the Federal Register Notice announcing the Commission decision. The Office of State Programs will provide the letter notify the Governor of the suspension. Congressional Committees will be notified and a public announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively. (See Appendix S for samples of all of the above.)

j If the State does request a hearing, the Commission will initiate the hearing ' process described below.

Whether or not a hearing is requested, if the Commission decision is to not support

{ the recommendation to suspend the State's program, the Governor will be notified of this result. Congressional Committees will be notified and a public j announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively.

4

! V. HEARINGS i

The hearing for the suspension of an Agreement State program will be an informal

hearing conducted either by the Commission itself, or at the Commission's l 1 discretion, by a Special Agreement State Board appointed by the Commission. in i cases where the Commission determines that a Special Board will be used, the Board will consist of three members

i (1)

! the Chair of the Organization of Agreement States (OAS) (unless the '

l Chair is from the State in question, in which case the Agreement l State representative will be the past Chair of the OAS);

(2) an official from the Office of General Counsel; and (3) i the Deputy Regional Administrator of an NRC Regional Office (outside of the Region in which the State is located).

The Commission, or the Special Board, as appropriate, will conduct an informal hearing to address the issues in question. At the hearing, the NRC staff, representatives of the affected Agreement State, and interested third parties will 2 have an opportunity to offer their views, answer questions, and submit written materials. Third parties whose interests may be affected may submit written

material and may offer their views for a limited period of time. After consideration j of the issues, the Commission or the Special Board willissue a decision on suspension. A majority of the Commission or the Special Board will be required to l

support a decision. In cases where a Special Board is used, the Commission will have discretion to review the decision of the Special Board, and either uphold or t overturn the Board's decision.

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I

VI. ADDITIONAL COORDINATION DURING THE SUSPENSION A. NRC will conduct a meeting with the licensees in the State to explain the

reassertion of NRC authority and the present fee structure. Lead for the

! meeting should be the Region in consultation with the Office of General

Counsel, Office of Nuclear Material Safety and Safeguards, and the Office of the Controller.

B. After the suspension of the agreement, the Office of State Programs will j prepare a letter to the U.S. Department of Labor advising the Department of j the effective date of the suspension of the agreement (Appendix C).

l l C. The Regional State Agreements Officer (RSAO) should obtain from the State j a computer printout of all specific and generallicenses affected by t'he j

suspension of the State's agreement. Mailing labels should bs obtained, if

! possible, from the State. A letter should be prepared notifying each licensee I of the suspension and reassertion by NRC and appropriate information l (Appendix D).

] D. The Office of State Programs will prepare a letter to All Agreement and l Non-Agreement States notifying them of the effective date of the

. suspension and enclosing a copy of the Order or Federal Reaister Notice

] (Appendix E).

l E. The Region will coordinate with the State so that all necessary action is j taken to have license files transferred or made available to the NRC.

l Vll. WITHDRAWAL OF SUSPENSION / RECOMMENDATION FOR TERMINATION i

! A. When the situation requiring the suspension has been corrected or j eliminated, the MRB will consider all factors and recommend to the

Commission whether to lift the suspension.

B. If the situation is not resolved, termination will be considered and the

Procedure D.21 for termination should be followed.

Attachments:

Appendices A, B, C, D, E l

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Appendix A l Suspension Procedure ,

1 DRAFT SAMPLE: Commission Paper for Suspension of All or Part of an Agreement and Request for Hearings l-EDR: The Commissioners fBQM: Executive Director for Operations

SUBJECT:

STAFF'S RECOMMENDATIONS REGARDING SUSPENSION OF [ STATE'S]

AGREEMENT WITH THE COMMISSION PURPOSE:

To present the, results of the staff review of the [Statel program, the Management Review Board's (MRB) recommendation for suspension of [all or part) of the [ State] agreement and request that a special Agreement State Board be convened to provide [ State] with an opportunity for a hearing,if requested.

SUMMARY

1 A review of [ State's] Agreement State program was conducted on [Datel. As a result of this review and results of the MRB, the staff finds that (State's] regulatory program [is inadequate to protect public health and safety and/or has not complied with one or more  !

requirements of the Atomic Energy Act (AEA)]. Accordingly, the staff is recommending that the Commission initiate hearing procedures for the suspension of IState's] program.

DISCUSSION:

Section 274](1) of the AEA authorizes the Commission to suspend the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission suspension is required to adequately protect public health and safety or because the State has not complied with one or more requirements of the AEA. Commission suspension of a State's Agreement is a temporary measure. If the deficiencies in a State's program are remedied, the Commission may lift the suspension by informing the Governor of the State and affected licensees.

[This section should contain facts concerning the State's program, why suspension is desirable versus termination. Reviews, Management Review Board Meetings, and discussions and correspondence with the State addressing the deficiencies should be documented.]

[The staff should document any information on whether the State will be requesting a hearing regarding the suspension. If a hearing is likely, staff should discuss the options of A1 12/19/96

1 l'

the informel hearing conducted by the Commission or by the Special Agreement State Board.]  !

I COORDINATION: This paper has been coordinated with the Office of the General Counsel, which has no legal objection.

)

RECOMMENDATION: That the Commission:

1. Notify the [Statel of an opportunity for a hearing on the proposed suspension through (Special Agreement State Board or Commission itself). If requested, approve such a request.

Executive Director for Operations Attachments:

1. MRB Recommendations

2. Proposed Federal Reaister Notice Regarding Opportunity for Hearing or Suspension l

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4 Attachment 1 DRAFT SAMPLE: Management Review Board Recommendations

! MEMORANDUM TO: Executive Director for Operations

.i

FROM: Deputy Executive Director for Regulatory Programs Chairman, Management Review Board

SUBJECT:

MANAGEMENT REVIEW BOARD RECOMMENDATIONS FOR THE SUSPENSION OF THE [ STATE] AGREEMENT PROGRAM On (date), the Management Review Board (MRB) met to consider the review of the [ State)

Agreement State program [ attached are meeting minutes). [Give details on the program deficiencies and the State's plans to correct the problems.] l l

l Given the desire of IState) to continue with their agreement, but in light of the need to I protect public health and safetv the MRB recommends that you direct the staff to prepare j a Commission paper to initia- pension of the agreement program in accordance with procedures.

Attachment:

As stated J

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Attachment 2 DRAFT SAMPLE: Proposed fadstal Register Notice Regarding Opportunity for Hearing on Suspension Opportunity for Hearing on Suspension of [ State] Regulatory Authority and the Reassertion of NRC Authority i

AGENCY: U.S. Nuclear Regulatory Commission (NRC)

ACTION: Notice of Opportunity for Hearing on Suspension of the (State] Regulatory Authority and the Reassertion of NRC Authority  !

SUMMARY

The NRC staff has proposed that the Commission suspend (State's]

regulatory authority over [ identify part of agreement affected and material affected] and raassert NRC's authority in [ State). The staff believas that such action is necessary in order to ensure that public health and safety will be protected. Accordingly, the Commission is providing the State with this notice of opportunity for a hearing on the proposed suspension of the (State's] regulatory authority.

FOR FURTHER INFORMATION CONTACT:

[OSP CONTACT], Office of State Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone Italephone number).

SUPPLEMENTARY INFORMATION:

Under Section 274 of the Atomic Energy Act of 1954, as amended, individual States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source, and special nuclear materials. In order to effect and maintain such a transfer of authority, the State must  ;

demonstrate that its program is adequate to protect the public health and l safety and is also compatible with the Commission's program for regulating i those materials.

Staff review and recommendations regarding the adequacy and compatibility of Agreement State Programs are made through the Management Review Board (MRB) which consists of senior NRC managers and an Agreement State representative. The MR8 makes its decisions regarding the adequacy of each Agreement State's program based on the staff's reviews of the program, in reviewing (State's] program, the MRB has recommended that the Commission suspend the State's agreement with NRC until improvements to assure adequate protection of public health and safety are incorporated into (State's] regulatory program. [ Narrative of MRB findings.]

A-4 12/19/96

1 I .

$ Pursuant to the provisions of Section 274) of the Atomic Energy Act of I 1954, as amended, the staff has proposed that the Commission suspend the g (Statel agreement over lidentify part of agreement affected and material affected] and reassert NRC's authority in (State) in order to protect the

public health and safety. This action ensures that there will be adequate

licensing and inspection of AEA activities.

2

Section 274)(1) of the Act requires that before termination or suspension of all or part of an agreement, reasonable notice and opportunity for hearing l must be provided to the State if the State does not request a hearing

within 30 days, the Commission will make a final decision on the staff's j recommendation to suspered the State's Agreement.

If a hearing is requested by the State, Iprovide details regarding conduct of hearing depending on whether the hearing will be conducted by the Special l Agreement State Board or the Commission itself.)

r Existing licensees in (State] will be advised of this potential change in

regulatory authority if the Commission decides to initiate suspension

! proceedings.

For information regarding this reassertion action contact IDirector), Office of

State Programs.

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Appendix B Suspension Procedure i

DRAFT SAMPLE: Commission Paper for Suspension of All or Part of an Agreement

EDE

The Commissioners FROM: General Counsel

SUBJECT:

REQUEST FOR SUSPENSION OF [ALL OR PART OF]

THE ISTATE] AGREEMENT PURPOSE:

To inform the Commission that [ State] was offered an opportunity for a hearing and not having requested one to recommend suspension of [all or part] of ne [ State) agreement.

SUMMARY

As stated in SECY [ldentification Number) a review of [ State's] Agreement State program was conducted on [Date). As a result of this review and results of the MRB, the staff finds that [ State's] regulatory program lis inadequate to protect public health and safety '

and/or has not complied with one or more requirements of Section 274 of the Atomic Energy Act (AEA)]. On [date), NRC published a notice of opportunity for a hearing on the proposed suspension in the Federal Reaister. The State has not requested a hearing on the matter. Accordingly, the staff recommends that the Commission suspend Iname of State'sl Agreement.

DISCUSSION:

Section 274)(1) of the AEA authorizes the Commission to suspend the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission finds that such suspension is required to protect public health and safety or the . ate has not complied with one or more requirements of Section 274 of the AEA.

[ Cite this section from previous SECY. This section should contain facts concerning the State's program, why suspension is desirable versus termination. Reviews, Management Review Board Meetings, and discussions and correspondence with the State addressing the deficiencies should be documented.]

[The staff should document that the State was offered an opportunity for a hearing but did not request one.)

CQQADINATION: This paper has been coordinated with the Office of State Programs.

B-1 12/19/96 )

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RECOMMENDATION: That the Commission:

1. Anorove the Order provided in Attachment 1 and direct the Secretary to issue such j Order.

l 2. Annrove the publication of the fadgal Register Notice announcing the Commission

, decision (Attachment 2). The Commission Order will be published in the Federal

! Basistg along with the notice of reassertion of authority.

i 3. Annrove the letter notifying the Governor of (State) of the suspension (Attachment t

3).

, 4. Alett a public announcement will be issued by the Office of Public Affairs

! (Attachment 4).

a

5. Bigia that the appropriate Congressional Committees will be informed of the Commission's decision by the Office of Congressional Affairs (Attachment 5).

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General Counsel l Attachments:

1. Proposed Commission Order

2. Proposed Federal Register Notice

3. Draft Letter to the Governor

4. Proposed Public Announcement

5. Proposed Congressional Letters B-2 12/19/96

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= l Attachment 1 DRAFT Order Suspending Agreement State Program l

UNITED STMES '

NUCLEAR P*GULATORY COMMISSION In the Matter of IName of Statel (Agreement State Programl ORDER SUSPENDING AGREEMENT STATE PROGRAM i

(Set forth the name of the Agreement State program and background information as to when the program was initiated, what type of agreement materials are covered, and the authority of the Commission and the Governor of the particular State to enter into this i type of agreement. In addition, the authority of the Commission to suspend the Agreement State program should be stated. The following is provided as a sample discussion for this section).

On (Datel, the State of [Namel entered into an agreement (Agreement) with the Nuclear Regulatory Commission (NRC or Commission) pursuant to Section 274 of the Atomic Energy Act of 1954 (AEA), as amended,42 U.S.C. Section 2021. The Agreement discontinued the NRC's regulatory authority within the State with respect to [ byproduct l material as defined in Section lle(l) of the AEA (radioisotopes) and/or byproduct material as defined in Section lle(2) of the AEA (mill tailings or wastes) and/or source material ,

(uranium and thorium) and/or special nuclear material (uranium 233, uranium 235 and l

plutonium) in quantities not sufficient to form a critical mass and/or permanent disposal of 1 low-level waste containing one or more of the materials stated above, but not including mill tailings). The Agreement authorized the State of [Namel to regulate these materials for the protection of public health and safety.

[This section should provide a description of relevant events, facts, deficiencies, technical or legal reasons that provide the substantive basis for issuing the Order. The following example is provided as a sample discussion for this section.

A review of [ State's) Agreement State program was conducted on (Datel. As a result of this review and the Management Review Board (MRB) recommendations, the Commission has determined that [ State's] regulatory program ifails to adequately protect public health and safety and/or is incompatible with the Commission's regulatory program). The review B-3 12/19/96

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and MRB recommendations ascertained that [ State's) Agreement State program failed to adequately protect public health and safety by ifacts directly bearing on failure of the

, program to adequately maintain public health and safety).

land /or the following:1

! In addition, the review and independent evaluation ascertained that IState's) Agreement State program is incompatible with the Commission's regulatory program in that IState'sl l regulatory program ifacts directly bearing on incompatibility between the two programs).

l lil i (This section should provide the justification for issuing the Order, in light of the facts I

described in Section 11. The following example is provided as a sample discussion for this j section).

Section 274d of the AEA provides, in part, that the Commission shall enter into an Agreement with a State to discontinue the Commission's regulatory authority if the j Commission finds that the State's regulatory program is adequate to protect the public health and safety with respect to materials covered by the proposed agreement and the State's regulatory program complies with Section 274o of the AEA and in all other respects is compatible with the Commission's program for the regulation ;f such materials.

Section 274j(1) of the AEA authorizes the Commission to suspend the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission finds that such suspension is required to protect public health and safety or the State has not complied with one or more requirements of Section 274 of the Atomic Energy Act.

The NRC must be able to rely on IState's] Agreement State program to ! adequately protect public health and safety] land /oel (to be compatible with the Commission's requirements and standards applicable to the agreement material]. The facts and circumstances enumerated in Section 11 of this Order raise serious doubts as to whether (State) can be relied upon to comply with Section 274 of the AEA.

Consequently, I have determined that the suspension is required (to protect the public health and safety) OR lbecause the State has not complied with one or more of the requirements of Section 274 of the Atomic Energy Act of 1954, as amended).

IV Accordingly, pursuant to Sections 161b,161c,1611,161o, and 274 of the Atomic Energy Act of 1954, as amended, IT IS HEREBY ORDERED THAT THE AGREEMENT BETWEEN THE COMMISSION AND ISTATEl, DATED [datel, IS SUSPENDED AS FOLLOWS:

A. llDENTIFY PART OF AGREEMENT AFFECTED AND MATERIAL AFFECTED];

B. IlDENTIFY WHAT ACTIONS THE STATE MUST DO TO COME INTO COMPLlANCE WITH COMMISSION REQUIREMENTS AND WHEN];

B-4 12/19/96

C. IlDENTIFY WHAT MUST HAPPEN TO REINSTATE THE AGREEMENT; FOR THE NUCLEAR REGULATORY COMMISSION Secretariat Dated at Rockville, Maryland ,

this day of ,19(XX] l l

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• l Attachment 2

)

i DRAFT SAMPLE: fadatal Reaister Notice Regarding the Suspension and 4

Reassertion of NRC Authority i

l l Suspension of IStatal Regulatory Authority and the Reassertion of NRC Authority in (Statal

, AGENCY: U.S. Nuclear Regulatory Commission (NRC) j ACTION: Notice of Suspension of the (State) Regulatory Authority and the Reassertion l of the NRC Authority in (State).

)

SUMMARY

The NRC has suspended the (State's] regulatory authority over [ identify part j of agreement affected and material affected) and is reasserting NRC's

, authority in (State). The action, which is effective on [Datel, is being taken l in order to ensure that public health and safety will be protected.

FOR FURTHER INFORMATION CONTACT:

(OSP CONTACT), Office of State Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone [ telephone number).

i SUPPLEMENTARY INFORMATION:

i l Under Section 274 of the Atomic Energy Act of 1954, as amended, individual States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source, and special nuclear materials, la l order to effect and maintain such a transfer of authority, the State must i demonstrate that its program is adequate to protect the public health and safety and is also compatible with the Commission's program for regulating l those materials.

l l Section 274) of the Atomic Energy Act gives the Commission authority to j suspend all or part of its agreement with a State if the suspension is required i to protect the public health and safety, or if the State has not complied with i one or more of the requirements of the Act. In cases where the Commission

finds that program deficiencies related to either adequacy or compatibility

are such that the Commission must take action, the Commission may I

suspend all or part of its agreement with the State.

j Staff review and recommendations regarding the adequacy and compatibility

' of Agreement State Programs are made through the Management Review Board (MRB), which consists of senior NRC managers and an Agreement i State representative. The MRB makes its decisions regarding the adequacy

! of each Agreement State's program based on the staff's reviews of the 1 program, in reviewing [ State's] program, the MRB recommended that the

] Commission suspend the State's agreement with NRC until improvements to i B-6 12/19/96

l 4

i l assure adequate protection of public health and safety are incorporated into IState's[ regulatory program. [ Narrative of MRB findings.]

1 i The Commission has considered the State of [Namel radiation control {

program and has agreed with the findings of the MRB, as well as with its recommendation to suspend the program. J

[ Narrative of MRB findings and any hearings held.)  ;

l IState] has indicated its desire to continue its radiation control program l

under the agreement. The (Statel radiation control program has provided l NRC staff with a " Corrective Action Management Plan" describing actions to

i. be taken to address the identified deficiencies, including specific goals and i j timetables. Once the deficiencies are addressed and the radiation control  !

i program is found to be adequate and compatible, the Commistdon will  !

consider action to lifting the suspension of [ State]. Notification of such cessation will be made to the State's Governor, the State's Congressional delegation, and all other Agreement and Non-Agreement States. There also will be a Federal Register Notice and a press release.

Existing licensees in [ State) are being advised of this change in regulatory authority. Pursuant to a Commission Order published with this notice, existing IState] licenses affected by this change will become effective NRC licenses under conditions set forth in the Order.

For information regarding this reassertion action, contact [ Director), Office of Nuclear Material Safety and Safeguards, inquires regarding the status of licenses or applications should be directed to

[ Regional Office contact].

I i

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1 i

B-7 12/1g/96

]

1 I

! Attachment 3 5

s

! DRAFT SAMPLE: Letter to Governor Regarding the l Commission Decision on Suspension i

4

Dear Governor (Name):

! . As you are aware, Section 274) of the Atomic Energy Act gives the Commission authority J

to suspend all, or part, of its agreement with a State if the suspension is required to protect the public health and safety, or if the State has not complied with one or more of i.

the requirements of the Act. In cases where the Commission finds that program deficiencies related to either adequacy or compatibility are such that the Commission must take action, the Commission may suspend all or part of its agreement with the State.

The last review of the IStatel radiation control program found significant program deficiencies and the program was found to be finadequate to protect the public health and safety and/or incompatible with the NRC's program.) [ Describe hearing proceedings if held.] The Commission is suspending (State's Namel regulatory authority over tidentify part of agreement affected and material affected) and reasserting NRC's authority in

[Statel. The action, which is effective on IDatel, is being taken in order to ensure that public health and safety will be protected. Deficiencies exist in [ State's Namel due to ifacts requiring implementation of Section 274j(1)]. A copy of the Order is enclosed.

I understand that the State wishes to continue its radiation control program under the agreement. The [ Statal radiation control program has provided NRC staff with a

" Corrective Action Management Plan" describing actions to be taken to address the identified deficiencies, including specific goals and timetables. Once the deficiencies are addressed and the radiation control program is found to be adequate and compatible, the Commission will consider action to lift the suspension of the IState] agreement.

Your staff may contact (Namel, Director, Office of State Programs, at [ telephone number]

to discuss issues associated with this suspension.

Sincerely, Chairman

Enclosure:

As stated B-8 12/19/96

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

j .

Attachment 4 l DRAFT SAMPLE: Public Announcement to be issued by the Office of Public Affairs l

NRC ISSUES ORDER TO SUSPEND THE [ STATE'S NAME) REGULATORY AUTHORITY The Nuclear Regulatory Commission is suspending the [ State's Namel regulatory

authority over lidentify part of agrosment affected and material affected) and reasserting  !

NRC's authority in [ State]. i

~

^

The action, which is effective on [Datel, is being taken in order to ensure that  !

public health and safety will be protected. Deficiencies exist in the [ State's Name]

j radiation control program due to ifacts requiring implementation of Section 274j(1)).

4 Under Section 274 of the Atomic Energy Act of 1954, as amended, individual l States can assume part of the NRC's regulatory authority over the possession and use of j byproduct, source, and special nuclear materials. In order to effect and maintain such a j transfer of authority, the State must demonstrate that its program is adequate to protect '

the public health and safety and is also compatible with the Commission's program for regulating those materials. The State of [Name) assumed regulatory jurisdiction when an j agreement with the NRC was signed in [ Year).

Section 274j of the Atomic Energy Act gives the Commission authority to suspend 4

all or part of its agreement with a State if the suspension is required to protect the public health and safety, or if the State has not complied with one or more of the requirements of Section 274 of the Act. In cases where the Commission finds that program deficiencies l related to either adequacy or compatibility are such that the Commission must take action, the Commission will suspend all or part of its agreement with the State.

Licensees in [ State) are being advised of the NRC's action in the Order [Date). In the meantime, the affected IState) licenses, as currently issued, will remain in effect under NRC's authority.

1 B-9 12/19/96

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Attachment 5  ;

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! DRAFT SAMPLE: Letters to Congressional Committees '

1 (Appropriate Congressional l

Oversight Committees) l Door Mr. Chairman:

l At the request of the Governor of (Statel, the Nuclear Regulatory Commission, on [Datel, agreed to suspend (State's] agreement relinquishmg the Nuclear Regulatay Commission

] (NRC) regulatory authority over [ identify categories of material under the agreement]. and i to reassert NRC regulatory authority over these materials, in order to protect the public  ;

health and safety.

)

, (or if appropriate]

! IDescribe circumstance by which NRC is suspending the agreement and details of a j hearing,if held.) '

Once the deficiencies are addressed and the radiation control program is found to be adequate and compatible, the Commission will consider action to lift the suspension of the i agreement with the (Statel.

l l The effective date of the suspension is (Datel. Enclosed is a copy of the Federal Renister l Notice which announces the suspension. We also expect to issue a press release in conjunction with the issuance of the Federal Reaister Notice.

Sincerely, i

l Director i Office of Congressional Affairs

Enclosure:

As stated i

i J

d B-10 12/19/96 i

l J

E

1

• 3 i

Appendix C Suspension Procedure i DRAFT SAMPLE

Letter to U.S. Department of Labor on Suspension l

, Occupational Safety and Health Administration l Department of Labor

?;

2

Dear Administrator:

This is to advise the Department of Labor that urWar Section 274 of the Atomic Energy j Act, the Nuclear Regulatory Commission has suspended [ State's] agreement relinquishing 3 the Nuclear Regulatory Commission (NRC) regulatory authority over [ identify categories of j material under the agreement).

4 The Order, which is effective on (Datel, is being taken in order to ensure that public health and safety will be protected. Deficiencies exist in [ State's Namel due to (facts requiring implementation of Section 274j(1)]. (State] desires to maintain and not terminate the j agreement. When the deficiencies in the program have been addressed and the program is

found to be adequate to protect public health and safety and compatible with the NRC program, NRC will consider lifting the suspension.

Enclosed is a copy of the Order for your information. We will notify you of the future changes in the status of the program.

Sincerely, i

f i

l Director j Office of State Programs l

{

Enclosure:

As stated l

i e

1 1

C-1 12/19/96 l

t I

4 Appendix D Suspension Procedure

] DRAFT SAMPLE: Letter to Licensees Regarding i Suspension and Reassertion i

i Attention: IStatal Licensees The Nuclear Regulatory Commission has suspended IState's) regulatory authority over

[ identify part of agreement affected and material affected) and is reasserting NRC's authority in [Statel by an Order issued IDatel.

The action, which is effective on !Datel, is being taken in order to ensure that public health and safety will be protected. Deficiencies exist in [Statel due to [ facts requiring implementation of Section 274j(1)).

Section 274) of the Atomic Energy Act gives the Commission authority to suspend all or part of its agreement with a State if the suspension is required to protect the public health and safety, or if the State has not complied with one or more of the requirements of the Act. In cases where the Commission finds that program deficiencies related to either adequacy or compatibility are such that the Commission must take action, the Commission may suspend all or part of its agreement with the State.

This letter is to advise you that activities being conducted under your [ State's] license will be subject to regulatory control by the Nuclear Regulatory Commission. In the meantime, your [ Statal licenses, as currently issued, will remain in effect under NRC's authority lunless specific issues are addressed]. All communications concerning your use of

[ appropriate materials) should be addressed to:

Regional Office Address Phone number A copy of the Order is available from the Regional Office. When [Statel has addressed the i deficiencies identified and the suspension is no longer required to protect the public health '

and safety, the [ State's] regulatory authority will be returned. You will be notified of any j changes in the regulatory authority.

4 Director Office of State Programs cc: [Statel D-1 12/19/96

l 1

Appendix E Suspension Procedure DRAFT SAMPLE: Letter to All States Regarding Suspension and Reassertion ,

l ALL AGREEMENT AND NON-AGREEMENT STATES TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-96-XXX)  !

Your attention is invited to the enclosed correspondence which contains:

INCIDENT AND EVENT INFORMATION.......

)l PROGRAM MANAGEMENT INFORMATION.......XX NRC ORDER TO SUSPEND

THE [ STATE'S NAME)

REGULATORY AUTHORITY TRAINING COURSE INFORMATION..........

TECHNICAL INFORMATION................

OTHER INFORMATION....................

Supplernant6ry Information: Enclosed, for your information, is the Order issued by the Nuclear Regulatory Commission suspending IState's] regulatory authority over [ identify part of agreement affected and material affected) and reasserting NRC's authority in (State).

The action, which is effective on [Datel, is being taken in order to ensure that public health and safety will be protected. Deficiencies exist in (State] due to (facts requiring implementation of Section 274)(1)).

Licensees in [ State) are being advised of the NRC's action. In the meantime, the affected

[Statel licenses, as currently issued, will remain in effect under NRC's authority.

If you have any questions regarding this correspondence, please contact me or the j individual named below. '

i POINT OF CONTACT: Staff Contact l TELEPHONE:

FAX:

INTERNET: l l

Director Office of State Programs i

Enclosure:

As stated E-1 12/19/96

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

Office of State Programs Standard Approval '

The attached internal Procedure D.23 " Procedure for Placing an Agreement State on Probation" is approved.

(~t{ : , f' '. p -

c. a ,/,;: 7 Kathleen N. Schneider Date l

l c '* 7 . . -

.' <: /. . D /, u ,/;~7!il l Paul H. Lohaus, Deputy Director ' Date Office of State Programs il Gt k atcdt Richard L. Bangart, 'Directdr iJfCSf91 \

Date ' l Office of State Programg' I 1 12/19/96

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

l  !

1 OFFICE OF STATE PROGRAMS INTERNAL PROCEDURE 1 DIVISION 1 j .  :

Post Agreement D.23 Procedure for Placing an Activities Agreement State on

! Probation

1. INTRODUCTION This procedure provides the guidelines to be followed when consideration is given to placing an Agreement State program on probationary status.

I j This procedure also directs the steps to be taken when an Agreement State program is placed on probationary status.

I i 11. BACKGROUND i

Under Section 274 of the Atomic Energy Act, as amended, the Commission retains

authority and the responsibility for ensuring that Agreement State programs J

continue to provide adequate protection of the public health and safety and are compatible with NRC's program. The Commission policy statement, " Statement of i Principles and Policy for the Agreement State Program," established the option of

placing an Agreement State program on probationary status for serious program

! deficiencies that require heightened oversight (See Sections F through H of policy).

Ill. MINIMUM CRITERIA FOR CONSIDERING PROBATION 3

Probation will be considered when any of the following circumstances occur:

A. When deficiencies in one or more of the common and non-common performance indicators of the Integrated Materials Performance Evaluation i Program (IMPEP) are of such safety significance that assurance of the program's ability to protect the public health may be degraded, and heightened oversight by the NRC is required. (Example: The Agreement State repeatedly fails to identify design deficiencies in follow-up analysis of events or incidents involving sealed sources and devices.)

B. When programmatic deficiencies have gone uncorrected for a significant period of time and the NRC is not confident of the State's ability to correct such deficiencies in an expeditious and effective man.. J without heightened oversight by the NRC. (Example: Inability to retain skilled staff resulting in increased backlog in inspections and deficiencies in the technical quality of inspection and licensing programs.)

1 12/19/96 I

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} C. When a program has repeatedly bee 11 ate in adopting required compatibility

elements and heightened oversight by NRC would yield improvements.  ;

(Example: Inability / difficulty in adopting regulations which could result in l significant impacts across State boundaries or a!!ows licensees to be subject to less stringent requirements than NRC requirements determined to be

necessary for compatibility.)

IV. MANAGEMENT REVIEW BOARD i

(

i A. The Management Review Board (MRB) is responsible for making the  !

I adequacy assessment, and the compatibility determination, of each I Agreement State program based on the IMPEP reviews of the program, using l

. both common and non-common performance indicators. The MRB may also {

convene to evaluate special reviews of an Agreement State program  !

conducted to assess a specific Agreement State program weakness. MRB meetings to discuss specific program review findings normally will be open 4 and representative (s) from the State under review will be invited to i participate.

The MRB consists of senior NRC managers, or their doignees, to include: I i

Deputy Executive Director for Regulatory Programs l l Director, Office of Nuclear Material Safety and Safeguarda (NMSS)

Director, Office of State Programs (OSP)

Director, Office for Analysis and Evaluation of Operational Data (AEOD) i General Counsel j

Agreement State Liaison to the MRB i

! B. The MRB will consider the results of the Agreement State ri view and any ,

j other appropriate information in making a determination of a Jequacy and  !

compatibility of an Agreement State program. If the MRB it mtifies serious j concerns regarding the adequacy and/or cc.npatibility of the State's I l program, but does not find the deficiencies so serious as to find the program

! inadequate to protect public health and safety, one of the options it has I available to ensure continued protection of the public's health and safety is

to recommend placement of the Agreement State on probationary status. If

! the MRB finds an Agreement State program inadequate, no option other than to suspend or terminate the Agreement is available, since NRC can relinquish its regulatory authority only to a State that has a radiation control program that is adequate to protect public health and safety.

J C. If the MRB determines probationary status is warranted, a meeting to i discuss NRC concerns will be conducted by the Chair of the MRB: the Director, OSP; the Administrator of the NRC Region in which the Agreement State is located; and the General Counsel (or their designees) with the

~

responsible cabinet-level official of the pertinent State. Subsequent to this meeting, if it is the final recommendation of the MRB that NRC place the Agreement State program in probationary .tatus, OSP will be assigned the 2 12/19/96 i

lead for preparation of a Commission Paper. The Commission Paper will contain the information supporting the MRB recommendation. The Commission Paper will be coordinated with Offices represented on the MRB and the Region in which the Agreement State is located.

D. If the Commission approves, the Agreement State program will be placed on probationary status.

V. NRC ACTIVITIES UPON COMMISSION APPROVAL OF ACTION

, l A. A letter to the Governor notifying him or her of the Agreement State program probationary status will be sent (Appendix A). A copy of the letter will be placed in the Public Document Room. OSP will draft the letter for the Chairman's signature and include it as an attachment to the Commission j Paper recommending probation. The Chairman will usually discuss the letter with the Governor by telephone before it is mailed.

B. OSP will prepare and dispatch a letter to the Agreement State program director requesting that the Agreement State develop a " Corrective Action Management Plan" and submit it to the OSP within 30 days of receipt of the letter. The plan should describe actions to be taken by the State to address deficiencies, including specific goals and milestones.

C. Notice of the probationary status of the Agreement State program will be published in the Federal Reaister (Appendix B).

D. OSP will prepare and dispatch a letter to all Agreement and Non-Agreement States notifying them of the action.

E. A press release will be prepared and issued by the Office of Public Affairs.

F. OSP will coordinate with the Office of Congressional Affairs in order to notify the appropriate Congressional committees and members of the State's Congressional delegation.

VI. AGREEMENT STATE AND NRC ACTIVITIES DURING PROBATIONARY PERIOD l

A. The Agreement State's " Corrective Action Management Plan" will be reviewed by OSP, NMSS, OGC, and the Region. The NRC and the State may meet to discuss the plan, comment, and subsequently agree with the milestones, and determine the projected duration of the probationary period.

Normally, the probationary period would be one year or less, but could be extended based on extenuating circumstances. (Example: Training new staff and/or eliminating significant inspection backlog may require more than one year.)

3 12/19/96

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1 l B. The OSP, in coordination with NMSS, OGC, and the Region, will develop a

" Heightened Oversight Plan" that willinclude review or meeting frequency to assess the Agreement State's progress, expected NRC resource i expenditure, and corrective action close-out list. NRC will consider providing technical assistance to the Agreement State, as appropriate in accordance I

with Management Directive 5.7, " Technical Assistance to Agreement ,

. States." l j C. Once allitems in the " Corrective Action Management Plan" have been

, executed and deemed closed by the OSP after a review of the Agreement 4 State's actions, the MRB will convene to review improvements and consider  !

j lifting the probation. )

i D. In the event the Agreement State does not complete the actions identified in

! the " Corrective Action Management Plan" and extenuating circumstances do j not exist, the MRB will consider whether the Agreement should be suspended or terminated (See Suspension Procedure, D.22 and Termination j Procedures D.21).

s Vll. CESSATION OF PROBATIONARY STATUS A. Once the MRB determines that the State has met the commitments in the

" Corrective Action Management Plan" and the MRB is satisfied with the performance of the State's program, the MRB will recommend to the Commission that the probationary status cease.

B. OSP will be assigned the lead for preparation of a Commission Paper. The Commission Paper will contain the information supporting the MRB decision.

The Commission Paper will be coordinated with the Offices represented on the MRB and the Region in which the Agreement State is located.

C. If the Commission approves cessation of the probationary status, notification of such cessation will be made following the same process outlined in Section V (A C,D,E,F), above.

Attachments:

Appendix A,B I

)

4 12/19/96

4.J.,-,J J2 -a,*.4,. d-- A di m_.X.a4 .a_,4+ .*m J_.e 4 Au.has. ,h a 5 -C4 L44 4 h 6 -aem-* A.#.aL.4.4a +.4--..a J.-..AA. pes. M Au d_4.4.5A-h.WA

. ..-4 M-4 _4.J-4. A 4ig, 4

I i

s J

Appendix A  !

} Probation Procedure i i i f

DRAFT SAMPLE: Letter to the Governor of IState] Probation i

Dear Governor (Namel:

As you are aware, under Section 2h of the Atomic Energy Act of 1954, as amended, the Nuclear Regulatory Commission (NRC) retains the authority and responsibility for ensuring

that Agreement State programs continue to provide adequate protection of the public health and safety, and that they are compatible with NRC's program for regulating

{ radioactive materials. The Commission may place a State's program on probation if the

Commission is not confident that the State can address program deficiencies in an expeditious and effective manner without heightened oversight by the NRC.

l The last review of the (State) radiation control program found significant program f I

deficiencies, correction of which is necessary to assure adequate protection of the public

! health and safety in (State). The Commission has further determined that while making

! the necessary corrections, the (State] program would benefit from increased NRC

, oversight. The Commission is, therefore, placing the [ State] radiation control program on i- probationary status. Staff from the [ State] radiation control program have been involved in the discussions leading to this decision.

3 The [ Statal radiation control program staff will be requested to provide NRC staff a

" Corrective Action Management Plan" describing actions to be taken to address the l d

identified deficiencies, including specific goals and timetables. The NRC staff will work j with your staff throughout the probationary status period. Normally, the probationary i

period would be less than one year, but could be extended based on extenuating

! circumstances. Once the Commission determines that the commitments in the " Corrective Action Management Plan" have been met, and that the radiation control program can be found to be adequata and compatible, the probationary status will be terminated.

Let me assure you that the Commission has not taken this action lightly. I will be happy 1

to answer any questions you may have, or your staff may contact (Name], Director, Office of State Programs, at [ telephone number). -

l Sincerely,

! Chairman l 4 l

! i i  :

i i j

i l 1

i A-1 12/19/96 4

i i

r i

i j 0 i

l Appendix B Probation Procedure 1

DRAFT SAMPLE: Federal Register Notice l Placement of State Radiation Control Program on Probationary Status t AGENCY: U.S. Nuclear Regulatory Commission (NRC) j ACTION: Notice of State Radiation Control Program Being Placed on Probationary j Status i

l

SUMMARY

The NRC is announcing the placement of [ Statal radiation control program for regulation of certain Atomic Energy Act materials on probationary status

and initiating heightened oversight of the program, as well as overseeing

implementation of the " Corrective Action Management Plan" developed by j the staff of the IStatel program. Once the radiation control program has met 1

the commitments made in the " Corrective Action Management Plan," and can be found by the NRC to be adequate to protect the public health and i safety, and compatible with NRC's program, the probationary status will be

terminated. There will be further announcements of that action.

)

i FOR FURTHER INFORMATION CONTACT:

[OSP Contact], Office of State Programs, U.S. Nuclear Regulatory i Commission, Washington, DC 20555, telephone Italephone number].

j SUPPLEMENTARY INFORMATION:

l Under Section 274 of the Atomic Energy Act, as amended, the Commission l retains the authority and the responsibility to assure that Agreement State j programs continue to provide adequate protection of the public health and i safety, and to be compatible with NRC's program with respect to the j regulation of the materials and uses authorized under the Agreement.

( Agreement States are States which have assumed regulatory authority from

the NRC over the possession and use of certain radioactive materials. The l Commission policy statement, " Statement of Principles and Policy for the

! Agreement State Program," established the option of placing an Agreement State radiation control program on probationary status for serious program deficiencies that require heightened NRC oversight.

The Commission, through its Management Review Board (MRB), has considered the State of IState's Namel radiation control program and has agreed with the findings of the MRB, as well as with its recommendation to j place the program on probationary status. [ Narrative of the MRB findings).

1 1

i B-1 12/19/96 i

i i

4 m

1 0

h l 4

The State has been requested to develop a " Corrective Action Management  ;

4 Plan" and to submit it to the NRC within 30 days. The plan should describe action taken by the State to address deficiencies, including specific goals and milestones. The Commission expects that the probationary period will be one year or less.

Once the MRB determines that the State has met the commitments in the

" Corrective Action Management Plan" and can be found adequate to protect the public heslth and safety and compatible with NRC's program, a recommendation will be made to the Commission that the probationary status be terminated. Upon Commission approval, the probationary status i

will be lifted. Notification of such cessation will be made to the State's l Governor, the State's Congressional delegation, and all other Agreement and l Non-Agreement States. There also will be a EndaIAl Register Notice and a

press statement.

1 1

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)

t A

B2 12/19/96 i

I 9

FEB 11 gg7 MEMORANDUM TO: Those on the Attached List FROM: Paul H. Lohaus, Deputy Director @ PAUL H. LOHAUSlSigned B -

Office of State Programs )

SUBJECT:

PROCEDURES FOR EMERGENCY SUSPENSION, TERMINATION AND SUSPENSION OF A SECTION 274b AGREEMENT AND PROCEDURE FOR PLACING AN AGREEMENT STATE ON PROBATION The subject procedures (0.13, D.21, D.22 and D.23, respectively) and the revised table of contents for the procedures are attached for your use and provide guidelines that will govern NRC decisions to exercise authority contained in Section 274) of the Atomic Energy Act.

If you have any questions concerning these procedures, please contact me at (301) 415-2326.

Attachments:

As stated cc. l CDolinka, EDO/AO j Distnbution:

DlR RF (6S-300) ,

DCD (SP01) i l

PDR (YES_X_ NO__)

RLBangart PLohaus Policy & Guidance File Agreement State File DOCUMENT NAME: G:\PROCMEMO. ROV 'See previous concurrence.

To receive a copy uf this document, indcate in the box: "C" = Copy without attachment / enclosure "E" = Copy with attachment / enclosure "N" = No copy 0FFICE OSP l OSP l OSP:DD l OSP:D l l NAME ROVirgilio:ndb KNSchneider PHLohaus RLBangart DATE 01/08/97* 01/14/97* 01/17/97* 02/07/97*

OSP FILE CODE: SP-P-2, SP A-4 E5 33 diap- 8/g MC RLE CEstfB COPY

er j

i 0

4 MEMORANDUM TO: Those on the Attached List l FROM: Paul H. Lohaus, Deputy Direct Office of State Programs i

SUBJECT:

PROCEDURES FOR EMER ENCY SUSPENSION, TERMINATION AND SU PENSION OF A SECTION 274b AGREEMENT AND PR CEDURE FOR PLACING AN i AGREEMENT STATE N PROBATION

The subject procedures (D.13, D.21, D.22 d D.23, respectively) and the revised table of contents for the procedures are attached fpr your use and provide guidelines that will

, govern NRC decisions to exercise authoritv contained in Section 274] of the Atomic Energy Act. /

if you have any questions the*,e concerning/

procedures, please contact me at 301/415-2326.

Attachments: e i As stated l Distribution:

DIR RF /

f' EDO RF pCD (SP01)

HLThompson / PDR (YES X NC' )

RLBangart /

PLohaus /

CDolinka /

Policy & Guidar3ce File Agreement State File

/

DOCUMENT NAME:  :\PROCMEMO. ROV 'See previous concurrence.

Ts receive a copy o his document, indicate in the box: "C" = Copy without attachment / enclosure "E" = Copy with aptachment/ enclosure "N" = No copy ,

OFFICE ASP l OSP OSP:DD OSP:D f /p NAME ROV /rgilio:ndb KNSchneider PHLohaus / Ady RLBangartl '"

DATE /.01/08/97* 01/14/97* 01/f q/97 f 4 02t1/96 OSP FILE CODE: SP-P-2, SP-A-4

MEMORANDUM FOR: Thrse a Attached List FROM: Paul H. L us, Deputy Director Office of Slgte Programs

SUBJECT:

PROCEDUREh FOR EMERGENCY SUSPENSION, TERMINATION AND SUSPENSION OF A SECTION 274b AGREEMENT 4,ND PROCEDURE FOR PLACING AN AGREEMENT STATE ON PROBATION

\

The subject procedures (D.13, D.21, D.22 and D.23, respectively) and the revised table of contents for the procedures are attached for yhr use and provide guidelines that will govern NRC decisions to exercise authority contained in Section 274j of the Atomic Energy Act.

If you have any questions concerning these procedures, please contact me at 301/415-2326. \

I Attachments:

As stated

\

Distribution:

DlR RF EDO RF JMTaylor DCD (SP01)

HLThompson PDR (YES X NO )

RLBangart PLohaus SDroggitis s KSchneider '

RVirgilio  :

CDolinka Policy & Guidance File Agreement State File

\

DOCUMENT NAME: G:\PROCMEMO. ROV To receive a copy of this document, indcate in the box: "C" = Copy with attachment / enclosure

'E' = Copy with attachment / enclosure "N" = No copy ,

l OFFICE OSP [ OSPg6 l OSP:DD l C$P:D l l 1

NAME ROVirgilio:ndb KNSchneider PHLohaus RLBangart DATE 01/f /97 01/gq/97 01/ /97 124 /96 OSP FILE CODE: SP-A-4; SP-P-01

~

1

- . =- -.

- Addressees - Memorandum dated February 11. 1997

SUBJECT:

OFFICE OF STATE PROGRAMS' PROCEDURES Craig Z. Gordon, Regional State Agreements Officer, R1 '

Richard L. Woodruff, Regional State Agreements Officer, Rif James L. Lynch, Regional State Agreements Officer, Rill Charles A. Hackney, Regional State Liaison Officer, R!V Jack W. Horner, Regional State Agreements Officer, RIV/WCFO Charles W. Hehl, Director, DNMS/RI Bruce A. Mallett, Director, DNMS/Ril Cynthia D. Pederson, Director, DNMS/ Rill Ross A. Scarano, Director, DNMS/RIV Francis X. Cameron, OGC Donald A. Cool, Director, IMNS/NMSS John T. Greeves, Director, DWM/NMSS 1 Charles E. Rossi, Director, SPD/AEOD Newton Stablein, EDO Office of State Programs Staff i

i

g i g

f **a:g*t UNITED STATES g

j p

NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 300s&0001 February 11, 1977 MEMORANDUM TO: Those on the Attached List j FROM: Paul H. Lohaus, Deputy Directoi Office of State Programs (

)

l B '

i

SUBJECT:

PROCEDURES FOR EMERGENCY SUSPENSION, TERMINATION AND SUSPENSION OF A SECTION 274b AGREEMENT AND PROCEDURE FOR PLACING AN AGREEMENT STATE ON PROBATION The subject procedures (D.13, D.21, D.22 and D.23, respectively) and the revised table of contents for the procedures are attached for your use and provide guidelines that will govern NRC decisions to exercise authority contained in Section 274) of the Atomic Energy Act.

If you have any questions concerning these procedures, please contact me at (301) 415-2326.

Attachments:

As stated cc:

CDolinka, EDO/AO l

l l

l

o

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Table of Contents Distribution List 1/14/97 PROCEDURES l

Number Ifilg Qgig A.1 Format For Procedures 6/21/82 A.2 Development of Changes to Suggested 11/16/83 State Regulations A.3 Cancelled 6/21/82 i

A.4 Cancelled 6/17/82 A.5 Procurement of Invitational Travel 6/03/77 l Authorizations and Process of .

Travel Vouchers A.6 Reporting of Congressional Inquiries 12/ /80 l A.7 Procedures for Transmitting Documents 8/26/83 to the PDR '

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A.9 Distribution of All Agreement State 6/17/82 j Letters 1 A.10 Program Description Documentation 1/14/97 l

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! B.1 General Policy Statements for State 12/6/84 Agreements Program B.2 Policy for Regionalization 11/5/82 B.3 Policy for Correspondence with States 6/21/82 Related to Review Meetings B.4 Policy for Routine Agreement State 6/21/82 Correspondence B.5 Policy for Training and Qualifications 6/21/82 of Staff Responsible for Reviewing Agreement State Programs B.6 Policy for Meetings and Testimony on 6/21/82 State Agreements Program B.7 Criteria for Compatibility 1/25/84 Determinations l

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E Rw!htt Tit 1e Dit.g D.1 Procedures for Review, Retention, 11/18/82 and/or Distribution of Agreement State Licenses D.2 Scheduling, Conducting and Reporting 12/27/84 On-Site Reviews of Agreement i State Regulatory Programs 1

D.2-1 Procedure for Review of the Status of 1/25/82 I Uranium Mills and Hill Tailings Piles D.2-2 Procedure for Site Visit, Review of 8/26/75 and Reporting on Agreement State ,

Commercial Radioactive Waste Burial l l

Grounds D.2-3 Agreement State Program Review Report 7/5/95 Procedure and Handbook l D.3 Procedures for Selection, Review and 2/3/83 Reporting - Agreement State License l Files '

D.4 Procedures for Selection, Review and 2/17/83 Reporting - Agreement State Compliance Files D.5 Preparation of Semi-Annual Statistics 1/7/85 i D.6 Procedure for Annual Meeting of All 12/22/82 Agreement States D.7 Procedures for Reviewing State 8/30/85 Regulations D.8 Procedure for Determination 9/2/83 of Jurisdiction D.9 Notice of Non-Routine Event Involving 12/11/84 Agreement States or Agreement Materials D.10 Cancelled 1/27/83 D.ll Technical Assistance From NRC Offices 11/10/82 for Agreement' State Review Meetings Re ision 4 1/34/97

E Number litle D.itta l D.12 Special Technical Assistance to 6/24/83 Agreement States l D.13 Procedure for Emergency Suspension 12/19/96 of a Section 274b Agreement D.14 Procedure for Team Reviews of Selected 2/16/82 Agreement State Regulatory Programs D.15 Criteria for Recommending Individual 4/21/83 Training for State Personnel (formerly E.2)

D.16 Consultation with U.S. Department of 1/27/83 Labor - OSHA D.17 Collection of Data on Agreement State 12/27/84 Incidents Involving Radioactive Materials D.18 Procedure for Review and Distribution 1/31/85 of Agreement State Abnormal Occurrence l Reports i D.19 Procedure for Handling SS&D Data 1/30/86 D.20 Procedure for Management of Allegation pending D.21 Procedure for Termination of a 12/19/96 ,

Section 274b Agreement l D.22 Procedure for Suspension of a 12/19/96 Section 274b Agreement D.23 Procedure for Placing an Agreement 12/19/96 State on Probation l

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E.1 Planning, Development, Implementation 7/8/85 and Evaluation of Training Programs E.2 Cancelled (Revised as D.15) 6/17/82 E.3 Cancelled 2/16/78 E.4 Training and Qualification Criteria 6/21/82 Agreement State Reviewers E.5 Appraisal of Regional State Agreements 1/24/86 l Functions 1

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Office of State Programs Standard Approval The attached Revision 1 to intomal Procedure D.13 ' Procedure for Ernergency Suspension of a Section 274b Agreement" is approved.

kn i. n N N N 2 Lk kL_ )ff]ffj Kathleen N. Schneider Data f r- 1'i s ,m /J $ / ,2 .

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q , /j7 /97 Paul H. Lohaus, Deputy Director Date Office of State Programs il P ftun s BWCSkf

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Michar'd L. Bangait, Direc f Date Office of State Programs 1 Revision 1 12/19/96

OFFICE CF STATE PROGRAMS INTERNAL PROCEDURE l DIVISION I Post Agreement D.13 Procedure for Emergency Activities Suspension of a Section 274b Agreement

1. INTRODUCTION This procedure provides the guidelines that will govern NRC decisions to exercise the authority contained in Section 274jt2) of the Atomic Energy Act.

fl. GENERAL Section 274)(2) of the Act provides the Commission with authority to temporarily suspend all or part of its agreement with a State without a hearing when an emergency situation exists requiring immediate action to protect public health and safety and the State has failed to take steps to contain or eliminate the cause of danger within a reasonable time. The Commission will exercise this authority only during the period of the emergency. Unless acting pursuant to the Governor's request, the NRC will notify the Governor of the State prior to issuing the temporary suspension (Appendix A). The authority may be exercised with respect to all or part of the State's agreement.

Ill. EMERGENCY An emergency situation is one creating a danger which requires immediate action to protect the health and safety of persons either within or outside the State.

IV. INITIATION OF EMERGENCY SUSPENSION ACTION A. If the Governor of a State requests that the NRC temporarily suspend part of its agreement, OSP should advise the State to make the request by telephone call to the Executive Director for Operations, in coordination with the Director, Office of State Programs, or in off hours, to the NRC Emergency Operations Center. Such a request should include the specific nature of the emergency and its possible impacts using the guidance in Part V below.

l B. When the NRC determines an event warrants emergency suspension of an l agreement, it will follow the guidelines and criteria stated in Part V below.

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C. Os Governor and the radiation control program director of the affected State will be consulted and kept fully informed of the actions taken by the NHC. For events which may warrant consideration of emergency suspension, but for which there is a reasonable basis for presumption that a State will satisfactorily resolve the emergency situation, the NRC will inform the State of necessary actions that the State should take and that an emergency suspension under Section 274)(2) will not be issued. NRC will provide appropriate technical assistance within the limits of its resources.

D. Emergency suspension orders under Section 274(j)(2) will be issued by the Executive Director for Operations or the Commission (Appendix B). The Commisalon will be kept informed as to the nature of the emergency situation and the actions taken to contain or eliminate the danger (Appendix C).

E. The Office of State Programs should request the Offico of Public Affairs to prepare and issue a press release regarding the emergency suspension (Appendix D).

F. The Office of State Programs will coordinate with the Office of Congressional Affairs in order to notify the appropriate State representatives and Congressional committees (Appendix E).

G. The Office of State Programs should request that the appropriate NRC Regional office notify the affected licensee or groups of licensees in the l

State after obtaining information regarding the affected licensee or groups of licensees from the Agreement State radiation control program (Appendix F).

V. MINIMUM CRITERIA A. The NRC may suspend an agreement pursuant to Section 274)(2) in the case I of an emergency involving byproduct, source, or special nuclear material l when the situation presents a danger to the public health and safety and the  !

Agreement State program is not able, or has not taken effective steps, to eliminate the cause of the danger.

B. In evaluating emergency situations, the NRC will consider whether the Agreement State has failed to take, or is prevented from taking, necessary steps to protect the public health and safety. Factors that are appropriate for consideration include:

1. The timeliness and adequacy of actions being taken by the State in response to the emergency;

2. Whether the State can satisfactorily resolve the emergency situation; and 2 Revision 1 1 12/19/96 l

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3. Whether the State is implementing, or is committed to implement, program improvements to address the cause of the emergency situation.

C. The following types of conditions, if not appropriately addressed by the State to prevent the danger are examples that could result in a consideration of emergency suspension:

1. A condition or conditions that cause or could cause an individual or individuals to receive a dose significantly in excess of those basic dose limits set forth in Subpart C of 10 CFR Part 20;

2. Conditions that caused or could cause an individual to receive a dose significantly in excess of those basic dose limits set forth in Subpart D of 10 CFR Part 20; or

3. Conditions that caused or could cause individuals to receive a dose significantly in excess of those dose limits applicable to a certain class of licenses set forth in other parts of 10 CFR that Agreement States must adopt under the Commission policy for compatibility and adequacy, such as Patt 35 limits for patient release.

VI. WITHDRAWAL OF EMERGENCY SUSPENSION When the emergency situation is contained or eliminated, the Executive Director for Operations will lift the suspension.

The Executive Director for Operations will notify the Governor of the State that the emergency suspension is no longer in effect (Appendix G). The affected licensee or groups of licenses in the State will also be notified that the emergency suspension is no longer in effect. Such a decision will be made when NRC has determined that the danger which made the emergency suspension necessary has been eliminated.

The NRC willinform the State of continuing actions which the State must carry out in order to prevent another emergency.

Vll. IMPACT OF THE EMERGENCY SUSPENSION  :

l The State's inability to address the emergency situation will be considered by the Management Review Board in the evaluation of the Agreement State's continued ability to protect public health and safety. Depending on the nature of the emergency, it may be necessary to place the State on probation, with NRC heightening its oversight of the program.

Attachments:

Appendices A, B, C, D, E, F, G 3 Revision 1 12/1g/g6

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. Appendix A j Emergency Suspension Procedure 1

DRAFT 4 'MPLE: Notification to the Governor of (State) of i Emergency Suspension 4

Dear Governor (Name):

As you are aware, Section 274)(2) of the Atomic Energy Act gives the Commission the l authority to temporarily suspend all or part of its agreement with a State without notice or hearing if an emergency situation exists requiring immediate action to protect public health 1 and safety and the State fails to take steps to contain or eliminate the cause of danger

! within reasonable time. The Commission is invoking this authority since it has found a

sitLation in your State that presents an ichoose the portinent reason or reasons]

l im'nediate, significant, or unacceptable threat to the public health and safety which recessitates immediate suspension of [ ell or part) of the agreement.

[Y5is section should provide a brief description of the situation. Provido pertinent

infornict!'m as to how the situation came to the NRC's attention, the State's action in response, etc. Describe briefly the steps taken by the NRC which led it to suspend all or part of the State's 30reement.) ,

i When the emergency situation is contained or eliminated, the Commission will consider i whether to lift the suspension. Such a decision will be based on the NRC's determination

that the conditions which initiated the emergency suspension no longer exists. The NRC i will notify iname the appropriate State offical of continuing actions which the State must l implement to prevent another emergency.

The Order will be issued immediately. [ Inform the State of the timing for any press i releases or correspondence with Congressional Committees, if appropriate.]

i 1 Sincerely, l

l Chairman A-1 Revision 1 12/19/96

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Appendix B  ;

4 Emergency Suspension Procedure 1 l DRAFT ,

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! Order Temporarily Suspending Agreement = tate Program I

UNITED STATES

NUCLEAR REGULATORY COMMISSION i

[ In the Matter of l IName of Statel (Agreement State Program]

l ORDER TEMPORARlLY SUSPENDING AGREEMENT STATE PROGRAM (EFFECTIVE IMMEDIATELY) i (Set forth the name of the Agreement State program and background information as to 4 when the program was initiated, what type of agreement materials are covered, and the authority of the Commission and the Governor of the particular State to enter into this type of agreement, in addition, the authority of the Commission to temporarily suspend

! the Agreement State program, effective immediately, should be stated. The following is provided as a sample discussion for this section).

3 On [Datel, the State of INamel entered into an agreement (Agreement) with the Nuclear i Regulatory Commission (NRC or Commission) pursuant to Section 274 of the Atomic

! Eriorgy Act of 1954, as amended (Act),42 U.S.C. Section 2021. The Agreement i discontinued the NRC's regulatory authority within the State of [Namel with respect to

[ byproduct material as defined in Section 11e(1) of the Act (radioisotopes) and/or

! byproduct material as defined in Section 11e(2) of the Act (mill tailings or wastes) and/or source material (uranium and thorium) and/or special nuclear material (uranium 233, uranium 235 and plutonium) in quantities not sufficient to form a critical mass and/or permanent disposal of low-level waste containing one or more of the materials stated above but not including mill tailings). The Agreement authorized the State of [Namel to regulate these materials for the protection of public health and safety.

Il (This section should provide a description of relevant events, facts, violations, technical or legal reasons that provide the substantive basis for issuing the Order. The following example is provided as a sample text for this section.)

B-1 Revision 12/19/96

e a The Commission has determined that an emergency situation exists in the State of

-(NAME). INRC discovered this situation as a result of (phone call, allegation letter, etc)) or (Provide reasons for NRC's finding] [ Provide any appropriate additional information regarding the emergency situation.1 The Commission has determined that due to (facts requiring implementation of Section 274)(211, an emergency situation exists which requires immediate action by the Commission to protect the health and safety of [ description of the pub'ic impacted). The Commission has also determined that the State of [Namel has failed to take steps necessary to contain or eliminate the cause of danger within a reasonable time. This latter finding is based on (facts pertaining to State's failure to contain or eliminate the cause of ,

the omorgency situation). The Commission has notified the Governor of IState) of its '

intention to issue this emergency suspension order.

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[This section should provide the justification for issuing the Order, in light of the facts described in Section ll. The following example is provided as a sample text for this section].

Section 274)(2) of the Atomic Energy Act authorizes the Commission, upon its own initiative or upon the request of the Governor of any State, to temporarily suspend all or part of its Agreement with the State without notice or hearing if, in the judgment of the Commission, an emergency situation exists with respect to any material covered by such an Agreement creating danger which requires immediate action to protect the health and safety of persons either within or outside of the State, and the State has failed to take steps necessary to contain or eliminate the cause of the danger within a reasonable time after the situation arose. A temporary suspension of the Agreement under Section 274)(2) of the Atomic Energy Act shall rarisin in effect for such time as the emergency situation exists. During the period of tempoary suspension, the Commission is authorized to exercise its authority only to the extent necessary to contain or eliminate the dmger.

l The NRC must be able to rely on [ State's] Agreement State program to adequately protect public health and safety. The facts and the circumstances enumerated in Section ll of this Order, in the judgment of the Commission, lead to an emergency situation with respect to materials regulated pursuant to the AEA. Immediate action is necessary to protect public health and safety. The State of IState] has fai!sd to take the steps necessary to contain or eliminate the cause of the danger to public health and safety. Therefore, the public health and safety require that the Agreement [or portions identified] [or facility] between the Commission and (Statel be temporarily suspended. Furthermore, pursuant to Section 274)(2) of the Atomic Energy Act , I find that the public health, safety, and interest requires that this Order be immediately affective.

IV Accordingly, pursuant to Sections 161b,161c,1611,1610, and 274 of the Atomic Energy Act of 1954, as amended, IT IS HEREBY ORDERED THAT THE AGREEMENT [or portion of B-2 Revision 12/19/96

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the Agreement) BETWEEN THE COMMISSION AND ISTATE), DATED [date), IS TEMPORARILY SUSPENDED, EFFECTIVE IMMEDIATELY, AS FOLLOWS:

A. [lDENTIFY PART OF AGREEMENT AFFECTED AND MATERIAL AFFECTED];

B. IIDENTIFY WHAT ACTIONS THE STATE MUST DO TO COME INTO COMPLIANCE WITH COMMISSION REQUIREMENTS AND WHEN];

C. [lDENTIFY WHAT MUST HAPPEN TO REINSTATE THE AGREEMENT];

FOR THE NUCLEAR REGULATORY COMMISSION i

Executive Director for Operations l Dated at Rockville, Maryland l this day of ,19[XXI l

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Appendix C Emergency Suspension Procedure

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DRAFT SAMPLE: Memorandum to the Commission Regarding the Emelgency Suspension of All or Part of en Agrooment i MEMORANDUM TO: Chairman Jackson l l Commissioner Rogers l Commissioner Dicus Commissioner Diaz Commissioner McGaffigen FROM:

Executive Director for Operations

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SUBJECT:

ISSUANCE OF AN ORDER TO TEMPORARILY SUSPEND THE j l [ STATE'S NAME] AGREEMENT 1 i i

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l The attached Order was issued to IState) on IDatel, temporarily suspending (State's I l Namel effective immediately over lidentify part of agreement affected and material j affected). l l

l The staff has determined that an emergency situation exists in the Stats of (NAME). [The .

staff discovered this situation as a result of (phone call, allegation letter, etc)) or (Provida l reasons for the staff's finding) (Provide any appropriate additional information regarding  !

the emergency situation.]

l The staff has determined that due to (facts requiring implementation of Section 274)(2)], .

an emergency situat:cr. axists which requires immediate action by the Commission to l l

protect the health and safety of Idescription of the public impacted). The staff has also i l determined that (State's Namel has failed to take steps necessary to contain or eliminate j the cause of the emergency situation within a reasonable time. This latter finding is based l on (facts pertaining to State's failure to contain or eliminate the cause of the emergency i situation).

The staff has notified the Governor of the this action. In addition, the staff's efforts have been coordinated with Governor INamel and his/her staff. A press release will be issued.

Letters to the appropriate Congressional committees will be sent. A letter notifying the affected State licensees will be sent by the Regional Office.

Attachment:

As stated l

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Appendix D Emergency Suspension Procedure i

DRAFT SAMPLE: Public Announcement NRC ISSUES ORDER TO TEMPORARILY SUSPEND THE ISTATE'S NAME) REGULATORY AUTHORITY The Nuclear Regulatory Commission is temporarily suspending the (State's Namel regulatory authority over [ identify part of agrooment affected and material affected).

The action, which is effective on IDatel, is being taken in order to ensure that t public health and safety will be protected. An emergency situation exists in (State's Namel due to (facts requiring implementation of Section 274)(2)).

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, Under Section 274 of the Atomic Energy Act of 1954, as amended, individual l l States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source, and special nuclear materials, in order to effect and maintain such a transfer of authority, the State must demonstrate that its program is adequate to protect the public health and safety and is also compatible with the Commission's program for regulating those materials.

l The Atomic Energy Act also authorizes NRC to temporarily suspend all or part of its l l agreement with the State without notice or hearing if an emergency situation exists with respect to any material covered by such an agreement creating danger which requires immediate action to protect the health and safety of persons. In order to take such action, the Commission must also determine that the State has failed to take steps necessary to l contain or eliminate the cause of the danger within a reasonable time after the situation arose. A temporary suspension of the agreement shall remain in effect for such time as the emergency situation exists. During the period of temporary suspension, the Commission is authorized to exercise its authority only to the extent necessary to contain j or eliminate the danger.  ;

I Licensees in (State's Namel are being advised of the NRC's action in Order (Datel. '

in the mear' time, the affected (State's Namel licenras, as currently issued, will remain in effect under NRC's authority.

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Appendix E Emergency Suspension Procedure DRAFT SAMPLE: Congressional Letter (Appropriate Congressional Oversight Committees)

Dear Mr. Chairman:

The Nuclear Regulatory Commission has issued the enclosed Order, effective immediately, dated (Datel, to temporarily suspend (State) regulatory authority over lidentify part of agreement afft,cted and material affected). The action is being taken in order to ensure that public hetith and safety will be protected. The Commission is taking this action pursuant to its authority under Section 274) of the Atomic Energy Act. An emergency situation exists in (Statel due to (facts requiring implementation of Section 274)(2)].

Licensees in [Statel are being advised of the NRC's action in an Order [date). The affected IState) licenses, as currently issued, will remain in effect under NRC's authority. We are also issuing a public announcement.

The temporary suspension of [ State's) agreement will be lifted when [ identify what will be necessary to contain or eliminate the danger).

Sincerely, Director Office of Congressional Affairs

Enclosure:

As stated E-1 Revision 1 12/19/96

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l Appendix F Emergency Suspension Procedure DRAFT SAMPLE: Letter to Affected Agreement State Licensees Regarding the Emergency Suspension i

TO [ STATE] Licensees:

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! The Nuclear Regulatory Commission has issued an Order, effective immediately, dated I (Datel, to temporarily suspend [ State's] regulatory authority over [ identify part of l agreement affected and material affected). The action is being taken in order to ensure l

that public health and safety will be protected. An emergency situation exists in (Statel due to (facts requiring implementation of Section 274j(2)].  !

Your [affected State] licenses, as currently issued, will remain in effect under NRC's authority lexcept for modifications necessary to contain or eliminate the danger.) The l temporary suspension of IState's] agreement will be lifted when [ identify what will be necessary to contain or eliminate the danger).

l Any questions or concerns regarding the NRC emergency suspension should be addressed to [ Appropriate Regional Contact).

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l Appropriate Regional Administrator l

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Appendix G Emergency Suspension Procedure DRAFT SAMPLE: Notification of Lifting Suspension

Dear Governor (Namel:

As you are aware, under Section 274 of the Atomic Energy Act of 1954, as amended, the Nuclear Regulatory Commission is authorized to temporarily suspend all or part of its agreement with the State without notice or hearing if an emergency situation exists with respect to any material covered by such an agreement creates danger which requires l immediate action to protect the health and safety of persons and the State has failed to l take steps necessary to contain or eliminate the cause of the danger within a reasonable time after the situation arose. A temporary suspension of the agreement shall remain in effect for such time as the emergency situation exists. During the period of temporary suspension, the Commission is authorized to exercise its authority only to the extent necessary to contain or eliminate the danger.

The Nuclear Regulatory Commission issued an immediately effective Order dated IDatel, to temporarily suspend IState] regulatory authority over [ identify part of agreement affected and material affected). The action was taken in order to ensure that public health and safety would be protected. An emergency situation existed in [ Statal due to [ facts requiring implementation of Section 274)(2)].

The Commission has determined that the emergency situation which necessitated NRC's l action no longer exists. Therefore, the agreement between the Commission and [ State]

l has been reinstated. The State must continue to [ describe the continuing actions which the State must carry out in order to prevent another emergency),

if you have any questions, please contact me, or your staff may contact (Namel, Director, Office of State Programs, at [ telephone number).

Sincerely, Executive Director for Operations

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I Office of State Programs Standard Approval The attached internal Procedure D.21 " Procedure for Termination of a Section 274b Agreement" is approved.

}s'ils.rq d 'i /. it h: O %

1 f '1 l h 'l Kathleen N. Schneider Date

f. .. ?tL*. : ~ u 'O '_['<u z:,. w Paul H. Lohaus, Deputy Director i Date lllJlr]  !

Office of State Programs l a St A r rm (NoflW Richard L. Bangart, Directo Date / ,

Office of State Programs /

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l OFFICE OF STATE PROGRAMS INTERNAL PROCEDURE I DIVISION 1 Post Agreement D.21 Procedure for  !

Activities Termination of a ,

Section 274b Agreement

1. INTRODUCTION l

This procedure provides the guidelines that will be followed by NRC when  :

considering whether or not to terminate an agreement pursuant to the authority contained in Section 274)(1) of the Atomic Energy Act.

This procedure will describe the method for processing the termination, whether j initiated at the request of the State or at the initiative of the NRC.

II. TERMINATION A. Backaround Section 274) of the Atomic Energy Act gives the Commission authority to terminate its agrearmm with a State if'such termination is required to protect the public health er a safety, or if the State has not complied with one or more of the l requirements of Section 274 of the Act (e.g., is found to be not compatible with l the Commission's program). When the Commission finds that program deficiencies are such that the State can no longer protect the public health and safety or continuing incompatibility results in si;pnificant national disruption, the Commission l will institute proceedings to terminate the agreement with the State. The -

Commission can institute procedures to terminate an agreement even though the State has not been on probation. Procedures to address emergency situations to temporarily suspend all or part of an agreement with a State can be found in Procedure D.13. .

In cases where a State has f ailed to respond in an acceptable manner during a probationary or suspension period, and there is no prospect for improvement, the Commission may also institute formal proceedings to terminate the agreement.

Before reaching a final decision on termination, the Commission will notify the State and provide the State the opportunity for a hearing on the proposed termination as discussed in Part V. Notice of the proposed termination will also be published in the Fadatal Register.

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B. Mnimum Criteria for Termination j

1. At the request of the Governor, NRC may terminate all or part of its agreement with a State and reassert its authority. The letter should be addressed to the Chairman, NRC, from the Governor.

2. The Commission will institute formal procedures to terminate an agreement under the following circumstances:

! a. The State radiation control program is found to be inadequate to protect public health and safety, and no compensating program has been implemented; ,

b. The State has been on probation for a period of time during which it failed to respond to NRC concerns regarding the State's ability to carry out a program to protect public health and safety; or

c. The State radiation control program is not compatible with the NRC program and the State has refused, or is unable, to address those areas previously identified as compatibility concerns and the non-compatibility is significantly disruptive to the national program among NRC and Agreement States for the regulation of Atomic l Energy Act material.

3. The following are examples of situations where NRC would consider initiating formal procedures to terminate an agreement. This list is not inclusive and other situations may require consideration by the Commission l at the recommendation of the Management Review Board (MRB) and the Office of the Executive Director (EDO).

a. Significant loss of staff, which includes number of staff or those with critical skills, coupled with a State's inability to hire appropriate replacements.

b. Continual problems which manifest in the State's inability to perform adequate inspections or issue appropriate licenses.

c. State's inability to adopt compatible program elements over a significant period c,f time.

d. Continued probationary or suspension status for a State program.

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i 111. MANAGEMENT REVIEW BOARD ROLE 4 A. The Management Review Board (MRB) is responsible for making the adequacy assessment of each Agreement State's program based on the

reviews of the program, using both common performance indicators and i_ non-common performance indicators, and the compatibility determination.

l The MRB consists of senior NRC managers, or their designees, to include:

Deputy Executive Director for Regulatory Programs 1 Director, Office of Nuclear Material Safety and Safeguards

Director, Office of State Programs i Director, Office for Analysis and Evaluation

'of Operational Data j General Counsel Agreement State Liaison to the MRB i

j B. The MRB will consid6r the results of the Agreernent State review and any 4

other appropriate information in making a determination of adequacy and compatibility with respect to en Agreement State. MRB meetings to discuss specific program review findings normally will be open and Agreernant States' representatives will be invited to attend. MRB's internal deliberation regarding the overall Agreement State program rating may be closed, given the predecisional nature of those discussions.

C. If it is the recommendation of the MRB and EDO that NRC initiate the proceedings to terminate an agreement, the Office of State Programs will be assigned the lead for preparation of a Commission paper. The Commission paper will contain the information supporting the termination. The Commission paper will be coordinated with the Office of General Counsel, the Office of Nuclear Material Safety and Safeguards, and the affected Region.

IV. STAFF WORK Before the Commission can terminate a State's program, it must provide reasonable i notice and opportunity for a hearing to the State as required by Section 274)(1).

Section 2'4)(1) does not require such a hearing if termination is requested by the Govemor.

Before the opportunity for a hearing can arise, the Office of State Programs must submit to the Commission a paper containing a recommendation to terminate the State program in question. This Commission paper willinclude the  !

recommendations of the MRB ind any other information pertinent to the staff's j recommendation to terminate the agreement. Before a decision is made on the l MRB's recommendation, the Commission must provide the State with notice and an opportunity to request a hearing on the issue. (See Appendix A for a suggested format for the Commission paper including a sample Federal Renister Notice.)

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If the State does not request a hearing, the Commission will proceed to make a final decision on the issue. Once directed by the Commission, the Office of General Counsel will submit a Commission paper which will include the termination order and the Esdg[al Reaister Notice announcing the Commission decision. The Office of State Programs will provide for inclusion in the Commission paper the letter I

notifyin0 the Governor of the termination. Congressional Committees will be notified and a public announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively. (See Appendix B for samples of all of the above.)

If the State does request a hearing, the Commission will initiate the hearing process described below.

Whether or not a hearing is requested, if the Commission decides not to support the recommendation to terminate the State's program, the Govemor will be notified of this result. Coagressional Committees will be notified and a public announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively.

V. HEARINGS The hearing for the termination ! including the termination of a program that had been previously suspended] of an Agreement State program will be an informal hearing conducted either by the Commission itself, or at the Commission's discretion, by a Special Agreement State Board appointed by the Commission. In cases where the Commission determines that a Special Board will be used, the Board will consist of three members:

(1) the Chair of the Organization of Agreement States (OAS) (unless the Chair is from the State b question, in which case the Agreement State representative will be the past Chair of the OAS);

(2) an official from the Office of General Counsel; and (3) the Deputy Regional Administrator of a NRC Regional Office (outside of the Region in which the State is located).

l The Commission, or the Special Board, as appropriate, will conduct an informal hearing to address the issues in question. At the hearing, the NRC staff, representatives of the Agreement State, and interested third parties will have an

, opportunity to offer their views, answer questions, and submit written materials.

Third parties whose interests may be affected may submit written material and may l

offer their views for a limited period of time. After consideration of the issues, the Commission or the Special Board willissue a decision on termination. A majority of the Commission or the Special Board will be required to support a decision. In cases where a Special Board is used, the Commission will have discretion to review the decision of the Special Board, and either uphold or overturn the Board's decision.

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! VI. COORDINATION l

l A. Agireement State and NRC Activities Durina Termination Proceedings l

During the period of time NRC is pursuing termination of an agreement with a State, State and NRC activities should be coordinated so that there is continued l protection of the public health and safety. The State should be urged to request.

l technical assistance in any area where there is a concern regarding the State's ability to carry out its responsibilities under the agreement. The Office of State Programs will coordinate with the State, Region, and the Office of Nuclear Material 4

Safety and Safeguards as to the necessary technical assistance to continue the protection of public health and safety.

8. Additional Coordination After Terminations

1. NRC will conduct a meeting with the licensees in the State to explain the reassertion of NRC authority and the present fee structure. Lead for the meeting should be the Region in consultation with the Office of Nuclear Material Safety and Safeguards, the Office of General Counsel and the Office of the Controller.

1 l

l ' 2. After the termination of the agreement, the Office of State Programs will l prepara a letter to the U.S Department of Labor advising the Department of I the effective date of the termination of the agreement (Appendix C).

3. The Regional State Agreements Officer (RSAO) should obtain from the State a computer printout of all specific and general licenses under the State's l l agreement. Mailing labels should be obtained, if possible, from the State. A

letter should be prepared notifying each licensee of the termination, l reassertion by NRC, and appropriate information (Appendix D).

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! 4. The Office of State Programs will prepare a letter to All Agreement and <

Non Agreement States notifying them of the effective date of the termination and, if appropriate, enclosing a copy of the Order or Endmal Register Notice (Appendix E).

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5. The Region will coordinate with the State so that all necessary action is taken to have the files for the licenses transferred to the NRC.

Vll. RENEWED INTEREST IN 274b A State that has had an agreement terminated by the NRC, may at a later date express interest in obtaining a new agreement. The State should be treated as other Non-Agreement States interested in agreements, and OSP Procedure C.1 for processing new agreements should be followed for these negotiations.

) Attachments:

Appendices A, B, C, D, E l

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o e Appendix A Termination Procedure DRAFT SAMPLE: Commission Paper for Reassertion of NRC Authority in an Agreement State and Request for Hearings EQB: The Commissioners faQM: Executive Director for Operations

SUBJECT:

STAFF'S RECOMMENDATIONS REGARDING TERMINATION OF [ STATE'S]

AGREEMENT WITH THE COMMISSION AND OPPORTUNITY FOR HEARING PURPOSE: j i

To present the results of the staff review of the [ State] program, the Management Review  !

Board's (MRB) recommendation for termination of tall or part) of the [ State] agreement and I request that a special Agreement State Board be convened to provide [ State) with en opportunity for a hearing if requested.

SUMMARY

A review of IState's) Agreement State program was conducted on [Date). As a result of this review and results of the MRB, the staff finds that IState's] regulatory program [is

inadequate to protect public health and safety and/or has not complied with one or more requirements of Section 274 of the Atomic Energy Act (AEA)]. Accordingly, the staff is j recommending that the Commission initiate hearing procedures for the suspension of l l

IState's] program.

DISCUSSION: l Section 274) of tSe AEA authorizes the Commission to terminate the agreement with any l State, after roast mble notice and an opportunity for hearing to the State, and to reassert ,

the Commissiord licensing and regulatory authority if the Commission termination is i required to adaquetely protect public health and safety or because the State has not complied with one or more requirements of the AEA.

(This section should contain facts concerning the State's program, why termination is appropriats versus suspension. Reviews, Management Review Board Meetings, and discussions and correspondence with the State addressing the deficiencies should be documented.1 ,

[The staff should document any information on whether ttie State will be requesting a l

hearing regarding the termination, if a hearing request is likely, staff should discuss the

options of the informal hearing conducted by the Commission or by the Special Agreement i State Board.]

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COORDINATION: This paper has been coordinated with the Office of the General Counsel, which has no legal objection.

RECOMMENDATION: That the Commission:

1. Notifv IStatel of an opportunity for a hearing on the proposed termination through ISpecial Agreement State Board or Commission itself). If requested, approve such a request.

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Executive Director l

for Operations Attachments:

1. MRB Recommendations or Letter from Governor Requesting Termination

2. Proposed Federal Register Notice Notifying (State] of an Opportunity for a Hearing l

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)

• Attachment 1

)

, DRAFT SAMPLE: Management Review Board Recommendations j MEMORANDUM TO: Executive Director for Operations i

FROM: Deputy Executive Dkector for

Regulatory Programs l Chairman, Management Review Board i

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SUBJECT:

MANAGEMENT REVIEW BOARD RECOMMENDATIONS FOR

l. THE TERMINATION OF THE [ STATE] AGREEMENT PROGRAM 4 .

l On [datel, the Management Review Board (MRB) met to consider the review of the [Statel Agreement State program [ attached are meeting minutes). [Give details on the program i deficiencies, the MRB adequacy and compatibility findings, and the State's response to the i findin0s.]

{ Given the responsibility of the NRC to protect the public health and safety, the MRB l recommends that you direct the staff to prepare a Commission paper to initiate termination j of the agreement between (Statel and NRC, dated (Date).

i

Attachment:

1 As stated 4

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Attachment 2 l DRAFT SAMPLE: Proposed Federal Reaister Notice Regarding Opportunity

for Hearing on Reassertion i

) Opportunity for Hearing on Termination of (State's] Regulatory Authority and the j Reassertion of NRC Authority i

i AGENCY: U.S. Nuclear Regulatory Commission (NRC) l ACTION: Notice of Opportunity for Hearing on Termination of the [ State] Regulatory Authority and the Reassertion of the NRC Authority

SUMMARY

The NRC staff has proposed that the Commission terminate (State's]

regulatory authority over [ identify part of agreement affected and material i affected) and reassert NRC's authority in [ State). The staff believes that j such action is necessary in order to ensure that public health and safety will

)

be protected. Accordingly, the Commission is providing the State with this notice of opportunity for a hearing on the proposed termination of the  :

(State's] regulatory authority.

FOR FURTHER INFORMATION CONTACT:

IOSP CONTACT), Office of State Programs, U.S. Nuclear Regulatory l Commission, Washington, DC 20555, telephone Italephone number).

SUPPLEMENTARY INFORMATION:

Under Section 274 of the Atomic Energy Act, as amended in 1959, individual States can assume part of the NRC's regulatory authority over the )

possession and use of byproduct, source, and special nuclear materials. In l order to effect and maintain such a transfer of authority, the State must i demonstrate that its program is adequate to protect the public hWth and l safety and is also compatible with the Commission's program for w :lating those materials.

[ Narrative on whether the State has requested termination).

Staff review and recommendations regarding the adequacy and compatibility of Agreement State Programs are made through the Management Review Board (MRB) which consists of senior NRC managers and an Agreement State representative. The MRB makes its decisions regarding the adequacy of each Agreement State's program based on the staff's reviews of the program. In reviewing (State's] program, the MRB has recommended that the Commission terminate the State's agreement with NRC (Narrative of MRB findings and any hearings.)

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Pursatu (o Um provisions of Section 274J of the Atomic Energy Act of  !

! 1954, es amended, the staff has proposed that the Commission terminate  !

the (Statel agreement over lidentify part of agreement affected and material '

i affected) and reassert NRC's authority in [ State) in order to protect the public health and safety. {

Section 274)(1) of the Act requires that before termination or suspension of all or part of an agreement, reasonable notice and opportunity for hearing l

) must be provided to the State. If the State does not request a hearing j within 30 days, the Commission will make a final decision on the staff's l j recommendation to terminate the State's Agreement. If a hearing is )

, requested by the State, [ provide details regarding the conduct of hearing including the question as to whether the hearing will be conducted by the l I

Special Agreement State Board or the Commission itself.1 After consideration of information obtained from the hearing, the Commission will make a final determination on termination of the agreement with the State of IState's Namel. 1 Existing licensees in [ State] will be advised of this potential change in regulatory authority if the Commission decides to initiate termination proceedings. -

For information regarding this reassertion action contact [ Director), Office of State Programs.

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Appendix B  !

I Termination Procedure

, DRAFT SAMPLE: Commission Paper for Reassertion of NRC Authority in an Agreement State l

I l l EQB: The Commissioners )

EBQM: General Counsel i REASSERTION OF NRC REGULATORY AUTHORITY OVER I

SUBJECT:

IALL OR PART OF) THE (STATE] AGREEMENT PURPOSE:

To inform the Commission that IStatel was offered an opportunity for a hearing and not having requested one, to recommend termination of fall or part] of the (State) agreement. 1

SUMMARY

I As stated in SECY lidentification Number), a review of IState's] Agreement State program was conducted on [Date). As a result of this review and results of the Management l Review Board (MRB), the staff finds that IState's] regulatory program lis inadequate to 1 protect public health and safety and/or has not complied with one or more requirements of l the Atomic Energy Act (AEA)). On [Datel, NRC published a notice of opportunity for a I hearing on the proposed suspension in the Federal Reaister. The State has not requested a j hearing on the matter. Accordingly, the staff recommends that the Commission suspend l

[ State's) Agreement. I DISCUSSION:

Section 274) of the AEA authorizes the Commission to terminate the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert ,

the Commission's licensing and regulatory authority if the Commission finds that such .!

termination is required to adequately protect public health and safety, or because the State has not complied with one or more requirements of the AEA.

ICite this section from previous SECY. This section should contain facts concerning the State's program, why termination is appropriate versus suspension. Reviews, Management Review Board Meetings, and discussions and correspondence with the State addressing the deficiencies should be documented.1 l [The staff should document that the State was offered an opportunity for a hearing, but l did not request one.)

COORDINATION: This paper has been coordinated with the Office of State Programs.

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l RECOMMENDATION: That the Commission:

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1. Annrove the Order provided in Attachment 1 and direct the Secretary to issue such j Order. l

2. Anorove the publication of the EndstalBegister Notice announcing the Commission decision (Attachment 2). The Commission Order will be published in the Federal '

Rennster along with the notice of reassertion of authority.

3. Anorove the letter notifying the Governor of IState) of the termination (Attachment 3).

4. Nota a public announcement will be issued by the Office of Public Affairs (Attachment 4).

5. Nata that the appropriate Congressional Committees will be informed of the Commission's decision by the Office of Congressional Affairs (Attachment 5).

General Counsel Attachments:

1. Proposed Commission Order

2. Proposed Federal Reaister Notice

3. Draft Letter to the Governor

4. Proposed Public Announcement

5. Proposed Congressional Letters I

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4 Attachment 1 Draft Order Terminating Agreement State Program l UNITED STATES NUCLEAR REGULATORY COMMISSION l

l In the Matter of i IName of State]

{ IAgreement State Programl ORDER TERMINATING AGREEMENT STATE PROGRAM 4

i I l

' [ Set forth the name of the Agreement State program and background information as to when the program was initiated, what type of agreement materials are covered, and the i authority of the Commission and the Governor of the particular State to enter into this f type of agreement. In addition, the authority of the Commission to terminate the

Agreement State program should be stated. The following is provided as a sample j discussion for this section.)

! On (Datel, the State of [Namel entered into an agreement (Agreement) with the Nuclear

! Regulatory Commission (NRC or Commission) pursuant to Section 274 of the Atomic

, Energy Act of 1954 (AEA), as amended,42 U.S.C. Section 2021. The Agreement

discontinued the NRC's regulatory authority within the State with respect to ibyproduct j material as defined in Section lle(l) of the AEA (radioisotopes) and/or byproduct material as i defined in Section lle(2) of the AEA (mill tailings or wastes) and/or source material i (uranium and thorium) and/or special nuclear material (uranium 233, uranium 235 and i plutonium) in cuantities not sufficient to form a critical mass and/or permanent disposal of j low-level weste containing one or more of the materials stated above, but not including mill tailings). The Agreement authorized the State of [Namel to regulate these materials

{ for the protection of public health and safety.

! 11

} [This section should provide a description of relevant events, facts, deficiencies, technical or legal reasons that provide the substantive basis for issuing the Order. The following

, example is provided as a semple discussion for this section.]

i j A review of [ State's] Agreement State program was conducted on IDatel. As a result of l this review and Management Review Board (MRB) recommendations, the Commission has j determined that [ State's] regulatory program is inadequate to protect public health and j safety. The review ascertained that !! State's] Agreement State program failed to j

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adequately protect public health and safety by [ facts directly bearing on failure of the program to adequately maintain public health and safety).

I land /or the following:]

In addition, the review and MRB evaluation ascertained that [ State's] Agreement State

program has not complied with one or more requirements of the AEA, i.e., it is i incompatible. IDescribe facts directly bearing on incompatibility between the two j programs.]

111 l

l [This section should pnuide the justification for issuing the Order, in light of the facts j described in Section 11. *lhe following example is provided as a sample discussion for this i section.)

I Section 274d of the AEA provides, in part, that the Commission shall enter into an

Agreement with a State to discontinue the Commission's regulatory authority if the

Commission finds that the State's regulatory program is adequate to protect the public

! health and safety with respect to materials covered by the proposed agreement and tha

State's regulatory program cornplies with Section D4o of the AEA and in all other

{ respects is compatible with the Commission's program for the regulation of such materials.

i

Section 274j(1) of the AEA authorizes the Commission to terminate its agreement with i

any State, after reasonable notice and an opportunity for hearing to the State, and to

reassert the Commission's licensing and regulatory authority if the Commission finds that such suspension is required to protect public health and safety or the State has not j complied with one or more requirements of Section 274 of the Atomic Energy Act..

The NRC must be able to rely on [ State's) Agreement State program to [ adequately protect i . public health and safety) land /or] Ito be compatible with the Commission's requirements and standards applicable to the agreement material). The facts and circumstances 3 enumerated in Section 11 of this Order raise serious doubts as to whether (State) can be

relied upon to the AEA. [ Explain why facts are severe enough to warrant termination as i opposed to suspension.)

l Consequently, I have determined that the termination is required (to protect the public l health and safety) OR [because the State has not complied with one or more of the i l requirements of Section 274 of the Atomic Energy Act of 1954, as amended). l t 1

IV Accordingly, pursuant to Sections 161b,161c,161i,161o, and 274 of the Atomic Energy Act of 1954, as amended, IT IS HEREBY ORDERED THAT THE AGREEMENT BETWEEN j THE COMMISSION AND ISTATE), DATED , TERMINATE AS FOLLOWS

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}

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A. [lDENTIFY PART OF AGREEMENT AFFECTED AND MATERIAL AFFECTED];

FOR THE NUCLEAR REGULATORY COMMISSION Secretariat

Dated at Rockville, Maryland j this day of ,19IXX1' h

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l l Attachment 2 DRAFT SAMPLE: Federal Renister Notice Regarding Reassertion Termination of [ State] Regulatory Authority and the Reassertion of NRC Authority in (State)

AGENCY: U.S. N iclear Regulatory Commission (NRC)

ACTION: Notice of Termination of the [Statel Regulatory Authority and the Reassertion of the NRC Authority in (State).

SUMMARY

The NRC has terminated (State's] regulatory av.hority over [ identify part of agreement affected and material affected) and reasserting NRC's authority in (State). The action, which is effective on IDatel, is being taken in order to ensure that public health and safety will be protected [or because of compatibility concems).

FOR FURTHER INFORMATION CONTACT:

[OSP CONTACT), Office of State Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone [ telephone number].

SUPPLEMENTARY INFORMATION:

Under Section 274 of the Atomic Energy Act (AEA), as amended in 1959, individual States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source and special nuclear materials. In order to effect and maintain such a transfer of authority, the State must demonstrate that its program is adequate to protect the public health and safety and is also compatible with the Commission's program for regulating those materials.

[ Narrative on whether the State has requested termination).

Staff review and recommendations regarding the adequacy and compatibility of Agreement State Programs are made through the Management Review Board (MRB) which consists of senior NRC managers and an Agreement State representative. The MRB makes its decisions regarding the adequacy of each Agreement State's program based on the staff's reviews of the program. In reviewing IState's] program, the MRB recommended that the Commission terminate the State's agreement with NRC. The Commission has considered the State of [ State's] radiation control program and has agreed with the findings of the MRB, as well'as with its recommendation to terminate the program. [ Narrative of MRB findings and any hearings.]

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i j Pursuant to the provisions of Section 274j of the Atomic Energy Act of ,

1954, as amended, the Commission found that it is necessary to terminate '

the [Statel agreement over lidentify part of agreement affected and material affected] and reassert NRC's authority in (State) in order to protect the  ;

public health and safety. This finding ensures that there will be adequate licensing inspection of AEA activities. This reassertion of authority will become eftsctive on [datel.

Persons seeking licenses for activities within (Statel involving Imaterials affected) should file such applications with [ Regional Office information). i Existing licensees in [Statel are being advised of this change in regulatory l authority. Pursuant to a Commission Order published with this notice, existing [ State] licenses affected by this change will become effective NRC licenses under conditions set forth in the Order.

For information regarding this reassertion action, contact [ Director), Office of j Nuclear Material Safety and Safeguards. j inquiries regarding the status of licenses or applications should be directed to

[ Regional Office contact).

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Attachment 3 1

DRAFT SAMPLE: Letter to Govemor Regarding the Commission Decision on Termination i

1

Dear Governor INamel:

l IAs a result of your letter of [Datel, the Commission, on IDate), agreed to terminate

- (State's] [ identify part of agreement affected and material affected] and reasserting NRC's authority in (State). The action, which is effective on IDatel, is being taken in order to answa that public health cod safety will be protected.

) lor]

[As a result of a finding of inadequacy and/or incompatibility of the State's radiation

! control program, the Commission, on [Dete), terminated [ State's] agreement discontinuing j' the NRC authority over [ldentify part of agreement affected and material affected] and i- reasserting NRC's authority in [Statel. [ Describe hearings, if held.) The action, which is

! effective on IDatel, is being taken in order to ensure that public health and safety will be

! protected.)

4

, Enclosed is a copy of the Federal Reaister Notice which announces NRC reassertion. We will also issue a public announcement and inform the appropriate Congressional Oversight

Committees in conjunction with the issuance of the Endet.al Register Notice.

}

IRadiation Control Program Director), [Statel, was informed of the decision on [date). I j understand [Name of Director] is making arrangements for transfer of the appropriate files

! and material to the NRC.

We appreciate the State's cooperation in this matter. [Name], Director, Office of State

j. Programs, at [ telephone number) can answer any questions that your staff may have.

l Sincerely, Chairman j

Enclosure:

, As stated I

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1 I Attachment 4

! DRAFT SAMPLE: Public Announcement to be issued j by the Office of Public Affairs l NRC TO REASSEAT REGULATORY AUTHORITY IN ISTATE]

i The Nuclear Regulatory Commission is reasserting its regulatory authority over the e possession and use of byproduct, source, and special nuclear materials in [Ctate).

l The action, which is effective on (Datel, is being taken in order to ensure that public health and safety will be protected. IFacts requiring termination should be given, including information on a hearing, if held.]

j Under Section 274 of the Atomic Energy Act, as amended in 1959, individual

! States can assume part of the NRC's regulatory authority over the possession and use of byproduct, source, and special nuclear materials. In order to effect and maintain such a j transfer of authority, the State must demonstrate that its program is ad64uate to protect j the public health and safety and is also compatible with the Commission's program for regulating those materials. The State of [ State Namel signed an agreement with the NRC in [Yearl that authorized the State to regulate these radioactive materials. i l

i Section 274) of the Atomic Energy Act gives the Commission authority to tarminate ,

! all or part of its agreement with a State if the termination is required to protect the public i l health and safety, or if the State has not complied with one or more of the requirements of Section 274 of the Act. In cases where the Commission finds that program deficiencies l

a related to either adequacy or compatibility are such that the Commission must take action, the Commission will terminate all or part of its agreement with the State.

Licensees in (State] are being advised of the NRC's action in Order [Datel, and the NRC staff has identified files which are to be transferred from IStatal authorities. In the meantime, the affected [ State's Name] licenses, as currently issued, will remain in effect until they can be revised, if necessary, to meet NRC's requirerrients.

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,. i i Attachment 5 i

j DRAFT SAMPLE: Letters to Congressional Committees i

i j [ Appropriate Congressional Oversight Committees) l

Dear Mr. Chairman:

)

At the request of the Governor of [Statel, the Nuclear Regulatory Commission, on (Datel, j j ogreed to terminate (State's) agreement relinquishing the Nuclear Regulatory Commission

(NRC) regulatory authority over [ identify categories of material under the agreement), and j to reassert NRC licensing and regulatory authority over these materials, in order to protect the public health and safety.

[or if appropriatel j IDescribe circumstance by which NRC is terminating the agreement and details of a hearing if held.]

, i j The effective date of the termination is [Datel. Enclosed is a copy of the Federal Ranister  ;

Notice announcing NRC reassertion of regulatory authority. A Press Release will be  !

! released in conjunction with the issuance of the Federal Register Notice. l b l

! Sincerely, 1

Director Office of Congressional Affairs

Enclosure:

As stated  ;

B-10 12/19/96

Appendix C Termination Procedure DRAFT SAMPLE: Letter to U.S. Department of Labor on Termination Occupational Safety and Health Administration Department of Labor

Dear Administrator:

This is to advise the Department of Labor that under Section 274 of the Atomic Energy Act, the Nuclear Regulatory Commission terminated [ State's] agreement relinquishing the Nuclear Regulatory Commission (NRC) regulatory authority over [ identify categories of material under the agreement).

The effective date of the termination is (Date). Enclosed is a copy of the Order for your information.

Sincerely, Director Office of State Programs

Enclosure:

As stated C-1 12/19/96

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! Appendix D i Termination Procedure

i l DRAFT SAMPLE: Letter to Licensees Regarding Termination and Reassertion -

j AttenDon: (State] Licensees

! The Naclear Regulatory Commission has terminated IState's] regulatory authority over i lidentify part of agreement affected and material affected] and reasserting NRC's authority j in (Statal by an Order issued (Datel.

The action, which is effectivs on ICatel, is being taken in order to ensure that public health 4

and safety will be protected. I i

l This letter is to advise licensees that activities being conducted under your (State's) i license will be subject to regtdetory control by the Nuclear Regulatory Commission. In the l meantwne, your (Statel licenses, as currently issued, will remain in effect until they can be  ;

j revised, if necessary, to meet NRC's requirements. All communications concerning your j use of lappropriate materials] should be addressed to:

} Regional Office j i Address 1

! Phone number 1

1 A copy of the Order is enclosed.

j Director Office of Nuclear Material Safety and Safeguards

Enclosure:

As stated D-1 12/19/96

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i f' Appendix E

Termination Procedure

DRAFT SAMPLE

Letter to All States Regarding Termination

. and Reassertion ALL AGREEMENT AND NON-AGREEMENT STATES l

1

! TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-96-XXX) l Your attention is invited to the enclosed correspondence which contains:

l INCIDENT AND EVENT INFORMATION.......

i PROGRAM MANAGEMENT INFORMATION.......XX NRC ORDER TO 1

TERMINATE ISTATE'S j NAME] REGULATORY

AUTHORITY AND I REASSERT NRC REGULATORY AUTHORITY l TRAINING COURSE INFORMATION..........

4

! TECHNICAL INFORMATION................

) OTHER INFORMATION....................

l l

! Supplementary information: Enclosed, for your information, is the Order issued by the i Nuclear Regulatory Commission terminating [ State's] regulatory authority over [ identify l part of agreement affected and material affected) and reasserting NRC's authority in

! IStatel.

l The action, which was effective on (Datel, is being taken to ensure that public health and

safety will be protected.

l Licensees in [ State] are being advised of the NRC's action. In the meantime, the affected 4

IState's Namel licenses, as currently issued, will remain in effect until they can be revised, d

if necessary, to meet NRC's requirements.

! ]

if you have any questions regarding this correspondence, please contact me or the j individual named below.

o - ,

j POINT OF CONTACT: Staff Contact j TELEPHONE: Director

! FAX: Office of State Programs l lNTERNET:

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Enclosure:

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i As stated

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l Office of State Programa Standard Approval

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The attached intergel Procedure D.22 " Procedure for Suspension of a Section 274b Aeroement" is opproved. i r i i 4.~ '

i l #A-45AA Kathleen N. Schneider

/// 747 Date l

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i htun~ L53wLhu Paul H. Lohaus, Depaty Director d dnl97 Dat'e 1

Office of State Programs l )t AA S11eds '

PCf47 Nicbrd L'. Bangert, Direct Date Office of State Programs

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I OFFICE OF STATE PROGRAMS

INTERNAL PROCEDURE i

[ DIVIS:ON I l Post-Agreement D.22 Procedure for i Activities Suspension of a l Section il4b Agreement  !

I

1. INTRODUCTION 4

l This procedure provides the guidelines that will be followed by NRC staff when 4 considering whether to exercise the authority contained in Section 274)(2) of the Atomic Energy Act to suspend an agreement with a State.

j This procedure does not address the emergency situation where there is a danger to i the public health and safety. Guidelines for emergency suspension are found in j

Procedure D.13.

I j 11. SUSPENSION i

l A. Section 274j of the Atomic Energy Act gives the Commission authority to auspend all or part of its agreement with a State if the suspension is required j to protect the public health and safety, or if the State has not complied with l l one or more of the requirements of Section 274 of the Act. In cases where j the Commission finds that program deficiencies related to either adequacy or i j compatibility are such that the Commission must take action, the Commission may suspend all or part of its agreement with the State.

1 B. The Commission can also suspend an agreement in circumstances where the State radiation control program has not complieo with one or more requirements of the Act, i.e., the State program l's not compatible with the NRC program and the State has refused or is ur.able to address those areas previously identified as compatibility concerns and the non-compatibility is disruptive to the national program conducted by NRC and Agreement States for the regulation of Atomic Energy Act material.

C. Before reaching a final decision on suspension, the Commission will notify the State and provide the State an opportunity for a hearing on the proposed suspension as discussed in Part V. Notice of the suspension will also be published in the Endatal Register. Suspension, rather than termination, will be the preferred option in those cases where the Commission agrees that the State has provided evidence that the program deficiencies are temporary and that the State is committed to implementing program improvements.

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i f Ill. MANAGEMENT REVIEW BOARD ROLE A. The Management Review Board (MRB) is responsible for making the i adequacy assessment of each Agreement State's program based on the

reviews of the program, using both common performance indicators and non-common performance indicators, and ths compatibility determination.

j The MRB consists of senior NRC managers, or their designees, to include:

! Deputy Executive Director for Regulatory Programs j Director, Office of Nuclear Material Safety and Safeguards i Director, Office of State Programs l Director, Office for Analysis and Evaluation j of Operational Data l

General Counsel l l Agreement State Liaison to the MRB l i l B. The MRB will consider the results of the Agreement State review and any other appropriate information in making a determination of adequacy and compatibility with respect to an Agreement State. MRB meetings to discuss specific program review findings normally will be open and Agreement States' representatives from the State under review will be invited to attend.

C. If it is the recommendation of the MRB and EDO that NRC initiate the proceedings to suspend an agreement, the Office of State Programs will be  !

ossigned the loed for preparation of a Commission paper. The Commission paper will contain the information supporting the suspension as described in Prat IV, and will assess potentiel resource implications of NRC reasserting authority. The Commission paper will be coordinated with the Office of General Counsel, the Office of Nuclear Material Safety and Safeguards, and the affected Region.

IV. STAFF WORK Before the Commission can suspend a State's program, it must provide reasonable notice and oppc,rtunity for a hearing to the State as required by Section 274)(1).

Section 274)(1) does not require such a hearing if suspension is requested by the Governor.

Before initiating the opportunity, the Office of State Programs must submit to the Commission a paper containing a recommendation to suspend the State's program in question. This Commission paper willinclude the recommendations of the MRB and any other information pertinent to the staff's recommendation to suspend the agreement. Before a decision is made on the MRB's recommendation, the Commission must provide the State with notice and 'an opportunity to request a hearing on the issue. (See Appendix A for a sample Commission paper inciuoing a sample Federal Reaister Notice.)

2 12/19/96

[... _ __. _ __

i i

• if the State does not request' a hearing, the Commission will make a final decision on the issue. The Office of General Counsel will submit a Commission paper which i

will include the suspension order and the Federal Reaister Notice announcing the '

Commission decision. The Office of State Programs will provide the letter notifying the Governor of the suspension. Congressional Committees will be notified and a j

public announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively. (See Appendix B for samples of all of the above.)

i the to oss request a hearing, the Commission will initiate the hearing process ,

j i Whether or not a hearing is requested, if the Commission decision is to not support I the recommendation to suspend the State's program, the Governor will be notified of this result. Congressional Committees will be notified and a public i

announcement will be made by the Offices of Congressional Affairs and Public Affairs respectively.

l V. HEARINGS l The hearing for the suspension of an Agreement State program will be an !nformal hearing conducted either by the Commission itself, or at the Commission's j

discretion, by a Special Agreement State Board appointed by the Commist, ion. in cases where the Commission determines that a Special Board will be used, the Board will consist of three members:

(1) the Chair of the Organization of Agreement States (OAS) (unless the Chair is from the State in question, in which case the Agreement State representative will be the past Chair of the OAS);

(2) an official from the Office of General Counsel; and (3) the Deputy Regional Administrator of an NRC Regional Office (outside of the Region in which the State is located).

The Commission, or the Special Board, as appropriate, will conduct an informal hearing to address the issues in question. At the hearing, the NRC staff, representatives of tha affected Agreement State, and interested third parties will have an opportunity to offer their views, answer questions, and submit written materials. Third parties whose interests may be affected may submit written material and may offer their views for a limited period of time. After consideration of the issues, the Commission or the Special Board will issue a decision on suspension. A majority of the Commission or the Special Board will be required to support a decision. In cases where a Special Board is used, the Commission will have discretion to review the decision of the Special Board, and either uphold or overtum the Board's decision.

3 12/19/96

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

, VI. ADDITIONAL COORDINATION DURING THE SUSPENSION A. NRC will conduct a meeting with the licensees in the State to explain the i reassertion of NRC authority and the present fee structure. Lead for the '

l rnesting should be the Region in consultation with the Office of General

Counsel, Office of Nuclear Material Safety and Safeguards, and the Office of the Controller.

! B. After the suspension of the agreement, the Office of State Programs will prepare a letter to the U.S. Department of Labor advising the Department of the effective date of the suspension of the agreement (Appendix C).

C. The Regional State Agreements Officer (RSAO) should obtain from the State  ;

, a computer printout of all specific and generallicenses affected by t'he i i suspension of the State's agreement. Mailing labels should be obtained, if

possible, from the State. A letter should be prepared notifying each licensee of the suspension and reassertion by NRC and appropriate information (Appendix D).

l

! D. The Office of State Programs will prepare a letter to All Agreement and I

Non-Agreement States notifying them of the effective date of the 3

suspension and enclosing a copy of the Order or Federal Register Notice 1 (Appendix E).

- E. The Region will coordinate with the State so that all necessary action is i taken to have license files transferred or made available to the NRC.

I Vll. WITHDRAWAL OF SUSPENSION / RECOMMENDATION FOR TERMINATION i A. When the situation requiring the suspension has been corrected or i eliminated, the MRB will consider all factors and recommend to the

! Commission whether to lift the suspension.

i B. If the situation is not resolved, termination will be considered and the I Procedure D.21 for termination should be followed.

Attachments:

Appendices A, B, C, D, E 4 12/19/96 i

)

i l~

Appendix A Suspension Procedure

DRAFT SAMPLE

Commission Paper for Suspension of All or Part of an Agreement and Request for Hearings l f,QB: The Commissioners

! ERQM: Executive Director for Operations l

SUBJECT:

STAFF'S RECOMMENDATIONS REGARDING SUSPENSION OF [ STATE'S]

! AGREEMENT WITH THE COMMISSION PURPOSE:

! To present the results of the staff review of the [ State) program, the Management Review l Board's (MRB) recommendation for suspension of [all or part) of the [ State] agreement and i regast that a special Agreement State Board be convened to provide IStatel with an j opportunity for a hearing, if requested.

i l

SUMMARY

A review of IState's] Agreement State program was conducted on IDate). As a result of l i this review and results of the MRB, the staff finds that [ State's] regulatory program [is  !

! inadequate to protect public health and safety and/or has not complied with one or more j requirements of the Atomic Energy Act (AEA)]. Accordingly, the staff is recommending j that the Commission initiate hearing procedures for the suspension of IState's] program.

i l DISCUSSION:

! Section 274j(1) of the AEA authorizes the Commission to suspend the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert

{ the Commission's licensing and regulatory authority if the Commission suspension is l required to adequately protect public health and safety or becease the State has not

{ complied with one or more requirements of the AEA. Commiss.on suspension of a State's j Agreement is a temporary measure. If the deficiencies in a State's ;wogram are remedied, j the Commission may lift the suspension by informing the Governor of the State and

! affected licensees.

i i [This section should contain facts concerning the State's program, why suspension is

! desirable versus termination. Reviews, Management Review Board Meetings, and

. discussions and correspondence with the State addressing the deficiencies should be i documented.]

[The staff should document any information on whether the State will be requesting a j hearing regarding the suspension. If a hearing is likely, staff should discuss the options of

A1 12/19/96 i

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i

I the informal hearing conducted by the Commission or by the Special Agreement State J

Board.]

l

)

COORDINATION: This paper has been coordinated with the Office of the General Counsel, which has no legal objection.

RECOMMENDATION: That the Commission:

1. Notify the (State) of an opportunity for a hearing on the proposed suspension

, through ISpecial Agreement State Board or Commission itself). If requested,  ;

approve such a request. '

J I I Executive Director

for Operations Attachments

1

1. MRB Recommendations

2. Proposed Federal Register Notice Regarding j Opportunity for Hearing or Suspension i

I A-2 12/19/96

. e i

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I Attachment 1 DRAFT SAMPLE: Management Review Board Recommendations MEMORANDUM TO: Executive Director for Operations FROM: Deputy Executive Director for

Regulatory Programs

Chairman, Management Review Board i

SUBJECT:

MANAGEMENT REVIEW BOARD RECOMMENDATIONS FOR

, THE SUSPENSION OF THE [ STATE) AGREEMENT PROGRAM On Idatel, the Management Review Board (MRB) met to consider the review of the (State]

. Agreement State program ! attached are meeting minutes). [Give details on the program i deficiencies and the State's plans to correct the problems.)

j I

Given the desire of IState) to continue with their agreement, but in light of the need to i protect public health and safety, the MRB recommends that you direct the staff to prepare

a Commission paper to initiate suspension of the agreement program in accordance with

{ procedures.

Attachment:

As stated l

l l

l A3 12/19/96

e 1

4 Attachment 2 l DRAFT SAMPLE: Proposed Endatal Renister Notice Regarding Opportunity

! for Hearing on Suspension 1

i s

j Opportunity for Hearing on Suspension of [ Statal Regulatory Authority and the Reassertion

of NRC Authority i AGENCY

U.S. Nuclear Regulatory Commission (NRC)

I l ACTION: Notice of Opportunity for Hearing on Suspension of the [ Statal negulatory

Authority and the Reassertion of NRC Authority 1

i j

SUMMARY

The NRC staff has proposed that the Commission suspend [ State's) i regulatory authority over [ identify part of agreement affected and material affected) and reassert NRC's authority in [Statel. The staff believes that such action is necessary in order to ensure that public health and safety will i be protected. Accordingly, the Commission is providing the State with this notice of opportunity for a hearing on the proposed suspension of the (State's] regulatory authority. ,

FOR FURTHER INFORMATION CONTACT:

[OSP CONTACT], Office of State Programs, U.S. Nuclear Regulatory j Commission, Washington, DC 20555, telephone [ telephone number).

l SUPPLEMENTARY INFORMATION:

) Under Section 274 of the Atomic Energy Act of 1954, as amended, .

! individual States can assume part of the NRC's regulatory authority over the l possession and use of byproduct, source, and special nuclear materials in i order to effect and maintain such a transfer of authority, the State must i demonstrate that its program is adequate to protect the public health and ll safety and is also compatible with the Commission's program for regulating l those materials.

i

Staff review and recommendations regarding the adequacy and compatibility i of Agreement State Programs are made through the Management Review Board (MRB) which consists of senior NRC managers and an Agreement l

j State representative. The MRB makes its decisions regarding the adequacy of each Agreement State's program based on the staff's reviews of the

program, in reviewing [ State's] program, the MRB has recommended that

' the Commission suspend the State's agreement with NRC until 1 improvements to assure adequate protection-of public health and safety are j incorporated into [ State's] regulatory program. [ Narrative of MRB findings.]

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A-4 12/19/96 l

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_ _ - - - - - -- - - . _ _ _ _ - . . _ - _ _ _ . - _ _ - . . -_.=- . . -_ .

1 Pursuant to the provisions of Section 274) of the Atomic Energy Act of 1954, as amended, the staff has proposed that the Commission suspend the (Statel agreement over lidentify part of agreement affected and material affected] and reassert NRC's authority in [ State] in order to protect the public health and safety. This action ensures that there will be adequate licensing and inspection of AEA activities.

Section 274](1) of the Act requires that before termination or suspension of all or part of an agreement, reasonable notice and opportunity for hearing i must be provided to the State. If the State does not request a hearing g within 30 days, the Commission will make a final decision on the staff's recommendation to suspend the State's Agreement.

l If a hearing is requested by the State, Iprovide details regarding conduct of j hearing depending on whether the hearing will be conducted by the Special l Agreement State Board or the Commission itself.)

Existing licensees in IStatel will be advised of this potential change in i regulatory authority if the Commission decides to initiate suspension proceedings.

For information regarding this reassertion action contact IDirector), Office of State Programs.

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4 l A5 12/19/96 i

_ _ _ . _ . _ _ _ . _ _ _ . ~ _ _ _ _ . _ . _

• Appendix B Suspension Procedure DRAFT SAMPLE: Commission Paper for Suspension of All or Part of an Agreement fD!t: The Commissioners F.!LQM: General Counsel

SUBJECT:

REQUEST FOR SUSPENSION OF lALL OR PART OF) l THE [ STATE) AGREEMENT I PURPOSE:

l To inform the Commission that [Statel was offered an opportunity for a hearing and not

! having requested one to recommend suspension of [all or partl of ne (State] agreement.

SUMMARY

As stated in SECY [ldentification Number) a review of [ State's] Agreement State program was conducted on l> Mal. As a result of this review and results of the MRB, the staff j finds that [ State's] rgulatory program [is inadequate to protect public health and safety and/or has not complied with one or more requirements of Section 274 of the Atomic  !

Energy Act (AEAll. On [datel, NRC published a notice of opportunity for a hearing on the proposed suspension in the Federal Renister. The State has not requested a hearing on the matter. Accordingly, the staff recommends that the Commission suspend (name of State's! Agreement.

l DISCUSSION:

Section 274j(1) of the AEA authorizes the Commission to suspend the agreement with any State, after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission finds that such suspension is required to protect public health and safety or the . ate has not complied with one or more requirements of Section 274 of the AEA.

[ Cite this section from previous SECY. This asction should contain facts concerning the State's program, why suspension is desirable versus termination. Reviews, Management Review Board Meetings, and discussions and correspondence with the State addressing

! the deficiencies should be documented.]

[The staff should document that the State was offered an opportunity for a hearing but did not request one.1 i

COORDINATION: This paper has been coordinated with the Office of State Programs.

I k

B-1 12/19/96 f

i

l i* RECOMMENDATION: That the Commission:

j 1. Annrove the Order provided in Attachment 1 and direct the Secretary to issue such a

Order.

2. Annrove the publication of the Endg[gl Register Notice announcing the Commission l decision (Attachment 2). The Commission Order will be published in the Federal Begister along with the notice of resswrtion of authority.

li

! 3. Annrove the letter notifying the Governor of (Statel of the suspension (Attachment

3),

i 4. Nela a public ennouncement will be issued by the Office of Public Affairs

] (Attachment 4).

i 5. Hola that the appropriate Congressional Committees will be informed of the l Commission's decision by the Office of Congressional Affairs (Attachment 5).

i 1

l 1

l General Counssi 1 1

! Attachments: l l 1. Proposed Commission Order i 2. Proposed Faderal Register Notice i 3. Draft Letter to the Governor

4. Proposed Public Announcement

5. Proposed Congressional Letters l

i B-2 12/19/96

1 l

i f* Attachment 1 i

i DRAFT j' Order Suspending Agreement State Program i

! UNITED STATES NUCLEAR REGULATORY COMMISSION i i l i in the Matter of l i IName of Statel l IAgreement State Program] )

l ORDER SUSPENDING AGREEMENT STATE PROGRAM 1

(Set forth the name of the Agreement State program and background information as to when the program was initiated, what type of agreement materials are covered, and the authority of the Commission and the Govemor of the particular State to enter into this type of agreement in addition, the authority of the Commission to suspend the  ;

Agreement State program should be stated. The following is provided as a sample l

- discussion for this section]. I On (Date), the State of INamel entered into an agreement (Agreement) with the Nuclear Regulatory Commission (NRC or Commission) pursuant to Section 274 of the Atomic  !

Energy Act of 1954 (AEA), as amended,42 U.S.C. Section 2021. The Agreement discontinued the NRC's regulatory authority within the State with respect to Ibyproduct material as defined in Section lle(l) of the AEA (radioisotopes) and/or byproduct material as I defined in Section lle(2) of the AEA (mill tailings or wastes) and/or source material 1 (uranium and thorium) and/or special nuclear material (uranium 233, uranium 235 and plutonium) in quantities not sufficient to form a critical mass and/or permanent disposal of low-level waste containing one or more of the materials stated above, but not including mill tailings). The Agreement authorized the State of INamel to regulate these materials for the protection of public health and safety. j (This section should p: ovide a description of relevant events, facts, deficiencies, technical or legal reasons that provide the substantive basis for issuing the Order. The following example is provided as a sample discussion for this section.

A review of IState's) A0reement State program was conducted on (Datel. As a result of this review and the Management Review Board (MRB) recommerulations, the Commission has determined that IState's] regulatory program ifails to adequately protect public health and safety and/or is incompatible with the Commission's regulatory program). The review B-3 12/19/96

}

i and MRB recommendations ascertained that [ State's] Agreement State program failed to i adequately protect public health and safety by ifacts directly bearing on failure of the

program to adequately maintain public health and safety).

land /or the following:]

in addition, the review and independent evaluation ascertained that IState's) Agreement Stata program is incompatible with the Commission's regulatory program in that (State's!

regulatory program [ facts directly bearing on incompatibility between the two programs).

111 IThis section abould provide the justification for issuing the Order, in light of the facts described in Section 11. The following example is provided as a sample discussion for this section).

Section 274d of the AEA provides, in part, that the Commission shall enter into an Agreement with a State to discontinue the Commission's regulatory authority if the Commission finds that the State's regulatory program is adequate to protect the public health and safety with respect to materials covered by the proposed agreement and the State's regulatory program complies with Section 274o of the AEA and in all other respects is compatible with the Commission's program for the regulation of such materials.

Section 274)(1) of the AEA authorizes the Commission to suspend the agreement with any State,'after reasonable notice and an opportunity for hearing to the State, and to reassert the Commission's licensing and regulatory authority if the Commission finds that such suspension is required to protect public health and safety or the State has not complied with one or more requirements of Section 274 of the Atomic Energy Act.

The NRC must be able to rely on IState's] Agreement State program to ladequately protect public health and safetyl land /or) (to be compatible with the Commission's requirements and standards applicable to the agreement material). The facts and circumstsrco.

enumerated in Section 11 of this Order raise serious doubts as to whether [ State) can be relied upon to comply with Section 274 of the AEA.

Consequently, I have determined that the suspension is required (to protect the public .

health and safety) OR [because the State has not complied with one or more of the l requirements of Section 274 of the Atomic Energy Act of 1954, as amended).

IV Accordingly, pursuant to Sections 161b,161c,161i,161o, and 274 of the Atomic Energy j Act of 1954, as amended, IT IS HERE8Y ORDERED THAT THE AGREEMENT BETWEEN '

THE COMMISSION AND ISTATEl, DATED Idstel, IS SUSPENDED AS FOLLOWS:

i A. [lDENTIFY PART OF AGREEMENT AFFECTED AND MATERIAL AFFECTED);

~

B. IIDENTIFY WHAT ACTIONS THE STATE MUST DO TO COME INTO COMPLIANCE WITH COMMISSION REQUIREMENTS AND WHEN];

B-4 12/19/96 i;

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o .

C. [ IDENTIFY WHAT MUST HAPPEN TO REINSTATE THE AGREEMENT; FOR THE NUCLEAR REGULATORY COMMISSION Secretariat Dated at Rockvilla, Maryland this day of ,19[XX]

I i

i B-5 12/19/96

i  !

4 l 4 4 Attachment 2  ;

l DRAFT SAMPLE: EndatalBsGistet Notice Regarding the Suspension and

Reassertion of NRC Authority 4

j Suspension of [ State) Regulatory Authority and the Reassertion of NRC Authority in [ State]

AGENCY

U.S. Nuclear Regulatory Commission (NRC)

ACTION

Notice of Suspension of the (Statel Regulatory Authority and the Reassertion 1

of the NRC Authority in (State).

l

SUMMARY

The NRC has suspended the (State's] regulatory authority over [ identify part

! of agreement affected and material affected) and is reasserting NRC's i authority in (State). The action, which is effective on IDate), is being taken l

in order to ensure that public health and safety will be protected.

l 4

?

FOR FURTHER INFORMATION CONTACT:

h l

lOSP CONTACT], Office of State Programs, U.S. Nuclear Regulatory l

, Commission, Washington, DC 20555, telephone ! telephone number). I l SUPPLEMENTARY INFORMATION:

i Under Section 274 of the Atomic Energy Act of 1954, as amended, l individual States can assume part of the NRC's regulatory authority over the

possession and use of byproduct, source, and special nuclear materials. In  ;

order to effect and maintain such a transfer of authority, the State must l

) demonstrate that its program is adequate to protect the public health and  ;

safety and is also compatible with the Commission's program for regulating  ;

j those materials. i Section 274) of the Atomic Energy Act gives the Commission authority to

suspend all or part of its agreement with a State if the suspension is required l to protect the public health and safety, or if the State has not complied with l one or more of the requirements of the Act. In cases where the Commission i

finds that program deficiencies related to either adequacy or compatibility i are such that the Commission must take action, the Commission may l suspend all or part of its agreement with the State.

1 j Staff review and recommendations regarding the adequacy and compatibility of Agreement State Programs are made through the Management Review

) Board (MRB), which consists of senior NRC managers and an Agreement

State representative. The MRB makes its decisions regarding the adequacy 1

of each Agreement State's program based on the staff's reviews of the program. In reviewing [ State's] program, the MRB recommended that the Commission suspend the State's agreement with NRC until improvements to l

j B-6 12/19/96 i

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i

s . .

I I-

.d assure adequate protection of public health and safety are incorporated into i [ State's[ regulatory program. [ Narrative of MRB findings.)

i l The Commission has considered the State of [Name) radiation control program and has agreed with the findings of the MRB, as well as with its

recommendation to suspend the program.

j [ Narrative of MRB findings and any hearings held.]

i +

l IStatel has indicated its desire to continue its radiation control program j under the agreement. The [ State) radiation control program has provided l NRC staff with a " Corrective Action Management Plan" describing actions to l be taken to address the identified deficiencies, including specific goals and j timetables. Once the, deficiencies are addressed and the radiation control j program is found to be adequate and compatible, the Commission will

consider action to lifting the suspension of IState). Notification of such

! cessation will be made to the State's Governor, the State's Congressional j delegation, and all other Agreement and Non-Agreement States. There also i will be a f.edatal Reaister Notice and a press release.

i l Existing licensees in (State) are being advised of this change in regulatory j authority. Pursuant to a Commission Order published with this notice,

existing [ State] licenses affected by this change will become effective NRC l licenses under conditions set forth in the Order.

For information regarding th?s reassertion action, contact [ Director), Office of

Nuclear Material Safety and Gafeguards.

j inquires regarding the status ot licenses or applications should be directed to j [ Regional Office contact).

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i B-7 12/19/96 l

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?-

f* Attachment 3 i DRAFT SAMPLE: Letter to Governor Regarding the

Commission Decision on Suspension i

4

Dear Governor (Name):

f 1 l . As you are aware, Section 274) of the Atomic Energy Act gives the Commission authority

! to suspend all, or part, of its agreement with a State if the suspension is required to i protect the public health and safety, or if the State has not complied with one or more of i the requirements of the Act. In cases where the Commission finds that program deficiencies related to either adequacy or compatibility are such that the Commission must take action, the Commission may suspend all or part of its agreement with the State.

! The last review of the [ Statal radiation control program found significant program )

l' deficiencies and the program was found to be ! inadequate to protect the public health and . l safety and/or incompatible with the NRC's program.] [Describa hearing proceedings if l

{ held.) The Commission is suspending [ State's Name] regulatory authority over [ identify I j part of agreement affected and material affected) and reasserting NRC's authority in

! [Statel. The action, which is effective on IDatel, is being taken in order to ensure that

! public health and safety will be protected. Deficiencies exist in (State's Namel due to j Ifacts requiring implementation of Section 274j(1)]. A copy of the Order is enclosed.

i l l understand that the State wishes to continue its radiation control program under the i agreement. The [ State] radiation control program has provided NRC staff with a i

" Corrective Action Management Plan" describing actions to be taken to address the identified deficiencies, including specific goals and timetables. Once the deficiencies are

addressed and the radiation control program is found to be adequate and compatible, the  !

j Commission will consider action to lift the suspension of the [Statel agreement.

! Your staff may contact (Namel, Director, Office of State Programs, at [ telephone numberl l to discuss issues associated with this suspension.

I Sincerely, i

l

! Chairman i

Enclosure:

l As stated i

l l

j B-8 12/19/96 J

f

l'.

i* Attachment 4 1

! DRAFT SAMPLE: Public Announcement to be issued  !

l by the Office of Public Affairs I

?

l i NRC ISSUES ORDER TO SUSPEND

THE [ STATE'S NAME] REGULATORY AUTHORITY i

The Nuclear Regulatory Commission is suspending the [ State's Namel regulatory authority over (identify part of agreement affected and material affected] and reasserting

! NRC's authority in [ State).

l The action, which is effective on IDatel, is being taken in order to ensure that i public health and safety will be protected. Deficiencies exist in the (State's Name]

radiation control program due to (facts requiring implementation of Section 274)(1)).

i Under Section 274 of the Atomic Energy Act of 1954, as amended, individual

! States can assume part of the NRC's regulatory authority over the possession and use of j byproduct, source, and special nuclear materials. In order to effect and maintain such a l transfer of authority, the State must demonstrate that its program is adequate to protect

' the public health and safety and is also compatible with the Commission's program for regulating those materials. The State of [Namel assumed regulatory jurisdiction when an agreement with the NRC was signed in [Yearl.

J Section 274) of the Atomic Energy Act gives the Commission authority to suspend

[ all or part of its agreement with a State if the susponsion is required to protect the public i

health and safety, or if the State has not complied with one or more of the requirements of l Section 274 of the Act. In cases where the Commission finds that program deficiencies i related to either adequacy or compatibility are such that the Commission must take action, the Commission will suspend all or part of its agreement with the State.

Licensees in (Statel are being advised of the NRC's action in the Order (Datel. In

the meantime, the affected [ Statal licenses, as currently issued, will remain in effect under NRC's authority.

l 1

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i I

B-9 12/19/96 i

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i' Attachment 5 DRAFT SAMPLE: Letters to Congressional Committees

[ Appropriate Congressional Oversight Committees)

Dear Mr. Chairman:

At the request of the Governor of [Statel, the Nuclear Regulatory Commission, on [Date),

agrood to suspend (State's] agreement relinquishing the Nuclear Regulatory Commission (NRC) regulatory authority over [ identify categories of material under the agreement], and to reassert NRC regulatory authority over these materials, in order to protect the public health and safety.

(or if appropriate]

[ Describe circumstance by which NRC is suspending the agreement and <1etails of a hearing,if held.)

Once the deficiencies are addressed and the radiation control program is found to be adequate and compatible, the Commission will consider action to lift the suspension of the agreement with the (State).

The effective date of the suspension is (Date). Enclosed is a copy of the Federal Reaister Notice which announces the suspension. We also expect to issue a press release in conjunction with the issuance of the Federal Reaister Notice.

Sincerely, Director Office of Congressional Affairs

Enclosure:

As stated B-10 12/19/96 l

i i

Appendix C Suspension Procedure DRAFT SAMPLE: Letter to U.S. Department of Labor on Suspension Occupational Safety and Health Administration Department of Labor

Dear Administrator:

This is to advise the Department of Labor that unde Section 274 of the Atomic Energy Act, tha Nuclear Regulatory Commission has suspended IState's] agreement relinquishing the Nuclear Regulatory Commission (NRC) regulatory authority over lidentify categories of material under the agreement).

The Order, which is effective on IDatel, is being taken in order to ensure that public health and safety will be protected. Deficiencies exist in [ State's Namel due to ifacts requiring implementation of Section 274j(1)). (Statel desires to maintain and not terminate the agreement. When the deficiencies in the program have been addressed and the program is found to be adequate to protect public health and safety and compatible with the NRC program, NRC will consider lifting the suspension. 1 Enclosed is a copy of the Order for your information. We will notify you of the future

{

changes in the status of the program.

Sincerely,

)

I 1

Director Office of State Programs

Enclosure:

As stated C-1 12/19/96

. o o

l l Appendix D Suspension Procedure i

DRAFT SAMPLE: Letter to Licensees Regarding

Suspension and Reassertion i

Attention: (State) Licensees The Nuclear Regulatory Commission has suspended (State's] regulatory authority over j lidentify part of agreement affected and material affected] and is reasserting NRC's authority in (Statel by an Order issued (Date).

j The action, which is effective on (Datel, is being taken in order to ensure that public health and safety will be protected. Deficiencies exist in IState) due to (facts requiring

implementation of Section 274j(1)).

Section 274) of the Atomic Energy Act gives the Commission authority to suspend all or part of its agreement with a State if the suspension is required to protect the public health l and safety, or if the State has not complied with one or more of the requirements of the j Act. In cases where the Commission finds that program deficiencies related to either l adequacy or compatibility are such that the Commission must take action, the Commission )

may suspend all or part of its agreement with the State.  !

This letter is to advise you that activities being conducted under your (State's] license will be subject to regulatory control by the Nuclear Regulatory Commission. In the meantime, your (State) licenses, as currently issued, will remain in effect under NRC's authority l lunless specific issues are addressed). All communications concerning your use of  !

lappropriate materials) should be addressed to

i l l Regional Office  ;

j Address i

{ Phone number l l

A copy of the Order is available from the Regional Office. When (State] has addressed the deficiencies identified and the suspension is no longer required to protect the public health

! and safety, the (State's] regulatory authority will be retumed. You will be notified of any l l changes in the regulatory authority. '

i l Director l Office of State Programs a

cc: IStatal i

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Appendix E I Suspension Procedure )

DRAFT SAMPLE: Letter to All States Regarding Suspension and Reassertion i i

ALL AGREEMENT AND NON AGREEMENT STATES TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-96 XXX)

Your attention is invited to the enclosed correspondence which contains:

INCIDENT AND EVENT INFORMATION.......

PROGRAM MANAGEMENT INFORMATION.......XX NRC ORDER TO SUSPEND )

THE ISTATE'S NAME) .

REGULATORY AUTHORITY )

TRAINING COURSE INFORMATION.......... 1 i

l TECHNICAL INFORMATION................

OTHER INFORMATION....................

Supplementary Information: Enclosed, for your information, is the Order issued by the I Nuclear Regulatory Commission suspending [ State's] regulatory authority over [ identify l part of agreement affected and material affected] and reasserting NRC's authority in (State). l l

The action, which is effective on [Date), is being taken in order to ensure that public health  ;

and safety will be protected. Deficiencies exist in [ State] due to [ facts requiring i implementation of Section 274)(1)).

Licensees in [Statel are being advised of the NRC's action. In the meantime, the affected (State] licenses, as currently issued, will remain in effect under NRC's authority, if you have any questions regarding this correspondence, please contact me or the individual named below.

POINT OF CONTACT: Staff Contact TELEPHONE:

FAX:

INTERNET: i Director Office of State Programs

Enclosure:

As stated E-1 12/19/96

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l Office of State Programs Standard Approval i The attached Internal Procedure D.23 " Procedure for Placing an Agreement State on ,

j Probation" is approved. I J

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l' Ly - i_. , l, :.: 7 Kathleen N. Schneider Date )

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c ~/ . C/,.  ;.< /, v , / ; ~* I ') l Paul H. Lohaus, Deputy Director 1 Date l

Office of State Programs 1

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f CS/91 Richard L. Bangart,'Direc,tdr Date '

Office of State Programg 1 12/19/96

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OFFICE OF STATE PROGRAMS INTERNAL PROCEDURE DIVISION I l

l 1 Post Agreement D.23 Procedure for Placing an l Activities Agreement State on i Probation i

$ l. INTRODUCTION i This procedure provides the guidelines to be followed when consideration is given to placing an Agreement State program on probationary status.

This procedure also directs the steps to be taken when an Agreement State program is placed on probationary status.

11. BACKGROUND I

Under Section 274 of the Atomic Energy Act, as amended, the Commission retains authority and the responsibility for ensuring that Agreement State programs continue to provide adequate protection of the public health and safety end are compatible with NRC's program. The Commission policy statement, "Latement of Principles and Policy for the Agreement State Program," established the option of placing an Agreement State program on probationary status for serious program '

deficiencies that require heightened oversight (See Sections F through H of policy).

lil. MINIMUM CRITERIA FOR CONSIDERING PROBATION Probation will be considered when any of the fol%ing circumstances occur:

A. When deficiencies in one or more of the common and non-common performance indicators of the Integrated Materials Performance Evaluation Program (IMPEP) are of such safety significance that assurance of the program's ability to protect the public health may be degraded, and heightened oversight by the NRC is required. (Example: The Agreement State repeatedly fails to identify design deficiencies in follow-up analysis of events or incidents involving sealed sources and devices.)

B. When programmatic deficiencies have gone uncorrected for a significant period of time and the NRC is not confident of the State's ability to correct such deficiencies in an expeditious and effective manner without heigntened oversight by the NRC. (Example: Inability to retain skilled staff resulting in increased backlog in inspections and deficiencies in the technical quality of inspection and licensing programs.)

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!. C. When a program has repeatedly been late in adopting required compatibility 1

elements and heightened oversight by NRC would yield improvements.

! (Example: Inability / difficulty in adopting regulations which could result in l j significant impacts across State boundaries or allows licensees to be subject '

j to less stringent requirements than NRC requirements determined to be j necessary for compatibility.)

IV. MANAGEMENT REVIEW BOARD A. The Management Review Board (MRB) is responsible for making the j adequacy assessment, and the compatibility determination, of each

! Agreement State program based on the IMPEP reviews of the program, using l both common and non-common performance indicators. The MRB may also

! convene to evaluate special reviews of an Agreement State program j conducted to assess a spec.fic Agreement State program weakness. MRB j meetings to discuss specific program review findings normally will be open j and representative (s) from the State under review will be invited to

participate.

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The MRB consists of senior NRC managers, or their designees, to include:

Deputy Executive Director for Regulatory Programs Director, Office of Nuclear Material Safety and Safeguards (NMSS)

Director, Office of State Programs (OSP)

Director, Office for Analysis and Evaluation of Operational Data (AEOD)

General Counsel Agreement State Liaison to the MRB B. The MRB will consider the results of the Agreement State review and any other appropriate information in making a determination of adequacy and compatibility of an Agreement State program. If the MRB identifies serious concerns regarding the adequacy and/or compatibility of the State's program, but does not find the deficiencies so serious as to find the program inadequate to protect public health and safety, one of the options it has available to ensure continued protection of the public's health and safety is to recommend placement of the Agreement State on probationary status, if the MRB finds an Agreement State program inadequate, no option other than to suspend or terminate the Agreement is available, since NRC can relinquish its regulatory authority only to a State that has a radiation control program that is adequate to protect public health and safety.

C. If the MRB determines probationary status is warranted, a meeting to discuss NRC concems will be conducted by the Chair of the MRB; the Director, OSP; the Administrator of the NRC Region in which the Agreement State is located; and the GeneraI Counsel (or.their designees) with the responsible cabinet-level official of the pertinent State. Subsequent to this meeting, if it is the final recommendation of the MRB that NRC place the Agreement State program in probationary status, OSP will be assigned the 2 12/1g/96

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1 lead for preparation of a Commission Paper. The Commission Paper will contain the information supporting the MRB recommendation. The j Commission Paper will be coordinated with Offices represented on the MRB

and the Region in which the Agreement State is located.

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! D. If the Commission approves, the Agreement State program will be placed on j probationary status.

V. NRC ACTIVITIES UPON COMMISSION APPROVAL OF ACTION i ,

! A. A letter to the Govotnor notifying him or her of the Agreement State l program probationary status will be sent (Appendix A). A copy of the letter

! will be placed in the Public Document Room. OSP will draft the letter for the l i Chairman's signature and include it as an attachment to the Commission  !

! Paper recommending probation. The Chairman will usually discuss the letter

! with the Governor by telephone before it is mailed.

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B. OSP will prepare and dispatch a letter to the Agreement State program l director requesting that the Agreement State develop a " Corrective Action i Management Plan" and submit it to the OSP within 30 days of receipt of the j letter. The plan should describe actions to be taken by the Stat 6 to address  !

j deficiencies, including specific goals and milestones.

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! C. Notice of the probationary status of the Agreement State program will be i published in the Federal Register (Appendix B).

! D. OSP will prepare and dispatch a letter to all Agreement and Non-Agreement

States notifying them of the action.

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! E. A press release will be prepared and issued by the Office of Public Affairs.

j F. OSP will coordinate with the Office of Congressional Affairs in order to j notify the appropriate Congressional committees and members of the State's Congressional delegation.

VI. AGREEMENT STATE AND NRC ACTIVITIES DURING PROBATIONARY PERIOD -

i A. The Agreement State's " Corrective Action Management Plan" will be

reviewed by OSP, NMSS, OGC, and the Region. The NRC and the State

may meet to discuss the plan, comment, and subsequently agree with the milestones, and determine the projected duration of the probationary period.

Normally, the probationary period would be one year or less, but could be

extended based on extenuating circumstances. (Example

Training new j staff and/or eliminating significant inspection backlog may require more than 3

one year.)

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O B. The OSP, in coordination with NMSS, OGC, and the Region, will develop a

" Heightened Cversight Plan" that will include review or meeting frequency

. to assess the Agreement State's progress, expected NRC resource expenditure, and corrective action close-out list. NRC will consider providing technical assistance to the Agreement State, as appropriate in accordance with Management Directive 5.7, " Technical Assistance to Agreement 4 States."

C. Once allitems in the " Corrective Action Management Plan" have been executed and deemed closed by the OSP after a review of the Agreement .

State's actions, the MRB will convene to review improvements and consider lifting the probation.

2 D. In the event the Agreement State does not complete the actions identified in the " Corrective Action Management Plan" and extenuating circumstances do not exist, the MRB will consider whether the Agreement should be

suspended or terminated (See Suspension Procedure, D.22 and Termination Procedures D.21).

Vil. CESSATION OF PROBATIONARY STATUS A. Once the MRB determines that the State has met the commitments in the

" Corrective Action Management Plan" and the MRB is satisfied with the performance of the State's program, the MRB will recommend to the

. Commission that the probationary status cease.

B. OSP will be assigned the lead for preparation of a Commission Paper. The Commission Paper will contain the information supporting the MRB decision.

, The Commission Paper will be coordinated with the Offices represented on the MRB and the Region in which the Agreement State is located.

C. If the Commission approves cessation of the probationary status, notification of such cessation will be msde following the same process outlined in Section V (A,C,D,E,F), above.

1 Attachments:

Appendix A,B

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i Appendix A

Probation Procedure i

DRAFT SAMPLE: Letter to the Govemor of IStatel Probation j

Dear Governor IName):

l As you are aware, under Section 274 of the Atomic Energy Act of 1954, as amended, the

! Nuclear Regulatory Commission (NRC) retains tlw authority and responsibility for ensuring i that Agreement State programs continue to provide adequate protection of the public i health and safety, and that they are compatible with NRC's program for regulating i radioactive materials. The Commission may place a Steu's program on probation if the

{ Commission is not confident that the State can address pogram deficiencies in an l expeditious and effective manner without heightened oversight by the NRC.

1 l The last review of the [ Statal radiation control program found significant program deficiencies, correction of which is necessary to assure adequate protection of the public

! health and safety in (Statel. The Commission has further determined that while making l the necessary corrections, the [ State) program would benefit from increased NRC l oversight. The Commission is, therefore, placing the [ Statal radiation control program on i probationary status. Staff from the (State) radiation control program have been involved in j the discussions leading to this decision.

l The IStatel radiation control program staff will be requested to provide NRC staff a

{ " Corrective Action Management Plan" describing actions to be taken to address the j identified deficiencies, including specific goals and timetables. The NRC staff will work with your staff throughout the probationary status period. Normally, the probationary

! period would be less than one year, but could be extended based on extenuating l circumstances. Once the Commission determines that the commitments in the " Corrective

! Action Management Plan" have been met, and that the radiation control program can be l found to be adequate and compatible, the probationary status will be terminated.

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! Let me assure you that the Commission has not taken this action lightly. I will be happy l to answer any questions you may have, or your staff may contact INamel, Director, Office j of State Programs, at [ telephone numberl. -

Sincerely, i Chairman i

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Appendix B i

Probation Procedure i

i DRAFT SAMPLE: faderd Register Notice I Placement of State Radiation Control Program on Probationary Status l

l AGENCY: U.S. Nuclear Regulatory Commission (NRC) l

! ACTION: Notice of State Radiation Control Program Being Placed on Probationary

! Status '

SUMMARY

The NRC is announcing the placement of IState] radiation control program

. for regulation of certain Atomic Energy Act materials on probationary status j and initiating heightened oversight of the program, as well as overseeing

implementation of the " Corrective Action Management Plan" developed by i

the staff of the [ State) program. Once the radiation control program has met the commitments made in the " Corrective Action Management Plan," and can be found by the NRC to be adequate to protect the public health and safety, and compatible with NRC's program, the probationary status will be terminated. There will be further announcements of that action.

FOR FURTHER INFORMATION CONTACT:

IOSP Contactl, Office of State Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone [ telephone number).

SUPPLEMENTARY INFORMATION:

Under Section 274 of the Atomic Energy Act, as amended, the Commission retains the authority and the responsibility to assure that Agreement State programs continue to provide adequate protection of the public health and safety, and to be compatible with NRC's program with respect to the regulation of the materials and uses authorized under the Agreement.

Agreement States are States which have assumed regulatory authority from the NRC over the possession and use of certain radioactive materials. The Commission policy statement, " Statement of Principles and Policy for the Agreement State Program," established the option of placing an Agreement State radiation control program on probationary status for serious program deficiencies that require heightened NRC oversight.

The Commission, through its Management Review Board (MRB), has considered the State of IState's Namel radiation control program and has agreed with the findings of the MRB, as well as with its recommendation to  !

place the program on probationary status. (Narrative of the MRB findingsl.

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The State has been requested to develop a

• Corrective Action Management l Plan" and to submit it to the NRC within 30 days. The plan should describe I action taken by the State to address deficiencies, including specific goals and milestones. The Commission expects that the probationary period will be one year or less.

Once the MRB determines that the State has met the commitments in the

" Corrective Action Management Plan" and can be found adequate to protect the public health and safety and compatible with NRC's program, a l recommendation will be made to the Commission that the probationary i status be terminated. Upon Commission approval, the probationary status l will be lifted. Notification of such cessation will be made to the State's i Governor, the State's Congressional delegation, and all other Agreement and Non-Agreement States. There also will be a Federal Reaister Notice and a press statement. l 1

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