[Federal Register Volume 69, Number 29 (Thursday, February 12, 2004)]
[Notices]
[Pages 7026-7029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3060]


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NUCLEAR REGULATORY COMMISSION


State of Utah: NRC Staff Draft Assessment of a Proposed Amendment 
to Agreement Between the Nuclear Regulatory Commission and the State of 
Utah

AGENCY: Nuclear Regulatory Commission.

ACTION: First notice of a proposed amendment to the Agreement with the 
State of Utah; request for comment.

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SUMMARY: By letter dated January 2, 2003, Governor Michael O. Leavitt 
of Utah requested that the U.S. Nuclear Regulatory Commission (NRC) 
enter into an amendment to the Agreement with Utah (the Agreement) as 
authorized by section 274 of the Atomic Energy Act of 1954, as amended 
(Act).
    Under the proposed amendment to the Agreement, the Commission would 
relinquish, and Utah would assume, an additional portion of the 
Commission's regulatory authority exercised within the State. As 
required by the Act, NRC is publishing the proposed amendment to the 
Agreement for public comment. NRC is also publishing the summary of a 
draft assessment by the NRC staff of the portion of the regulatory 
program Utah would assume. Comments are requested on the proposed 
amendment to the Agreement and the staff's draft assessment, which 
finds the program to be adequate to protect public health and safety 
and compatible with NRC's program for regulation of 11e.(2) byproduct 
material.
    The proposed amendment to the Agreement would release (exempt) 
persons who possess or use certain radioactive materials in Utah from 
portions of the Commission's regulatory authority. The Act requires 
that NRC publish those exemptions. Notice is hereby given that the 
pertinent exemptions have been previously published in the Federal 
Register and are codified in the Commission's regulations as 10 CFR 
part 150.

DATES: The comment period expires March 15, 2004. Comments received 
after this date will be considered if it is practical to do so, but the 
Commission cannot assure consideration of comments received after the 
expiration date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following phrase, Utah Amendment, in the subject 
line of your comments. Comments will be made available to the public in 
their entirety. Personal information will not be removed from your 
comments.
    Mail comments to: Michael T. Lesar, Chief, Rules and Directives 
Branch, Division of Administrative Services, Office of Administration, 
Washington, DC 20555-0001.
    E-mail comments to: [email protected].
    Fax comments to: Chief, Rules and Directives Branch, at (301) 415-
5144.
    Publicly available documents related to this notice, including 
public comments received, may be viewed electronically on the public 
computers located at the NRC's Public Document Room (PDR), O1 F21, One 
White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR 
reproduction contractor will copy documents for a fee.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are also available electronically at the NRC's 
Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. 
From this site, the public can gain entry into the NRC's Agencywide 
Document Access and Management System (ADAMS), which provides text and 
image files of NRC's public documents. If you do not have access to 
ADAMS or if there are problems in accessing the documents located in 
ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-
800-397-4209, 301-415-4737 or by e-mail to [email protected].
    Documents available in ADAMS include: The request for an amended 
Agreement by the Governor of Utah including all information and 
documentation submitted in support of the request (ML030280380); NRC 
comments on the request (ML031810623), Utah's response to NRC comments 
(ML032060090); Utah's additional clarification (ML033640565), and the 
full text of the NRC Staff Draft Assessment (ML040370585).

FOR FURTHER INFORMATION CONTACT: Dennis M. Sollenberger, Office of 
State and Tribal Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001. Telephone (301) 415-2819 or e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: Since section 274 of the Act was added in 
1959, the Commission has entered into Agreements with 33 States. The 
Agreement States currently regulate approximately 16,850 material 
licenses, while NRC regulates approximately 4550 licenses. NRC 
periodically reviews the performance of the Agreement States to assure 
compliance with the provisions of section 274. Under the proposed 
amendment to the Agreement, four NRC licenses will transfer to Utah.
    Section 274e requires that the terms of the proposed amendment to 
the Agreement be published in the Federal Register for public comment 
once each week for four consecutive weeks. This first notice is being 
published in fulfillment of the requirement.

I. Background

    (a) Section 274d of the Act provides the mechanism for a State to 
assume regulatory authority from the NRC over

[[Page 7027]]

certain radioactive materials \1\ and activities that involve use of 
the materials.
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    \1\ The radioactive materials are: (a) Byproduct materials as 
defined in section 11e.(1) of the Act; (b) byproduct materials as 
defined in section 11e.(2) of the Act; (c) source materials as 
defined in section 11z. of the Act; and (d) special nuclear 
materials as defined in section 11aa. of the Act, restricted to 
quantities not sufficient to form a critical mass.
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    In a letter dated January 2, 2003, Governor Leavitt certified that 
the State of Utah has a program for the control of radiation hazards 
that is adequate to protect public health and safety within Utah for 
the materials and activities specified in the proposed amendment to the 
Agreement, and that the State desires to assume regulatory 
responsibility for these materials and activities. The radioactive 
materials and activities (which together are usually referred to as the 
``categories of materials'') which the State of Utah requests authority 
over are: the possession and use of byproduct material as defined in 
section 11e.(2) of the Act and the facilities that generate such 
material (uranium mill tailings and uranium mills). Included with the 
letter was the text of the proposed amendment to the Agreement, which 
has been edited and is shown in Appendix A to this notice.
    (b) The proposed amendment to the Agreement modifies the articles 
of the Agreement that:
     Specify the materials and activities over which 
authority is transferred;
     Specify the activities over which the Commission 
will retain regulatory authority; and
     Specify the effective date of the proposed 
Agreement.
    The Commission reserves the option to modify the terms of the 
proposed amendment to the Agreement in response to comments, to correct 
errors, and to make editorial changes. The final text of the amendment 
to the Agreement, with the effective date, will be published after the 
amendment to the Agreement is approved by the Commission and signed by 
the Chairman of the Commission and the Governor of Utah.
    (c) Utah currently regulates all radioactive materials covered 
under the Act, except for conducting sealed source and device 
evaluations which will remain under NRC jurisdiction, and the 
possession and use of 11e.(2) byproduct material, which would be 
assumed by Utah under the proposed amendment to their Agreement. 
Section 19-3-113 of the Utah code provides the authority for the 
Governor to enter into an Agreement with the Commission. Section 19-3-
113 also contains provisions for the orderly transfer of regulatory 
authority over affected licensees from NRC to the State. After the 
effective date of the Agreement, licenses issued by NRC would continue 
in effect as Utah licenses until the licenses expire or are replaced by 
State issued licenses. The regulatory program including 11e.(2) 
byproduct materials is authorized by law in section 19-3-104.
    (d) The NRC staff draft assessment finds that the Utah program is 
adequate to protect public health and safety, and is compatible with 
the NRC program for the regulation of 11e.(2) byproduct material and 
the facilities that generate such material.

II. Summary of the NRC Staff Draft Assessment of the Utah Program for 
the Control of 11e.(2) Byproduct Materials

    The NRC staff has examined Utah's request for an amendment to the 
Agreement with respect to the ability of the Utah radiation control 
program to regulate 11e.(2) byproduct material. The examination was 
based on the Commission's policy statement ``Criteria for Guidance of 
States and NRC in Discontinuance of NRC Regulatory Authority and 
Assumption Thereof by States Through Agreement,'' referred to herein as 
the ``NRC criteria'' (46 FR 7540, January 23, 1981, as amended by 
policy statements published at 46 FR 36969, July 16, 1981, and at 48 FR 
33376, July 21, 1983).
    (a) Organization and Personnel. The 11e.(2) byproduct material 
program will be located within the existing Division of Radiation 
Control (Program) of the Utah Department of Environmental Quality. The 
Program will be responsible for all regulatory activities related to 
the proposed amendment to the Agreement.
    The Program performed an analysis of the expected Program workload 
under the proposed amendment to the Agreement and determined that a 
level of three technical and one administrative staff would be needed 
to implement the 11e.(2) byproduct material authority. The distribution 
of the qualifications of the individual technical staff members will be 
balanced with the technical expertise needed for 11e.(2) byproduct 
material (i.e., health physics, hydrology, engineering). The Program 
currently has and intends to initially use existing qualified staff to 
conduct the 11e.(2) byproduct materials activities. At least two staff 
are qualified in each of the three technical areas identified in the 
Criteria: health physics, engineering, and hydrology.
    The educational requirements for the 11e.(2) byproduct material 
program staff members are specified in the Utah State personnel 
position descriptions, and meet the NRC criteria with respect to formal 
education or combined education and experience requirements. All 
current staff members hold at least bachelor's degrees in physical or 
life sciences, or have a combination of education and experience at 
least equivalent to a bachelor's degree. Several staff members hold 
advanced degrees, and all staff members have had additional training 
plus working experience in radiation protection.
    The Program also plans to hire three new staff into the program to 
supplement the existing staff (two professional/technical and one 
administrative). New staff hired into the Program will be qualified in 
accordance with the Program's training and qualification procedure to 
function in the areas of responsibility to which the individual is 
assigned.
    Based on the NRC staff review of the State's need analysis, current 
staff qualifications, and the current staff assignments for the 11e.(2) 
byproduct material program, the NRC staff concludes that Utah will have 
an adequate number of qualified staff assigned to regulate the 11e.(2) 
byproduct material workload of the Program under the terms of the 
amendment to the Agreement.
    (b) Legislation and Regulations. The Utah Department of 
Environmental Quality (Department) is designated by law to be the 
implementing agency. The law establishes a Radiation Control Board 
(Board) that has the authority to issue regulations and has delegated 
the authority to the Executive Secretary the authority to issue 
licenses, issue orders, conduct inspections, and to enforce compliance 
with regulations, license conditions, and orders. The Executive 
Secretary is the director of the Division of Radiation Control in the 
Department. Licensees are required to provide access to inspectors. The 
law requires the Board to adopt rules that are compatible with 
equivalent NRC regulations and that are equally stringent. Utah has 
adopted R313-24 Utah Administrative Code that incorporates NRC uranium 
milling regulations by reference, with a few exceptions, and other 
regulatory changes needed for the 11e.(2) byproduct material program. 
The NRC staff reviewed and forwarded comments on these regulations to 
the Utah staff. The final regulations were sent to NRC for review. The 
NRC staff review verified that, with the one exception of the 
alternative groundwater standards, the Utah rules contain all of the 
provisions that are necessary in order to be compatible with the 
regulations of

[[Page 7028]]

the NRC on the effective date of the Agreement between the State and 
the Commission. The alternative groundwater standards were addressed in 
a separate Commission action (see 68 FR 51516, August 27, 2003, and 68 
FR 60885, October 24, 2003) and will be resolved prior to the 
Commission's final approval of an amendment to the Agreement with Utah. 
The NRC staff also concludes that Utah will not attempt to enforce 
regulatory matters reserved to the Commission.
    (c) Evaluation of License Applications. Utah has adopted 
regulations compatible with the NRC regulations that specify the 
requirements which a person must meet in order to get a license to 
possess or use 11e.(2) byproduct material. Utah will use its general 
licensing procedures, along with the additional requirements in R313-24 
specific to 11e.(2) byproduct material. Utah will use the NRC 
regulatory guides as guidance in conducting its licensing reviews.
    (d) Inspections and Enforcement. The Utah radiation control program 
has adopted a schedule providing for the inspection of licensees as 
frequently as the inspection schedule used by NRC. The Program has 
adopted procedures for the conduct of inspections, the reporting of 
inspection findings, and the reporting of inspection results to the 
licensees. The Program has also adopted, by rule based on the Utah 
Revised Statutes, procedures for the enforcement of regulatory 
requirements.
    (e) Regulatory Administration. The Utah Department of Environmental 
Quality is bound by requirements specified in State law for rulemaking, 
issuing licenses, and taking enforcement actions. The Program has also 
adopted administrative procedures to assure fair and impartial 
treatment of license applicants. Utah law prescribes standards of 
ethical conduct for State employees.
    (f) Cooperation with Other Agencies. Utah law deems the holder of 
an NRC license on the effective date of the proposed Agreement to 
possess a like license issued by Utah. The law provides that these 
former NRC licenses will expire either 90 days after receipt from the 
Department of a notice of expiration of such license or on the date of 
expiration specified in the NRC license, whichever is earlier. Utah 
also provides for ``timely renewal.'' This provision affords the 
continuance of licenses for which an application for renewal has been 
filed more than 30 days prior to the date of expiration of the license. 
NRC licenses transferred while in timely renewal are included under the 
continuation provision.

III. Staff Conclusion

    Subsection 274d of the Act provides that the Commission shall enter 
into an agreement under subsection 274b with any State if:
    (a) The Governor of the State certifies that the State has a 
program for the control of radiation hazards adequate to protect public 
health and safety with respect to the agreement materials within the 
State, and that the State desires to assume regulatory responsibility 
for the agreement materials; and
    (b) The Commission finds that the State program is in accordance 
with the requirements of subsection 274o, and in all other respects 
compatible with the Commission's program for the regulation of 
materials, and that the State program is adequate to protect public 
health and safety with respect to the materials covered by the proposed 
Agreement.
    On the basis of its draft assessment, the NRC staff concludes that 
the State of Utah meets the requirements of the Act. The State's 
program, as defined by its statutes, regulations, personnel, licensing, 
inspection, and administrative procedures, is compatible with the 
program of the Commission and adequate to protect public health and 
safety with respect to the materials covered by the proposed amendment 
to the Agreement.
    NRC will continue the formal processing of the proposed amendment 
to the Agreement which includes publication of this Notice once a week 
for four consecutive weeks for public review and comment.

    Dated in Rockville, Maryland, this 6th day of February, 2004.

    For the Nuclear Regulatory Commission.
Paul H. Lohaus,
Director, Office of State and Tribal Programs.

Appendix A--Amendment to Agreement Between the United States Nuclear 
Regulatory Commission and the State of Utah for Discontinuance of 
Certain Commission Regulatory Authority and Responsibility Within the 
State Pursuant to Section 274 of the Atomic Energy Act, as Amended

    Whereas, the United States Nuclear Regulatory Commission 
(hereinafter referred to as the Commission) entered into an 
Agreement on March 29, 1984 (hereinafter referred to the Agreement 
of March 29, 1984) with the State of Utah under section 274 of the 
Atomic Energy Act of 1954, as amended (hereafter referred to the 
Act) which became effective on April 1, 1984, providing for 
discontinuance of the regulatory authority of the Commission within 
the State under chapters 6, 7, and 8 and section 161 of the Act with 
respect to byproduct materials as defined in section 11e.(1) of the 
Act, source materials, and special nuclear materials in quantities 
not sufficient to form a critical mass; and
    Whereas, the Commission entered into an amendment to the 
Agreement of March 29, 1984 (hereinafter referred to as the 
Agreement of March 29, 1984, as amended) pursuant to the Act 
providing for discontinuance of regulatory authority of the 
Commission with respect to the land disposal of source, byproduct, 
and special nuclear material received from other persons which 
became effective on May 9, 1990; and
    Whereas, the Governor requested, and the Commission agreed, that 
the Commission reassert Commission authority for the evaluation of 
radiation safety information for sealed sources or devices 
containing byproduct, source or special nuclear materials and the 
registration of the sealed sources or devices for distribution, as 
provided for in regulations or orders of the Commission; and
    Whereas, the Governor of the State of Utah is authorized under 
Utah Code Annotated 19-3-113 to enter into this amendment to the 
Agreement of March 29, 1984, as amended, between the Commission and 
the State of Utah; and
    Whereas, the Governor of the State of Utah has requested this 
amendment in accordance with section 274 of the Act by certifying on 
January 2, 2003, that the State of Utah has a program for the 
control of radiological and non-radiological hazards adequate to 
protect the public health and safety and the environment with 
respect to byproduct material as defined in section 11e.(2) of the 
Act and facilities that generate this material and that the State 
desires to assume regulatory responsibility for such material; and
    Whereas, the Commission found on [date] that the program of the 
State for the regulation of materials covered by this amendment is 
in accordance with the requirements of the Act and in all other 
respects compatible with the Commission's program for the regulation 
of byproduct material as defined in section 11e.(2) and is adequate 
to protect public health and safety; and
    Whereas, the State and the Commission recognize the desirability 
and importance of cooperation between the Commission and the State 
in the formulation of standards for protection against hazards of 
radiation and in assuring that the State and the Commission programs 
for protection against hazards of radiation will be coordinated and 
compatible; and
    Whereas, this amendment to the Agreement of March 29, 1984, as 
amended, is entered into pursuant to the provisions of the Act.
    Now, Therefore, it is hereby agreed between the Commission and 
the Governor of the State, acting on behalf of the State, as 
follows:
    Section 1. Article I of the Agreement of March 29, 1984, as 
amended, is amended by adding a new paragraph B and renumbering 
paragraphs B through D as C through E. Paragraph B will read as 
follows:
    ``B. Byproduct materials as defined in Section 11e.(2) of the 
Act;''

[[Page 7029]]

    Section 2. Article II of the Agreement of March 29, 1984, as 
amended, is amended by deleting paragraph E and inserting a new 
paragraph E to implement the reassertion of Commission authority 
over sealed sources and devices to read:
    ``E. The evaluation of radiation safety information on sealed 
sources or devices containing byproduct, source, or special nuclear 
materials and the registration of the sealed sources or devices for 
distribution, as provided for in regulations or orders of the 
Commission.''
    Section 3. Article II of the Agreement of March 29, 1984, as 
amended, is amended by numbering the current Article as A by placing 
an A in front of the current Article language. The subsequent 
paragraphs A through E are renumbered as 1 through 5. After the 
current amended language, the following new section B is added to 
read:
    ``B. Notwithstanding this Agreement, the Commission retains the 
following authorities pertaining to byproduct material as defined in 
Section 11e.(2) of the Act:
    1. Prior to the termination of a State license for such 
byproduct material, or for any activity that resulted in the 
production of such material, the Commission shall have made a 
determination that all applicable standards and requirements 
pertaining to such material have been met;
    2. The Commission reserves the authority to establish minimum 
standards governing reclamation, long-term surveillance or 
maintenance, and ownership of such byproduct material and of land 
used as a disposal site for such material. Such reserved authority 
includes:
    a. The authority to establish terms and conditions as the 
Commission determines necessary to assure that, prior to termination 
of any license for such byproduct material, or for any activity that 
results in the production of such material, the licensee shall 
comply with decontamination, decommissioning, and reclamation 
standards prescribed by the Commission; and with ownership 
requirements for such materials and its disposal site;
    b. The authority to require that prior to termination of any 
license for such byproduct material or for any activity that results 
in the production of such material, title to such byproduct material 
and its disposal site be transferred to the United States or the 
State of Utah at the option of the State (provided such option is 
exercised prior to termination of the license);
    c. The authority to permit use of the surface or subsurface 
estates, or both, of the land transferred to the United States or 
the State pursuant to 2.b. in this section in a manner consistent 
with the provisions of the Uranium Mill Tailings Radiation Control 
Act of 1978, as amended, provided that the Commission determines 
that such use would not endanger public health, safety, welfare, or 
the environment.
    d. The authority to require, in the case of a license for any 
activity that produces such byproduct material (which license was in 
effect on November 8, 1981), transfer of land and material pursuant 
to paragraph 2.b. in this section taking into consideration the 
status of such material and land and interests therein, and the 
ability of the licensee to transfer title and custody thereof to the 
United States or the State;
    e. The authority to require the Secretary of the Department of 
Energy, other Federal agency, or State, whichever has custody of 
such byproduct material and its disposal site, to undertake such 
monitoring, maintenance, and emergency measures as are necessary to 
protect public health and safety, and other actions as the 
Commission deems necessary; and
    f. The authority to enter into arrangements as may be 
appropriate to assure Federal long-term surveillance or maintenance 
of such byproduct material and its disposal site on land held in 
trust by the United States for any Indian Tribe or land owned by an 
Indian Tribe and subject to a restriction against alienation imposed 
by the United States.''
    Section 4. Article IX of the 1984 Agreement, as amended, is 
renumbered as Article X and a new Article IX is inserted to read:

``Article IX

    In the licensing and regulation of byproduct material as defined 
in Section 11e.(2) of the Act, or of any activity which results in 
the production of such byproduct material, the State shall comply 
with the provisions of Section 274o of the Act. If in such licensing 
and regulation, the State requires financial surety arrangements for 
reclamation and or long-term surveillance and maintenance of such 
byproduct material:
    A. The total amount of funds the State collects for such 
purposes shall be transferred to the United States if custody of 
such byproduct material and its disposal site is transferred to the 
United States upon termination of the State license for such 
byproduct material or any activity that results in the production of 
such byproduct material. Such funds include, but are not limited to, 
sums collected for long-term surveillance or maintenance. Such funds 
do not, however, include monies held as surety where no default has 
occurred and the reclamation or other bonded activity has been 
performed; and
    B. Such surety or other financial requirements must be 
sufficient to ensure compliance with those standards established by 
the Commission pertaining to bonds, sureties, and financial 
arrangements to ensure adequate reclamation and long-term management 
of such byproduct material and its disposal site.''
    This amendment shall become effective on [date] and shall remain 
in effect unless and until such time as it is terminated pursuant to 
Article VIII of the Agreement of March 29, 1984, as amended.

    Done in Rockville, Maryland, in triplicate, this [day] day of 
[month, year].

    For the United States Nuclear Regulatory Commission.
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[insert Chairman's name], Chairman.

    Done in Salt Lake City, Utah, in triplicate, this [day] day of 
[month, year].
    For the State of Utah.

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Olene S. Walker, Governor.
[FR Doc. 04-3060 Filed 2-11-04; 8:45 am]
BILLING CODE 7590-01-P