[Federal Register Volume 69, Number 37 (Wednesday, February 25, 2004)]
[Notices]
[Pages 8703-8706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-375]
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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: Third 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].
[[Page 8704]]
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 third notice is being
published in fulfillment of the requirement.
I. Background
Section 274d of the Act provides the mechanism for a State to
assume regulatory authority from the NRC over 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.
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.
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.
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).
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.
[[Page 8705]]
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.
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 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.
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.
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.
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.
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 19th 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
[[Page 8706]]
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;''
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 2740 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.
Nils J. Diaz,
Chairman.
Done in Salt Lake City, Utah, in triplicate, this [day] day of
[month, year].
For the State of Utah.
Olene S. Walker,
Governor.
[FR Doc. E4-375 Filed 2-24-04; 8:45 am]
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