[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Notices]
[Pages 25283-25287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12260]
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NUCLEAR REGULATORY COMMISSION
[NRC-2009-0142]
State of New Jersey: NRC Staff Assessment of a Proposed Agreement
Between the Nuclear Regulatory Commission and the State of New Jersey
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of a proposed Agreement with the State of New Jersey.
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SUMMARY: By letter dated October 16, 2008, Governor Jon S. Corzine of
New Jersey requested that the U. S. Nuclear Regulatory Commission (NRC
or Commission) enter into an Agreement with the State of New Jersey
(State or New Jersey) as authorized by Section 274 of the Atomic Energy
Act of 1954, as amended (Act).
Under the proposed Agreement, the Commission would relinquish, and
the State would assume, portions of the Commission's regulatory
authority exercised within the State. As required
[[Page 25284]]
by the Act, the NRC is publishing the proposed Agreement for public
comment. The NRC is also publishing the summary of an assessment by the
NRC staff of the State's regulatory program. Comments are requested on
the proposed Agreement, especially its effect on public health and
safety. Comments are also requested on the NRC staff assessment, the
adequacy of the State's program, and the State's program staff, as
discussed in this notice.
The proposed Agreement would exempt persons who possess or use
certain radioactive materials in the State from portions of the
Commission's regulatory authority. The Act requires that the 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 ends June 26, 2009. 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
comment period ends.
ADDRESSES: Written comments may be submitted to Mr. Michael T. Lesar,
Chief, Rulemaking and Directives Branch, MS TWB-05-B01M, Division of
Administrative Services, Office of Administration, Washington, DC
20555-0001. Members of the public are invited and encouraged to submit
comments electronically to http://www.regulations.gov. Search on Docket
ID: [NRC-2009-0142] and follow the instructions for submitting
comments.
The NRC maintains an Agencywide Documents Access and Management
System (ADAMS), which provides text and image files of NRC's public
documents. The documents may be accessed through the NRC's Public
Electronic Reading Room on the Internet at http://www.nrc.gov/reading-rm/adams.html. 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 (800) 397-4209, or (301)
415-4737, or by e-mail to [email protected].
Copies of comments received by NRC may be examined at the NRC
Public Document Room, 11555 Rockville Pike, Public File Area O-1-F21,
Rockville, Maryland. Copies of the request for an Agreement by the
Governor of New Jersey including all information and documentation
submitted in support of the request, and copies of the full text of the
NRC Draft Staff Assessment are also available for public inspection in
the NRC's Public Document Room-ADAMS Accession Numbers: ML090510713,
ML090510708, ML090510709, ML090510710, ML090510711, ML090510712,
ML090770116, and ML091400097.
FOR FURTHER INFORMATION CONTACT: Torre Taylor, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001. Telephone (301) 415-
7900 or e-mail to [email protected].
SUPPLEMENTARY INFORMATION: Since Section 274 of the Act was added in
1959, the Commission has entered into Agreements with 36 States. The
Agreement States currently regulate approximately 19,000 Agreement
material licenses, while the NRC regulates approximately 3,400
licenses. Under the proposed Agreement, approximately 500 NRC licenses
will transfer to the State. The NRC periodically reviews the
performance of the Agreement States to assure compliance with the
provisions of Section 274.
Section 274e requires that the terms of the proposed Agreement be
published in the Federal Register for public comment once each week for
four consecutive weeks. This notice is being published in fulfillment
of that requirement.
I. Background
(a) Section 274b of the Act provides the mechanism for a State to
assume regulatory authority from the NRC over certain radioactive
materials and activities that involve use of the materials. The
radioactive materials, sometimes referred to as ``Agreement
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) byproduct materials as defined in Section 11e.(3) of the
Act; (d) byproduct materials as defined in Section 11e.(4) of the Act;
(e) source materials; and (f) special nuclear materials, restricted to
quantities not sufficient to form a critical mass.
In a letter dated October 16, 2008, Governor Corzine certified that
the State of New Jersey has a program for the control of radiation
hazards that is adequate to protect public health and safety within New
Jersey for the materials and activities specified in the proposed
Agreement, and that the State desires to assume regulatory
responsibility for these materials and activities. Included with the
letter was the text of the proposed Agreement, which is shown in
Appendix A to this notice.
The radioactive materials and activities (which together are
usually referred to as the ``categories of materials'') that the State
requests authority over are:
(1) The possession and use of byproduct materials as defined in
section 11e.(1) of the Act;
(2) The possession and use of byproduct materials as defined in
section 11e.(3) of the Act;
(3) The possession and use of byproduct materials as defined in
section 11e.(4) of the Act;
(4) The possession and use of source materials;
(5) The possession and use of special nuclear materials in
quantities not sufficient to form a critical mass; and
(6) The regulation of the land disposal of byproduct, source, or
special nuclear waste materials received from other persons.
(b) The proposed Agreement contains articles that:
(i) Specify the materials and activities over which authority is
transferred;
(ii) Specify the activities over which the Commission will retain
regulatory authority;
(iii) Continue the authority of the Commission to safeguard nuclear
materials and restricted data;
(iv) Commit the State and NRC to exchange information as necessary
to maintain coordinated and compatible programs;
(v) Provide for the reciprocal recognition of licenses;
(vi) Provide for the suspension or termination of the Agreement;
and
(vii) Specify the effective date of the proposed Agreement.
The Commission reserves the option to modify the terms of the
proposed Agreement in response to comments, to correct errors, and to
make editorial changes. The final text of the Agreement, with the
effective date, will be published after the Agreement is approved by
the Commission and signed by the NRC Chairman and the Governor of New
Jersey.
(c) The regulatory program is authorized by law under the New
Jersey Statute N.J.S.A. 26:2D-1, the Radiation Protection Act, which
provides the Governor with the authority to enter into an Agreement
with the Commission. New Jersey law contains provisions for the orderly
transfer of regulatory authority over affected licensees from the NRC
to the State. After the effective date of the Agreement, licenses
issued by NRC would continue in effect as State licenses until the
licenses expire or are replaced by State-issued licenses.
[[Page 25285]]
The State currently regulates the users of naturally occurring and
accelerator-produced radioactive materials (NARM). The Energy Policy
Act of 2005 (EPAct) expanded the Commission's regulatory authority over
byproduct materials as defined in Sections 11e.(3) and 11e.(4) of the
Act, to include certain naturally occurring and accelerator-produced
radioactive materials. On August 31, 2005, the Commission issued a
time-limited waiver (70 FR 51581) of the EPAct requirements, which is
effective through August 7, 2009. A plan to facilitate an orderly
transition of regulatory authority with respect to byproduct material
as defined in Sections 11e.(3) and 11e.(4) was noticed in the Federal
Register on October 19, 2007 (72 FR 59158). Under the proposed
Agreement, the State would assume regulatory authority for these
radioactive materials. The State has proposed an effective date for the
Agreement of no later than September 30, 2009. If the proposed
Agreement is approved before August 7, 2009, the Commission would
terminate the time-limited waiver in the State coincident with the
effective date of the Agreement. However, if the Agreement is not
approved prior to this date, NRC would have jurisdictional authority
over all uses of byproduct material within the State. These licensees
would have to meet NRC regulatory requirements and would have 6 months
to apply for any necessary amendments to an NRC license they already
possess, or 12 months to apply for a new NRC license, if needed.
With the effective date of the New Jersey Agreement having the
potential to occur after the expiration of the time-limited waiver,
staff is working to ensure an efficient transition of NARM licensees in
New Jersey within the legal requirements. The staff's objective is to
minimize the impact to NARM licensees in New Jersey during the
transition to NRC and then back to New Jersey's regulatory authority,
within a short timeframe (i.e., about 7 weeks).
(d) The NRC draft staff assessment finds that the New Jersey
Department of Environmental Protection (NJDEP), Bureau of Environmental
Radiation (BER), is adequate to protect public health and safety and is
compatible with the NRC program for the regulation of Agreement
materials.
II. Summary of the NRC Staff Assessment of the State's Program for the
Control of Agreement Materials
The NRC staff has examined the State's request for an Agreement
with respect to the ability of the radiation control program to
regulate Agreement materials. 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,'' (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), and the Office of Federal and State Materials
and Environmental Management Programs (FSME) Procedure SA-700,
``Processing an Agreement'' (available at http://nrc-stp.ornl.gov/procedures/sa700.pdf and http://nrc-stp.ornl.gov/procedures/sa700_hb.pdf).
(a) Organization and Personnel. The Agreement materials program
will be located within the existing BER of the NJDEP. The BER will be
responsible for all regulatory activities related to the proposed
Agreement.
The educational requirements for the BER staff members are
specified in the State's personnel position descriptions, and meet the
NRC criteria with respect to formal education or combined education and
experience requirements. All current staff members hold a bachelor of
science degree in physical or life sciences, with many staff holding a
master of science degree in radiation science. All have had training
and work experience in radiation protection. Supervisory level staff
has at least 5 years of working experience in radiation protection,
with most having greater than 10 years of experience.
The State performed an analysis of the expected workload under the
proposed Agreement. Based on the NRC staff review of the State's staff
analysis, the State has an adequate number of staff to regulate
radioactive materials under the terms of the Agreement. The State will
employ a staff with the equivalent of 13.25 full-time professional/
technical and administrative employees for the Agreement materials
program.
The State has indicated that the BER has an adequate number of
trained and qualified staff in place. The State has developed
qualification procedures for license reviewers and inspectors which are
similar to the NRC's procedures. The technical staff is accompanying
NRC staff on inspections of NRC licensees in New Jersey. BER staff is
also actively supplementing their experience through direct meetings,
discussions, and facility visits with NRC licensees in the State, and
through self-study, in-house training, and formal training.
Overall, the NRC staff concluded that the BER technical staff
identified by the State to participate in the Agreement materials
program has sufficient knowledge and experience in radiation
protection, the use of radioactive materials, the standards for the
evaluation of applications for licensing, and the techniques of
inspecting licensed users of Agreement materials.
(b) Legislation and Regulations. In conjunction with the rulemaking
authority vested in the New Jersey Commission on Radiation Protection
(N.J.S.A. 26:2D-7), the BER has the requisite authority to promulgate
regulations for protection against radiation. The law provides BER the
authority to issue licenses and orders, conduct inspections, and to
enforce compliance with regulations, license conditions, and orders.
Licensees are required to provide access to inspectors.
The NRC staff verified that the State adopted the relevant NRC
regulations in 10 CFR Parts 19, 20, 30, 31, 32, 33, 34, 35, 36, 39, 40,
61, 70, 71, and 150 into New Jersey Administrative Code, Title 7,
Chapter 28. The NRC staff also approved two license conditions to
implement Increased Controls and Fingerprinting and Criminal History
Records Check requirements for risk-significant radioactive materials
for certain State licensees under the proposed Agreement. These license
conditions will replace the Orders that NRC issued (EA-05-090 and EA-
07-305) to these licensees that will transfer to the State. Therefore,
on the proposed effective date of the Agreement, the State will have
adopted an adequate and compatible set of radiation protection
regulations that apply to byproduct, source, and special nuclear
materials in quantities not sufficient to form a critical mass. The NRC
staff also verified that the State will not attempt to enforce
regulatory matters reserved to the Commission.
(c) Storage and Disposal. The State has adopted NRC compatible
requirements for the handling and storage of radioactive material. The
State is requesting authority to regulate the land disposal of
byproduct, source, and special nuclear waste materials received from
other persons. The State waste disposal requirements cover the
preparation, classification, and manifesting of radioactive waste
generated by State licensees for transfer for disposal to an authorized
waste disposal site or broker. The State has adopted the regulations
for a land disposal site but does not expect to need to implement them
in the near future since the State is a member of the Atlantic Compact
and has access to the waste disposal site, EnergySolutions Barnwell
Operations, located in Barnwell, South Carolina.
(d) Transportation of Radioactive Material. The State has adopted
[[Page 25286]]
compatible regulations to the NRC regulations in 10 CFR Part 71. Part
71 contains the requirements licensees must follow when preparing
packages containing radioactive material for transport. Part 71 also
contains requirements related to the licensing of packaging for use in
transporting radioactive materials. The State will not attempt to
enforce portions of the regulations related to activities, such as
approving packaging designs, which are reserved to NRC.
(e) Recordkeeping and Incident Reporting. The State has adopted
compatible regulations to the sections of the NRC regulations which
specify requirements for licensees to keep records, and to report
incidents or accidents involving Agreement materials.
(f) Evaluation of License Applications. The State has adopted
compatible regulations to the NRC regulations that specify the
requirements a person must meet to get a license to possess or use
radioactive materials. The State has also developed a licensing
procedure manual, along with accompanying regulatory guides, which are
adapted from similar NRC documents and contain guidance for the program
staff when evaluating license applications.
(g) Inspections and Enforcement. The State has adopted a schedule
providing for the inspection of licensees as frequently as, or more
frequently than, the inspection schedule used by the NRC. The BER has
adopted procedures for the conduct of inspections, reporting of
inspection findings, and reporting inspection results to the licensees.
The State has also adopted procedures for the enforcement of regulatory
requirements.
(h) Regulatory Administration. The State is bound by requirements
specified in State law for rulemaking, issuing licenses, and taking
enforcement actions. The State has also adopted administrative
procedures to assure fair and impartial treatment of license
applicants. State law prescribes standards of ethical conduct for State
employees.
(i) Cooperation with Other Agencies. State laws provide for the
recognition of existing NRC and Agreement State licenses. New Jersey
has a process in place for the transition of active NRC licenses. Upon
completion of the Agreement, all active NRC licenses issued to
facilities in New Jersey will be recognized as NJDEP licenses. New
Jersey will issue a brief licensing document that will include licensee
specific information, as well as an expiration date, with a license
condition that authorizes receipt, acquisition, possession, and
transfer of byproduct, source, and/or special nuclear material; the
authorized use(s); purposes; and the places of use as designated on the
NRC license. The license condition will also commit the licensee to
conduct its program in accordance with the NRC license and commitments.
The NJDEP rules will govern unless the statements, representations and
procedures in the licensee's application and correspondence are more
restrictive than the NJDEP rules. NJDEP will then issue full NJDEP
licenses, over approximately 13 months.
The State 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. New Jersey
regulations, in N.J.A.C. 28:51.1, provide exemptions from the State's
requirements for licensing of sources of radiation for NRC and U.S.
Department of Energy contractors or subcontractors. The proposed
Agreement commits the State to use its best efforts to cooperate with
the NRC and the other Agreement States in the formulation of standards
and regulatory programs for the protection against hazards of
radiation, and to assure that the State's program will continue to be
compatible with the Commission's program for the regulation of
Agreement materials. The proposed Agreement stipulates the desirability
of reciprocal recognition of licenses, and commits the Commission and
the State to use their best efforts to accord such reciprocity.
III. Staff Conclusion
Section 274d of the Act provides that the Commission shall enter
into an Agreement under Section 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.
The NRC staff has reviewed the proposed Agreement, the
certification by the State of New Jersey in the application for an
Agreement submitted by Governor Corzine on October 16, 2008, and the
supporting information provided by NJDEP, BER, and concludes that the
State of New Jersey satisfies the criteria in 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,'' and meets the requirements of Section 274 of the Act.
Therefore, the proposed State of New Jersey program to regulate
Agreement materials, as comprised of statutes, regulations, procedures,
and staffing is compatible with the program of the Commission and is
adequate to protect public health and safety with respect to the
materials covered by the proposed Agreement.
Dated at Rockville, Maryland, this 20th day of May 2009.
For the Nuclear Regulatory Commission.
Terrence Reis,
Deputy Director, National Materials Program Directorate, Division of
Materials Safety and State Agreements, Office of Federal and State
Materials and Environmental Management Programs.
APPENDIX A
An Agreement Between the United States Nuclear Regulatory Commission
and the State of New Jersey for the Discontinuance of Certain
Commission Regulatory Authority and Responsibility Within the State
Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended
Whereas, The United States Nuclear Regulatory Commission (the
Commission) is authorized under Section 274 of the Atomic Energy Act
of 1954, as amended, 42 U.S.C. 2011 et seq. (hereinafter referred to
as the Act), to enter into Agreements with the Governor of any
State/Commonwealth providing for discontinuance of the regulatory
authority of the Commission within the State/Commonwealth under
Chapters 6, 7, and 8, and Section 161 of the Act with respect to
byproduct materials as defined in Sections 11e.(1), (2), (3), and
(4) of the Act, source materials, and special nuclear materials in
quantities not sufficient to form a critical mass; and,
Whereas, The Governor of the State of New Jersey is authorized
under The Radiation Protection Act, N.J.S.A. 26:2D-1, to enter into
this Agreement with the Commission; and,
Whereas, The Governor of the State of New Jersey certified on
October 16, 2008, that the State of New Jersey (the State) has a
program for the control of radiation hazards adequate to protect
public health and safety with respect to the materials within the
State covered by this Agreement and that the State desires to assume
regulatory responsibility for such materials; and,
[[Page 25287]]
Whereas, The Commission found on [date] that the program of the
State for the regulation of the materials covered by this Agreement
is compatible with the Commission's program for the regulation of
such materials 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 State and Commission programs for
protection against hazards of radiation will be coordinated and
compatible; and,
Whereas, The Commission and the State recognize the desirability
of the reciprocal recognition of licenses, and of the granting of
limited exemptions from licensing of those materials subject to this
Agreement; and,
Whereas, This Agreement 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:
Article I
Subject to the exceptions provided in Articles II, IV, and V,
the Commission shall discontinue, as of the effective date of this
Agreement, the regulatory authority of the Commission in the State
under Chapters 6, 7, and 8, and Section 161 of the Act with respect
to the following materials:
1. Byproduct materials as defined in Section 11e.(1) of the Act;
2. Byproduct materials as defined in Section 11e.(3) of the Act;
3. Byproduct materials as defined in Section 11e.(4) of the Act;
4. Source materials;
5. Special nuclear materials in quantities not sufficient to
form a critical mass;
6. The regulation of the land disposal of byproduct, source, or
special nuclear waste materials received from other persons.
Article II
This Agreement does not provide for discontinuance of any
authority and the Commission shall retain authority and
responsibility with respect to:
1. The regulation of the construction and operation of any
production or utilization facility or any uranium enrichment
facility;
2. The regulation of the export from or import into the United
States of byproduct, source, or special nuclear material, or of any
production or utilization facility;
3. The regulation of the disposal into the ocean or sea of
byproduct, source, or special nuclear materials waste as defined in
the regulations or orders of the Commission;
4. The regulation of the disposal of such other byproduct,
source, or special nuclear materials waste as the Commission from
time to time determines by regulation or order should, because of
the hazards or potential hazards thereof, not be disposed without a
license from the Commission;
5. 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;
6. The regulation of byproduct material as defined in Section
11e.(2) of the Act.
Article III
With the exception of those activities identified in Article II,
paragraphs 1 through 4, this Agreement may be amended, upon
application by the State and approval by the Commission, to include
one or more of the additional activities specified in Article II,
whereby the State may then exert regulatory authority and
responsibility with respect to those activities.
Article IV
Notwithstanding this Agreement, the Commission may from time to
time by rule, regulation, or order, require that the manufacturer,
processor, or producer of any equipment, device, commodity, or other
product containing source, byproduct, or special nuclear material
shall not transfer possession or control of such product except
pursuant to a license or an exemption from licensing issued by the
Commission.
Article V
This Agreement shall not affect the authority of the Commission
under Subsection 161b or 161i of the Act to issue rules,
regulations, or orders to protect the common defense and security,
to protect restricted data, or to guard against the loss or
diversion of special nuclear material.
Article VI
The Commission will cooperate with the State and other Agreement
States in the formulation of standards and regulatory programs of
the State and the Commission for protection against hazards of
radiation and to assure that Commission and State programs for
protection against hazards of radiation will be coordinated and
compatible.
The State agrees to cooperate with the Commission and other
Agreement States in the formulation of standards and regulatory
programs of the State and the Commission for protection against
hazards of radiation and to assure that the State's program will
continue to be compatible with the program of the Commission for the
regulation of materials covered by this Agreement.
The State and the Commission agree to keep each other informed
of proposed changes in their respective rules and regulations, and
to provide each other the opportunity for early and substantive
contribution to the proposed changes.
The State and the Commission agree to keep each other informed
of events, accidents, and licensee performance that may have generic
implication or otherwise be of regulatory interest.
Article VII
The Commission and the State agree that it is desirable to
provide reciprocal recognition of licenses for the materials listed
in Article I licensed by the other party or by any other Agreement
State.
Accordingly, the Commission and the State agree to develop
appropriate rules, regulations, and procedures by which such
reciprocity will be accorded.
Article VIII
The Commission, upon its own initiative after reasonable notice
and opportunity for hearing to the State, or upon request of the
Governor of the State, may terminate or suspend all or part of this
Agreement and reassert the licensing and regulatory authority vested
in it under the Act if the Commission finds that (1) such
termination or suspension is required to protect public health and
safety, or (2) the State has not complied with one or more of the
requirements of Section 274 of the Act.
The Commission may also, pursuant to Section 274j of the Act,
temporarily suspend all or part of this Agreement if, in the
judgment of the Commission, an emergency situation exists requiring
immediate action to protect public health and safety and the State
has failed to take necessary steps. The Commission shall
periodically review actions taken by the State under this Agreement
to ensure compliance with Section 274 of the Act which requires a
State program to be adequate to protect public health and safety
with respect to the materials covered by this Agreement and to be
compatible with the Commission's program.
Article IX
This Agreement shall become effective on [date], and shall
remain in effect unless and until such time as it is terminated
pursuant to Article VIII.
For the United States Nuclear Regulatory Commission.
Gregory B. Jaczko,
Chairman.
For the State of New Jersey.
Jon S. Corzine,
Governor.
[FR Doc. E9-12260 Filed 5-26-09; 8:45 am]
BILLING CODE 7590-01-P