65FR37437 State of Oklahoma: NRC Staff Assessment of a Proposed Agreement Between the Nuclear Regulatory Commission and the State of Oklahoma
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Posting-number: Volume 65, Issue 115, Page 37437
[Federal Register: June 14, 2000 (Volume 65, Number 115)]
[Notices]
[Page 37437-37441]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn00-121]
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NUCLEAR REGULATORY COMMISSION
State of Oklahoma: NRC Staff Assessment of a Proposed Agreement
Between the Nuclear Regulatory Commission and the State of Oklahoma
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of a proposed Agreement with the State of Oklahoma.
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SUMMARY: This notice is announcing that the Nuclear Regulatory
Commission (NRC) has received a request from Governor Frank Keating of
Oklahoma that the NRC consider entering into an Agreement with the
State as authorized by Section 274 of the Atomic Energy Act of 1954, as
amended (Act). Section 274 of the Act contains provisions for the
Commission to enter into agreements with the Governor of any State
providing for the discontinuance of the regulatory authority of the
Commission. Under the proposed Agreement, submitted December 28, 1999,
the Commission would discontinue and Oklahoma would take over portions
of the Commission's regulatory authority over radioactive material
covered under the Act within the State of Oklahoma. In accordance with
10 CFR 150.10, persons, who possess or use certain radioactive
materials in Oklahoma, would be released (exempted) from portions of
the Commission's regulatory authority under the proposed Agreement. 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. NRC is publishing the proposed Agreement for public
comment, as required by the Act. NRC is also publishing the summary of
an assessment conducted by the NRC staff of the proposed Oklahoma
byproduct material regulatory program. Comments are invited on (a) the
proposed Agreement, especially its effect on public health and safety,
and (b) the NRC staff assessment.
DATES: The comment period expires July 7, 2000. 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: Written comments may be submitted to Mr. David L. Meyer,
Chief, Rules and Directives Branch, Division of Administrative
Services, Office of Administration, Washington, DC 20555-0001. Copies
of comments received by NRC may be examined at the NRC Public Document
Room, 2120 L Street, NW. (Lower Level), Washington, DC. Copies of the
proposed Agreement, copies of the request for an Agreement by the
Governor of Oklahoma including all information and documentation
submitted in support of the request, and copies of the full text of the
NRC staff assessment are also available for public inspection in the
NRC's Public Document Room.
FOR FURTHER INFORMATION CONTACT: Patricia M. Larkins, Office of State
and Tribal Programs, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001. Telephone (301) 415-2309 or e-mail p...@nrc.gov.
SUPPLEMENTARY INFORMATION: Since Section 274 of the Act was added in
1959, the Commission has entered into Agreements with 31 States. The
Agreement States currently regulate approximately 16,000 agreement
material licenses, while NRC regulates approximately 5800 licenses.
Under the proposed Agreement, approximately 220 NRC licenses will
transfer to Oklahoma. 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 the requirement.
I. Background
(a) 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. In a
letter dated December 28,
[[Page 37438]]
1999, Governor Keating certified that the State of Oklahoma has a
program for the control of radiation hazards that is adequate to
protect public health and safety within Oklahoma 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 included as Appendix A to this notice.
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\1\ 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) source materials as defined in
Section 11z. of the Act; and (d) special nuclear materials as
defined in Section 11a. of the Act, restricted to quantities not
sufficient to form a critical mass.
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The radioactive material and activities (which together are usually
referred to as the ``categories of material'') which the State of
Oklahoma 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 special nuclear material in quantities not
sufficient to form a critical mass; (3) the regulation of the land
disposal of byproduct source or special nuclear material received from
other persons; and (4) source material used to take advantage of its
density and high mass properties where the use of the specifically
licensed source material is subordinate to the primary specifically
licensed use of either 11e.(1) byproduct material or special nuclear
material, as provided for in regulations or orders of the Commission.
(b) The proposed Agreement contains articles that:
--Specify the materials and activities over which authority is
transferred;
--Specify the activities over which the Commission will retain
regulatory authority;
--Continue the authority of the Commission to safeguard nuclear
materials and restricted data;
--Commit the State of Oklahoma and NRC to exchange information as
necessary to maintain coordinated and compatible programs;
--Provide for the reciprocal recognition of licenses;
--Provide for the suspension or termination of the Agreement;
--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 Chairman of the Commission and the Governor of Oklahoma.
(c) Oklahoma currently regulates the users of naturally-occurring
and accelerator-produced radioactive materials (NARM). The regulatory
program is authorized by law in the Oklahoma Environmental Quality Act
at Okla. Stat. tit. 27A Sec. 1-3-101(B)(11) and the Oklahoma Radiation
Management Act at 27A Sec. 2-9-103(A). Section 2-9-103(C) of the Act
provides the authority for the Governor to enter into an Agreement with
the Commission.
Oklahoma law contains provisions for the orderly transfer of
regulatory authority over affected licensees from NRC to the State.
Oklahoma law provides that any person who possesses an existing NRC
license shall be deemed to possess a like license issued under the
Oklahoma Radiation Management Act. After the effective date of the
Agreement, licenses issued by NRC would continue in effect until the
license expiration specified in the existing NRC license. DEQ will
notify affected licensees of the transfer of regulatory authority
within fifteen (15) days after the effective date of the signed
agreement.
(d) The NRC staff assessment finds that the Oklahoma program 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 Oklahoma Program for
the Control of Agreement Materials
NRC staff has examined the Oklahoma 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'' (referred to herein as the ``NRC criteria'')
(46 FR 7540; January 23, 1981, as amended).
(a) Organization and Personnel. The agreement byproduct material
program will be located within the existing Radiation Management
Section (RAM) of the Waste Management Division, an organizational unit
of the Oklahoma Department of Environmental Quality (DEQ). The RAM
Section currently has responsibility for directing and managing a
formal registration program begun in 1993, that includes inspections
and fees for radioactive material that occur naturally or are produced
by particle accelerators, and industrial x-ray machines. The DEQ also
has responsibility for regulation of machine produced radiation, and
non-ionizing radiation. The regulatory authority over the use of
sources of radiation by diagnostic medical x-ray remains with the
Oklahoma Department of Health. Based on discussions with the RAM
program manager, the DEQ plans to implement a licensing program for
radioactive materials that occur naturally in the future after the
State assumes regulatory authority under the Agreement. The program
will be responsible for all regulatory activities related to the
proposed Agreement.
The educational requirements for the DEQ staff members are
specified in the Oklahoma State personnel position descriptions, and
meet the NRC criteria with respect to formal education or combined
education and experience requirements. Each current staff member has at
least a bachelors' degree or equivalents in physical/life sciences or
engineering, with one exception. One staff member trainee has a degree
in Education. Several staff members hold advanced degrees. Most staff
members were hired from other environmental programs in the DEQ with
considerable experience in a variety of environmental program areas.
The program staff has considerable experience in related regulatory
program implementation including air pollution, hazardous waste, solid
waste, sewage treatment, and water use issues. The program manager and
two senior technical staff have 10 years of regulatory experience with
DEQ and 6, 6, and 3 years respectively in the RAM program as well as
several years of prior experience working with radioactive material,
radiation protection, or hazardous waste.
A third senior staff member has three years of industry experience
and three years with the DEQ RAM program. One junior staff member has
three years experience as a laboratory technician using radionuclides
for labeling and two years with the DEQ RAM program. Three other staff
members, currently in training, have between 3 and 9 years experience,
primarily in the environmental regulatory area. One has completed one
year related experience with DEQ RAM, one has 3.5 years of related
nuclear power plant experience as a health physicist decontamination
technician, and one has six years related experience as a well logging
engineer.
Based on information provided in the staffing analysis, the
manager, three senior technical staff, and one junior staff member will
conduct the licensing and inspection activities.
These staff members have attended nearly all of the available
relevant NRC training courses, including the 5-week Applied Health
Physics course, inspection and licensing courses, and the majority of
use-specific courses. In addition, staff members have
[[Page 37439]]
accompanied NRC inspectors and worked with NRC licensing staff to
obtain additional on-the-job experience.
The DEQ has adopted a written program for the training and
qualification of staff members, which covers both new staff members and
the continuing qualification of existing staff. NRC staff notes that
the Oklahoma agreement materials program will be evaluated under the
Commission's Integrated Materials Performance Evaluation Program
(IMPEP). One IMPEP criterion addresses staff training and
qualifications, and includes a specific criterion which addresses
training and qualification plans. NRC staff reviewed the plan, and
concludes that it satisfies the IMPEP criterion element.
The DEQ provided copies of memoranda authorizing full qualification
to three senior staff, and limited interim qualification to one junior
staff member, in accordance with Oklahoma's Formal Qualification Plan.
All four staff are designated to provide technical support to the
program at the time the Agreement is signed.
Based upon review of the information provided in the staffing
analysis, NRC staff concludes that overall the program has an adequate
number of technically qualified staff members and that the technical
staff identified by the State to participate in the Agreement materials
program are fully trained, and qualified in accordance with the DEQ
plans, have 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 to satisfy the
criterion.
(b) Legislation and Regulations. The Oklahoma DEQ is designated by
law in the Oklahoma Radiation Management Act at Okla. Stat. Tit. 27A
Sec. 2-9-103 as the radiation control agency. The law provides the DEQ
the authority to issue licenses, issue orders, conduct inspections, and
to enforce compliance with regulations, license conditions, and orders.
Licensees are required to provide access to inspectors. The
Environmental Quality Board is authorized to promulgate regulations.
The law requires the Environmental Quality Board to adopt rules
that are compatible with the equivalent NRC regulations and that are
equally stringent to, or to the extent practicable more stringent than,
the equivalent NRC regulations. The DEQ has adopted, by reference, the
NRC regulations in Title 10 of the Code of Federal Regulations. The
adoption by reference is contained in Title 252 Chapter 410 of the
Oklahoma Administrative Code (OAC). Oklahoma rule 252:410-10-2
specifies that references to the NRC will be construed as references to
the Director of the DEQ.
The NRC staff review verified that the Oklahoma 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 adoption of the NRC regulations by
reference assures that the standards will be uniform.
(c) Storage and Disposal. Oklahoma has also adopted, by reference,
the NRC requirements for the storage of radioactive material, and for
the disposal of radioactive material as waste. The waste disposal
requirements cover both the disposal of waste generated by the licensee
and the disposal of waste generated by and received from other persons.
(d) Transportation of Radioactive Material. Oklahoma has adopted
the NRC regulations in 10 CFR Part 71 by reference. 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. Oklahoma will not attempt to
enforce portions of the regulation related to activities, such as
approving packaging designs, which are reserved to NRC.
(e) Record keeping and Incident Reporting. Oklahoma has adopted, by
reference, the sections of the NRC regulations which specify
requirements for licensees to keep records, and to report incidents or
accidents involving materials.
(f) Evaluation of License Applications. Oklahoma has adopted, by
reference, the NRC regulations that specify the requirements which a
person must meet in order to get a license to possess or use
radioactive materials. Oklahoma has also developed a licensing
procedure manual, along with the 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 Oklahoma radiation control
program has adopted a schedule providing for the inspection of
licensees as frequently as, or more frequently than, the inspection
schedule used by NRC. The program has adopted procedures for conducting
inspections, reporting inspection findings, and reporting inspection
results to the licensees from similar NRC documents. The program has
also adopted, by rule in the OAC, procedures for the enforcement of
regulatory requirements.
(h) Regulatory Administration. The Oklahoma DEQ 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. Oklahoma law prescribes standards of ethical
conduct for State employees.
(i) Cooperation with Other Agencies. Oklahoma law deems the holder
of an NRC license on the effective date of the proposed Agreement to
possess a like license issued by Oklahoma under the Oklahoma Radiation
Management Act. Such license will expire on the date of expiration
specified in the existing NRC license. Oklahoma will retain the NRC
license numbers of existing licenses until they expire under DEQ
jurisdiction. As of the effective date of the Agreement, any pending or
new license applications and renewals will be transferred to DEQ. DEQ
will notify affected licensees of the transfer of regulatory authority
within fifteen (15) days after the effective date of the signed
agreement.
Oklahoma's Administrative Procedures Act 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. The
OAC provides exemptions from the State's requirements for licensing of
sources of radiation for NRC and the U.S. Department of Energy
contractors or subcontractors.
The proposed Agreement commits Oklahoma 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 Oklahoma'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 Oklahoma to use their best efforts to accord such
reciprocity.
III. Staff Conclusion
Subsection 274d of the Act provides that the Commission will 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
[[Page 37440]]
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 assessment, the NRC staff concludes that the
State of Oklahoma 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 Agreement.
IV. Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of the Office of Management and
Budget (OMB).
Dated at Rockville, Maryland, this 1st day of June, 2000.
For the Nuclear Regulatory Commission.
Paul H. Lohaus,
Director, Office of State and Tribal Programs.
An Agreement Between the United States Nuclear Regulatory
Commission and the State of Oklahoma 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
(hereinafter referred to as the Commission) is authorized under Section
274 of the Atomic Energy Act of 1954, as amended (hereinafter referred
to as the Act), to enter into agreements with the Governor of any State
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 Sections
11e.(1) and (2) 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 Oklahoma is authorized under
Section 2-9-103(c) of the Radiation Management Act (27A O.S. Supp. 1998
Sec. 2-9-101 et seq.) to enter into this Agreement with the Commission;
and,
Whereas, The Governor of the State of Oklahoma certified on
December 28, 1999 that the State of Oklahoma (hereinafter referred to
as the State) has a program for the control of radiation hazards
adequate to protect the health and safety with respect to materials
within the State covered by this Agreement, and that the State desires
to assume regulatory responsibility for such materials; and,
Whereas, The Commission found on (date to be determined) 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
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 Atomic Energy Act of 1954, as amended; Now Therefore, It is
hereby agreed between the Commission and the Governor of the State of
Oklahoma, acting in 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:
A. Byproduct material as defined in Section 11e.(1) of the Act;
B. Source material used to take advantage of the density and high-
mass property for the use of the specifically licensed source material
is subordinate to the primary specifically licensed use of either
11e.(1) byproduct material or special nuclear material;
C. Special nuclear materials in quantities not sufficient to form a
critical mass;
D. The regulation of the land disposal of byproduct source or
special nuclear waste material 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:
A. The regulation of the construction and operation of any
production or utilization facility or any uranium enrichment facility;
B. 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;
C. The regulation of the disposal into the ocean or sea of
byproduct, source, or special nuclear waste material as defined in the
regulations or orders of the Commission;
D. The regulation of the disposal of such other byproduct, source,
or special nuclear material as the Commission from time to time
determines by regulation or order should, because of the hazards or
potential hazards thereof, not be so disposed without a license from
the Commission.
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;
F. Byproduct material as defined in Section 11e.(2) of the Act;
G. Source material except for source material used to take
advantage of the density and high-mass property for the use of the
specifically licensed source material is subordinate to the primary
specifically licensed use of either 11e.(1) byproduct material or
special nuclear material;
Article III
With the exception of those activities identified in Article II,
paragraph A through D, 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, paragraphs E through
G, whereby the State may then exert regulatory authority and
responsibility with respect to those activities.
[[Page 37441]]
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 byproduct material
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(2) of the Act,
temporarily suspend all or part of this Agreement if, in the judgement
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 [TBA], and shall remain in
effect unless and until such time as it is terminated pursuant to
Article VIII.
Dated at Rockville, Maryland, this ________th day of
____________, 2000.
For the United States Nuclear Regulatory Commission.
<bullet>____________________Chairman.
Dated at Oklahoma City, Oklahoma this ________th day of
____________, 2000.
For the State of Oklahoma.
<bullet>____________________Governor.
[FR Doc. 00-15004 Filed 6-13-00; 8:45 am]
BILLING CODE 7590-01-P