Home > Electronic Reading Room > Document Collections > Commission Documents > Commission Papers (SECY) > 2007 > SECY-07-0083

POLICY ISSUE
(Notation Vote)

SECY-07-0083

May 17, 2007

• PURPOSE
• BACKGROUND
• DISCUSSION
• RESOURCES
• CONCLUSION
• COMMITMENTS
• RECOMMENDATIONS
• COORDINATION

PURPOSE:

To request Commission approval to publish the proposed Agreement with the Commonwealth of Pennsylvania and a summary of the draft U.S. Nuclear Regulatory Commission (NRC) staff assessment of the Pennsylvania regulatory program in the Federal Register (FR) for public comment.

BACKGROUND:

Section 274b of the Atomic Energy Act of 1954, as amended (Act) authorizes the Commission to enter into an Agreement with the Governor of a State providing for the discontinuance of the regulatory authority of the Commission with respect to certain materials. In 1981, the Commission adopted the revised policy statement entitled, "Criteria for Guidance of States and Nuclear Regulatory Commission (NRC) in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement" (46 FR 7540; January 23, 1981), as amended by statements published on July 16, 1981 (46 FR 36969), and on July 21, 1983 (48 FR 33376), referred to hereafter as the "policy statement." The Office of Federal and State Materials and Environmental Management Programs (FSME) Procedure SA-700, "Processingan Agreement," was subsequently adopted as an internal procedure for applying the policy statement to the processing of a new Agreement. The criteria and approaches in these documents form the basis for the staff's evaluation of the Pennsylvania request.

DISCUSSION:

By letter dated November 9, 2006, Governor Edward G. Rendell requested that the Commission enter into an Agreement with the Commonwealth of Pennsylvania under Section 274b of the Act. The Governor requested that the Commission discontinue its regulatory authority for 11e.(1), 11e.(3), and 11e.(4) byproduct materials, source materials, special nuclear materials not sufficient to form a critical mass, and land disposal of all waste for such materials, and allow Pennsylvania to assume regulatory authority for such material under the Agreement.Governor Rendell certified that Pennsylvania has a program for the control of radiation hazards that is adequate to protect public health and safety within the Commonwealth with respect to the materials covered by the proposed Agreement. The Governor further certified that the Commonwealth wishes to assume the regulatory responsibility for those materials. Copies of Governor Rendell's letter and Chairman Klein's response are enclosed (Enclosure 1 and 2 , respectively).

The NRC staff provided comments to Pennsylvania on its formal Agreement request by letter dated January 26, 2007 (Enclosure 3 ). In these comments, the staff identified several needed procedural revisions and/or updates and also identified two significant staffing concerns related to the staffing level of the program and the training and qualifications of the staff. Pennsylvania responded to the NRC comments and submitted revised sections of its Agreement request in a letter dated March 16, 2007 (Enclosure 4 ).

The NRC staff has verified that each of the comments that were provided to Pennsylvania has been addressed through the modifications and clarifications provided in their letter. In the course of the continued interactions between the NRC and Pennsylvania, the NRC staff plans to confirm the assurances that Pennsylvania provided, which indicate they have an adequate number of trained and qualified staff in place, based on their staff needs analysis and qualification procedures. In addition, the staff notes that Pennsylvania is continuing with efforts to enhance the licensing and inspection skills of their staff through attendance at NRC formal training courses, in-house training, and continued close coordination with NRC Region I licensing and inspection staff on a broad range of licensed activities.

The effective date of the Agreement proposed by Pennsylvania is October 1, 2007. However, given the additional time that Pennsylvania used to resolve the staff comments on their formal request for an Agreement, the current schedule as provided for in FSME Procedure SA-700 "Processing an Agreement," would result in an Agreement approximately four weeks later than the date proposed by Pennsylvania. The current schedule is provided as background information to this paper. Once the staff confirms the assurances provided by Pennsylvania concerning staff training and qualifications, and following the public comment period and the resolution of public comments, the NRC staff will be prepared to recommend that the Commission approve the proposed Agreement. The NRC staff will include an updated schedule (including a revised effective date for the Agreement, if appropriate), along with an analysis of the public comments, as part of the final paper to the Commission recommending approval of the Pennsylvania Agreement request.

As required by Section 274e of the Act, the NRC staff will publish the proposed Agreement for comment in the FR once each week for four consecutive weeks. The FR Notice (Enclosure 5 ) will include a summary of the staff's draft assessment of the proposed Pennsylvania regulatory program for regulation of 11e.(1), 11e.(3), and 11e.(4) byproduct materials, source materials, special nuclear materials in quantities not sufficient to form a critical mass, and land disposal of all waste for such materials, in addition to the text of the proposed Agreement. The staff plans to follow the same process for Pennsylvania as it did for Minnesota, Utah, Wisconsin, and Oklahoma. For these Agreements, the NRC staff published the proposed Agreements in the FR for public comment, in parallel with the Commission's review of the staff's draft assessment. Once approved by the Commission, the final Agreement will be published in the Federal Register within 30 days after signature by the Chairman and the Governor.

The Pennsylvania Department of Environmental Protection (DEP) has the requisite authority to promulgate rules for protection against radiation. The NRC staff verified that the Pennsylvania DEP adopted the relevant NRC regulations in 10 CFR Parts 19, 20, 30, 31, 32, 33, 34, 35, 36, 39, 40, 70, 71, and 150 into Pennsylvania Code Title 25, Environmental Protection by reference. The NRC staff also verified that Pennsylvania adopted the relevant NRC regulations in 10 CFR Part 61 into Pennsylvania Code Title 25, Environmental Protection. The NRC staff has also approved an order, which Pennsylvania will issue, to implement Increased Controls requirements for risk-significant radioactive materials for certain Pennsylvania licensees under the proposed Agreement. This order will replace the order that NRC issued (EA-05-090) to these licensees that will transfer to Pennsylvania. As a result of the renumbering of 10 CFR Part 71 in 2004, Pennsylvania is proceeding with necessary revisions to their regulations to ensure compatibility, and these revisions will be effective by October 1, 2007. Therefore, on the proposed effective date of the Agreement, Pennsylvania 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 Pennsylvania will not attempt to enforce regulatory matters reserved to the Commission.

Pennsylvania 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. Under the proposed Agreement, Pennsylvania would assume regulatory authority for these radioactive materials. Therefore, if the proposed Agreement is approved, the Commission would terminate the time-limited waiver in Pennsylvania coincident with the effective date of the Agreement.

If the proposed Agreement is approved, approximately 690 NRC licenses would be transferred to Pennsylvania's jurisdiction. In addition, Pennsylvania would retain regulatory authority for approximately 460 NARM licenses.

RESOURCES:

The Commonwealth of Pennsylvania has a proposed effective date for the Agreement of October 1, 2007. NRC Region I has sufficient resources budgeted within the Materials Users subprogram (Materials Licensing and Materials Inspection planned activities) to perform materials licensing, inspection, decommissioning, enforcement, allegation casework and transition activities related to Pennsylvania through a portion of FY 2008, in the event that the October 1, 2007, date is not met. These resources are estimated to be approximately 3 FTE for a portion of FY 2008.

CONCLUSION:

The NRC staff concludes that, except as discussed in criterion 20, Qualifications of Regulatory and Inspection Personnel, of the draft NRC staff assessment (Enclosure 6 ) of the proposed program, the Commonwealth of Pennsylvania satisfies the criteria in the Commission's policy statement, and therefore, meets the requirements of Section 274 of the Act. The proposed Pennsylvania program to regulate Agreement materials, as comprised of statutes, regulations, and procedures, 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. With respect to criterion 20, once the NRC staff confirms the assurances provided by Pennsylvania concerning staff training and qualifications, the staff will be able to conclude that criterion 20 is satisfied.

COMMITMENTS:

Listed below are the actions or activities committed to by the staff in this paper.

1. The staff plans to confirm the assurances that Pennsylvania provided in their response to the NRC's comment letter concerning staff training and qualifications.

2. The staff will provide an updated schedule and an analysis of public comments along with the final paper to the Commission, requesting approval of the proposed Agreement.

RECOMMENDATIONS:

That the Commission:

1. Approve:
   
   Publication of the FR Notice once a week for four consecutive weeks, as required by the Act.

2. Review:
   
   The proposed Agreement between the Commonwealth of Pennsylvania and the NRC pursuant to Section 274 of the Act, and the draft of the NRC staff assessment of the Pennsylvania regulatory program, in parallel with the publication of the proposed Agreement in the FR.

3. Note:

   a. The staff will place a copy of the NRC Staff Draft Assessment (summarized in the FR Notice) in the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html, and into Agencywide Documents Access and Management System.

   b. The Office of Congressional Affairs will dispatch a letter to the cognizant Congressional Committees informing them that the Commission is considering entering into an amended Agreement with the Commonwealth.

   c. The Office of Public Affairs will issue a press release.

   d. FSME will dispatch a letter to the Federal Agencies listed in FSME Procedure SA-700 and all of the States.

COORDINATION:

The Office of the General Counsel has no legal objection concerning this paper. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objections.

Privacy Policy | Site Disclaimer
Wednesday, June 06, 2007