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SECY-03-0030

February 26, 2003

• PURPOSE
• BACKGROUND
• DISCUSSION
• COORDINATION
• RECOMMENDATIONS

PURPOSE:

To inform the Commission of the staff's intent to publish the proposed Agreement requested by Wisconsin in the Federal Register (FR) for public comment.

BACKGROUND:

Section 274b of the 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. The Commission, in 1981, adopted the revised policy statement entitled, "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 statements published on July 16, 1981 (46 FR 36969), and on July 21, 1983, (48 FR 33376), referred to hereafter as the "policy statement." Subsequently, the staff adopted an internal procedure for applying the policy statement in the processing of a new agreement. The criteria elements and approaches in these documents form the basis for the staff's evaluation of the Wisconsin request.

DISCUSSION:

By letter dated August 21, 2002, Governor McCallum requested that the Commission enter into an Agreement with the State of Wisconsin pursuant to Section 274b of the Act. Governor McCallum certified that Wisconsin has a program for the control of radiation hazards which is adequate to protect public health and safety within the State with respect to the materials covered by the proposed Agreement. The Governor further certified that the State wishes to assume the regulatory responsibility for those materials. Copies of Governor McCallum's letter, and Chairman Meserve's response, are attached (Attachments 1 and 2 ). The addition of Wisconsin will bring the number of Agreement States to 33. The current Governor, Jim Doyle, was provided information on the impending Agreement in a briefing package prepared for the transition team. As required by Section 274e of the Act, staff proposes to publish the text of the proposed Agreement in the FR. The FR Notice will include a summary of the staff's draft assessment of the proposed Wisconsin regulatory program for materials subject to the Agreement. Comments on the Agreement, the draft assessment, and the conditions will be requested.

The Governor requested that the regulatory authority of the Commission for the following three categories of materials transferrable under an Agreement be discontinued by the Commission. The categories of materials are: (1) byproduct materials as defined in Section 11e.(1) of the Act; (2) source materials; and (3) special nuclear materials in quantities not sufficient to form a critical mass, as provided for in regulations or orders of the Commission.

The effective date of the Agreement proposed by Wisconsin is July 1, 2003.

The text of the proposed Agreement is included in the proposed FR Notice in Attachment 3 . The Act requires the proposed Agreement to be published in the FR once a week for four consecutive weeks.

Wisconsin adopted HFS 157 Radiation Protection Code effective August 1, 2002. The NRC staff reviewed and forwarded comments on these regulations to the Wisconsin staff. The NRC staff review verified that Wisconsin resolved these comments and that Wisconsin's rules (and legally binding requirements) 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 NRC staff also verified that Wisconsin will not attempt to enforce regulatory matters reserved to the Commission.

Wisconsin regulations are different from NRC regulations with respect to the termination of licenses. Current NRC regulations permit a license to be terminated when the facility has been decommissioned, i.e., cleaned of radioactive contamination, such that the residual radiation will not cause a total effective dose equivalent greater than 25 millirem per year to an average member of the group of individuals reasonably expected to receive the greatest exposure. Normally, the NRC regulations require that the 25 millirem dose constraint be met without imposing any restrictions regarding the future use of the land or buildings of the facility (unrestricted release). Under certain circumstances, NRC regulations in 10 CFR Part 20, Subpart E, allow a license to be terminated if the 25 millirem dose constraint is met with restrictions on future site use ("restricted release"). Wisconsin law does not allow a license to be terminated under restricted release conditions. Wisconsin will instead issue a special "decommissioning-possession only" license as an alternate to license termination under restricted release.

The Wisconsin approach is not fully addressed in its regulations. Wisconsin has agreed to use license conditions to supplement its regulations pending completion of rulemaking to implement its approach. Wisconsin's current regulations together with the license conditions will meet the need to have legally binding requirements.

From a compatibility perspective, the provisions in the license termination rule, 10 CFR 20.1402 for unrestricted release, 10 CFR 20.1403, for restricted release, and 10 CFR 20.1404 for release under alternative criteria are each considered to be Compatibility Category C requirements. Under Compatibility Category C, the State must adopt the essential objectives of these requirements. The manner in which the essential objectives are addressed need not be the same as NRC. As stated in the Statement of Considerations for the license termination rule, the States would be required to adopt the regulation but would have significant flexibility in language, and would be allowed to adopt more stringent requirements. 62 FR 39058, 39079 (June 21, 1997).

The NRC staff notes that the State of Ohio adopted a license termination regulation/ decommissioning policy that provides for termination of licenses only under an unrestricted release approach similar to 10 CFR 20.1402. As to 10 CFR 20.1403 and 20.1404, Ohio adopted the essential objectives of these regulations by establishing a "decommissioning-possession only license" which is used to substitute for the NRC institutional control requirements in 10 CFR 20.1403 and 20.1404. Ohio requires the other provisions in 10 CFR 20.1403 and 20.1404 to be met before a "decommissioning-possession only license" can be issued. The Ohio approach, including use of the "possession only license," and its potential effect on compatibility regarding the impending Agreement was considered by the Commission in SECY-98-209, "Proposed Agreement with the State of Ohio and Compatibility Requirements of 10 CFR Part 20, Subpart E," dated September 8, 1998. The Commission approved this approach in a Staff Requirements Memorandum dated November 20, 1998. Wisconsin's approach is similar to Ohio's. Consequently, the staff found Wisconsin's approach to be acceptable.

The NRC staff determined that the Wisconsin position descriptions for technical staff specify educational requirements consistent with the educational requirements for equivalent NRC staff. Wisconsin also has a formal plan for the training and qualification of technical staff that provides assurance of staff competence equivalent to the assurance provided by NRC Inspection Manual Chapter 1246.

The NRC staff plans to publish the proposed Agreement, receive and address public comments, and following resolution of the public comments, prepare a Commission Paper with a recommendation regarding acceptance of the Agreement. This plan allows the Commission to satisfy the requirements of the Act.

The staff plans to follow the same process for Wisconsin as it did for Oklahoma. For the Oklahoma Agreement, the staff published the proposed Oklahoma Agreement in the FR for public comment in parallel with the Commission's review of the staff's draft assessment. The staff will include an analysis of the public comments in the final paper to the Commission recommending a decision.

The NRC staff believes that the Wisconsin request for an Agreement meets the criteria set forth in Section 274 of the Act and in the policy statement. This conclusion is based on the NRC staff's draft assessment (Attachment 4 ) of the proposed program against the 28 criteria contained in the policy statement.

COORDINATION:

This paper has been coordinated with the Office of the General Counsel, which has no legal objection. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objections.

RECOMMENDATIONS:

That the Commission:

1. Review:

1. The proposed Agreement between the State of Wisconsin and the NRC pursuant to Section 274 of the Act (Attachment 3 ), and the draft of the NRC staff assessment of the Wisconsin regulatory program (Attachment 4 ), in parallel with the publication of the proposed Agreement in the FR.

2. Staff requests action within 10 days. Action will not be taken until the SRM is received. We consider this action to be within the delegated authority of the Director, Office of State and Tribal Programs.

2. Note:

1. 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 ADAMS (Attachment 4 ).

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

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

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