U.S. Nuclear Regulatory Commission

Applicability of State Regulations on NRC Inspectors

HPPOS-054 PDR-9111210229

Title: Applicability of State Regulations on NRC Inspectors

See the memorandum from J. Lieberman to E. L. Jordan dated

October 3, 1978. States have no authority to impose

additional qualifications or restrictions on the

performance of government business by federal officers or

agents. NRC inspectors are not subject to state

regulations that are more restrictive than NRC regulations.

A request was made for OELD guidance on the binding effect

on NRC inspectors of regulations found in Industrial

Bulletin No. 5 of the Commonwealth of Massachusetts,

Department of Labor and Industries, Division of Industrial

Safety. Specifically, OELD was requested to evaluate: (1)

whether NRC inspectors are subject to state regulations

that are more restrictive than NRC regulations, and (2) how

to convey the NRC position on this matter to licensees and

to states. These questions arose as a result of a

licensee's refusal to allow an NRC inspector to enter a

containment area because the inspector did not have an

annual physical examination as required under Section 12.1

of the state regulations. A confrontation with the

licensee did not occur as the inspector chose not to insist

on entry.

It is a fundamental principle of our federal system that

the states have no power to impede, burden, or control the

manner in which the federal government implements the

lawful enactments of Congress [MuCulloch v. Maryland, 17

U.S. 4 Wheat.) 316, 436 (1819)]. Under this concept of

federal supremacy, states have no authority to impose

additional qualifications or restrictions on the

performance of government business by federal officers or

agents [Johnson v. Maryland, 254 U.S. 51 (1920)]. The

federal government and its agents are not liable for

criminal or civil penalties imposed by state statutes or

regulations for lawful actions pursuant to federal law

[Massachusetts v. Hills, 437 F. Supp. 351 (D. Mass. 1977)].

As the inspector here was clearly authorized to conduct a

lawful inspection under the Atomic Energy Act of 1954, as

amended, the licensee had no basis for refusing the

inspector's entry to the containment, either on the theory

that the inspector did not comply with state regulations or

that the licensee itself would suffer liability if it

permitted the inspector to enter. Neither the NRC, its

inspector, nor the licensee could be liable to the state in

this situation because of the supremacy of federal law

[Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956)].

Moreover, Section 1.2 states that the regulations are

"intended to be in harmony with federal regulations as they

apply." Given this stated purpose, it does not appear that

Massachusetts intended its regulations to interfere with

NRC's inspection activities under the Atomic Energy Act of

1954, as amended, and other federal statutes. The

Massachusetts regulations apply to "places of employment"

where operations involve the use or emission of ionizing

radiation. The requirement for medical examinations

applies to employers who may assign employees, agents or

contractors to operations at the site. As the NRC is not

an employer subject to the jurisdiction of a state and

since the licensee does not "assign" inspectors to this

plant, the regulations are not applicable to the NRC.

Unless similar situations present increasing problems, OELD

sees no need to raise this supremacy issue with the

licensees. OELD would prefer to handle similar problems,

if any, on a case-by-case basis. The inspectors should be

informed that supposedly conflicting state regulations do

not provide the licensee an acceptable basis for refusing

an NRC inspection. In the individual case, inspectors

should follow normal procedures and notify headquarters if

a licensee refuses inspection of its facilities. If

discussions between IE:HQ and licensee management,

including discussion between their respective counsels,

cannot remedy the situation, consideration might be given

to issuing an order to permit the inspection. Regulatory

references: None

Subject codes: 12.9, 12.18

Applicability: All