00-16297. 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.

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 [phone] or e-mail [e-mail].

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, 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.

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 section 1-3-101(B)(11) and the Oklahoma Radiation Management Act at 27A section 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 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 § 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 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 § 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.

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.

Chairman

Dated at Oklahoma City, Oklahoma this ___th day of ______, 2000.

For The State of Oklahoma.

Governor

Footnotes

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.