[Federal Register Volume 67, Number 210 (Wednesday, October 30, 2002)]
[Proposed Rules]
[Pages 66074-66076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27590]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 67, No. 210 / Wednesday, October 30, 2002 /
Proposed Rules
[[Page 66074]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 8 and 150
[Docket No. PRM-8-1]
Nuclear Energy Institute; Denial of a Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Denial of a petition for rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a
petition for rulemaking submitted by the Nuclear Energy Institute (NEI)
(PRM-8-1). The petitioner requests that the Commission amend its
regulations to supplement a formal opinion by NRC's General Counsel
that the Atomic Energy Act of 1954 (AEA) has the effect of preempting
to the Federal Government the field of regulation of nuclear facilities
and byproduct, source, and special nuclear material. The supplement
would state the principles of Federal preemption law and would include
criteria governing the determination of when NRC regulations preempt
requirements of non-Agreement States and local governments. The
petitioner also requests that the Commission add a regulation
explicitly stating that no local government or non-Agreement State may
license or regulate the radiological hazards of source material,
special nuclear material, or byproduct material, and provide procedures
whereby any person could request an NRC staff determination as to
whether a particular state or local requirement is preempted by NRC's
requirements. The NRC is denying the petition because the original
General Counsel opinion remains correct and the expenditure of NRC
resources that would be involved in granting the petitioner's request
is not justified when balanced against the minimal benefits to be
anticipated from a supplement to the opinion and the proposed
regulations and procedures.
ADDRESSES: Copies of the petition for rulemaking and the NRC's letter
to the petitioner are available for public inspection or copying in the
NRC Public Document Room, 11555 Rockville Pike, Room 01-F21, Rockville,
Maryland.
FOR FURTHER INFORMATION CONTACT: Stuart A. Treby, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone (301) 415-1644, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
The Petition
On April 17, 2002, NEI submitted a ``Petition for Rulemaking
Regarding Amendments to 10 CFR Parts 8 and 150 Relating to the
Application of Federal Preemption Law'' (Petition). The main thrust of
the petition is to request a change to 10 CFR 8.4: ``Interpretation by
the General Counsel: AEC jurisdiction over nuclear facilities and
materials under the Atomic Energy Act.'' Part 8 of the Commission's
regulations contains formal interpretations by NRC's General Counsel of
provisions of the AEA or NRC regulations. Section 8.4, published on May
3, 1969 (34 FR 7273), contains an interpretation of the scope of the
Atomic Energy Commission's (AEC) regulatory jurisdiction over nuclear
facilities and materials under the AEA, as modified by section 274 of
the AEA which Congress added to the AEA in 1959.\1\ Pub. L. 86-373, 73
Stat. 688. Congress established, in section 274, a program wherein the
AEC was permitted to relinquish its authority over byproduct, source
and special nuclear material in quantities not sufficient to form a
critical mass to States who have established and agreed to maintain
adequate and compatible programs for the regulation of these materials.
The General Counsel's opinion states, in relevant part:
---------------------------------------------------------------------------
\1\ The Energy Reorganization Act of 1974 abolished the AEC and
transferred to the NRC the AEC's licensing and regulatory authority
over the commercial use of nuclear facilities and materials. 42
U.S.C. 5801 et seq.
It seems completely clear that the Congress, in enacting section
274, intended to preempt to the Federal Government the total
responsibility and authority for regulating, from the standpoint of
radiological health and safety, the specified nuclear facilities and
materials; that it stated that intent unequivocally; and that the
enactment of section 274 effectively carried out the Congressional
intent, subject to the arrangement for limited relinquishment of
AEC's regulatory authority and assumption thereof by states in areas
---------------------------------------------------------------------------
permitted, and subject to conditions imposed, by section 274.
10 CFR 8.4(i) (footnote omitted). Thus, States which have not entered
into agreements with the AEC, the General Counsel concluded, ``are
without authority to license or regulate, from the standpoint of
radiological health and safety, byproduct, source, and special nuclear
material or production and utilization facilities'' (10 CFR 8.4(j)).
The petitioner recognizes that ``[s]ection 8.4 generally is
accurate as far as it goes,'' but is concerned that ``it does not
provide a complete summary of applicable Federal preemption
principles.'' Petition at 13, n.40. The petitioner also notes that the
judicial precedents and legal authorities relied upon by the General
Counsel in 1969 (see 10 CFR 8.4(k)) are now out-of-date. What is
needed, in the petitioner's view, is clarification of the General
Counsel's opinion to conform to what the petitioner believes to be the
current governing principles of Federal preemption. The petitioner
believes that these principles, which the petitioner has culled from an
examination of a number of Supreme Court cases and other Federal law,
should be placed in a new section of Sec. 8.4 to read as follows:
Any local or non-Agreement State requirement that: (1) Is
established, in whole or in part, for the purpose of regulating the
radiological hazards of source material, special nuclear material,
or byproduct material; or (2) has a direct and substantial effect on
the field of regulation of the radiological hazards of source
material, special nuclear material, or byproduct material; or (3)
conflicts with, or stands as an obstacle to the full accomplishment
of the purposes of the Act; or (4) precludes, or effectively
precludes a practice or activity in the national interest on the
basis of regulating the radiological hazards of source material,
special nuclear material, or byproduct material, is preempted by the
Commission's authority under the Act.
Petition at 25.\2\ The Petitioner also requested the NRC to update
Sec. 8.4(k) to
[[Page 66075]]
include more contemporary legal authority as the basis for the opinion.
---------------------------------------------------------------------------
\2\ Although petitioner has suggested what petitioner believes
to be the governing principles of Federal preemption law, if the
petition were to be granted the General Counsel would need to
undertake an independent legal review of this subject and reach
conclusions which might, or might not, agree with petitioner's
proposal.
---------------------------------------------------------------------------
The petitioner also requested changes to 10 CFR Part 150
``Exemptions and Continued Regulatory Authority in Agreement States and
in Offshore Waters Under Section 274.'' The petitioner requested that a
new paragraph be added (10 CFR 150.15(c)), to summarize the General
Counsel's opinion as it applies to local governments and non-Agreement
States:
No local government or non-Agreement State may license or
regulate the radiological hazards of source material, special
nuclear material, or byproduct material. Exclusive authority to
regulate such radiological hazards resides with the Commission,
except and only to the extent that the Commission has delegated its
authority to a state pursuant to an agreement under subsection 274b
of the Act. The Commission's interpretation of its jurisdiction over
nuclear facilities and materials under the Act is provided in
section 8.4 of this chapter.
Petition at 24-25.
Finally, the petitioner requested that a new section be added to
Part 150 which would establish procedures by which any person may apply
for a determination by the Director of the Office of Nuclear Reactor
Regulation (NRR) or the Director of the Office of Nuclear Material
Safety and Safeguards, (NMSS) as appropriate, as to whether a Federal
\3\, State, or local requirement is preempted by the Act or the
Commission's regulations promulgated thereunder. Petition at 26-29. The
standards for determining preemption would be those set forth in the
section added to Sec. 8.4. The procedures would include notice in the
Federal Register of receipt of an application for a preemption
determination and an opportunity for public comment; a potential
investigation by the Director of NRR or NMSS of any statement in an
application; an opportunity for the applicant to respond to comments; a
hearing or conference at the discretion of the Director of NRR or NMSS;
a written determination published in the Federal Register; a right for
an aggrieved person to file a petition for reconsideration and for any
persons who have participated in the proceeding to comment on the
petition for reconsideration; and a right of a party to the proceeding
to seek judicial review of the Director's decision in a district court
of the United States.\4\
---------------------------------------------------------------------------
\3\ The petitioner states that ``it would be useful to include
within the proposed Preemption Determination Process a mechanism for
the review of requirements imposed by other federal agencies as well
[and therefore] the proposed process also includes references to
requirements of `federal agencies' as well as state and local
governments.'' Petition at 30-31. The petitioner, however, cites no
legal authority in support of the proposition that NRC regulations
could preempt those of other federal agencies.
\4\ The proposed procedures are based on similar procedures in
place within the Department of Transportation's (DOT) regulations
for the transportation of hazardous materials. See 49 CFR 107.201-
107.227 (2001). The DOT procedures are explicitly required by
statute. See 49 U.S.C. 5125(d).
---------------------------------------------------------------------------
The petitioner asserts that the General Counsel needs to supplement
the interpretation expressed in Sec. 8.4 to include the principles of
Federal preemption law because ``misunderstandings of the NRC's
authority have occurred and can be expected to continue.'' Petition at
14. The examples of these misunderstandings provided by the petitioner
concern a number of States and municipalities which have attempted to
regulate, or have actually regulated, the discharge of radioactive
materials into sewage systems. For example, the petitioner asserts that
the City of Santa Fe, New Mexico, adopted an ordinance in 1997
regulating the discharge of radioactive elements into its sewer system
on the mistaken assumption that it could avoid preemption if it enacted
the ordinance for the purpose of furthering the economic interests of
the City. Ultimately, however, the City consented to a judgment against
it on a Federal preemption claim brought by a user of the sewer system.
Petition at 15-16; 19-20. The petitioner believes that unauthorized
State and local regulation of AEA materials is not an isolated problem
and is in need of generic resolution by NRC.\5\
---------------------------------------------------------------------------
\5\ NRC, in conjunction with the Environmental Protection
Agency, is in the process of revising draft ``Guidance on
Radioactive Materials in Sewage Sludge and Ash at Publically Owned
Treatment Works,'' issued in July 2000. NRC anticipates that the
final guidance will contain a discussion of Federal preemption case
law as it applies to requirements of publicly owned treatment works.
---------------------------------------------------------------------------
Reasons for Denial
The crux of the petition is the request that the General Counsel
clarify the opinion stated in 10 CFR 8.4 that non-Agreement States
``are without authority to license or regulate, from the standpoint of
radiological health and safety, byproduct, source, and special nuclear
material or production and utilization facilities.'' The petitioner
requested the General Counsel to refine this opinion by adding that
local governments and non-Agreement States are without such authority
when the requirement in question (1) is for the purpose of regulating
the radiological hazards of AEA materials and facilities; (2) has a
direct and substantial effect on the field of regulation of the
radiological hazards; (3) conflicts with, or stands as an obstacle to
the full accomplishment of, the purposes of the AEA; or (4) precludes,
or effectively precludes, a practice or activity in the national
interest on the basis of regulating the radiological hazards. These
statements are derived from what the petitioner views as the governing
principles of Federal preemption law.
The General Counsel has exercised the authority conferred in the
Commission's regulations to issue legal opinions on the meaning of
statutes and regulations which will be binding on the Commission very
sparingly and only in instances involving major legal or policy
questions. The petitioner's request does not involve determining
unresolved legal issues; rather it simply involves restating existing
law. This is not the type of question that has merited issuance of a
formal legal opinion in the past and there are good reasons, explained
below, for not departing from past precedent in this case.
First, and most fundamentally, the General Counsel's opinion on
AEC/NRC jurisdiction over nuclear facilities and materials under the
AEA is correct as it stands. The petitioner does not contend that
subsequent Federal case law has rendered any part of the opinion
erroneous and in need of correction; rather, the petitioner's concern
is that the opinion does not provide a complete summary of applicable
Federal preemption principles which have evolved in Federal case law
since the opinion was issued in 1969. But case law on a general legal
issue such as preemption is constantly being fine-tuned as new fact-
specific situations are resolved by the courts. Absent case law
rendering a formal General Counsel opinion erroneous, expending
resources to update an opinion is not necessary given that developing
case law is available to all interested persons, including local and
State governments and the attorneys who represent them, from sources
outside NRC.
Second, a General Counsel opinion on the governing principles of
Federal preemption law would not be definitive and thus would be of
limited value to NRC, its licensees, and the general public. The
petitioner requested a formal General Counsel opinion not on the proper
interpretation of one of NRC's governing statutes, or of an NRC
regulation, but rather on ``the governing principles of Federal
preemption.'' Petition at 1. The General Counsel is not being asked to
reexamine the legislative history of Sec. 274 of the AEA or any other
provision of one of NRC's governing statutes to determine whether
Congress has spoken more fully to the question of
[[Page 66076]]
NRC's preemption of the field of nuclear regulation than is reflected
in the present General Counsel opinion. The General Counsel, instead,
was asked to render an opinion on the broad question of what present
Federal case law points to as the governing principles of Federal
preemption. The petitioner acknowledges that ``the agency's
determinations presumably would not be binding on a court,'' Petition
at 5, and it is not evident that the General Counsel's opinion on this
broad question would be entitled to the same weight as would be given
to an agency's interpretation of its governing statute. Thus, a General
Counsel opinion on this issue is unlikely to obtain for the agency an
important benefit that normally would be expected to attach to a formal
opinion. Similarly, the procedures for seeking an NRC staff
determination as to whether State or local requirements are preempted
by NRC's requirements would result only in guidance as to what, given
current Federal preemption case law, a court might determine with
respect to a State or local requirement challenged on preemption
grounds. Agency procedures are wholly unnecessary because those persons
subject to State or local requirements are free to take their
preemption arguments to a Federal court for definitive resolution
regardless of the NRC's views or even without seeking these views.
Finally, while the General Counsel's views on the subject of
Federal preemption might provide guidance, this benefit must be
balanced against the expenditure of agency resources that would be
necessitated by the petitioner's request. In addition to the resources
needed to undertake a legal review of judicial case law on the subject
of Federal preemption and to undertake a rulemaking proceeding, the
resources needed to implement the procedures requested by the
petitioner for rendering NRC staff determinations on preemption could
be considerable. These procedures include Federal Register notices,
potential hearings, the need to respond to comments both on the initial
application for a determination of preemption and for any petition for
reconsideration, a formal written decision, and, potentially, the need
to defend the NRC'S decision in court if judicial review is sought. The
nature of the problem described by the petitioner does not warrant the
expenditure of resources that would likely be involved. Local
governments and non-Agreement States might be expected to look to their
own counsel for competent advice on the state of Federal preemption
law, particularly because a General Counsel opinion would not be
definitive on this issue. Persons harmed by the occasional unwarranted
assertion of authority by a local government or non-Agreement State
into the regulatory field reserved to the NRC have a ready remedy in
the judicial system which can strike down requirements which are
preempted by NRC regulations. In short, the petitioner's request is
likely to require substantial expenditure of NRC resources with little
benefit to either NRC or its licensees or the broader public.
For all the reasons stated above, the NRC denies the petition in
its entirety.
Dated at Rockville, Maryland, this 24th day of October, 2002.
For the Nuclear Regulatory Commission,
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 02-27590 Filed 10-29-02; 8:45 am]
BILLING CODE 7590-01-P