UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 20555-0001

September 28, 2015

Mr. Ryan Schierman

Program Manager of Natural Resources

Wyoming Department of Environmental Quality

Land Quality Division

122 W. 25th Street 

Herschler 4W

Cheyenne, WY 82002

Dear Mr. Schierman:

We have reviewed Wyoming’s enabling legislation contained in Wyoming House Bill HB0027, 

received by our office on August 14, 2015. The legislation was reviewed by comparison to the 

criteria in Section 4.1.1 of the Office of Nuclear Material Safety and Safeguards (NMSS) 

procedure SA-700 and Handbook, “Processing an Agreement” 

(https://scp.nrc.gov/procedures/sa700.pdf). We discussed our review of the legislation with you 

on September 24, 2015. 

We appreciate the opportunity to perform an early review of your legislation and offer the 

following 27 comments:

1. The Wyoming legislation does not directly establish a radioactive materials program or 

define its structure. Please see SA-700, Section 4.1.1.1, “Information Needed,”

paragraph (a).

2. Although the Wyoming legislation does authorize the program to issue licenses, the 

Wyoming legislation does not clearly authorize the program to:

- recognize the licenses of other jurisdictions; or

- make it unlawful to acquire, possess, store, use, transfer, or dispose of 

materials without a valid license, or to violate the conditions of a license; or

- recognize licenses transferred from the U.S. Nuclear Regulatory Comission 

(NRC) under the Agreement as State licenses.

Please see SA-700 Handbook, Section 4.1.1.1, “Information Needed,” paragraph (b)(2), 

(3), (4), and (5).

3. Although the Wyoming legislation does authorize the program to adopt regulations, the 

Wyoming legislation does not specify the procedures and requirements for adoption of 

regulations, including public participation. Please see SA-700 Handbook, Section 

4.1.1.1, “Information Needed,” paragraph (c)(1).

4. The Wyoming legislation does not expressly authorize the program to require 

compliance with regulatory requirements by both licensees and unlicensed individuals. 
R. Schierman -2-

Please see SA-700 Handbook, Section 4.1.1.1, “Information needed,”paragraph (e) for 

information regarding this matter.

5. The Wyoming legislation does not expressly authorize the program to impose sanctions 

for violations of the regulations, orders, or license conditions. Please see SA-700 

Handbook, Section 4.1.1.1, “Information needed,” paragraph (f) for information regarding 

this matter.

6. The Wyoming legislation does not establish conflict of interest and ethics regulations or 

procedures applicable to those portions of the State radiation control program covered 

by the Agreement. Please see SA-700 Handbook, Section 4.1.1.1, “Information 

needed,”paragraph (g) for information regarding this matter.

7. Although the Wyoming legislation does not apply to nuclear reactors, the Wyoming 

legislation does not explicitly exclude other materials or activities reserved to the NRC 

under Section 274c of the Atomic Energy Act of 1954, as amended, and Title 10 of the 

Code of Federal Regulations Part 150. Please see SA-700 Handbook, Section 4.1.1.2, 

“Evaluation Criteria,” paragraph (b) for information regarding this matter.

8. The Wyoming legislation does not provide for recognition of licenses transferred from the

NRC to the State under the Agreement, and the Wyoming legislation does not authorize 

the reciprocal recognition of specific licenses issued by the NRC or other Agreement 

States. Please see SA-700 Handbook, Section 4.1.1.2, “Evaluation Criteria,” paragraph 

(c) for information regarding this matter.

9. The Wyoming legislation does not contain a general authorization to conduct inspections 

of licensee operations to ensure compliance with regulatory requirements. The 

Wyoming legislation also does not authorize inspections of unlicensed facilities to 

assess the risk resulting from accidents or environmental releases of materials. Please 

see SA-700 Handbook, Section 4.1.1.2, “Evaluation Criteria,” paragraph (g) for 

information regarding this matter.

10. The Wyoming legislation does not provide for imposition of civil penalties, and the 

Wyoming legislation does not provide general authority to take prompt enforcement 

action and does not authorize a variety of legal sanctions, including suspension of 

licenses and impoundment of materials. In cases of imminent threat to public health and 

safety, the law should authorize immediate suspension without prior hearing. Please 

see SA-700 Handbook, Section 4.1.1.2, “Evaluation Criteria,” paragraph (h) for 

information regarding this matter.

11. The Wyoming legislation does not provide for the imposition of civil penalties, and the 

Wyoming legislation does not:

- authorize suspension or revocation of a license for repeated or continued 

noncompliance;

- authorize the program to seek injunctive relief; or

- authorize the program to refer licensees for criminal prosecution.
R. Schierman -3-

Please see SA-700 Handbook, Section 4.1.1.2, “Evaluation Criteria,” paragraph (i) for 

information regarding this matter.

12. The Wyoming legislation does not require the program, before issuing an 11e.(2) 

byproduct material license, to do the following: 

- give notice of the proposed licensing action and accept written comments 

during a public comment period; 

- prepare a written analysis of the impact on the environment of the licensed 

activity; 

- hold a public hearing with a transcript and cross examination; 

- prepare a written decision based on evidence presented during the public 

comment period. The decision must be subject to judicial review; and 

- ban major construction before the completion of the written environmental 

analysis. 

Please see SA-700 Handbook, Section 4.1.1.4, “Additional Evaluation Criteria for 

11e.(2) Byproduct Material Agreements,” paragraph (c) for information regarding this 

matter.

13. The Wyoming legislation does not require the Agreement materials program to provide 

an opportunity for public participation through written comments or public hearings 

during rulemaking. The legislation must also make rules subject to judicial review; 

Please see SA-700 Handbook, Section 4.1.1.4, “Additional Evaluation Criteria for 11e.(2) 

Byproduct Material Agreements,” paragraph (d) for information regarding this matter.

14. The Wyoming legislation does not require the Agreement materials program, before 

terminating an 11e.(2) byproduct material license, to do the following: 

- transfer funds collected for decommissioning and long-term surveillance and 

maintenance to the United States. The legislation must require this transfer 

when custody of the disposal site transfers to the United States. Funds 

transferred must include all funds collected from a licensee or its surety. The 

only exceptions are funds collected for decommissioning if it is completed; 

- choose whether or not to take title to the disposal site and byproduct material; 

and 

- obtain a determination from the Commission that all applicable standards are 

satisfied. 

Please see SA-700 Handbook, Section 4.1.1.4, “Additional Evaluation Criteria for 11e.(2) 

Byproduct Material Agreements,” paragraph (e) for information regarding this matter.

15. The Wyoming legislation must consider the authorities reserved to the NRC under the 

Uranium Mill Tailings Radiation Control Act (UMTRCA) (see 10 CFR 150.15(a)), 

including the authority to: 

- establish minimum standards governing reclamation, long-term surveillance 

or maintenance, and ownership of the 11e.(2) byproduct material; 
R. Schierman -4-

- determine, before the termination of a license, that the licensee has complied 

with decontamination, decommissioning and reclamation standards, and 

ownership requirements for sites at which 11e.(2) byproduct material is 

present; 

- require, before termination of a license for 11e.(2) byproduct material or for 

any activity that results in the production of such material, that the title to the 

11e.(2) byproduct material and the disposal site are transferred to the Federal 

Government (or the State at the option of the State, provided the State 

exercises the option before termination of the license); 

- require monitoring, maintenance, and emergency measures after the license 

is terminated as may be necessary to protect the public health and safety for 

those materials and property for which the State has assumed custody; 

- permit use of the surface or subsurface estate, or both, of the disposal site 

land transferred to the United States or the State; and 

- exempt land ownership transfer requirements of Section 83(b)(1)(A) of the 

Atomic Energy Act of 1954, as amended (AEA). 

Please see SA-700 Handbook, Section 4.1.1.4, “Additional Evaluation Criteria for 11e.(2) 

Byproduct Material Agreements” for information regarding this matter.

16. On page 1 line 17, it states, “authorizing the Department to implement and administer 

the program.” The Enrolled Act No. 61 in Wyoming that restricts inspection activities 

creates an incompatible obstacle to assuming regulatory responsibility over the NRC 

responsibility for source and byproduct material. See, 

ENROLLED ACT NO. 61, SENATE

SIXTY-THIRD LEGISLATURE OF THE STATE OF WYOMING

2015 GENERAL SESSION

Trespassing to unlawfully collect resource data and unlawful collection of resource data.

17. On page 2 line 40, it states, “Authorization to negotiate transfer of certain nuclear 

regulatory functions to the state.” “Assumption” of certain nuclear regulatory functions 

“by” the State is more accurate phrasing.

18. On page 3 line 51, it states, “The Department is authorized to issue licenses as the 

means of authorizing licensees to possess and use source material from milling and 

byproduct materials.” Possession and use must be clarified and defined. The State of 

Wyoming cannot authorize a utilization facility under its Agreement State program.

19. On page 4 line 68, the first paragraph contains the phrase, “consistent with the Wyoming 

Administrative Procedure Act.” The state will need to ensure that the Wyoming

Administrative Procedures Act is consistent with AEA 274o procedures. If it is not 

consistent, then this legislation will need to authorize the Wyoming Department of 

Environmental Quality (the Department) to create rules consistent with 274o. 

20. On page 4 line 80, it states “if the exemption(s) provide adequate protection of public 

health and safety.” Wyoming needs to include the phrase, “and are compatible with 

NRC regulations.”
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21. On page 4 line 86, it states “To facilitate inspections, licensees and proposed licensees 

shall obtain and grant access to the Department at all reasonable times.” There should 

be an explicit (rather than implied) repeal of the sampling trespass law.

22. On page 5 line 107, it states “The Department is authorized to implement through 

rulemaking and licensing the enforcement of the requirements of the AEA (42 U.S.C. § 

2011 et seq. (2015)) under the agreement reached between the State and NRC for the 

AEA materials and activities described in W.S. 35-11-2001(a).” This could be stated 

clearer by including the phrase, “that are assumed by agreement under Section 274 of 

the AEA,” after the initial reference to the AEA in the sentence above.

23. On page 2 line 13, the phrase, “source material from recovery or milling,” is used. This 

phrase can be interpreted to mean that Wyoming will be looking to assume authority 

over all source material. If that is the intent, it should say, “source material as defined in 

AEA section 11z.” If the intent is to assume authority over the milling and recovery 

operations that handle source material, then the wording needs to be revised. (e.g. The 

extraction or concentration of uranium or thorium from any ore processed primarily for its 

source material content, and the possession and transfer of such source material in the 

recovery or milling process.)

24. On page 2 line 13, the phrase, “byproduct material generated under section 274,” is 

used. Byproduct material is not “generated” under section 274. Please revise to state 

that “byproduct material included under section 274.”

25. On page 3 line 9, the phrases, “source material from recovery or milling”, and “byproduct 

material generated,” are used. See comments 23 and 24.

26. On page 4 line 17, it states, “The director shall grant an exemption from a license 

requirement, including an exemption from the requirement to obtain a license, if the 

exemption provides adequate protection of public health and safety.” This language is 

too broad and could lead to incompatible exemptions. The exemption authority should 

be no broader than the NRC exemption criteria – particularly for exemptions that are 

non-discretionary.

27. On page 5 line 5, it states, “Licensees, permitees, and applicants for a license or permit 

shall obtain and grant the department access to inspect their mining operations, source 

material recovery or milling operations and the byproduct material generated at such 

times and frequencies as determined necessary by the department to protect public 

health and safety.” This language implies that a positive determination is necessary 

from the Department. It could be interpreted to limit the Department’s ability to conduct 

routine or unannounced inspections. This phrase needs to be rephrased to state, 

“Licensees, permitees, and applicants for a license or permit shall obtain and grant the 

Department access to inspect their mining operations, source material recovery or 

milling operations and the byproduct material generated at such times and frequencies 

as conducted by the Department to protect public health and safety.” 
R. Schierman -6-

We recommend that you address the 27 comments above. If the comments can be addressed 

through other statutes, please provide this information in your draft request for an Agreement. If 

you would like us to review this information prior to the submittal of your draft request, please let 

us know. In addition, to assist the State in responding to these comments, the 1983 Council of 

State Governments generic model of a Radiation Control Act in Suggested State Legislation, 

Volume 42, can be found at http://www.crcpd.org/PDF/RadControl.PDF. 

The State of Wyoming may also resolve these comments through interpretation of State law. 

The NRC will accept interpretations provided by the State Attorney General, or other attorneys 

designated as a legal advisor to the radioactive materials program. 

If you have any questions regarding the comments, please contact Michelle Beardsley at 610-

337-6942 (michelle.beardsley@nrc.gov), or Stephen Poy at 301-415-7135 

(stephen.poy@nrc.gov).

Sincerely, 

/RA Pamela Henderson for/

Josephine M. Piccone, Director

Division of Material Safety, State, Tribal 

 and Rulemaking Programs

Office of Nuclear Material Safety 

 and Safeguards
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We recommend that you address the 27 comments above. If the comments can be addressed 

through other statutes, please provide this information in your draft request for an Agreement. If 

you would like us to review this information prior to the submittal of your draft request, please let 

us know. In addition, to assist the State in responding to these comments, the 1983 Council of 

State Governments generic model of a Radiation Control Act in Suggested State Legislation, 

Volume 42, can be found at http://www.crcpd.org/PDF/RadControl.PDF. 

The State of Wyoming may also resolve these comments through interpretation of State law. 

The NRC will accept interpretations provided by the State Attorney General, or other attorneys 

designated as a legal advisor to the radioactive materials program. 

If you have any questions regarding the comments, please contact Michelle Beardsley at 610-

337-6942 (michelle.beardsley@nrc.gov), or Stephen Poy at 301-415-7135 

(stephen.poy@nrc.gov).

Sincerely, 

/RA Pamela Henderson for/

Josephine M. Piccone, Director

Division of Material Safety, State, Tribal 

 and Rulemaking Programs

Office of Nuclear Material Safety 

 and Safeguards

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