[Federal Register Volume 83, Number 128 (Tuesday, July 3, 2018)]
[Notices]
[Pages 31174-31180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14174]


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NUCLEAR REGULATORY COMMISSION

[NRC-2018-0104]


State of Wyoming: NRC Staff Assessment of a Proposed Agreement 
Between the Nuclear Regulatory Commission and the State of Wyoming

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed state agreement; request for comment.

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SUMMARY: By letter dated November 14, 2017, Governor Matthew H. Mead of 
the State of Wyoming requested that the U.S. Nuclear Regulatory 
Commission (NRC or Commission) enter into an Agreement with the State 
of Wyoming as authorized by Section 274b. of the Atomic Energy Act of 
1954, as amended (AEA).
    Under the proposed Agreement, the Commission would discontinue, and 
the State of Wyoming would assume, regulatory authority over the 
management and disposal of byproduct materials as defined in Section 
11e.(2) of the AEA and a subcategory of source material associated with 
uranium or thorium milling within the State. Pursuit to Commission 
direction, the proposed Agreement would state that the NRC will retain 
regulatory authority over the American Nuclear Corporation (ANC) 
license.
    As required by Section 274e. of the AEA, the NRC is publishing the 
proposed Agreement for public comment. The NRC is also publishing the 
summary of a draft assessment by the NRC staff of the State of 
Wyoming's regulatory program. Comments are requested on the proposed 
Agreement, especially its effect on public health and safety. Comments 
are also requested on the draft staff assessment, the adequacy of the 
State of Wyoming's program, and the State's program staff, as discussed 
in this notice.
    The proposed Agreement would exempt persons who possess or use 
byproduct materials as defined in Section 11e.(2) of the AEA and a 
subcategory of source material involved in the extraction or 
concentration of uranium or thorium in source material or ores at 
uranium or thorium milling facilities in the State of Wyoming from 
portions of the Commission's regulatory authority. Radioactive 
materials not covered by the proposed Agreement will continue to be 
subject to the Commission's regulatory authority. Section 274e. of the 
AEA requires that the NRC publish these exemptions. Notice is hereby 
given that the pertinent exemptions have been previously published in 
the Federal Register and are codified in the NRC's regulations.
    The NRC is giving notice once each week for four consecutive weeks 
of the proposed Agreement. This is the second notice that has been 
published.

DATES: Submit comments by July 26, 2018. Comments received after this 
date will be considered if it is practical to do so, but the Commission 
is able to ensure consideration only for comments received before this 
date.

ADDRESSES: You may submit comments by the following method:
    <bullet> Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0104. Address 
questions about NRC dockets to Jennifer Borges; telephone: 301-287-
9127; email: <a href="/cdn-cgi/l/email-protection#307a555e5e595655421e725f42575543705e42531e575f46"><span class="__cf_email__" data-cfemail="450f202b2b2c2320376b072a37222036052b37266b222a33">[email protected]</span></a>. For technical questions, contact 
the individuals listed in the FOR FURTHER INFORMATION CONTACT section 
of this document.
    For additional direction on obtaining information and submitting 
comments,

[[Page 31175]]

see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Stephen Poy, Office of Nuclear 
Material Safety and Safeguards, telephone: 301-415-7135, email: 
<a href="/cdn-cgi/l/email-protection#44173021342c212a6a142b3d042a36276a232b32"><span class="__cf_email__" data-cfemail="7d2e09180d151813532d12043d130f1e531a120b">[email protected]</span></a>; or Paul Michalak, telephone: 301-415-5804, email: 
<a href="/cdn-cgi/l/email-protection#663607130a482b0f050e070a070d2608140548010910"><span class="__cf_email__" data-cfemail="05556470692b486c666d6469646e456b77662b626a73">[email protected]</span></a>. Both are staff of the U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2018-0104 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly-available information related to this action by any of the 
following methods:
    <bullet> Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0104.
    <bullet> NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, at 301-415-4737, or by email to <a href="/cdn-cgi/l/email-protection#0c7c687e227e697f63797e6f694c627e6f226b637a"><span class="__cf_email__" data-cfemail="9dedf9efb3eff8eef2e8effef8ddf3effeb3faf2eb">[email protected]</span></a>. 
The draft application for a Section 274 Atomic Energy Act Agreement 
from the State of Wyoming, the final Wyoming Agreement State 
application, and the Draft Assessment of the Proposed Wyoming Program 
for the Regulation of Agreement Materials documents are available in 
ADAMS under Accession Nos. ML16300A294, ML17319A921, and ML18094B074.
    <bullet> NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2018-0104 in your comment submission. 
The NRC cautions you not to include identifying or contact information 
that you do not want to be publicly disclosed in your comment 
submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into 
ADAMS. The NRC does not routinely edit comment submissions to remove 
identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Additional Information on Agreements Entered Under Section 274 of 
the AEA

    Since Section 274 of the AEA was added in 1959, the Commission has 
entered into Agreements with 37 States (Agreement States). The 37 
Agreement States currently regulate approximately 16,500 Agreement 
material licenses, while the NRC regulates approximately 2,800 
licenses. Under the proposed Agreement, 14 NRC uranium mill licenses 
will transfer to the State of Wyoming. The NRC periodically reviews the 
performance of the Agreement States to assure compliance with the 
provisions of Section 274.
    Section 274e. of the AEA 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 that requirement.

III. Proposed Agreement With the State of Wyoming

Background

    (a) Section 274b. of the AEA provides the mechanism for a State to 
assume regulatory authority from the NRC over certain radioactive 
materials and activities that involve use of these materials. The 
radioactive materials, sometimes referred to as ``Agreement 
materials,'' are byproduct materials as defined in Sections 11e.(1), 
11e.(2), 11e.(3), and 11e.(4) of the AEA; source material as defined in 
Section 11z. of the AEA; and special nuclear material as defined in 
Section 11aa. of the AEA, restricted to quantities not sufficient to 
form a critical mass.
    The radioactive materials and activities (which together are 
usually referred to as the ``categories of materials'') that the State 
of Wyoming requests authority over are the possession and use of 
byproduct materials as defined in Section 11e.(2) of the AEA and a 
subcategory of source material involved in the extraction or 
concentration of uranium or thorium in source material or ores at 
uranium or thorium milling facilities (source material associated with 
milling activities).
    (b) The proposed Agreement contains articles that
    (i) Specify the materials and activities over which authority is 
transferred;
    (ii) Specify the materials and activities over which the Commission 
will retain regulatory authority;
    (iii) Continue the authority of the Commission to safeguard special 
nuclear material, and restricted data and protect common defense and 
security;
    (iv) Commit the State of Wyoming and the NRC to exchange 
information as necessary to maintain coordinated and compatible 
programs;
    (v) Provide for the reciprocal recognition of licenses;
    (vi) Provide for the suspension or termination of the Agreement; 
and
    (vii) 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 proposed Agreement, with 
the effective date, will be published after the Agreement is approved 
by the Commission and signed by the NRC Chairman and the Governor of 
Wyoming.
    (c) The regulatory program is authorized by law under the State of 
Wyoming Statute Section 35-11-2001, which provides the Governor with 
the authority to enter into an Agreement with the Commission. The State 
of Wyoming law contains provisions for the orderly transfer of 
regulatory authority over affected licensees from the NRC to the State. 
In a letter dated November 14, 2017, Governor Mead certified that the 
State of Wyoming has a program for the control of radiation hazards 
that is adequate to protect public health and safety within the State 
of Wyoming for the materials and activities specified in the proposed 
Agreement, and that the State desires to assume regulatory 
responsibility for these materials and activities. After the effective 
date of the Agreement, licenses issued by NRC would continue in effect 
as State of Wyoming licenses until the licenses expire or are replaced 
by State-issued licenses.
    (d) The NRC draft staff assessment finds that the Wyoming 
Department of Environmental Quality, Land Quality Division, Uranium 
Recovery Program, is adequate to protect public health and safety and 
is compatible with the NRC program for the regulation of Agreement

[[Page 31176]]

materials. Pursuant to Commission direction, the proposed Agreement 
includes a provision that the State of Wyoming has until the end of the 
2019 legislative session to amend Wyoming Statute Section 35-11-2004(c) 
to be compatible with AEA Section 83b.(1)(A), or the Agreement will 
terminate without further NRC action. The proposed Agreement also 
explicitly states that, prior to the requisite amendment of Wyoming 
Statute Section 35-11-2004(c), the NRC will reject any State of Wyoming 
request to terminate a license that proposes to bifurcate the ownership 
of byproduct material and its disposal site between the State and the 
Federal government. Pursuant to Commission direction, the Agreement 
contains a provision that requires the State of Wyoming to revise 
Statute Section 35-11-2004(c) during the next legislative session to be 
compatible with AEA Section 83b.(1)(A). If the Wyoming Statute Section 
35-11-2004(c) is not amended by the end of the 2019 legislative 
session, the Agreement will terminate.

Summary of the Draft NRC Staff Assessment of the State of Wyoming's 
Program for the Regulation of Agreement Materials

    The NRC staff has examined the State of Wyoming's request for an 
Agreement with respect to the ability of the State's 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,'' (46 FR 7540; January 23, 1981, 
as amended by Policy Statements published at 46 FR 36969; July 16, 
1981, and at 48 FR 33376; July 21, 1983) (Policy Statement), and the 
Office of Nuclear Material Safety and Safeguards Procedure SA-700, 
``Processing an Agreement'' (available at https://scp.nrc.gov/procedures/sa700.pdf and https://scp.nrc.gov/procedures/sa700_hb.pdf). 
The Policy Statement has 36 criteria that serve as the basis for the 
NRC staff's assessment of the State of Wyoming's request for an 
Agreement. The following section will reference the appropriate 
criteria numbers from the Policy Statement that apply to each section.
    (a) Organization and Personnel. These areas were reviewed under 
Criteria 1, 2, 20, 24, 33, and 34 in the draft staff assessment. The 
State of Wyoming's proposed Agreement materials program for the 
regulation of radioactive materials is the Uranium Recovery Program. 
The Uranium Recovery Program will be located within the existing Land 
Quality Division of the Wyoming Department of Environmental Quality.
    The educational requirements for the Uranium Recovery Program staff 
members are specified in the State of Wyoming's personnel position 
descriptions and meet the NRC criteria with respect to formal education 
or combined education and experience requirements. All current staff 
members hold a Bachelor of Science Degree or Master's Degree in one of 
the following subject areas: Environmental science, health physics, 
nuclear engineering, geology, or ecology. All have training and work 
experience in radiation protection. Supervisory level staff have at 
least 5 years of working experience in radiation protection, with most 
having more than 10 years of experience.
    The State of Wyoming performed an analysis of the expected workload 
under the proposed Agreement. Based on the NRC staff review of the 
State of Wyoming's analysis, the State has an adequate number of staff 
to regulate radioactive materials under the terms of the proposed 
Agreement. The State of Wyoming will employ the equivalent of 7.2 full-
time professional and technical staff to support the Uranium Recovery 
Program.
    The State of Wyoming has indicated that the Uranium Recovery 
Program has an adequate number of trained and qualified staff in place. 
The State of Wyoming has developed qualification procedures for license 
reviewers and inspectors that are similar to the NRC's procedures. The 
Uranium Recovery Program staff is accompanying the NRC staff on 
inspections of NRC licensees in Wyoming. The Uranium Recovery Program 
staff is also actively supplementing their experience through direct 
meetings, discussions, and facility visits with the NRC licensees in 
the State of Wyoming and through self-study, in-house training, and 
formal training.
    Overall, the NRC staff concluded that the Uranium Recovery Program 
staff identified by the State of Wyoming to participate in the 
Agreement materials program has 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.
    (b) Legislation and Regulations. These areas were reviewed under 
Criteria 1-14, 17, 19, 21, and 23-33 in the draft staff assessment. The 
Wyoming Statutes Sections 35-11-2001(a) through (c) provide the 
authority to enter into the Agreement and establish the Wyoming 
Department of Environmental Quality as the lead agency for the State's 
Uranium Recovery Program. The Department has the requisite authority to 
promulgate regulations under Wyoming Statute Section 35-11-2002(b) for 
protection against radiation. The Wyoming Statutes Sections 35-11-2001 
through -2005 also provide the Uranium Recovery Program the authority 
to issue licenses and orders; conduct inspections; and enforce 
compliance with regulations, license conditions, and orders. The 
Wyoming Statute Section 35-11-2003(d) requires licensees to provide 
access to inspectors.
    The Wyoming Statute Section 35-11-2001(e) does not provide the 
State of Wyoming with authority over independent or commercial 
laboratories. Under the proposed Agreement, the NRC would retain 
regulatory authority over laboratory facilities that are not located at 
facilities licensed under the State of Wyoming's regulatory authority. 
The State of Wyoming would only regulate laboratory facilities located 
at uranium or thorium mills. The NRC staff verified that the State of 
Wyoming adopted the relevant NRC regulations in parts 19, 20, 40, 71, 
and 150 of title 10 of the Code of Federal Regulations (10 CFR), into 
the Wyoming Uranium Recovery Program Rules Chapters 1 through 9. 
Therefore, on the proposed effective date of the Agreement, the State 
of Wyoming will have adopted an adequate and compatible set of 
radiation protection regulations that apply to byproduct materials as 
defined in Section 11e.(2) of the AEA and source material associated 
with milling activities. The NRC staff also verified that the State of 
Wyoming will not attempt to enforce regulatory matters reserved to the 
Commission.
    (c) Storage and Disposal. These areas were reviewed under Criteria 
8, 9a, 11, 29, 30, 31, and 32 in the draft staff assessment. The State 
of Wyoming has adopted NRC compatible requirements for the handling and 
storage of radioactive material. The State of Wyoming has adopted an 
adequate and compatible set of radiation protection regulations that 
apply to byproduct material as defined in Section 11e.(2) of the AEA 
and source material associated with milling activities.
    As a result of the class of byproduct material it will be 
regulating (Section 11e.(2) of the AEA), the State of Wyoming is not 
required to have regulations compatible to 10 CFR part 61 for waste 
disposal. Rather, the State of Wyoming is required to have regulations 
that are compatible with 10 CFR part 40 for the disposal of

[[Page 31177]]

byproduct material as defined in Section 11e.(2) of the AEA and source 
material associated with milling activities. The NRC staff confirmed 
that the State of Wyoming has adopted regulations that are compatible 
with the NRC regulations in 10 CFR part 40 for the disposal of 
byproduct material and source material associated with milling 
activities, which are equivalent to the applicable standards contained 
in 10 CFR part 61.
    These regulations address the general requirements for waste 
disposal and are applicable to all licensees covered under this 
proposed Agreement.
    The NRC staff identified one portion of the Wyoming Statute that is 
potentially not compatible with NRC requirements. Section 83b.(1)(A) of 
the AEA ensures that ownership of the byproduct material itself is 
inseparable from the site on which it is disposed. Consequently, the 
State of Wyoming has the option of taking title to the material and its 
disposal site, but the Uranium Mill Tailings Radiation Control Act 
(UMTRCA) does not permit a State to bifurcate ownership of the disposed 
byproduct material and the property rights necessary to ensure its safe 
disposal. The Wyoming Statute Section 35-11-2004(c), enacted in 
anticipation of the State of Wyoming's assumption of the NRC's 
regulatory authority for uranium and thorium milling, could permit the 
bifurcation of the disposed byproduct material and its disposal site by 
the State. As discussed in Criterion 30c. of the draft staff 
assessment, this bifurcation of the land and the disposed byproduct 
material could conflict with the AEA (as amended by UMTRCA), and 
Article II.B.2.b. in the proposed Agreement.
    Based on Commission direction, the NRC staff concluded that 
Criterion 30c. is satisfied in the following manner: The Commission 
could complete the process for the final application package for the 
Agreement, including publishing the proposed Agreement for comment, by 
noting that the Commission's finding of compatibility is contingent on 
the State of Wyoming revising this provision, during the next 
legislative session, to be compatible with AEA Section 83b.(1)(A). 
Thus, an Agreement could be executed, but it would include a provision 
that the State of Wyoming has until the end of the 2019 legislative 
session to amend Wyoming Statute Section 35-11-2004(c) to be compatible 
with AEA Section 83b.(1)(A), or the Agreement will terminate without 
further NRC action. The Agreement would also explicitly state that the 
NRC will reject any State of Wyoming request to terminate a license 
that proposes to bifurcate the ownership of byproduct material and its 
disposal site between the State and the federal government. The NRC 
staff determined that there is little practical risk that the State of 
Wyoming's current statutory provisions would result in the bifurcation 
of the 11e.(2) byproduct material from the land since the NRC is 
required to review and approve any State-proposed termination of a 
uranium mill license.
    (d) Transportation of Radioactive Material. This area was reviewed 
under Criteria 10 and 35 in the draft staff assessment. The State of 
Wyoming has adopted compatible regulations to the NRC regulations in 10 
CFR part 71. 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.
    (e) Recordkeeping and Incident Reporting. These areas were reviewed 
under Criteria 1, 11, and 35 in the draft staff assessment. The State 
of Wyoming has adopted compatible regulations to the sections of the 
NRC regulations that specify requirements for licensees to keep records 
and to report incidents or accidents involving the State's regulated 
Agreement materials.
    (f) Evaluation of License Applications. This area was reviewed 
under Criteria 1, 7, 8, 9a, 13, 14, 20, 23, 25, and 29-35 in the draft 
staff assessment. The State of Wyoming has adopted compatible 
regulations to the NRC regulations that specify the requirements a 
person must meet to get a license to possess or use radioactive 
materials. The State of Wyoming has also developed a licensing 
procedure manual, along with 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. These areas were reviewed under 
Criteria 1, 16, 18, 19, 23, 35, and 36 in the draft staff assessment. 
The State of Wyoming has adopted a schedule providing for the 
inspection of licensees as frequently as, or more frequently than, the 
inspection schedule used by the NRC. The State of Wyoming's Uranium 
Recovery Program has adopted procedures for the conduct of inspections, 
reporting of inspection findings, and reporting inspection results to 
the licensees. Additionally, the State of Wyoming has also adopted 
procedures for the enforcement of regulatory requirements.
    (h) Regulatory Administration. This area was reviewed under 
Criterion 23 in the draft staff assessment. The State of Wyoming is 
bound by requirements specified in its State law for rulemaking, 
issuing licenses, and taking enforcement actions. The State of Wyoming 
has also adopted administrative procedures to assure fair and impartial 
treatment of license applicants. The State of Wyoming law prescribes 
standards of ethical conduct for State employees.
    (i) Cooperation with Other Agencies. This area was reviewed under 
Criteria 25, 26, and 27 in the draft staff assessment. The State of 
Wyoming law provides for the recognition of existing NRC and Agreement 
State licenses and the State has a process in place for the transition 
of active NRC licenses. Upon the effective date of the Agreement, all 
active uranium recovery NRC licenses issued to facilities in the State 
of Wyoming, with the exception of the ANC license, will be recognized 
as Wyoming Department of Environmental Quality licenses.
    The State of Wyoming 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 State of Wyoming regulations, in Chapter 4, Section 6(d), 
provide exemptions from the State's requirements for the NRC and the 
U.S. Department of Energy contractors or subcontractors; the exemptions 
must be authorized by law and determined not to endanger life or 
property and to otherwise be in the public interest. The proposed 
Agreement commits the State of Wyoming 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 the State's program 
will continue to be compatible with the Commission's program for the 
regulation of Agreement materials. The proposed Agreement specifies the 
desirability of reciprocal recognition of licenses, and commits the 
Commission and the State of Wyoming to use their best efforts to accord 
such reciprocity. The State of Wyoming would be able to recognize the 
licenses of other jurisdictions by order or specific license.
    There are six UMTRCA Title II sites in the State of Wyoming (ADAMS 
Accession No. ML16300A294) undergoing decommissioning. These sites are: 
(1) Anadarko Bear Creek,

[[Page 31178]]

Powder River Basin; (2) Pathfinder, Lucky Mc, Gas Hills; (3) Umetco 
Minerals Corporation, Gas Hills; (4) Western Nuclear Inc., Split Rock, 
Jeffrey City; (5) Exxon Mobile, Highlands, Converse County; and (6) 
ANC, Gas Hills.
    The State of Wyoming indicated it was opposed to assuming 
regulatory authority over the ANC site because the licensee is 
insolvent. To address the State of Wyoming's proposed exclusion of the 
ANC site from the proposed Agreement, the NRC staff provided SECY-17-
0081 ``Status and Resolution of Issues Associated with the Transfer of 
Six Decommissioning Uranium Mill Sites to the State of Wyoming'' (ADAMS 
Accession No. ML17087A355) to the Commission. In SRM-SECY-17-0081 
(ADAMS Accession No. ML17277A783), the Commission approved the NRC 
staff's recommendation for the NRC to retain regulatory authority over 
the ANC site and stated that the Commission's retention of the ANC site 
``is not a change to the Commission's current Agreement State policy, 
but is instead an exception to that policy based on case-specific 
facts.'' Article II.A.14. of the proposed Agreement specifies that the 
Commission retains regulatory authority over the ANC license.
    With regard to the five other decommissioning UMTRCA sites, the NRC 
staff has developed a draft Memorandum of Understanding (MOU) between 
the NRC and the State of Wyoming as a separate document from the 
proposed Agreement. The objective of the MOU is to delineate specific 
actions that the NRC and the State of Wyoming would take to verify 
completion of the decommissioning of these sites. The MOU has been 
drafted and the NRC staff is currently working with the State of 
Wyoming to delineate how license termination will be addressed for each 
of the five sites. An assessment of the decommissioning status of the 
five UMTRCA sites and the activities that need to be completed prior to 
license termination (ADAMS Accession No. ML17040A501) has been 
completed. Once the MOU is completed and signed by both the NRC and the 
State of Wyoming, it will be published in the Federal Register.

Staff Conclusion

    Section 274d. of the AEA provides that the Commission shall enter 
into an Agreement under Section 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.
    The NRC staff has reviewed the proposed Agreement, the 
certification of Wyoming Governor Mead, and the supporting information 
provided by the Uranium Recovery Program of the Wyoming Department of 
Environmental Quality and Wyoming's Office of the Attorney General. 
Based upon this review, the NRC staff concludes that the State of 
Wyoming Uranium Recovery Program satisfies the Section 274d. criteria 
as well as the criteria in 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.'' As 
noted above, the proposed Agreement includes a provision that the State 
of Wyoming has until the end of the 2019 legislative session to amend 
Wyoming Statute Section 35-11-2004(c) to be compatible with AEA Section 
83b.(1)(A) or the Agreement will terminate without further NRC action. 
The proposed Agreement also explicitly states that the NRC will reject 
any State of Wyoming request to terminate a license that proposes to 
bifurcate the ownership of byproduct material and its disposal site 
between the State and the Federal government. Pursuant to Commission 
direction, the NRC staff finding of compatibility is contingent on the 
State of Wyoming revising Wyoming Statute Section 35-11-2004(c) during 
the next legislative session to be compatible with AEA Section 
83b.(1)(A). The proposed State of Wyoming program to regulate Agreement 
materials, as comprised of statutes, regulations, procedures, and 
staffing is compatible with the Commission's program and is adequate to 
protect public health and safety with respect to the materials covered 
by the proposed Agreement. Therefore, the proposed Agreement meets the 
requirements of Section 274 of the AEA.

    Dated at Rockville, Maryland, this 27th day of June, 2018.

    For the Nuclear Regulatory Commission.
Andrea L. Kock,
Acting Director, Division of Materials Safety, Security, State, and 
Tribal Programs, Office of Nuclear Material Safety and Safeguards.

Appendix A

An Agreement Between the United States Nuclear Regulatory Commission 
and the State of Wyoming 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, 42 U.S.C. 
Section 2011 et seq. (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 material as defined in Section 11e.(2) of 
the Act and source material involved in the extraction or 
concentration of uranium or thorium in source material or ores at 
milling facilities; and,
    WHEREAS, The Governor of the State of Wyoming is authorized 
under Wyoming Statute Section 35-11-2001 to enter into this 
Agreement with the Commission; and,
    WHEREAS, The Governor of the State of Wyoming certified on 
November 14, 2017, that the State of Wyoming (hereinafter referred 
to as ``the State'') has a program for the control of radiation 
hazards adequate to protect public health and safety with respect to 
the 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] 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 the 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 Act;
    NOW, THEREFORE, It is hereby agreed between the Commission and 
the Governor of the State of Wyoming acting on 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

[[Page 31179]]

Agreement, the regulatory authority of the Commission in the State 
under Chapters, 7, and 8, and Section 161 of the Act with respect to 
the following materials:
    A. Byproduct material as defined in Section 11e.(2) of the Act; 
and,
    B. Source material involved in the extraction or concentration 
of uranium or thorium in source material or ores at uranium or 
thorium milling facilities (hereinafter referred to as ``source 
material associated with milling activities'').

ARTICLE II

    A. This Agreement does not provide for the discontinuance of any 
authority, and the Commission shall retain authority and 
responsibility, with respect to:
    1. Byproduct material as defined in Section 11e.(1) of the Act;
    2. Byproduct material as defined in Section 11e.(3) of the Act;
    3. Byproduct material as defined in Section 11e.(4) of the Act;
    4. Source material except for source material as defined in 
Article I.B. of this Agreement;
    5. Special nuclear material;
    6. The regulation of the land disposal of byproduct, source, or 
special nuclear material received from other persons, excluding 
11e.(2) byproduct material or source material described in Article 
I.A. and B. of this Agreement;
    7. The evaluation of radiation safety information on sealed 
sources or devices containing byproduct, source, or special nuclear 
material and the registration of the sealed sources or devices for 
distribution, as provided for in regulations or orders of the 
Commission;
    8. The regulation of the construction and operation of any 
production or utilization facility or any uranium enrichment 
facility;
    9. 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;
    10. The regulation of the disposal into the ocean or sea of 
byproduct, source, or special nuclear material waste as defined in 
the regulations or orders of the Commission;
    11. 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 to be so disposed without 
a license from the Commission;
    12. The regulation of activities not exempt from Commission 
regulation as stated in 10 CFR part 150;
    13. The regulation of laboratory facilities that are not located 
at facilities licensed under the authority relinquished under 
Article I.A. and B. of this Agreement; and,
    14. Notwithstanding this Agreement, the Commission shall retain 
regulatory authority over the American Nuclear Corporation license.
    B. Notwithstanding this Agreement, the Commission retains the 
following authorities pertaining to byproduct material as defined in 
Section 11e.(2) of the Act:
    1. Prior to the termination of a State license for such 
byproduct material, or for any activity that results in the 
production of such material, the Commission shall have made a 
determination that all applicable standards and requirements 
pertaining to such material have been met.
    2. The Commission reserves the authority to establish minimum 
standards governing reclamation, long-term surveillance or 
maintenance, and ownership of such byproduct material and of land 
used as its disposal site for such material. Such reserved authority 
includes:
    a. The authority to establish terms and conditions as the 
Commission determines necessary to assure that, prior to termination 
of any license for such byproduct material, or for any activity that 
results in the production of such material, the licensee shall 
comply with decontamination, decommissioning, and reclamation 
standards prescribed by the Commission and with ownership 
requirements for such material and its disposal site;
    b. The authority to require that prior to termination of any 
license for such byproduct material or for any activity that results 
in the production of such material, title to such byproduct material 
and its disposal site be transferred to the United States or the 
State at the option of the State (provided such option is exercised 
prior to termination of the license);
    c. The authority to permit use of the surface or subsurface 
estates, or both, of the land transferred to the United States or a 
State pursuant to paragraph 2.b. in this section in a manner 
consistent with the provisions of the Uranium Mill Tailings 
Radiation Control Act of 1978, provided that the Commission 
determines that such use would not endanger public health, safety, 
welfare, or the environment;
    d. The authority to require, in the case of a license for any 
activity that produces such byproduct material (which license was in 
effect on November 8, 1981), transfer of land and material pursuant 
to paragraph 2.b. in this section taking into consideration the 
status of such material and land and interests therein and the 
ability of the licensee to transfer title and custody thereof to the 
United States or a State;
    e. The authority to require the Secretary of the United States 
Department of Energy, other Federal agency, or State, whichever has 
custody of such byproduct material and its disposal site, to 
undertake such monitoring, maintenance, and emergency measures as 
are necessary to protect public health and safety and other actions 
as the Commission deems necessary; and,
    f. The authority to enter into arrangements as may be 
appropriate to assure Federal long-term surveillance or maintenance 
of such byproduct material and its disposal site on land held in 
trust by the United States for any Indian Tribe or land owned by an 
Indian Tribe and subject to a restriction against alienation imposed 
by the United States.
    3. The Commission retains the authority to reject any State 
request to terminate a license that proposes to bifurcate the 
ownership of 11e.(2) byproduct material and its disposal site 
between the State and the Federal government. Upon passage of a 
revised Wyoming Statute Section 35-11-2004(c) that the NRC finds 
compatible with Section 83b.(1)(A) of the Act, this paragraph 
expires and is no longer part of this Agreement.

ARTICLE III

    With the exception of those activities identified in Article II, 
A.8 through A.11, 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, A.1 through A.7, 
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 for 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 materials 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 reciprocity 
will be accorded.

[[Page 31180]]

ARTICLE VIII

    A. 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.
    1. This Agreement will terminate without further NRC action if 
the State does not amend Wyoming Statute Section 35-11-2004(c) to be 
compatible with Section 83b.(1)(A) of the Act by the end of the 2019 
Wyoming legislative session. Upon passage of a revised Wyoming 
Statute Section 35-11-2004(c) that the NRC finds compatible with 
Section 83b.(1)(A) of the Act, this paragraph expires and is no 
longer part of the Agreement.
    B. The Commission may also, pursuant to Section 274j. of the 
Act, temporarily suspend all or part of this agreement if, in the 
judgment 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

In the licensing and regulation of byproduct material as defined in 
Section 11e.(2) of the Act, or of any activity that results in 
production of such material, the State shall comply with the 
provisions of Section 274o. of the Act, if in such licensing and 
regulation, the State requires financial surety arrangements for 
reclamation or long-term surveillance and maintenance of such 
material.
    A. The total amount of funds the State collects for such 
purposes shall be transferred to the United States if custody of 
such material and its disposal site is transferred to the United 
States upon termination of the State license for such material or 
any activity that results in the production of such material. Such 
funds include, but are not limited to, sums collected for long-term 
surveillance or maintenance.
    Such funds do not, however, include monies held as surety where 
no default has occurred and the reclamation or other bonded activity 
has been performed; and,
    B. Such surety or other financial requirements must be 
sufficient to ensure compliance with those standards established by 
the Commission pertaining to bonds, sureties, and financial 
arrangements to ensure adequate reclamation and long-term management 
of such byproduct material and its disposal site.

ARTICLE X

This Agreement shall become effective on [date], and shall remain in 
effect unless and until such time as it is terminated pursuant to 
Article VIII.

    Done at [location] this [date] day of [month], 2018.

    For the Nuclear Regulatory Commission.

Kristine L. Svinicki, Chairman.

    Done at [location] this [date] day of [month], 2018.

    For the State of Wyoming.

Matthew H. Mead, Governor.
[FR Doc. 2018-14174 Filed 7-2-18; 8:45 am]
 BILLING CODE 7590-01-P


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