State Regulation of Radioactive Materials

Abstract

W ITH minor exceptions, the genesis of interest by States in controlling radioactive materials stemmed from the enactment of Public Law 86-373 by Congress in 1959. This added section 274 to the Atomic Energy Act, providing for transfer from the U.S. Atomic Energy Commission to States of regulatory responsibility and authority over byproduct and source materials and special nuclear material in quantities less than a critical mass. The enactment provided for an historic step: the voluntary relinquishment of authority by the Federal Government to States. This enabling legislation was followed in 1960 by AEC's issuance of criteria which govern the transfer to States. For a State to qualify, its Governor must make a formal request and must certify that his State has a program which is compatible with that of AEC and is adequate to protect health and safety. In turn, the AEC must make a finding that the statements regarding compatibility and adequacy are correct. This law and these criteria have provided the basis for development by States of radioactive material control programs. By the end of 1963, six States had entered into formal agreement with the AEC for transfer of regulatory authority. For convenience of notation, they are called Agreement States, and include Arkansas, California, Kentucky, Mississippi, New Yo,rk, and Texas. A number of other States were in various stages of negotiation or planning. Some States have not reacted favorably to Public Law 86-373. Objections have been on at least the following grounds: (a) the States already have an inherent right to control radioactive materials, and to enter into an agreement with AEC constitutes an unwarranted admission to the contrary; (b) AEC retains jurisdiction over the really important matters, such as nuclear reactors and high-level waste disposal; and (c) the Federal Government wishes to have the States take an expensive program off its hands without providing any money for it. These have not proved to be convincing arguments to most States. It appears quite clear that the Federal Government ha.s occupied the field with respect to regulation of radioactive materials covered by the Atomic Energy Act, except as relinquished to States pursuant to section 274. There are good reiasons for retention of Federal control over those matters which section 274 denotes as not being transferable to States. Export, import, and ocean waste disposal have international implications and are thus constitutionally reserved to the Federal Government. Evaluation and control of nuclear reactors and critical quantities of fissionable materials require highly specialized competence which individual States cannot be expected to possess for some time. The same may be said of disposal of high-level radioactive wastes, although in our view, the argument here is less convincing. The third objection really concerns separation of powers between Federal and State governments, which is beyond the scope of this paper.