chapter vi - university of michigan

Chapter VI

FUTURE STATE REGULATION OF ATOMIC ENERGY: A SUGGESTED STATE ACT

A. General Observations

The foregoing examination of state legislation and interstate compacts makes it abundantly clear that atomic energy industry is destined to be subjected to comprehensive health and safety regulation at state, interstate, and local governmental levels. Considerable statutory authority to regulate already exists although with varying degrees of completeness in the several states, and certainly with most unsatisfactory overlapping, indefiniteness, and multiplicity of jurisdiction. Order must be brought out of this statutory chaos.

So far as administrative regulations are concerned, the states, with the notable exceptions of California, Connecticut, Michigan, New York, Pennsylvania, and Texas, have not seen fit to adopt comprehensive codes of regulations dealing specifically with the rather unique radiation hazards. To the extent that fede~al regulations issued by the Atomic Energy Commission, the Interstate Commerce Commission, and other federal agencies provide an adequate safeguard for the general public, the cautious approach of the states toward establishing definitive regulations is commendable. This is particularly true in view of the fact that knowledge of atomic energy injuries at the present time is somewhat limited, and development of proper precautionary techniques has not as yet been possible. Hasty, ill-conceived standards may prove unduly burdensome, even to the extent of preventing or at least retarding the establishment and growth of the new industry. However, if at some time in the future serious industrial accidents take place as a result of radiation, the responsible state agencies will be placed in a most embarrassing position unless proper and adequate health and safety regulations are adopted at the state level. Therefore, it can only be concluded that the basic statutes will be amended to provide adequate administrative authority and comprehensive health and safety codes will be forthcoming in the near future, at least in those states that are likely to be participating in the early development of atomic enterprise.1

1 For a brief resume of state activities regarding radiation protection, see Atomic Industrial Forum, Inc., "State Governmental Activitie~ Relating to Radiation Protec-

1075

1076 STATE REGULATION

To the atomic energy entrepreneur the maze of statutes and prospective health and safety regulations imposed and to be imposed by numerous state and local agencies presents a most foreboding picture. If such regulations are inconsistent with each other, as may easily prove to be the case when they are adopted by different state agencies with overlapping jurisdiction, it may even prove to be impossible for an atomic industry to comply faithfully with them. Moreover, the cost of compliance with unduly prolix and unnecessarily duplicating regulations may even preclude economic utilization of atomic energy. The potentialities inherent in the atom appear to be very great indeed, and the prospective -benefits to mankind seem well worth attaining. Nevertheless it is a fact that in some of its applications at least, and especially in connection with the development of electric power through use of nuclear heat sources, the possibilities do not yet seem to be economically attainable in most portions of the United States. The new industry has a considerable distance to go before it can enter the market in the low cost power areas on a fully competitive basis. It is therefore little short of imperative that state and local regulation of atomic activities_ be reduced to the most economical possible basis consistent with proper safeguarding of employees and the general public. It is necessary that clear-cut, direct, and consistent regulatory schemes be adopted, taking full cognizance of the latest technology, and that they be no more stringent than the necessities of health and safety demand.' Otherwise, peacetime uses of atomic energy may be unreasonably handicapped.

How can inconsistencies, undue prolixity, and unnecessary duplication of effort be avoided? How can the latest and best technology be brought to bear on the state regulatory process? First of all, a comprehensive, competent, and properly integrated state administrative plan must be established by statute after careful consideration of the various- possibilities. Several principal types of state administrative organization seem to be worthy of consideration.

r. Utilization of Existing State Agencies

There are many who will argue in favor of use of existing agencies to cover the atomic field, making arrangements through cooperating committees for informal interchange of ideas, and thus seeking uniformity and avoiding overlapping jurisdiction by cooperative solution

tion," Dec. I, 1955 (mimeo.). For a compilation of all foreign, federal, and state laws and regulations concerning radiation protection, see World Health Organization, National Laws and Regulations on Radiation Protection (July 1955).

FUTURE STATE REGULATION 1077

of problems that affect two or more agencies. If this method is adopted, it will doubtless become necessary to amend state legislation to extend the powers of some or perhaps all of the agencies thus to include the new and unique problems raised by atomic enterprise that would otherwise not be covered. Pursuant to this plan of utilizing existing agencies each agency would be responsible for preparing and promulgating the necessary regulations, and each would be empowered to issue the requisite orders to compel compliance with its own jurisdictional field.

If this method of administrative control is utilized, it will be necessary for each of the several agencies, that is, the public utilities commission, the labor department, the health department, the water resources board, and perhaps others, to obtain the services of persons properly trained to deal with radiation health and safety problems. It will not be an easy matter to muster such personnel, for properly qualified candidates are in short supply; and this method will be relatively expensive from the standpoint of the state payroll. Moreover, the elimination of overlapping jurisdiction and conflicting regulations by such informal cooperative means will be only partially successful, and, therefore, although this scheme of administrative organization will preserve existing jurisdictional boundary lines and possibly for that reason would prove to be more acceptable to existing state administrative authorities, it will nevertheless prove to be relatively cumbersome and expensive from the standpoint of the state and burdensome from that of industry. It is this plan which is at present operative in New York State, and it has already resulted in two comprehensive health and safety codes--one issued by the New York Department of Health 2 and the other by the New York State Department of Labor.3

2. Utilization of an Official Coordinator

The plan involving the use of existing agencies but adding to the payroll an official "coordinator," as proposed by the New England Committee on Atomic Energy, has been discussed in detail in Chapter V. As indicated there, a number of state legislatures have enacted legislation patterned on this proposal! There is much to be said in favor of the coordinator plan as it has been evolved by the New England Committee on Atomic Energy. It preserves the existing agency authority and

2 N.Y. State Sanitary Code c. XVI, effective Sept. I, 1955. The code is set forth in Appendix A, Item 4·

3 N.Y. Industrial Code No. 38, effective Dec. IS, I9SS· The code is set forth in Appendix A, Item 3·

• See Part Ill, c. V, text at notes I4-25.


extends it wherever necessary to cover atomic activities. In addition, it makes full use of the principle of cooperation with the United States Atomic Energy Commission, which, of course, possesses the largest available amount of technical knowledge and understanding of the subject matter. There is much to be said for such cooperation. However, in view of the fact that the coordinator will have no powers of enforcement and no means of compelling agencies to adopt or refrain from adopting any particular policies or practices, his position will be far from enviable. Since his directing authority is nil, his effectiveness will be dependent upon his personal powers of persuasion, backed to whatever extent is feasible by the chief executive of the state. This is a dubious device for carrying on complex day-by-day administrative functions.

3· Utilization of a Central Agency Plan

This plan would involve the creation of a new central agency to deal with atomic energy problems .wherever they may arise within the jurisdiction of the enacting state. Such a plan has in fact been proposed by the National Committee on Radiation Protection. The report of that committee has been published as a National Bureau of Standards handbook.5 In the recommended draft of a bill contained in this report, Section 3 provides for the establishment of an independent State Radiation Control Agency in charge of a director assisted by a State Radiation Technical Advisory Board of five members.

By Section 4 of the proposed bill, the agency is given the power "to develop comprehensive policies and programs for the evaluation and determination of hazards associated with the use of radiation and for their amelioration." It is further given the power and the duty of consultation and cooperation with the other agencies of the state and those of the federal government and other state and interstate agencies. It is given authority "to adopt and promulgate such rules and regulations as may be necessary to further the purposes of the act," and it is expressly given authority to incorporate by reference the recommended standards of nationally recognized bodies in the field of radiation protection such as the National Committee on Radiation Protection and the American Standards Association. The agency is also given authority "to issue, modify, or revoke orders prohibiting or abating the discharge of radioactive material or waste into the ground, air, or waters of the state."

5 National Bureau of Standards Handbook No. 61, "Regulation of Radiation Exposure by Legislative Means," Dec. 9, 1955. The recommended legislation is set forth in Appendix B, Item 2.


It is authorized to render opinions upon plans and specifications relative to the design and shielding of radiation sources. It is empowered to make inspections of radiation sources and to report known or suspected deficiencies.

By Section 5 it is required that every person who generates or produces ionizing radiation or who produces, uses, stores, or disposes of radioactive materials must register in writing with the agency, thus giving the agency the requisite information concerning the existence and utilization of radioactive sources within the state.

By Section 6 the agency is authorized to classify and identify radioactive sources, exposures, and hazards, and to adopt standards of protection. Sections 7 and 10 provide authority for the making of inspections and giving notice of deficiencies, and Sections 8, 9, and 12 are concerned with such matters as proceedings before the agency in the case of violations, the notice that must be given, and the opportunity for a fair hearing before the entry of the order. Suitable provisions are made for review of agency decisions by courts of competent jurisdiction.

A centralized agency such as that proposed by the National Committee on Radiation Protection apparently would cut across the jurisdictional areas of numerous existing state agencies (something that the agencies are not likely to welcome), and the fact that industrial establishments throughout the state would be subject to an additional regulatory agency would create additional problems from the standpoint of industry. Furthermore, the creation of an additional agency with extensive enforcement powers, including the necessity for carrying on a system of inspections, would entail substantial expense and require sizable appropriations from the state treasury. On the other hand, with but a single agency responsible for atomic matters, a maximum of technical expertness would result, and the concentration of authority over atomic energy in such agency would minimize or eliminate the necessity of other state agencies obtaining the services of the all too rare technical experts in the atomic field. Although the National Committee plan has both advantages and disadvantages, it would seem that, everything considered, the latter outweigh the former and the likelihood of such an agency being actually established in any state is remote indeed.

4. A Proposed Specialized Rule-Making Agency Plan

A consideration of the advantages and disadvantages inherent in each of the foregoing plans for the promulgation and enforcement of atomic regulations leads to another proposal-one which will divide the neces-


sary functions into two categories, namely, rule-making in the atomic regulatory field on the one hand, and inspection and enforcement on the other, each in the hands of a separate administrative organization. The task of prescribing and promulgating rules and regulations in the field of atomic energy will involve comprehensive and detailed knowledge of a new field of technology which is changing rapidly and is only partly understood at the present time. Such a task might well be delegated to a small, specially constituted body of experts, selected because of knowledge of atomic energy and skill in working out appropriate rules and regulations to protect employees and the general public from radiation injuries. After- promulgation, such regulations could fairly readily be enforced by the existing agencies which already exercise jurisdiction over specified areas of industrial activity within the state, that is, the department of labor, with respect to the health and safety of employees, the department of public health, with respect to matters affecting the general public, the public service commission, with respect to transportation of radioactive materials and other phases of its specialized jurisdiction, the conservation commission, with respect to its areas of interest, and other state and local agencies according to their specified powers and duties.

Some such bifurcation of the functions of state administration in the atomic energy field would, like all of the other plans, have both advantages and disadvantages. On the favorable side, it can be said that the formulation of regulations would be carried on by a specialized, technically competent group, and since only one agency would be exercising the rule-making power, the inconsistencies rendered likely by a multiple rule-making plan would be eliminated. With respect to inspection and enforcement, the utilization of existing agencies, personnel, and procedures would minimize the impact upon the state payroll and would also minimize the number of inspection visits to be received each year by industry subject to inspections. The inspectors of the existing agencies would not be required to possess high technical qualifications in the atomic energy field. Certain rules of thumb and mechanically obtained measurements would suffice for most purposes and a small amount of inservice training would take care of the necessities of the situation. In short, this bifurcation plan would seem to have a considerable number of advantages, not the least of which is it does not disturb the vested interests of existing agencies, a real political fact of life.

On the other hand, uncertainties may result in the interpretation of regulations because of the fact that the agency which makes the regula-


tions is not engaged in the enforcement process. Although there are disadvantages to this plan, we believe it is the best possible approach, at least at this stage of development of atomic energy technology, to the creation of sound methods of handling the governmental problems which are destined to arise from peacetime applications of this new and unique type of energy.

a. Registration versus Licensing

A comprehensively drafted statute setting up an organization for the handling of the regulatory problems of atomic energy will include many items. Among others, it will include a statement of policy. It will certainly include definitions--definitions of radiation, radioactive material, radiation producing equipment, and other items. It will create any necessary new agency and provide for its organization and staff. It will set forth the powers and duties of the agency, including the necessary quasi-legislative and quasi-judicial authority. It will establish requisite procedures pursuant to which agency business is to be handled.

Among the most important items for consideration, however, is the question of utilizing registration or licensing as the method pursuant to which the agency will acquire the requisite information concerning the individual radioactive operations in progress throughout the state. There is, of course, a third possibility-i.e., neither registration nor licensing, but instead reliance may be placed upon the adoption of regulations, the establishment of an adequate inspection scheme, and the use of the injunction and criminal sanctions for enforcement. However, in view of the fact that this third named possibility imposes an undue burden upon state administration, it is likely that legislation in the field will resort to either registration or licensing as a means of placing in the hands of the agency the names, locations, and details of the activities of the various industries subject to regulation.

Registration merely requires the filing of a document stating the facts; licensing requires the issuing of a permit to operate. The former is the less cumbersome device; the latter is by far the more undesirable procedure, for it is necessary for the agency to establish arrangements pursuant to which applications for licenses can be reviewed, hearings held, if necessary, and decisions reached in individual cases. This is burdensome and expensive. Accordingly, both the New England Committee on Atomic Energy and the National Committee on Radiation Protection recommend registration rather than licensing, and all arguments seem to favor this conclusion.


b. Uniformity of Regulation

There is one other substantive feature of the regulatory legislation under consideration which should be mentioned. This is the very great desirability of uniformity of regulation, not only within each state but between states, at least states within a given region, and between the states and the United States. It is a fact that the United States Atomic Energy Commission possesses a more complete understanding of the necessities in the field than does any other agency in the country. Accordingly, it should provide leadership, and state agencies should accept this leadership in connection with the establishment of the standards of health and safety. The states can well afford to take advantage of federal experience and understanding, and in so doing they will not in any sense be surrendering state sovereignty. Indeed, they will be exercising such sovereignty in a wise and effective manner, always with the full recognition of the fact that any state which desires to do so, can depart from the federal standard, either by imposing more stringent requirements, or by way of relaxation, except in cases where federal control has pre-empted the field.

In order to conform with this principle of uniformity, state legislation should authorize state agencies in adopting the detailed health and safety codes to take advantage of United States Atomic Energy Commission regulations, either by incorporating by reference or adopting their substance if that be deemed preferable.

c. Public Utility Rate Regulations

The foregoing discussion has been concerned primarily with health and safety regulations to be adopted by state agencies. Different considerations apply when dealing with public utility rate and service regulation. In regard to these matters, it is clear that the state public utility commission must have plenary control over such matters as the kind and quality of service to be rendered, accounting for capital expenditu.res, operating costs, fixed charges, depreciation and obsolescence allowances, rate bases, rate schedules, and all of the rest of the apparatus of utility regulation. 6 These matters must be left in the hands of the same agency as that which is given responsibility for the regulation of the rates and services of utilities deriving their energy from conventional sources.

This study of state regulatory measures likely to affect atomic utili-

6 See remarks of John H. McCarthy, Chairman, Michigan Public Service Commission, "Atomic Energy from the Regulator's Point of View," made before the Section of Public Utility Law, American Bar Association (Aug. 23, 1955).


zation for peaceful purposes is revealing in several significant respects. It reveals the almost incomprehensible maze of existing statutes and regulations. It indicates the need of bringing order out of chaos to protect the public and at the same time facilitate the rapid development of a new and useful area of industrial enterprise. It suggests that imaginative and careful constructive work lies ahead, both in the drafting of the basic statutes to handle the subject matter and in the preparation and promulgation of the detailed codes of regulation that within the near future will be necessary for the protection of public health and safety in this new and unique field of endeavor.

B. A Suggested State Act

1. Introduction

Be~use the utilization of atomic energy is destined to become increasingly important in the American industrial complex, and radiation sources will be more exhaustively employed in medical and research installations, the states are faced with the questions of what phases of this new force warrant state governmental regulation; what should be the nature of the regulation; and what should be the governmental organizational pattern to accomplish the objectives of any desired regulatory pattern. The answers to these questions are not easily resolved because of the singularly unique manner in which atomic energy has been developed as a military, scientific, technological, industrial, and research instrument under the aegis of the federal government during World War II as a military project and since then by the Atomic Energy Commission in accordance with the provisions of the Atomic Energy Acts of 1946 and 1954.

Setting aside temporarily the purely legal problem of federal preemption, as a practical matter the states are not equipped to engage in the production of special nuclear material, military research and production, large scale reactor research, and major basic scientific research of the type now carried on by the Atomic Energy Commission. To the extent that there remains a need for these types of activities, it would appear that the federal government is the logical repository for these functions. Nor are the states likely in the immediate future to be in a position of being able to cope adequately with the problem of reactor technology and safeguards. Even if the states were able to maintain competent staffs, there ·probably would be a wasteful duplication of


effort at the individual state leveP Despite these observations, however, there remain significant areas of activity, predominantly in the field of health and safety, which are of legitimate state concern. At this juncture it appears that the states must accept certain responsibilities on their own initiative. Otherwise, the federal government will assume the activities with the resulting diminution of the role of the states in the federal system. It is not necessary here to reiterate the arguments against further centralization of regulatory functions in Washington which the states are capable of handling themselves. It is our opinion, however, that these arguments validly apply to certain phases of governmental regulation of atomic energy, and we therefore propose the enactment of comprehensive state legislation to deal with those problems created by atomic energy which the states as a practical matter can assume effectively at this time.

In Chapter V the question of federal pre-emption of health and safety regulation under the Atomic Energy Act of 1954 was examined at length. In the absence of judicial determinations, it is impossible to state precisely those areas of state health and safety regulation of atomic energy activities which will be sustained as a matter of constitutional law. Nonetheless, the expansion or clarification of the role of the states by federal amendatory legislation probably will be achieved only upon demonstration by the states of their willingness to accept their responsibilities, so definitive action by the states is called for at an early date. The powers of the Atomic Energy Commission under existing legislation appear sufficiently broad so that the states could act with AEC approval without raising the question of constitutionality. Section 161

of the Atomic Energy Act of 1954 provides in part:

In the performance of its functions the Commission is authorized to-... f. with the consent of the agency concerned, utilize or employ the services or personnel of any Government agency or any State or local government . . . to perform such function on its behalf as may appear desirable. . . . 8

The AEC has already expressed its desire to receive the cooperation of the states with the ultimate goal of turning over to the states at least a portion of its inspection responsibilities. As explained by Curtis A. Nelson, director of the AEC's Division of Inspection:

It is the Commission's plan to assist the states in every way possible in the training of personnel, particularly those used

T The interstate compact device might be a method of establishing practical, economic staffs for this function.

842 U.S.C.A. §2201(£).

FUTURE STATE REGULATION

in the inspection field dealing with health radiology. We have a number of training programs and expect to have more. Some of the states are themselves setting up training programs. Further, we plan to contact the governor of each state, or his designee, in due course of time, to seek agreement as to how the state and the Commission can productively cooperate.

Ordinarily we would hope to end up by designating a group of isotope licensees to be inspected by the appropriate state agency. This obviously could be done only after the state was equipped with the necessary technical resources.

In order for these plans to work properly and in order to avoid duplication of effort, it would be necessary for the state inspection agency to inspect against federal standards and regulations. It would be necessary that the Commission receive copies of the reports prepared by the state inspectors in the case of each inspection made.

In the event a licensee was found to be in noncompliance with his license, the. Commission would expect to take appropriate action. We do not expect to accomplish this type of cooperation overnight, but to plan ahead for a working agreement as each interested state is adequately prepared to take on the additional burden. 8

1085

In 1956 a bill was introduced in Congress whereby greater power would be given to the states in respect to regulation of health and safety. The bill proposed the addition of a new section of the Atomic Energy Act to read as follows :

The Commission is authorized and directed to cooperate with the States in the formulation of standards for regulating the health and safety aspects of the atomic energy field within those areas in which the Commission is now authorized. . . . Whenever the Commission receives from the governor of any State a certificate to the effect that the State has an agency competent to exercise jurisdiction in any portion of the health and safety aspects of the Atomic Energy Commission, then the Commission is directed, on the day six months after the date of the receipt of that certificate, to relinquish the jurisdiction of health and safety in the areas specified in the certificate.10

Undoubtedly, this bill would receive more favorable consideration if the states had already taken positive action to enter the field of health and safety regulation.

Elsewhere in this volume,11 the unusual nature of the radiation hazard

8 Address before Regional Advisory Council on Nuclear Energy, Atlanta, Ga., Feb. 2,

1957; BN A, Atomic Industry Reporter 265.5 ( 1957). to H.R 8676, 84th Cong., 2d Sess. (1956). 11 Part I, c. I.


created by atomic energy has been explained. It cannot be disputed that governmental health and safety regulation i? essential in the public interest. Traditionally, the state has been the governmental unit responsible for the health and safety of its citizens. As atomic energy becomes more commonplace than it is today, there appear to be no practical obstacles to the states' undertaking their traditional role in the field. Some may argue that only the federal government can obtain the staff essential for the task because of the shortage of trained scientific and technical personnel. In respect to reactor technology and hazard evaluation, this argument has validity today and may continue to have validity in the relatively near future. However, in respect to the uses of radioactive materials and routine reactor safety measures the states should be able to acquire as adequate staffs for inspection as can the federal government. If the activity remains largely federal, the AEC will have several field offices for the function as any effective inspection system requires almost continuous activity at the installations creating radiation hazards. These staff organizations could be as easily maintained at the state level. On balance, it appears desirable to treat the health and safety aspects of atomic energy in accordance with conventional federal-state lines of authority as rapidly as possible.

Aside from those radiation hazards over which the Atomic Energy Commission exercises health and safety jurisdiction, there are three major radiation sources over which the federal government today exercises no control. These are the radiation hazards created by the utilization of X-ray machines, particle accelerators, and radium. The health problem created by these sources are of utmost importance in the whole radiological health field, and even though the states were to relinquish all regulatory power in those areas covered by federal legislation, it is eminently desirable that the states exercise more complete controls over these radiation sources. In fact, it appears that the greatest health hazards are currently created outside the arena of activities of the Atomic Energy Commission and its licensees. The nature and extent of these hazards have only recently been fully appreciated as a result of the extensive research in problems of radiological health stimulated by the advent of atomic energy. Because only the states today can regulate these hazards, affirmative state action is necessitated. Thus, the states must equip themselves to handle those radiological health problems of sole state concern, thereby making it even more practicable for the states also to take the responsibility for the health and safety of their citizens in relation to those activities licensed and regulated by the AEC.


In addition to the radiation health and safety problem, the states also have a legitimate interest in promoting the development and utilization of atomic energy within their borders and in continually studying existing state laws and regulations with the view of recommending revisions whenever unusual problems arise adversely affecting atomic energy activities. At the present time, it does not appear that any radical innovations will be necessary for the satisfactory accommodation of atomic energy into the legal structure. However, minor but nonetheless significant changes may be required, and the states should have an established organization examining the various potential solutions and recommending the precise nature of desirable revisions of legislation or administrative rules.

As indicated previously in this chapter, any number of state governmental organizational patterns may be employed to accomplish the objectives of an atomic energy state regulatory program. On balance, after full consideration of the purpose of any state program and the role of existing state governmental agencies, we believe that the most adequate state structure would be attained by : ( I ) creating an office of Director of Atomic Energy Activities; ( 2) establishing a Radiation Safety Standards Board composed of the Director and the heads of existing state agencies concerned with atomic energy developments; and (3) establishing a Scientific Advisory Committee on Atomic Energy composed of scientifically trained personnel having considerable experience in atomic energy affairs. The Director would be a full-time state official charged with the duties of : (I) acting as adviser to the governor; ( 2) advising and consulting with the federal government, interstate agencies, other states, and state and local governmental agencies; (3) developing comprehensive state policies and programs for developing atomic energy and for evaluating and determining radiation hazards; ( 4) acting as chairman and chief administrative officer of the Radiation Safety Standards Board; ( 5) acting as a non-voting secretary of the Scientific Advisory Committee; and ( 6) submitting reports to the governor and legislature. In addition, the Director would be authorized to train personnel in matters relating to the promotion of atomic energy and the control of radiation hazards and to utilize the services of other governmental agencies to carry out his duties upon the consent of the agencies involved. The Radiation Safety Standards Board would be charged with the responsibility of adopting radiation safety rules and regulations, developing state policies and programs, making continuing studies, and submitting reports to the governor and


legislature. The Scientific Advisory Committee, to be composed of parttime personnel, would. have the duties of reviewing all proposed rules of the Safety Board and submitting written opinions concerning their desirability, and of reviewing policies and programs and providing scientific and technical guidance upon request of the Director. In adopting safety rules, the Safety Board would designate the appropriate state agencies to be charged with the enforcement of the rules.

This recommended organization has the advantages of making atomic energy the major responsibility of a state official, utilizing existing state officials concerned with atomic energy in the rule-making process, affording scientific personnel in an area where expertise is essential, and utilizing existing state agencies to enforce radiation safety rules. Moreover, the cost of establishing such an organization would be minimal since the only full-time personnel required is the Director and such enforcement personnel as may have to be added to existing staffs. The costs of the program could be recovered by the state in the form of registration fees paid by persons utilizing atomic energy and radiation sources. Because the preparation of an appropriate fee schedule requires ·careful study, the Radiation Safety Standards Board should report its recommendati~ns on the matter to the legislature as soon as possible after the establishment of the agency.

In addition to establishing a state organization charged with general promotional programs in respect to atomic energy and with establishing and enforcing radiation safety rules, state legislative enactments should include appropriate provisions for registration and reporting so that the government is kept fully informed of all hazards within the state and for enforcement of the statutory requirements and any radiation safety rules, Furthermore, existing state agencies should be charged with the responsibility of reporting to the governor and legislature recommended revisions of other laws of the state that may be affected by atomic energy developments. ·

For the purpose of accomplishing what the authors believe to be a desirable program for state action at this time and in accordance with the conclusions explained previously, the authors have drafted the following Model State Act to Promote Atomic Energy and Control Radiation Hazards.12

12 The model act was drafted in 1957 by Dean E. Blythe Stason, Prof. Samuel D. Estep, Prof. William J. Pierce, and Charles D. Olmsted (research assistant) of the University of Michigan Law School at the request of the Governor of the State of Michigan. After the Governor's Advisory Committee on Atomic Energy made certain changes, the bill was introduced in the Michigan 6gth Legislature on Feb. 13, 1958, by


2. Model State Act to Promote Atomic Energy and Control Radiation Hazards: Text and Comments

Section 1. Declaration of policy; purpose

{a) The State of desires to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the public health and safety and declares the policy of the state to be:

(I) to cooperate actively in the program established under the United States Atomic Energy Act of 1954, and through the exercise of state powers, to encourage and effect the optimum orderly utilization of atomic energy for peaceful purposes consistent with the public health and safety; and

( 2) to the extent that the presence of radiation sources within this state constitute a hazard to the public health and safety, to provide for the exercise of the authority of the state so as to establish a uniform and harmonious system of regulation consistent with the standards of the federal government and other recognized bodies in the field of radiation safety. {b) The State of recognizes that the impact of atomic energy has resulted in new conditions calling for changes in the laws of the state, and rules issued thereunder, with respect to the public health and safety, working conditions, workmen's compensation, transportation, public utilities, industry, insurance, agriculture, education, and the conservation of natural resources, and therefore declares the purpose of this act to be :

( 1) to establish and coordinate responsibility within the state government for the state's part in promotion and control of public and private atomic energy affairs ;

( 2) to provide technical atomic energy advisory services for the executive and legislative bodies of this state and its political subdivisions;

(3) to provide for promulgation of uniform radiation safety rules and for their coordination with the corresponding regulatory program of the federal government and the recommended standards of nationally recognized bodies in the field of radiation safety;

{4) to provide for the regulation of public and private use and

Reps. Phillips and Copeland, as House Bill No. 303 and referred to the Committee on Ways and Means of the HQuse of Representatives. The bill was not enacted during the 19.s8 session.


possession of radiation sources within this state in the interest of the public health and safety;

(5) to provide penalties for violations _of radiation safety rules and orders ; and

( 6) to provide for continuing studies as to the need for changes in the law of the state to encourage the optimum development of the peaceful uses of atomic energy.

Comment

This general purpose section has a twofold purpose : ( I) to establish a general legislative policy ; and ( 2) to declare the public interest in atomic energy and to indicate the desirability of regulation of radiation hazards consistently with standards employed by the federal government and other recognized bodies in the field of radiation safety.

Section 2. Definitions

As used in this Act-( a) "Advisory Committee" means the Scientific Advisory Committee on Atomic Energy established by Section 5 of this Act. (b) "Atomic energy" means all forms of energy released in the course of nuclear fission or nuclear transformation. (c) "Byproduct material" means any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material. (d) "Director" means the Director of Atomic Energy Activities appointed under the authority of Section 3 of this Act. (e) "Government agency" means any political subdivision or any officer, department, bureau, division, board, authority, agency, commission, or institution of this state or any political subdivision, except the judicial branch and the legislature. (f) "Operator" means any individual who manipulates the controls of a utilization or production facility. (g) "Person" means any individual, partnership, association, jointstock company, public or private corporation, or government agency. (h) "Production facility" means any equipment or device capable of the production of special nuclear material in such quantity as to be of significance to the common defense and security of the United States, or in such manner as to affect the health and safety of the public.


(i) "Radiation" means gamma rays and X-rays, alpha and beta particles, high speed electrons, neutrons, protons, and other nuclear particles or electromagnetic radiations capable of producing ions directly or indirectly in their passage through matter, but does not include sound or radio waves, or visible, infra-red, or ultra-violet light. (j) "Radiation safety rule" means every rule, regulation, or order of general application, including any amendment or repeal thereof, adopted and promulgated by the Safety Board pursuant to this Act. (k) "Radiation source" means any radioactive material or any instrument, equipment, machine, installation, or other device used for the production of radiation. (I) "Radioactive material" means any material, solid, liquid, or gas, that emits radiation spontaneously. (m) "Safety Board" means the Radiation Safety Standards Board established by Section 4 of this Act. (n) "Source material" means uranium, thorium, or any other material which the Safety Board declares by rule to be source material after the United States Atomic Energy Commission by regulation has made a similar determination ; or ores containing one or more of the foregoing materials, in such concentrations as the Safety Board declares by rule after the United States Atomic Energy Commission by regulation has made a similar determination. ( o) "Special nuclear material" means ( 1) plutonium and uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Safety Board declares by rule to be special nuclear material after the United States Atomic Energy Commission by regulation has made a similar determination; or ( 2) any material artificially enriched by any of the foregoing. (p) "Utilization facility" means any equipment or device, except an atomic weapon, capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security of the United States, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security of the United States.

Comment

The meanings of the terms used in this act are identical or consistent with those of the Atomic Energy Act of 1954, or, where additional terms are included, with those used by the National Committee on Radi-


ation Protection and Measurement. Consistency is particularly important because atomic energy affairs have such broad interstate and international ramifications and are subject to both federal and state control.

The definition of "atomic energy" is taken from the federal statute ; 13

however, for purposes of this act, it is used primarily in connection with the promotional program and not with health and safety regulation. It should be noted that while the meaning of this term is sufficiently broad to include both fission and fusion processes, it does not include all forms of energy which can give rise to harmful radiations.

The key terms used in connection with the health and safety program are "special nuclear material," "byproduct material," "source material," "production facility," "utilization facility," "operator," "radiation," "radiation source," and "radioactive material." The first six terms are used in the Atomic Energy Act of 1954/' and the federal definitions have been followed insofar as possible, or necessary. However, because these terms are not entirely s.atisfactory, in light of the state's broader radiation health and safety problem, they are only used in Section S(a) which prohibits activities for which an AEC license is required unless such a license is obtained. It was necessary to modify the definitions of several of these terms to avoid the possibility of an unconstitutional delegation of state power to the AEC.13

The definition of the term "radiation" follows the NCRPM definition; 16 however, certain changes were deemed advisable to avoid pos.: sible omission. The definition is sufficiently broad to cover the possible discovery of new types of injurious radiation.

Because of the fact that some sources of radiation, such as radium and other spontaneous radiation emitters, may constitute hazards to heaJth irrespective of how or whether they are being used, and whether they are stationary or in transport, it was necessary to include both a general term, "radiation source," which includes both materials and machines, and a more limited term, "radioactive material." As defined,

18 68 Stat. 923 (1954), 42 u.s.c.A. §2014(c). H 68 Stat. 922-4 (1954), 42 U.S.C.A. §2014. u Under the terms of this act, the Safety Board has the power (within prescribed

limits) to determine what is "source material" and "special nuclear material." It is believed that the imposition of a limitation on this power, which would first require a similar determination by the AEC, does not involve an unconstitutional delegation of state power to a federal agency.

16 The term "radiation" is defined by the NCRPM as "gamma rays and X-rays, alpha and beta particles, high-speed electrons, neutrons, protons, and other nuclear particles; but not sound or radio waves, or visible, infrared, or ultraviolet light." National Bureau of Standards Handbook 61 at 27.


"radiation source" provides broader coverage than would be achieved by using only those terms defined in the Atomic Energy Act of 1954.

Section 3· Director of Atomic Energy Activities: appointment, quali-ficat£ons, term, salary, duties, and powers

(a) The Governor, with the approval of the Senate, shall appoint a person having training and experience in radiation protection, or a related science, to be Director of Atomic Energy Activities. In submitting any nomination for the position of Director to the Senate, the Governor shall set forth the training, experience, and other qualifications of the nominee. The Director shall serve at the pleasure of the Governor, and he shall receive an annual salary of $ .. The Director shall not engage in any business, vocation, or employment other than that of serving as Director of Atomic Energy Activities. The Department of -------shall provide suitable office facilities for the Director. (b) The Director shall-

( 1) act as adviser to the Governor on all atomic energy matters and, as deputy to the Governor, advise, consult and cooperate with the federal government, interstate agencies, other states, government agencies of this state, and other persons and groups, public and private, in furtherance of the purposes of this Act;

( 2) with the consent of the Governor, represent the interest of the state in communications, negotiations, transactions, and other dealings with the federal government, interstate agencies, and other states concerning atomic energy and radiation safety matters;

(3) submit reports at least once each year, and at such other times as the Governor may direct, to the Governor and to the Legislature concerning developments in atomic energy and radiation safety matters and make such recommendations as should be considered by them ;

(4) serve as a member of (e.g., the commission of economic development) ;

( 5) serve as chairman and chief administrative officer of the Safety Board;

( 6) serve as secretary, without vote, of the Advisory Committee; ( 7) develop comprehensive policies and programs-

( a) for the evaluation and determination of radiation hazards to guide the Safety Board and government agencies charged with the enforcement of radiation safety rules; and

(b) for the development and utilization of atomic energy for


peaceful purposes to guide (e.g., the commission of economic development) and other government agencies ;

(8) receive and maintain the following records, reports, and written opinions, and disseminate the information therein contained to any interested and affected government agency in accordance with the rules issued by the Safety Board :

(a) registration records required by Section 8 of this Act and the rules promulgated by the Safety Board;

(b) other reports required to be submitted to the Director by Section 8 of this Act and the rules promulgated by the Safety Board; and

(c) written opinions of the Advisory Committee required to be submitted by Sections 4 and 5 of this Act; and

( 9) collect and disseminate information relating to the promotion of atomic energy for peaceful purposes and radiation protection to any government agency and to any interested person or group. (c) The Director may- ·

( 1) accept and administer loans, grants, or other funds and gifts from the federal government and from other sources, public and private, for carrying out the purposes of this Act;

( 2) encotirage, participate in, or conduct studies, investigations, research, and demonstrations deemed necessary and desirable to further the purposes of this Act;

(3) employ, train, and prescribe the powers and duties of such persons as may be deemed necessary and desirable to assist him in carrying out the provisions of this Act; and

(4) train and instruct the personnel of other government agencies in matters relating to the promotion of atomic energy and the control of radiation hazards upon the request of the government agencies concerned. (d) The Director shall utilize the services and personnel of other government agencies to assist him in carrying out his duties under this Act insofar as practicable and with the consent of the government agencies concerned.

Comment

Section 3 creates the office of Director of Atomic Energy Activities to be filled by a person who is experienced in radiation protection or a related science and who will devote his full energies and time to the duties of the office. Atomic energy is of sufficient importance to the


state to warrant making the problems of radiation protection and promotional programs the responsibility of a state official. Moreover, coordination of state activities is desirable in at least three senses : (I) coordination of the policies, regulations, and actions of the several interested state agencies and officers; ( 2) coordination of the state program with those of the federal government and other states; and (3) coordination of the promotional and regulatory phases of the state program. Essential coordination can be achieved through the creation of the office of the Director.

The duties imposed under Section 3 (b) and designed to establish his position as the state official primarily responsible for state atomic energy affairs include : (I ) acting as adviser to the governor and, as deputy to the governor to advise, consult, and cooperate with the federal government, interstate agencies, other states, and state and local governmental agencies and private groups ; ( 2) representing the state, with consent of the governor, in negotiations with agencies outside the state; (3) reporting to the governor and legislature; (4) serving as a member of the state's economic or industrial development commission; (S) serving as chairman of the Radiation Safety Standards Board; ( 6) serving as secretary of the Scientific Advisory Committee; ( 7) developing comprehensive state policy and programs for the determination and evaluation of radiation hazards and for atomic energy promotional programs; (8) receiving and maintaining records, reports, and opinions required under the act; and ( 9) collecting and disseminating information relative to atomic energy affairs.

The most important duty of the Director is that of chairman and chief administrative officer of the Radiation Safety Standards Board. As the only full-time member and the only member required to have experience in radiation protection, it is contemplated that the Director will play a major role in the development and promulgation of radiation safety rules and standards. Although enforcement of the rules is the responsibilty of other state agencies. under the act, the general powers are sufficiently broad to assure that the Director will be informed of enforcement problems so that whatever additional action is called for can be taken by either the Director or the Radiation Safety Standards Board. Knowledge of new problems will be available by reason of the fact that the Director is responsible for receiving and maintaining all records, reports, and opinions required under other sections of the act.

At this time one of the most compelling needs is the availability of a state official to represent the state in negotiations with the AEC. When-


ever problems of state-federal relations arise today, the AEC is faced with the task of negotiating with several state officers, none of whom may represent all state and local agencies. As a result, the AEC may avoid negotiations merely because of the complexities involved. With the approval of the governor under Section 3 (b) ( 2) the Director can act as representative of the state in negotiations. It should be noted, however, that the Director cannot commit the state to any particular program affecting another state agency without that agency's approval or definitive legislative or executive action.

The discretionary powers of the Director include : (I) accepting and administering loans, grants, or gifts; ( 2) participating in or conducting studies, investigation, and research; and ( 3) employing and training personnel to assist him in carrying out his duties. Since the enforce~ ment of radiation safety rules is the responsibility of other state agencies, it is. expected that the Director will be assisted by a rather small staff organization.

Section 4· Establishment of the Radiation Safety Standards Board; composition, powers, and duties

(a) There is hereby established a Radiation Safety Standards Board consisting of (I) the Director of Atomic Energy Activities, who shall be chairman, (2) (e.g., the state health commissioner), (3) (e.g., the public service commissioner), (4) (e.g., the labor commissioner), and (S) (e.g., the state police commissioner). The members shall have equal responsibility and authority. The powers and duties of the Safety Board shall be exercised only in accordance with a majority vote of the entire membership. (b) The Safety Board shall-

( I) develop comprehensive policies and programs for the evaluation, determination, and control of radiation hazards in this state;

( 2) adopt and promulgate, in accordance with Section 6 of this Act and as may be deemed necessary and advisable to protect persons and property, all radiation sa'fety rules relating to (a) radiation safety standards, (b) enforcement of radiation safety standards, (c) registration, keeping of records, and submission of reports in connection with radiation sources, and (d) dissemination of information contained in the records and reports to government agencies ;

(3) make continuing studies and submit reports, from time to time, to the Governor and to the Legislature concerning radiation dis-


aster problems and the need for changes in the laws of the state to protect persons and property ; and

( 4) make a study and submit a report to the Governor and to the L~gislature concerning the establishment of a schedule of gradual annual registration fees for radiation sources to defray the costs of the administration and enforcement of this Act, including the radiation safety rules promulgated by the Safety Board. (c) The Safety Board may-

( I) order the Director to encourage, participate in, or conduct studies, . investigations, training, research, and demonstrations relating to the control of radiation hazards, the measureme?t of radiation, the effects on health of exposure to radiation, and related problems;

( 2) render opinions, upon request, concerning such plans and specifications on the design and shielding of radiation sources as may be submitted before or after construction, for the puq~ose of determining the possible radiation hazard ; and

(3) order the Director to convene the Advisory Committee or to request written opinions from its members in connection with any matter relating to radiation safety.

Comment

Section 4 creates the Radiation Safety Standards Board which is charged primarily with the task of promulgating radiation safety rules. Aside from purely political or economic considerations, it appears desirable that the heads of other state departments or agencies having enforcement responsibilities under the act should have the power to adopt radiation rules. These representatives of other agencies will be able to assess the capabilities of their agencies and are more qualified to determine the respective jurisdictions of the state agencies concerned with the various radiation safety problems. Although these officers may not be trained specifically in radiation safety, their broader regulatory experience is invaluable. The task of training is offset by the presence of the Director of Atomic Energy Activities and the availability of the Scientific Advisory Committee for consultation and recommendations concerning the content of specific rules. Although all state agencies having an interest in atomic energy affairs are not included in the recommendations, it is believed that the membership should not exceed five in order to prevent the Board from becoming unwieldy as an administra~ tive body.

Section 4(b) imposes upon the Board the duties of: (I) developing


comprehensive policies and programs for the evaluation, determination, and control of radiation hazards; (2) promulgating rules relating to radiation safety standards, enforcement of radiation safety standards, registration, maintenance of records and reports, and dissemination of information; (3) making studies and reports to the governor and legislature concerning radiation disaster problems; and ( 4) studying the problem of registration fees and reporting thereon.

The Safety Board is authorized to direct one or more state agencies to be responsible for the enforcement of specific radiation safety rules. It is expected, of course, that unnecessary duplications will be avoided, not only in the ·interest of economy, but also to minimize the burdens imposed on the persons using radiation sources. Although the Director is charged with the responsibility of receiving and maintaining records and reports, the Safety Board is given the power to adopt regulations affecting this responsibility.

The "radiation disaster" problem, including both war disaster and major reactor mishaps, requires careful study and perhaps the enactment of new legislation or even constitutional revision. Among the possible types of action that may be necessary in the event of a radiation disaster are mobilization of the state's mili~ry and police forces, large-scale evacuation efforts, seizure and destruction of contaminated private property, and decontamination of property and persons. To date, the radiation disaster problem has not received careful deliberative efforts at either the federal or state levels, and it appears desirabie that some state agency should undertake the task of studying the problems involved and making recommendations as to feasible courses of action.

In view of the fact that many states have fiscal problems in establishing new governmental agencies, some method of financing of a state atomic energy program is essential. Since the users of radiation sources may be in a position of being able to pass the costs of a radiation safety program to the consumer of the products, it appears feasible that a major percentage of the costs to the state could be recovered through registration fees. The precise form the fee schedule should take, however, cannot be accurately ascertained until the nature of radiation sources within the state is compiled. The registration requirements under the act will provide essential information as to the potential hazard created by each radiation source and the probable scope of state supervision and inspection. On the basis of this information the Safety Board will be capable of making explicit recommendations concerning the establishment of an equitable fee schedule.


Under Section_4(c) the discretionary powers of the Safety Board are set forth. Because existing governmental agencies will enforce radiation safety rules, those agencies will require considerable assistance from qualified persons to instruct personnel in procedures and measurements. Furthermore, as new uses of radiation emerge, a qualified person should make an investigation to determine the best method of protecting the public health and safety against possible hazards. It is therefore suitable for the Director, as a qualified person in radiation safety, to undertake the$e tasks at the request of the Board which is representative of the state agencies.

Although the Board is not a body of radiological safety experts, it has the necessary means available to render opinions, upon request, concerning plans and specifications of installations employing radiation sources. Although the recommended statute of the National Committee on Radiation Protection and Measurement makes this requirement mandatory, in some instances, particularly in respect to new reactor designs, the state personnel will not be qualified to render opinions. The opinions, although purely advisory and not binding, in respect to installations where the radiation problems are well understood would, of course, be helpful to the potential user of a radiation source in that expensive alterations to conform to state standards may be avoided. Two arguments have been advanced in opposition to the creation of even a discretionary power to render opinions. First, it has been contended that during the initial phases of a state program that the state officials involved will be so burdened with other duties that it is inadvisable to assign even a discretionary power. Secondly, the question of the possible effect on litigation regarding injuries to persons and property in the event of a failure to seek an advisory opinion has been raised. On balance, it has been concluded that the discretionary power should be granted to the Board in the belief that some major assistance could be rendered users even during the earlier period of the state program and that the impact upon tort litigation will be relatively insignificant.

Section S· Establishment of the Scientific Advisory Committee on Atomic Energy; composition, qualifications, appointment, term, compensation, functions, and duties

(a) There is hereby established a Scientific Advisory Committee on Atomic Energy to consist of five persons, who each have training and experience m a science related to the development and utilization of atomic energy for peaceful purposes, and representing, as a group,


the broadest possible range of training and experience in atomic energy matters. The members of the Advisory Committee shall be appointed by the Governor for terms of five years, except that initial appointments and filling of vacancies shall be so made that the term of one appointed member expires each year. The members of the Advisory Committee, while engaged in the work of the Advisory Committee, shall be entitled to receive compensation at$ per diem and reimbursement for actual and necessary traveling and subsistence expenses. The Advisory Committee shall meet or submit written opinions, or both, at the request of the Director. (b) Within thirty days after submission of a proposed radiation safety rule by the Safety Board, as provided in Section 6 of this Act, the Advisory Committee shall submit a written opinion to the Director as to the desirability of the rule. When requested by the Director, the Advisory Committee also shall ( r) review the policies, programs, and rules developed and promulgated pur-suant to this Act; ( 2) make such recommendations a:s are deemed necessary and desirable; and ( 3) give technical advice and assistance on matters relating to the promotion and control of atomic energy in this state.

Comment

Section 5 creates the Scientific Advisory Committee on Atomic Energy, composed of five persons trained in sciences related to the development and utilization of atomic energy. The Committee is to be composed of part-time personnel paid on a per diem basis so that highly qualified persons can be attracted to accept the positions.

Section S(b) requires the Advisory Committee to submit written opinions on proposed safety rules within thirty days after their submission by the Radiation Safety Standards Board. Through this device, technologically competent review of proposed rules will be achieved. The Safety Board, however, has final authority in deciding the precise nature of radiation safety rules. Upon request by the Director, the Advisory Committee also is directed to review the state policies and programs, to make suitable recommendations, and to give technical advice and assistance on atomic energy matters.

While the act bestows final authority upon the Safety Board to promulgate relations, this subsection is designed to assure that they are necessary and adequate. In effect, the Advisory Committee is an entirely independent board of technical experts which not only advises and assists the Safety Board in establishing radiation safety standards


and issuing regulations, but also must publish its opinions on the desirability of each rule before it becomes effective. These opinions are received and kept on file by the Director, and are intended to indicate how well the regulations conform with current scientific thought.

It should be noted that the Advisory Board is not limited to giving advice and assistance on radiation safety matters. Through the Director, this body is available to give technical advice and assistance on any atomic energy or radiation matter to any agency of the state government.

Section ·6. Promulgation of radiation safety rules

(a) The Safety Board shall have the exclusive authority in this state to adopt and promulgate radiation safety rules relating to ( 1) radiation safety standards, (2) enforcement of radiation safety standards, (3) registration, keeping of records, and submission of reports in connection with radiation sources, and (4) dissemination of information contained in the records and reports to government agencies. In adopting and promulgating a radiation safety rule, the Safety Board shall designate the government agency or agencies which shall enforce the rule. In making the enforcement agency selection, the Safety Board shall give due consideration to the technical qualifications and to the enforcement powers and jurisdiction of the individual government agencies. (b) Except where the rules and standards of federal agencies or nationally recognized bodies in the field of radiation safety are deemed inadequate for this state, the Safety Board, in the interest of uniformity, shall make its radiation safety rules consistent with federal rules or, in the case of radiation hazards not regulated by federal agencies, with the recommended rules and standards of nationally recognized bodies in the field of radiation safety, such as the National Committee on Radiation Protection and Measurement or the Ameriean Standards Association. (c) In promulgating radiation safety rules the Safety Board shall comply with the provisions of (e.g., the state administrative procedure act). Not less than thirty days before final approval of a proposed radiation rule, the Safety Board shall submit the proposed rule to the Advisory Committee for its review and recommendations, except that, upon his finding of emergency need, the Governor may waive all or any part of the thirty day period.

Comment

Section 6 (a) establishes the jurisdiction of the Radiation Safety Standards Board in respect to radiation safety rules and authorizes the


Safety Board to determine enforcement agencies by rule. The Safety Board is given exclusive jurisdiction within . the state to promulgate radiation safety rules relating to radiation safety standards, to enforce radiation safety standards, registration, record maintenance, and submission of reports, and dissemination of information contained in records and reports to government agencies. In selecting the enforcement agency, the Safety Board is to consider the technical qualifications of the state agencies and the powers and jurisdiction of the state agencies. However, the section does not impose any rigid requirements in selecting enforcement agencies so that complete flexibility is possible.

Section 6(b) recognizes the desirability of uniformity in the field of radiation safety standards and therefore directs the Safety Board to adopt, whenever possible, regulations consistent with standards employed by the federal government or nationally recognized bodies in the field of radiation safety.

Section 6 (c) requires the Safety Board to comply with the provisions of the state administrative pr'ocedure act in relation to rule-making. In addition, the Safety Board is required to submit its proposed rules to the Scientific Advisory Committee for review and recommendations thirty days before final approval. The governor is given the power to waive all or part of the thirty day period. If a state does not have a state administrative procedure act, it may be desirable to add provisions relating to the rule-making process including notice of proposed rule-making to interested persons, opportunities for interested persons to submit written opinions, and hearings.

Section 7· Enforcement of radiation safety rules; powers and duties of enforcing government agencies

(a) Only those government agencies authorized by the Safety Board, pursuant to Section 6(a) of this Act, shall have the power and the duty to enforce the radiation safety rules of this state. The enforcing government agencies shall receive from the Director such information and technical advice and assistance as he is capable of providing and as is necessary for the enforcement of radiation safety rules. (b) The enforcing government agency shall have the power to enter at reasonable times upon any public or private property wherein a radiation source exists for the purpose of inspecting and investigating conditions and examining records relative to the purposes of this Act and the radiation safety rules the government agency is authorized to enforce. If such inspection and examination indicates that the radiation source does


not constitute a hazard to persons and property and is in compliance with radiation safety rules, the owner, operator, or user shall be so notified in writing by the government agency. ( c_) When, in connection with a radiation source within its enforcement jurisdiction, a government agency finds that an emergency exists requiring immediate action to protect persons and property from radiation hazards, it shall, without notice or hearing, issue an order reciting the existence of such emergency and requiring that such action be taken as it deems necessary to meet the emergency. Any person to whom such order is issued shall comply immediately. On application to the government agency, the person to whom the emergency order has been issued shall be afforded a hearing by the government agency within thirty days and in accordance with the provisions of (e.g.; the state administrative procedure act). On the basis of such hearing the government agency, in its final order, may continue such emergency order in effect, revoke it, or modify it. (d) When, in connection with a radiation source within its enforcement jurisdiction, a government agency finds that there are reasonable grounds to believe that a radiation hazard exists or that there is a continuing violation of radiation safety rules, but which does not constitute an emergency requiring immediate action to protect persons and property, it shall give written notice to the alleged violator or violators specifying the grounds of the complaint and the action to be taken to correct the alleged violation. This notice shall require that the alleged violations be corrected or that the alleged violator or violators appear before the agency at a time and place specified in the notice. The notice shall be delivered not less than thirty days before the time set for the hearing. Before any order issued under this subsection shall become final, the government agency shall afford the alleged violator or violators an opportunity for hearing, and, on the basis of evidence produced at the hearing, shall enter such final order as will best effectuate the purposes of this Act and the radiation safety rules it is authorized to enforce. Written notice of such final order shall be given to the alleged violator or violators and to such other persons as may have appeared at the hearing and made written request for notice of the order. The notice and hearing required by this subsection shall conform to the provisions of (e.g., the state administrative·procedure act). The final order of the government agency under this subsection shall become binding on all parties to the hearing within thirty days after notice of it has been sent to the parties, unless it· shall be appealed to the courts as provided in (e.g., the state administrative procedure act).


(e) In the event of a violation of an emergency order or a final order, the government agency shall immediately apply to the circuit court of the county wherein the violation occurs for an order to restrain and enjoin the persons responsible for such violation. In any action for an injunction brought pursuant to this subsection, any findings of the government agency after hearing or due notice shall be prima facie evidence of the fact or facts found therein. No bond shall be required when such injunctive relief is sought upon the application of the government agency, the attorney general, or the prosecuting attorney of any county. (f) Any person aggrieyed by a final order issued by a government agency authorized to enforce radiation safety rules is entitled to judicial review thereof in the circuit court in the county wherein the person resides or has a place of business in the state or in the circuit court for ------County, within thirty days after personal service of the final decision of the government agency or within thirty days after the mailing thereof, if notice is given by mail. Judicial review of this final decision shall be controlled by the provisions of (e.g., the state administrative procedure act). (g) Government agencies acting under the authority of this section shall give written notice to the Director of all emergency and final orders within days after issuance and of all applications for injunction within days after filing with the court. (h) Except as specifically provided in this section, nothing in this Act shall be construed as extending any government agency's jurisdiction over persons, property, or activities within this state.

Comment

Section 7' establishes the procedures and methods for the enforcement of radiation safety rules. Subsection (a) defines the jurisdiction of the enforcing governmental agencies and provides that the Director shall render technical advice and assistance to the agencies. Subsection (b) authorizes the enforcing agency to inspect and investigate facilities. In addition, the agency is to give written notice to the owner, operator, or user of a radiation source if -it finds that the radiation source does not constitute a hazard and that there is compliance with the radiation safety rules.

Section 7 (c) authorizes the enforcing agency to enter emergency orders whenever immediate action is necessary to protect persons and property. Although the emergency orders may be issued without notice and hearing, a hearing within thirty days is required upon application


of the affected person. Meanwhile, compliance with the order is required. The hearing procedure is governed by the applicable provisions of the state administrative procedure act. After the hearing, the government agency may enter a final order continuing, revoking, or modifying the emergency order.

Section 7(d) authorizes the enforcing agency to give written notice of alleged violations whenever an emergency situation does not exist. The notice is to specify the nature of the hazard or violation and· the action deemed necessary by the agency to correct the violation. A hearing is required before the entry of a final order, and after entry thereof, judicial review may be obtained in accordance with the provisions of the applicable state administrative procedure act. If the state does not have general legislation covering administrative procedures, the statute should be amended to include basic provisions relating to notice, hearing, and judicial review.

Section 7 (e) authorizes the government agency to apply to the appropriate state court for necessary injunctions whenever there is a continuing violation of an emergency or final order. The findings of the government agency are made prima facie evidence of the facts, and the government agency is relieved of any bonding requirements when seeking injunctive relief. Section 7 (f) assures that any aggrieved person may receive judicial review of agency action which. is final. Section 7(g) requires the enforcing government agency to give written notice of any emergency or final order to the Director so that he may be kept currently informed of all enforcement problems. The Director will be able to inform the Safety Board of any problems requiring revision of rules or statutes. Section 7(h) assures that the statute will not be construed as extending the jurisdiction of any government agency except as specifically provided.

Section 8. United States licenses or permits required; registration of radiation sources required; compliance with radiation safety rules required

(a) No person shall manufacture, construct, produce, use, transfer, acquire, or possess any source material, byproduct material, special nuclear material, production facility, or utilization facility, or act as an operator of a production or utilization facility within this state unless he shall have first obtained a license or permit for the activity from the United States Atomic Energy Commission, if pursuant to the Atomic Energy Act of 1954, as amended, a license or permit is required.


(b) No person shall produce radiation or produce, use, transport, store, or dispose of radioactive materials, or modify, extend, or alter such activities, except in accordance with the provisions of this Act, the radiation safety rules promulgated thereunder, or emergency or final orders issued to such person by a government agency authorized to enforce radiation safety rules. (c) Subject to exceptions provided by the rules of the Safety Board, every person who produces radiation or produces, uses, transports, stores, or disposes of radioactive materials, shall register annually in writing with the Director in accordance with rules established and on forms provided by the Safety Board. If the person modifies, extends, or alters such activities, he shall amend his registration accordingly. The Safety Board may by rule exempt from the requirements of registration persons who produce minimal quantities of radiation or who produce, use, transport, store, or dispose of minimal quantities of radioactive materials which· the Safety Board determines have no substantial effect on the public health and safety.

Comment

Section 8 requires compliance with the licensing and permit provisions of. the Atomic Energy Act of 1954, compliance with radiation safety rules and lawful orders entered in accordance with the provisions of the act, and registration of radiation sources. Section 8 (a) is similar to Section 2 of the New England Model Act, and, while perhaps not essential, the provision may serve a useful purpose in the event that constitutional difficulties prevent enforcement of existing AEC licensing practices. Section 8{b) establishes the positive requirement that each person producing radiation or producing, using,, tra.nsporti!lg,, storing, or disposing of radioactive materials comply with radiation safety rules and emergency or final orders issued in accordance with the I>rovi~ion.s of the act.

Section 8 (c) requires the same persons to register annually with the Director and to amend registrations if activities are modified. The Radiation Safety Standards Board is empowered to exempt persons from the registration requirements if the Board determines that there is no substantial public health and safety problem involved. The registration requirement assures that the Board will have knowledge of all radiation hazards. Although the AEC now informs state officials of the issuance of federal licenses, the registration requirement is essential to ascertain the natute of radiation hazards not covered by federal legis-


lation. The Safety Board is to establish rules for registration and, in respect to a single radiation source, more than one person may be required to register if the Board finds such a requirement beneficial. This may be particularly desirable whenever, for example, the owner of the radiation source has no control over the utilization of the source.

Section 9· Penalties

(a) Any person who violates any provision of Section 8 of this Act or any radiation safety rule promulgated pursuant to this Act shall, upon conviction, be subject to a fine of not more than $b----(b) Any person who willfully violates any provision of Section 8 of this Act or any radiation safety rule promulgated pursuant to this Act shall, upon conviction, be subject to a fine of not more than $~>---or imprisonment for not more than , or both. Each day on which such violation occurs shall constitute a separate violation. (c) Any person who violates any emergency or final order issued pursuant to Section 7 of this Act by a government agency authorized to enforce radiation safety rules shall, upon conviction, be subject to a fine of not more than $ , or imprisonment for not more than ---, or both. Each day on which such violation occurs shall constitute a separate violation.

Comment

Section 9 establishes criminal penalties for three types of offenses : ( 1) simple violations of radiation safety rules, (2) willful (i.e., knowing and intentional) violations of radiation safety rules, and (3) violations of emergency or final orders. As to the second and third types, each day on which a violation occurs constitutes a separate offense.

While the amount of the fines and the duration of the imprisonments is not specified, it is felt that the penalties should increase in the order in which the offenses are listed. On this matter, however, it should be pointed out that the state, in prescribing the magnitude of the penalties, would pe well advised to consider those established by the Atomic Energy Act of 1954, for the Supreme Court has indicated that state penalties in excess of those provided by federal laws concerning the same offense are a factor to be considered in deciding in favor of federal pre-emption.11 Under federal law a willful violation, or conspiracy to violate, a radiation safety regulation of the AEC may " ... be pun-

17 See the dissenting opinion in California v. Zook, 336 U.S. 725, 69 S. Ct. 841 (1!)4.8).


ished by a fine of no more than $5,000 or by imprisonment for not more than two years, or both." 18

Section 10. Conduct of studies concerning changes in laws and rules with a view to the promotion of atomic energy uses

The following state agencies are directed to initiate and to pursue continuing studies as to the need for changes in the laws and rules administered by them in order to encourage the optimum development of the peaceful uses of atomic energy in this state, and, on the basis of such studies, to make such recommendations to the Governor and to the Legislature for the revision of laws as may appear necessary and appropriate : (a) The department of economic development, particularly as to opportunities for atomic energy industries. (b) The department of public instruction, particularly as to the need and facilities for scientific instruction and training. · (c) The department of agriculture, particularly as to the uses of atomic energy in agriculture. (d) The department of insurance, particularly as to the insurance of persons and property from hazards to life and property resulting from atomic energy development. (e) The department of workmen's compensation, particularly as to the time and character of proof of claims of radiation injuries and the extent of compensation allowable therefor. (f) The public service commission, particularly as to the participation by public utilities in projt:cts and research looking to the development of production and utilization facilities of commercial and industrial use. (g) Such other government agencies as the Governor may direct and for the purposes specified by him.

Comment

With respect to a similar provision the New England Committee on Atomic Energy stated :

This section is premised on the supposition that study will disclose a need for a number of changes in existing laws and regulations to take care of new conditions created by atomic development for peaceful uses. The statutory directive will justify the use by the several departments and agencies of their personnel in making the studies thus called for, a step that some of them might otherwise be reluctant to make.19

1s 68 Stat. 958 ( 1954), 42 U.S.C.A. §2273. 19 Atomic Energy and New England 65 (1955).


Section I I. Non-applicability of this Act

(a) Nothing in this Act, or in the radiation safety rules promulgated pursuant to this Act, shall be construed to apply to installations owned or operated by the federal government or to radiation sources operated by the federal government, unless such application is specifically authorized by the federal government. (b) Nothing in this Act, or in the radiation safety rules promulgated pursuant to this Act, shall be construed to limit the kind or amount of radiation that may be intentionally applied to a person for diagnostic or therapeutic purposes by, or under the direction of, a duly licensed member of the healing professions.

Comment

Section II (a) recognizes the overriding power of the federal government in relation to its own activities and property. Radiation sources owned and operated by other than the federal government but for the federal government are not exempted, but federally owned installations operated by private contractors are exempted.

Section I I (b) prevents any restriction upon the kind or amount of radiation intentionally employed for diagnostic or therapeutic purposes by persons duly licensed under state law. However, radiation safety rules may be established for medical radiation sources in respect to shielding, the storage of radioactive isotopes, exposure to personnel, and other matters. Only the exposure to which a patient may be submitted for diagnostic or therapeutic purposes is exempted.

Section I2. E.~isting rules preserved; pending proceedings

(a) Until a superseding radiation safety rule has been promulgated by the Safety Board, all health and safety laws or rules concerning radiation shall remain in effect and shall be enforced in the same manner as if this Act had not been adopted. (b) AU proceedings pending and all rights and liabilities existing, acquired, or incurred, at the time this Act takes effect, are hereby saved, and such proceedings shall be consummated under and according to the law in force at the time such proceedings are or were commenced. This Ad shall not be construed to alter, affect, or abate any pending prosecution, or prevent prosecution hereafter instituted under such repealed section, chapters, or acts for offenses committed prior to the effective date of this Act; and ail prosecutions pending at the effective date of


this Act, and all prosecutions instituted after the effective date of this Act, for offenses committed prior to the effective date of this Act, shall be continued or instituted under and in accordance with the provisions of the law in force at the time of the commission of such offenses.

Section 13. Effective date; exception

(a) This Act shall take effect ------(b) The provisions of Section 8(c) of this Act shall not be effective until sixty days after the effective date of this Act as to persons engaged in activities requiring registration at the effective date of this Act.

chapter vi - university of michigan

Documents