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A ' t tx OF M JOHN RAY yp o Hilo Phone: (808) 961-8265 Councilman Fax: (808) 969-3291 Waimea Phone: (808) 885-5875 ?~rE oFYH?~' Fax: (808) 885-7184 COUNTY COUNCIL County of Hawaii Hawaii County Building - 25 Aupuni Street i I Hilo, Hawaii 96720 I (rflt MEMORANDUM July 30, 1998 TO: Chairman James Y. Arakaki and Councilmembers FROM: John Ray SUBJECT: Council Action on Ordinance Proposed by Parents Against Irradiation 1 think it is advisable that the Hawaii County Council seriously examine the statutory validity of the ordinance proposed by the Parents Against Irradiation petition committee. The clarity of federal statutory authority respective to radiological safety and health, as embodied in the Atomic Energy Act of 1954; Chapter 42, U.S. Code; 10 CFR §30.4 Definitions; and an interpretation by the General Counsel, U.S. Nuclear Regulatory Commission re: AEC jurisdiction over nuclear facilities and materials under the Atomic Energy Act, strongly suggests that the supremacy of federal statutes may render the proposed ordinance invalid and unenforceable. The Atomic Energy Act of 1954 determined that the licensing and regulation of byproduct materials (radioisotopes) is the responsibility of the Atomic Energy Commission (AEC). To carry out statutory responsibility for the protection of public health and safety from radiation hazards, the AEC established requirements for the issuance of licenses and specified standards for radiation protection. In 1959, Congress enacted legislation (Section 274, Atomic Energy Act, 42 U.S. Code 2021) establishing a federal-state agreement protocol for orderly regulation of byproduct, source and special nuclear materials, while avoiding dual regulation (Section 274a). Commenting on the bill enacted as section 274, the Joint Committee on Atomic Energy stated: "It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards by regulating byproduct, source or special nuclear materials. The intent is to have the material regulated and licensed either by the Commission, or by the State and local governments, but not by both" In explaining section 274k of the Act, the Joint Committee said: "As indicated elsewhere, the Commission has exclusive authority to regulate for protection against radiation hazards until such time as the State enters into an agreement with the Commission to assume such responsibility." A General Counsel opinion published by the Nuclear Regulatory Commission [34 FR 7273, May 3, 1969] concludes that States which have not entered into a section 274 agreement with the AEC are without the authority to license and regulate, from the standpoint of radiological health and safety, byproduct, source, and special nuclear material or production and utilization facilities." UUMM No, 93 13 File Ref. 'r,Prtsented Gov,v ,L, Ref. Date G