1965 amendments to the FWPC Act, which added the water quality standards provisions, indicates that no consideration was given to possible effects on the jurisdiction of the AEC under the Atomic Energy Act.

It appears quite clear, however, that the FWPC Act does not affect the AEC's preempted jurisdiction over radioactive effluents. The FWPC Act provides for the establishment of standards applicable to interstate waters which become effective only when approved by the Secretary of the Interior, if established by the state, or when promulgated by the Secretary in the absence of acceptable state standards. The standards thus promulgated by the Secretary are then used in the Federal enforcement proceedings authorized by the FWPC Act.

Nowhere does the FWPC Act speak in terms of a grant of authority to the states to set water quality standards. Prior to the passage of the 1965 amendments, which added water quality standard provisions to the Act, the states had power, pursuant to the Tenth Amendment to the Constitution, to set water quality standards and to enforce them as to interstate waters within their boundaries.30 In actuality, while at least three-quarters of the states had state legislation directing or permitting the establishment of water quality standards and/or stream classifications, not all these states had actually adopted standards. In the states which had adopted standards, both the content of the standards and the method of application varied.

31

While, in theory, individual states could, on the basis of such standards, abate pollution in interstate waters within their boundaries, such action was not likely to be undertaken without the cooperation of other states involved in the pollution.32 If Federal abatement action were undertaken, a choice among, or determination of, standards to be used in arriving at abatement measures had to be made. Thus, the statutory pattern of the Federal Water Quality Act of 1965, now embodied in the FWPC Act, was to provide for the establishment of water quality standards consistent with the expressed purposes of the Act, to be achieved through review and approval, or promulgation by the Secretary of the Interior, for use with respect to interstate waters. While the FWPC Act was intended to encourage the states to develop water quality standards initially, it did not grant them new authority; indeed, as noted above under the discussion of the states' reserved powers under the Tenth Amendment, except for the preempted (and limited) field of regulation of the radiological effects of atomic energy materials on interstate waters-about which the Act and its legislative history are utterly silent-no grant to the states of new standard-setting authority was necessary to achieve the expressed purpose of the Act. Far from showing an indication that the states expected to add to their jurisdiction over discharges, the hearings on the Federal Water Quality Act of 1965 exhibit a concern on the part of the states and their representatives that the legislation would preempt the field to the Federal Government through the requirements for approval of state standards and/or setting of standards by the Federal Water Pollution Control Administration for use in Federal enforcement proceedings.33

On the other hand, the Atomic Energy Act clearly reserves to the Federal Government the field of regulation of atomic energy, except as that jurisdiction has been relinquished to the states under agreements entered into pursuant to section 274. The FWPC Act, as noted before, did not grant any new authority to the states, but has provided a mechanism for approval of state standards as a basis for subsequent Federal action against polluters. Thus, the state role under that statute may be viewed as limited, at most, to establishment of standards which

30 It may be noted that the Federal Water Pollution Control Administration, in its regulation relating to procedures for adoption and promulgation of state standards (18 CFR Part 620), described them (§ 620.2(a)) as "Water quality standards adopted and promulgated by a State in accordance with applicable State law and with section 10 (c) of the Federal Act" (33 F.R. 2632).

31 See Water Pollution Control Hearings Before the Subcommittee on Air and Water Pollution, Senate Committee on Public Works, on S. 649 et al., 88th Cong., 1st Sess., pp. 119-122. S. 649 was a bill to amend the FWPC Act, which passed the Senate in the 88th Congress, and contained provisions for establishing water quality standards for interstate waters somewhat similar to those in the bill passed by the 89th Congress which became P.L. 89-234, the Water Quality Act of 1965.

32 A description of the practical difficulties in state adoption and enforcement of water quality standards is found at 111 Cong. Rec. 8287-8 (April 28, 1965).

33 The Assistant Secretary of Health. Education and Welfare, Mr. Quigley, emphasized, in response to questions from Representative Harsha of Ohio, that no federal preemption was intended, and that there was nothing in the legislation to prevent the states from raising their standards above the levels set by the Federal Government. (Water Pollution Control Hearings on Water Quality Act of 1965 before the Committee on Public Works, House of Representatives, 89th Cong., 1st Sess., February 18, 19 and 23, 1965, pp. 80-81.)

the states have authority to adopt. By reason of the preemption to the AEC of jurisdiction over regulation of byproduct, source and special nuclear materials, states have no jurisdiction to adopt standards relative to such materials, including those contained in effluents, in the absence of an agreement with the AEC. Those states which have entered into agreements are, by the terms of the agreements, obligated to use their best efforts to assure that their regulatory programs continue to be compatible with the AEC's program."

One final thought deserves brief mention. If, contrary to the view expressed above, the Federal Water Quality Act of 1965 could be construed as a grant of authority to the states, this together with the fact that such authority was granted subsequent to enactment of the Atomic Energy Act of 1954 and section 274 thereof in 1959 would in no way disturb the foregoing conclusions. It is a recognized principle of statutory construction that subsequent legislation is not presumed to effectuate an amendment of a law not under consideration, in the absence of an express amendment, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together. No such incompatibility or inconsistency would appear to exist here as to require invocation of the exception to this general rule of statutory construction.

Based on the foregoing, it seems clear that the Atomic Energy Act and the FWPC Act can and should be construed together so as not to disturb the jurisdiction of the Commission, vis-a-vis the states, under the Atomic Energy Act. This would have the effect of leaving intact the statutory scheme of section 274 which contemplated, among other things, that regulations for protection against radiation hazards should be as consistent as possible, while at the same time preserving the complementary jurisdiction of the states and the Department of the Interior in the area of water pollution.

34 It should be noted that section 274 of the Atomic Energy Act also establishes the Federal Radiation Council, and provides for its functions to include guidance for Federal agencies in the formulation of radiation standards and in the establishment and execution of programs of cooperation with states.

35 Frost v. Wenie, 157 U.S. 46 (1895); U.S. v. Burroughs, 289 U.S. 159 (1933); 1 Sutherland, Statutory Construction, pp. 365-6. Sutherland specifically discusses the question of abrogation of state law by Federal statutes and the revival of state legislation by repeal of Federal regulation (§§ 2026, 2027). The cases cited, however, all concern situations in which the Federal statute was expressly repealed or the obstacle to state action removed by express Congressional enactment.

Mr. JOHN P. BADALICH,

U.S. ATOMIC ENERGY COMMISSION,
Washington, D.C., May 8, 1969.

Executive Director, Minnesota Pollution Control Agency,
Minneapolis, Minn.

DEAR MR. BADALICH: With your letter of April 11, 1969, you enclosed a copy of a preliminary draft of a waste disposal permit, dated March 31, 1969, for the Monticello Nuclear Generating Plant. You stated that the Minnesota Pollution Control Agency is considering the issuance of this permit with possible disposition at the next meeting of the Agency scheduled for May 12, 1969. The permit contains a number of "Special Conditions Relating to Radioactive Wastes."

I understand that Mr. Tuveson and you met on April 24 with the Director of Regulations and other members of our staff, and discussed the jurisdiction question.

Since you have invited our comments, I believe it appropriate that I again call your attention to the legal situation as we see it. I understand that a copy of our General Counsel's opinion on this subject, which was published in the Federal Register of May 3, 1969 (pages 7273-7274), was given to you during your recent visit here. The conclusions of the opinion are summarized as follows: "By virtue of the Atomic Energy Act of 1954, as amended, the individual States may not, in the absence of an agreement with the AEC, regulate source, byproduct and special nuclear material from the standpoint of radiological health and safety. Even States which have entered into agreements with the AEC lack authority to regulate the facilities described in the Atomic Energy Act, including nuclear power plants and the discharge of effluents from such facilities, from the standpoint of radiological health and safety. To the extent that 1 See p. 476.

"Agreement States" have authority to regulate byproduct, source and special nuclear material, their section 274 Agreements require them to use their best efforts to assure that their regulatory programs for protection against radiation hazards will continue to be compatible with the AEC's program for the regulation of byproduct, source and special nuclear material."

Sincerely,

GLENN T. SEABORG, Chairman.

U.S. ATOMIC ENERGY COMMISSION,
Washington, D.C., June 2, 1969.

Hon. HAROLD LEVANDER,
Governor of Minnesota,
St. Paul, Minn.

DEAR GOVERNOR LEVANDER: Thank you for your letter of May 12, 1969, regarding the permit recently issued by the Minnesota Pollution Control Agency (MPCA) setting emission standards for the Monticello nuclear power plant of the Northern States Power Company (NSP) which, you state, are "considerably more restrictive than standards set by the Atomic Energy Commission."

As you recognize in your letter, an AEC operating license is necessary before NSP is legally permitted to operate the Monticello nuclear power plant. The views of the MPCA and any other interested Minnesota agency on the issuance of the operating license will be carefully considered.

In your letter you state that, because the AEC was aware before May 12 that regulations stricter than those of the AEC were likely to be imposed, and if, as we claim, the AEC has preempted the nuclear field, you "would have anticipated that AEC would have acted affirmatively" to assert its exclusive jurisdiction before the MPCA acted. The Commission did, in fact, take such affirmative action. On several occasions, both orally and in writing, we have clearly communicated our position on preemption to the MPCA. The MPCA, moreover, has received legal opinions from the Joint Committee on Atomic Energy, the AEC and an Assistant Attorney General of Minnesota-all of which point up the legal impediment to the action taken by the MPCA. Finally on this point, the AEC, before issuing a construction permit for the Monticello plant, held a public hearing in Buffalo, Minnesota, on May 25-26, 1967; and representatives of the Minnesota Department of Health, the Minnesota Conservation Department and the Minnesota Water Control Commission made appearances at the hearing and had no objections to the granting of the construction permit by the AEC.

In your letter you express the hope that we "will now support" the MPCA action. This we cannot do. Although we have not yet received a copy of the permit which was issued by the MPCA on May 12, we have reviewed an earlier version which was sent to us by the MPCA. Aside from the legal impediment, we have some substantive difficulties with the permit which are described in the enclosure to this letter. The AEC, in accordance with guidance from the Federal Radiation Council, recognizes that releases of radioactivity should be kept as low as practicable, and our experience to date with some fourteen licensed operating power reactors shows that the radioactivity released in effluents has generally been a small percentage of releases that may be permitted under AEC regulations. These limits, which are discussed in the enclosure, are based on guides developed by the Federal Radiation Council, and approved by the President for the guidance of Federal agencies. As to the future, in view of recent substantial increases in number and size of power reactors under construction or planned, we have our regulations under review to determine whether changes in some instances may be desirable. If the Commission decides to make any changes, they will be made, in accordance with our usual practice, only after opportunity is afforded all interested groups to participate in the rule making procedure. The fact that the MPCA permit contains radiological conditions that are "more restrictive" than those that would be imposed by the AEC does not mean that there is a correlative or even measurable increase in the protection afforded the public. As discussed in the enclosure to this letter, some of the restrictions in the permit, depending on how they are interpreted and administered, could be unduly burdensome without making a meaningful contribution to the public health and safety. Indeed, again depending on its interpretation and administration, the permit could be viewed as not enhancing the public health and safety at all since it might require frequent changes in operating conditions, including

shut-downs and start-ups of the reactor, which might not be justified by the circumstances.

Beyond this, the permit reflects an "ad hoc" approach to the regulation of nuclear power plants which, in our view, cannot and should not be made the basis for a fair and effective regulatory program. The approach taken by the MPCA is that each nuclear plant should be regarded as an individual case so far as radioactivity releases are concerned; but the MPCA has no definitive criteria or standards for determining on a case-by-case basis what concentrations should be permitted. We are not aware that the MPCA now has the requisite professional staff to develop and administer effectively permits such as the one issued for the Monticello nuclear power plant. Nor do we believe that it is in the public interest for Minnesota and other states to compete with one another and with the AEC for the limited number of available persons qualified in the technical disciplines related to reactor safety in order to establish regulatory programs that would duplicate the AEC program for the regulation of nuclear reactors.

For these reasons we must decline to give you the assurance which you have requested-"that the AEC not issue any operating permit for nuclear power generation in the State of Minnesota which does not respect the stringent regulations the State Pollution Control Agency requires."

Rather than attempting to duplicate the regulatory activities of the AEC, it would seem far more appropriate that Minnesota take advantage of the mechanism specifically provided by the Congress to accommodate the interests of the states in radiological health and safety. This mechanism is a cooperative agreement with the AEC under section 274 of the Atomic Energy Act whereunder certain regulatory responsibilities of the AEC may be turned over to a state. Under these agreements the states assume regulatory responsibility for control of the radiological effects of source material (thorium and uranium ores), byproduct material (radioisotopes), and small quantities of special nuclear material (enriched uranium and plutonium).

We in the AEC understand and share your interest in the health and welfare of the people of Minnesota. We hope that the State of Minnesota would see fit to join the other nineteen states that have thus far entered into cooperative agreements with the AEC for the radiological protection of their citizens.

Cordially,

[Enclosures.]

GLENN T. SEABORG,
Chairman.

COMMENTS ON PERMIT PROPOSED BY MINNESOTA POLLUTION CONTROL AGENCY

The following comments relate to recommendations to the Minnesota Pollution Control Agency (MPCA) by its consultant, Dr. Ernest Tsivoglou, and to the MPCA permit which is based on those recommendations.

RELEASES FROM POWERPLANTS RELATIVE TO AEC REGULATIONS

Releases of radioactivity from the operation of licensed nuclear power plants have generally been small percentages of limits imposed under current AEC regulations. Attached is a summary (Attachment 1) of releases in water and air from licensed reactors during 1967.

During the operation of nuclear power plants, small quantities of radioactivity are released from the plants as gaseous and liquid effluents under controlled conditions in accordance with the Atomic Energy Commission's regulation, 10 CFR Part 20, "Standards for Protection Against Radiation" (Attachment 2). The limits in Part 20 are based on guides developed by the Federal Radiation Council1 and approved by the President for the guidance of Federal Agencies. In evaluating acceptable risk from radiation exposure the Federal Radiation Coun. cil uses the best technical expertise in the field, and takes into account the recommendations of the National Council on Radiation Protection and Measurements

1 The FRC was created by Executive Order 10831, August 14, 1959, and made statutory in September 1959 by an amendment to the Atomic Energy Act of 1954. The Council advises the President on radiation matters affecting health, including guidance for all Federal Agencies in the formulation of radiation standards and in the establishment and execution of programs of cooperation with the States.

(NCRP) and the International Commission on Radiological Protection (ICRP)." The continuous human use of air and water containing concentrations of radioactivity at Part 20 limits would not result in individual exposures exceeding national or international standards.

In view of recent substantial increases in number and size of power reactors under construction or planned, we have our regulations under review to determine whether changes may be desirable. Any changes the Commission decides to make will be made only after opportunity is afforded all interested groups to participate in the rule making procedure.

TECHNICAL AND ECONOMIC FEASIBILITY OF RECOMMENDATIONS IN THE REPORT AND

MPCA PERMIT

Whether operation of the Monticello plant in accordance with the MPCA permit will be technically and economically feasible will depend in large measure on the technical competence and subjective judgment of the people administering it, and the extent to which some of the special requirements will be rigidly interpreted and applied. This is due to the many provisions in the MPCA consultant's report and in the permit which are qualified by such words as "to the full extent that is feasible and reasonable," "such measures shall include at least but not be limited to,". . . and "to the full extent possible."

Recommendations 1 through 14 in Section III of the MPCA's consultant's report deal generally with limits on releases of radioactivity from nuclear facilities within the State. Recommendations 5 and 9 provide radioactivity standards which, in many ways, do not differ substantially from those provided in AEC's regulation, 10 CFR Part 20. However, the effluent limits that would be established by the numerical guidance in the radioactivity standards in the report are upper limits. Much lower limits would be imposed on each reactor. This philosophy is reflected in Recommendations 6 and 7, pages 59-60, which provide that, notwithstanding recommended numerical limits, nuclear plants should be required to keep effluent radioactivity concentrations as far below these limits as is feasible and reasonable and that each nuclear plant should be regarded as an individual and different case so far as radioactivity releases are concerned.

In view of the fact that the consultant proposed no definitive criteria or standards for determining on a case-by-case basis what concentrations should be considered to be "as far below those limits as is feasible and reasonable" we believe that technical and economic feasibility of implementing the recommendations in Section III of the report depend unduly on the technical competence and subjective judgment of the persons administering them.

The recommendations in Sections IV and V of the report deal specifically with the Monticello reactor and have been implemented, with modifications and additions, in the MPCA permit to Northern States Power Company. The permit establishes (1) numerical limits on concentrations of individual radionuclides in air and liquid effluent, and (2) special requirements on plant operation and monitoring to assure that the individual limits are not exceeded.

As mentioned earlier, the feasibility of these requirements is dependent on how they will be interpreted and applied. Following are two examples of requirements that, if strictly enforced, would be questionable from a technical and economic standpoint and could impose a burden greatly out of proportion to the small incremental reduction of radioactivity in the effluent that would be achieved.

EFFLUENT LIMITS AND MONITORING REQUIREMENTS

MPCA's consultant emphasizes in his statement of April 8 that the recommendations of the International Commission on Radiological Protection repre

2 The NCRP was formed in 1929 under the auspices of the National Bureau of Standards of the United States. It was incorporated by Act of Congress in 1964. The membership consists of some 65 recognized experts in the field of radiation protection.

The ICRP was established in 1928 by the International Congress of Radiology to provide radiation protection guidance. It is looked to by national governments and by such international agencies as the World Health Organization, the Food and Agriculture Organization, and the International Labor Organization, all of which maintain liaison with the ICRP, for basic guidance in all areas of protection against ionizing radiation.

3 The permit containing "special conditions relating to radioactive wastes,' was approved by the MPCA at a meeting held May 12, 1969. A copy of the draft permit and a copy of the consultant's statement presented to the MPAC in the meeting of April 8-9, 1969, are attached (Attachment 3). AEC comments, herein, are addressed to the draft permit.