Applicability of State Regulations on NRC Inspectors
See the memorandum from J. Lieberman to E. L. Jordan dated October 3, 1978.
States have no authority to impose additional qualifications or restrictions on the performance of government business by federal officers or agents. NRC inspectors are not subject to state regulations that are more restrictive than NRC regulations.
A request was made for OELD guidance on the binding effect on NRC inspectors of regulations found in Industrial Bulletin No. 5 of the Commonwealth of Massachusetts, Department of Labor and Industries, Division of Industrial Safety. Specifically, OELD was requested to evaluate: (1) whether NRC inspectors are subject to state regulations that are more restrictive than NRC regulations, and (2) how to convey the NRC position on this matter to licensees and to states. These questions arose as a result of a licensee's refusal to allow an NRC inspector to enter a containment area because the inspector did not have an annual physical examination as required under Section 12.1 of the state regulations. A confrontation with the licensee did not occur as the inspector chose not to insist on entry.
It is a fundamental principle of our federal system that the states have no power to impede, burden, or control the manner in which the federal government implements the lawful enactments of Congress [MuCulloch v. Maryland, 17 U.S. 4 Wheat.) 316, 436 (1819)]. Under this concept of federal supremacy, states have no authority to impose additional qualifications or restrictions on the performance of government business by federal officers or agents [Johnson v. Maryland, 254 U.S. 51 (1920)]. The federal government and its agents are not liable for criminal or civil penalties imposed by state statutes or regulations for lawful actions pursuant to federal law [Massachusetts v. Hills, 437 F. Supp. 351 (D. Mass. 1977)].
As the inspector here was clearly authorized to conduct a lawful inspection under the Atomic Energy Act of 1954, as amended, the licensee had no basis for refusing the inspector's entry to the containment, either on the theory that the inspector did not comply with state regulations or that the licensee itself would suffer liability if it permitted the inspector to enter. Neither the NRC, its inspector, nor the licensee could be liable to the state in this situation because of the supremacy of federal law [Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956)].
Moreover, Section 1.2 states that the regulations are "intended to be in harmony with federal regulations as they apply." Given this stated purpose, it does not appear that Massachusetts intended its regulations to interfere with NRC's inspection activities under the Atomic Energy Act of 1954, as amended, and other federal statutes. The Massachusetts regulations apply to "places of employment" where operations involve the use or emission of ionizing radiation. The requirement for medical examinations applies to employers who may assign employees, agents or contractors to operations at the site. As the NRC is not an employer subject to the jurisdiction of a state and since the licensee does not "assign" inspectors to this plant, the regulations are not applicable to the NRC.
Unless similar situations present increasing problems, OELD sees no need to raise this supremacy issue with the licensees. OELD would prefer to handle similar problems, if any, on a case-by-case basis. The inspectors should be informed that supposedly conflicting state regulations do not provide the licensee an acceptable basis for refusing an NRC inspection. In the individual case, inspectors should follow normal procedures and notify headquarters if a licensee refuses inspection of its facilities. If discussions between IE:HQ and licensee management, including discussion between their respective counsels, cannot remedy the situation, consideration might be given to issuing an order to permit the inspection.
Regulatory references: None
Subject codes: 12.9, 12.18