the plant and the operating license for its actual operation.

This time lag can be anywhere from 4 to 7 years, and construction plans upon which the construction permit is based are not always sufficiently precise to insure the kind of operation that is contemplated. Also, because of the length of time involved, external as well as engineering changes could occur, and we believe the additional safeguard of obtaining a second certification at the time the operating license is obtained is

necessary.

A further safeguard has been written into this section to take care of the situation where actual physical construction of the facility itself has been started prior to enactment of this act. Actual physical construction means excavation or building. Property acquisition, construction of roads or similar preliminary activity would not satisfy the requirement for exemption from certification. In the case where the license or permit has already been issued, a 2-year period beginning with the date of enactment is granted and within that time the person having the permit is required to obtain the certification otherwise required. Two years seems an adequate time to bring the existing construction into conformance.

Renewals of licenses or permits which come within this section are considered to be new applications for the purposes of this act.

A wide variety of licenses and permits-construction, operating, and otherwise are issued by various Federal agencies. Many of them involve activities or operations potentially affecting water quality. The purpose of subsection 11(b) is to provide reasonable assurance that no license or permit will be issued by a Federal agency for an activity that through inadequate planning or otherwise could in fact become a source of pollution.

The language of the legislation is intended to eliminate duplicating certification requirements, and to afford a

safeguard against too broad a use of the single certification.

Mr. HOLIFIELD. Mr. Chairman, will the gentleman yield?

Mr. EDMONDSON. I yield at this time to my good friend and one of the most respected Members of the House, the chairman of the Joint Committee on Atomic Energy, the gentleman from California (Mr. HOLIFIELD).

Mr. HOLIFIELD. I thank my friend for yielding.

On page 8 of this report, the second paragraph from the bottom, starting with the words "the Atomic Energy Commission has informed the committee," there are outlined a number of individuals and facilities which are licensed by the Commission to possess and use limited quantities of nuclear materials that might, in minute quantities, be disposed of through a waste disposal system. It is said, "It is not intended that subsection 11(b) apply to these specific types of licenses or permits.”

I am a little concerned that the delineation of just those few entities might preclude others in the same category, so I will ask the chairman of the committee, Mr. FALLON, at this time a question with relation to the clarification of this part of the report.

My question is this: Am I correct in believing that the committee intended to exempt from subsection 11(b) coverage activities under AEC license not involving discharges directly into navigable waters, and not just those activities specifically identified in the report on H.R. 4148, on page 8?

Mr. FALLON. I say to my distinguished colleague that he is correct. The language on page 8 of the committee report concerning the inapplicability of subsection 11 (b) to certain AEC materials licenses was intended to be illustrative, not selective or exhaustive. Where the discharge from the licensed activity will be in minute amounts and will not be disposed of directly into navigable waters, the license for any such activity is not subject to the subsection's require

ments.

Mr. HOLIFIELD. I thank the gentleman very much for that clarification. I want to say, I think this is a good [p. 9030]

bill, and I am supporting it. I am very much interested in control of water pollution, and I appreciate particularly the handling of the problem as a result of the oil spillage in the Santa Barbara channel off the coast of California.

There are one or two other little points in the bill I may want to discuss tomorrow, during the amending period. Otherwise, I think it is a very good bill and I intend to support it.

I thank the gentleman for yielding. Mr. EDMONDSON. I thank the gentleman from California.

May I say, on behalf of the entire Committee on Public Works, we deeply appreciate the manner in which the gentleman from California, as the chairman of one of the major joint committees of the Congress, has brought to the committee's attention in detail questions which that committee which he heads has raised concerning this legislation.

I think that the presentation that was made to our committee on this subject by the gentleman from California (Mr. HOLIFIELD) has been most helpful to an understanding of the problems of the Atomic Energy Commission by our committee. I am hopeful that it will be possible to work out tomorrow, when we get to the stage of considering amendments under the 5-minute rule to this bill, language that will be acceptable to the gentleman and his committee in connection with sections 11(a) and 11(b), which I understand created most of the concern in his committee.

Mr. HOLIFIELD. I thank the gentleman for his interest and mention to the House the fact that the gentleman from Oklahoma is now the latest member of the Joint Committee on Atomic Energy and rapidly becoming one of the valuable members of that committee. I do appreciate his assistance as well as the

assistance of the staff of the Committee on Public Works as well as the chairman, the gentleman from Maryland.

Mr. EDMONDSON. I thank the gentleman very much.

I might add that we have had made available to us an excellent summary legal analysis on the Federal-State jurisdiction with regard to regulating atomic energy. At the appropriate time, when we go back into the House, I intend to ask permission to have this document made a part of the RECORD. This is a very fine piece of work and something that is useful to all of the membership both as a part of the permanent RECORD and also for study for tomorrow in advance of the consideration of amendments in which the gentleman from California has expressed interest.

The material referred to follows: SUMMARY LEGAL ANALYSIS ON FEDERAL AND STATE JURISDICTION TO REGULATE ATOMIC ENERGY

In examining the Federal-State relationships respecting the regulation of atomic energy, it is important to note the history of the various legislative enactments concerning atomic energy. Under the Atomic Energy Act of 1946, the Nation's first such legisla

Footnotes at end of article.

tion, atomic energy was enveloped in an almost air-tight Government monopoly. The possession, use, transfer, export, import, etc., of source, byproduct and fişşionable materials were subject to pervasive Atomic Energy Commission regulatory controls. Moreover, except in certain enumerated and very limited circumstances, facilities for the production of fissionable material (e.g., nuclear reactors) could not be owned by anyone (including agencies and departments of the Federal Government) other than the AEC." and under no circumstances could there be ownership of fissionable materials by anyone other than the AEC.' The Act wrought modifications of the patent system unprecedented in American history-certain inventions and discoveries pertaining to atomic energy were removed entirely from the regular patent system," and certain others, while patentable, were subject to compulsory licensing if found by the Commission to be affected with the public interest and such licensing was "necessary to effectuate the policies and purposes of this Act."

Certain of these rigid controls were relaxed at the time of the passage of the superseding

Atomic Energy Act of 1954, but even so, it can be said that, with respect to the Commission's assigned areas of responsibility, few other statutes confer upon an executive agency the broad powers with which the AEC is endowed by the Act's terms. The patent provisions of the 1954 Act, while somewhat less far-reaching than those which existed under the 1946 Act, represent marked departures from the normal patent system in terms of the controls which they vest in the AEC over atomic energy inventions and discoveries. The earlier Act's virtual prohibition against private ownership of "utilization facilities" (e.g., nuclear power reactors) was removed with passage of the 1954 Act; however, it was not until a Congressional enactment as recent as 1964 " that private ownership of the fuels for such facilities (ie., special nuclear material) "" became permissible. Moreover, authority for the AEC to impose a comprehensive and detailed regulatory control scheme upon the possession, use, transfer, export, import, etc. of source, by-product and special nuclear material continues to reside with the Commission under the Act. Absolutely no mention was made by Congress in the 1954 Act of a role for the states in the regulation of these materials, and except for one limited provision relevant to radiological considerations, no notice was taken of a role for the states in the regulation of nuclear power reactors.

not

Atomic Energy Act. For that primary purpose, Congress added Section 274 to the Act in 1959. Under that section the Commission may relinquish to states, on a state-by-state basis, certain of its authority to regulate the use of reactor-produced isotopes, the source materials uranium and thorium, and small quantities " of special nuclear materials. (These materials collectively are referred to as agreement materials.) In order to relinquish any such authority the Commission must find that the state's regulatory program is adequate to protect the public health and safety and is compatible with the AEC's regulatory program. The Act specifically reserves certain areas to the Commission, such as regulation of the construction and operation of nuclear reactors (including the discharge of radioactive effluents from the facility site 15), the export and import of

agreement materials, and the ocean disposal of radioactive wastes. To date nineteen states have entered into agreements with the AEC to assume the regulatory responsibilities transferable under Section 274.16

If any shadow of a doubt existed prior to 1959 that Congress intended to preempt the regulation of atomic activities insofar as radiation protection is concerned, the abovementioned amendment should have dispelled that doubt. According to the House and Senate reports on the legislation which became Public Law 86-373," it was the intention of that law to clarify the responsibilities of the Federal Government, on the one hand, and state and local governments, on the other, with respect to the regulation of byproduct, source and special nuclear materials in order to protect the health and safety from radiation hazards. The report states:

"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. The bill is intended to encourage States to increase their knowledge and capacities, and to enter into agreements to assume regulatory responsibilities over such materials." is

ous

The comprehensive controls over the varinuclear materials, devices (including weapons) and facilities which the Atomic Energy Act of 1954 and its 1946 precursor lodged in the AEC; the paramount national interest in this highly sensitive and important field; the significant implications of these materials, devices, and facilities to public health and safety and the common defense and security; and Congress' utter silence in 1946 and 1954 on the role, if any, of the states in regulating the potential radiological hazards of source, byproduct and special nuclear materials-all of these quite clearly evidence a legislative intent to "occupy the field" to the exclusion of state regulation. If any further evidence were required of Congress' intention to preempt this field, the legislative history of Public Law 86-373 provides it in abundance-indeed, it fairly compels this conclusion. That Congress under the supremacy clause of the U.S. Constitution has the power to preempt an entire area of regulation with consequential suspension of state enactments touching thereon is well settled."

Such published authorities as have considered the preemption question in the context of atomic energy unanimously agree that Congress has preempted substantially the whole field to the exclusion of the states except only state regulation pursuant to an agreement as provided in section 274. For example, the Attorney General of Michigan

concluded that:

"We are convinced that under the terms of the [Atomic Energy Act of 1954, as amended] viewed in the legislative history of the 1959 amendment and [in] light of "all that bears upon its purpose and meaning." Congress intended to place the exclusive and primary responsibility for regulation of radiation hazards for the protection of the public health and safety in the peaceful use of atomic energy; i.e., source, byproduct and special nuclear material as defined in the Act in the Atomic Energy Commission and that it has preempted this field of regulation, with provision for limited relinquishment thereof, under the terms of authorized agreements." " The Attorney General of South Dakota similarly concluded that:

"It is my opinion that the Federal Government has preempted the field of protection of public health from the radiation hazards associated with atomic energy. 42 U.S.C.A. $ 2012, 2014 (c)."

The New York State Bar Association's Committee on Atomic Energy, in a study of the agreement between the State of New York [p. 9031]

and the Atomic Energy Commission, came to the same conclusion. Its report stated:

"While the United States Supreme Court has never been required to determine whether the Atomic Energy Act has pre-empted the regulation of atomic activities for radiation protection purposes, it seems clear that Congress intended so to pre-empt, if not by the provisions of the 1954 Act, then, certainly by means of the Federal-state amendment in 1959. In the latter amendment, Congress came perhaps as close as it has ever come to stating expressly that a regulatory area has been pre-empted." "

This conclusion is particularly significant because the study stemmed from a provision in the agreement between the State of New York and the Commission which indicated that there were apparent differences of opinion between the Commission and the State as to the jurisdiction of each.

While, as noted above, the U.S. Supreme Court has not specifically ruled on the question of preemption under the Atomic Energy Act, it is significant to note that the two state courts before which the question has been raised both agreed that such preemption had occurred." In addition, it is interesting to note that the National Association of Attorneys General has reviewed the law and the proposed transfer of regulatory responsibilities from the AEC to the states and has endorsed the program. On April 25, 1962, the Association adopted a resolution favoring transfer of regulatory responsibilities, the resolution reading in part: "Be it resolved

that all states are urged to accelerate the adoption of such legislation and the de

velopment of such programs as will permit the states to enter into agreements with the Atomic Energy Commission pursuant to P.L. 86-373." It is doubtful that any State's Attorney General would endorse such a program unless he was confident that the responsibility rested with the Federal Government and that it could be transferred to the states.

The American Bar Association has also endorsed a program of state assumption of atomic energy regulatory responsibilities from the Federal Government, as did the Governors' Conference in a resolution adopted on July 2, 1962. It might also be noted that such other organizations as The Council of State Governments and the Chamber of Commerce of the United States have approved the practice of a transfer of AEC regulatory responsibilities to the states, without any expression of concern that a constitutional issue exists in this connection. Of course, it is not meant by any of the foregoing to suggest that the regulation of source, byproduct or special nuclear material, or utilization or production facilities, from other than the standpoint of radiological health and safety is without the authority of the states; nor is it meant to suggest that the regulation, including regulation of the radiological effects, of radioactive materials other than those controlled by the Atomic Energy Act is beyond the reach of the states except pursuant to a Section 274 agreement.

There remains the question whether the Federal Water Pollution Control Act (FWPC Act) has the effect of vesting in the states any authority, by their participation in the setting of water quality standards, over the release of radioactive effluents, which had been preempted to the Federal Government by the 1954 Atomic Energy Act of amended. Radioactive effluents from AEC licensed facilities are discharged to waters as "interstate" by the FWPC Act."

as

The terms of the FWPC Act, of themselves, do not speak expressly to the preemption question. The FWPC Act contains no express provision relating to state authority to adopt water quality standards applicable to radioactive affluents, or to the Act's relationship to the Atomic Energy Act. The legislative history of the 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.

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.

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 agreement 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 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.

FOOTNOTES

Public Law 585, 79th Cong.. 60 Stat. 755-75 (1946), hereinafter referred to as the 1946 Act.