recognize that any legislation adopted now should be only interim in nature and subject to amendment as the States increase their capabilities to regulate and license effectively in the field of atomic energy.

Accordingly, we suggest that paragraph (1) of this subsection be revised to read as follows:

"To recognize the interests and responsibilities of the States in the peaceful uses of atomic energy, including, but not limited to, radiation hazards regulated by the Commission under this Act."

We further suggest that paragraph (2) of this subsection be revised to read as follows:

"To recognize the need, and establish programs, for cooperation between the States and the Federal Government with respect to the control of radiation hazards during the present interim period during which the States are in the process of developing further their capabilities in the field of atomic energy." We further suggest that paragraph (4) of this subsection be revised to read as follows:

"To establish interim procedures and criteria for discontinuance of certain of the Commission's regulatory and licensing responsibilities, and the assumption thereof by the States, recognizing that, as the States improve their capabilities to regulate and license effectively in the field of atomic energy, the consideration of additional legislation may be desirable."

Section 272(b) (1)

We believe the substance of this paragraph to be appropriate and desirable, and, as I stated during my testimony on May 22, 1959, we believe that New York State is qualified to assume responsibility for the activities described in this paragraph and could do so within 6 months.

Section 272 (b) (2)

We believe it to be appropriate and desirable for the Commission to be precluded at this time from discontinuing its authority with respect to the activities described in this paragraph. We believe this with respect to subparagraphs (b) (2) (ii) and (b) (2) (iii) because these activities appear to be more the concern of the Federal Government than of the States. We believe this with respect to subparagraphs (b) (2) (i) and (b)(2) (iv) because the present disposition of competence as between the Federal Government and the States favors a continuation of Federal authority over these activities during the interim period to which, in our opinion, any legislation now adopted should apply. We further believe, however, that some States may develop during the interim period ahead sufficient competence of their own to enable them to exercise competent judgment in regard to initial site selection and should therefore be afforded an opportunity to exercise some authority over this activity. We therefore suggest the addition of a new paragraph (b) (3) as follows:

"Any agreement entered into pursuant to this subsection shall provide at the request of the State and subject to paragraphs (1) and (2) of subsection (d), that the Commission shall not consider or act upon any application filed with the Commission subsequent to the effective date of the agreement for a construction permit, or for a license in the event that no construction permit has previously been issued, covering any activity described in subparagraphs (b) (2) (i) and (b) (2) (iv), and shall not commence or cause to be commenced on its own behalf any such activity except for reasons of the common defense and security, until and unless the Governor of the State in which the proposed activity is to take place, or his duly authorized representative, shall have certified to the Commission that the State has no objection to the general location and features of the proposed site of the proposed activity. For the purpose of obtaining such certification, either the Commission or the applicant shall provide to the State a description of the general location and features of the proposed site, and the general size, nature, and design of the principal facility or facilities to be located on such site."

Also in regard to paragraph 272(b) (2), we understand that the Commission's authority under the sentence beginning with the word "Notwithstanding," would be in addition to any authority exercised by a State under an agreement with the Commission entered into pursuant to subsection (b). We believe this assignment of authority to reflect fairly and reasonably the States' and the Federal Government's interests and responsibilities in regard to these activities. Section 272 (c), (d), (e), and (f)

We have no substantive comment on these subsections.

Section 272 (g)

Since, in addition to the States and the Commission, other Federal agencies and private organizations have an interest and are now active in the formulation of standards for radiation protection, the committee might wish to consider revising this section to read as follows:

"The Commission is authorized and directed to cooperate with the States and other appropriate persons in the formulation of standards for protection against hazards of radiation to assure that State and Commission programs for protection against hazards of radiation will, to the extent feasible, be coordinated and compatible."

Section 272 (h)

We agree with the substance of this subsection. However, we believe that it should in addition expressly recognize that any State entering into an agreement with the Commission under subsection (b) will be placing itself at a financial disadvantage vis-a-vis other States in which the Commission will continue to perform inspection and other functions for the people of that State at the expense of the Nation. For this reason, we suggest that the following sentence be added at the end of subsection (h):

"Any such provision of assistance by the Commission shall take into account the additional expense that may be incurred by a State as a consequence of the State's entering into an agreement with the Commission pursuant to subsection (b)."

Section 272 (i)

We agree with the substance of this subsection, which we believe is desirable because it would tend to achieve uniformity as between the States and the Federal Government in regard to radiation codes and standards throughout the Nation.

Section 272 (j) and (k)

We have no substantive comment on these subsections.

Section 272 (1)

We have no substantive comment on this subsection. We believe, however, that it should be renumbered 272 (m) and a proposed new subsection (1) discussed below inserted immediately before it.

Proposed new section 272 (1)

To impart to the bill an interim character which we believe to be appropriate and proper, we suggest that a new subsection (1) be inserted as follows:

"In recognition of the increasing capabilities of the States to protect the public health and safety from radiation hazards, the Commission shall submit to the Congress by June 30, 1964, a report containing an evaluation of the relationship of this section and other relevant sections to the capabilities of the States, together with any recommendations for amendments of this section and other relevant sections that the Commission may deem to be proper."

We appreciate this opportunity to present our views to the Joint Committee on Atomic Energy, and hope that the proposed legislation to which this letter refers will be enacted during this session of Congress so that States may have an opportunity to commence assuming authority in the radiation field commensurate with their traditional responsibilities and interests in regard to the public health and safety.

Sincerely yours,

OLIVER TOWNSEND, Director.

Representative HOLIFIELD. You may submit to us, if you can, within the next couple of weeks such an analysis.

Mr. TOWNSEND. We will do that. Thank you.

Representative HOLIFIELD. Thank you, sir, for your testimony.

It is 20 minutes to 1, so I think we will have to ask Mr. William Berman and Mr. Lee Hydeman of the University of Michigan Law School, atomic energy research project, to be our first witnesses at 2 o'clock.

(Whereupon, at 12:40, Friday, May 22, 1959, the committee adjourned, to reconvene at 2 p.m., the same day.)

AFTERNOON SESSION

Representative HOLIFIELD. The committee will be in order. The first witness will be Mr. William Berman and Lee Hydeman, Michigan University Law School, atomic energy research project. Gentlemen, you may proceed.

STATEMENTS OF WILLIAM H. BERMAN AND LEE M. HYDEMAN, CODIRECTORS, ATOMIC ENERGY RESEARCH PROJECT, UNIVERSITY OF MICHIGAN LAW SCHOOL

Mr. BERMAN. Thank you, sir. My name is William Berman. The gentleman with me is Lee Hydeman who appeared before your committee this past Wednesday. Mr. Hydeman and I are codirectors of the University of Michigan Law School's atomic energy research project.

The atomic energy research project is a privately sponsored, semipermanent undertaking, established by the Michigan Law School. Its goal is to pursue continuing studies of international and domestic legal and policy problems in the atomic energy field.

As you may know, several months ago we published a study entitled "Federal and State Responsibilities for Radiation Protection: The Need for Federal Legislation." The study was incorporated in your committee's print of selected materials as background for these hearings.

In the study we covered a great deal of background material and analyzed the many considerations pertinent to the problem of Federal and State responsibility for radiation protection. We also recommended what we believe to be the appropriate contents of Federal legislation at this time.

In lieu of attempting to summarize the contents or specific recommendations of the study, we should like to direct our testimony here today to two or three principal points which we believe to be of vital importance.

First, we believe it is essential that Congress act during this session to clarify the existing confusion regarding Federal and State responsibility in the radiation protection field. As you know, the Atomic Energy Act of 1954 does not deal, in any definitive way, with the authority of the States to control or regulate radiation hazards.

The act does give the Atomic Energy Commission board direction and authority to protect the health and safety of the public from certain radiation sources, but it is by no means made legislatively clear that the AEC's authority is exclusive.

The courts have not yet had occasion to rule upon the exclusivity of the AEC's responsibility and, as is so often the case, the legal writers are in disagreement.

When the Atomic Energy Act became law in 1954, the preemption question was not a serious one. Most States had evidenced little interest in the problem of radiation protection. However, the past 3 years have witnessed a considerable growth in State interest and activity and it is no exaggeration to say that we have reached a point where confusion may soon turn into chaos.

We have heard testimony during the past several days outlining the growth and nature of State and even local activity in the radiation protection field. At least one State is now in the business of licensing reactors and two others require advance permits for the use of radiation sources.

A number of others impose controls on federally licensed activities. While there is some evidence that State controls are not diverging too considerably from the Federal standards which have been established, no assurance exists that this state of affairs will continue where an integrated and coordinated program is lacking.

Perhaps even more to the point here, the continuing lack of an integrated and coordinated program can endanger the public health and safety, and in all likelihood, will impose an unnecessary burden upon the growth of the atomic energy industry.

There is no need to emphasize the desirability of effective health and safety control from the humanitarian standpoint. It would also seem to us to be self-evident, and this will indicate our view of the concurrent jurisdiction concepts, that the most effective health and safety control will be achieved where responsibility is clearly pinpointed.

The absence of pinpointed responsibility could well result in an Alphonse and Gaston routine, between Federal and State authorities, particularly with respect to the inspection function.

Mr. TOLL. You think that is now the case, that under existing law, without clarification, it is uncertain as to whether the Federal or the State Government has inspection responsibility?

Mr. BERMAN. I think that the Federal Government presently has the clear responsibility. I think the problem with legislating concurrency is such that you throw into doubt as to who has the clear responsibility. We heard testimony yesterday that having both the States and the Federal Government responsible at the same time tends to give double protection.

I think there is some serious question about that in our mind. We think it is equally likely that you might get less than single protection because of the fumbling that may go on, one leaving it up to the other to do the job.

Representative DURHAM. You think that exists in the present proposal that is before the committee?

Mr. BERMAN. In the present proposed bill, sir?

Representative DURHAM. Yes.

Mr. BERMAN. I think it certainly is not clarified in the present bill. Mr. HYDEMAN. I think the intention, if I can say a word to that, Mr. Durham, is for exclusive Federal responsibility until the States assume responsibility but we think the bill could be made clear on this point. I think we agree with its intent.

Mr. TOLL. This would be in b(2) on page 3 of the bill, as to those activities that were not to be transferred to States, there could be a more express statement in the bill that these were exclusive Federal responsibilities. Is that your idea?

Mr. BERMAN. I think that is part of it, Mr. Toll. I think the other part is with respect to the b(1) activities. We will get to this point. Mr. TOLL. very well.

Mr. BERMAN. In addition to the humanitarian need for protecting health and safety, the public acceptance of atomic energy is vital and we cannot afford accidents which will lessen its acceptability in the

public's mind. Moreover, the growth and development of the industry is more likely to flourish if it is free from conflicting, overlapping or duplicative controls.

Finally, we as a nation should not permit the inefficient use of highly skilled manpower that is implicit in a system which permits unnecessary duplication or overlap in governmental control.

These are the principal risks which may evolve from a lack of jurisdictional clarity. State activity in the radiation protection field during this past session of State legislatures reached a new peak. State agencies dealing with atomic energy are being formed; State codes and regulations are being enacted and developed; personnel is being employed to deal with the problems presented.

In short, commitments are being made and positions are becoming fixed. Further delay in clarifying the jurisdictional question and establishing the overall pattern of responsibility will only make the ulitmate task more difficult. We know enough now about the hazards of atomic energy and the technical and administrative means of controlling those hazards to establish a pattern of Federal and State responsibility that makes sense. Failure to establish that pattern. promptly will lead to waste, burden, and perhaps even some danger. The second matter to which we should like to address ourselves is really an extension of the first. As you are undoubtedly aware, a good deal of attention has been focused in recent months upon the question of jurisdiction for radiation protection within the framework of the executive branch of the Federal Government. While Mr. Hydeman and I have tentative views on this subject, we do not propose to address ourselves to the substance of that issue here today for two reasons: First, our views are only tentative. We have not had an opportunity to give the problem as much study and thought as we think it deserves. Second, and more important, we do not believe that the Federal jurisdictional question is an essential part of the problem of delineating radiation protection responsibility between the Federal and State Governments. The two jurisdictional areas undoubtedly overlap somewhat. The question is whether they are so intermeshed that they cannot be independently resolved.

Obviously, it would be ideal to resolve the jurisdictional problems of radiation protection at the Federal level and as between the Federal and State Governments, simultaneously. However, the desirability of such a simultaneous resolution of the two related problems is, in our opinion, more a matter of convenience than of substance.

The basic determination of the appropriate radiation protection role of the States probably will not be substantially influenced by which Federal agency is involved. Certainly, we do not believe that our own conclusions as to the role of the States would be affected if the radiation protection functions of the AEC were transferred either to a new independent agency or to the Department of Health, Education, and Welfare.

Representative DURHAM. What do you mean by new independent agency?

Mr. BERMAN. We were leaving this flexible for future judgment. We did not intend to suggest that was a solution to the problem. We were just using it to show possible alternatives.

Representative DURHAM. It would require creating a new agency?

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