ML19057A343
| ML19057A343 | |
| Person / Time | |
|---|---|
| Site: | 07000008 |
| Issue date: | 09/05/2003 |
| From: | Cunningham G Battelle |
| To: | Lieberman J NRC/OGC |
| References | |
| Download: ML19057A343 (9) | |
Text
SEP-09-2003 12:44 September 5, 2003 Sent Via: Federal Expre$s #7904 0061 7217 James Lieberman, Esquire Special ~ounsel Office of the General COUDSel United States Nuclear Regulatory CoIOIIlission Washington DC 20555
Dear Mr. Lieberman:
Re: SNM-7 License, Qu~o._ and Responses Docket Number: 07000008 When yo~ were conducting a walking tour of.the West Jefferson North site on August 20, 2003, you raised several questions related to the planned changes for how the West Jefferson North site decommissioning work.will be performed ai1d a question regarding the authority of the Ohio Department of Health to license the Department of Energy contractor that will* be performing the decommissioning work. We took the liberty to prepare written responses to those questions and have enclosed them.
If you have any further questions, feel free to contact me.
Sincerely, GHC:ssc Enclosure (1)
Questions and Responses (8 pages) cc:. Robert owen. Acting Bureau Chief Ohio Dept qJ Hialth Bur,au of Radiation l'Mtttcti.tm 35 E Cllil#nill Street CJ/Junbu.r OH43216-0J18 Roben Warther, Manager
'tlniled Statttt Departmmt u/"8M"8Y, Ohio Jiield Olfi~
175 Tri-County Parlr.waj, R6om 2IJ6 Spring(IQk OH 45246 Copy to Document Control Desk
SEP-09-2003 12:44 P.02/09 SNM-7 License, Doeket Number 07000008 Questions and Responses
- 1.
- Question: What rationale _can the Nuclear Regulatory Commission (NRC) point.to. that would preclude Ohio from requiring that*the Department of Energy (DOE) contractor be licensed?
Answer: The basic reason why the Ohio Department of Health (ODH) cannot require the DOE contractor to secure an Ohio license for the decontamination and decommissioning (D&D} work at the West Jefferson North site is because Ohio does not have jmisdiction over the radiological hazards of the work that the contractor will be performing. See below for a summary of that analysis.
- 2. Question: Will Battelle have a role in the -selection *of DOE's contractor?
Answer:
- Although Battelle was involved in the process of drafting: the statement of work for the RFP, Battelle. will not be.involved in the selection of the DOE contractor. Battelle understands that this is a federal procurement and that ~
can not be part of the selection process.
- 3. Question: Will Battelle have adequate staff to perform the RSO oversight?
Answer: Battelle.has been providing RSO oversight for-the D&D project for many years and we anticipate no staffing. problems in:continuing to provide '.that role.
- 4. Question: Will the MOU between Battelle and DOE be a part of the contract between the DOE and Battelle (the Eng-92 Contract)?
Answer: The.provisions of the MOU ~11-be.incorporated into the Eng-92 Contract.
- 5. Question: WiJI Battelle be able to cause a DOE contractor employee to be removed from the site for cause?
Answer: If Battelle has a for-cause reason..( e.g.; the employee is a threat to worker or public safety or a threat to the envirolUilent}for the reIQ.oval of-a conn-actor employee from the site, Battelle would have the authdrity under the DOE-Battelle MOU to make a removal request to DOE and Battelle is confident that DOE and DOE,s contractor will comply with such a request.
Regarding Answer to Question 1 Analysis of whether ODH has Authority to Require DOE's Contractor to Be Licensed for the D&D* Wor.k at Battelle's West Jefferson: North.Site Introduction Pursuant to agreementwith,Battelle,.DOE will complete the D&D work at Battelle's West Jefferson North site through a DOE contractor in accorc;lance with the NRC-approved..,
Decommissioning Plan (DP), which is part ofBattelle's NRC-issued SNM~7 License. Thus far,
SEP-09-2003 12:44 P.03/09 the NRC has retained.jurisdiction over this D&D work and has voiced no objection to the new approach for completing this work under Battelle' s SNM-7 license. Under the new arrangement, the DOE contractor will not be required to be licensed by the NRC, but rather will work wider Battelle' s license with Battelle being responsible for assuring compliance with the DP and other NRC requirements. Nevertheless. the Ohio Department of Heal~ the Ohio Agreement State regulatory agency, has indicated to the NRC that under these circumstances. it believes that the DOE contractor must be licensed by OOH to perform. this D&D work.
Under these circumstances,* there. are several regulatory
- limitations on Ohio's authority over DOE's contractor that the NRC could raise in resolving this issue with OOH.
AEA Regulatory Program Under the overarching regulatory programestablishe.d under the Atomic Energy Act (AEA),
- states do not have authority to regulate AEA materials (byproduct, source, and special nuclear material) unless authorized to do so by the NRC. This regulatory program is explained in an "Interpretation by the General Counsel: AEC jurisdiction over nuclear faciliti.es and materials under the Atomic Energy Act,, which has been codified by the NRC in 10 CFR Section 8.4.
Subsection 8.4( c) states in part:
The Atomic Energy Act of 1954 had the effect of preempting to the Federal Government the field of regulation of nuclear facilities.and byproduct, source and special nuclear material. Whatever doubts may have existed as to that preemption were settled by the.
passage of the Federal.State amendment [Section 274] to the Atomic Energy Act of 1954 in 1959.
In 1959, Section 274 of the AEA (42 USC Section 2021) amended the AEA to provide for the circumstances under which states would be authorized to regulate byproduct, source or special nuclear materials. Section 274 states in part:
(a) It is the purpose of this section-(4) to establish procedures and criteria for.:th.e discontinuance of certain of the Commission's regulatory responsibilities with respect-to byproduct, source, and special nuclear materials, arid the assumption thereof by the States Paragraph (h) of IO CPR Section 8.4 goes on to state:
In its comments on the bill that was enacted as section 274; the Joint Committee on,
Atomic Energy commented that: It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by the 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 ***, but not by both.
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SEP-09-2003 12:45 In explaining se.ction 254k, th~l Joint. Committee. sai~: 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 Commission to assume such responsibility (bold added).
P.04/09 Under Uris AEA regulatory framework, ODH would have no authority to regulate the AEA nuclear materials (and the DOE contractor's associated performance ofthe.D&D work related to those nuclear materials) at the West Jefferson North site unless the NRC has delegated ~gulatory authority over those materials to Ohio vi.a the Section 274 NRC-Ohio Agreement. And, based on the Joint Committee report cited above in the General Counsel Interpretation, it is clear that Congress did not intend to allow dual regulation or concurrent regulation of activities already regulated under an NRC license. Thus, if the NRC has retained jurisdiction over the West.
Jefferson North site decommissioning activities, Ohio would not have authority to regulate, or to even concurrently regulate, the DOE contractor's performance of that decommissioning work.
Toe 1999 NRC-Ohio Section 274 Agreement makes clear that the NRC retained jurisdiction over the decommissioning activities performed llll:der Battelle' s SNM-7 license.. The SNM:-7 license authorizes possession of gr~ter than critical mass quantities of special nuclear material (SNM) at Battelle's WestJeffe:rson North site. Article I of the NRC-Ohio Agreement only transfers authority to Ohio. for uspecial nuclear ma,terials in quantities not sufficient to form a critical mass.n Thus, Ohio did not receive jurisdiction Qver the SNM:.. 7 license.
Further reinforcing that the NRC did not transfer authority over the SNM-7 license decommissioning activities to Ohio is found in*the NRC. Staff's recommendation to enter into the NRC-Ohio Agreement. The Federal register notice of the NRC-Ollio Agreement (64 FR 49029, September 9, 1999) cites SECY-99-179 (July 9, 1999) as documenting the Commission~s decision regarding the transfer of authority to Ohio. SECY-99-179 states that the SNM~7 license is one.of two greater-than-critical-mass~quantity SNM Iicenses*that.wouldnot be transferred to Ohio. Section 3 of the SECY goes on to expressly state.that the NRC intended to retain.
jurisdiction over the* SNM* 7 license even though the SNM~ 7 license was in decommissioning.
- 3) Transfer of Licenses Currently, there ar~ approximately 593 NRC mater.ials licenses in Ohio. Staff bas identified 574 that will be transferred to the State iii whole or in part. NRC will retain 19 licenses, including Federal agencies~ exempt distribution, and the two licenses authorizing possession of greater than form,ula quantities of SNM..
One of these, the Battelle Memorial Institute Columbus - West Jefferson Division, is in decommissioning~ Staff expects to retain this Battelle license until decommissioning is complete (bold added).
This statement in the SECY recognizes that even though the quantities of SNM actually possessed would drop belc,w _critical quantity amQunts during the decommissioning process, the NRC we>uld, nevertheless,*rc:tainjurisdictiori over the decommission,ing through completic,n.
Thus, it is clear that the NRC retained jurisdiction over the SNM-7 license, including the *
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SEP-09-2003 12:45 P.05/09 decommissioning activities to be performed at Battelle's West Jefferson North site when the NRC entered into the NRC-Ohio Agreement.
Since the NRC retained jurisdiction over the SNM.. 7 license when it entered into the Section 274
. NRC-Ohio Agreemen~ Ohio is without authority to regulate the nuclear materials covered by that license. Further, since the DOE contractor will be completing the decommissioning work at the West Jefferson site under the NRC.:issued SNM-7 License, Ohio is without authority to require DOE's decoinmissioning*contractor at Battelle's West Jefferson North site to be licensed by ODH. This conclusion that Ohio does not have authority to require the DOE contractor to obtain a license from OOH is consistent with the basic AEA regulatory structure described above and also with Ohio law (ORC Section 3748.21) which SU!,tes that the Ohio licensing requirements do not apply to any person to the extent that the person is subject to regulation by the NRC. See also the discussion below regarding ORC Section 3748.21.
NRC Regulations and Ohio Law The basic AEA regulatory scheme, that the states have no *authority to regulate AEA materials unless expressly delegated such authority by the NRC, is also confirmed in several NRC and OOH regulations. First, 10 CFR Section 150.10 exempts persons that possess nuclear materials in Agreement states from NRC jurisdiction (and thus subjects them to state jurisdiction), but only if the persons possess less than critical quantity amounts ofSNM.
Except as provided in §.§lS0.15, IS0.16, 150.17~ 150.17a, 150.18, and 150.19, any person man Agreement*State*who*manufactj.Jres~ produces, receives, possesses, uses, or transfers byproduct material;, source material, or special nuclear material 'iii quantities not sufficient to form a critical mass is exempt from the requirements for a license contained in Chapters 6, 7, and 8 of the Act, regulations of the Commission imposing licensing requirements upon persons* who manufacture, produce, receive, possess, use, or transfer such materials, and from regulations of the Commission applicable to licensees. The exemptions in this section do not apply to agencies of the Federal government as defined in §150.3 (bold added).
Further, Section 150.11 makes clear that the authorized amounts of nuclear materials control for determining the applicability of the Sedtion 150.10 exemption (and then the associated state authority to regulate), not the actual amounts possessed.
(b) To determine whether the exemption granted in §150.10 applies to the receipt, possession or use of spec~ nuclear materi,LI at any particular plant or other authorized Joeation of use, a person shall include m the quantity computed according to paragraph (a) of this section the total quantity of spteial nuclear material which he is authomed to receive, possess or use at the plant or other location of use at any one time (bold added).
Since the SNM-7 license authorizes Battelle to possess greater than critical mass quantities of
- SNM, the exemption in Section 150.10 does not apply and the NRC retains jurisdiction '(and.
Ohio has no jurisdic~on) over the activities conducted under the SNM-7 license. For these 4
SEP-09-2003 12:45 P.06/09 reasons, unless the possession limits in Battelle' s SNM-7 license are reduced, Ohio does not have authority over the decommissioning activities performed under the SNM-7 license.
In addition to the restrictions onOhio,s authority in Sections 150.10 and 150.11, 10 CFR Section 150.15 st.ates that the NRC retains jurisdiction over certain materials and facilities, thereby precluding state jurisdiction over these materials. and facilities. The portions of Section 150.15 relevant to the decommissioning of.the.West Jefferson North site include:
(a) Persons in agreeinent States are not exempt from the Commission's licensing and regulatory requirements with respect to 9Je ~ollowing activities:
(l) The construction and operation of any production or utilization facility. As used in this subparagraph, operation ota facility includes, but is not limited to (i) the storage and handling of radioactive wastes at the facility site by the person licensed to operate the facility, and (ii) the discharge ofradit>active effluents from the facility site.
(8) Greater than Class C waste, as defined in part 72 of this chapter, that originates in, or is used by, a facility licensed under part SO of this chapter and is licensed under part 30 and/or part 70 of this chapter.
These exceptions to the transfer ofjurisdictiori to the states under a Section 274 agreement were described in the table -that was attached to Battelle' s letter to the NRC dated August 13, 2003.
Express Exemption by the NRC Ohio would also be restrict~d from regulating ~e DOE decommissioning contractor if*the NRC
- granted a specific exemption to the DOE contractor.under its.authority in Section 30.12 (with parallel exemp~ons.in 1.0 CFR40.11 and 10 CPR 70.11).. S.ection 30.12 provides:
Except to the extent that Department facilities or actiyities of the types subject to licensing pursuant to section 202 of the Energy Reorganization Act of 1974 are involved, any prime contractor of the Department is exempt from the requirements for a license set forth in sections 81 _and *82 of the Act and from the regulations in this part to the extent that such contractor, under his prime contract with the Department manufactures, produces, transfers, receives, acquires, owns, possesses, or uses byproduct material for:
(a) The perfonnance of work for the Department at a United'States Government-owned or controlled site, including the transportatiqn of byproduct material to or from such site and the petfonnance of contract services during temporary interruptions of such transportation; (b) Research in. or development, manufacture, storage, testing or transportation of, atomic weapons or components thereof; or
( c) The use or operation of nuclear reactors or other nuclear devices in a United States Government-owned vehicle or vessel.
s '
SEP-09-2003 12=46 P.07/09 l
In addition to th.e foregoing,xemptions and subject to the requirement for licensing of Department facilities and activities pursuant to section 202 of the Energy Reorganization Act of 1974, any prime contractor or subcontractor of the Department or the Commission is exempt from the requirements for a license set forth in sections 81 and 82 of the Act and from the regulations in this part to the extent that such prime contractor or subcontractor manufacturers, produces, transfers, receives, acquires, owns, possesses, or uses byproduct material under his prime contract or subcontract.when the Commission determines that the exemption of the prime contractor or subcontractor is authorized by law; and that, under the terms of the contract or subcontract, there is ad~quate assurance that the work thereunder can be accomplished without undue risk to the public health and safety (bold added).
Thus. it is clear that the NRC has separate authorities to grant exemptions from its licensing requirements to DOE contractors under several circumstances, including where the con1l'actor is performing work at a DOE owned or controlled site, arid at a private site (as in our case) where there are sufficient provisions in the contract to assure that there is no undue risk to the public.
The circumstances of our c~ can provide sufficient assurance that there will not be undue risk to the public.in allowing the DOE contractor to perfonn the decommissioning work without an NRC. license. The decommissioning work will be subject to direct Battelle Radiation Safety Officer (RSO) oversight (as it is now) to assure that NRC licensing and other requirements are adhered to. Further, DOE has agreed to have Battelle provide RSO oversight ofDOE's contractor in the DOE.. Battelle MOU (a copy of which has been previously supplied) and has agreed that the provisions of this MOU will be included in.the contract between DOE and Battelle. Thus, there is adequate assurance that the D&D work can be accomplished without undue risk to the public.
If the NRC were to grant such an exemption to the DOE contractor for its work at the West Jefferson North site, ODH would not have authority to require the contractor to be licensed by ODH according to ODH's own regulations.* ODH Rule 3 70 I: 140-06 tracks NRC IO CFR Section 30.12 and states that any DOE contractor that is exempted from the NRC licensing requirements is also exempted from the ODH licensing.~quirements. OAC Section 3701 :1 06(B) provides in part:
... any prime contractor or subcontractor of the department of energy... is exempt from the requirements for a:license.*. from the -re~ations in this chapter to the extent that such prime contractor :or subcontractor... possesses, or uses byproduct material under his prime contract or subcontract when the United States nuclear regulatory commission determines that the exemption of the prime contractor or subcontractor is authorized by law; and that,.under the tenns of the contractor subcontract, there is adequate assurance that.the work thereunder can be accomplished without undue risk to the public health and safety.
Other Ohio Laws and Regulations Ohio Revised Code Section 3748.21 states:
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SEP-09-2003 12:46 P.08/09 This chapter and rules adopted under it do not apply to any person to the extent that the person is subject to regulation by the United States nuclear regulatory commission (bold added).
Thus, under Ohio law, a.person is exempt from Ohio radiation safety requirements (including licensing) to the extent that the person is subject to regulation by the NRC. Since the DOE contractor is performing work related to nuclear materials that are subject to NRC jurisdiction, the DOE contractor is also subject to NRC jurisdiction. Under such circumstances, the exemption in ORC Section 3748.21 would seem to apply to the DOE contractor for the reasons explained below.
Under the NRC's Deliberate Misconduct Rule (see e.g., 10 CFR Sections 30.10, 40.20, or 70.10), persons providing services to NRC licensees (as in our circumstance, where the DOE contractor is providing decom.missioning services to Battelle) are subject to the NRC's enforcement authority. See, e.g., the preamble to the latest amendments to the NRC' s Deliberate Misconduct Rule (63 FR 1890, 1892 (1998) where the NRC states in response to a comment by the Nuclear Energy Institute (NEI) that the NRC did not have jurisdiction over non-licens~d persons:
The Commission considered, but rejected the objection that it did not have jurisdiction over non-licensees at the time it issued the original Deliberate Misconduct Rule. See 56 FR 40664 (1991)... :
[The NRC then goes on to quote further from the 19?1 preamble.] Where Congress does not include statutory provisions governing in personam jurisdiction, it is appropriate to look to the scope of subject matter jurisdiction in order to determine the scope of in.
personam jurisdJction. Since Congress cli4 not include any specific personal jurisdiction provisions in the* 1954 Act, or any limitatjons on such }urisdiction, the NRC is authorized to assert its personal jurisdiction over persons based on the maximum limits of its subject matter jurisdiction: The agency's penonal jurisdiction is established when a person acts within the agency's ~ubject matter Jurisdiction.* **The persons who are being brought within the scope of the Delibet;ate Misconduct Rule in these amendments are all persons who, in some way, engage in activities within NRC's subject matter jurisdiction. Thus, the Commission discerns no statutory prohibition on making these persons subject to the restrictions of the Deliberate Misconduct Rule (bold added).
From the NRC' s perspective, the NRC has jurisdiction over non-licensees like the DOE contractor, where the contractor is providing services to an NRC licensee. Thus, under ORC Section 3748.21, the DOE contractor would be exempt from the ODH licensing requirements because the contractor is subject to regulation by the NRC.
ODH has adopted a rule that seems to track this regulatory scheme, but the exemption for persons that provide services to NRC licensees includes some additional language that makes less clear when the ORC Section 3748.21 exemption might apply. Section 3701 :1-40-27 states:
(A) Except as provided in paragraph (B) of this rule, a person who receives, possesses, uses or transfers byproduct material, source, or special nuclear material in Ohio, in quantities not sufficient to form a critical mass is required to obtain a license from Ohio 7
SEP-09-2003 12:47 in accordance with Chapter 3748 of the Revised Code, and*rule 3701-38.. 02.1 of the Administrative, Code.
{B) The following activities are exempt based on section 3748.21 of the Revised Code
- since these activities are under United States nuclear regulatory commission jurisdiction; (1) Activities set forth in 10 C.F.R. 150.15 and any person in offshore waters with respect to byproduct, source, *and.special*nuclear material.
P.09/09 (2) All persons who knowingly provid:e to any lic~see, contractor, or subcontractor, components, equipment, materials~ or other goo~s or *services that relate to a licensee'.s activities, and.as sucp,. m'ay be indivlduaily subject to. enforcement action by the United States nuclear regulatory C()dlIDissiori for violation of 10 C.F.R.; §§ 30.10, 40.10, and 70.10, if applicable, for radioactive material taken or used in a non*agreement state outside of the state of Ohio or within Ohio under exclusive federal jurisdiction.
(3) Any federal.government ~ncy as that term is defined in 10 q.F.R. 150.3.
Nevertheless, this ODH rule must be read in light of the fundamental federal regulatory program established by Congress that precludes dual Qr concurrent regulation of AEA material by.the states where the NRC has retahiedjurisdiction.
materials, if they received such authority under a Section 274 Agreement. As described above, it is clear that Ohio was not'grantedjurisdiction over Battelle's SNM-7 license. The West Jefferson North site d~coniin.tssioning is.the.primary activity bejng performed under the S'NM-7 license. Under these cixcumstances and the basic'AEA regulatory framework, Ohio cannot co-regulate with the NRC the DOE contractor that will be working under Battelle' s SNM* 7 license and that will be subject to NRC enforcement under.the NRC's Deliberate Misconduct Rule.
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TOTAL P.09