ML19269G799
| ML19269G799 | |
| Person / Time | |
|---|---|
| Issue date: | 05/19/1980 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Dircks W NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| References | |
| REF-10CFR9.7 NUDOCS 8006130380 | |
| Download: ML19269G799 (17) | |
Text
.
[fa arog(o, UNITED STATES
- Y y,y,( ',g NUCLEAR REGULATORY COMMISSION g,(
fc p WASHING TON, D. C. 20555 g g 6 1980 hig 19195 MEMORANDUM FOR:
William J. Dircks, Director Office of Nuclear Material Safety and Safegucrds FROM:
Howard K. Shapar Executive Legal Director
SUBJECT:
NRC'S LEGAL AUTHORITY TO ESTABLISH A NATIONAL RADIOGRAPHER LICENSING PROGRAM In a series of staff meetings over the past few weeks, OELD was asked whether or not NRC has the legal authority to establish a national radiographer licensing program.
Enclosed please find OELD's legal memorandum on "NRC's Legal Authority To Establish A National Radiographer Licensing Program."
The issue, in ten, involves several subissues, as follows:
1.
Has Congress given NRC authority to license simultaneously both firms conducting radiographic operations and their radiographer employees, as it does utilities and their reactor operators?
2.
May NRC's national licensing program preempt individual Agreement State jurisdiction? If not, how can Agreement States and NRC create such a program?
3.
What guidelines should be followed with respect to the issue of responsibility and liability of radiographic firms and their employees?
We conclude that Congress has given NRC authority to establish a radiog-rapher licensing program only in non-Agreement States. NRC would have to cooperate with Agreement States to get their support if their participation in a uniform national scheme were desired. The issue of responsibility and liability is difficult and complex and will have to be studied carefully in light of the Commission's Atlantic Research decision.
u Howard K. Shapar Executive Legal Director
Enclosure:
As stated-cc:
B. Singer, NMSS SCO(oI303rd
NRC'S LEGAL AUTHORITY TO ESTABLISH A NATIONAL RADIOGRAPHER LICENSING PROGRAM ISSUE:
Does NRC have the legal authority to establish a national radiographer licensing program?
Subissues:
1.
Has Congress given NRC authority to license simultaneously both firms conducting radiographic operations and their radiographer employees, as it does utilities and their reactor operators?
2.
May NRC's national licensing program preempt individual Agreement State jurisdiction? If not, how can Agreement States and NRC create sucre a program?
3.
What guidelines should be followed with respect to the issue of responsibility and liability of radiographic firms and their employees?
CONCLUSION:
Congress has given NRC authority to establish a radiographer licensing program only in non-Agreement States.
NRC would have to cooperate with Agreement States to get their support if their participation in a uniform national scheme were
Contact:
T. Dorian 492-8690 n
-2
' des i red.
The issue of responsibility and liability is diffi-cult and complex and will have to be studied carefully in light of the Commission's Atlantic Research decision.
FACTUAL CONSIDERATI0flS WITH RESPECT TO RESOLlfTION OF LEGAL ISSUES Before considering the legal issues, several interwined important factual issues should be resolved:
there should be a detemination that a problem exists, followed by a finding about its nature and extent (incidences of incompetence), and then a detemination made about the effectiveness of licensing / under the Atomic Energy Act of 1954, as amended, in its resolu-l tion.
In other words, we have to spell oat why we need direct control over individual radiographers, including possible license revocation and other sanctions. The findings and deteminations on these issues would bear directly on the conclusion that NRC licensing of individual radiographers is necessary, in the interest of public health and safety, and the proper approach to assuring the competence of radiographers. Minimization of hazards to health and safety will be a key factor in support of a licensing prog ram.
If Some prefer using the word " certification" rather than " licensing."
' Under 5 551(8) of the Administrative Procedure Act, a " license" includes a " certificate," so that NRC licensing and certification are equivalent tems.
ee
. The anjument for licensing may run along the line that, while it is not possible to predict definitively that licensing of individual radiographers will prevent any particular exposures, many of the incidents described appear to involve causes which would be eliminated if individual radiog-raphers were well versed in fundamentals of radiation safety and alert to radiation hazards as could be assured through ooeration of a licensing program.
This argument, in turn, will have to be tied to several factors in industrial radiography which make the potential for overexposure and radiation injury relatively high.
These include the level of education and training of radiographers, performance of work under difficult field conditions, com-petitive pressures to make as many exposures as possible during the day, transient and itinerant nature of industrial radiography, high radioactivity in sources involved, and the perfomance of radiography under conditions where assistance is unavailable in case of malfunctioning equipment or other emergencies. Another factor to be considered is the probability of the occurrence of incidents or exposures that are not reported and their possible extent as a function of some of the characteristics of industrial radiography just noted.
Finally, before reaching the ultimate conclusion that licensing is nece -
sary, it will be necessary to address two arguments made by some that (i) if management could be made to fulfill its responsibilities, the overexposures in Ill likelihood would not have occurred and (2) if radiographers were individually licensed, it could lead to a reduction in the responsibility of management. The answer to these arguments will have to rely on a clear and ee precise description of the responsibilities and liabilities of both manage-ment and individual radiographers.
Allusion can be made to licensing of individual reactor operators, including a description of how the issue of responsibility is resolved, and common and distinguishing factors can be highlighted between the effect of reactor operator licensing on utilities' management responsibility and the presumed effect of individual rad;ographer licensing on radiographic firns' management responsibility.
STATUTORY AUTHORITY From the time the issue of licensing individual radiographers first arose in 1964, OELD has consistently maintainedU that the Commission has the statutory authority to license these persons. The statutory framework created by Congress for licensing byproduct, source and special nuclear material, that is, the Atomic Energy Act, is flexible enotgh to permit the Commission to experinent with the best scheme for licensing individuals and fims, as it has done, for example, in connection with hospitals and physicians (discussed later).
As the court said in Siegel v. Atomic Energy Commission, In the Fasidential Message recommending the legislation which culminated in the Atomic Energy Act of 1954, it was said that flexibility was a peculiar desideratum and that, absent an accu-mulation of experience with the new civilian industry hopefully to
_2]
Enclosed is a memorandum from Howard K. Shapar, Assistant General Counsel for Licensing and Compliance, to F rrest Western, Director, Division of Safety Standards, AEC, dated St.ptember 21, 1964, written on the assumption that AEC had the requisite authority.
Commission paper AEC-P, 30/94 of August 12, 1969 (enclosed), was written on the same assumption.
be brought into being, "it would be unwise to try to anticipate by law all of the many problems that are certain to arise....
Congress agreed by enacting a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutog objectives
... (Emphasis in original and citations omitted.)-
Unlike section 107 of the Atomic Energy Act of 1954, as amended, which explicitly authorizes the Commission to license facility operators,U sec-tion 81, which authorizes the licensing of persons with respect to byproduct material, is not so explicit.M Section 81 states, in pertinent part:
No person may transfer or receive in interstate commerce, manu-facture, produce, transfer, acquire, own, possess, import, or export any byproduct material, except to the extent authorized by this section, section 82 or section 84. The Commission is authorized to issue general or specific licenses to applicants seeking to use byproduct material for research or development purposes, for medical therapy, industrial uses, agricultural uses, or such other useful applications as may be developed.
(Emphasis added).
The first hurdle, then, is that Congress has not explicitly authorized the Comission, as it did in section 107 with respect to facility operators, to license individual radiographers. This hurdle can be surmounted easily, y
400 F.2d 778, 783 (D.C. Cir.1968).
y *. See section 11r. of the Atomic Ene jy Act defining " operators."
y Radiographic devices are not " facilities" under sections 11v. and 11cc.
of the Atomic Energy Act, and, therefore, individual radiographers cannot be separately licensed as " operators" under section 107 of the Act.
ee
. Though the Commission in 10 CFR Part 34 licenses fims that employ radio-graphers, it is clear that it could have chosen to license these indivi-duals. As noted before with respect to flexibility, the Commission has the discretion to license or to refrain from licensing " individual" radiographers, for section lis. of the Atomic Energy Act defines " individuals" as " persons" and section 81 covers " persons" who " possess" byproduct material. There can be little doubt that radiographers physically r ssess byproduct material while employing radiographic devices.
In fact, several staff members recol-lect that initially AEC did license individual radiographers. Moreover, the Comnission aces license other types of individuals; for example, as discussed later, under 5 35.12 it licenses individual physicians outside a medical ins ti tu tion.
The real issue is whether or not the Commission has discretion ts license both simultaneously. The Comission does have this discretion, and it can jointly license firms conducting radiographic operations and their radiog-rapher employees physically performing radiography.
It can license indi-vidual radiographers if it regards radiographic firms as owning the material and radiographers as possessing it at the same time or if it views both as simultaneously possessing it, firms constructively and radiographers actually or physically.
In essence, physical possession means that a person has actual possession and custody, but not necessarily ownership.
Examples include banks which have physical possession over articles in their safety deposit vault but not constructive possession or ownership;E arking garages p
6/
See National Safe Deposit Co. v. Stead, 232 ll.S. 58, 67 (1914).
that physically possess cars; coat checks that physically possess coats; and tenants that physically possess premises. Constructive possession means that a person has ultimate control and perhaps (though not necessarily) ownership, but does not have physical possession.
Examples include renters of safety deposit boxes; persons with cars in garages or coats at coat checks; and lanolords that own or constructively possess premises. Thus, the Commission could licensc radiographers because they actually possess byproduct material and it could license simultaneously radiographic fims that employ these radiographers because these fims either own or construc-tively possess the material, that is, they have ultimate control over the material.
The little legislative history on section 81 is not helpful in resolving the issue. The 1946 Atomic Energy Act was based on the premise that the Comis-sion would be the source of byproduct material, and thus tems like " owner-ship" and " possession" were not used.E The 1954 Act, like the 1946 Act, allowed the Commission to distribute byproduct material, but added the language in section 81 quoted before.E This language is substantially similar to the language in sections 53 and 57, which use the tems " owner-ship" and " possession" and similar to the language in sections 62 and 67, 7/
See section 5(c)(2) of the 1946 Act in Legislative History: The Atomic Energy Act of 1946, at 9; see also S. Rep.121; to S.1717, April 19, 1946, at 18-19. The authors of the Act were well aware of the differ-
- ence between " possession" and " title" with respect to Commission licensing of source material.
See Conf.
Rep. to H. Rep. 2670, July 25,1946, at 2.
y The change made in 1978 with respect to section 84 is irrelevant to this discussion.
which use the tems " title" and " possession."
It seems to have been added, in part, to make c1*~
that persons other than the Comission could ownl/ or possessE byprocuct matericl.
The Commission appears to have re?ied in several instances, perhaps implicitly, on the distinction between ownership and possession or constructive possession and actual possession.
For example, it specifically exempts common and contract carriers in physical possession of byproduct material from licensing to the extent they transport or store the material in their regular course of carriage for persons who own or constructively possess the material.E Arguably, if it has the authority to exemM, it has the discretion to jointly license.
In fact, the Commission recently decided to issue a general license in % 70.20a "to any person to possess fomula quantities of strategic special nuclear material... in the regular course of carriage for another...".
Thus, both the owner (or constructive possessor) of the material and the carrier (the actual possessor) are licensed simultaneously by the Comission.
Individual physicians and hospitals provide another example of joint licensing.
On January 14, 1954, the Comission issued in effective form (19 FR 243) the original rules for granting specific licenses to individual physicians (now 10 CFR 6 35.12) and to medical institutions (now 10 CFR 6 35.11) for medical 9/
See testimony of Paul W. McQuillen, Chairman, Legal Committee, Dow Chemical-Detroit Edison and Associates Atomic Power Development
. Project in Legislative History: Atomic Energy Act of 1954, Vol. II, at 1747.
1_0/ See testimony of the New York Bar Association's Special Committee, id., at 2048.
11/ See 10 CFR Q6 30.13, 40.12 and 70.12.
uses of byproduct material.
Individual licenses under 5 35.12 were issued to physicians for practice in an office outside of an institution and for private practice in an institution. The regulations did not provide that the institutional and individual licenses be mutually exclusive; in some cases both the medical institution and one or more of the physicians prac-ticing at the institution were licensed.
On August 15, 1977, in order to avoid dual licensing, 5% 35.11 and 35.12 were changed to clarify the circum-stances in which it is appropriate for the physician practicing at the institution to hold the license and those in whitn the institution should hold the license.J2/ The point to note, therefore, is that the Commission has the discretion to mold its licensing scheme to factual circumstances and policy considerations.
In sum, the Commission has the discretion to license simultaneously both persons who actually or physically possess byproduct material and persons who own or constructively possess the naterial, that is, radiographers and radiographic firms.
NATIONAL LICENSING PROGRA!!
10 CFR Part 34, " Licenses for Radiography and Radiation Safety Requirements for Radiographic Operations, applies enly in non-Agreement States, because under section 274 of the Atomic Energy A:t the Commission is authorized to enter into an agreement with any State for discontinuance of its regulatory 12/ 42 Federal Register 36240 (August 15,1977).
' authority over byproduct (and other) materials. The Commission has agree-ments with 26 States, which regulate radiography, among other things.
With certain exceptions noted in subsection 274c..I3/ under the regulatory scheme of section 274 the Comission has the choice of discontinuing all or none of its authority over byproduct (and other) materials during L.ie dura-tion of an agreenent, for "it is recognized [1n subsection 274b.] that the State shall have the authority to regu' ate the materials covered by the agreement for the protection of the public health and safety from radiation haza rd s. " The Commission has no intenneciate choice.
None of the exceptions listed in subsection 274c. involve the instant issue.
Thus, as to radio-graphers, the Commission may not choose to retain its authority with respect to some small part o' the subject matter of the agreement.
Though subsection 274j. appears on its face to allow the Commission to teminate part of its agreement with a State and reassert its licensing and regulatory authority over a small part of the subject matter, the legisla-tive history of the language at issue renders that subsection unclear.
Subsection 274j. states, in pertinent part:
13/ Subsection 274(c)(1) deals with construction and operation of facili-ties; (c)(2) deals with export and import matters; (c)(3) deals with disposal in the seas; (c)(4) deals with the need for an NRC license in other kinds of disposal and with certain deteminations required
,' before tennination of a license; and the conclusory paragraph deals with the need for a manufacturer, processor or producer to have an NRC license before transferring possession or control of products containing byproduct (or other) materials.
ee The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State with which an agreement under subsection b. has become effective, or upon request of the Governor of such State, may teminate or suspend all or part of its agreement with the State and reassert the licensing and regulatory authority vested in it under this Act, if the Connis-sion finds that (1) such temination or suspension is required to protect the public health and safety, or (2) the State has not complied with one or more of the requirements of this section..
(Emphasis added.)
The words "all or part of" were added by subsection 204(d)(1) of Pub. L.95-604 (92 Stat. 3037) (1978) with respect to uranium mill tailings licensing and regula tion. The House Reports accompanying the legislation note that sec-tion 274 of the Atomic Energy Act was amended to:
allow States to discontinue licensing of uranium milling and mill tailings control, while retainir.g authority to license other materials licensable under the Agreement States program.
Under current law, States which did not want to regulate uranium milling would have gltenninate their complete agreements with the Commi ssi on.-
It could be argued that Congress did not expressly forbid t1e C'mmission from using subsection 204(d)(1) for a purpose other than uranium milling and mill tailings control; on the other hand, it could also be argued that the subsection was added for that specific purpose only and cannot be used for another. The latter argument is fortified by another argument that the language at issue in subsection 274j. was not intended to create a new category of general exemptions such as those in subsection 274c. and that NRC. licensing of radiographers in Agreement States would have that effect.
14] House Reports 95-1480, I and II, accompanying H.R.13650, in U.S. Code Cong. & Admin. News, Vol. 6, at 7443 and 7472.
9.
The better legal view, therefore, is that the Commission should not rely on this language in this instance.
The Commission has another way of resolving the national licensing issue which avoids the question of whether or not its national licensing program may preempt individual Agreement State juris-diction.
The Commission could do several things to create a national licensing pro-gram in cooperation with Agreement States.
It could request Agreement States to participate in the national radiographer registry and, undi sub-section 2741. of the Atomic Energy Act, it could provide to these States whatever assistance it deems appropriate in connection wi'.L creating a national licensing program. Subsection 2741., which has been used before in a case raising certain jurisdictional problems with respect to an agree-ment with Louisiana (agreement enclosed), states:
The Commission in carrying out its licensing and regulatory respon-sibilities under this Act is authorized to enter into agreements with any State, or group of States, to perfonn inspections or other functions on a cooperative basis as the Commission deems appropriate.
The Commission is also authorized to provide train-ing, with or without charge, to employees of, and such other assistance to, any State or political subdivision thereof or group of States as the Commission deems appropriate.
Any such provision or assistance by the Commission shall take into account the addi-tional expenses 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.
The Commission could also make its program of licensing individual radiog-raphers a matter of compatibility under subsection 274g. of the Atomic Energy Act', supplemented with whatever exchanges of information may be required.
Subsection 274 states:
9
The Commission is authorized and directed to cooperate with the States in the fonnulation of standards for protection against hazards of radiation to assure that State and Commission programs for protection against' hazards of radiation will be coordinated and compatible.
The problem with this approach, however, is that it might not achieve as effective a licensing program of national scope as might be achieved under subsection 2741., because, for example, a radiographer whose license was revoked by NRC or by an Agreement State might be able to acquire a new license from another Agre:ement State if strict compatibility were not observed and if there were gaps in information exchanges among Agreement States and between these States and NRC, Whichever approach is used, it is clear that NRC will have to work closely with Agreement States in order to implement it effectively.
RESPONSIBILITY The issue of responsibility and liability has long proved troublesome, especially where the Commission licenses two persons and they may be held to be jointly responsible or where employer-employee lines of responsibility are at issue.
For example,10 CFR SQ 35.11 and 35.12, involving specific licensing of individ A ;Aysicians and medical institutions, were changed mainly because of the responsibility issue.
In the Statement of Considera-tion describing the rule change, the Commission stated the problem as follows:
Under current NRC regulations, the NRC issues licenses for human use of radioactive (byproduct) material (1) to medical institu-tions, (2) to physicians for practice in offices outside of
medical institutions and (3) to some physicians for practice within medical institutions.
The current regulations are not clear as to when it is appropriate for a physician practicing at an institution to hold the license and when the institution license in some cases (260)quence, the physician alone holds the should hold it.
As a conse
, the hospital in other cases (1450),
and both the hospital and the phy5ician in still others (90).
Regulatory enforcement prolems might arise when both the hospital and the individual physici3n practicing therein hold a license or when several physicians pra.cticing in a hospital hold individual licenses.
For regulatory purposes, if workers or visitors are overexposed to radiation, it may be difficult to pin-point primary responsibility for the improper practices.
Is the licensed hospital or the licensed physician responsible?
If two physicians hold licenses, is one physician responsible or are both physicians responsible? This failure to establish clear lines of responsi-bility may result in the omission of necessary safety procedures or the assertion of conflicting procedu
-either condition may generate avoidable radiological hazards As illustrated by the Atlantic ResearchS case the responsibility and l
liability issue has also been raised in employer-employee situations.E That case concerned the issue of whether a particular civil penalty could be imposed on an industrial radiographic firm under section 234 of the Atomic Energy Act in the absence of a specific finding either that management malfeasance, nonfeasance, or misfeasance contributed to the l' cense viola-tions committed by an employee or that the licensed firm failed to take prompt corrective action to obviate a repetition of the occurrence.
15/ Supra, footnote 11.
1_6f In the Matter of Atlantic Research Corp., Dkt. No. BML 45-02808-04, 6
CLI-80-7, NRC (March 14, 1980).
ly See also Coastwide Marine Disposal Co.,1 AEC 619 (1961).
.ee
In reversing the Appeal Board's decision, the Commission stated:
The effect of.the Appeal Board's decision is that where no specific conduct by a licensee contributed to the comission of a violation, imposition of a civil penalty is punitive, and the licensee is necessarily free from any culpability and the imposition of any civil penalties. Under that approach, the responsibility for infractions of license provisions or Comission regulations would be divided between the licensee's management and its employees.
We believe that this would be an unsound enforcement policy because management's freedom from culpability could be interpreted as freedom from responsibility.
In the worst case, this might lead to a situation where a licensee may choose a course which minimizes the potential for culpability even though some alterna-tive would better protect the public health and safety. We find that such a division of responsibility between a licensee and its employees has no place in the NRC regulatory regime which is designed to implement our obligation to provide adequate protec-
_tion to the health and satety of the public in the commercial nuclear field.
In general, we believe a strong enforcement policy dictates that the licensee be held accountable for all violations comitted by its employees in the conduct of the licensed activity.
(Emphasis added and footnotes omitted.)
The Commission noted that judicial interpretations were " enlightening,"
including one concerning the statutory provisions of the Federal Aviation Administration (FAA).
It stated that case as follows:
United States v. Lockheed Aircraft Service International, Inc.,
cited by the NRC staff, which involved the application of 49 U.S.C. 621, the predecessor of 49 U.S.C.1471 (the current civil penalty authority of the Federal Aviation Administration), the court examined the Civil Aeronautics Administration's (predecessor of the FAA) authority to determine whether CAA licensees were responsible for the acts of their employees in civil penalty actions. 202 F. Scop.
665 (E.D.N.Y. 1962). The court rejected the licensee's O tim that by holding it responsible for "the nonfeasance or sisfeasance of its duly licensed aircraft mechanic carries the r%ulation beyond the reach of the Congressional enactment...," and asked "what avail would the statutes and the
' regulations promulgated thereunder in the public interest be if a licensed service operator... could not be penalized for infrac-tions thereof? How elsegguld it act except by and through its employees ?"
Id. at 667.22/
(Emphasis added and footnotes omitted.)
18/
Id., at 13-14.
'19/ Id., at 16-17.
16 -
The Commission concluded by saying:
In sum, we continue to believe that, given the highly technical and potentially dangerous nature of nuclear energy and its applica-tions, when one becomes a licensee of this Commission he must accept and be held to an extraordinary responsibility for safety.
The Commission's safety regulations and license conditions reflect the Comission's considered judgment as to what is required to protect the public as well as licensees' employees from the hazards inherent in the industrial use of radioactive byproduct material.
Civil penalties are one appropriate tool for empha-sizing the importance of that strict compliance, for stimulating the taking of prompt corrective action, and for deterring future noncompliance.
Though the Atlantic Research decision does not provide clear guidance with respect to the issue of licensing radiographers, it does suggest that the Commission may want to ensure that if it licenses individual radiographers, it does not take responsibility or liability away from the employing fim, but, rather, imposes separate responsibility and liability on licensed radiographers.
As noted at the outset, the issue of respc-1bility and liability is difici-cult and complex, and should entail resolution of questions such as: what should be the proper responsibilities and liabilities of radiographic fims and their enployees? How should the Comission ensure t.ut it does not place conflicting responsibilities and liabilities on these persons? How will it resolve conflicts when they do occur? And, finally, what enforce-menp mechanisms will it use and to what extent when an individual radi-ographer breaches an imposed responsibility?
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