ML20134L562

Forwards Suggested OI Changes of Latest Draft of Revised Sweeney Ltr

ML20134L562
Person / Time
Issue date:	10/17/1996
From:	Hutchison W NRC
To:	Virgilio R NRC
Shared Package
ML20134L373	List: ML20134L369 ML20134L386 ML20134L395 ML20134L423 ML20134L537 ML20134L547 ML20134L557 ML20134L562
References
NUDOCS 9702190208
Download: ML20134L562 (6)

Text

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l Draft..'. Changes recommended by 01.

October 17. 1996 1

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John E. Sweeney Commissioner of Labor

.U.S. Department of Labor State Office Building Campus Building 12 Albany, New York 12240

Dear Commissioner Sweeney:

I am responding to your letter of July 18, 1996, regarding the Nuclear Regulatory Commission's conduct of investigations in New York State. Unlike individual States who must seek cooperation of sister States under "long arm" statutes when a State regulated person. crosses state lines, the NRC, as a federal agency, has jurisdiction to conduct investigations of its licensees' activities in all States, including Agreement States. Nevertheless. I believe that the information you provided highlights the need to consider additional NRC procedures in this area.

NRC conducts investigations and inspections in order to determine NRC licensee com)liance with NRC requirements. In this case, the NRC investigation in New Yor( State referenced in my June 3.1996 letter, the issue involved a potential viol' ion of NRC requirements by an NRC licensee. The NRC Office of Investigations (01) was investigating alleged false statements made by an NRC licensee that .the NRC-licensed material was in Pennsylvania. Based on information suggesting that the sources were actually located elsewhere, f.e. New l York, in 01's judgement it was. necessary to pursue the investigation of the alleged false statements by ascertaining the actual location of the sources.

! This is in contrast to the case raised in your letter of July 18, 1996, where New York State had informad the NRC of numerous instances where an NRC licensee had entered New York State without filing the recuired notices, or obtaining the l required approval of your Radiological Health Jnit. As we both agree, NRC has

! no jurisdiction in this case because it concerns compliance with New York State i requirements rather than those of the NRC. However, a NRC licensee's failure to

comply with State requirements may be indicative of failure to comply with NRC i regulations while conducting business in NRC jurisdiction. Licensee non-compliance with State or NRC requirements is not acceptable and responsibility

• be borne by Joth NRC and Agreement @Statsskhen a licensee conducts activitie both jurisdictions.

- Accordingly. I am directing the NRC staff to develop guidance that can be used to improve communication and coordination of respective NRC and Agreement State 1

inspection, investigation and enforcement actions when NRC licensees violate 9702190208 961119 PDR CO*ms NRCC l CORRESPONDENCE PDR

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. l Agreement State requirements and when Agreement State licensees violate NRC requirements. The staff will also be directed to develop guidance that documents 4

the current practice of informing the Agreement State of any issue having  ;

immediate public health and safety significance within the State. Nor, safety significapt =tters M significanc_e under theatter'f[notioflanZimmedibte/publit:Biea,lthiand?iafety; St' ate's regulatory authority Mich are discovered in the  !

1 courss~of any NRC investigation or inspection of an NRC licensee in an Agreement '

' State will, however, continue to be treated on a case-by-case basis. Depending l upon the individual case circumstances and the need to maintain confidentiality '

of an investigation, Agreement States will be notified as soon as practicable. l The NRC staff will coordinate the development of the proposed procedures with the '

Agreement States.

Finally, NRC continues to be available to meet with you to further discuss the

, specific circumstances of the case your correspondence referred to, including any enforcement action taken within NRC jurisdication. Please contact Richard L.

Bangart, Director, Office of State Programs, at 301/415-3340, to arrange such a  !

meeting or to discuss this letter.

Sincerely.

4 Shirley Ann Jackson l

DISTRIBUTION: GT96567 (Ref GT96277) EDO RF JTaylor/EDO WHehl/RI OSP Staff (13) OSP DIR R/F JMilhoan/ DEDO HMiller/RI GCaputo/01 OSP S/F: NYDOL/All A/S HThompson/ DEDO Kane/RI RFortuna/01 RSA0's (5)

JBlaha KDolce/RI WHutchison/0I RSLO's (5)

RBangart/OSP BLetts/RI EWilson/RI HNewsome/0GC PLohaus/OSP KCyr/GC FXCameron/0GC NRC PDR: YES _ a CPaperiello/NMSS JLieberman/0E SEbneter/RII ABBeach/RIII w ' ,I LJCallan/RIV SBurns/0GC W0lmstead/0GC/ tl

• See previous concurrence oncurrence via telecon  ;

DOCUMENT NAME: G:\ ROV \SWEENEY5

' To r2ceive a copy of this document, indicate in the boa: 'C" f

Copy without attachment / enclosure *E" = Copy with attachment / enclosure *N" = No copy I

OFFICE OSP E OSP:DD l OGQl 01 l Region l l OSP:D l EO l l NAME RVirgilio:gd PHLohaus' fspeyr- . ,GPCaputo . CWHehl RLBangart JLieberman DATE 09/25/96* 09/25/96* lor)dG6M lo/ /967F lo/ /96 lo/ /96 lo/ /9&Tr 0FFICE NMSS l D/EDS l EDO l l l l NAME CAPaperiello HLThompson JMTaylor l DATE 10/ /96 10/*

/96 10/ /96 OSP FILE CODE: SP-AG-20-3 l

John E. Sweeney .

New York's jurisdication. Throughout our investigation of NRC licensee activities, we fully recognized the State of New York's jurisdication over the use of radioactive material at a temporary job site in that State.

As also indicated previously, under current practice arid consistent with standard investigative procedures, the NRC does not provide routine State notification prior to entry into a State to investigate matters relating to NRC-licensed operations. This historically-based practice has prevailed in maintaining the integrity of the investigation. If, however, an immediate public health and safety issue is identified in the course of an investigation, and/or if NRC identifies information which raises concern about activities subject to Agreement State jurisdication during an investigation, NRC will notify the State accordingly. In some cases, this information will be obtained during the course of the investi gation and it is only possible to notify the Agreernent State subsequent to its discovery.

While we may have irreconcilable differences on what transpired during this particular case, the focus of this correspondence is directed primarily at clarifying NRC's jurisdiction and recognizing the need to provide clearer communications between NRC and the Agreement States on this issue. Therefore, NRC staff will develop program guidance for use by Regional State Agreement Officers addressing communication of information to Agreement States about ongoing or completed NRC investigations conducted in Agreement States. This guidance will be shared with all Agreement States in draft and finalized after incorporation of comments to assure clarity.

A copy of this letter will be provided to all Agreement States. I trust that this response and impending action on the above efforts will further clarify our policy on this issue.

Please contact Richard L. Bangart, Director, Office of State Programs, in the interim should you desire a meeting to further discuss this or related issues. He can be reached at (3011415-3340.

Sincerely, Shirley Ann Jackson DISTRIBUTION: GT96567 (Ref GT96277) EDO RF JTaylor/EDO PLohaus OSP Staff (13) OSP DlR R/F JMilhoan/ DEDO HMiller/RI GCaputo/OI OSP S/F: NYDOL HThompson/ DEDO WKane/RI RFortuna/OI RS AO's (4)

JBl:ha KDolce/RI WHutchison/OI RSLO's (4)

RBangart/OSP BLetts/RI EWilson/RI HNewsome/OGC WH;hl/RI KCyr/GC FXCameron/OGC NRC PDR: YES (f

'See previous concurrence *

• Concurrence via telecon/e-mail DOCUMENT NAME: G:\ ROV \SWEENEY3 h receive a copy of thle document, Indicate in the box: "C" = Copy without attach,nent/ enclosure 'E" = Copy with attachment / enclosure "N" = No copy OFFICE OSP l ,E OSP:DD OGC 01 l/L Region l l OSP:D DEDS l EDO l NAME RVirgilio:gd $ PHLohaus' KCyr GCaputo / CWHehl RLBangart HLThompson JMTaylor DATE 09/25/96* 09/25/96* 09/ /96 09/W96 09/ /96 09/ /96 09/ /96 09/ /96 OSP FILE CO)E: SP-AG-20-3

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John E. Sweeney \

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, jurisdication. Throughout our investigation o,f NRC licensee activities, we fully recognized the State of New York's jurisdication over the use of radioactive material at a temporary job site in that State. \

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As also indicated previously, under current practice and consistent with standard  ;

investigative procedures, the NRC does not provide routine State notification prior to entry.  !

into a State to investigate matters relating to NFC-licensed operations. This historically- l based practice has prevailed in maintaining the integrity of the investigation. If, however,  !

an immediate public health and safety issue is identified in the course of an investigation, ,

i and/or if NRC identifies information which raises concern about activities subject to

}' Agreement State jurisdication during an investigation, NRC will notify the State '

accordingly, in some cases, this information will be obtained during the course of the

investigation and it is only possible to notify the Agreement State subsequent to its <

discovery.  ;  ;

While we may have irreconcilable differences giveh the d' ifferent views on what transpired i during this particular case, the focus of this correspondence is directed primarily at l

clarifying NRC's jurisdiction and recognizing the need to provide clearer communications I 4

between NRC and the Agreement States on this iss've. Therefore, NRC staff will develop  ;

program guidance for use by Regional State Agreem'ent Officers addressing communication i 4

of information to Agreement States about ongoing o'r completed NRC investigations conducted in Agreement States. This guidance will be shared with all Agreement States in draft and finalized after incorporation of comments to assure clarity.

! 1 A copy of this letter will be provided to all Agreement States. I trust that this response )

. and impending action on the above efforts will further; clarify our policy on this issue. I Please fool free to notify Richard L. Bangart, Director, Office of State Programs, in the interim should you desire a meeting to further discuss this or related issues. He can be j reached at (301)415-3340. \

!. \

Sincerely, i

J \'

l Shirley Ann Jackson

\

DISTRIBUTION: GT96567 (Ref GT96277) EDO RF )

JTaylor/EDO PLohaus OSP Staff (13) OSP DIR f}/F JMilhoan/ DEDO HMiller/RI GCaputo/OI OSP S/F: NYDOL HThompson/ DEDO WKane/RI RFortuna/Ol RSAO's (4)

JBlaha KDolce/RI WHutchison/Ol RSLO's (4).

RBengart/OSP BLetts/RI EWilson/RI HNewsome,0GC WHehl/RI KCyr/GC FXCameron/OGC NRC PDR: YES 22 i

DOCUMENT NAME: G:\ ROV \SWEENEY3 l Ta sessive e sepy of tids Indosee in $s) tem *C" = Copy without ettechmsnt/ enclosure *E' = Copy with ettschment/ enclosure *N" = No copy d==-

4 OFFICE NAME OSP l4 OSP: W PHLo naus * .

OGC l KCyr 01 GCaputo l Region l l OSP:D l RLBangart DEDS HLThompson JMTaylor EDO l RVirgilio;gd DATE 09/p/96 09/4996 09/ /96 09/ /96 .09/ /96 09/ /96 09/ /96 09/ /96 OSP FILE CO )E: SP-AG-20-3

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.------~ - 7/18/96 LTR RE NRC'S AUTHORITY TO ENTER AN AGREEMENT STATE AT WILL TO INVESTIGATE AN NRC LICENSEE R{ggES{INg OF{; - EM REggES((R - WpS - 0

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FROM: DUE: 08/12/96 EDO CONTROL: GT96567 i DOC DT: 07/18/96 -i John E. Sweeney FINAL REPLY: i Commissioner of Labor State of New York

• TO:-

Chairman Jackson .

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- FOR SIGNATURE OF_: ** PRI **

CRC NO: 96-0807 Chairman Jackson i i

DESC:

ROUTING:.

.NRC'S AUTHORITY TO ENTER AN AGREEMENT STATE AT Taylor WILL TO INVESTIGATE AN NRC LICENSEE Milhoan Thompson i

Blaha 1 TTMartin, RI Cyr, OGC DATE: 07/30/96 Caputo, OI l

i ASSIGNED TO: Lieberman,OE CONTACT: ,

O SP Bangart SPECIAL INSTRUCTIONS OR REMARKS: us Coordiante with OGC. c._

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. gra STATE Ol' NEW YORK DEPARTMElW OF LABOR Oovemor W. Averell tiarriman State Office 15ullding Campus 9

Albany, New York 12240 July 18,1996 J'OHN E. SWEENEY Commissioner of labor Shirley Ann Jackson, Ph.D.

Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Chairman Jackson:

I have received your letter of June 3.1996, responding to my April 19,1996 letter, concerning an investigation conducted by the United States Nuclear Regulatory Commission (NRC) in New York State, without the knowledge or consent of this agency.

As I pointed out in my letter, the Nuclear Regulatory Commission (NRC) discontinued the exercise of regulatory authority over Atomic Energy Act (AEA) radioactive materials in New York State when it entered into the 1962 Agreement with the state. Under the teims of this Agreement. authority over all use and users of such materials in New York State was transferred to the state. This authority also extends to licensees of the NRC who use AEA materials in New York State. Conversely. New York State licensees who use AEA materials outside of the state. are subject to the jurisdiction of any Agreement State they enter, or NRC's jurisdiction in the case of a non-Agreement State.

I have been informed, for example, that an NRC licensed company was found to have entered New York State on over 30 occasions during 1995 without Gling the required notices and obtaining the approval of our Radiological llealth Unit (RilU). When our RHU informed NRC of their licensee's habitual unauthorized entries into New York State, as a routine exchange of infomiation, the RilU was told thai NRC had no jaiialidion over the aethities ofits licensees in Agreement States and would take no action. While our staff agreed with the jurisdictional position and were proceeding with enforcement action against the company, they had thought that NRC would want to take some disciplinary action against a licensee that so consistently misused radioactive sources obtained under an NRC license.

Your response does not address jurisdictional limits, but appears to assume that NRC has the authority to enter an Agreement State at will to investigate the conduct of an NRC licensee. Since this is contiary to longstanding precedent, as illustrated above and to our understanding of New Yoik State's Agreement with NRC. we would appreciate clariGeation of the Commission's undeistanding of its' jun3 diction. l l

Telephone (518) 457 2741 rax (518) 457 6908

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2-As far as the exchange of infonnation on the case at issue is concemed, at no time has our Radiological Health Unit been informed by NRC, that NRC's licensee had transferred control of a radioactive source to an unlicensed New York State company, even though seven months have passed since NRC's investigation in December,1995. The RHU finally obtained this information on its own.

I look forward to your response on this important federal-state jurisdictional issue.

rSincerely, wm

%[,n E. Sween (

/ ommissioner of Labos 6

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ACTION EDO Principal Correspondence Control i

FROM DUE: 08/12/96 EDO CONTROL: GT96567 DOC DT: 07/18/96 John E. Sweeney FINAL REPLY:

Commissioner of Labor 1 Stato of New York I TO:

Chairman Jackson FOR SIGNATURE OF : ** PRI **

CRC NO: 96-0807 Chairman Jackson DESC8 ROUTING:

NRC'S AUTHORITY TO ENTER AN AGREEMENT STATE AT Taylor WILL TO INVESTIGATE AN NRC LICENSEE Milhoan Thompson Blaha l TTMartin, RI Cyr, OGC DATE: 07/30/96 Caputo, OI I

l Lieberman,OE ASSIGNED TO: CONTT.CT:

SP Bangart SPECIAL INSTRUCTIONS OR REMARKS: e c3 Coordiante with OGC. c_.

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OFFICE OF THE SECRETARY

} CORRESPONDEiCE CONTROL TICKET PAPER NUMBER: CRC-96-0807 LOGGING DATE: Jul 30 96

ACTION OFFICE

EDO/OGC

, AUTHOR:~ JOHN S. SWEENEY AFFILIATION: NEW YORK i ADDRESUEE: CHAIRMAN JACKSON .

1 LETTER DATE: Jul 18 96 FILE CODE:

SUBJECT:

NFC'S AUTHORITY TO ENTER AN AGREEMENT STATE AT WILL TO INVESTIGATE AN NRC LICENSEE

ACTION

Signature of Chairman DISTRIBUTION: CHAIRMAN, COMRS, RF SPECIAL HANDLING: SECY TO ACK $ fb i ' CONSTITUENT:

NOTES:

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, STATE OP NEW YORK j DEPARTMEITF OF LABOR l

! Govemor W. Averell Harriman State Office Building Campus I f, Albany, New York 12240 l

JOMM E. SWEEMEY July 18,1996 Commissionerof Labor Shirley Ann Jackson, Ph.D.

Chairman  ;

U.S. Nuclear Regulatory Commission i Washington, D.C. 20555

Dear Chairman Jackson:

I have received your letter of June 3,1996, responding to my April 19,1996 letter, concerning an investig5 tion conducted by the United States Nuc! car Regulatory Commission (NRC) in New York State, without the knowledge or consent of this agency.

As I pointed out in my letter, the Nuclear Regulatory Commission (NRC) discontinued the exercise of regulatory authority over Atomic Energy Act (AEA) radioactive materials in i New York Sta'e when it entered into the 1962 Agreement with the state. Under the terms of this Agreement, authority over all use and users of such materials in New York State was tiansferred to the state. This authority also extends to licensees of the NRC who use AEA i materials in New York State. Conversely. New Yoik State licensees who use AEA materials outside of the state. are subject to the jurisdiction of any Agreement State they enter, or NRC's jurisdiction in the case of a non-Agreement State.

I have been informed, for example, that an NRC licensed company was found to have entered New York State on over 30 occasio.is during 1995, without Gling the required notices

)

and obtaining the approval of our Radiological llealth Unit (RilU). When our RilU informed I NRC of their licensee's habitual unauthorized entries into New York State, as a routine i excliange ofinkumation, the RllU was told thai NRC had no jurisdicion over the actisitics {

of its licensees in Agreement States and would take no action, sVhile our staff agreed with j the jurisdictional position and were proceeding with enforcement action against the company, they had thought that NRC would want to take some disciplinary action against a licensee l that so consistently misused radioactive sources obtained under an NRC license.

, Your response does not address jurisdictional limits, but appears to assume that NRC  ;

l has the authority to enter an Agreement State at will to investigate the conduct of an NRC  !

! licensee. Since this is contraiy to !ongstanding precedent, as illustrated above, and to our understanding of New York State's Agreement with NRC. we would appreciate clariGeation i of the Commission's understanding of its' jurisd etion. l l L Telephone (518) 457 2741 Fax (5IB) 457 6908

[, -

As far as the exchange ofinformation on the case at issue is concerned, at no time has l our Radiological Health Unit been informed by NRC, that NRC's licensee had transferred ,

j control of a radioactive source to an unlicensed New York State company, even though seven l months have passed since NRC's investigation in December,1995. The RHU finally obtained

! this information on its own.

I look forward to your response on this imponant federal-state jurisdictional issue.

(Sinceo ly,

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pn - neu .

in E. Sween ommissioner(of Labor l

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