ML20205E938
| ML20205E938 | |
| Person / Time | |
|---|---|
| Issue date: | 03/26/1999 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Flater D IOWA, STATE OF |
| Shared Package | |
| ML20205E942 | List: |
| References | |
| NUDOCS 9904060060 | |
| Download: ML20205E938 (2) | |
Text
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CHA RMAN I
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Mr. Donald A. Flater, Chief j
Bureau c Madiological Health I
lowa State Office Building 321 E.12* Street Des Moines, Iowa 50319-0075 i
Dear Mr. Flater:
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The U.S. Nuclear Regulatory Commission (NRC) has reviewed your letter of February 12,1999 to Commissioner Dicus concerning what you describe as the " DOE exemption... contained in 10 l
CFR 30.12,40.11 and 70.11." Our response to your letter follows.
The Atomic Energy Act of 1954, as amended, gives the Department of Energy (DOE) authority to regulate itself unless regulation by another agency is specifically authorized by statute (for example, NRC will regulate the DOE high-level waste disposal facility). But before we describe in detail the specifics of your request, there is an overarching philosophy that should be discussed. Constitutional law would not permit a State to regulate a Federal authority unless specifically authorized by legislation. Regulating DOE or its prime contractors would be a direct attempt to regulate DOE. Just for the sake of argument, even if we assumed that NRC had
/
jurisdiction over DOE, NRC would have to maintain that authority (unless specifically authorized by Congress) and could not delegate it to the Agreement States. For example, Federal 7
facilities in Agreement States, such as VA hospitals, are regulated by NRC, not the Agreement States. However, as indicated in detail in the following paragraphs, NRC does not have general jurisdiction over DOE.
- We believe that the previous NRC letter dated April 15,1998, contains the answer to your question, but we will try to amplify and articulate that explanation again. The brief answer is that the license exemptions for DOE contractors in sQ 30.12,40.11, and 70.11 are valid and justified based on the Energy Reorganization Act of 1974. Therefore, any Agreement State regulations that are in conflict with these regulations would be considered incompatible.
l First, we will address your interpretation of the Atomic Energy Act (AEA), which you met forth most fully in your September 18,1998 letter to the Department of Justice. As we understand it, your view is that the exemption for C OE contractors or subcontractors in 10 C.F.R. 30.12 only applies to activities conducted under Ine authority of section 91 of the AEA, entitled " Military Application of Atomic Energy." As stated in the April 15,1998 NRC letter, the specific section upon which you rely for your interpretation is not applicable to this situation. Rather, section l
101 of the AEA, which contains the exception for Section 91 military activities, concerns a requirement for a " person" to be authorized to manuf acture, possess, use, etc., a production or utilization facility (such as a power reactor), and is irrplemented in 10 C.F.R. Part 50. Section
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. 101 has no connection with the regulations in 10 C.F.R. Parts 30,40, and 70, which concern byproduct, source, and special nuclear materiallicenses, respectively. (The license requirements for these materials are contained in sections 57,62, and 81 of the AEA.)
As explained in the NRC letter, the exemptions in Parts 30,40, and 70 were adopted without a stated specific statutory casis, by the Atomic Energy Commission (AEC). Under the AEA, it was within the regulatory discretion of the AEC to determine whether the activities of its own contractors were to be regulated by contract provision or by license. Those rules simply codified the AEC practice, which was also statutorily adopted in section 110 of the AEA of 1954, not to require the licensing of contractors involved in the operation of AEC facilities.
The Energy Reorganization Act of 1974 abolished the Atomic Energy Commission, and transferred to NRC all of the licensing and related regulatory functions of the AEC, but transferred all functions not otherwise specifically excepted to the Energy Research and f
Development Administration (ERDA, the predecessor of the Department of Energy). Therefore, the AEA is also the statute of organic authority for the Department of Energy (DOE). The DOE i
(as well as NRC), received authority under section 161b of the AEA to " establish by rule, I
regulation, or order, such standards to govern the possession and use of special nuclear material, source material, and byproduct material." Accordingly, the DOE possesses authority i
under the AEA to regulate its own activities, which are normally conducted by contractors. The J
DOE, as a successor of the AEC, is not a " person" under the AEA, and therefore does not trigger any of the AEA requirements that state that a " person" must have a license. However, NRC did receive specific licensing and regulatory authority for a few named types of DOE facilities or activities in section 202 of the Energy Reorganization Act of 1974.
Because all of the licensing and regulatory functions of the AEC were transferred to the NRC, the NRC adopted all of the AEC regulations that related to those functions. The DOE contractor exemptions in 6 30.12,40.11, and 70.11, were adopted without an explicit explanation or analysis of the basis for adopting those particular regulations. However, because ERDA (and eventually DOE) received authority to regulate its own activities in the Energy Reorganization Act, as described above, a basis for these exemptions clearly exists.
We trust that this discussion, in conjunction with our previous letter, clarifies the areas that are the subject of your inquiry.
Sincerely,
/- W Shirley Ann Jackson
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