ML20206S865
| ML20206S865 | |
| Person / Time | |
|---|---|
| Issue date: | 05/10/1999 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Calvert K, Sensenbrenner HOUSE OF REP. |
| References | |
| NUDOCS 9905240020 | |
| Download: ML20206S865 (6) | |
Text
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UNITED STATES
- a" NUCLEAR REGULATORY COMMISSION o WASHINGTON, D C, 20555-0001 r,, <s O E
! May 10, 1999 .
l CHAIRMAN The Honorable James Sensenbrenner, Jr., Chairman Committee on Science United States House of Representatives Washington, D.C. _20515
Dear Mr. Chairman:
On May 3,1999, H.R.1656, the " Department of Energy Commercial Application of Energy Technology Authorization Act of 1999," was introduced in the House of Representatives, and was referred to your Committee (as well as to the Committees on Commerce and Education and the Workforce). The Nuclear Regulatory Commission (NRC) is particularly interested in section 15 of the bill, whth addresses external regulation of nonmilitary energy laboratories of the Department of Energy (DOE).
With very limited exception, section 15 would eliminate the Department's regulatory and enforcement authority with respect to Federal, State, and local environmental, safety, and health requirements at such facilities. Effective January 1,2000, it would transfer regulatory l and enforcement responsibilities of the Department under the Atomic Energy Act of 1954 (AEA), including accelerator produced isotopes and machine generated ionizing radiation, to the Nuclear Regulatory Commission (NRC), authorizing the Commission to license or provide certification for the Department, the Department's contractor, or both. As you are aware, in June 1997, the NRC and the DOE agreed to establish a pilot project to examine the NRC regulation of a set of DOE facilities. The Commission is currently reviewing an Interim Report on the pilot program, prepared by the NRC staff. Although there are still a number of unresolved implementation issues that may require legislative changes to be resolved adequately, the Interim Report highlights the potential for the NRC to provide a " common sense" and consistent approach to regulating DOE nuclear facilities. The Commission expects to share the results of this effort with Congress later this Spring. To support the Committee's consideration of H.R.1656 at this time, however, the Commission offers the following comments with respect to Section 15 of the bill. We only have had a limited opportunity to review the bill and, therefore, we only attempt to illuminate some of the larger issues that require your attention. We have made a few drafting suggestions in the comments below and will be glad to provide further assistance.
In addition to giving the NRC the regulatory and enforcement authority over the facilities in question, the bill provides that, with regard to these facilities, the Occupational Safety and Health Administration (OSHA) shall assume the regulatory and enforcement responsibilities of the DOE relating to matters covered by the Occupational Safety and Health Act of 1970. The Secretary of Labor would be given authority to enforce the radiation regulations contained in NRC reaulations at 10 C.F.R. Part 20 to the same extent as regulations under section 6(b) of the Occupational Safety and Health Act of 1970. This attempt to provide NRC and OSHA with overlapping responsibilities presents a classic case of dual regulation, which should be avoided to prevent the attendant confusion and tensions that are likely to result between the agencies l involved and between those agencies and the regulated facilities. It is especially difficult where
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one agency (in this case, OSHA) is asked to exercise its authority by enforcing the regulations issued by another agency (in this case, the NRC).
During the external regulation pilot that DOE, NRC, OSHA, and California conducted at the Lawrence Berkeley National Laboratory (LBNL), OSHA and NRC worked out legislative language that would avoid dual regulation of that facility and recognize OSHA's and NRC's respective strengths. Such language may be useful in establishing external regulatory authority at the other DOE facilities covered by H.R.1656. The NRC has, since its inception, regulated the health and safety of workers with respect to exposure to radiological materials and non-radiological hazards to the extent necessary to prevent a regulatory gap. This is recognized by the language in H.R.1656 which refers to NRC regulations. Our regulations in this area are complex and require technical expertise to implement and enforce. We can see no rationalization for moving the authority to another agency that is not as well equipped to exercise the responsibility for enforcing those regulations, and we believe that such a system is not an efficient use of Government resources, given the considerable amount of time that will need to be expended in coordinating the work of the agencies, the duplicative development of trained staff to implement the programs, and the continuing obligation for OSHA to remain abreast of changes to the NRC regulations in 10 C.F.R. Part 20 and implementing guidance.
In that connection, although the bill provides for a transfer of funds from the DOE to the OSHA for the purposes of carrying out section 15, it makes no provision for meeting the NRC's resource requirements. The Secretary of Energy is required to transmit a report to your Committee (as well as to other Congressional Committees) by October 31,1999, that provides an estimate of the cost of external regulation, but this is not likely to result in furnishing additional general fund resources to the NRC until some time later in the year 2000, at the very earliest. Although our pilot studies at the LBNL show that the annual NRC costs of regulating that facility are a fraction of an FTE, it is not likely that the same will be true at all the other facilities covered by the bill. Moreover, at any of those facilities, the costs the NRC will bear during the transition to NRC regulation of the f acility will be higher than the costs the NRC will bear once the transition is over. The NRC's budget is at an historic low, and the agency has needed additional general fund appropriations just to conduct the pilot studies at LBNL and elsewhere. As a largely fee-based agency NRC should not divert fees collected from private sector licensees to fund the costs of regulating DOE facilities. The agency cannot take on these added responsibilities without adequate funding and staffing, and a clear delineation of authority.
In addition, several areas are not addressed by the bill including the following:
- While the bill calls for a memorandum of understanding between the NRC and the DOE for establishing decommissioning procedures and requirements for the facilities, there is no guidance in the bill with respect to funding or timing of decommissioning, except that provision is made for exempting a contractor operating a federal facility from responsibility for the costs of decommissioning that facility. NRC requirements already provide considerable flexibility in this regard.
- Obligations under the National Environmental Policy Act (NEPA) are left unaddressed.
It would appear prudent to include some sort of savings clause (such as that found in Section 114(f)(4) of the Nuclear Waste Polic) Act) to avoid unnecessary duplication of federal effort to assess potential environmental impacts under NEPA.
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3
- There is no mention of judicial review of NRC rulemaking, licensing, or enforcement actions. While this should not be an issue with respect to licensed facilities, it would be a problem where the challenge to the action relates to a certified facility. (With respect to licensed facilities, legal challenges to NRC regulatory actions are generally required to be brought in the U.S. Courts of Appeals, and we believe this is also appropriate in the case of certified facilities.) A useful modelin this area is Section 189b.(4) of the AEA, which provides for judicial review of NRC decisions concerning the United States Enrichment Corporation's gaseous diffusion facilities, which are certified by the NRC.
- . There is no reference to the organizational conflict of interest restrictions of section 170A of the Atomic Energy Act of 1954, or the worker protection provisions contained in section 211 of the Energy Reorganization Act of 1978, and how they would apply in the case of these facilities. While it is reasonable to assume that the cited provisions would apply to licensed facilities, an issue regarding the applicability of these provisions could arise with respect to certified facilities. Again, a useful modelin relation to section 211 can be found in the AEA, namely section 1312(d), which applies section 211 to the United States Enrichment Corporation's gaseous diffusion facilities, which are certified by the NRC.
e There is no clear provision for using NRC's civil penalty authority to enforce its requirements against holders of certificates. Again the AEA contains a useful model:
Section 234a of the Act gives the NRC the authority to impose civil penalties on the certified facilities of USEC.
- The term " nonmilitary energy laboratory" needs to be clearly defined because many of the DOE labs are dual purpose facilities. One way to accomplish this would be to specify by name the facilities to be regulated by the NRC.
Finally, I would like to point out that the wording of section 15(b)(1), transferring regulatory and enforcement responsibilities to the NRC, is somewhat problematic in that it provides that the i agency shall assume "the responsibilities of the Department under the Atomic Energy Act of 1954." Since section 15(a)(1) eliminates the Department's authority, parallel wording should be used to transfer the authority to the NRC to regulate and conduct enforcement. The NRC anticipates that it would use this authority to regulate these facilities in a manner consistent with its regulation of civilian nuclear facilities under its current authority.
I hope that these comments regarding section 15 of H.R.1656 will be of assistance to your l Committee. Please do not hesitate to contact me, if you have any questions or would like some further elaboration of our views. ,
Sincerely,
/
Shirley Ann Jackson cc: Representative George E. Brown, Jr. l
[ % UNITED STATES e- 4 NUCLEAR REGULATORY COMMISSION
< o WASHINGTON. D.C. 205500001 3 ij y,,, May 10, 1999 CHAIRMAN i
The Honorable Ken Calvert, Chairman i Subcommittee on Energy and Environment Committee on Science i United States House of Representatives Washington, D.C. 20515
Dear Mr. Chairman:
On May 3,1999, H.R.1656, the " Department of Energy Commercial Application of Energy Technology Authorization Act of 1999," was introduced in the House of Representatives, and was referred to your Committee (as well as to the Committees on Commerce and Education and the Workforce). The Nuclear Regulatory Commission (NRC) is particularly interested in i section 15 of the bill, which addresses external regulation of nonmilitary energy laboratories of the Department of Energy (DOE).
With very limited exception, section 15 would eliminate the Department's regulatory and j enforcement authority with respect to Federal, State, and local environmental, safety, and health requirements at such facilities. Effective January 1,2000, it would transfer regulatory and enforcement responsibilities of the Department under the Atomic Energy Act of 1954 ,
(AEA), including accelerator produced isotopes and machine generated ionizing radiation, to i the Nuclear Regulatory Commission (NRC), authorizing the Commission to license or provide certification foi the Department, the Department's contractor, or both. As you are aware, in June 1997, the NRC and the DOE agreed to establish a pilot project to examine the NRC regulation of a set of DOE facilities. The Commission is currently reviewing an Interim Report on the pilot program, prepared by the NRC staff. Although there are still a number of unresolved implementation issues that may require legislative changes to be resolved adequately, the Interim Report highlights the potential for the NRC to provide a " common sense" and consistent approach to regulating DOE nuclear facilities. The Commission expects to share the results of this effort with Congress later this Spring. To support the Committee's consideration of H.R.1656 at this time, however, the Comrnission offers the following comments with respect to Section 15 of the bill. We only have had a limited opportunity to review the bill and, therefore, we only attempt to illuminate some of the larger issues that require your attention. We have made a few drafting suggestions in the comments below and will be glad to provide further assistance.
In addition to giving the NRC the regulatory and enforcement authority over the f acilities in question, the bill provides that, with regard to these f acilities, the Occupational Safety and Health Administration (OSHA) shall assume the regulatory and enforcement responsibilities of the DOE relating to matters covered by the Occupational Safety and Health Act of 1970. The Secretary of Labor would be given authority to enforce the radiation regulations contained _in NRC reaulations at 10 C.F.R. Part 20 to the same extent as regulations under section 6(b) of the Occupational Safety and Health Act of 1970. This attempt to provide NRC and OSHA with overlapping responsibilities presents a classic case of dual regulation, which should be avoided to prevent the attendant confusion and tensions that are likely to result between the agencies involved and between those agencies and the regulated facilities. It is especially difficult where
r 2
one agency (in this case, OSHA) is asked to exercise its authonty by enforcing the regulations issued by another agency (in this case, the NRC).
During the external regulation pilot that DOE, NRC, OSHA, and California conducted at the Lawrence Berkeley National Laboratory (LBNL), OSHA and NRC worked out legislative language that would avoid dual regulation of that facility and recognize OSHA's and NRC's respective strengths. Such language may be useful in establishing external regulatory authority at the other DOE facilities covered by H.R.1656. The NRC has, since its inception, regulated the health and safety of workers with respect to exposure to radiological materials and non-radiological hazards to the extent necessary to prevent a regulatory gap. This is recognized by the language in H.R.1656 which refers to NRC regulations. Our regulations in this area are complex and require technical expertise to implement and enforce. We can see no rationalization for moving the authority to another agency that is not as well equipped to exercise the responsibility for enforcing those regulations, and we believe that such a system is not an efficient use of Government resources, given the considerable amount of time that will need to be expended in coordinating the work of the agencies, the duplicative development of trained staff to implement the programs, and the continuing obligation for OSHA to remain abreast of changes to the NRC regulations in 10 C.F.R. Part 20 and implementing guidance.
In that connection, although the bill provides for a transfer of funds from the DOE to the OSHA for the purposes of carrying out section 15, it makes no provision for meeting the NRC's resource requirements. The Secretary of Energy is required to transmit a report to your 1 Committee (as well as to other Congressional Committees) by October 31,1999, that provides I an estimate of the cost of external regulation, but this is not likely to result in furnishing additional general fund resources to the NRC until some time later in the year 2000, at the very earliest. Although our pilot studies at the LBNL show that the annual NRC costs of regulating that facility are a fraction of an FTE, it is not likely that the same will be true at all the other facilities coveied by the bill. Moreover, at any of those facilities, the costs the NRC will bear during the transition to NRC regulation of the facility will be higher than the costs the NRC will bear once the transition is over. The NRC's budget is at an historic low, and the agency has needed additional general fund appropriations just to conduct the pilot studies at LBNL and elsewhere. As a largely fee-based agency, NRC should not divert fees collected from private sector licensees to fund the costs of regulating DOE facilities. The agency cannot take on these added responsibilities without adequate funding and staffing, and a clear delineation of i authority.
in addition, several areas are not addressed by the bill including the following:
- While the bill calls for a memorandum of understanding between the NRC and the DOE for establishing decommissioning procedures and requirements for the facilities, there is no guidance in the bill with respect to funding or timing of decommissioning, except that provision is made for exempting a contractor operating a federal facility from responsibility for the costs of decommissioning that facility. NRC requirements already provide considerable flexibility in this regard.
- Obligations under the National Environmental Policy Act (NEPA) are left unaddressed.
It would appear prudent to include some sort of savings clause (such as that found in Section 114(f)(4) of the Nuclear Waste Policy Act) to avoid unnecessary duplication of federal effort to assess potential environmental impacts under NEPA.
3 e There is no mention of judicial review of NRC rulemaking, licensing, or enforcement actions. While this should not be an issue with respect to licensed facilities, it would be a problem where the challenge to the action relates to a certified facility. (With respect to licensed facilities, legal challenges to NRC regulatory actions are generally required to be brought in the U.S. Courts of Appeals, and we believe this is also appropriate in the case of certified facilities.) A useful modelin this area is Section 189b.(4) of the AEA, which provides for judicial review of NRC decisions concerning the United States Enrichment Corporation's gaseous diffusion facilities, which are certified by the NRC.
- There is no reference to the organizational conflict of interest restrictions of section 170A of the Atomic Energy Act of 1954, or the worker protection provisions contained in section 211 of the Energy Reorganization Act of 1978, and how they would apply in the case of these facilities. While it is reasonable to assume that the cited provisions would apply to licensed facilities, an issue regarding the applicability of these provisions could arise with respect to certified facilities. Again, a useful modelin relation to section 211 can be found in the AEA, namely section 1312(d), which applies section 211 to the United States Enrichment Corporation's gaseous diffusion facilities, which are certified by the NRC.
- There is no clear provision for using NRC's civil penalty authority to enforce its requirements against holders of certificates. Again the AEA contains a useful model:
Section 234a of the Act gives the NRC the authority to impose civil penalties on the certified facilities of USEC.
e The term " nonmilitary energy laboratory" needs to be clearly defined because many of the DOE labs are dual purpose facilities. One way to accomplish this would be to specify by name the facilities to be regulated by the (4RC.
Finally, I would like to point out that the wording of section 15(b)(1), transferring regulatory and enforcement responsibilities to the NRC, is somewhat problematic in that it provides that the agency shall assume "the responsibilities of the Department under the Atomic Energy Act of 1954." Since section 15(a)(1) eliminates the Department's authority, parallel wording should be used to transfer the authority to the NRC to regulate and conduct enforcement. The NRC anticipates that it would use this authority to regulate these facilities in a manner consistent with its regulation of civilian nuclear facilities under its current authority.
I hope that these comments regarding section 15 of H.R.1656 will be of assistance to your Committee. Please do not hesitate to contact me,if you have any questions or would like some further elaboration of our views.
Sincerely, Shirley Ann Jackson cc: Representative Jerry F. Costello l