ML20217C718
| ML20217C718 | |
| Person / Time | |
|---|---|
| Issue date: | 04/15/1998 |
| From: | Bangart R NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Flater D IOWA, STATE OF |
| Shared Package | |
| ML20217C721 | List: |
| References | |
| NUDOCS 9804230409 | |
| Download: ML20217C718 (3) | |
Text
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@ ue p* 4 UNITED STATES ;
NUCLEAR REGULATORY COMMISSION f WASHINGTON, D.C. 20555-0001 l % April 15, 1998 l
Donald A. Flater, Chief Bureau of Radiological Health l l lowa Department of Public Health l Lucas State Office Building 321 E.12th St.
Des Moines, Iowa 50319-0075 1
Dear Mr. Flater:
This letter provides our response to your January 30,1998 request regarding lowa's rules (i.e.,
Iowa's equivalent of 10 CFR 30.12) for the exemption of U.S. Department of Energy (DOE) contractors. Your letter indicates that Iowa is currently considering changing the wording of its
! exemption to limit its applicability to "[a]ny U.S. Department of Energy contractor . . operating I within this state and engaged in the activities described in Section 91 [ Military Applications of Atomic Energy] of the Atomic Energy Act of 1954 (as amended) is exempt from the rules . "
l The rationale for your proposed change appears to stem from Section 101 of the Atomic Energy Act of 1954, as amended, which exempts certain activities in the " military application of atomic energy" from the licensing requirements of that section. For the reasons set out below, we do not agree with your interpretation of the cited provisions of the AEA.
The U.S. Atomic Energy Commission (AEC) issued regulations under the Atomic Energy Act of 1954 which granted exemptions from licensing to AEC contractors but, in doing so, did not provide an explanation nor analysis of Section 110a., or any other statutory authority for the AEC's action. In 1956, the AEC adopted license exemptions for AEC production and utilization facility contractors (21 FR 355,356 (1956)) and also extended license exemptions to AEC contractors involved in activities other than production and utilization facilities (21 FR 764,765 (1956)). Although the AEC did not make the basis explicit, it could be argued that the AEC license exemptions simply codified the AEC practice, adopted by Congress in the 1954 Act, not to require the licensing of AEC contractors involved in the operation of Commission-owned facilities, including the acquisition, transfer, use, and disposal of radioactive materials related thereto. In 1964, the AEC revised its contractor license exemptions to clarify their scope (29 FR 14401 (1964)). The revised exemptions contained specific exemptions for AEC prime contractors performing functions under the contract at a U.S. Government-owned or controlled site (10 CFR 30.12,40.11,50.11, and 70.11). For other prime contractors and subcontractors, a license exemption was permitted if the Commission determined that there 'nas adequate i assurance, under the terms of the contract or subcontract, that public health and safety were I
protected.
l The AEC license exemptions for AEC contractors appear to be based on the regulatory I framework established by the 1946 Atomic Energy Act, the AEA of 1954, and the adoption of
$110a, and the subsequent division of responsibility adopted by the Energy Reorganization Act of 1954 that any AEC contract would contain the necessary health and safety protection
\
i provisions that the AEC could enforce as easily by the terms of a contract as by license j\
conditions, and therefore, that both types of control should not be required. Furthermore, if
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Donald A. Flater 2 APR 15 Sl8 facilities were to be exempt from licensing and subject to safety controls through the contracts, !
it made little sense to require the nuclear materials used on such sites to be licensed rather than subject to contractual controls. When the NRC was created in 1975, it adopted, without extensive explanation or discussion, the AEA regulations relating to exemptions from licensing for AEC (then the Energy Research and Development Administration, now DOE) contractors. It is important to note that, although NRC has maintained these exemptions for contractors in its regulations, there do not appear to be instances in which NRC has sought to regulate DOE contractors (or subcontractors) at govemment owned or controlled sites on the grounds that they did not qualify for a specific exemption. I We note that there are cases where a firm has a license for activities conducted on a DOE owned or controlled site. For instance, if a private entity in an Agreement State operates on a leased portion of a DOE site and performs activities for the commercial sector rather than for DOE, it is likely that the entity would need a license absent a joint NRC and Agreement State ;
determination that an exemption is warranted. In such a case, the activities are being conducted for commercial customers rather than exclusively for DOE and it is unlikely that DOE would exercise safety oversight of the work. Similarly, where a commercial entity conducts activities for DOE off a DOE owned or controlled site, an NRC or Agreement State license likely would be required.
Our understanding of the legislative and regulatory bas!s for the current regulations provides little support for the position offered in your letter. We have not identified any information that would indicate that these contractor exemptions were intended to be limited to the military application of atomic energy. In addition, we note that section 101 of the AEA only applies to the licensing of utilization and production facilities. Given the inconsistency between NRC's view and that offered in your letter, the proposed change suggested in your letter would be inconsistent with NRC's interpretation of the Act and, as such, would make Iowa's regulation incompatible with that of NRC.
In closing we note that legal issues have been raised, which may relate to NRC's overall authority to regulate DOE contractors, in ongoing litigation before the U.S. Court of Appeals for the Fifth Circuit (Waste Control Soecialist. LLC v. U.S. Deoartment of Enerov, No. 97-11353).
The State should be aware that the resolution of these issues may have an impact on the application of Agreement State regulatory authority over DOE contractors (and subcontractors) in the future. Finally, note that we have not addressed the limitations, if any, that may impact the State's ability to regulate Federal contractors aside from what is and is not allowed under the AEA. For your information, we have enclosed a recent letter from this office to John Erickson of the State of Washington which addresses some related issues.
Sincerely, lC ( OW;tti Richard L. Bangart, Director h Office of State Programs t/
Enclosure:
As stated I
Y
., 9 .
Donald A. Flat:r 2 APR 151998 facilitiss w:ra to be exempt from licensing and subjset to safety controls through the contracts, it made little sense to require the nuclear materials used on such sites to be licensed rather than subject to contractual controls. When the NRC was created in 1975, it adopted, without extensive explanation or discussion, the AEA regulations relating to exemptions from licensing for AEC (then the Energy Research and Development Administration, now DOE) contractors. It is important to nete that, although NRC has maintained these exemptions for contractors in its regulations, there do not appear to be instances in which NRC has sought to regulate DOE contractors (or subcontractors) at government owned or controlled sites on the grounds that t they did not qualify for a specific exemption.
We note that there are cases where a firm has a license for activities conducted on a DOE owned or controlled site. For instance, if a private entity in an Agreement State operates on a leased portion of a DOE site and performs activities for the commercial sector rather than for DOE, it is likely that the entity would need a license absent a joint NRC and Agreement State determination that an exemption is warranted. In such a case, the activities are being conducted for commercial customers rather than exclusively for DOE and it is unlikely that DOE would exercise safety oversight of the work. Similarly, where a commercial entity conducts activities for DOE off a DOE owned or controlled site, an NRC or Agreement State license likely would be required.
Our understanding of the legislative and regulatory basis for the current regulations provides little support for the position offered in your letter. We have not identified any information that would indicate that these contractor exemptions were intended to be limited to the military application of atomic energy. In addition, we note that section 101 of the AEA only applies to the licensing of utilization and production facilities. Given the inconsistency between NRC's view and that offered in your letter, the proposed change suggested in your letter would be inconsistent with NRC's interpretation of the Act and, as such, would make Iowa's regulation incompatible with that of NRC.
In closing we note that legalissues have been raised, which may relate to NRC's overall authority to regulate DOE contractors, in ongoing litigation before the U.S. Court of Appeals for the Fifth Circuit (Waste Control Specialist. LLC v. U.S. Decartment of Enerav, No. 97-11353).
The State should be aware that the resolution of these issues may have an impact on the application of Agreement State regulatory authority over DOE contractors (and subcontractors) in the future. Finally, note that we have not addressed the limitations, if any, that may impact the State's ability to regulate Federal contractors aside from what is and is not allowed under the AEA. For your information, we have enclosed a recent letter from this office to John Erickson of the State of Washington which addresses some related issues.
I Sincerely, gg g RICHARD L NGART Richard L. Bangart, Dir or j Office of State Programs :
l
Enclosure:
As stated Distribution: _ _
DlR RF (8S-29) lowa File DCDl(SP07)1PDR(YESf_ NO ) l PLohaus FCameron, OGC SDroggitis CPaperiel!o, NMSS LBolling, ASPO DMossburg, SECY DOCUMENT NAME: G:\FLATER.lS To receive a cop r of this document. Iqdicate in the box: "C" = Copy without attachment / enclosure 'E" = Copy with attachment / enclosure "W = No copy OFFICE OSP n l l NAME RLBangart:kF DATE 04//G98 OSP FILE CODE: SP-AG-9 a