ML20155A505
| ML20155A505 | |
| Person / Time | |
|---|---|
| Issue date: | 10/21/1998 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Inouye D SENATE |
| Shared Package | |
| ML20155A511 | List: |
| References | |
| NUDOCS 9810290155 | |
| Download: ML20155A505 (3) | |
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- UNITED STATES h j g NUCLEAR REGULATORY COMMISSION ,
, [- WASHINGTON, D.C. 20555-0001 1
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\ / October 21, 1998 CHAIRMAN The Honorable Daniel K. Inouye United States Senate l Washington, D.C. 20510-1102
Dear Senator Inouye:
Thank you for your letter of September 8,1998, and the attached information regarding an upcoming ballot initiative in Hawaii County regarding commercial irradiation facilities. In particular, you have requested that the Nuclear Regulatory Commission (NRC) review and comment on information contained in pamphlet literature being circulated in Hawaii by opponents of irradiation, in addition, you have sought the NRC's assessment of the statutory validity of the proposed ban as well as the extent of the NRC's authority to regulate an irradiation facility in Hawaii.
NRC REGULATION OF IRRADIATORS Pursuant to the Atomic Energy Act of 1954, the NRC regulates source, byproduct, and special nuclear material as defined in that Act for the purposes of protecting public health and safety.
As such, the NRC regulates the use of byproduct materialin commercialirradiation facilities.
Irradiation facilities licensed by the NRC must meet public and occupational dose standards and other general radiation protection requirements found in the Commission's regulations at Title 10 Code of Federal Regulations (CFR) Part 20. In addition, the Commission imposes specific requirements on certain types of irradiation facilities pursuant to 10 CFR Part 36.
These requirements include provisions for obtaining an NRC license prior to beginning construction of a new irradiator, design and performance requirements for irradiator facilities and sealed sources, facility construction monitoring and acceptance testing, and for operation of the irradiator in areas such as worker training, operating and emergency procedures, and inspection and maintenance. Under section 274b of the Atomic Energy Act, certain States have entered into agreements with the NRC to assume regulatory responsibilities over certain types of material in those States including byproduct material used in commercial irradiation f acilities.
Currently Hawaii does not have such an agreement with the NRC; therefore, the NRC has jurisdiction in Hawaii.
PREEMPTION ISSUES You have also requested our views on the statutory validity of the proposed ban. By necessity j our response has to be general, limited to the principles of law that govern this agency and its /
relationships with States and municipalities. In most cases, the NRC does not interject itself into questions of preemption that arise between private industry and a State or local government absent some overriding agency interest or unless the NRC has been specifically requested to do so by the Courts or by the Department of Justice. The primary legal pnnciple is that the Atomic Energy Act (AEA) of 1954, as amended, occupies the field with rc spect to -
issues of radiation protection in the use of source, byproduct, and special nuclear material, as yD 9810290155 981021 PDR CotttS NRCC CORRESPONDENCE PDR
l 2-I these terms are defined in the Act. Therefore, as a general matter, States and local govemments are preempted from regulating such material for the purposes of radiation protection. If, however, the basis for a State or local governmental action is something other j
than the protection of the health and safety of workers and the public from radiological hazards of regulated materials, the action is not preempted. See, e.g. Pacific Gas and Electric Co. v.
State Enerav Resources Conservation and Development Commission 461 U.S.190 (1983).
Nevertheless, even if the State's purpose is not protection against radiation hazards, the State law may still be preempted if it directly interferes with or has a substantial effect on federal regulation of radiation hazards. As a consequence, dual Federal-State regulation of the radiation hazards associated with use of these materials is not allowed. See 10 C.F.R. 8.4 an 10 C.F.R.150.
Given the law in this area, the proposed ballot initiative in Hawaii County raises potential preemption concerns because it would appear to prohibit, for the specific purpose of protecting the public from the hazards of radiation, a use of byproduct materialin the County (see Hawaii County Code, Chapter 14, Article 8, Section 14-44). However, we hasten to add that the NRC does not have authority to issue final, legally binding decisions regarding issues of State or l
local government jurisdiction and AEA preemption. Such decisions are reserved to the Courts. l Court decisions on these matters usually result from legal challenges by licensees in response to State or local government efforts to impose regulatory requirements. ,
PAMPHLET INFORMATION Much of the information in the pamphlet literature concerns general matters of food safety over which the NRC has no regulatory jurisdiction. As such, we are unable to provide information on those issues; however, we assume that those issues will be addressed by the appropriate Federal agencies such as the U.S. Food and Drug Administration and the U.S. Department of Agriculture. We note the availability of studies by the National Academy of Sciences and other organizations regarding the issues of safety and the benefits of food irradiation. From a radiological safety perspective, the NRC view is that the irradiator industry has been well managed and has had an excellent safety and compliance history. Nevertheless, over its more than thirty year history, the irradiator industry has experienced some problems, some of which are identified in the pamphlets. Overall, however, our experience with this industry indicates that irradiator workers, who are required to be monitored for radiation exposure pursuant to 10 C.F.R. 36.55, actually receive little radiation exposure. In most cases, the radiation exposure to workers is so low that it cannot be detected or distinguished from natural background levels of radiation. Because of the significant structures built to shield these operations, members of the public in the vicinity of an irradiation facility receive little, if any, radiation exposure from the irradiation sources. Based on survey data from our licensees, it appears that the average dose to members of the public at the facility boundary is not distinguishable from natural background levels of radiation. Recognizing the potential radiation hazards involved, the NRC has instituted thorough licensing and inspection programs, with inspections conducted every year, to ensure compliance by this category of licensees. Within this regulatory regime, this industry has safely irradiated products, including food containers and some food products, for many years in the United States. Regarding the UCLA study on health effects from low doses of radiation referenced in the pamphlet, it should be noted that the study's conclusions are not consistent with nor do they reflect the consensus of the National Council on Radiation Protection and Measurements, the International Commission on Radiation Protection or the Health Physics Society (HPS). Although the Commission has taken no official
position on the study, it is our understanding that the President of the HPS op study as lacking statistical power and failing to rule out confounding effects of other unmeasured risks to workers such as tobacco use and alcohol consumption.
If you have further questions on these matters, please contact me.
Sincerely, Shirley Ann Jackson O