ML20217C728
| ML20217C728 | |
| Person / Time | |
|---|---|
| Issue date: | 04/13/1998 |
| From: | Paperiello C NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Erickson J WASHINGTON, STATE OF |
| Shared Package | |
| ML20217C721 | List: |
| References | |
| NUDOCS 9804230411 | |
| Download: ML20217C728 (4) | |
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ye UNITED STATES NUCLEAR REGULATORY COMMISSION I
WASHINGTON, D.C. 20565-0001 April 13, 1998
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John L. Erickson, Director Division of Radiation Protection Department of Health Airdustrial Center Building #5 P.O. Box 47827 I Olympia, Washington 98504-7827
Dear Mr. Erickson:
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1 This letter provides our response to your December 1,1997 request regarding regulation of j certain activities on the Hanford Reservation. Your letter raises several questions about the authority the State of Washington has to regulate Fluor Daniel Northwest, Inc., a firm which uses U.S. Department of Energy (DOE) owned radioactive material on DOE property as a DOE subcontractor. You have indicated that the State wishes to exert regulatory authority over this firm because you believe its activities do not currently meet any of the criteria for an automatic j exemption under the State's equivalent of 10 CFR 30.12. In particular, you would like to know whether 1) the Nuclear Regulatory Commission (NRC) has made a specific determination that ,
an exemption of Fluor Daniel Northwest, Inc. is authorized by law, and 2) NRC has reviewed the terms of the contract to determine if adequate controls exist. To our knowledge, NRC has not examined the specific contract provisions in ques' ion and has made no specific determination regarding whether an exemption for Fluor Daniel Northwest, Inc., is appropriate, i under the terms of 10 CFR 30.12. However, as discussed in more detail below, we believe that a substantial question exists regarding the NRC's or the State's jurisdiction to license the activities as described in your letter. l The Commission's regulations (10 CFR 30.12,40.11 and 70.11) contain exemptions for l activities conducted for DOE by certain entities. These regulations contain, among other things, l generic exemptions for DOE prime contractors conducting certain activities on government ,
owned or controlled sites. The regulations also allow for case by case exemptions of entities ;
(not automatically exempt by the terms of the regulation)if the Commission determines that
! such an exemption " ..is authorized by law; and that, under the terms of the contract or subcontract, there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety." As indicated in a 1981 Commission Policy Statement, Agreement States are required to have equivalent provisions in their own i regulations (see," Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement," 46 FR 7540, January 23,1981). The Policy Statement indicates that an Agreement State may issue case by case exemptions only upon a joint determination by the State and NRC that the necessary findings have been made.
The exemptions in the Commission's regulations were originally developed and promulgated by the Atomic Energy Commission (AEC) in 1964 when that agency was performing the dual functions of licensing entities for the commercial use of source, byproduct, and special nuclear materials and contracting with commercial entities for the performance of work for the AEC itself. For the latter contracting matters, the AEC, in essence, exempted its contractors from 9804230411 980415 PDR STPRG ESGGEN PDR
1 John L. Enckson 2 l
normallicensing requirements since the AEC itself would oversee and impose health and safety i requirements on the contractors. Following enactment of the Energy Reorganization Act and its transfer of licensing and related regulatory functions to the NRC, the agency continued the exemptions in effect under NRC authority as part of a general adoption of the technical and conforming amendments. However, because these regulations were developed in a context different from that under which NRC operates today, the currt ot application of these regulations creates some very difficult implementation issues. In particular, recent DOE efforts to privatize its activities have created new questions about the applicability of these regulations.
Although NRC has maintained the exemptions for contractors in its regulations, there do not I appear to be any instances in which NRC has sought to regulate DOE contractors or I subcontractors at a DOE owned or controlled site on the grounds they did not qualify for an l exemption. This history of not licensing DOE contractors or subcontractors at DOE owned or I controlled sites as well as the exemptions in the regulations for prime contractors on such sites appears to be based on the regulatory framework established in the 1946 Atomic Energy Act (AEA), the AEA of 1954, and the Energy Reorganization Act, that any DOE contract for I activities (rather than a license) would contain the provisions necessary for adequate health and safety protection for activities conducted pursuant to contract (including activities conducted through subcontract). This history reflects a view that, as a general matter, the Commission (and, thus, the Agreement States) will not regulate DOE contractors and subcontractors conducting activities for DOE on DOE owned or controlled sites. Instead, DOE has the authority and responsibility to exercise safety oversight through its own contracts with the various entities conducting activities for the Department at sites it owns or controls.
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.
We hasten to add, however, that, given the complexity of the issues involved, any specific regulatory determination must necessarily be made on a case by case basis. Absent legislation changing the extent to which DOE contractors are subject to NRC and Agreement State jurisdiction, such complex determinations are inherent in resolving these issues.
In the specific case raised in your letter, we believe that there is a substantial question regarding whether the firm should be subject to Agreement State licensing to the extent that it conducts activities for DOE on a DOE owned or controlled site even though the entity may not be a " prime" contractor. However, without more information on the arrangements (particularly for radiation safety) under which Fluor Daniels Northwest, Inc., is in possession of the DOE material on a DOE site, we cannot provide more definitive guidance on this matter. In addition, since the regulations do not employ the term " enterprise company," the fact that the firm in question has been identified as an " enterprise company" has no particular relevance to the application of the regulations.
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l l John L. Erickson 3 l
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 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 Atomic Energy Act.
Sincerely,
, L Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards I
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. l EXECUTIVE TASK MANAGEMENT SYSTEM
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<<< PRINT SCREEN UPDATE FORM >>>
TASK # - 8S-29
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TASK DESCRIPTION - LTR. TO R. BANGART FROM D. FLATER - RE INTERPRETATION
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OF EXEMPTION CONTAINED IN 10 CFR 30.12 REQUESTING
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OFF. - IA REQUESTER
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PROJECT STATUS - OSP DUE DATE: 03/10/98
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NEEDS TO GO TO OGC FOR LEGAL OPINION.
PLANNED ACC. -N LEVEL CODE - 1 1
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, STATE OF 4g6 WA I .
TERRY E. BRANSTAD. GOVERNOR DEPARTMENT OF PUBLIC HEALTH CHRISTOPHER G. ATCHISON. DIRECTOR January 30,1998 e b
Richard L Bangart, Director j l Office of State Programs (03D23) w US Nuclear Regulatory Commission Washington,DC 20555 n @"o 1
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Dear Mr. Bangart:
- p. i We have recently begun to look very closely at an exemption contained in our rules. This exemption, required to maintain findings of compatibility during NRC reviews is the same as that contained in 10 CFR 30.12. This rule exempts,in general, the U.S. Department of Energy i and its prime contractors from licensing requirements.
In attempting to understand the exemption, we have looked closely at its history. We have, to this point, been unable to find anything similar to the " Statements of Consideration" contained in the Federal Register when proposed changes are published today. We then turned to the Atomic Energy Act of 1954 (as amended) [the Act] and the Energy Reorganization Act of 1974.
The Energy Reorganization Act created the Energy Research and Development Administration (ERDA) which later became the U.S. Department of Energy (DOE), and the NRC. It also transferred the licensing authority, originally held by the Atomic Energy Commission. In addition,it transferred to ERDA the NON-licensing activities of the AEC.
Section 101 of the Act describes those situations in which a license is required. It excepts the authorization in Section 91 of that same law.
Section 91 of the Act grants authority to "the Commission" to "... conduct experiments and do research and development work in the military application of atomic energy..." and " engage in the production of atomic weapons or atomic weapons parts...." The word " Commission" is defined as the AEC which by extension oflogic means DOE.
It appears that NRC granted the exemption of 30.12 in response to this part of the Act. It is our opinion that if the DOE, or one of its prime contractors, is NOT engaged in one of the items described in Section 91, the exemption does not apply.
We are, therefore, considering changing the wording of our exemption to, "Any U.S.
Department of Energy contractor or subcontractor and any U.S. Nuclear Regulatory Commission contractor or subcontractor ... operating within this state and engased in the activities described in Section 91 of the Atomic Energy Act of 1954 (as amended) is exempt from these rules...."
6FA6 9 LUCAS STATE OFFICE BUILDING / 321 E.12TH ST. / DES MolNES. IOWA 50319-0075 DEAF RELAY (HEARING OR SPEECH IMPAIRED) 1*800-735-2942/ INTERNET: HTTP;//IDPH. STATE.l A.U S/
P'AMsLY & CoMM. HEALTH HEALTH PROTECTION PLANNING & ADMINISTRATION SUBSTANCE Asust & HEALTH PROMOTION DIRECTOR 's Orrict 015-281 3931 515-281 5643 515 281 5787 515 281-3641 515 281 5604 FAX /315 242 6384 F Ax/515-281 4529 fax /515 2814958 fax /515-281 -4535 fax /515 2814958 s s A ,-
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Bangart 1/30/98 Page 2 For purposed of our edification, please provide NRC's interpretation of the exemption contained in 10 CFR 30.12 and the " Statements of Consideration" describing the purpose for the exemption. We also request that the interpretation include the reasons for the exemption, the historical situation prompting the exemption and a detailed explanation of to whom the exemption applies.
I If you have any questions or comments, please contact me.
Sincerely, l
Donald A. Flater, Chief _
Bureau of Radiological Health l 515-281-3478 - Office !
515-242-6284 - FAX dflater@idph. state.ia.us DAF/Ir )
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