ML20247K062
| ML20247K062 | |
| Person / Time | |
|---|---|
| Issue date: | 05/13/1998 |
| From: | Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Knowles T ALASKA, STATE OF, WESTERN GOVERNORS' ASSOCIATION |
| Shared Package | |
| ML20247K066 | List: |
| References | |
| NUDOCS 9805220008 | |
| Download: ML20247K062 (5) | |
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f t:u k UNITED STATES
{o j NUCLEAR REGULATORY COMMISSION WASHINGTON. D.C. 20066-0001
- ..,* l May 13, 1998 <
i The Honorable Tony Knowles l
Governor of Alaska '
Chairman, Westem Governors' Association 60017th Street Suite 1705 Soud: Tower Denver, CO 80202-G152
Dear Governor Knowles:
1 I am pleased to respond to your April 10,1998 letter to Chairman Shirley Ann J'ackson of the U.S. Nuclear Regulatory Commission (NRC). Your letter forwarded a copy of the Western Governors' Association (WGA) Policy Resolution 98-003 on Federal Facility Environmental Programs. Yourletter requested NRC's response and opinions regarding the resolution.
The WGA resolution primarily focuses on Federal Facility Compliance Act implementation issues and environmental cleanup at Department of Energy (DOE) facilities. This is an area where the NRC does not have direct responsibility or involvement. The resolution further states that the I Western Governors support the external regulation of DOE's radiological materials in addition to private facilities. In addition, the resolution states a WGA position that Congress and Federal agencies should clarify that the NRC and the Agreement States have regulatory authority over the siting, handling, storage and disposal of DOE radioactive waste at private sites and sites operated as " enterprise companies" and that all other State and Federal environmental laws apply to these sites.
Regarding NRC's activities related to External Regulation of DOE, after careful evaluation of the l DOE Advisory Committee on External Regulation report, the DOE Working Group study, and public comments received by the Commission as part of the NRC Strategic Assessment and Rebaseling initiative, the Commission decided to endorse NRC oversight of DOE facilities. In June of 1997, DOE and NRC agreed to pursue NRC regulation of DOE nuclear facilities on a pilot program basis. The pilot program is to determine the feasibility of NRC regulatory oversight of DOE nuclear facilities and to support a decision on whether to seek legislation to authorize NRC regulation of DOE nuclear facilities. A Memorandum of Understanding (MOU), which became effective on November 21,1997, between the NRC and the DOE signed by DOE Secretary Frederico Pena and NRC Chairman Shirley Ann Jackson, details the specific conditions and activities associated with the pilot program. The MOU objectives include:
(1) determining the value added by NRC regulatory oversight; (2) testing various regulatory approaches (for example, licensing and certification); (3) determining the status of DOE pilot facilities with respect to meeting existing NRC requirements, or acceptable alternatives, and identifying any significant safety issues; (4) determining the costs (to the DOE and the NRC) of NRC regulations; (5) evaluating attemative regulatory relationships, and determining DOE contract changes that might be necessary to provide for NRC oversight; (6) identifying transition i issues and solutions; (7) identifying legislative and regulatory changes needed; and y' (8) evaluating the appropriate process of stakeholder involvement should the NRC assume j broad external regulatory authority over DOE nuclear facilities.
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9805220008 980513 PDR STPRO ES
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The Honorable Tony Knowles The pilot program began in the Fall of 1997 at Lawrence Berkeley National Laboratory in California. On-site work for the Lawrence Berkeley National Laboratory pilot was completed on January 15,1998 and the site report is in the final stages of preparation. No significant safety issues were observed at Lawrence Berkeley.
The second pilot, the Radiochemical Engineering Development Center at Oak Ridge National Laboratory in Tennessee, is scheduled for completion in mid-July 1998. The third pilot for fiscal year 1998 is the Savannah River Site Receiving Basin for Offsite Fuels in South Carolina, which is scheduled tentatively for completion in late September 1998. States have been, and will continue to be, involved in these pilot programs.
Regarding the issue of NRC and Agreement State authority over DOE radioactive waste at private sites and sites operated as " enterprise companies," enclosed for your information is a recent letter to the Director of the Division of Radiation Protection in the Washington State Department of Health. This letter addresses NRC's position on these jurisdiction questions.
I hope you will find this information helpful. The NRC looks forward to' working with the Western Governors' Association and other State groups in addressing these important issues.
I Sincerely, I l'
L. ph allan E utive Director r Operations
Enclosure:
As stated l
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. s The Honorable Tony Knowles The pilot program began in the Fall of 1997 at Lawrence Berkeley National Laboratory in California. On-site work for the Lawrence Berkeley National Laboratory pilot was completed on January 15,1998 and the site report is in the final stages of preparation. No significant safety issues were observed at Lawrence Berkeley.
I The second pilot, the Radiochemical Engineering Development Center at Oak Ridge National l
Laboratory in Tennessee, is scheduled for completion in mid-July 1998. The third pilot for fiscal year 1998 is the Savannah River Site Receiving Basin for Offsite Fuels in South Carolina, which is scheduled tentatively for completion in late September 1998. States have been, and will continue to be, involved in these pilot programs.
Regarding the issue of NRC and Agreement State authority over DOE radioactive waste at private sites and sites operated as " enterprise companies," enclosed for your information is a recent letter to the Director of the Division of Radiation Protection in the Washington State Department of Health. This letter addresses NRC's position on these jurisdiction questions.
I hope you will find this information helpful. The NRC looks forward to working with the Wcstern Governors' Association and other State groups in addressing these important issues.
hhlSignedby L T Q4ba i L. Joseph Callan Executive Director for Operations
Enclosure:
As stated I
I Distribution:
l DIR RF (8G242) DCD (SP03)
! EDO RF (G980242) PDR (YES f_ NO )
l SECY RF (CRC-98-0342)
Western Governors' Assn. File DOCUMENT NAME: G:\SCD\ LETTER.WGA *See previous concurrence.
T n receive a cop e of this document. indicato in the box: "C" = Copy without at*w hrnent/ enclosure "E" = Copy with attachment / enclosure "N" = No copy OFFICE OSP l OSP:DD l OGC NMSS l OSP:D DEpy pol NAME SDroggitis:nb PHLohaus CWReamer JAustin RLBangart HLThoSFson L.) Callan .
DATE 04/29/98* 04/30/98* 05/04/98* 05/05/98* 05/04/98* 05/( /98 05/ 9 /98 OSP FILE CODE: SP-W-3
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The Honorable Tony Kno les The pilot program began in t e Fall of 1997 at Lawrence Berkeley National Laboratory in Califomia. On-site work for t Lawrence Berkeley National Laboratory pilot was completed on January 15,1998 and the site port is in the final stages of preparation. No significant safety issues were observed at Lawre Berkeley. After completion of the Berkeley site report, the Commission has requested that t e NRC staff prepare a revised MOU, in consultation with the DOE, that would incorporate lesso s leamed during the process and, if agreed, allow the DOE and NRC to recommend that the A ministration seek legislation promptly for iJRC regulatory authority for a specific pilot facility or lass of facilities, on the basis of information gained during the pilot program.
The second pilot, the Radiochemical En ineering Development Center at Oak Ridge National Laboratory in Tennessee, is scheduled f completion in mid-July 1998. The third pilot for fiscal l year 1998 is the Savannah River Site Re iving Basin for Offsite Fuels in South Carolina, which is scheduled tentatively for completion in la September 1998. States have been, and will continue to be, involved in these pilot progra s.
Regarding the issue of NRC and Agreement S te authority over DOE radioactive waste at private sites and sites operated as " enterprise mpanies," enclosed for your information is a recent letter to the Director of the Division of Ra 'ation Protection in the Washington State Department of Health. This letter addresses NR position on these jurisdiction questions.
I I hope you will find this information helpful. The NR looks forward to working with the Westem Govemors' Association and other State groups in ad essing these important issues.
Sin rely, l
t I
L. Jose Callan Executiv Director-for Oper ions 1
Enclosure:
As stated l'
l l l Distribution:
DlR RF (8G242) DCD (SP0 ) I EDO RF (G980242) PDR (YES_ '
NO ) l l
SECY RF (CRC 980342 ) .
Western Governors' Assn. File-DOCUMENT NAME: G:\SCD\ LETTER.WGA *See previous co currence.
Tm recofwe e cop i of this diocument, inslicate in the box: *C" s Copy b pttechm@t/ enclosure "E" = Copy with attechnepnt/enclosu "N" a No copy OFFICE OSP l OSP:DD l P 'OGQppl rf648SDj OSP: @ l' \ DEDR EDO l CWReamer (. dAdgifF/47 RLBanMr' I
NAME SDroggitis:nb PHLohaus HLthompson LJCallan DATE 04/29/98* 04/30/98* 05/V /98 M/'si98 05/04/98 08( /98 05/ /98 l OS FILE CODE: SP-W-3, l
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The Honorable Tony Knowles 1 l
The' ilot program began in the Fall of 1997 at Lawrence Berkeley National Laboratory in j Cal ia. On-site work for the Lawrence Berkeley National Laboratory pilot was completed on Janua 315,1998 and the site report is in the final stages of preparation. No significant safety
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issues were observed at Lawrence Berkeley. After completion of the Berkeley site report, the l Commissior(has requested that the NRC staff prepare a revised MOU, in consultation with the
, 00E, that would incorporate lessons learned during the process and,1 agreed, allow the DOE l and NRC to re' commend that the Administration seek legislation promptly for NRC regulatory l authority for a s' cific pilot facility or class of facilities, on the basis of information gained during l the pilot program.
l ' The second pilot, the biochemical Engineering Development Center at Oak Ridge National l l Laboratory in Tennesse is scheduled for completion in mid-July 1998. The third pilot for fiscal year 1998 is the Savanna River Site Receiving Basin for Offsite Fuels in South Carolina, which is scheduled tentatively for mpletion in late September 1998. States have been, and will continue to be, involved in th e pilot programs.
l l
l Regarding the issue of NRC and reement State authority over DOE radioactive waste at private sites and sites operated as terprise companies," enclosed for your information is a recent letter to the Director of the Di 'on of Radiation Protection in the Washington State l Department of Health. This letter add ses NRC's position on these jurisdiction questions. ;
i i hope you will find this information helpful. The NRC looks forward to working with the Western i Governors' Association and other State gro s in addressing these important issues.
Sincerely, l
L. qseph Callan Executive Director for dperations
Enclosure:
As stated Distribution:
DIR RF (8G242) DCD (SP08)
EDO RF (G980242) PDR (YES.f NO )
SECY RF (CRC 980342 Alaska File DOCUMENT NAME: G:\SCD\LE '
ER.WGA Ti roceive a cop t of this document, indicate I: "C" a Copy without attachment / enclosure "E" = Copy with attachment / enclosure *ms No copy OFFICE Sh0SP 1 Oegl OGC l NMSS l OSP:D l DEDR EDO l NAME SDroggitis:nb PHfo tauk CWReamer JAustin RLBangart HLThompson LJCallan DATE 04/% /98 046()98 04/ /98 04/ /98 04/ /98 04/ /98 04/ /98 OSP FILE CODE: SP-NA-1
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O g i UNITED STATES g NUCLEAR REGULATORY COMMISSION
- WAsMINGToN, D.C. 3055H001 k...*
e April 13, 1998 John L. Erickson, Director Division of Rac;iation Protection Department of Health Airdustrial Center Building #5 P.O. Box 47827 Olymple, Washington 98504-7827
Dear Mr. Erickson:
This letter provides our response to your December 1,1997 request regarding regulation of 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 exemption urdr 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 i:luor Daniel Northwest, Inc., is appropriate, 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.
The Commission's regulations (10 CFR 30.12,40.11 and 70.11) contain exemptions for activities conducted for DOE by certain entities. These regulations contain, among other things, 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, ender 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 ed safety." As indicated in a 1981 Commission Policy Statement, Agreement States are required to have equivalent provisions in their own 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.
l The exemptions in the Commission's regulations were originally developed and promulgated by l 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 r 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 1
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l John L Erickson 2 normallicensing requirements since the AEC itself would oversee and impose health and safety requirements on the contractom. 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 current 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 appear to be any instances in which NRC has sought to regulate DOE contractors or subcontractors at a DOE owned or controlled site on the grounds they did not qualify for an exemption. This history of not licensing DOE contractors or subcontractors at DOE owned or 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 activities (rather than a license) would contain the provisioris 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. riowever, 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 cornpany" has no particular relevance to the
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application of the regulations.
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John L. Enckson 3 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 Atomic Energy Act.
l Sincerely, Carl J. Paperiello, Director
- Office of Nuclear Material Esfety and Safeguards l
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DESCRIPTION - REVIEW OF POLICY RESOLUTIONS --FEDERAL FACILITY )
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EDO Principal Correspondence Control
- FROM: DUE:C 05/07/98 EDO CONTROL: G980242 DOC DT: 04/10/98 Governor Tony Knowles FINAL REPLY:
Western Governors' Association TO: ' ' '~
Chairman Jackson FOR SIGNATURE OF : ** GRN **
CRC NO: 98-0342 Callan, EDO DESC:
ROUTING:
REVIEW OF POLICY RESOLUTIONS -- FEDERAL FACILITY Callan ENVIRONMENTAL PROGRAMS Thadani Thompson Norry Blaha Burns DATE: 04/16/98 Paperiello,NMSS ASSIGNED TO:
Merschoff, RIV CONTACT:
, SP Bangart SPECIAL INSTRUCTIONS OR REMARKS:
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OFFICE OF THE SECRETARY CORRESPONDENCE CONTROL TICKET PAPER NUMBER: CRC-90-0342 LOGGING DATE: Apr 15 98 ACTION OFFICE: EDO AUTHOR: GOV TONY KNOWLES AFFILIATION: COLORADO ADDRESSEE: CHAIRMAN JACKSON LETTER DATE: Apr 10 98 FILE CODE:
SUBJECT:
WESTERN GOVERNORS' POLICY RESOLUTIONS ACTION: Appropriate DISTRIBUTION: CHAIRMAN SPECIAL HANDLING: NONE CONSTITUENT:
NOTES: OCM #12796 DATE DUE:
SIGNATURE: .
DATE SIGNED:
AFFILIATION:
EDO - G980242
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