[ RadSafe ] Agreement States v. NRC (was: radiography incident)

Tue Apr 3 11:27:11 CDT 2012

Dear Bill,

As a side note, technically it is the EPA that is charged with setting the standards, but as the late Commissioner McGaffigan said, "the Commission did not wait for EPA to revise the 1960 and 1961 Presidential radiation protection guidance on public dose (500 millirem per year) when the Commission revised Part 20 in 1991. Instead the Commission adopted the 100 millirem per year limit recommended by the ICRP. If we had waited for EPA, we would still be waiting."  And, I note, it has still not been revised by EPA.

On to the incompatibility issue.  You might want to take a look at the briefing transcript from 2005): 
http://www.nrc.gov/reading-rm/doc-collections/commission/tr/2005/20050215.pdf (see pages 30 - 31, and be sure to read Commissioner McGaffigan’s statement about the states engaging in “civil disobedience”).

The incompatibility on this issue was not resolved until January 2012, when the Commission "cooperated" with the States and revised the compatibility level to allow the States to be more restrictive: 
http://www.gpo.gov/fdsys/pkg/FR-2012-01-25/html/2012-1523.htm (see the last sentence in the summary section).

There have been other examples over the years.

Sincerely,
Barbara

-----Original Message-----
From: William Lipton <doctorbill34 at gmail.com>
To: The International Radiation Protection (Health Physics) Mailing List <radsafe at health.phys.iit.edu>
Sent: Mon, Apr 2, 2012 9:37 pm
Subject: Re: [ RadSafe ] Agreement States v. NRC (was: radiography incident)

I realize that those who are, or have been involved with state programs are
ensitive about this, and I do not mean to say that state programs are
nimportant.  However, in practical terms, the NRC sets the standards, and
 doubt that they would allow any significant incompatibility on a core
equirement.  If there are any such incompatibilities, I appreciate hearing
bout them.
Bill Lipton
t's not about dose, it's about trust.

On Mon, Apr 2, 2012 at 7:02 PM, Barbara Hamrick <blhamrick at aol.com> wrote:
>
 Dear Jim,

 I'm very familiar with the IMPEP, having been on several IMPEP teams, and
 going through the IMPEP review process in California.  The program is based
 on a 1997 policy issued by the Commission on the topic of adequacy and
 compatibility.  It's not actually law.  Also, just for the record the IMPEP
 teams review both Agreement State and NRC regional programs, and include
 NRC and Agreement State team members.  Regardless of the cooperation of the
 States in this process, neither the process itself, nor the criteria for
 finding a program inadequate or incompatible are in law.

 Barbara

 -----Original Message-----
 From: Jim Hardeman <Jim.Hardeman at dnr.state.ga.us>
 To: radsafe <radsafe at health.phys.iit.edu>; CJB01 <CJB01 at health.state.ny.us
 >
 Sent: Mon, Apr 2, 2012 2:47 pm
 Subject: Re: [ RadSafe ] Agreement States v. NRC (was: radiography
 incident)

 All --

 ee http://nrc-stp.ornl.gov/impeptoolbox/impep.html

 In 1996, NRC began full implementation of the Integrated Materials
 erformance Evaluation Program (IMPEP) to ensure that public health and
 afety are adequately protected from the potential hazards associated
 ith the use of radioactive materials and that Agreement State programs
 re compatible with NRC's program." (emphasis added)

 im Hardeman
 >>> Barbara Hamrick <blhamrick at aol.com> 4/2/2012 16:57 >>>

 ear Bill,
 I have to side with Clayton on this.  The exact wording in Sec. 274.b.
 s “the Commission is authorized to enter into agreements with the
 overnor of any State providing for discontinuance of the regulatory
 uthority of the Commission” (for certain byproduct, source and special
 uclear materials).
 Section 274.d(2) contains a reference to being “compatible” with the
 ommission, and as Clayton properly points out, this is a finding that
 ust be made prior to entering into the agreement, but there is no
 rovision for continued compatibility (except with respect to uranium
 ill tailings).  Section 274.g states the “Commission is authorized and
 irected to cooperate with the States in the formulation of standards
 or protection…to assure that State and Commission programs…will be
 oordinated and compatible.  This is a mandate to the Commission, not to
 he States.
 Finally, in Section 274.j. the Commission may terminate or suspend an
 greement after reasonable notice and opportunity for a hearing, and
 pon a finding that the action is required to protect the public health
 nd safety, or if the State has not complied with a requirement in
 ection 274, which does not require continued compatibility with the
 ommission.
 The Commission has only terminated one agreement, since 1962; that was
 n agreement with Idaho, who requested that the Commission terminate the
 greement.  There was also one partial termination of which I’m aware,
 nd that was in New Mexico (I think) who requested that the Commission
 ake back a specific program (either sealed source and device approvals
 r something to do with waste).  It is true they can terminate or
 uspend an agreement, but they cannot walk into an Agreement State and
 tart enforcing federal law, because the federal law does not apply to
 greement State licensees; those licensees are governed by State law
 nless and until the State agreement is terminated or suspended.
 Sincerely,
 arbara L. Hamrick

 -----Original Message-----
 rom: William Lipton <doctorbill34 at gmail.com>
 o: Clayton J Bradt <CJB01 at health.state.ny.us>
 c: radsafe <radsafe at health.phys.iit.edu>
 ent: Mon, Apr 2, 2012 12:25 pm
 ubject: Re: [ RadSafe ] Agreement States v. NRC (was: radiography
 ncident)

 nder section 274 of the AEA the NRC can withdraw an Agreement State's
 emption from NRC regulation.  Also, an Agreement State's program must
 e
 mpatible with NRC regulations.  I interpret this as giving the NRC
 inal
 sponsibility.
 ill Lipton
 n Apr 2, 2012 2:10 PM, "Clayton J Bradt" <CJB01 at health.state.ny.us>
 rote:
  Bill Lipton wrote:
 **************
 n response:
 1.  The NRC still has final responsibility.  The licensee has an
 Agreement
 tate" license.  Although Texas issues the license, the standards are
 et
 y the NRC, and the NRC has responsibility for assuring that the
 tate's
 rogram is adequate.  It seems that there are grounds for thinking
 therwise.
 2.  The problem is not the regulations, but their enforcement.  " If
 exas
 ad Control don't [sic] have time or expertise to do it..." the NRC
 hould
 ithdraw it's agreement state status.
 3.  I agree.
 **********************

 ot so , Bill.
 The final responsibility always rests with the Agreement State. Under
 n
 greement, the NRC relinquishes its authority to regulate by-product
 aterial. The Agreement State enforces state, not federal, law through
 ts
 adioactive materials regulations. Although the NRC has claimed
 therwise,
 he Atomic Energy Act has no provision for NRC to assure that a state
 oes
 anything *once an agreement has been signed (with the sole exception
 f
 egulating uranium mill tailings site in accordance with federal
 tandards).
 As has been said elsewhere, Texas does in fact have the one of the
 est
 egulation programs for industrial radiography in the country (which
 eans
 robably one of the best on the planet). They do a better job than NRC.
 y
 ll means we should look at the licensee's compliance history and the
 tate's responses to previous incidents, but one should not expect to
 ind
 ny systemic problems with Texas' regulatory program.
 The reason we see the same radiography incidents repeating themselves
 ver
 nd over again is to be found in the nature of the industry itself.
 adiographers are generally not unionized and not paid all that much.
 urn
 ver can be fairly high. Many of the trainees speak English as a
 econd
 anguage. The work sites where radiography is performed, like all
 eavy
 onstruction sites, tend to be dirty, uncomfortable, and dangerous
 laces -
 ven without the radiography source! The radiographers frequently work
 nder considerable time pressure because the construction work has to
 top
 hile they set up their shots and make an exposure. Given all the
 actors
 orking against safety it is remarkable how few of these over-exposure
 ncidents occur.

 layton J. Bradt
 rincipal Radiophysicist
 YS Dept. of Health
 iggs Laboratory, Room D486A
 mpire State Plaza
 lbany, NY 12201-0509
 518-474-1993
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