ALL Agreement States Letter FSME-14-039

ML14224A004

ENCLOSURE
 April 22, 2014

ALL AGREEf\IENT STATES

CLARIFICATION ON THE DETERMINATION OF REGULATORY JURISDICTION OF NON-

FEDERAL ENTITIES CONDUCTING CLEANUP ACTMTIES ON FEDERAL PROPERTY IN
AGREEf\IENT STATES (FSf\IE-14-039)

Purpose: To provide the ~reement States additional guidance to that in SA-500, "Jurisdiction
Determinations" (~encywide Documents and Access Management System Accession number
ML 110600350) to assist in making determinations of regulatory jurisdiction involving non-federal
entities conducting cleanup activities on federal property in ~reement States.

Background: There are several military and former military sites around the country where the
responsible Federal agency, i.e., U.S. Department of the Air Force, U.S. Department of the
Army, or U.S. Department of the Navy, is implementing site reclamation activities to address the
removal or remediation of hazardous materials, including radiological material, under the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42
U.S.C. 9601 et seq., also known as Superfund. The U.S. Nuclear Regulatory Commission's
(NRC) Office of Federal and State Materials and Environmental Management Programs (FSME)
has received a number of inquiries into its regulatory jurisdiction at various sites where the
responsible Federal agency utilizes non-federal entities, i.e., private service providers, to
conduct remediation activities involving Atomic Energy Act, of 1954, as amended (AE~. 42
U.S. C. 2011-2297h (2006), regulated radioactive materials (byproduct, source, or special
nuclear materials) on federal property located in an ~reement States. To assist it in making
future determinations, NRC staff has developed a decision process that is consistent with the
procedures in SA-500.

Discussion: In AEA Section 274b., Congress authorized the NRC and States to enter into
agreements where a State assumes, and the NRC relinquishes regulatory authority over
specified radiological materials to protect public health and safety. To the extent that a State
has entered into an 274b. ~reement with the NRC, the ~reement State has the ability to
regulate the use of such AEA radioactive material within its borders, subject to some limitations.
One such limitation is that under a Section 274b ~reement, as implemented by 10 CFR Part
150, an ~reement State does not have the ability to regulate a Federal entity. Another
limitation is that depending upon the jurisdictional status of the land on which a private-entity is
working; an ~reement State may not have regulatory authority over the private entity's use or
possession of byproduct, source, or special nuclear material while on that land. FSI\tE staff
have recently evaluated whether an ~reement State has the ability to regulate a private entity's
use or possession of AEA radioactive material on Federally-owned or Federally-controlled
property.
FSI\tlE-14-039 2

As stated in SA-500, the determination of jurisdiction in these cases depends on whether the
Federal government exercises exclusive legislative jurisdiction over the property or some other
lesser degree of legislative jurisdiction, i.e., concurrent jurisdiction, partial jurisdiction, or
proprietorial jurisdiction. SA-500 provides the basic process for determining whether regulatory
jurisdiction for Federally-owned or Federally-controlled property rests with the NRC or the
~reement State.

FSIVE staff has recently developed a more detailed process for determining jurisdiction at sites
within ~reement States, particularly at current or former military facilities. Attachment 1
outlines a process to assist in determining whether the ~reement State or the NRC has
regulatory jurisdiction over a non-federal entity working at a federal facility in an ~reement
State. Since these determinations can be complex, ~reement States and licensees are
encouraged to contact FSIVE staff if they have questions or need clarification on the process in
Attachment 1.

If you have any questions regarding the correspondence, please contact me at 301-415-3340 or
the individual named below.

POINT OF CONTACT: Stephen Poy INTERNET: [email protected]

TELEPHONE: (301) 415-7135 FAX: (301) 415-5955

/RN

Laura A Dudes, Director

Division of Materials Safety and State ~reements
Office of Federal and State Materials
and Environmental Management Programs

Attachment:
Jurisdiction Decision Process
FSI\IE-14-039 2

N3 stated in SA-500, the determination of jurisdiction in these cases depends on whether the
Federal government exercises exclusive legislative jurisdiction over the property or some other
lesser degree of legislative jurisdiction, i.e., concurrent jurisdiction, partial jurisdiction, or
proprietorial jurisdiction. SA-500 provides the basic process for determining whether regulatory
jurisdiction for Federally-owned or Federally-controlled property rests with the NRC or the
~reement State.

FSI'vE staff has recently developed a more detailed process for determining jurisdiction at sites
within ~reement States, particularly at current or former military facilities. Attachment 1
outlines a process to assist in determining whether the ~reement State or the NRC has
regulatory jurisdiction over a non-federal entity working at a federal facility in an ~reement
State. Since these determinations can be complex, ~reement States and licensees are
encouraged to contact FSI\tE staff if they have questions or need clarification on the process in
Attachment 1.

If you have any questions regarding the correspondence, please contact me at 301-415-3340 or
the individual named below.

POINT OF CONTACT: Stephen Poy INTERNET: [email protected]

TELEPHONE: (301) 415-7135 FAX: (301) 415-5955

IRA/

Laura A Dudes, Director

Division of Materials Safety and State ~reements
Office of Federal and State Materials
and Environmental Management Programs

Attachment:
Jurisdiction Decision Process

DISTRIBUTION:
MSSA r/f

M L 14086A466
OFC FSME/ASPB FSIVE/ASPB FSI\tE/ASPB OGC FSME/MSSA
SPoy DSollenberger DWhite TStokes LDudes
NAME for
BJones
DATE 4/9/14 4/9/14 4/22/14 4/9114 4/22/14
OFFICIAL RECORD COPY
The NRC's regulatory authority over a service provider licensee performing work under a
contract with a Federal entity is determined using the following decision process. Figure 1
provides a flow chart of the process. The process involves three determinations: 1) the
regulatory jurisdiction for the radioactive material; 2) the contractor's relationship with the
Federal entity; and 3) the regulatory jurisdiction of the land where the activity will be conducted.

This decision process is used by the NRC staff to determine the regulatory jurisdiction for the
service provider contractor and does not change the regulatory jurisdiction for the radioactive
material or remediation process.

Regulatory Jurisdiction for the Radioactive Material -Is it AEA material? (1)

The first step of the decision process is to determine whether the NRC is authorized to regulate
the specific radioactive material under the Atomic Energy Act of 1954, as amended (AEA). Note
that some Federal sites, or areas within a site, could have atomic weapons material that is not
under NRC's regulatory jurisdiction. In other cases the radioactive material may not be AEA
radioactive material and the State has regulatory authority (e.g., radon).

Contractor Relationship with the Federal entity (2)

The second step in the decision process is to determine the contractor's relationship with the
Federal entity. A determination needs to be made as to whether the contractor is an extension
of Federal staff (federal entity subject to sovereign immunity) or is a private, independent
contractor separate from Federal staff. In the case of Federal remediation/decommissioning
actions, the Federal entity may conduct the work by: 1) Federal employees; 2) Federal contract
staff whose detailed physical performance is controlled by the Federal agency; or 3) an
independent contractor whose day-to-day operations are not supervised or directed by the
Federal entity. The major issue is the distinction between Federal in-house contract staff and
independent contractors. In all three cases, the radioactive material would continue to be
owned by, and be the responsibility of, the Federal entity. Therefore, the determination of the
contractor's relationship with the Federal entity is based on the degree of control the Federal
entity exercises over the day-to-day operations and personnel of the decommissioning service
provider.

What does it take for contractor staff to be considered as an extension of Federal staff (Federal
employees) for the purposes of determining regulatory jurisdiction under sovereign immunity?

The contractor would be considered an extension of Federal staff if the Federal agency had the
ability to physically supervise the contractor and the contract staff's operations and work
activities. This determination would need to be made on a case-by-case basis depending upon
the terms and conditions of the contract(s) under which the work is being performed. A
requirement that the contractor comply with Federal standards does not authorize the Federal
agency to supervise the contract staff.

If it is determined that the Federal entity has the ability to control the operations and day-to-day
physical activities of the contractor and the contract staff, then the contractor staff would be
considered an extension of staff for the Federal entity and subject to sovereign immunity. This
means that States could not regulate the contractor absent the Federal entity's express waiver
Enclosure
of sovereign immunity. Sovereign immunity has not been waived by any Federal entities for
materials regulated under the AEA. In these situations, the contractor is subject to Federal
entity's control while conducting activities under the specific contract. This would be the case
regardless of the jurisdictional status of the land on the site where the remediation is being
conducted.

Jurisdiction Based on Land Status (3)

There are four types of jurisdiction or interest with respect to land or property within a State that
is Federally-owned or Federally-controlled by a Federal entity. They are: 1) exclusive federal
jurisdiction; 2) concurrent jurisdiction; 3) partial/limited jurisdiction; and 4) proprietorial interest.
Each is briefly discussed below. The Federal entity is responsible for providing the jurisdiction
status of their land or property.

1) For sites or areas that are within exclusive federal jurisdiction, the AEA radioactive
materials are subject to the NRC's regulatory authority regardless of whether the person
conducting the activity is a Federal or private entity.

2) For sites or areas that are within concurrent jurisdiction, the activities of private persons
are subject to both the Federal and State regulatory authority under their respective
regulatory programs. Where the NRC has relinquished its regulatory authority through
an AEA Section 274b. Agreement, the State would regulate the AEA radioactive
materials and the private contractor to the extent provided for under the Section 274b.
Agreement.

3) For sites or areas that are within partial/limited jurisdiction, if the State retained, or was
retroceded by the Federal government, authority over public health and safety issues,
the Agreement State would have jurisdiction over private entities using AEA material to
the extent provided for under the Section 274b. Agreement. However, if the
partial/limited jurisdiction for the land or property provides for Federal jurisdiction for
public health and safety, then this portion of the land would be treated the same as
exclusive Federal jurisdiction and the NRC would have regulatory jurisdiction over the
AEA radioactive materials.

4) For sites or areas in Agreement States where the federal government has as that
proprietorial interest over the land or property, the Agreement State would have
regulatory jurisdiction to the extent provided for under their Section 274b. Agreement. A
proprietorial interest can cover lands or property where the Federal government has
acquired some right or title to an area in a State but has not obtained any measure of the
State's authority over the area ..

For sites or areas in non-Agreement States, the NRC has regulatory jurisdiction regardless of
the land status.

Please note, in all of the types of jurisdictions above, the Agreement State does not have
regulatory jurisdiction over Federal entities, without an explicit waiver of sovereign immunity.
Therefore, only Federal government agencies, such as the NRC, can regulate Federal entities'
activities under the AEA.
 No
No NRC or }9eement
State Juriscldion Under
theAEA

3. Type of land jurisdiction?

.
It
1
Federal Jwisdiclion
over Health and Safety?
I No J Yes

Agreement state
Federal/NRC FedefaiiNRC Jurisdidian
JLiisdiclion JLiisdiclion

FIQUre 1. Decision Process for Determining Regulatory Jwisdiclion for Federal Contractors Involved with Federal Rernecialion