October 23, 2006

Leslie Foldesi, Director

Division of Radiological Health

Department of Health

P.O. Box 2448

Richmond, VA 23218

Dear Mr. Foldesi:

We have reviewed Virginia’s enabling legislation contained in the Code of Virginia, Sections

32.1-227 through 32.1-238, received by our office on August 28, 2006. The legislation was

reviewed by comparison to the criteria in Section 4.1.1 of the Handbook in the Office of State

and Tribal Programs Procedure SA-700, “Processing an Agreement.” We discussed our review

of the legislation with you on September 21, 2006. 

We appreciate the opportunity to perform an early review of your legislation and offer the

following 10 comments:

1. The Virginia legislation does not directly establish a radioactive materials program or

define its structure. The legislation does define the authorizations of the Board;

however, the legislation does not expressly designate the Board as the radiation control

agency. Please see SA-700, Section 4.1.1.1, Information Needed paragraph (a).

2. Although the Virginia legislation does authorize the program to issue licenses, the

Virginia legislation does not clearly authorize the program to:

- impose additional license requirements; 

- give exemption from the licensure requirements;

- recognize the licenses of other jurisdictions; or

- make it unlawful to acquire, possess, store, use, transfer, or dispose of 

materials without a valid license, or to violate the conditions of a license.

Please see SA-700 Handbook, Section 4.1.1.1, Information Needed, paragraph (b)(1),

(2), (3), (4), and (5).

3. Although the Virginia legislation does authorize the program to adopt regulations, the

Virginia legislation does not:

- specify the procedures and requirements for adoption of regulations, including 

 public participation; or

- allow the program to impose requirements in the form of other generic legally 

 binding requirements, such as orders.

Please see SA-700 Handbook, Section 4.1.1.1, Information Needed, paragraph ( c)(1)

and (2). 
Leslie Foldesi, Director -2- October 23, 2006

4. The Virginia legislation does not expressly authorize the program to require compliance

with regulatory requirements by both licensees and unlicensed individuals. Please see

SA-700 Handbook, Section 4.1.1.1, paragraph (e).

5. The definitions of “Person” and “Source Material” in the Virginia legislation and those in 

the Virginia regulations are not identical. These two definitions should be identically

listed in both the Virginia regulations and legislation.

6. Although the Virginia legislation does not apply to nuclear reactors, the Virginia

legislation does not explicitly exclude other materials or activities reserved to the NRC

under Section 274c of the Atomic Energy Act of 1954, as amended, and Title 10 of the

Code of Federal Regulations Part 150. 

Please see SA-700 Handbook, Section 4.1.1.2, Evaluation Criteria, paragraph (b).

7. Although the Virginia legislation does provide for recognition of licenses transferred from

NRC to the Commonwealth under the Agreement, the Virginia legislation does not

authorize the reciprocal recognition of specific licenses issued by NRC or other

Agreement States.

Please see SA-700 Handbook, Section 4.1.1.2, Evaluation Criteria, paragraph ( c).

8. Although the Virginia legislation does provide for inspections of x-ray machines and

facilities that provide mammography services, the Virginia legislation does not contain a

general authorization to conduct inspections of licensee operations to ensure

compliance with regulatory requirements. The Virginia legislation also does not

authorize inspections of unlicensed facilities to assess the risk resulting from accidents

or environmental releases of materials. 

Please see SA-700 Handbook, Section 4.1.1.2, Evaluation Criteria, paragraph (g).

9. Although the Virginia legislation does provide for imposition of civil penalties, the Virginia

legislation does not provide general authority to take prompt enforcement action and

does not authorize a variety of legal sanctions, including suspension of licenses and

impoundment of materials. In cases of imminent threat to public health and safety, the

law should authorize immediate suspension without prior hearing. 

Please see SA-700 Handbook, Section 4.1.1.2, Evaluation Criteria, paragraph (h).
Leslie Foldesi, Director -3- October 23, 2006

10. Although the Virginia legislation does provide for the imposition of civil penalties, the

Virginia legislation does not:

- authorize suspension or revocation of a license for repeated or continued 

noncompliance;

- authorize the program to seek injunctive relief; or

- authorize the program to refer licensees for criminal prosecution.

Please see SA-700 Handbook, Section 4.1.1.2, Evaluation Criteria, paragraph (i).

We recommend that you address the 10 comments above. If the comments can be addressed

through other statutes, please provide this information in your draft request for an Agreement. 

If you would like us to review this information prior to the submittal of your draft request, please

let us know. In addition, to assist the Commonwealth in responding to these comments, the

1983 Council of State Governments generic model of a Radiation Control Act in Suggested

State Legislation, Volume 42, can be found at http://www.crcpd.org/PDF/RadControl.PDF. 

The Commonwealth of Virginia may also resolve these comments through interpretation of

Commonwealth law. NRC will accept interpretations provided by the Commonwealth Attorney

General, or other attorneys designated as a legal advisor to the radioactive materials program. 

If you have any questions regarding the comments, please contact me, or Shawn Rochelle

Smith at 301-415-2620 or by e-mail at srs3@nrc.gov.

Sincerely, 

\RA By J.R. Schlueter\

Janet R. Schlueter, Director

Division of Materials Safety and State Agreements

Office of Federal and State Materials and

 Environmental Management Programs
Leslie Foldesi, Director -3- October 23, 2006

10. Although the Virginia legislation does provide for the imposition of civil penalties, the

Virginia legislation does not:

- authorize suspension or revocation of a license for repeated or continued 

noncompliance;

- authorize the program to seek injunctive relief; or

- authorize the program to refer licensees for criminal prosecution.

Please see SA-700 Handbook, Section 4.1.1.2, Evaluation Criteria, paragraph (i).

We recommend that you address the 10 comments above. If the comments can be addressed

through other statutes, please provide this information in your draft request for an Agreement. 

If you would like us to review this information prior to the submittal of your draft request, please

let us know. In addition, to assist the Commonwealth in responding to these comments, the

1983 Council of State Governments generic model of a Radiation Control Act in Suggested

State Legislation, Volume 42, can be found at http://www.crcpd.org/PDF/RadControl.PDF. 

The Commonwealth of Virginia may also resolve these comments through interpretation of

Commonwealth law. NRC will accept interpretations provided by the Commonwealth Attorney

General, or other attorneys designated as a legal advisor to the radioactive materials program. 

If you have any questions regarding the comments, please contact me, or Shawn Rochelle

Smith at 301-415-2620 or by e-mail at srs3@nrc.gov.

Sincerely, 

\RA By J.R. Schlueter\

Janet R. Schlueter, Director

Division of Materials Safety and State Agreements

Office of Federal and State Materials and

 Environmental Management Programs

Distribution:

DIR RF (6-242) SUNSI Review Complete

DCD (SP05) : Publicly Available 9 Non-Publicly Available

DWhite, RSAO : Non-Sensitive 9 Sensitive

NMcNamara, RSLO Virginia File *See previous concurrence.

DOCUMENT NAME: C:\FileNet\ML062960163.wpd 

To receive a copy of this document, indicate in the box: "C" = Copy without attachment/enclosure "E" = Copy with attachment/enclosure "N" = No copy

OFFICE FSME/DILR FSME/MSSA OGC MSSA:DD MSSA:D

NAME SRSmith KSchneider STreby SWMoore KSchneider for

JRSchlueter

DATE 10/11/06* 10/12/06* 10/16/06* 10/19 /06* 10/23/06*

 ML062960163 OFFICIAL RECORD COPY