No. 28930 (Amendment): R313-14. Violations and Escalated Enforcement

 

DAR File No.: 28930
Filed: 08/15/2006, 04:43
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule was updated to add a statement describing the agency authority to promulgate these rules. Another example to the types of orders that may be issued was also added.

 

Summary of the rule or change:

Subsection R313-14-1(3) was added to show that the Executive Secretary is authorized by statute to issue violation(s) and escalate enforcement actions. Subsection R313-14-15(3)(a) has been modified to reflect that the issuance of a civil penalty is included as a type of order.

 

State statutory or constitutional authorization for this rule:

Subsections 19-3-103.5(1)(d), 19-3-104(4), and 19-3-104(8); and Sections 19-3-108, 19-3-109, and 19-3-111

 

Anticipated cost or savings to:

the state budget:

There should be no fiscal impact, as the changes do not add additional enforcement processes.

 

local governments:

There should be no fiscal impact to local governments that hold a radioactive materials license, because the regulatory changes do not add additional enforcement processes.

 

other persons:

There should be no fiscal impact as the nature of these changes only includes a statement of authority allowed by existing statute and an additional example of an enforcement order.

 

Compliance costs for affected persons:

The addition of a statement that describes statutory authority and another example for a type of order does not create additional costs for affected persons.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule would not have any fiscal impact on businesses as it does not change or add additional enforcement processes. Dianne R. Nielson, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Radiation Control
168 N 1950 W
SALT LAKE CITY UT 84116-3085

 

Direct questions regarding this rule to:

David Hogge at the above address, by phone at 801-536-4250, by FAX at 801-533-4097, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/02/2006

 

This rule may become effective on:

10/20/2006

 

Authorized by:

Dane Finerfrock, Director

 

 

RULE TEXT

R313. Environmental Quality, Radiation Control.

R313-14. Violations and Escalated Enforcement.

R313-14-1. Introduction, [and ]Purpose, and Authority.

(1) The purpose of the radiation control inspection and compliance program is to assure the radiological safety of the public, radiation workers, and the environment by:

(a) ensuring compliance with Utah Radiation Control rules or license conditions;

(b) obtaining prompt correction of violations;

(c) deterring future violations; and

(d) encouraging improvement of licensee, permittee or registrant performance, including the prompt identification, reporting, and correction of potential safety problems.

(2) Consistent with the purpose of the radiation control inspection and compliance program, prompt and vigorous enforcement action shall be taken when dealing with licensees, permittees or registrants who fail to demonstrate adherence to these rules. Enforcement action is dependent on the circumstances of the case and may require that discretion be exercised after consideration of these standards. Sanctions have been designed to ensure that a licensee, permittee or registrant does not deliberately profit from violations of the Utah Radiation Control rules.

(3) The rules set forth herein are adopted pursuant to the provisions of Subsections 19-3-103.5(1)(d), 19-3-104(4) and 19-3-104(8), 19-3-108, 19-3-109, and 19-3-111.

 

R313-14-15. Enforcement Actions.

This Section describes the enforcement sanctions available to the Executive Secretary and specifies the conditions under which they are to be used.

 

. . . . . . .

 

(3) Orders.

(a) An Order is a written directive to modify, suspend, or revoke a license, permit or registration; to cease and desist from a given practice or activity; to issue a civil penalty; or to take other action that may be necessary.

(b) Modification Orders are issued when some change in licensee, permittee or registrant equipment, procedures or management control is necessary.

(c) Suspension Orders may be used:

(i) to remove a threat to the public health and safety or the environment;

(ii) when the licensee, permittee or registrant has not responded adequately to other enforcement action;

(iii) when the licensee, permittee or registrant interferes with the conduct of an inspection; or

(iv) for a reason not mentioned above for which license, permit or registration revocation is authorized.

(v) Suspensions may apply to all or part of the regulated activity. Ordinarily, an activity is not suspended, nor is a suspension prolonged for failure to comply with requirements when the failure is not willful or when adequate corrective actions have been taken.

(d) Revocation Orders may be used:

(i) when a licensee, permittee or registrant is unable or unwilling to comply with these rules;

(ii) when a licensee, permittee or registrant refuses to correct a violation;

(iii) when a licensee, permittee or registrant does not respond to a Notice of Violation;

(iv) when a licensee, permittee or registrant does not pay a fee required by the Department; or

(v) for any other reason for which revocation is authorized.

(e) Cease and Desist Orders are used to stop unauthorized activity that has continued despite notification by the Executive Secretary that the activity is unauthorized.

(f) Orders may be made effective immediately, without prior opportunity for hearing, whenever it is determined that the public health, interest, or safety so requires, or when the Order is responding to a violation involving willfulness. Otherwise, a prior opportunity for a hearing is afforded. For cases in which a basis could reasonably exist for not taking the action as proposed, the licensee, permittee or registrant shall be afforded an opportunity to show cause why the Order should not be issued in the proposed manner.

(4) Escalation of Enforcement Sanctions.

(a) In accordance with the provisions of Section 19-3-111 the radioactive material of a person may be impounded. Administrative procedures will be conducted as provided by R313-14-20, prior to disposal of impounded radioactive materials.

(b) Violations of Severity Levels I, II or III are considered to be very serious. If repetitive very serious violations occur, the Executive Secretary may issue Orders in conjunction with other enforcement actions to achieve immediate corrective actions and to deter their recurrence. In accordance with the criteria contained in this section, the Executive Secretary shall carefully consider the circumstances of cases when selecting and applying the appropriate sanctions.

(c) The progression of enforcement actions for repetitive violations may be based on violations under a single license, permit or registration. The actual progression to be used in a particular case may depend on the circumstances. When more than one facility is covered by a single license, permit or registration, the normal progression may be based on repetitive violations under the same license, permit or registration. It should be noted that under some circumstances, for example, where there is common control over some facet of facility operations, repetitive violations may be charged even though the second violation occurred at a different facility or under a different license, permit or registration.

(5) Related Administrative Actions.

(a) In addition to the formal enforcement mechanisms of Notices of Violation and Orders, the Executive Secretary may use administrative mechanisms, like enforcement conferences, bulletins, circulars, information notices, generic letters, and confirmatory action letters as part of the enforcement and regulatory program. Licensees, permittees and registrants are expected to adhere to obligations and commitments resulting from these processes and the Executive Secretary shall, if necessary, issue appropriate orders to make sure that expectation is realized.

(b) Enforcement Conferences are meetings held by the Executive Secretary with licensee, permittee or registrant management to discuss safety, public health, or environmental problems, compliance with regulatory requirements, proposed corrective measures, including schedules for implementation, and enforcement options available to the Executive Secretary.

(c) Bulletins, Circulars, Information Notices, and Generic Letters are written notifications to groups of licensees, permittees or registrants identifying specific problems and calling for or recommending specific actions on their part. Responses to these notifications may be required.

(d) Confirmatory Action Letters are letters confirming a licensee's, permittee's or registrant's agreement to take certain actions to remove significant concerns about health and safety, or the environment.

 

KEY: violations, penalties, enforcement

Date of Enactment or Last Substantive Amendment: [June 8, 2001]2006

Notice of Continuation: July 10, 2006

Authorizing, and Implemented or Interpreted Law: 19-3-109; 19-3-111