No. 38770 (Amendment): Section R313-17-4. Special Procedures for Decisions Associated with Licenses for Uranium Mills and Disposal of Byproduct Material

(Amendment)

DAR File No.: 38770
Filed: 08/14/2014 02:59:36 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule adds a new administrative hearing procedure that applies to specific licensing actions involving certain radioactive material licenses. The new hearing procedure is being added to ensure that the Division of Radiation Control (DRC) is in compliance with the requirements of 42 USC Section 2021(o)(3)(A)(ii), a requirement that must be met in order for the State of Utah to remain compatible with NRC as an Agreement State authorized to regulate uranium mills and disposal of byproduct materials. 42 USC Section 2021(o)(3)(A)(ii) requires Agreement States to provide an opportunity for cross-examination during a licensing proceeding. Previously, DRC met this requirement through procedures under the Utah Administrative Procedures Act (UAPA). However, under Section 19-1-301.5 (enacted in 2012), UAPA no longer applies to DRC licensing procedures. DRC is therefore required to provide a hearing procedure by rule.

Summary of the rule or change:

42 USC Section 2021(o)(3)(A)(ii) requires NRC Agreement States to provide an opportunity for cross-examination for licensing actions involving uranium mills and disposal of byproduct materials. Legislative history for the provision clarifies that the procedures may be informal. Consistent with the legislative history and the informal procedures used for DRC licensing actions under Section 19-1-301.5, the DRC is proposing to use an informal question and answer hearing to meet this requirement. The proposed rule ensures that this hearing opportunity will be available to interested persons, as required by federal law, and outlines the procedures that will used for the hearing.

State statutory or constitutional authorization for this rule:

• Subsection 19-3-104(4)
• Section 19-1-301
• 42 USC Section 2021 (o)(3)(A)(ii)
• Section 19-1-301.5

Anticipated cost or savings to:

the state budget:

DRC anticipates some costs for implementing these procedures. However, these costs will be billed to the licensee through fees associated with the radioactive material license. In addition, exactly how many licensing actions will take place during a state fiscal year is unknown, therefore additional costs to DRC cannot be determined at this time. However, it is anticipated that administrative costs not otherwise paid by the licensee will increase in implementing these procedures.

local governments:

No local governments have a byproduct disposal facility or uranium mill license, so therefore local governments are not affected by this rule.

small businesses:

DRC does not anticipate small businesses to be affected by this amendment, because no small businesses are licensees or operate a byproduct disposal facility or uranium mill.

persons other than small businesses, businesses, or local governmental entities:

Individuals, tribes, and not for profit public or private organizations will be affected by increased travel costs to prepare for, participate in, and be present at these hearings. In order to properly record and transcribe the public hearings, such hearings will be held in Salt Lake City. The procedures provide an opportunity for the public to ask questions regarding the licensing action at the hearing. However, it is indeterminate how often or if the person or entity will want to attend and ask questions, therefore DRC cannot estimate how a person or entity will be affected. If they do attend, then travel costs may impact these stakeholders.

Compliance costs for affected persons:

Compliance costs for the affected person will increase because the licensee must prepare for and attend these hearings. The hearings will be held in Salt Lake City, and if the licensee's corporate offices are located in other states, travel costs associated with the hearings will affect them.

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

The proposed rule ensures that the state provides an opportunity for a hearing for interested persons, as required by federal law, and outlines the procedures that will be used for the hearing. The proposed administrative procedures are to meet NRC Agreement State requirements in accordance with federal law found in 42 USC Section 2021(o)(3)(A)(ii). Fiscal impacts will be limited to two or three licensed facilities in Utah. How often a hearing is requested cannot be determined at this time. However, meeting administrative and travel costs will impact the licensee; by how much, depends on how many staff are in attendance and how often licensing actions are requested.

Amanda Smith, 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 ControlRoom Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• John Hultquist at the above address, by phone at 801-536-4263, by FAX at 801-536-4250, or by Internet E-mail at [e-mail]
• Rusty Lundberg at the above address, by phone at 801-536-4257, 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:

10/01/2014

This rule may become effective on:

10/21/2014

Authorized by:

Rusty Lundberg, Director

RULE TEXT

R313. Environmental Quality, Radiation Control.

R313-17. Administrative Procedures.

R313-17-4. Special Procedures for Decisions Associated with Licenses for Uranium Mills and Disposal of Byproduct Material.

(1) Definitions. For purposes of this rule:

(a) "Byproduct material" has the same meaning as defined in 42 U.S.C. Section 2014(e);

(b) "License" means a radioactive materials license for a uranium mill or disposal of byproduct material, including any ground water discharge permit incorporated in a license; and

(c) "Question and answer hearing" means the informal hearing described in paragraphs (3) through (5) held for the purpose of responding to questions from the public.

(2) Scope. This rule R313-17-4 applies only to licensing activities that meet both of the following criteria:

(a) they are licensing activities described in R313-17-2(a)(i)(A) through (I); and

(b) they are for licenses or license amendments for uranium mills and disposal of byproduct materials.

(3) Opportunity for Question and Answer Hearing Prior to Director's Decision.

(a) For licensing actions that are subject to the scope of this rule, the division may, at its discretion, schedule a question and answer hearing at the time it proposes the action.

(b) If the division does not choose to schedule a question and answer session at the time it proposes a licensing action, it shall provide notice to the public of an opportunity to request a question and answer session, and it shall schedule and hold a session if there is a request from a member of the public.

(c) Notice of a hearing or an opportunity to request a hearing under this rule shall be made as provided in R313-17-3(5). Members of the public shall be given at least ten days to request a hearing.

(d) The division may combine the question and answer hearing with a licensing hearing held for the purpose of taking public comment on a proposed licensing action.

(4) Procedures Prior to Question and Answer Hearing.

(a) The division shall provide a notice of the question and answer hearing at least 30 days before the hearing. The notice shall also summarize the applicable procedures, including the obligation to provide questions in advance of the hearing.

(b) Any person who proposes to ask questions during the question and answer hearing shall submit the questions to the division. Questions must be received by the division by the deadline specified in the public notice, which shall be no fewer than 15 days after the notice of the question and answer hearing is posted. If a question relies on information that is not included in the licensing record, that information shall be submitted with the questions. The relevance of and the relevant portions of any supporting materials shall be described with reasonable specificity. Information submitted in accordance with this paragraph will become part of the record.

(c) If the Director determines that any of the questions submitted will not be answered during the question and answer hearing, as provided in paragraph (5)(f), the Director shall notify the person who submitted the questions prior to the hearing. Notification shall include a statement about the Director's reasons for the determination.

(5) Procedures for Question and Answer Hearing.

(a) The question and answer hearing shall ordinarily be held in the Department of Environmental Quality offices. Unless the question and answer hearing is held in a place near the proposed facility, the division shall provide an opportunity for the public to participate by telephone or other electronic means.

(b) The question and answer hearing session will not ordinarily be scheduled for longer than three hours. The division may allocate time to those who have submitted questions after considering the number and nature of the questions submitted.

(c) A hearing officer shall manage the question and answer hearing. Representatives of the licensee and division staff shall attend the hearing.

(d) The question and answer hearing shall be recorded and transcribed. Alternatively, the division may elect to have a court reporter record and transcribe the hearing.

(e) The Director shall determine whether the initial and follow-up question will be answered by the applicant, by division staff, or by both. Notwithstanding the Director's decision, the applicant may choose to respond to any question. After the response to a question, the person who submitted the question shall be allowed to follow up with additional questions based on the response provided.

(f) Appropriate questions are those that seek specific factual information about the license application, or about other documents created during the licensing process. The following kinds of questions do not require a response during a question and answer session:

(i) Questions that are not relevant to the licensing action;

(ii) Questions that are based on information that is not in the record;

(iii) Questions that are vague;

(iv) Questions that require speculation;

(v) Questions that seek legal conclusions;

(vi) Questions that have been previously answered;

(vii) Questions that are more appropriately characterized as comments; and

(viii) Questions that would not have to be answered during a trial-type hearing.

(g) Either the agency or the applicant may elect to answer a question even if it is a question that does not require a response under paragraph (f). No waiver will result from answering a question that does not require a response.

(h) Questions requesting information that is clear in the record may be answered by referring the questioner to the record.

(i) In the event that a questioner or the applicant disagrees with the Director's determinations under paragraphs (4)(c), (5)(b), or (5)(e), it may request a determination by the hearing officer. If the hearing officer disagrees with the Director's determination, the division or, as appropriate, the applicant may then:

(i) comply with the hearing officer's determination during the question and answer hearing;

(ii) comply with the hearing officer's determination by responding to the question in writing no fewer than 10 days before the end of the comment period; or

(iii) notify the questioner or applicant that it contests the determination, and provide information to the questioner about the procedures available to it under paragraph (5)(j).

(j) If a decision of the hearing officer is contested as described in paragraph (5)(i)(iii), the person who asked the question may challenge that failure to comply with the hearing officer's decision on appeal. If the hearing officer's determination is upheld on appeal, the record on appeal shall be supplemented as described in paragraph (6) and R305-7-607.

(6) Formal Questioning During Appeal.

If the procedures in paragraphs (2) through (5) are not used before the Director's final determination, an opportunity for questioning shall be provided on appeal as described in R305-7-607.

 

KEY: administrative procedures, comments, hearings, adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [March 19, 2013]2014

Notice of Continuation: July 7, 2011

Authorizing, and Implemented or Interpreted Law: 19-3-104(4); 19-1-301 and 19-1-301.5

 

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