ML20029B276
| ML20029B276 | |
| Person / Time | |
|---|---|
| Issue date: | 12/26/1990 |
| From: | Treby S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Miller V NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA) |
| References | |
| NUDOCS 9103060357 | |
| Download: ML20029B276 (74) | |
Text
Cf_ 09 DEC 2 S 1990 MEMORANDUM FOR:
Vandy L, Miller, Assistant Director l
for State Agreements Program State Programs, GPA FROM:
Stuart A. Treby Assistant General Counsel for Rulemaking and fuel Cycle, OGC
SUBJECT:
UTAH'S DRAFT LEGISLATION AFFECTING THE RADIATION CONTROL ACT In response your request of November 28,1990, we have reviewed Utah's draft legislation (10-23-90, 3:21 PM Draft 91 FL-0148, hereafter referred to as the Draft Bill) which would create a Depan tment of Environmental Quality and reorganize the State's radiation control program.
The attached memorandum contains our analysis and comments on the Draft Bill, Stuart A Treby Assistant General Counsel for Rulemaking and Fuel Cycle, OGC
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DEC 2 61990 OGC COMMENTS ON UTAH'S DRAFT LEGISLATION AFFECTING THE RADIATION CONTROL ACF (10 23 90 3:21 PM DRAFF 91FL 0148)
In response to the request of November 28, 1990 from Vandy L Miller, Assistant Director for State Agreements Program, we have reviewed the subject legisletion (referred to hereafter as the Draft Bill.) We have focussed our review on those portions of the Draft Bill which comprise the Environmental Quality Actu and the Radiation Control Act U The former addreues the organizatiori, powers and administration of the State Department of Environmental Quality. The latter, as we understand it, would provide the statutory authority necesary to enable Utah to perform the regulatory responsibilities which the State assumed when it entered into a section 274b Agreement with the Com nission. Sections 79 33 of the Draft Bill, which also appear to be part of the State Radiation Control Act and would renumber and amend existing State law, relate specifically to the Interstate Compact on Low.12 vel Radioactive Waste. Section 84 of the Draft Bill impow., restrictions on the placement of high level nuclear waste in Utah.
RosJ: ground Utah becamc an. Agreement State on Apd i, '.984. In accordance with the terms of the section 274b Agreement, the NRC relingmshed and Utah asso:ned regulatory authority over section 11e.(1) byproduct materials, souice materials and special nuclear rnaterials in quantities not sufficient to form a critical rnass.
In 1982, the Regulations Division of the NRC Office of the Executive Legal Director reviewed Utah's statutory authority for the purpose of determining whether the Utah statutes provided adequate legal authority for Utah to become an Agreement State. The conclusion reached at that time was "... that although the Utah statutes contain little more than the absolute minimum,... they do provide sufficient legal authority to enable section 274 Federal / State agreement."yrogram in accordance with the provi Utah to establish a radiation control L
l Effective May 9,1990, the Utah Agreement was amended to em.ble Utah to assume regulatory authority over low level radioactive waste disposal facilities, formally described I
u Draft Bill, Sees. 23 38, pp. 50-63, proposed secs. 19-1 101 - 19 1-107, 19 1-201 1-205, 19 1-301 1-304 to the Utah Code Annotated 1953.
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Draft Bill, Secs. 66 84, pp. 98120, proposed secs. 19 3-101 - 19 3 113, 19 3-201 -
19 3 205, and 19 3 301 to the Utah Code Annotated 1953.
F Memor:mdum dated August 9,1982 from Jane A. Axelrad to John T. Collins tr l
" Review of the State of Utah's Statutorv Authority Regarding Agreement State Status" at p. 5. Copy attached.
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2-in the amended Agteement as *the land disposal of source, byproduct and special nuclear material received from other persons." (55 FR 22113, May 31,1990.)
On May 9,1989, OGC provided comments to the staff on Utah's proposal for an amended agreement.u The OGC memorandum :ransmitted an analysis (Enclosure A.,
copy attached) of Utah's statutes which addressed the following topics:
enabling legislation, radiation contrcl program, rulemaking, inspections, fees, and enforcement. In that analysis, we stated, among other things, that the statutory authority accorded the Department of Health "by paragraphs (5) and (6) of section 26-127 to '... adopt rules more stringent than corresponding federal regulations...' fails the test of compatibility cantained in section.c74d of the Atomic Energy Act of 1954, as amended."U We also noted that Utah law relating to inspections does not contain a provision comparable to that in section 12 of the Model State Radiation Control Act which permits entry into areas under the jurisdiction of the Federal government ",.. onyl with the concurrence of the federal government or its duly designated representative /d Since Utah is an Agreement State, we have used the Commission's general statement of policy on " Guidelines for NRC Review of Agreement State Radiation Control Programs, 1987"(52 FR 21132 21139, June 4,1987) in conducting our review of the Draft Bill. The Guidelines identify six essential elements of a radiation control p>ogram, namely
' Legislation and Regulations, Organization, Management and Administration, Personnel, Licensing, and Compliance. Following a summary of the general significance of each of these program elements, the Guidelines identify indicators which address specific functions within the program element, categories which denote the relative importance of each indicator from the standpoint of protecting public health and safety, ad guidelines which delineate speci'ic objectives or operational goals. Two categories are used. Category I indicators address program functions which directly reh>te to a State's ability to protec:
public health and safety. Category 11 indictiers afdress program functions which provide essential technical and administrative support for Category T program functions.
l In our review of the Draft Bill, we 'iave focussed on two program elements, Legislation and Regulations which contains Category I indicators, and Organization which contains Category 11 indicators. Pertinent excerpts from the Commission's policy statement relating to these program elements follow:
" Program Element: Legislation and Regulations l
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Memorandum of May 9,1989 from Stuart A. Treby, Assistant Gereral Counsel for L
Rulemaking and Fuel Cycle to Carlton Kammerer, Director, State, Local and
('
Ind;an Tribe Programs transmitting " Detailed NRC Staff Comments on Utah's draft proposal for an amended ! 274b agreement" (Enclosure A.)
u M., Enclosure A. at p. 5.
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'The effectiveness of any State radiation control program (RCP) is dependent upon the underlying authority granted the RCP in State legislation, and implemented in the State regulations....
" Indicators and Guidelines
" Legal Authority (Category I)
. Clear statutory authority should exist, designating a State radiation control agency and providing for promulgation of regulations, licensing, inspection and enfoicement....
" Program Element: Organization "The effectiveness of any State RCP may be dependent upon its location within the overall State organizational structure. The RCP should be in a position :o compete effectively v,ith other health and safety programs for budget and staff. Program management must have access to individuals or groups which establish health and safety program priorities. The RCP should be organized to achieve a high degree of efficiency in supervision, work functions, and communications.
" Indicators and Guidelines
" Location of Radiation Control Program Within State Organization (Category II)
. The RCP should be located in a State organization parallel with comparable health and safety programs. The Program Director should have access to appropriate levels of State management.
. Where regulatory responsibilities are divided between State agencies, clear understandings should exist as to division of responsibilities and requirements for coordination.
" Internal Organization of Radiation Control Program (Category II)
. The RCP should be organized with the -view toward achieving an acceptable degree of staff efficiency, place appropriate emphaMs on major program functions, and provide specific lines of supervision from program management for the execution of program policy.
. Where regional offices or other government agencies are utilized, the lines of communication and administrative control between these offices and
4-the co.d vifice (Program Director) should be clearly drawn to provide uniformity in licensing and inspection policies, procedures and supervision.
"12 gal Assistance (Category II)
. Legal staff should be assigned to assist the RCP or procedures should exist to obtain legal assistance expeditiously, legal staff should be knowledgeable regarding the RCP program, statutes, and regulations.
" Technical Advisory Committees (Category II)
. Technical Comm'ttees, Federal Agencies, and other resource organiza-tions should be used to extend staff capabilities for unique or technically complex problems.
. A State Medical Advisory Committee should be used to provide broad guidance on the uses of radioactive drugs in or on humans. The Committee should represent a wide spectrum of medical disciplines. The Committee should advise the RCP on policy matters and regulations related to use of radioisotopes in or on humans.
". Procedures should be developed to avoid conflict of interest, even though Committees are advisory. This does not mean that representatives of the regulated community should not serve on advisory committees or not be used as consultants."
52 FR 21132 at 21135, June 4,1987.
Descrintion and Analysis of Draft Bill The thrust of the Draft Bill, as we understand it, is to place environmental matters under the control of a single department, to consolidate certain health functions into a single l
agency of State government and to transfer responsibility for the State's radiation control program from the State Department of Health to the State Department of Environmental
- Quality. We note that the Draft Bill contains a mechanism which would require the
- Department of Environmental Quality and the Department of Health to " enter into
, cooperative agreements... to delineate specific responsibilities to assure that assessment and management of risk-to human health from the environment are properly adminis-tered;..." to consult with each other and to "... enter into cooperative agreements, as needed, to ensure efficient use of resources and effective response to potential health and safety threats from' the environment, and to prevent gaps in protection from potential F
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risks from the environment to specific individuals or population groups;..."F Since the i
Draft Bill would transfer all responsibility for Utah's radiation control program from the State Department of Health to the State Department of Environmental Quality, the practical effect of this provision from the standpoint of protecting the radiological health and safety of the public is unclear.
The State Department of Environmental Quality created by the Environmental Quality Act would be administered by an executive director who would be appointed by the Governor with the advice and consent of the State Senate to serve at the pleasure of the Governor.
The Department of Environmental Quality would include six divisions, including a Division of Radiation which would be responsible for administering Chapter 3, Title 19 of the Utah Cide Annotated 1953.u Each division would be under the immediate direction and coatrol of a division director who would be appointed by the executive director of the Department.
The Department of Environmental Quality would also include five policymaking boards.
(Draft Bill, sec. 28, p. 53, proposed sec. 19 1 106 to the Utah Code Annotated 1953.)
Pursuant to section 19 3 103 of the Radiation Control Act, (Draft Bill, sec. 68 at pp.100-101) the Radiation Control Board would consist of eleven members, one of whom would be the executive director of the Department of Environmental Quality. The remaining ten members, who would serve for four year terms, would be appoimed by the Governor with the advice and consent of the State Senate.
All appointed members of the Radiation Control Board must be knowledgeable about radiation protection and no more than five may be from the same political party. Section 19 3-103(3) of the Rad!ation Control Act, as modified by an amendment approved by the Legislative Committee on November 1,1990, provides that appointed members of the Radiation Control Board shall be as follows:
"a.
One physician; "b.
One dentist; "c.
One health physicist or other professional employed in the field of radiation safety;
d.
Two representatives of regulated industry, at least one of whom represents a non destructive testing discipline; y
Sn Draft Bill, sec. 30, pp. 54 57, especially proposed sec. 191201(1)(a) and (b) to Utah Code Annotated 1953, at p. 55, and Draft Bill, sec. 210, pp. 297-301, especially amended sec. 26-1-30(1)(a) and (b) to Utah Code Annotated 1953, at p.297.
U Draft Bill, sec. 27, pp. 52 53, proposed sec. 19-1-105 to the Utah Code Annotated 1953. It is our understanding, although we have not been able to confirm it, that the Utah Radiation Control Act and Chapter 3 of Title 19 of the Utah Code t
Annotated 1953, are identical.
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"e.
One registrant or liscensee [ sic) representative from academia; "f.
One representative of a 1, al health department; "g.
One elected county officia,
"h.
Two members of the general public, at least one of whom represents organized environmental interests."
As stated in section 191102, (Draft Bill, sec. 24, pp. 50 51) the purposes of the Environmental Quality Act are broader than protecting the radiological health and safety of the public. The principal focus of the Act appears to be on environmental concerns.
A balancing of economic costs and benefits is also contemplated. For example, the Act would, among other things,
- (2) provide effective, coordinated management of state environmental concerns;.
"(3) safeguard public health and Utah's quality of life by protecting and improving Utah's environmental quality while considering the benefits to public health, the impacts on economic development, property, wildlife, tourism, business, agriculture, forests, and other interests, and the costs to the public and to industry; and
"(4) strengthen local health departments' em'tronmental programs; build consensus among the public, industry, and local governments in developing environmental protection goals; and appropriately balance the need for environmental protection with the need for economic and industrial development."
Towards these ends, the Department of Environmental Quality is accorded broad powers (sts generally section 19 1 201 of the Environmental Quality Act, Draft Bill, sec. 30 at pp. 54 57) including the power to perform the administrative functine of the boards, such as the Radiation Control Board, esti.blished by section 194-106 (Draft Bill, sec. 28 at p. 53) of the Act.
. As enumerated in section 19-1-202 of the Environmental Quallt) Act, (Draft Bill, sec. 31, pp. 57-59) the powers of the executive director of the Depar ment of Environmental Quality include the power to:
"(1)(a) administer and supervise the department;
"(b). coordinate policies and program activities corJucted through boards, divisions, and offices of the department;
"(c) approve the proposed budget of each board, division, and office within the department;..."
7 The executive director is also authorized to
"(2)(a) issue orders to enforce state laws and rules established by the department except where the enforcement power is given to a board created under Section 19 1 106, unless the executive director finds that a condition exists which creates a clear and present hazard to the public health or the environment and which requires immediate action, and if the enforcement power is vested with a board created under Section 19 1 106, the executive director may with the
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concurrence of the governor order any person causing or contributing to the condition to reduce, mitigate, or climinate the condition;.."
i The executive director may also
"(2)(c) create advisory committees as necessary to assist in carrying out L
the provisions of this title;,,,
"(g) advise, consult, and cooperate with other agencies of the state, the federal government, other states and interstate agencies, affected groups, political subdivisions, and industries in carrying out the purposes of this,,, title;...
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"(i) authorize any employee or representative of the division to conduct inspections as permitted in this,,, title;,."
Section 19 1-203 ef the Environmental Quality Act (Draft Bill, sec. 32, pp 59 60) provides that Authori.ed representatives of the department, upon presentation of
"(1) 7 appre nate credentials, may enter at reasonabic times upon the premises of properties regulated under this title to perform inspections y
to insure compliance with rules made by the department, i
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"(2)
The inspection authority provided in this section does not apply to chapters in this title which e avide for specific inspection procedures and authority."
Section 191204 (Draft Bill, sec. 33, p. 60) states that the State attorney general is the legal adviser for the department and for the executive director. Section 191-204 also provides that
"(2)
The attorney general or the county attorney of the county in which a cause of action arises or a public offense occurs shall bring any civil or criminal action requested by the executive director or any board created in Section 19 1 106 to abate a condition which exists in
8-violation of, or to prosecute for the violation of or for the enforce-ment of, the laws or standards, orders, and rules of the department."
In 1984, when Utah became an Agreement State, the Utah Department of Ilealth was responsible for regulating radioactive materials, including the materials covered by the Agreement, The Draft Bill would remove this authority from the Department of Health and give it instead to the Radiation Control Board. In addition, the Draft Bill would assign certain specific responsibilities to the executive secretary of the Board. To make sure that the Department of Health no longer retains regulatory authority over radioactive materials, the Draft Bill (at sec. 241 at p. 348) would repeal section 261 28 of the Utah Health Code which provides
'The department (of health] shall establish, carry out, and enforce a radiation control program pursuant to rules adopted by the department and any federal state agreement provided for in section 26129."
The powers of the Radiation Control Board which are set out in section 19 3 104U of the Radiation Control Act (Draft Bill, sec. 69, pp.101103) include the power to:
- require the registration or licensing of radiation sources that constitute a significant health hazard;
- make rules necessary for controlling exposure to sources of radiatica that constitute a significant health hazard;
- establish criteria for siting commercial low level radioactive waste treatment or disposal facilities;
- issue orders and take enforcement action.
in addition, section 19 3 104(8) provides, in part, that
" Representatives of the board, upon presentation of appropriate credentials, may enter at reasonable times upon the premises of properties regulated under this chapter to perform inspections to insure compliance with rules made by the board."
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l As presently drafted, section 19 3 104 seems to leave certain responsibilities with the Department of Environmental Quality. For example, sec.19-3104(2) states "All sources of ionizing radiation, including ionizing radiation prod"cing machines, shall I
be registered or licensed by the denartme.nt." (Emphasis suppded.) Under section
'19-3104(4) the Depanment is required to L.,sess fees for registratior, licensing and inspection of radiation sources.
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9 Section 19 3104(6) of the Radiation Control Act, would authorize the Radiation Control Board to
"... adopt rules more stringent than corresponding federal regulations [in particular NRC regulations)... if it makes a written finding after public comment and hearing and based on evidence in the record that corre-sponding federal regulations are not adequate to protect p. elle health and the environment of the state...." This written finding must "... be accompanied by an opinion referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the... board's conclusion....*
Under section 19 3-105(1)(a) (Draft Bill, sec. 70 at pp.103105) the Radiation Control Board is required to approve radioactive material licenses for low level radioactive waste treatment or disposal facilities. Under section 19 3 105(4) the Board is required to "...
review each proposed radioactive waste license application to determine whether the application complies with the provisions of this chapter and the rtdes of the... board."
Based on that review, the Board is required to issue a notice of completeness or a notice of deficiency. The latter li:ts additional information which the applicant must provide.
(h section 19-3 105(5),)
Section 19 3108 (Draft Bill, sec. 73, p.107) states that with the approval of the Radiation Control Board, the executive director of the State Department of Environmental Quality shall appoint an executive secretary of the Board to serve under the direction of the executive director. As authorized by the Radiation Control Board, the executive secretary may:
"(i) issue licenses, registrations, and certifications;
"(li) review and approve plans;
"(iii) enforce rules through the issuance of orders and assess penalties in accordance with Section 19 3 109;
"(iv) impound radioactive material under Section 19 3-111; and
"(v) authorize employees or representatives of the department to enter at reasonable times and upon reasonable notice in an 1 upon public or private property for the purpose of inspecting aad investigating conditions and records concerning radiation sources."
W Subsections (5) and (6) of section 19 3-104 track the text of subsections (5) and (6) of section 26-127 of the Utah Health Code.
h Enclosure A. to OGC memorandum of May 9,1989 relating to draft proposal from Utah for an amendment to Utah's section 274b Agreem mt at p. 3.
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In addition, the executive secretary may
"(a) develop programs to promote and protect the public from radiation sources in the state; 4
"(b) advise, consult, and cooperate with other agencies, states, the federal government, political ;ubdivisions, industries, and other groups to further the purposes of this chapter;,,,"
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General Comments j
Although the comments which follow are critical of the organizational structure which
[ i would be established by the Drr.ft Bill, they are not made for the purpose of insisting that Utah adopt a specific organizational structure prescribed by the NRC, The I
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L Commission's statutory obligation to conduct periodic reviews of operating Agreement State programs does not mandate that the NRC take the further step of requiring regulatory organizations in all Agreement States to be structured in the same way. The concern, instead, is whether, given the organizational structure prescribed by the Draft Bill, Utah will be able to maintain a regulatory program for Agreement materials which will be effective in protecting the radiological health and safety of the public.
As explained more fully in the following comments, it is our considered opinion that a
enactment of the organizational changes and reallocation of regulatory responsibilities proposed in the Draft Bill will not be beneficial in enhancing the effectiveness of Utah's radiation control program.
Our first concern, which is founded on the statutory composition of the Radiation Control Boarc, is that the Draft Bill would introduce a serious conflict of interest
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element into the regulatory scheme. As previously explained, the Radiation Control Board is a policy making body with rulemaking and enforcement pawers. These powers will be used in regulating applicants for and holders of radioactive materials licenses, including applicants for and holders of licenses for low level radioactive waste treatment or disposal facilities.
At least three, and conceivably as many of six, appointed members 1/ of the Radiation Control Board are persons who will also be required to l
comply with any regulations which the Board adopts. Given these circumstances, we believe the temptation to promulgate regulations which redound to the selfinterest of individual members of the Radiation Control Board may become too strong with the 11/
Three of the appointed members would represent, respectively, two representatives m
3 of regulated industry, at least one of whom represents a r'on destructive testing discipline, and a registrant or licensee representative from academia.
The Radiation Control Board must also include one physician, one dentist and one health physicist or other professional employed in the field of radiation safety, any one or all of whom could also be a radioactive materials licensee.
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result that the radiological health and safety of the public will no longer be adequately protected.
Our second concern is that, under the organizational structure created by the Draft Bill, responsibility for Utah's radiation control program will be unnecessarily fragmented and the lines of regulatory authority within the State will become muddled and indistinct.
The following summary of the convoluted organizational structure which would be established by the Draft Bill lends support to this concern.
As noted previously, the Department of Environmental Quality contains both a Division of Radiation and a Radiation Control Board. The Division of Radiation is headed by a division director who reports directly to the executive director of the Department of Environmental Quality.
The executive director of the Department has broad administrative powcrs. Pursuant to section 19-1-202 of the Environmental Quality Act (D; aft Bill, sec. 31, pp. 57 59) the executive director is required to administer and sapenise the Department, coordinate policies and pregram activities conducted through the boards, divisions and offices of the department and approve the proposed budget of each board, division and office within the Department.
The Radiation Control Board is headed by a chairman who is elected annually by the members of the Board. However, the Draft Bill mandates that the executive director of the Department also serve as a member of the Board.
In addition, the Draft Bill requires the executive director, with the approval of the Radiation Control Board, to appoint an executive secretary of the Board "to serve under the direction of the executive director."W In carrying out certain functions, however, the executive secretary must act under the authority of the Board.
Pursuant to section 191-201(2)(k) of the Emironmental Quality Act (Draft Bill, sec. 30 at p. 57) the Department of Eaaronmental Quality is authorized to perform the administrative functions of the Radiation Control Board.
Upon the request of the Radiation Control Board or its executive secretary, the Department is also authorized to provide professional, technical and clerical staff and field and laboratory services.
However, the Environmental Quality Act limits the extent to which the Department may do so "by the funds available to the department for the staff and services...."W Third, we are concerned because in certain areas, e.g., enforcement and inspection, the respective responsibilitics of the executive director of the Department of Environmental Quality, the Radiction Control Board and the executive secretary of the Radiation Control Board seem to overlap and are, to that extent, duplicative in nature.
Draft Bill, Sec. 73 at p.107, proposed sec. 19 3-108(1) to the Utah Code Annotated 1953.
Sec.191201(2)(1), Draft Bill, sec. 30 at p. 57.
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For example, the executive director of the Department of Environmental Quality and the Radiation Control Board are both authorized to request the State Attorney General or the appropriate ccanty attorney to bring a civil or criminal action to abate a condition which exists in violation of, or to prosecute for the violation of or for the enforcement of, the laws, or standards, orders, and rules of the Department. (Section 19-1204, Draft Bill, sec. 33, p. 60, spla at pp. 7 8.)
Section 19 31N(8) of the Radiation Control Act (Draft Bill, sec. 69 at p.103) authorizes the Radiation Control Board to ".., take action and issue orders to enforce laws and rules under this chapter." Despite the fact that the Radiation Control Board has been given enforcement power, the executive director of the Department of Environmental Quality is authorized, whenever he finds that a condition exists which creates a clear and present hazard to the public health or the environment and which requires immediate action, to issue an order, with the concurrence of the governor, to any person causing or contributing to the condition, requiring that person to reduce, mitigate, or climinate the condition. (Sec sec. 191-202(2)(a) of the Environmental Qua;ity Act, Draft Bill, sec. 31 at p. 58.) In addition, section 19-310S(2)(c)(iii) and (iv) (Draft Bill, sec. 73 at p.107) directs the executive secretary of the Radiation Control Board "as authorized by the board [to)... enforce rules through the issuance of orders and assess [ civil) penalties in accordance with Section 19 3109; [and to)... impound radioactive material under Section 19 3 111;..."
The Draft Bill contains several sections which relate to the authority to enter regulated premises and conduct inspections. For example, the executive director of the Department of Environmental Quality may " authorize any employee or representative of the division to conduct inspections as permitted in this., title;..E Section 19 1 203 of the Environmental Quality Act (Draft Bill, sec. 32, pp. 59 60) states:
"(1) Authorized representatives of the department, upon presentation of appropriate credentials, may enter at reasonable times upon the premises of properties regulated under this title to perform inspections to insure compliance with rules made by the department.
"(2) The inspection authority provided in this section does not apply to chapters in this title which provide for specific inspection procedures and authority."
- Section 19 31N(8) of the Radiation Control Act (Draft Bill, sec. 69 at p.103) states in part:
.. Representatives of the board, upon presentation of appropriate credentials, may enter at reasonable times upon the premises of properties w
Draft Bill, sec. 31 at p. 59, sec.19-1-202(2)(i) of the Environmental Quality Act.
_ regulated under this chapter to perform inspections to' insure compliance with rules made by the board."
In addition, section 19 3108(2)(c)(v) of the Radiation Control Act (Draft Bill, sec. 73 at p.107) directs the executive secretary of the Radiation Control Board, as authorized by the Board, to
... authorize employees or representatives of the department to enter at reasonable times and upon reasonable notice in and upon public or private property for the purpose of inspecting and investigating conditions and records concerning radiation sources...."
Despite this extensive inspection authority, we note that the Draft Dill does not contain W
a provision comparable to that in section 12 of the Model State Radiation Control Act which permits entry into areas under the jurisdiction of the Federal government "... only with the concurrence of the federal government or its duly designated representatives."
Detailed Comments Enabling 12pislation.
From the-standpoint of clarity, the changes which proposed section 19 3 113, Federal-state agreement regarding radiation control, (Draft Bill, sec. 78 at pp.112113) would make in paragraph (2) of former section 26129 of the Utah llealth Code are not particularly helpful. We recommend that the text of section.14(b) of the Model State Radiation Control Act be used instead. That text reads as follows:
"(b)-
Any person who, on the effective date of an agreement under subsection (a) above, possesses a license issued by the U.S. Nuclear Regulatory Commission for radioactive materials subject to the agreement shall be deemed to possess a like license issued under this act,_which shall expire either 90 days after receipt from the agency of a notice of expiration of such license, or on the date of expiration specified in the Nuclear Regulatory Commission license, whichever is earlier."W l
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Model State Radiation Control Act as published by The Council of State Governments in " Suggested State Legislation," 1983, Vol. 42, at p. 39.
W Id.
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l Rulemaking Subsections (5) and (6) of section 19 3104 (Draft Bill, sec. 69 at pp.102103) authorize the Radiation Control Board under certain conditions to adopt rules more strmpnt than corresponding Federal regulations, in our opinion, these provisions contravene the provisions of section 274 of the Atomic Energy Act of 1954, as amended. Implementa-tion of subsection (6) by the Radiation Control Board could result in the fragmentation of the uniform scheme of Federal / State regulation established by the 1959 Federal / State Amendment to the Atomic Energy Act of 1954, as amended. Instead of strengthening the existing regulatory framework under which Agreement States are required as a matter of compatibility to adopt and enforce radiation protection standards which are essentially identical to Federal standards, subsections (5) and (6) of section 19 3104 would encourage the development of a regulatory system based on disparate rather than uniform radiological health and safety standards thereby defeating a principal objective of the Agreement State program to provide a uniform and coordinated system of regulation nationwide notwithstanding the fact that the responsibility for regulation is exercised by different jurisd ctional entities.
JJnentate Compact on Low l.evel Radioactive Waste.
Sections 79 - 83 of the Draft Bill (me pp. 113-120; proposed sections 193201 193-205 to Utah Code Annotated 1953) which relate specifically to the Interstate Compact on Low Level Radioactive Waste but also appear to be part of the Radiation Control Act, would renumber and amend existing State law. In general, these provisions track the provisions of the Northwest Interstate Compact on Low-Level Radioactive Waste Management to which Congress comented on January 15,1986 (Eer Pub. L. 99 240, Title II, Subtitle B, Sec. 221, 99 Stat. Ib J at 1860 1863.) The definitions of " Facility," Low-level waste," " Generator," and " Host state" set out in Article II of the Compact are replicated in Section 67 of the Draft Bill (Ecr p. 99, proposed section 19 3 102(3), (4),
(6) and (7) to Utah Code Annotated 1953.)
We have identified a few instances, described below, in which the language in the Draft Bill seems to be broader than the language in the Compact as consented to by Congress.
In our opinion, appropriate conforming changes should be made in the Draft Bill.
Draft Bill. Sec. 80. pp.114-115 - proposed section 19 3-202 to the Utah Code Annotated 1953.
Proposed section 19 3 202 tracks the text of Article III, Regulatory Practices, of the Northwest Interstate Compact on Low-Level Radioactive Waste Management. The last paragraph of Article III states:
"Each party state may impose fees upon generators and shippers to recover the cost of the inspections and other practices under this article. Nothing in this article shall be construed to limit any party state's authority to impose l
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additional or more stringent standards on generators or carriers than those required under this article." (Emphasis supplied.)
This paragraph is replicated b subsections (2)
- (3) of proposed section 19 3 202 (Draft Bill, sec. 80 at pp.114115) which state:
- (2) Each party state may impose fees upon generators and shippers to recover the cost of the inspections ;md other oradites under this compact.
(Emphasis supplied.)
"(3) Nothing in this section... limits any party state's authority to impose additional or more stringent standards on generators or carriers than those required under this section."
In our opinion, the underlin:d phrase in paragraph (2) should be changed to read "and other practices under this section."
Draft Bill. Sec. 81. pp.115-118 - proposed section 19-3 203 to Utah Code Annotated 1o53.
In general, proposed section 19 3 203 tracks the text of Article IV, Regional Facilities, of the Northwest Interstate Compact on Low Level Radioactive Waste Management.
However, because of certain textual discrepancies, paragraphs (1) and (4)(a) of proposed section 19 3 203 do not convey the same meaning as their counterparts in paragraphs (1) and (4) of Article IV of the Northwest Compact.
Compare proposed section 19 3-203(1) (Ecs Draft Bill, Sec. 81 at p.116) which states:
"(1) Facilities located in any party state, other than facilities established or maintained by individual low-level waste generators for the management of that party state's own low level waste, shall accept low level waste generated in any party state if the waste has been packaged and transported according to applicable laws and regulations" (Emphasis supplied.)
nith paragraph (1), Article IV of the Compact (Ett 99 Stat.1861) which states:
"(1) Facilities located in any party state, other than facilities established or maintained by !ndividual low level waste generators for the management of their own low-level waste. shall accept low level waste generated in any party state if such waste has been packaged and transported according to applicable laws and regulations." (Emphasis supplied.)
As used in Article IV, paragraph (1), the words "their own low-level waste" refer to low-level waste generated by " individual low level waste generators" not by a " party state."
16 -
Also, compare proposed section 19 3 203(4)(a) (me Draft Bill, sec. 81, at p.117) w.Jch states:
"(4)(a)
Each party state shall cooperate with the other pty states in determining the appropriate site of any facility that may be required within the region comprised of the party states, in order to maximize public health and safety while minimizing the use of any party state as the host of the facilities on a permanent basis."
with the first sentence in paragraph (4), Article IV of the Compact (me 99 Stat.1862) which states:
"(4)
Each party state shall cooperate with the other party states in
-determining the appropriate site of any facility that might N required within the region comprised of the party states, in order te tr,aximize public health and safety while minimizing the use of any w.e (1). party state as the host of such facilities on a permanent basis...." (Empbasis supplied.)
In our opinion, these two paragraphs do not convey the same meaning.
Attachments:
Utah Draft Bill, pp. 50-63, 98 120, 292 301, 306, 322 324, 348 350.
Memorandum of August 9,1982 from Axelrad to C" lins te Review of Utah's Statutoiy Authority Regarding Agreemei.. State Status.
Detailed NRC Statf Comments on Utah's draft proposal for an
~
amended s 274b agreement, Enclosure A. to Memorandum of May 9,1989 from Treby to Kammerer.
4 UTAH DRAFT BILL 23-90 3:21 PM DRAFT 91 FL-0148 B. No.
10-23-90 3:21 PM DRAFT 1
(5) Conviction under this section or any other public health law 2
[shsH] does not-relieve the person convicted from civil liability for 3
any act (which) that was also a violation of the public health laws.
4 (6) Each day-of violation of this section or rules or regulations 5
adopted by local boards of health may be a separate violation.
6 Section 23.
Section 19-1-101, Utah Code Annotated 1953, is enacted 7
to read:
l 8
Part 1.
Organir.ation l
9 19-1-101.
Short title.
i 10 This title is known as the " Environmental Quality Act."
l 11 Section.24.
Section 19-1-102,'!tah Code Annotated 1953, is enacted 12 to readt 13 19-1-102.
Purposes.
14 The purpose of this title is tot 15 (1) clarify the powers and duties of the Departreent of Environmental 16 Quality in relationship to local health departments 1 17 (2) provide effective, coordinated management of state environmental AB concernst 19 (3) safeguard pubtle health and Utah's aus11ty of life by protecting 20 and improving Utah's environmental quality while considering the benefits 21 to public health, the impacts on economic development,
- property, l
22 wildlife, tourism,-business, agriculture, forests, and other interests, 23 and the costs to the public and to industryl and 24 (4) strengthen local health departments' environmental programs 1 25 build consensus among the public,
- industry, and local governments in
.-r t
y-ye g n,h_,
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10-23-90 3:21 PM DRAFT 1
developing environmental protection geslo t and appropriately balance the 2
reed for environmental protection with the need for economic and 3
industrial development.
4 Section 25.
Section 19-1-103, Utah Code Annotated 1953, is enacted 5
to readt 6
19-1-103.
Definitions.
7 As used in this titlet B
[1) " Department" nans the Department of Environmental Quality.
9 (2) _" Executive director" means the executive director of the 10 department appointed pursuant to Sect.V 19-1-104.
.11 (3) " Local health department" means a local health department as 12 defined in Section 17A-3-502.
13 (4)
"P'rson" means an' individual,
- trust, firm, estate, company, 14 corporation, partnership, association, state, state or federal agency or 15 entity, municipality, comission, or political subdivision of a state.
16 Section 26.
Section 19-1-104, Utah Code Annotated 1953, is enacted 17 to readt 18 19-1-104 Creattor, of department Appointment of executive 19 director.
20 (1) There is created within stete government the Department of al
' Environmental Quality.
The department shall be administered by an 33
~ executive director.
33 (2) The executive director shall be appointed by the governor with 34 the advice and consent of the Senate and shall serve at the pleasure of 25 the governor..
10-23-90 3:21 PM DT. AFT B. No.
1 (3) The executive director shall have demonstrated the necessary 2
administrative and professional ability through education and experience 3
to ef ficiently and ef f ectively e.anage the department's af f airs.
4 (4) The Legislature shall fix the compensation of the executive 5
director in accordance with Chapter 22, Title 67.
6 Section 27.
Section 19-1-105, Utah code Annotated 1953, is enacted 7
to read:
Control by division B
19-1-105.
Olvisions of department 9
directors.
10 (1) The following divisions are created within the department:
11 (a) the Division of Air Quality, to administer Chapter 2, Title 198 12 (b) the Division of Drinking Water, to administer Chapter 4, Title 13 191 14 (c) the Division of Environmental Response and Remediation, to 15 administer Parts 3 and 4, Chapter 6, Title 191 16 (d) the Division of Radiation, to administer Chapter 3, Title 191 17 (e) the Division of Solid and Hazardous Waste, to administer Parts 18 1, 2, and 5, Chapter 6, Title 191 and 19 (f) the Division of Water Quality, to administer Chapter 5,
Title 20 19.
21 (2) Each division is under the immediate direction and control of a 22 division director appointed by the executive director.
23 (3) Each division director shall possess the necessary 24 administrative skills and training to adequately qualify him for his B. No.
10-23-90 3:21 PM DRAFT 1
position.
He shall have graduated from an accredited college or 2
university with:
3 (a) a four year degree in physleal or biological science or 4
engineering:
5 (b) a related degree; or 6
(c) a degree in law.
7 (4) Each director may be removed at the vill of the executive 8
director.
9 Section 28.
Section 19-1-106, Utah Code Annotated 1953, is enacted 10 to readt 11 19-1-106.
Boards within department.
12 (1) The following policymaking boards are created within the 13 departmentt, 14 (a) the Air Quality Board, appointed under Section 19-2-103:
15 (b) the Radiation control Board, appointed under Section 19-3-1031 i
16 (c) the Drinking Water Protection Board, appointed under Section 17 19-4-103:
18 (d) the Water Quality Board, appointed under Section 19-5-103: and L
i 19 (e) the Solid and Hazardous Waste Control Board, appointed under i
30 Section 19-6-103.
31 (2) The authority of the boards created in Subsection (1) is-Ilmited 22 to the specific authority granted them under this title.
33 Section 29. Section 19-1-107, Utah Code Annotated 1953, is enacted 34 to readt 1
i
. ~.
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10-23-90 3:21 PM DRAFT 1
19-1-107.
Environmental Quality Coordinating Consulttee created --
2 Chairman -- Function -- Meetings.
3 (1) There is created within the department the Environmental Quality 4
Coordinating Comittee.
5-(2) The comittee comprises 6
(a) the chairmen of the Air Quality Board, the Water Quality Board, 7
the Drinking Water Protection Board, and the Solid and Hazardous Waste 8
Control Boardt 9
(b) the executive directors of the Departments of Natural Resources, 10 Health, and Environmental Qualityl 11 ic) the comissioner 'of the Department of Agriculturel and 32 (d) a local health officer.
23 (3) The executive director of the Department of Environmental 34 Quality is the chairman of the committee.
15 (4) The comittee shall coordinate environmental policy decisions t
l
.36 between departments and assist in the development of environmental 27 quality plans for the state.
18 (5) The comittee shall meet on a regular basis en a schedule i
39 established by the chairman.
20 Section 30.
Section-19-1-201, Utah Code Annotated 1953, is enacted 23 to read:
23 Part 2.
Powers 23 19-1-201.
Powers of depertoent.
34 Q), The department shallt O.
I B. No.
10-23-90 3:21 PM DRAFT 1
(a) enter into cooperative agreements with the Department of Health 2
to delineate specific responsibilities to assure that assessment and 3
management of risk to human health from the environment are properly 4
administeredt 5
(b) consult with the Department of !!ealth and enter into cooperative i
6 agreements, as needed, to ensure efficient use of resources and effective 7
response to potential health and safety threats from the environment, and 8
to prevent gaps in protection from potential risks from the environment I
9 to specific individuals or population groups:
10 (c) coordinate implementation of environmental programs to maximize 11 efficient use of resources by developir.g, with local health departments, 12 a Comprehensive Environmental Servlee Delivery Plan thatt 13 (i). recognizes that the department and local health departments are
-14 the foundation for providing environmental health programs in the statet 15 (ii) delineates the responsibilities of the department and each 16 local health department for the efficient delivery of environmental 17 programs using federal, state, and local authorities, responsibilities, 18 and resourcest i
l 19 (iii) provides for the delegation of authority and pass through of 20
. funding to local health departments for environmental programs, to the 21 extent allowed by applicable law, identified in the plan, and requested 32 by the local health department; and 23 (iv) is reviewed and updated annuallyt and 34 (d) submit the plan developed under Subsection (c) to the governor 25 and the Health Interim Committee on or before October 31, 1991.
1 O
~55-
m 4
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10-23-90 3:21 PM DRAFT 1
(2) The department may!
2 (a) investigate matters affecting the environment:
3 (b) investigate and control matters affecting the public health when 4
eaused by environmental hazardst 5
(c) prepare, publish, and disseminate information to inform the 6
gublic concerning issues involving environmental quality 7
(d) establish and operate programs, as authorized by this title, 8
necessary for protection of the environment and public health from 9-environmental hazardst 30 (e) use local health departments in the delivery of environmental
-21 hesith programs'to the extent provided by lavl 12 (f) enter into contracts with local health departments or others to 23-meet rs*ponsibilities established under this titiet 24 (g) acquire ieal and personal property by purchase, gift, devise, 15 and other lawful meanst 16 (h) prepare and submit to the governor a proposed budget to be
'27 included in the budget submitted by the governor to the Legisisturet
~
28 (1) ~ adgpt a
schedule of fees that may be assessed for actions and 29 services of the department-, provided that fees shall bat 20 (i) - reasonable and faict 21 (ii) submitted to and approved by the-. Legislature as part of the 22-
-department's annual appropriations requests and 23' (iii) established and paid into the state treasury in accordance 34 with Section 63-38-31 56
l l
l B. No.
10-23-90 3:21 PM DRAFT 1
_j) prescribe by rule reasonable requirements not inconsistent with
(
2 law relating to environmental cuality for 1ccal health departmentst 3
(k) perform the adelnistrative functions of the boards established 4
by Section 19-1-106, including the acceptance and administration of 5
grants from the federal government and from other sources, public or 6
private, to carry out the board's functions 1 and 7
(1) upon the request of a r. y board or the esecutive sectetary, 8
provide professional, technical, and clerical staff and field and 9
laboratory services, the extent of which are limited by the funds 10 available to the department for the staff and services.
11 Section 31.
Section 19-1-202, Utah Code Annotated 1953, which is 12 renumbered from Section 26-14d-202, Utah Code Annotated 1953, as enacted 13 by Chapter 190, Laws of Utah 1989, is amended to readt 14 (26-14d-202) 19-1-202.
Powers of the executive director.
15 (1) The executive director shall 16 (a) administer and supervise the department 1 17 (b) coordinate policies and program activities conducted through 18 boards, divisions, and offices of the departmentt 19 (c) approve the proposed budget of each board, division, and office 20 within the departmentl 21 (d) approve all applications for federal grants or assistance in 22 support of any department programt and 23 (e) with the governor's
- specific, prior approval, expend funds 24 appropriated by the Legislature necessary for particirstion by the state 25 in any fund, property, or service provided by the federal government.
l l -_
I B. No.
10 23-90 3:21 PM DRAFT j
1 (2) The executive director mayt 2
(a) issue orders to enforce state laws and rules established by the 3
department except where the enforcement power is given to a board created 4
under Section 19-1-106, unless the executive director finds that a
condition exists which creates a clear and present hazard to the public 6
health or the environment and which requires immediate action, and if the 7
enforcement power is vested with a board created under Section-19-1-106, 8
the executive director may with the concurrence of the' governor order any 1
9 person causing or contributing to the condition to reduce, mitigate, or 10 eliminate the conditient
'11; (b) with the approval of the governor, participate in the 12 distribution, disbursement, or administration of any fund or service, 13 advanced, offered, or contributed by the federal government for purposes 14 consistent with the powers and duties of the departmentt 15 (c) accept and receive funds and gifts available from private and 16 public groups for the purposes of promoting and protecting the public 17 health and the environment and expend the funds as appropriated by the 18 Legislaturet 19 (d) make policies not inconsistent with law for the internal 20 administration and government of the department, the conduct of its al employees, and the custody, use, and preservation of the records, papers, 22 books, documents, and property o; the departmenet 33 (e) create advisory committees as necessary to asrist in carrying 34 out the provisions of this titiet
[
l l
l
a B. No.
10-23-90 3:21 PM DRAFT 1
(_f) appoint division directors who may be removed at the will of the 2
executive director and who shall be compensated in an amount fired by the 3
executive directort
(
4
. ft)) ig} advise, consult, and cooperate with other agencies of the 5
- state, the federal government, other states and interstate agencies, 6
affected groups, political subdivisions, and industries in carrying out 7
the purposes of this (ehspeer) tittel B
(ff)) (h) consistent with Chapter 19, Title 67, (the) Utah State 9
Personnel Management Act, employ employees necessary to meet the 10 requirements of this (chapter) titlet
(
11
_ fS)) (1) authorize any employee or representative of the division 12 to conduct inspections as permitted in this (chapter) tittel 13 (f4)) ill encourage, participate in, or conduct any
- studies, 14 investigations,
- research, and demonstrations relating to hazardous 15 materials or substances releases necessary to meet the requirements of 16 this(chapter)titlet 17 (f5))
(k) collect and disseminate information about hazardous 18 materials or substances releasest 19 (f6)--enforce-entes-by-issning-orderst)and 20 (f9))(1) review plans, specifications, or other d.ta relating to 21 hazardous substances releases as provided in this ( hepeer) title.
22 Section 32.
Section 19-1-203, Utah code Annotated 1953, is enacted 33 to read:
34 19-1-203.
Representatives of department authorized to enter 25 regulated premises.
- Y
_ - _ _ _ _ _ _. _ _.. ~ _ _. _ _ _ _.
B. No.
10-23-90 3121 PM DRAFT 1
(1) Authorized representatives of the department, upon presentation 2
of appropriate credentials, may enter at reasonable times upon the 3
premises of properties regulated under this title to perform inspections 4
to insure compliance with rules made by the department.
5 (2) The inspection authority provided in this section does not apply 6
to chapters in this title which provide for specific inspection 7
procedures and authority.
8 Section 33.
Section 19-1-204, Utah code Annotated 1953, is enacted 9
to read 10 19-1-204 Legal advice and representation for department.
11 (1) The attorney general is the legal adviser for the department and 12 the executive director and shall defend them in all actinns and 13 proceedings brought against either of them.
14 (2) The attorney general or the county attorney of the county in 15 which a cause of action arises or a public offense occurs shall bring any 16 civil or criminal action requested by the executive director or any board 17 created in Section 19-1-106 to abate a condition which exists in 18 violation of, or to prosecute for the violation of or for the enforcement 19 of, the laws or standards, orders, and rules of the department.
20 Section 34.
Section 19-1-205,' Utah Code Annotated 1953, la enacted I
21 to reads
(
22 19-1-205.
Assumption of responsibilities.
23 The department assumes all the policymaking functions, regulatory and l
24 enforcement powers, rights, duties, and responsibilities of the Division 25 of Environmental Health, the Air Conservation Committee, the Solid and B. No.
10-23-90 3:21 PM DRAFT 1
Hazardous Waste Committee, the Utah Safe Drinking Water Committee, and 2
the Water Pollution Control Committee previously vested in the Department 3
ef Health and its executive directort 4
(1) includinE pcSgrams for individual vastewater disposal
- systems, 5
liquid scavenser operations, and vault and earthen pit priviest but 6
(2) eteluding all other sanitation programs, which shall be 7
administered by the Department of Health.
8 Section 35.
Section 19-1-301, Utah Code Annotated 1953, is enacted 9
to readt 10 Part 3.
Administration 11 19-1-301.
Adjudicative proceedings.
12 The department and its boards shall comply with the procedures and 13 recuirements of Chapter 46b, Title 63, Administrative Procedures Act.
14 Section 36. Section 19-1-302, Utah Code Annotated 1953, is enacted 15 to read:
16 19-1-302.
Violation of laws and orders unlawful.
17 It is unlawful for any persent
[
l 18 (1) to violate the provisions of the laws of this title or the terms l
l 19 of any order or rule issued under its or 30 (2) to fail 'to remove or abate from private property under the 21 person's control at his own expense, within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />, or such other 22 reasonable time as the department determines, after being ordered to do 23 so, any nuisance, source of filth, or other sanitation violation.
34 Section 37. Section 19-1-303, Utah code Annotated 1953, is enacted 25
- o readt I..
r-B. No.
10-23-90 3121 PM DAAFT 1
19-1-303 Crialnal and civil penaltles Liability for 2
violations.
3 (1) (a) Any person who vloistes any provision of this title or 4
lawful orders or rules adopted under this title by the department shall (1) in a civil proceeding be assessed a penalty not to exceed the 6
sum of $5,000s or 7
(ii) in a criminal proceedingt 8
(A) for the first violation, be guilty of a class B misdemeanor 4 and 9
(B) for a subsequent similar violation within two years, be guilty 10 of a class A misdemeanor.
11 (b) In addition, a person is liable for any expense incurred by the 12 department in removing or abating any violation.
13 (2) Assessment or conviction under this title does not relieve the 14 person assessed or-convicted from civil liability for any act which was 15 also a violation of the public health laws.
16 (3) Each day of violation of this title or rules made by the 17 department under it may be censidered a separate violation.
88 (4) The enforcement procedures and penalties provided in Subsections 19 (1) through (3) do not apply to chspters in this title which provide for 20 other specific enforcement procedures and penalties.
21 Section 38.
Section 19-1-304, Utah code Annotated 1953, is enacted 32 to readt 23 19-1-304 Principal and branch offices of department.
34 (1) The principal office of the department shall be in Salt Lake 25 county.
62 e
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10-23-90 3:21 pH DRAFT 1
(2) The department may establish branch offices at other places in 2
the state to furnish comprehensive and effective environmental programs 3
and to coordinate with and assist local health officers.
4 Section 39.
Section 19-2-101, Utah Code Annotated 1953, which is 5
renumbered from section 26-13-1, Utah Code Annotated 1953, as enacted by 6
Chapter 126,1.avs of Utah 1981, is amended to read!
7 (26-13-6) 19-2-101.
Short title -- Policy of state and purpose of 8
chapter Support of local and regional programs -- Provision of 9
coordinated state-wide program.
10 (1) This chapter (shatt-be) h known [and-may-be-cited) as the " Air 11 Conservation Act."
12 (2) It is the policy of this state and the purpose of this chapter 13 to achieve and maintain levels of air quality which will protect human 14 health and safety, and to the greatest degree practicable, prevent injury 15 to pitnt and animal life and property, foster the comfort and convenience 16 of the people, promote the economic and social development of this state, 17 and facilitate the enjoyment of the natural attractions of this state.
18
( ', i 1.ocal and regional air pollution control programs shall be
-19 supported to the extent practicable as essential instruments to secure 20 and maintain appropriate levels of air quality.
21 (4) The purpose of this chapter is to provide for a coordinated 22 state-wide program of air pollution prevention, abatement, and control; 23 to provide for an appropriate distribution of responsibilities among the 24 state and local units of government; to facilitate cooperation across 25 jurisdictional lines in dealing with problems of air pollution not - - - _ _ _ - -
~
B. No.
10-23-90 3:21 PM DRAFT 1
(b) The Strte Tax Commission shall collect taxes not paid by the 2
holder because of the tax relief provided the holder to the extent 3
permitted by the applicable statute of limitations.
4 Section 65.
Section 19-2-127, Utah Code Annotated 1953, which is 5
renumbered from Section 26-13-30 Utah code Annotated 1953, as enacted by 6
Chapter 126, Laws of Utah 1981, is amended to readt 7
[26-13-39] 19-2-127.
Rules for administering certification for tax B
relief.
9 In addition to the powers granted it, the
[eemmitteel board may 10 formulate,
- amend, or cancel (v) rules establishing procedures for 11 processing and evaluating applications for certification, establishing 12 procedures for the issuance and revocation of certificatast and all other 13 matters pertaining to che (committee]
board in administering 14 certification for tax relief on pollution control facilities.
15 Section 66.
Section 19-3-101, Utah Code Annotated 1953, is enacted 16 to readt 17 19-3-101.
Short title.
18 This chapter is known as the " Radiation Contr,ol Act."
19 Section 67.
Section 19-3-102, Utah Code Annotated 1953, which is 20 renumbered from Section 26-1-26.'5, Utah Code Annotated 1953, as enacted 31 by Chapter 297, Laws of Utah 1990, is amended to readt 22
[f 6-t-f 6t5) 19; 3-102.
Definitions.
23 As used in this chaptert 24 (1) " Beard" means the Radiation Control Board created under Section 25 19-1-106. -.
B. No.
10-23-90 3:21 PM DRAFT 1
(2) " Executive secretary" means the esecutive secretary of the 2
board.
3 (3) "Pacility" in Sections 19-3-201 through 19-3-205 means any site, 4
- location, structure, or property used or to be used for the storage, 5
treatment, or disposal of low-level vaste, excluding federal waste 6
facilities.
7 (4) "Cenerator" means any
- person, partnership, association, 8
corporation, or any other entity whatsoever which, as a part of its 9
activities, produces low-level radioactive vaste.
10 (5) "High-level nuetear vaste" means spent reactor fuel assemblies, 11 dismanttid nuclear reactor components, and solid and liquid wastes from 12 fuel reprocessing and defense-related wastes, but does not include 13 medical or institutional
- vastes, naturally-occurring radioactive 14 materials, or uranium mill tallings.
15 (6) " Host state" means a state in which a facility is located.
16 (7) " Low-level waste" in Sections 19-3-201 through 19-3-205 means 17 waste material which contains radioactive nuclides emitting primarily 18 beta or gamma radiation, or both, in concentrations or quantities which 19 exceed appilcable federal or state standards for unrestricted release.
20 Low-level waste does not include waste containing more than ten 21 nanocuries of transurante contaminants per gram of material, nor spent 22
_ reactor fuel, nor material classified as either high-level waste or waste 23 which is unsuited for disposal by near-surface burial under any 24 applicable federal regulations.
99
Proposed Amendments (Radiation Control Board)
The following are proposed amendments to the 10/3/90 draft of the bill titled,
" Department of Environmental Quality".
1.
Page 100, line 18 through page 101, line 2: DELETE 2.
Page 100, line 17 - AFTER LINE 17 INSERT:
a.
One physician; b.
One dentist; One health physicist or other professional employed in the field of c.
radiation safety; d.
Two representatives of regulated industry,line; at least one of whom represents a non destructive testing discip One registrant or liscensee representative from academia; e,
- f. -
.One representative of a local health department o
I g,
One elected county ofncial h.
Two members of the general public, at least one of whom represents l,
organized environmental interesta, 1
h NN M G~th rdet On Ndamhr l
- l190, 542GG;p!01-l I
,n, g
y.
.y,.
- 8. No.
10-23-90 3:21 PM DR FT 3
1 (ft)) (8) " Radiation" means ionizing and nonioniaing radiation, 2
including gamma rays, x-rays, alpha and beta (pseticiples) particles, 3
high speed electrons, and other nuclear particles.
4 (fff)(9) "Radiasetive" means any solid, liquid, or gas which emits 5
radiation spontaneously from decay of unstable nuclei.
6 Section 68.
Section 19-3-103, Utah Code Annotated 1953, is enacted 7
to readt Organization 8
19-3-103.
Radiation Control Board -- Members 9
Meetings -- Per dies.
10 (1) The board created under Section 19-1-106 comprises 11 members, 11 one of whom shall be the executive director _,_ and the remainde r of whom 12 shall be appointed by the governor, with the advice and consent of the 13 Senate.
14 (2)- No more than five appointed members shall be from the same 15 political party.
16 (3) The appointed members shall be knowledgeable about radiation 27 protection and shall be as follows:
18 la) one physiciant 29 (b) one dentistt 20 (c) one radiologic technologist 1 21 (d) one representative of the regulated nondes t ruc tive testing.
22 industry; 23 (e) one representative of an industrial licensee or registrant 1 34 (f) one representative of a licensee or registrant from academist 25 (g) one representative of a local healtr_departmenet
-100-
B. No.
10-23-90 3:21 PM DRAFT 1
(h) one elected county officialt and 2
(i) two members of the general public, at least one of whom 3
represents organteed environmental interests.
4 (4) Members shall be appointed for a four year term.
5 (5) The board shall annually elect a chairman and vice-chairman from 6
its members.
7 (6) The board shall meet at least quarterly. Other meetings may be 8
called by the chairman, by the executive secretary, or upon the request 9
of three members of the board.
10 (7) Reasonable notice shall be given each membe'r of the board prior 11 to any meeting.
12 (8) Six members constitute a quorum.
The action of a majority of 13 the members present is the action of the board.-
14 (9) (a) The appointed members of the board shall be paid their 15 actual and necessary expenses incurred in the performance of their duties 16 and a per diem allowance provided in Section 63-1-14.5 and 63-1-15.
17 (b) No members on the public payroll on a full-time bar!,s_ may 18 receive further compensation for services on the board.
19 Section 69.
Section 19-3-104, Utah Code Annotated 1953, which is 70 renumbered from Section 26-1-27, Utah Code Annotated 1953, as last 21 amended by Chapter 180, Laws of Utah 1989, is amended to read:
22
[26-1-27) 19-3-104 Registration and ~ licensing of radiation 23 sources by department -- Assessment of fees -- Rulepaking authority and 24 procedure -- Siting criteria.
l
-101-
4 B. No.
10-23-90 3:21 PM DPAFT 1
(1) The (department) board may require the registration or licensing 2
of radiation sources that constitute a signif'. cant health hasard.
3 (2) All sources of ionizing radiation, including lonleing radiation 4
producing machines, shall be registered er licensed by the department.
5 (3) The (deper'. ment) board may make rules necessary for controlling 6
exposure to sources of radiation that constitute a significant health 7
hazard.
E (4) (a) The department shall assess fees for registration, 9
licensing. and inspe= tion of radiation sources under this section.
10 (b) The de pa rtment shall comply with the regulrements of Section 11 63-36=3 [(24) in assessing fees for licensure and registration.
12 (5) (a) Except as provided in subsection. (6),
no rule that the 13 (department) board adopts for the purpose of the state assuming 14 responsibilities from the United States Nuclear Regulatory Commistion 15 with respect to regulation of sources of ionizing radiation may be more 16 stringent than the corresponding federal regulations which address the 17 same circnmstances.
18 (b) In adopting those rules, the (department) board may incorporate 19 correspondin; federal regulations by reference.
30 (6) (a) The (deparemenel' beard may adopt rules more stringent than al corresponding federal regulations for the purpose described in Subsection 22 (5) only if it makes a written finding after public comment and hearing 33 and based on evidence in the record that corresponding federal 34 regulations are not adequate to protect public health and the environment 25 of the state.
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(b) Those findings shall be accompanied by an opinion referring to 2
and. evaluating the public health and environmental information and 2
studies contained in the record which form the basis for the (der.trementa ) board's conclusion.
4 s
5
) (a) The (deparement) board eay establish criteria for siting 6
ces *
.21 low level radioactive vaste treatment or disposal facilities.
7 (b) Any facility for which a radioactive material license is 8
- equired by this section shall comply with those criteria.
9 (c) A facility may not receive a radioactive material license until 10 siting criteria have been established by the (department) board.
The 11 criteria shall also apply to facilities that have applied for but not 12 received a radioactive material license.
lJ (B) The board may take action and issue orders to enforce laws and 14 rules under this chapter.
Representatives of the board, upon
' 15 presentation of appropriate credentials, may enter at reasonable times, 16 upon the premises of properties regulated under this chapter to perfnem 17 inspections to insure compliance with rules made by the board.
18 Section 70.
Section 19-3-105, Utah Code Annotated 1953 which is 19 renumbered from Section 26-1-27.2, Utah Code Annotated 1953, as en;:ted 20 oy Chapter 297, Laws Of Utah 1990, is amended to readt 21 (26-1-27:33 19-3-105.
Legislative and gubernatorial approval 22 required.
23 (1) (a) No person may own, construct, modify, or operate any 24 facility for the purpose of treating or disposing of radioactive waste
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1 without first submitting and receiving the approvst of the ( d e ~pa r t me'ne )
2 board for a radioactive material license for the facility.
3 (b) No person may construct a new commercial radioactive waste 4
treatment or disposal facility until 5
(1) the requirements of section (f6-4 97) 19-3-104 have been mett 6
(11) in addition and subsequent to the approval required in 7
Subsection (a),
the governor and the Legislature have approved the-8 faellityl and 9
(iii) local planning and toning has authorized the facility.
10 (c) For purposes of this
- section, the following items shall te 11 treated as submission of a nek license application:
12 (1) the submission of a revised appilcation specifying s different 13 geographic site thin a previously submitted appilcationi or 14 (ii) an application for am6ndment of a commercist radioactive waste 15 license for treatment or diiposal facilities, including inci6erators, if 16 the construction would cost 50% or mori of the cost of construction of 17 the original treitment or disposd1 faellity or the modifiestion would 18 result in an increase in capacity or throughput of a cusulative total of 19 50% of the total capacity or throughput which was approved in the 30 facility license as of January 1, 1990, or the initial approval facility 31 license if (seebl the initial license approval is subsequent to January 32 1, 1990.
33 (2) No person need ebtain gubernatorial or legislativa approval for 34 the construction of a radioactive vaste facility for which a license 35 application has been approved by the (department) Department of Health or
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submitted to the federal Nuclear Regulatory Commission and to the 2
( de pe r.*eent ) Department of He al t h f or approval p;;,. Tei.. vm 4
- 7)
~'
3 14*>< tee before January 1, 1990, and which has been d e t e rmine d, on or A
before October 3.'. 1990, by the (departeene) Department of Health to be i
complete in accordance with state and federal requirements.
l 6
(3) The (department) board shall suspend acceptance of t'urther 7
applications for 3
commercial radioactive waste facilities upon a finding B
that they cannot adequately oversee esisting and additional radioactive 9
waste facilities for license compliance, monitoring, and enforcement.
10 The (departnent) board shall report (such) the suspension to the 11 Legislative Management Committee.
12 (4) The [ department) board shall review each proposed radioactive i
13 waste license application to determine whether the application complies 14 with the provisions of this chapter and the rules of the (department) 15 board.
16 (5) (a) If the radioactive license application is determined to be complete, the (department) board shall issue a notice of completeness.
Aw (b) If the plan is determined by the (department) board to be 19 incomplete, the (department) board shall issue a notice of deficiency, 20 listing the additional information to be provided by the applicant to 21 complete the application.
22 Section 71.
Section 19-3-106, Utah Code Annotated 1953, which is 23 renumbered from Section 26-1-27.3, Utah Code Annotated 1953, as enacted 24 by Chapter 297, Laws of Utah 1990, is amended to readt 25 (96-t-99tS) 19-3-106.
Radioactive waste management fee.
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(1) An ovner or operator of any commercial
-*dioactive waste 2
treatment or disposal f acility that priurity receives waste generated by 3
off-site sources not owned, controlled, or operated by the facility or 4
site owner or operator shall pay an annual fee of $118,000 or a quarterly 5
installment of $29,500.
6 (2) (c) The owner or operator shall pay the annual fee imposed under 7
this section to the department on or before the 15th day of July of each 9
calendar year or the quarterly installment beginning July 15, 1990.
9 (b) The department shall deposit all fees received under this 10 section into the General Fund.
11 Section 72. Section 19-3-107, Utah Code Annotated
- 1953, which is 12 renumbered from Section 26-1-27.4, Utah Code Annotated 1953, as enacted 13 by Chapter 297, 1.aws of Utah 1990, is amended to read 14 (96-i-2h4)19-3-107 State randloactive waste plan.
15 (1) The (department) board shall prepare a state plan for management 16 of radioactive vaste by July 1, 1993.
17 (2) The plan shall 18 (a) provide an estimate of radioactive waste capacity needed in the 19 state for the next 20 yearst
'80 (b) assess the state's ability to minlaise waste and recyclet 31 (c) evaluate radioactive vaste treatment and disposal options, as 22 well as radioactive vaste needs and existing capacityl l
33 (d) evaluate facility siting, design, and operation 24 (e) review funding alternatives for radioactive waste management; 25 and t
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(f) address other radioactive waste management concerns that the 2
(department) board finds appropriate for the preservation of the public 3
health and the environment.
4 Section 73.
Section 19-3-108, Utah Code Annotated 1953, is enacted 5
to read 6
19-3-108.
Powers and dutles of executive secretary.
7 (1) The executive director shall appoint an executive secretary, 8
with the approval of the board, to serve under the direction of the 9
executive director.
10 (2)
The eneeutive secretary may:
11 (a) develop programs to promote and protect the public from 12 radiation sources in the statet 13 (b) advise, consult, and cooperate with other agencies, states, the 14 federal government, political subdivisions, industries, and other groupe 15 to further the purposes of this chaptert 16 (c) as authorized by the boards-17 (i) issue licenses, registrations, and certifications:
18 (ii) review and approve planet 19 (111) enforce rules through the issuance of orders and assess 20 penettles in secordance with section 19-3-1091 21 (iv) impound radioactive material under section 19-3-1114 and 22 (v) authorite employees or representatives of the department to 23 enter at reasonable times and upon reasonable notice in and upon public 24 or private property for the purpose of inspecting and investigating 35-conditions and records concerning radiation sources.
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Section 74.
Section 19-3-109 Utah code Annotated 1953, which is 2
renumbered frre Section 26-1-28.1, Utah Code Annotated 1953, as last 3
anended by Chapter 238, Laws of Utah 1989, is amended to read 4
[f6-6-98vi) 19-3-109.
Civil penaltles -- Appeals.
5 (1) A person who violates any provision of Sections (26-i-f7) 6 19-3-104 through (f6-i-f9) 19-3-113, any rule or order issued under the 7
authority of those section:,
or the terms of a license, permit, or 8
registration certificate issued under the authority of those sections, is 9
subject to a civil penalty not to exceed $5,000 for each violation.
10 (2) The (8ereso-ef-Radiation-6entrek) board may assess and make a 11 demand for payment of a penalty under this section and may compromise or 22 remit that penalty.
13 (3) In order to make demand for payment of a penalty assessed under 24 this
- section, the (Bereso--of--Rediation--Gentrek) board shall issue a 15 notice of agency action, specifying, in addition to the requirements for 26 notices of agency action contained in Chapter 46b, Title 631 27 Administrative Procedurer Act!
A8 (a) the date, facts, and nature of each act or omission chargedi 19 (b) the provision of the statute, rule, order, license,
- permit, or 30 registration certificate that Is alleged to have been violated:
l 31 (c) each penalty that the bureau proposes to impose, together with 32 the amount and date of effect of that penaltyl and 33 (d) that failure to pay the penalty or respond may result in a civil 34 action for collection.
I
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(4) A person notified according to Subsection (3) may request an i
2 adjudicative proceeding.
3 (5) Upon request by the (Beress-ef-Rediation-teneret) board,the 4
attorney general may institute a civil action to collect a penalty 5
imposed under this section.
6 (6) (a) Except as provided in Subsection (b),
the (berese]
7 dersetment shall deposit all monies collected from civil penalties 8
imposed under this section into the General Fund.
9 (b) The department may reimburse itself and local governments from 10 monies collected from civil penalties for extraordi' nary expenses incurred 11 in environmental enforcement activities.
12 (c) The department shall regulate reimbursements by making rules 13 thatt 84 (i) define qualifying environmental enforcement activitiest and 15 (ii) define qual!fying estraordinary expenses.
16 Section 75.
Section 19-3-110, Utah code Annotated 1953, is enacted 17 to readt 18 19-3-110.
Criminal penaltles.
19 (1) Any person who knowingly violates any provision of Sections 30' 19-3-104 through 19-3-113 or lawful orders or rules adopted by the l
21 department under these sectiens shall in a celminal_proceedingt 22 (a) for the first vlointion, be sullty of a class B misdemeanort and 23 (b) for a subsequent siellar violation within two years.
be sullty 24 of a class A misdemeanor.
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1 (2) in addition, a person is liable for any expense incurred by the 2
department in removing or abating any vlotation.
3 (3) Conviction under Sections 19-3-104 through 19-3-113 does not 4
relieve the person convicted from civil liability for any set which was 5
also a violation of the public health laws.
6 Section 76.
Section 19-3-111, Utah Code Annotated 1953, which is 7
renumbered from Section 26-1-28.2, Utah Code Annotated 1953, as last 8
amended by Chapter 161, Laws of Utah 1987, is amended to readt 9
(26-t-98tt) 19-3-111.
Impounding of radioactive material.
10 (1) The (Burean--of--Radiation--eentret) board may impound the 11 radioactive material of any person ift an imminent threat or danger to the public 12 (a) the material poses 13 health or safetyl and 14 (b) that person is violating:
15 (i) any provision of Sections (96-4-97) 19-3-104 through (26-t-99) 16 19-3-1131 orders enacted or issued under the authority of 17 (ii) any rules or 18 those sectional or 19 (iii) the terms of a license, permit, or registration certificate 20 issued undLr the authority of those sections.
21 (2) Before any dispositive action may be taken with regard to impounded radioactive materials, the (Baress-of-Radiation-6entret) board 22 23 shall comply with the procedures and requirements of Chapter 46b, Title 24 63, Administrative procedures Act.
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Section 77.
Section 19-3-112, Utah Code Annotated 1953, which is 2
renumbered from section 26-1-28.5, Utah Code Annotated 1953, as last 3
amended by Chapter 93, Laws of Utah 1990, is amended to read 4
[26-6-28,5) 19-3-112. Notification by the department to certain 5
Persons of release of radiation from Nevada Test $lte -- Notification to 6
certain news outlets.
7 (1) When informed by the United States Department of Energy of any 8
release of radiation exceeding the Nuclear Regulatory Commission's limits 9
for unrestricted use in air or wate< from the Nevada Test site which is 10 detected outside its boundaries, the department shall, unless prohibited 11 by federal law, immediately convey to the persons specified in subsection 12 (2) all information that'is made available to it, including:
13 (a) the datsi 14 (b) the time and duration of each release of radiationi 15 (c) estimates of total amounts of radiation released 16 (d) the types and amounts of each isotope detected off-sitel 17 (e) the locations of monitoring stations detecting off-site 18 radiationi and 19 (f) current and projected wind direction, wind velocity, and 20
- precipitation for the region.
21 (2) Unless prohibited by federal law, the department shall provide 22 the information required under Subsection (1) to the following:
23 (a) members of the Utah congressional delegation or their designated 24 representatives!
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(b) the director of the Division of Corapr ehensive Emergency 2
Hanagementi 3
(c) the att.cney generall 4
(d) the regional director of the Federal " urgency Hansgement 5
Agencyl 6
(e) the regional director of the National Oceanic and Atmospheric 7
Administratient 8
(f) the executive director of the Utah 1eague of Cities and Townst 9
(and)(g) the executiv'e director of the Department of Hestths and 10
((gy)
(h) the chairpersons of the county cornissions of af f ected 11 counties.
12 (3)
If the state is informed by the United States Department of 13 Energy that any radiation released from the Nevada Test Site has been 14 detected by the USDOE or USEPA or the (state--heetth] department within 15 the boundaries of the state of Utah, the department shall, unless 16 prohibited by federal law, ienediately provide all information available 17 to it as specified in Subsection (1) to the Associated Press and United 18 Press International outlets in the state.
19 Section 78.
Section 19-3-113 Utah Code Annotated 1953, which is 20 renumbered from Section 26-1-29, Utah Code Annotated 1953, as enacted by 21 Chapter 126, Laws of Utah,1981, is amended to readt 22 (26-6-29)19-3-113.
Federal-state agreement regardir>g radiation 23 control.
24 (i) The governor, on behalf of the state, may enter into agreements 25 with the federal government providing for discontinuation of the federal i
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government's responsibilities with respect to sources of ionizing 2
radiation and the assumption thereof by the state, pursuant to Section 3
(96-6-97)19-3-104 4
(2) Any person who, on the effective date of an agreement under 5
Subsection (1) (ef-this-sectient) possesser a license issued by the o
federal government (shett-be) i_s, deemed to possess (the-seme) a federal s
license pursuant to a license issued by the department which shall expire 7
B either 90 days after receipt from the department of a notice of 9
expiration of (such) the license, or on the date of espiration specified 10 in ;he federal license, whichever is earlier.
11 Section 79. Section 19-3-201, Utah Code Annotated 1953, which is 12 renumbered fro-Section 26-14'-1, Utah Code Annotated 1953, as enacted by c
13 Chapter 37, 1.aws of Utah 1982, is amended to readt 14 (26-14e-6) 19-3-201.
Interstate Compact on Low-level Radioactive 15 waste -- Polley and purpose of compact.
16 The party states recognize that low-level radioactive vastes are 17 generated by essential activities and services that benefit the citizens 18 of the states. It is further recognised that the protection of the health 19 and safety of the citizens of the party states and the most economical 20 e.anagement of low-level radioactive wastes can be accomplished through 21 cooperatier. of the states in minimizing the amount of handling and 22 transportation required to dispose of (such) the wastes and through the 23 reoperation of the states in providing facilities that serve the region.
24 It is the policy of the party states to undertake the necessary 25 cooperation to protect the health and safety of the citizens of the party l
1
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states and to provide for the apost economical manasce,ent of low-level 2
radioective wastes on a continuing basis.
It is the purpose of this 3
compact to provide the means for (such) a cooperative effort among the 4
party states so that the protection of the citizens of the states and the 5
maintenance of the viability of the states' economies will be enhanced 6
while sharing the responsibilities of radioactive low-level waste 7
rnana g eme nt.
8 Section 80.
Section 19-3-202, Utah Code Annotated 1953, which is 9
renumbered from section 26-14c-3, Utah Code Annotated 1953, as enacted by 10 Chapter 37, Laws of Utah 1982, is amended to read 11 (26-14e-3) 19-3-202.
Practices of party states regarding low-level 12 war' e shipments -- Fees for Inspections.
13 (1) Each party state agrees to adopt practices which will require 14 low-level waste shipments originating within its bordere and destined for 15 a facility within another party state to conform to the applicable 16 packaging and transportation requirements and regulations of the host 17 state (v--Sach practices-shatt-inctode) including:
IB (ft)) (a) maintaining an inventory of all generators within the 19 state that have shipped or expect to ship low-level vaste to facilities 20 in another party statal 21 (fft) (b) periodic unannounced inspection of the premises of the 22 generators and the waste management activities thereon) 23 (fS))(c) authorization of the containers in which the waste may be 24
- shipped, and a requirement that generators use only the type of 25 containers authorized by the statel j
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((44) idl assurance that inspections of the carriers which transport 1
2 the waste are conducted by proper authorities, and appropriate 3
enforcement action taken for violational and 4
(f54)(e) after receiving notification from a host state that a
5 generator within the party state is in violation of applicable packaging 6
or transportation standards, (the-party--state-witt---teke) taking 7
appropriate action to assure that the violations do not recur (v--This 8
setien--may--inchede) including the inspection of every individual 9
low-level vaste shipment by that generator.
10 (2)
Each party state may impose fees upon generators and shippers to 11 recover the_ cost of the inspections and other practices under this 12 compact.
13 Q Nothing in this section (shatt-be-eenserned-to-timit) limits any 14 party state's authority to impose additional or more stringent standards 15 on generators or carriers than those required under this section.
16 Section 81.
Section 19-3-203, Utah Code Annotated 1953, which is 17 renumbered from Section 26-14c-4, Utah Code Annotated 1953, as enacted by 18 Chapter 37, Laws of Utah 1982, is amended to read 19 (26-14e-4)19-3-203. Acceptance of low-level waste by facilities 20 in party states -- Requirements for acceptance of waste generated outside 31 region of party states -- Cooperation in determining site of facility 22 required within reglon of party states Allowance of access to l
33 low-level waste and hazardous chemical waste disposal facilities by 24 certain party states -- Establishment of fees and requirements by host l
35 states.
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(1)
Facilities located in any party state, other than facilities 2
established or maintained by individual lov-level waste generators for 3
the n.anagement of that party state's own low-level waste, shall accept 4
low-level waste generated in any party state if the vaste has been 5
packaged and transported according to appilcable laws and regulations.
6 (2) No feellity located in s.~.y party state may accept low-level 7
waste generated outside of the region comprised of the party states, 8
except cs provided in Section (96-64e-5) 19-3-204 9
(3) Until Subsection (2) (ef-this-section) takes effect, facilities 10 locateo in any parti state u.ay accept low-level waste generated outside 11 of any of the party states only if the waste is accompanied by a 12 certificate of compliance issued by an official of the state in which the 13 waste shipment originated. The certificate shall be in (such) the form 14 (as--may--be) required by the host state, end shall contain at least the 15 folleving:
16 (a) the generator's name and address:
17 (b) a description of the contents of the low-level waste containert 18 (c) a statement that the low-level vaste being shipped has been 19 inspected by the official who issued the certificate or by his or her 30 agent or by a representative of the United States Nuclear Regulatory al Commission, and found to have'been packaged in compilance with applicable 22 federal regulations (and-esch)1 33 (d) additional requirements (as-a.sy-be) imposed by the host statel 34 and 116 l
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(fdf) (e) a binding agt.iement by the state of origin to reimburse 2
any party state for any liability or expense incurred as a result of an 3
accidental release of the vaste during shipment or after the waste 4
reaches the facility.
(4) (a) Each party state shall cooperate with the other party states 6
i determining the appropriate site of any f acility that may be required 7
within the region comprised of the party states, in order ta maximite 8
public health and safety while minimizing the use of any party state as 9
the host of the facilities on a permanent basis.
10 M Each party state further agrees that decisions regarding Il low-level waste management facilities in its region will be reached 12 through a good faith process which takes into account the burdens borne 13 by each of the party states as well as the benefits each has received.
14
($) (a) The party states recognize that the issue of hazardous 1$
chemical waste management is similar in many respects to that of 16 low-level vaste management. Therefore, in consideration of the state of 17 Washington allowing access to its lov-level vaste disposal facility by 18 generators in other party states, party states such as Oregon and Idaho 19 which host hasardous chemical waste disposal facilities will allow access 20 to the facilities by generators within other party states.
21 (b) Nothing in this compact (shsH-be-censtreed-to prevent) prevents 22 any party state from limiting the nature and type of hazardous chemical 33 or low-level vastes to be accepted at facilities within its borders or 24 from ordering the closure of the facilities, so long as (such] Q e, action
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by a host state is applied equally to all generators within the region 2
cofrprised of the party states.
3 (6) Any host state may establish a schedule of fees and requirements 4
related to its facility, to assure that closure, perpetual care, (add) maintenance 2 and contingency requirements are met including adequate 6
bonding.
7 Section 82.
Section 19-3-204, Utah Code Annotated 1953, which is 8
renumbered frorn Section 26-14c-$, Utah Code Annotated 1953, as enacted by 9
Chapter 37,1.aws of Utah 1982, is amended to read 10 (26-14e-5) 19-3-204 Governor to designate state official as 11 person responsible for administration of compact -- Designated officials 12 comprise northwest low-level waste ccapact committee -- Meetings of 13 ccomittee -- Duties relating to existing regulations Authority to 14 e6ake arrangements with entitles outside region of party states.
15 (1) The governor of each party state shall designate one state 16 official as the person responsible for administration of this compact.
17 The officials so designated shall together comprise the northwest 18 low-level vaste compact coenittee.
19 (2)
The connittee shall meet as required to consider matters arising 20 under this compact.
21 (3) The parties shall inform the connittee of existing regulations 22 concerning low-level vaste management in their states [y] and shall afford 23 all parties a reasonable opportunity to review and coornent upon any 24 proposed modifications in the regulations.
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1Q Notwithstanding any provision of Section (f6-64e 4) 19-3-203 to 2
the contrary, the committee may enter into arrangements with states, 3
provinces, Individual generators, or regional compact entitles outside 4
the region comprised of the party states for access to facilities on 5
(such) terms and conditions (as) the coenittee (may-eensider) considers 6
appropriate.
However,(it--shalt--require) a two-thirds vote of all 7
members is required, including the affirmative vote of the member of any 8
party state in which a facility affected by (such) the arrangement is 9
located, for the connittee to enter into (such) e arrangement.
10 Section 83.
Section 19 3-205, Utah Code Annotated 1953, which is 11 renumbered from Section 26-14c-6, Utah Code Annotated 19$3, as enacted by 12 Chapter 37, Laws of Utah 1982, is amended to read 13 (26-64e-6) 19-3-205.
Ellglble party states Requirements 14 regarding joinder and withdrawal from compact -- Consent of Congress.
15 (1) Each of the following states is eligible to become a party to 16 this corepacts Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington, 17 and Wyoming. As to any eligible party, this compact (shatt-become) 18 becomes effective upon enactment into law by that party, but it (shatt) 19 is,not(become)initiallyeffectiveuntilenactedintolawbytwostates.
20 Any party state may withdraw from this compact by enacting a statute 21 repealing its approval.
22 (2) After the compact has initially taken effect under subsection 23 (1), any eligible party state may become a party to this compact by the 34 6xecution of an executive order by the governor of the state. Any state 25 which becomes a party in this manner shall cease to be a party upon the
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1 final adjournment of the next general or regular session of its the compact 2
legislature or July 1, 1983, whichever occurs first, unless 3
has by then been enacted as a statute by that state.
4 (3) Subsection (f tt--ef--section--96-tee-4-ehatt-t ake) 19-3-203 (2) 5 takes effect on July 1, 1983, if consent is given by Congress.
As 6
provided in Public Law 96-573, Congress may withdraw its consent to the 7
compset after every five year period.
8 Section 84. Section 19-3-301, Utah Code Annotated 1953, which is 9
renumbered from Section 26-14-17 Utah Code Annotated 1953, as enacted by 10 Chapter 125, Laws of Utah 1981, is amended to readt 11 (26-64-17) 19-3-301.
Restrictions on high level nuclear waste 12 placement in state.
33 The state (of-Wesh) shall not approve the placement in Utah of high 14 level nuclear waste unless the governor, after consultation with the and with concurrence of the 15 county commission of the affected county 16 Legislature, specifically approves such placement.
17 Section 85.
Section 19-4-101, Utah Code Annotated 1953, which is renumbered from Section 26-12-1, Utah Code Annotated 1953, as enacted by 18 19 Chapter 126, Laws of Utah 1981, is amended to readt 20
[f6-tf-il 19-4-101.
Short title.
(shaht--be) is known (and-may-be-cited) as the "(Weeh) 21 This chapter 22 Safe Drinking Vater Act."
23 Section 86.
Section 19-4-102, Utah Code Annotated 1953, which is 24 renumbered from Section 26-12-2, Utah Code Annotated 1953, as enacted by 25 Chapter 126, Laws of Utah 1981, is amended to readt
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fees on an annual or more frequent basis as it shall determine to be 2
necessary or appropriate.
3 (d)
The ordinance or resolution may provide that the fees imposed 4
and assessed may be billed at.n collected by the county treasurer as a 5
part of the regular, ad valorem property tax notice, billingt and 6
collection system of the county, if it is feasible to do so, unless the 7
public entity imposing and assessing the fees has an existing service or
,8 utility billing and ecliection system which can be (otiticed) used for 9
this purpose.
10 (3)
County treasurers may include the fees certified to them 11 pursuant to this (chapter) part on the general, ad valorem tax notice and 12 collect and remit the fees in the manner and as a part of the tax 13 collection system including the collection of delinquent fees in the 14 manner provided by law for tax delinquencies.
15 (4)
Any governing body which uses the general property tax billing 16 and collection system of a county to bill and collect the fees imposed 17 and assessed (hereunder) under thi,s part shall reimburse the county for 18 the actual costs thereof annually, which costs (shatt) include the 19 materials, equipment, and supplies used and the.
labor involved plus a 20 factor added for overhead end general and administrative expenses.
21 Section 203.
Section 26-1-2, Utah code Annotated 1953, as enacted by 22 Chapter 126, Laws of Utah 1931, is amended to readt 23 26-1-2.
Definitions.
l l
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1 Subject to additional definitions contained in the chapters of this 2
(eede) title which are applicable to specific chapters, as used in this 3
(eede)titlet 4
(1) " Department" means the Department of Health created in Section 5
26-1-4 6
(2) "Enecutive director" means the esecutive director of the 7
department appointed pursuant to Section 26-1-8.
[(33..ug,g,u...means-relevi--regatatienst--requirementst--standardst 8
9 eriterist and--ether--such--statements--adepted--er-premangsted--by--the 10 departmentT--ar- -eemmitteet-which-imptement-et-interpret-the previsions 11 ef-this-titteT p_rescribe-the petiey-of-the-department-er-a committeet-set 12 feest-er-estabtish precedures-for-the-imptementation-of-this--ehapter--or 13 such rotesT-regulationst requirementsi-standard:T-er-criteriev) 14 (f44)(3) " Council" means the Utah Health (Agency) Advisory Counell.
15 Section 204 Section 26-1-3, Utah Code Annotated 1953, as last 16 amended by Chapter 183, Laws of Utah 1990, is amanded to readt 17 26-1-3.
Purpose of code -- Consolidation of health functions into 18 single state egency.
19 The purpose of this (code) title is to consolidate into a single 20 agency of state government certain health functions (heretofore) 21 exercised by the Department of Human Services including those performed 22 by the Division of Health, the goard of Health, the Office of Health Care 23 Financing and Standards, the State Health Planning Development Agency, (the--eemmittee--en--water pettatienT-the-air-censervatien-committeet-the 24 25 safe-drinking-water--eemmitteer--the--hazardeos--wastes--eemmitteeT) the 293
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Nersing Home Advisory Council, the Health Facilities Council, and similar 2
affiliated agencies, in order to more efficiently and effectively manage 3
health programs that are the responsibility of the state, to establish a
4 health policy for the state and to promote health, the quality of life, 5
and contain costs in the health fleid.
6 Section 205.
Section 26-1-4, Utah Code Annotated
- 1953, as last 7
amended by Chapter 183, Laws of Utah 1990, is amended to readt 8
26-1-4 Department of Health created Policymaking 9
responsibilltles -- Cooperation with local health departments.
10 (1) There is created within the state government the Department of 11 Health which shall assume all of the policymaking functions, regulatory 12 and enforcement powers, rights,
- duties, and responsibilities of the 13 Division of Health, the Board of Health, the State Health planning la Development Agency, and the Office of Health Care Financing.
Unless 15 otherwise specifically provided, when reference is made in any statute of 16 this state to the Board of Health, the Division of Health, the State 17 Health Planning Development Agency, or the Office of Health Care 18 Financing, it (shatt-be-eenstrued-as referring], refers to the department 19 (ef--Health).
The department shall assume all of the policymaking 20 functions, powers, rights,' duties, and responsibilities over (said] the 21 division, agency 1 and office previously vested in the Department of Haman 22 Services and its executive director.
23 (2) (a) In ~ establishing policy which directly affects local health 24 departments, as defined in (Sobsectien-96-24-t--f5)] Section 17A-3-502, i
25 the department shall cooperate with (these] the local health departments.
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_b)
(
The department shall establish by rule procedures for, developing 2
its policies, which ensure that local health departments are given 3
opportunity to conment and provide input on any new policy of the 4
department and on any proposed changes in existing policies which affect 5
total health departments.
(>
(e) The department shall also provide a mechanism for review of its 7
existing policies which affect local heelch departments, and for 8
consideration of policy changes proposed by local herith departments.
9 Section 206.
Section 26-1-7, Utah Code Annotated
- 1953, as last 10 amended by Chapters 148 and 305, Laws of Utah 1990, is amended to read 11 26-1-7.
Committees within department.
12 There (is) are created within the department the following 13 coepittees:
14 (fit--Air-tenservatien-6emmitteet) 15 (fff) {1} Health Facility Committeet 16
((3))[2) Medical Examiner Committeet 17
( ( 4)--S e ti d-an d-Ha t e rd o u s -Wa s t e s -f e mmitt e e t )
18
(($4)(3) State Emergency Hedical Services Committeel 19
((6)--Utah-Heatch-Project-Review-Advisory-Semnitteet) 20
((9)--Utah-Safe-Brinking-Water-6emmitteet) 21
( ( 8 )--Wa te r-Pe t te t t e n-6e n t r e t - S e nsi t t e e t )
((94) {1} Rural physician Financial Assistance Committeel and 22 23 (fie)--Wesh) (5) Health Data Committee.
24 Section 207.
Section 26-1-12, Utah Code Annotated 1953, as enacted 25 by Chapter 126, Laws of Utah 1981, is amended to read
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26-1 1.'.
Executivi director -- Power to order abatement of public 2
health hazard.
3 If the esecutive director finds that a condition of (pettetient) 4
- filth, sanitation, or other health hasard exists which creates a clear 5
pre:*nt hazard to the public health and which requires immediate action 6
to protest human health or safety (and-if-the-enforcement power pertinent 7
te--that-condition-is-vested with-s-centietee-erested perscant-te-section 8-96-4-973 the executive director with the concurrence of the governor may 9
order persons causing or contributing to (such) the condition to reduce, 10 discontinue, or ameliorate it to the extent that the public health hazard 11 is eliminated.
12 Section 208.
Section 26-1-18, Utah' Code Annotated 1953, as enacted 13 by Chapter 126, Laws of Utah 1981, is amended to readt 14 26-1-18.
Authority of department generally.
15 The department (shatt-bel is the health, health planningt and medical 16 assistance authority of the state and (shatt-be) is the sole state agency 17 for administration of federally assisted stata programs or plans for 88 public health, health planning,
[environmentat--heetthy) maternal and 19 child health, crippled children's services, and medical assistance.
30 Section 209.
Section 26-1-23.5, Utah Code Annotated 1953, which is 21 renumbered from Section 26-15-10, Utah Code Annotated 1953, as enacted by 32 Chapter 126, Laws of Utah 1981, is amended to readt 33 (16 65-69) 26,-1-23.5, Rules for sale of drugs, cosmetics, and 24 medical devices.
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The department shall establish and enforce rules for the sale or 2
distribution of human drugs, cosmetics, and medical devices.
The rules 3
adopted under this section shall be no more stringent than those 4
established by federal law.
5 Section 210.
Section 26-1-30. Utah Code Annotated 1953, as enacted 6
by Chapter 126, Laws of Utah 1981, is amended to read!
7 26-1-30.
Powers and duties of department.
8 (1) The department shallt 9
(e) enter into cooperative agreements with the Department of 10 Environmental Quality to delineate specific responsibilities to assure 11
_t h a t assessment and management of risk to human health from the 12 envirenment are properly administeredt and 13
(_ b) consult with the Department of Environmental Quality and enter 14 into cooperative agreements, as needed, to ensure efficient use of 15 resources and effective response to potential health and safety threats 16 from the environment, and to prevent gaps in protection from potential 17 risks from the environment to specific individuals or population groups.
18 (2)
In addition to all other powers and duties of the department, it 19 shall have a.id exercise the following powers and duties:
20 (ft))
_a)
(
promote and protect the health and wellness of the people 21 within the statel 22 (ft)) (b) establish, maintain, and enforce rules necessary or 23 desirable to carry out the provisions and purposes of this title to 24 promote and protect the public hesich or to pitvent disease and illnesst 2 97 4
_-__.____..__-____________________._________._.--_________________--_____._-___.__M________.-__._-_.-_____.----__-.----_.
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(46))
(c) investigate anl control the causes of epidemic, 2
infectious, comunicable2 and o.nar diseases affecting the public healtnl 3
(4 44--irive stiga te-and' eent ret-the--casse s--of--environmentat--heetth 4
hatards affecting-the public hesntht) 5
((54)
(d) provide for the detection, reporting, prevention, and 6
control of communicable, infectious, acute, chronic, or any other disease 7
or health hazard considered dangerous or important or which may affect 8
the public health:
9
((64).iej report to the public major causes of injury, sickness, 10 death, and disability and the major risk factors that contribute to the 11 major causes of injury, sickn,ess, death, and disability within the statel 12 (H)) W prepare, publish and disseminate information to inform 2
13 the public concerning the health and wellness of the population, specific 24 hazards, and risks that may affect the health and wellness of the 15 population and specific activities which may-promote and protect the 16 health and wellness of the populationi 17
((8)) Ig), establish and operate programs necessary or desirable for 18 the promotion or protection of the public health and the control of 29 disease or which may be necessary to ameliorate the major causes of
'30
- injury, sickness, death, and disability in the state except that (such) al the programs shall not be established if adequate programs esist in the 32 private sectori 33
((99)(h) establish, maintain, and enforce isolation and quarantine, 34 (and--in-persaance--thereef ) and for this purpose only, (to) exercise t
,v.y e-
,,g-s
,,.--,-,,----,.,,,.n...,.e...------n-,-,
,---+.,---,n,-,-.,.e,-,.-ne
--,-,.-.w,,-
e,,er,---.,---~,.-e,g---.wr-
-,.e-m y
-p---,
nw e
i d
's.
bv.
10-23 90 3:21 pH DRArt f
1 (seth) physical control over property and individuals as the department (may-find) finds,necessary for the protection of the public health!
2 3
((694) 11] close theaters,
- schools, and other public places and 1
4 forbid gatherings of people when necessary to protect the public healthi
{
(ftt)) Q abate nuisances when necessary to eliminate sources of 6
filth and infectious and comunicable diseases affecting the public 7
health 8
(flit) M make necessary sanitary and health investigations and 9
inspections in cooperation with local health departments as to any 10 matters affecting the public health 11 (f t9)).Q), establish laboratory cervices necessary to support public 12 health programs and medical' services in the statel 13 (flat)(m) establish and enforce standards for laboratory services 14 which are provided by any laboratory in the state when the purpose of 15 (sneh) the services i. to protect the public health:
16 (fi5t) M cooperate with the industrial comission to conduct 17 studies of occupational hesith hazards and occupational diseases arising 18 in and out of employme*,t in industry, and make recomendations for 19 elimination or reduction of (such) the hazardel 20
((161)(o) investigste the cause of maternal and infant mortalicyl 21 (ft9)) (p) establish, maintain, and enforce a procedure requiring 22 the blood of adult pedestrians and drivers of motor vehicles. killed in 23 highway accidents be examined for the presence and concentration of 24 alcoholl
.---.---.EW~---~-------~-"-'-~"~
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((48f) I d provide the commissioner of Public Safety with monthly 1
2 statistics reflecting the results of the examinations provided for in 3
Subsection ((17)-of-this-section)(f) and provide safeguards so that 4
information derived from the examinations is not used for a purpose other 5
than the compilation of statistics authorised (herein) in this 6
subsectient 7
((194)Ir), establish qualifications for individuals permitted to r
8 draw blood pursuant to Section 41-6-44.10, and to issue permits to 9
individuals it finds qualified, which permits may be terminated or 10 revoked by the departmentt al
((20)) (s) establish a uniform public health program throughout the 82 state which (shall-inetode) includes continuous
- service, employment of c
13 qualified ertployeec, and a basic program of disease control, vital and la health statistics, sanitrtion, pubile health nursing, and (sach) other 15 preventive health programs necessary or desirable for the protection of 16 public health) 87
((f t)) id adopt rules and enforce minimum sanitary standards for 18 the operation and maintenance oft orphanages (731 boarding homes (t)1 19 summer camps for children (t)1 lodging houses (T)1 hotris(v)1 restaurants 30 and all other places where food is handled for coenercial purposes, sold, 31 or served to the public(yli tourist and trailer camps (v)1 service 32 stations (y)1 pablic conveyances and stations [v)1 public and private l
33 schools (T)1 factories (v)1 private sanatoria [T)1 barber shops (T)1 beauty 24 shops (t)1 physicians' offices (t)1 dentists' e " ices (T)1 workshops (r)1 35 industrial, laborg or construction camps (731 recreational resorts and 300
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camps (t)1 swinning pools, public baths 2 and bathing beaches (T)1 state.
2 countyr or municipal institutions including hospitals and other 3
buildings, centers, and p16ces used for public gatherings (T)1 and of any 4
other facilities in public buildings and on public groundst 5
((t14) iul conduct health plannirs for the state and perform the 6
health planning functions of the state required under P.L.93-641 and 7
subsequent amendmentsi 6
((934) (v) monitor the costs of health care in the state and foster 9
price competition in the health care delivery systeel and 10
((tet) ivl adopt rules for the licensure of health facilities within Il the state pureuant to the provisions of Chapter 21 of this title.
12 section 211.
Section 26-15-1, Utah Code Annotated 1953, as enacted 13 by Chapter 126, Laws of Utah 1981, is amended to readt 14 26-15-1.
De f init ions.
15 As used in this chaptert 16 (1) " Food handler" means any person working part-time or full-time 17 in a food service establishment who moves food or food containers, 18
- prepares, stores, or serves food, or comes in contact with any food, 19 utensil, tableware or equipment, or washer the same.
The term also 20 includes owners, supervisors 2 and management persons, and any other 21 person working in a food-service establishment. The term also includes 22 any operator or person employed by one who handles food dispensed through 23 vending machines, or who comes into contact with food contact surfaces or 24 containers, equipment,
- utensils, or packaging materials used in
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temmittee) Quality Board under Subsection (f6-iS-6) 19-2-104 (8) to use 2
an emissions opacity inspection and maintenance program for 3
diesel-powered motor vehicles shalt:
4 (1) make regulations or ordinances to implement and enforce the 5
requirement estabilshed by the Air (fenservation--femmittee) Quality l
6 Boardt 7
(2) collect information about and monitor the prograal and 8
(3) by August 1 of each yt3r supply written inf orma tion to the
/
9 Department of (Hestth) Envirenmental_ Quality to identify program status.
10 Section 215.
Section 58-$4-3, Utah Code Annotated 1953, as enacted 11 by Chapter 198, Laws of Utah 1989, le amended to readt 12 58-54-3.
Board -- Creation -- Membership.
13 (1) There is (hereby) created a Radiology Technologist Licensing 14 Board.
i 15 (2) The board shall tt appointed and serve in accordance with 16 Section 58-1-7 and shall be the representative body for promoting, 17 establishing, and enforcing standards of professional practices and 18 conduct for the practice of radiology technology within this state.
One 39 member of the board shall be a representative of the Department of 20 (Westeh) Environmental Quality.
31 (3) Members of the board shall be compensated in accordance with 33 Section 58-1-7.
33 (4) The duties and responsibilities of t h e.
board shall be in 34 accordance with Sections $8-1-8 and 58-1-9.
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governor-shat t-be-appointed-f or-terms-of-ef fice-of--two-yearsT--and--the 2
remaining-five-for-three yearsT-esch-to-commence-their-respective-initiet 3
terms--ef--office--en--Aprit--nT--t977 --but--their--soecessors) shall be 7
4 appointed for terms of office of three years each. Any vacancy occurring 5
in the membership to the council appointed by the governor other than by 6
expiration of the term shall be filled for the unespired term.
Each 7
shall serve until a successor has been duly appointed and qualified.
8 (3) The council shall elect a chairman from its membership at the 9
first meeting of the council held after April 1st of each year to serve 10 for a term of office ending on the next April 1st and until a successor 11 has been elected and qualified.
Seven members of the council (thatt) 12 constitute a quorum, and actions of the council (sheti) require a vote of 4s a majority of those present.
14 (4) Each voting member of the council shall receive a per dies and 15 travel expenses as provided (by-tsw] in Section 63-1-14.5 and 63-1-15.
16 Section 223.
Section 63-55-219, Utah Code Annotated 1953, is enacted 17 to readt 18 63-55-219.
Repeal dates, Title 19.
19 (1) (a) The following boards created under section 19-1-106 are 20 repealed on the following datest t
21 (i) The Air Quality Board is
+ pealed July 1, 1999.
22 (ii) The Solid and Hazardous Waste Control Board is repealed July 1, i
23 1999.
24 (iii) The Drinking Water Protection Board is repealed July 1, 1999.
25 (iv) The Water Quality Board is repealed July 1, 1999.
i 322
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_ 2 )- The Petroleum Storage Tank Fund, created in Section 19-6-409, Is
(
2 repealed July 1, 1993.
3 Section 224 Section 63-55-226, Utah code Annotated 1953, as enacted 4
by chapters 1,137,185, and 305, Laws of Utah 1990, is amended to readt 5
63-55-226.
Repeal dates, Tit's 26.
6 (1) (a) The following committees created under Section 26-1-7 are 7
repealed on the following datest 8
(fi)--The-Air-eenservatten-eemmittee-is-repeated-doty-t -t9997)
T 9
(fii))(i) The Medical Examiner Committee is repealed July 1, 2000.
10 (fiti)--The--Setid-and-Haeardens-Wastes-eemmittee-is-repeated-inty-if Il 19997) 12 (fiv)--The-Hesh-Safe-Brinking-Water-Sommittee--is--repeated--duty--tv 13 t9997)
' 14
( f v)-- Th e --Wa t e r --P e t t a t i on-- e en t ro t-- s omm i t t e e --i s --re p e a t e d -d u t y-if 15
+9997) 16.
(fvi)) (ii) The Uteh Health Data Committee {erested--in--Section 26-t-9 ) is repealed July 1, 1993.
17 7
18 (b) The Utah Usolth Advisory Council, created in Section 26-1-7.5, 19 is repeale.d July 1, 1991.
20
[fe))'(2) The Executivo Director's Office, created in Section 21 26-1-8, is repealed July 1, 1991.
22 (ff))(3) The Office of the Medical Examiner, created in Chapter 4,
23 is repealed July 1, 2000.
24 (f3)) (4) The Division of Family Health Services, created in Chapter 25 10, is repealed July 1, 2000.
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(f43--The-Petretens-Storage-fank-Fond -creseed-in-Section-26-14e-49t7 T
2 is-repeated-dety-it-1993v) 3 (5) Chapter 18, the Medical Assistance Act, is repealed July 1, 4
- 1994, 5
(6) The Division of Health Care Financing, created in Section 6
26-18-2.1, is repealed July 1, 1994 7
(7) The following divisions and offices created by the Department of 8
Health under Section 26-1-13 are repealed on the following dates 9
(a) The Division of Community Health Services is repealed July 1, 10
- 1997, 11 (fb3--The-Bivisien-of-Environmentat-Heatth-is-repeated-dety-ty-19997)
(fe))[b) The State Health Laboratory is repealed July 1, 1995.
12 13 (8) The Waste Tire Recycling Act, created in Chapter 32a, is 14 repealed July 1, 1995.
15 Section 225.
Section 63-65-2, Utah Code Annotated 1953, as last 16 amended by Chapter 164, Laws of Utah 1989, is aesnded to read 17 63-65-2.
Definitions.
18 As used in this chapters 19 (1) " Agency bonds" means all bonds, notes, contracts, and othev l
20 evidences of indebtedness of political subdivisions, not including 21 nonprofit agricultural organisations, representing loans or grants made 22 by authorizing agencies.
l 23 (2) " Authorizing agency" means the Board of Water Resources, the 1
24 War (Pettetton--eentret--eemmitteel Quality Board, the (Safel Drinking 25 Water (eemmitteel Protection Board, and the Community Impact Board.
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establishing criteris or standards for definition and approval of 2
acceptable pollution control devices for vessels.
3 Section 239. Section 73-ISa-5, Utah Code Annotated 1953, as last 4
amended by Chapter 197, Laws of Utah 1986, is amended to readt 5
Chemical treatment of marine toilet contents -- Rules 6
established by board and Department of Environmental Quality.
7 The board shall establish by rule, in accordance with Chapter 46a, 8
Title 63, Utah Administrative Rulemaking Act, with approval by the 9
Department of (Mesteh) Envi ronmen t al Quality, as provided in this 30 chapter, standards relating to chemical treatment of narine toilet 11 contents.
12 Section 240.
Section 73-18a-12, Utah Code Annotated 1953, as last 13 amended by Chapter 197, Laws of Utah 1986, is amended to reads i
14 73-18a-12.
Rules promulgated by board -- Subject to approval by 15 Department of Environmental Quality.
16 The board may promulgate rule s under Chapter 46a, Title 63, Utah 17 Administrative Rulemaking Act which are necessary for the carrying out of 18 duties, obligations, and powers conferred on the division by this 19 chapter.
These rules shall be subject to review and approval by the 20 0?partment of (Heatth] Environmental Quality.
This approval shall be 23 recorded as part of the rules.
i 23 Section 241. Repealer.
33 Section 26-1-2E, Radiation control program established by 24 department, Utah Code Annotated 1953, as enacted by chapter 126, Laws 35 of Utah 1981;
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Section 26-11-3, Administrative functions performed by department 2
-- Additional services and assistance, Utah Code Annotated 1953, as 3
enacted by Chapter 126, Laus of Utah 19811 4
Section 26-11-4, Water pollution control coesittee -- Assumption 5
of functions of prior committee, Utah Code Annotated 1953, as enacted 6
by Chapter 126, Laws of Utah 19818 7
$ection 26-12-3, Administrative fui.ations performed by department 8
-- Additional service and assistance, Utah Code Annotated
- 1953, as 9
enacted by Chapter 126, Laws of Utah 19811 10 Section 26-13-3, Administrative functions performed by department 11
-- Additional services and assistance, Utah Code Annotated 1953, as 12 enseted by Chapter 126, Laws of Utah 19811 13 Section 26-13-4, Air conservation committee Assumption of 14 functions of prior committee, Utah Code Annotated 1953, as enacted by 15 Chapter 126, Laws of Utah 19811 16 Section 26-13-7, Meetings of committee, Utah Code Annotated 17 1953, as enacted by Chapter 126, Laws of Utah 19811 18 Section 26-13-8, Per dies for committee members, Utah code 19 Annotated 1953, as enacted by Chapter 126, Laws of Utah 19811 20 Section 26-14-3, Adelnistrative functions performed by department 21 Additional services and assistance, Utah Code Annotated 1953, as 32 enacted by Chapter 126, Laws of Utah 19818 33 Section 26-14-12, Prohlbited violations, Utah Code Annotated 24 1951, as enacted by Chapter 126, Laws of Utah 19811 I
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Section 26-14-18, "High level nuclear waste" defined, Utah Code 2
Annotated 1953, as enacted by Chapter 125, Laws of Utah 19814 3
Section 26-14a-2, Legislative findings
- Purpose, Utah Code 4
Annotated 1953, as enacted by Chapter 130, Laws of Utah 1981; 5
Section 26-14c-2, Definitions, Utah Code Annotated 1953, as 6
enacted by Chapter 37, Laws of Utah 19821 7
Section 26-14d-206, Compliance with the Administrative Procedures P
19898 10 Section 26-14e-205, Compliance with administrative procedures 11 act, Utah Code annotated 1953, as enacted by Chapter 268, Laws of Utah 12-19898 and 13 Section 26-15-6, Prohibited disposal of waste, Utah Code 14 Annotated 1953, as enacted by Chapter 126, Laws of Utah 1981, are 15 repealed.
16 Section24[.
Effective Date.
17 This act takes effect on July 1, 1991.
G
.-350-
\\
AUG 9 1932 i
MEMORANDUM FOR: John T. Collins, Regional Administrator Region IV FROM:
Jane A, Axelrad. Deputy Director Regulations Division Office of the Executive Legal Director
SUBJECT:
REVIEW OF THE STATE OF UTAH'S STATUTORY AUTHORITY REGARDING AGREEMENT STATE STATUS 3
In response to your request of July 21, 1982, we have reviewed sections 26-1 26-1-30 and 26-23 26-23-10 of the Utah Health Code (copy attached) to determine whether these statutes provide adequate legal authority for Utah to become an Agreement State.
In conducting this review, we have used as criteria those portions of the NRC Statement of Policy containing criteria for guidance of the States and NRC with respect to Federal /Stateagreements(46FR7540, January 23,1981) which specify functions for which adequate legal authority must be provided. We have also compared the provisions cf the Utah Health Code with those in the October 1981 version of the Model State Radiation Control Act.
In accordance with this approach, our review covers the following topics: enabling legislation, radiation control program, rulemaking, inspections, fees, and enforcement.
We understand that section URC-12-010 of Utah's Radiation Control Regulations states that these regulations are issued under the following provisions of the Utah Code: Chapter UCA 26-1-27 through 29. UCA 26-23-1 through 3, UCA 26-23-6, UCA 26-23-8, and UCA 63-38-9.
Although we do not have a copy of UCA 63-38-9, we have been infomally advised by the NRC Office of State Programs that this section of the Utah Code authorizes State agencies to accept Federal funds under contract. The comments which follow also reflect our understanding that Utah does not wish at this time to assume rs sponsibility for regulating uranium mills and mill tailings, or in situ extraction of source material, and that the NRC will retain this Tegulatory authority under the provisions of any Federal / State Agreement entered into between the U.S.
Nuclear Regulatory Commission and the State of Utah.
Enabling Legislation The requisite enabling legislation authorizing the Governor of the State of Utah to enter into a Federal / State Agreement in accordance with section 274 of the Atomic Energy Act of 1954, as amended, is set out in section 26-1 i of the Utah Health Code. This enabling legislation, when read in conjunction with section 26-1-28 which provides that the department of health "shall estabi carry out, and enforce a radiation control program pursuant to 4
_.---__mm_._.___m._
___a___
. rules adopted by the department and any federal-state agreement provided for in section 26-1-29...." appears to be adequate.
Radiation Control Program Section 26-1-28, quoted above, contains general authority to establish, carry out, and enforce a radiation control program.
Section 26-1-27 of the Utah Health Code specifically provides that the department of health "may require the registration and licensing of radiation sources that constitute a significant health hazard and adopt necessary rules for controlling exposure to such sources of radiation." This broad authority, as supplemented by additional authority respecting rulemaking, inspections, fees and enforcement, appears to be adequate.
Rulemaking Section 26-1-30, which enumerates the general powers and duties of the department of health, contains general authority to establish, maintain and enforce rules necessary or desirable to promote and protect public health.
Sections 26-1-27 and 26-1-28 give the department of health specific authority to adopt rules relating to a radiation cortrol program.
Section 26-1-17 vests the power to prescribe rules for the administration and government of the department of health, including the power to promulgate rules relating to the custody, use and preservation of records, in the executive director of the department of health.
The state department of health also appears to have additional rulemaking authority under section 26-1-5 of the Utah Health Code. The department of health is apparently required to exercise section 26-1-5 rulemaking authority in accordance with provisions of the Utah Administrative Rulemaking Act.
It is not clear, as a matter of law, whether rules promulgated under sections 26-1-27 and 26-1-28 of the Health Code are also subject to the provisions of the Utah Administrative Rulemaking Act.
Since we do not have a copy of the Utah Administrative Rulemaking Act, we are unable at this time to reach any conclusions concerning the significance of these statutory rulemaking procedures.
Paragraph (b) of section 26-1-5 states that if the state legislature passes a bill disapproving a rule adopted by the department of health, that rule shall be null and void.
Paragraph (6) of section 26-1-5 provides that the department of health shall not adopt a rule identical to a' rule disapproved by the legislature before the beginning of the next general session of the legislature following the general session at which the rule was disapproved, it is rot clear whether these provisions apply as a matter of law to rules e
adopted by the department of health pursuant to sections 26-1-27 and 26-1-28 of the Utah Health Code.
At this time we are unable to ascertain what, if i
, any, significance these provisions might have from the standpoint of a section-274 Federal / State agreement.
4 Inspect _ ions -
i Under section 26-23-8 of the Utah Health-Code, authorized representatives of-the department of health are empowered, upon presentation of appropriate identification, to enter the premises of properties regulated under-the Health Code to perform routine inspectior,5 to insure compliance with rules adopted by the department.
Representatives of the department of health are not authorized to inspect private dwellings.
In our opinion, this authority is adequate to comply with Criterion 17 in the NRC Statement of Policy providing guidance to the states and NRC with respect to Federal / State agreements, which states that "[1]icensees shall be under obligation by law-to provide access to inspectors."
(46 FR 7540 at 7542, January 23,1981.)
We would point out, however, that section 26-23-8 does not contain the provision in section 11 of the October.1981 version of the Model State Radiation Control Act which permits entry into areas under the jurisdiction of the federal government "only with the concurrence of the federal government or its duly designated representative."
= Fees Section 26-1-6 of the Utah Health Code authorizes the department of health to adopt a schedule of fees that may be assessed for_ services rendered by the department, Section 26-1-6 provides that these fees shall be reasonable-and fair and contains a requirement that the fee schedule be submitted to and
- approved _by the legislature as part-of the health department's annual appropriations request. Although they are not specifically mentioned in the
. statute,_it would. appear that the department of health could establish radiation, user fees under this section. We understand, however, that Utah's Radiation Control Regulations do not contain any' fee provisiens.
Enforcement The executive director of the state department of health is empowered by section 26-1-10 of the Utah Health Code to issue orders to enforce state laws and rules established by the department.
Pursuant to section 26-1-12 and with the concurrence of the governor, the executive director is also authorized to issue orders to abate certain public health hazards.. Sections 26-1-10 and 26-1-12 are not referenced in section URC-12-010 of the Utah Rodiation Control Regulations. Accordingly, it is unclear whether the executive, director may rely on this authority to enforce Utah's Radiation-Control Regulations.
It is also unclear whether the enforcement authority vestedLin the executive director includes the authority to take-enforcement action by suspending or revoking licenses. We note, however, that the
l 4
enforcement powers of the executive di ector are considerably strengthened by the provisions of Chapter 26-23 of the Health Code which contain additional enforcement provisions and penalties.
From the standpoint of a radiation control program, the most relevant provisions of Chapter 26-23 appear to be the following:
Section 26-23-1 directs the county attorney to bring any action, civil or criminal, requested by the executive director of the state department of health, or if the county attorney fails to act, directs the executive director to take any such action, to abate a condition which exists in violation of, or to prosecute for the violation of or for the enforcement of, the public health laws or standaros, orders, and rules of the department.
Although this authority appears to be f airly broad, it is unclear whether this authority empowers the executive director to request or apply for an injunction (cf., section 17 - Injunction proceedings, October 1981 version of Model State Radiation Control Act.)
It is also unclear whether this authority would include the authority to impound radioactive sources (cf.,
section 19 - Impounding, October 1981 version of Model State Radiation Control Act.)
Section 26-23-2 of the Utah Health Code prescribes procedures for administrative and judicial review of "any action or inaction of the department or its executive director" upon written request of any aggrieved person.
Section 26-23-3 makes it unlawful for any person, association, or corporation and the officers thereof to willfully violate, disobey, or disregard the provisions of the public health laws or the terms of any lawful notice, order, standard, rule or regulation issued thereunder, or to fail to make or file reports required by law or rule of the department relating to the existence of disease or other facts-and statistics relating to the public health (emphasissupplied.)
Section 26-23-6 establishes criminal and civil penalties for violations of any provision of the Health Code or any lawful ord ss, or rules adopted under the Health Code by the department of health, provides that persons convicted in a criminal proceeding may also be subject to civil liability, and states that each day of violation may be regarded as a separate violation.
Although the enforcement provisions of the Utah Health Code do not track the parallel provisions of the Model State Radiation Control Act closely, they appear to be adequate to meet Criterion 19 of the NRC Statement of Policy which relates to enforcement (45 FR 7540 at 7542, January 23,1981.)
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Conclusion Based on the information available to us, it is our conclusion that alth? ugh the Utah statutes contain little mora than the absolute minimum, (compare, for example, the licensing authority in section 26-1-27 of the Utah Health Code with the licensing authority in section 6 of the October 1981 version of the Model State Radiation Control Act) they do provide sufficient legal authority to enable Utah to establish a radiation control program in accordance with the provisions of a section 274 Federal / State agreement.
Comparison cf the Utah Health Code with the provisions of the October 1981 version of the Model State Radiation Control Act reveals that there are several provisions of the Model Act which have no counterparts in the Utah Health Code.
For example, the Utah Code does not contain definitions of byproduct material, source material, special nuclear material or radioactive material nor does it contain definitions of general and specific licenses.
We note these discrepancies, which are only illustrative and do not purport to be a definitive list, because we believe the provisions of the liodel State Radiation Control Act might prove helpful should Utah decide at some future time to consider additional amendments to the Utah Health Code.
Jane A. Axelrad Deputy Director Regulations Division Office of the Executive Legal Director DISTRIBUTION:
JAAxelrad JMapes John McGrath OELD R/F OELD S/F Regs R/F Central Files OFC :0E D
- 0 ELD SP p....:...Q/s.(.::54,tel, c n.
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NAME :
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- JAA/elrad
- JMcGra
.....:............:.4/_........:...........:............:............:............:..........
DATE :8/9/82
- 8/9/82
- 8/9/82 Coordinated with J. Wolf and R. Fonner.
1-
1 NAY ' $ Mf3 Enclosure A DETAILED NRC STAFF COMMENTS ON DRAFT PROPOSAL FROM UTAH FOR AN AMENDMENT TO UTAH'",
SECTION 274B AGREEMENT TO ENABLE UTAH TO ASSUME REGULATORY RESPONSIBILITY FOR THE COMMERCIAL DISPOSAL OF LOW-LEVEL RADIDACTIVE WASTE NRC Criterion 9, Radioactive Waste Disposal, and Utah Regulations for Licensing Land Disposal of Radioactive Wastes (R447-25)
Revised Criterion 9 (48 FR 33376-33377 July 21, 1983, amending 46 FR 7540, January 23,1981) states:
"9.
Radioactive Waste Disposal.
"(a) Waste disposal by material users. The standards for the disposal of radioactive materials into the air, water and sewer, and burial in the soil shall be in accordance with 10 CFR Part 20.
Holders of radioactive material desiring to release or dispose of quantities or concentrations of radioactive materials in excess of prescribed limits shall be required to obtain special permission from the appropriate regulatory authority.
- Requirements for transfer of waste for the purpose of ultirate disposal at a land disposal facility (waste transfer and manifest system) shall be in accordance with 10 CFR 20.
"The waste disposal standards shall include a waste classification scheme and provisions for waste form applicable to waste generators, that is equivalent to that contained in 10 CFR Part 61.
"(b) Land disposal of waste received from other persons. The State shall promulgate regulations containing licensing require-ments for land disposal of radioactive waste received from other persons which are compatiM e with the applicable technical
_ definitions, performance objectives, technical requirements and.
applicable supporting sections set forth in 10 CFR Part 61.
Adequate financial arrangements (under terms established by regulation) shall be required of each waste disposal site licensee to ensure sufficient funds for decontamination, closure and stabilization of a disposal site.
In addition, Agreement State financial arrangements for long-term monitoring and maintenance of a specific site must be reviewed and approved by the Commission prior to relieving the site operator of licensed responsibility (section 151(a)(2).
Pub. L.97-425)."
Subject to some minor discrepancies marked directly on the text, Utah's regulations, R447-25, Licensing Requirements for Land Disposal of Radioactivs Wastes, track Part M of the Suggested State Regulations (SSR). Part M and l
. ~~
~
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2-related changes to Part D. Standards for Protection Against Radiation, of the Suggested State Regulations (specifically sections D.307, Classification of Radioactive Waste for Near-Surface Disposal, D.308, Radioactive Waste Characteristics and D.311, Transfer for Disposal and Manifests) are consid-ered to be compatible with 10 CFR Part 61 and Part 20. Despite a few minor errors noted directly on the text of R447-25, the Utah regulations contain all the provisions found in Part M of the SSR, including licensing require-ments (see, e.g., R447-25-3, R447-25-11, R447-25-12, R447-25-13. R447-25-15 R447-25 T7); epplicable technical definitions (R447-25-2, this section does not include a definition of " person"); performance objectives (see, e.g.,
R447-25-18, R447-25-19. R447-25-20. R447-25-21 R447-25-22, R447-75-23, R447-25-24,R447-25-25); technical requirements and applicable supporting sections (see. e.g., R447-25-7, R447-25-8, R447 25-14, R447-25-26 and R447-25-34); and financial requirements (see, e.g., R447-25-10 R447-25-32, R447-25-33(b).)),We note that under R447-25-31(1)R447-25-28(ET R447-2 R447-25-11(9),R447-25-16(3 license appli-cants are required to provide financial assurances " prior to the comencement of operations" while under R447-25-32(1) license applicants are required to provide financial assurances for institutional controls "[p]rior to the issuance of the license...." Although these provisions track sections M.31(a)andM.32 in Part M of the Suggested State Regulations, we note (1))oftheNuclearWastePolicyActof1982,asamended.
that section 151 (42 U.S.C. 10171 (1) provides for the approval of financial arrangements
... prior to issuance of licenses for low-level radioactive waste disposal..." We have not been able to identify any provision in R447-25 or inthestatuteswhichUtahsubmittedimplementingsection151(a)(2)ofthe Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10171(a)(2)) which requires NRC to review and approve financial arrangements for long-tenn monitoring and maintenance of a site prior to the State relieving the site operator of licensed responsibility.'
The material which Utah submitted does not include regulations which parallel sections D.307, D.308, D.309, Labeling, and D.311 of the SSR. Until Utah provides copies of State regulations addressing these matters, its applica-tion to amend its section 274b Agreement in order to assume regulatory authority over the land disposal of source, byproduct and special nuclear material must be considered to be incomplete.
In addition to the matters identified in Criterion 9, the Comission's Guidance Criteria also state that States must have adequate legal authority regarding enabling legislation, radiation control program, ruiemaking.
-inspections, fees, and enforcement. We address each of these topics in turn.
Enabling Legislation The requisite enabling legislation authorizing the Governor of the State of Utah to enter into a Federal / State Agreement in accordance with section 274 of the Atomic Energy Act of 1954, as amended, is set out in section 26-1-29
1 of the Utah Health Code. This enabling legislation should be read in conjunction with section 26-1-27, which relates to the registration and licensing of radiation sources by the Utah Department of Health, and section 26-1-28, which provides that the Department of Heal',h "shall establish, carry out, and enforce a radiation control program pur:%nt to rules adopted by the department and any federal-state agreement provided for in section 26-1-29..
In addition to authorizing the Utah Department of Health to license or
..register radiation sources that constitute a significant health hazard, requiring all sources of ionizing radiation to be registered or licensed, authorizing the Department of Health to enact rules to control exposure to radiation sources that constitute a significant health hazard, and authorizing the Department of Health to assess fees for the registration, licensing and inspection of radiation sources, section 26-1-27 also states:
"(5) Except as provided in Subsection (6); no rule which the department adopts for the purpose of the state assuming responsi-bilities from the United States Nuclear Regulatory Commission with respect to regulation of sources of ionizing radiation may be more stringent than the corresponding federal regulations which address the same circumstances.
In adopting such rules, the department may incorporate by reference corresponding federal regulations.
"(6) The department may adopt rules more stringent than corres-ponding federal regulations for the purpose described in Subsection (5), only if it makes a written finding after public comment and hearing and based on evidence in the record that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings shall be accompanied by an opinion referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the department's conclusion."
Paragraphs (5) and (6) of section 26-1-27 were first enacted into law in April 1987 and were renumbered effective July 1, 1988.
In our opinion, paragraphs (5) and (6) of section 26-1-27 contravene the provisions of section 274 of the Atomic Energy Act of 1954, as amended.
Implementation of paragraph (6) by the Utah Department of Health could result in the fragmentation of the uniform scheme of Federal / State regulation established by the 1959 Federal / State Amendment to the Atomic Energy Act of 1954, as amended.
Instead of strengthening the existing regulatory framework under which Agreement States are required as a matter of compatibility to adopt and enforce radiation protection standards which are essentially identical to Federal standards, paragraphs (5) and (6) of section 26-1-27 of the Utah Health Code would encourage the development of a regulatory system based on disparate rather than uniform radiological health and safety standards thereby defeating a principal objective of the Agreement State program to provide a uniform and coordinated system of regulation nationwide notwithstanding the fact that the responsibility for regulation is exercised by different jurisdictional entities.
We should also point out that we did not find in the statutory materials provided by Utah any laws containing provisions comparable to the provisions of section 9. (Low-level Radioactive Weste Disposal) of the Model State Radiation Control Act as published in Volume 42 of " Suggested State Legislation" 1983, at pp. 35-36. However, section R447-25-28(1) of Utah's regulations which states " Land Ownership. Disposal of waste received from other persons may be pennitted only on land owned in fee by the Federal or a State government...." appears to be similar in substance to section 9(e) of the Model State Radiation Control Act.
Radiation Control program Section 26-1-28, mentioned above, contains general authority to establish, carry out, and enforce a radiation control program.
Section 26-1-27, as amended, requires the Utah Department of Health to register or license all sources of ionizing radiation.
Section 26-1-27 also authorizes the Depart-ment to "... require the registration or licensing of radiation sources that constitute a significant health hazard...." and "... to enact rules necessary for controlling exposure to sources of radiation that constitute a significant health hazard...."
We note, however, that under Utah law certain officers and entities responsible for implementing the Agreement State program in Utah would be subject to termination by reason of the enactment of so-called " sunset" provisions. According to a note appearing under section 26 1-8 of the Utah Health Code, the office of the Executive Director of the Department of Health terminates on July 1, 1991.
A similar note under section 26-1-13 of the Utah Health Code states that the Division of Environmental Health terminates on July 1,1989.
The information provided by Utah states that the Bureau of Radiation Control, one of five Bureaus in the Division of Environmental Health, will have major responsibility for administering the State's proposed program for regulating the land disposal of low-level radioactive waste. We suggest that Utah be asked to explain what effect these " sunset" provisions will have on the existing organizational structure.
Subject to our concerns about the effect of Utah's " sunset" laws and our objections to paragraphs (5) and (6) of section 26-1-27 discussed above, this broad authority, as supplemented by additional authority respecting rule-making, inspections, fees and enforcement, appears to be adequate.
Rulemaking Section 26-1-28 gives the Utah Department of Health broad authority to adopt rules relating to a radiati a control program, paragraph (3) of section 26-1-27 authorizes the Department to enact rules needed to control exposure to sources of radiation that constitute a significent health hazard. As I
= - - - -.
1 4 7
illustrated by its regulations establishing licensing requirements for land disposal of radioactive waste, R447-25. Utah has made good use of this authority. We reiterate, however, that for the reasons stated above, the authority accorded the Department by paragraphs (5) and (6) of section
.126-1-27 to "... adopt rules more stringent than corresponding federal regulations..." fails the. test of compatibility contained in section 274d of the Atomic Energy Act-of 1954, as amended.
Under Utah law, rules promulgated by the Utah Department of Health are subject to the requirements of the Utah Administrative Rulemaking Act set out in Chapter 46a of Title 63 of the Utah Code.
Under the rulemaking procedures prescribed in section 63-46a-4., state agencies are required to allow at least 30 days.for public comment on a rule. Under section 63-46a-5., state
~
agencies are required ~ to hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rele if (a)apublichearingisrequiredbystateorfederalmandate;
"(b)(i)anotherstateagency,teninterestedpersons,oran interested association having not fewer than ten members request a public hearing; and
- (ii) the agency receives the request in writing not more than 15 days after the publication date of the proposed rule...."
Section.63-46a-12. authorizes interested persons to petition a state agency to! request "... the making, amendment, or repeal of a rule...."
Inspections Under~section 26-23-8 of the Utah Health Code, authorized representatives of LthefDepartment of Health are empowered, upon presentation of appropriate identification,Lto enter the premises of properties regulated under the Health Codeito perform routine inspections to insure compliance with rules-
-adopted by the Department., Representatives:of the Department of Health are not authorized-to inspect private dwellings. The Department of Health has implemented this-authority in its regulations for licensing)the-land disposal-of radioactive wastes.
(See,e.g.,R447-25-12(6)and(7)(b-andR447-25-35.)
In our opinion, this' authority is adequate to comply with Criterion 17 of the NRC Guidance-Criteria which states that "[1]icensees shall be under obliga-tion by-law to provide access to inspectors." (46= FR 7540 at 7542, January-23.-1981.) We would point out, however, that neither section 26-23-8 nor the
- Department's regulations in R447-25 contain the provision in section 12 of the Model State Radiation Control Act as printed in Vol. 42 of " Suggested State Legislation" 1983, at p.139 which permits entry into areas under the
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jurisdiction of the federal government "... only with the concurrence of the federal government or its duly designated representative."
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6-Fees Section 26-1-6 of the Utah Health Code authorizes the Department of Health to adopt a schedule of fees that may be assessed for services rendered by the Department. Section 26-1-6 provides that these fees shall be reasonable and fair and contains a requirement that the fee schedule shall be submitted to and approved by the legislature as part of the Health Department's annual appropriations request.
In addition, paragraph (4) of section 26-1-27 provides that the Department "... shall assess fees for registration, licensing, and inspection of radiation sources under this section...."
and that the Department shall "... comply with the requirements of Sectior.
63-38-3 (2) in assessing fees for licensure and registration...."
(So far as we are aware, the text of section 63-38-3(2) of the Utah Code was not included among the materials submitted to NRC for review.)
Enforcement The Executive Director of the State Department of Health is empowered by section 26-1-10 of the Utah Health Code to issue orders to enforce state laws and rules established by the Department. Pursuant to section 26-1-12 and with the concurrence of the Governor, the Executive Director is also authorized to issue orders to abate certain public health hazards.
Sec-tion 26-23-2 of the Utah Health Code prescribes procedures under which any eggrieved person may request administrative review with appropriate adjudicative proceedings of "... any action or inaction of the department or its executive director...." Section 26-23-3 makes it unlawful for any person, association, or corporation and the of ficers thereof to willfully violate, disobey, or disregard the provisions of the public health laws or the terms of any lawful notice, order, standbrd, rule, or regulation issued thereunder, to fail to remove or abate from private property under the person's control any nuisance, health hazard, or sanitation violation within the jurisdiction and control of the department, to pay, give, present or I
otherwise convey to any officer or employee of the department, directly or indirectly, any gift, remuneration or other consideration which such officer or employee is fa bidden to receive (see sec. 26-23-4) or to fail to make or file reports required by law or rule of the department relating to the existence of disease or other facts and statistics relating to the public health.
Section 26-23-6 establishes criminal and civil penalties for violations of any provision of the Health Code or any lawful orders, or rules i
adopted under the Health Code by the Department of Health, provides that l
persons convicted in a criminal proceeding may also be subject to civil liability, and states that each day of violation may be regarded as a separate violation.
However, section 26-23-7 states that "[e]nforcement procedures and penalties provided in this chapter shall not apply to other chapters in this title which provide for specific enforcement procedures and penal ties. " Under section 26-1-28.1, civil penalties may be imposed on any person who violates any provision of sections 26-1-27 through 26-1-29 of the Utah Health Code, any rule or order issued thereunder or the terms of any license, permit, or registration certificate issued under the authority of l
L
' -those sections. Under section 26-1-28.2, the Bureau of Radiation Control is authorized, in accordance with certain procedures, to impound the radioactive material of any person if "the material poses an iminent threat or danger to the public health or safety; and... that person is violating... any provision of li 26-1-27 through 26-1-29;... any rules or orders enacted or issued under the authority of those sections; or... the tems of a license, permit, or registration certificate issued under the authority of those sections...."
Thett provisions of the Utah Health Code appear to be adequate to satisfy Criterion 19 of the NRC Guidance Criteria which relates to enforcement (46 FR 7540 at 7542, January 23,1981.)
Draft of Proposed Amendment to Utah Agreement of March 29, 1984 We have reviewed the draft of the proposed amendment to the Utah Agreement and offer the following suggested revisions for your consideration. The purpose of most of these revisions is to conform the text of the amendment more closely to the text of the original agreement.
Immediately following the first "Whereas" paragraph, insert a new "Whereas" paragraph and amend the second "Whereas paragraph, all to read as follows:
"Whereas, The Governor of the State of Utah is authorized under Utah Code Annotated 26-1-29 to enter into this-amendment to the Agreement of March 29, 1984 between the United States Nuclear Regulatory Comission and the State of Utah; and" "Whereas, the Governor of the State has requested this amendment in accordance with section 274 of the Act by certifying on (date to be inserted) that the State of Utah has a program for the control of radiation hazards adequate to protect the_public health and safety with respect to the land disposal within the State of source, byproduct and special nuclear material received from other persons and that the State desires to assume regulatory resonsibility for such materials; and"
'Immediately following the third "Whereas" paragraph, insert a new "Whereas" paragraph to read as follows:
"Whereas, The State and the Comission recognize the-desirability and importance of cooperation between the Comission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and Comission programs for protection against hazards of radiation will be coordinated and compatible; and" Revise the fourth "Whereas" paragraph to read as follows:
8-4 "Whereas, this amendment to the Agreement of March 29, 1984 is entered into pursuant to the provisions of the Atomic Energy Act of 1954, as amended;"
i As shown on the attached marked copy of the draft amendment, revise Section
- 1. by inserting the-following text in line two between the words "by" and
" adding"; " deleting 'and' at the end of paragraph B., by".
Revise the paragraph identifying the effective date of the amendment as follows:
-"This amendment shall become effective on (date to be inserted),
and shall remain in effect unless and until such time as it is tennineted pursuant to Article VIII of the Agreement of March 29, 1984.'-
Draft-of Governor's Letter As noted on the attached marked copy, we have identified several typographi-cal errors in the draft of the Governor's letter. We are also of the opinion
.that the letter should only reference section 26-1-29 of the Utah Code.
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