Utah Admin. Code R313-14-15 - Enforcement Actions
This Section describes the enforcement sanctions available to the Director and specifies the conditions under which they are to be used.
(1) Notice of Violation
(a) A Notice of Violation is a written notice
setting forth one or more violations of a legally binding requirement. The
licensee, permittee, or registrant may be required to provide a written
statement describing:
(i) corrective steps
which have been taken by the licensee, permittee, or registrant and the results
achieved;
(ii) corrective steps
which shall be taken to prevent recurrence; and
(iii) the date when full compliance will be
achieved.
(b) The
Director may require responses to Notices of Violation to be under
oath.
(c) A Notice of Violation is
used by the Director as a method for formalizing the existence of a violation.
The Notice may be the only enforcement action taken or it may be used as a
basis for other enforcement actions. Licensee, permittee, or registrant
initiative for self-identification and correction of problems is encouraged.
The Director shall not generally issue Notices of Violation for a violation
that meets the five following tests:
(i) it
was identified by the licensee, permittee, or registrant;
(ii) it fits in Severity Level IV or
V;
(iii) it was reported, in
writing, to the Director;
(iv) it
was or will be corrected, including measures to prevent recurrence, within 90
days or other period approved by the Director; and
(v) it was not a violation that could
reasonably be expected to have been prevented by the licensee's, permittee's,
or registrant's corrective action for a previous violation.
(d) Licensees, permittees, or
registrants are not ordinarily cited for violations resulting from matters
outside of their control, like equipment failures that were not avoidable by
reasonable quality assurance measures or management controls. However,
licensees, permittees, and registrants are held responsible for acts of their
employees. Accordingly, the rules should not be construed to excuse personal
errors.
(2) Civil
Penalty.
(a) A civil penalty is a monetary
penalty that may be imposed for violation of Utah Radiation Control Rules or
lawful orders issued by the Director. Civil penalties are designed to emphasize
the need for lasting remedial action and to deter future violations. Generally,
civil penalties are imposed for Severity Level I and Severity Level II
violations. In the absence of mitigating circumstances, civil penalties are
considered for Severity Level III violations. Penalties are not ordinarily
imposed for Severity Level IV and V violations unless those violations are
similar to previous violations for which the licensee, permittee, or registrant
failed to take effective corrective action.
(b) The level of a civil penalty may not
exceed $10,000 per violation. Except as modified by provision of the next
paragraphs, the base civil penalties are as follows:
TABLE |
|
Severity Level I Violations |
$10,000 |
Severity Level II Violations |
$ 8,000 |
Severity Level III Violations |
$ 5,000 |
Severity Level IV Violations |
$ 1,500 |
Severity Level V Violations |
$ 500 |
(i)
Comprehensive licensee, permittee, or registrant programs for detection,
correction and reporting of problems that may constitute, or lead to, violation
of regulatory requirements are important and consideration may be given for
effective internal audit programs. When licensees, permittees, or registrants
find, report, and correct a violation expeditiously and effectively, the
Director may apply adjustment factors to reduce or eliminate a civil
penalty.
(ii) Ineffective licensee,
permittee, or registrant programs for problem identification or correction are
unacceptable. In cases involving willfulness, flagrant violations, repeated
poor performance in an area of concern, or serious breakdown in management
controls, the Director may apply the full enforcement authority.
(iii) The Director may review the proposed
civil penalty case on its own merits and adjust the civil penalty upward or
downward appropriately. After considering the relevant circumstances,
adjustments to these values may be made for the factors identified below:
(A) Reduction of the civil penalty may be
given when a licensee, permittee, or registrant identifies the violation and
promptly reports, in writing, the violation to the Director. No consideration
will be given to this factor if the licensee, permittee, or registrant does not
take immediate action to correct the problem upon discovery.
(B) Recognizing that corrective action is
always required to meet regulatory requirements, the promptness and extent to
which the licensee, permittee, or registrant takes corrective action, including
actions to prevent recurrence, may be considered in modifying the civil penalty
to be assessed.
(C) Reduction of
the civil penalty may be given for prior good performance in the general area
of concern.
(D) The civil penalty
may be increased as much as 50%, up to the $10,000 maximum, for cases where the
licensee, permittee, or registrant had prior knowledge of a problem as a result
of an internal audit, or specific Director or industry notification, and had
failed to take effective preventive steps.
(E) The civil penalty may be increased as
much as 50%, up to the $10,000 maximum, where multiple examples of a particular
violation are identified during the inspection period.
(c) A violation of a continuing
nature shall, for the purposes of calculating the proposed civil penalty, be
considered a separate violation for each day of its continuance. A continuing
violation is not considered a repeat violation. In the event a violation is
repeated within five years, the scheduled amount of the civil penalty may be
increased 50%, up to the $10,000 maximum; and for repeat violations of Severity
Levels II and III, the penalty will not be avoided by compliance. Other rights
and procedures are not affected by the repeat violation.
(d) Payment of civil penalties shall be made
within 30 working days of receipt of a Notice of Violation and Notice of
Proposed Imposition of a Civil Penalty. An extension may be given when
extenuating circumstances are shown to exist. Payment shall be made by check,
payable to the Division of Radiation Control and mailed to the Division at the
address shown with the Notice of Violation.
(3) Orders.
(a) An Order is a written directive to
modify, suspend, or revoke a license, permit, or registration; to cease and
desist from a given practice or activity; to issue a civil penalty; or to take
other action that may be necessary.
(b) Modification Orders are issued when some
change in licensee, permittee, or registrant equipment, procedures, or
management control is necessary.
(c) Suspension Orders may be used:
(i) to remove a threat to the public health
and safety or the environment;
(ii)
when the licensee, permittee, or registrant has not responded adequately to
other enforcement action;
(iii)
when the licensee, permittee, or registrant interferes with the conduct of an
inspection; or
(iv) for a reason
not mentioned above for which license, permit, or registration revocation is
authorized.
(v) Suspensions may
apply to all or part of the regulated activity. Ordinarily, an activity is not
suspended, nor is a suspension prolonged for failure to comply with
requirements when the failure is not willful or when adequate corrective
actions have been taken.
(d) Revocation Orders may be used:
(i) when a licensee, permittee, or registrant
is unable or unwilling to comply with these rules;
(ii) when a licensee, permittee, or
registrant refuses to correct a violation;
(iii) when a licensee, permittee, or
registrant does not respond to a Notice of Violation;
(iv) when a licensee, permittee, or
registrant does not pay a fee required by the Department; or
(v) for any other reason for which revocation
is authorized.
(e) Cease
and Desist Orders are used to stop unauthorized activity that has continued
despite notification by the Director that the activity is
unauthorized.
(f) Orders may be
made effective immediately, without prior opportunity for hearing, whenever it
is determined that the public health, interest, or safety so requires, or when
the Order is responding to a violation involving willfulness. Otherwise, a
prior opportunity for a hearing is afforded. For cases in which a basis could
reasonably exist for not taking the action as proposed, the licensee,
permittee, or registrant shall be afforded an opportunity to show cause why the
Order should not be issued in the proposed manner.
(4) Escalation of Enforcement Sanctions.
(a) In accordance with the provisions of
Section
19-3-111
the radioactive material of a person may be impounded. Administrative
procedures will be conducted as provided by Section R313-14-20, prior to
disposal of impounded radioactive materials.
(b) Violations of Severity Levels I, II, or
III are considered to be very serious. If repetitive very serious violations
occur, the Director may issue Orders in conjunction with other enforcement
actions to achieve immediate corrective actions and to deter their recurrence.
In accordance with the criteria contained in this section, the Director shall
carefully consider the circumstances of cases when selecting and applying the
appropriate sanctions.
(c) The
progression of enforcement actions for repetitive violations may be based on
violations under a single license, permit, or registration. The actual
progression to be used in a particular case may depend on the circumstances.
When more than one facility is covered by a single license, permit, or
registration, the normal progression may be based on repetitive violations
under the same license, permit, or registration. It should be noted that under
some circumstances, for example, where there is common control over some facet
of facility operations, repetitive violations may be charged even though the
second violation occurred at a different facility or under a different license,
permit, or registration.
(5) Related Administrative Actions.
(a) In addition to the formal enforcement
mechanisms of Notices of Violation and Orders, the Director may use
administrative mechanisms, like enforcement conferences, bulletins, circulars,
information notices, generic letters, and confirmatory action letters as part
of the enforcement and regulatory program. Licensees, permittees, and
registrants are expected to adhere to obligations and commitments resulting
from these processes and the Director shall, if necessary, issue appropriate
orders to make sure that expectation is realized.
(b) Enforcement Conferences are meetings held
by the Director with licensee, permittee, or registrant management to discuss
safety, public health, or environmental problems, compliance with regulatory
requirements, proposed corrective measures, including schedules for
implementation, and enforcement options available to the Director.
(c) Bulletins, Circulars, Information
Notices, and Generic Letters are written notifications to groups of licensees,
permittees, or registrants identifying specific problems and calling for or
recommending specific actions on their part. Responses to these notifications
may be required.
(d) Confirmatory
Action Letters are letters confirming a licensee's, permittee's, or
registrant's agreement to take certain actions to remove significant concerns
about health and safety, or the environment.
Notes
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