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H.B. 368
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UNDERGROUND WATERS - REGULATION OF
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DISCHARGE
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Melvin R. Brown
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AN ACT RELATING TO ENVIRONMENTAL QUALITY; GIVING TO THE RADIATION
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CONTROL BOARD AUTHORITY TO REGULATE DISCHARGE INTO GROUNDWATER
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AFFECTED BY FACILITIES LICENSED UNDER THE RADIATION CONTROL ACT OR
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THE FEDERAL NUCLEAR REGULATORY COMMISSION; PLACING STATE
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REQUIREMENTS ON HOLDERS OF STATE OR FEDERAL PERMITS REGARDING
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RADIOACTIVE MATERIAL THAT MAY RESULT IN A DISCHARGE INTO
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GROUNDWATER OF THE STATE; AND LIMITING APPLICATION REGARDING
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FEDERAL PREEMPTION.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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19-3-103.5, as last amended by Chapter 90, Laws of Utah 1995
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19-3-104, as last amended by Chapters 28 and 90, Laws of Utah 1995
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19-3-108, as enacted by Chapter 112, Laws of Utah 1991
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19-3-110, as last amended by Chapter 271, Laws of Utah 1998
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19-3-111, as last amended by Chapter 87 and renumbered and amended by Chapter 112,
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Laws of Utah 1991
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19-5-104, as last amended by Chapter 126, Laws of Utah 1998
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ENACTS:
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19-3-114, Utah Code Annotated 1953
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19-3-115, Utah Code Annotated 1953
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19-3-116, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
19-3-103.5
is amended to read:
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19-3-103.5. Board authority and duties.
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(1) The board may:
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(a) require submittal of specifications or other information relating to licensing
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applications for radioactive materials or registration of radiation sources for review, approval,
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disapproval, or termination;
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(b) issue orders necessary to enforce the provisions of this part, enforce the orders by
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appropriate administrative and judicial proceedings, and institute judicial proceedings to secure
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compliance with this part;
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(c) hold hearings and compel the attendance of witnesses, the production of documents,
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and other evidence, administer oaths and take testimony, and receive evidence it finds proper, or
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appoint hearing officers and authorize them to exercise the powers under this Subsection (1)(c);
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(d) settle or compromise any administrative or civil action initiated to compel compliance
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with this part or any rules adopted under this part;
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(e) advise, consult, cooperate with, and provide technical assistance to other agencies of
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the state and federal government, other states, interstate agencies, and affected groups, political
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subdivisions, industries, and other persons in carrying out the provisions of this part;
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(f) promote the planning and application of pollution prevention and radioactive waste
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minimization measures to prevent the unnecessary waste and depletion of natural resources;
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(g) cooperate with any persons in studies, research, or demonstration projects regarding
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radioactive waste management or control of radiation sources;
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(h) accept, receive, and administer grants or other funds or gifts from public and private
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agencies, including the federal government, for the purpose of carrying out any of the functions
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of this part;
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(i) exercise all incidental powers necessary to carry out the purposes of this part;
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(j) submit an application to the U.S. Food and Drug Administration for approval as an
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accrediting body in accordance with 42 U.S.C. 263b, Mammography Quality Standards Act of
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1992;
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(k) accredit mammography facilities, pursuant to approval as an accrediting body from the
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U.S. Food and Drug Administration, in accordance with 42 U.S.C. 263b, Mammography Quality
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Standards Act of 1992; [and]
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(l) review the qualifications of and issue certificates of approval to individuals who survey
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mammography equipment and oversee quality assurance practices at mammography facilities[.];
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and
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(m) make rules under Title 63, Chapter 46a, Utah Administrative Rulemaking Act, for the
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prevention, control, and abatement of new or existing pollution of underground waters of the state
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that are or may be affected by activities subject to this part or 42 U.S.C. 2011 et seq., as amended,
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Atomic Energy Act, to the extent the rules are not preempted by the Atomic Energy Act.
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(2) The board shall:
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(a) hear appeals of final decisions made by the executive secretary or appoint a hearing
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officer to hear the appeal and make recommendations to the board;
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(b) prepare a radioactive waste management plan in compliance with Section
19-3-107
as
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soon as practicable; and
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(c) impound radioactive material as authorized in Section
19-3-111
.
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(3) Representatives of the board upon presentation of appropriate credentials may enter
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at reasonable times upon the premises of public and private properties subject to regulation under
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this part to perform inspections to insure compliance with this part and rules made by the board.
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Section 2.
Section
19-3-104
is amended to read:
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19-3-104. Registration and licensing of radiation sources by department --
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Assessment of fees -- Rulemaking authority and procedure -- Siting criteria.
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(1) The board may require the registration or licensing of radiation sources that constitute
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a significant health hazard.
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(2) All sources of ionizing radiation, including ionizing radiation producing machines,
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shall be registered or licensed by the department.
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(3) The board may make rules:
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(a) necessary for controlling exposure to sources of radiation that constitute a significant
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health hazard;
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(b) to meet the requirements of federal law relating to radiation control to ensure the
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radiation control program under this part is qualified to maintain primacy from the federal
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government; and
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(c) to establish:
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(i) board accreditation requirements and procedures for mammography facilities; and
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(ii) certification procedure and qualifications for persons who survey mammography
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equipment and oversee quality assurance practices at mammography facilities.
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(4) (a) The department shall assess fees for registration, licensing, and inspection of
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radiation sources under this section.
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(b) The department shall comply with the requirements of Section
63-38-3.2
in assessing
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fees for licensure and registration.
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(5) The department shall coordinate its activities with the Department of Health rules made
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under Section
26-21a-203
.
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(6) (a) Except as provided in Subsection (7), the board may not adopt rules, for the purpose
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of the state assuming responsibilities from the United States Nuclear Regulatory Commission with
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respect to regulation of sources of ionizing radiation, that are more stringent than the
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corresponding federal regulations which address the same circumstances.
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(b) In adopting those rules, the board may incorporate corresponding federal regulations
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by reference.
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(7) (a) The board may adopt rules more stringent than corresponding federal regulations
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for the purpose described in Subsection (6) only if it makes a written finding after public comment
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and hearing and based on evidence in the record that corresponding federal regulations are not
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adequate to protect public health and the environment of the state.
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(b) Those findings shall be accompanied by an opinion referring to and evaluating the
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public health and environmental information and studies contained in the record which form the
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basis for the board's conclusion.
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(8) (a) The board may by rule establish criteria for siting commercial low-level radioactive
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waste treatment or disposal facilities.
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(b) Any facility for which a radioactive material license is required by this section shall
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comply with those criteria.
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(c) A facility may not receive a radioactive material license until siting criteria have been
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established by the board. The criteria also apply to facilities that have applied for but not received
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a radioactive material license.
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(9) The board shall by rule establish financial assurance requirements for closure and
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postclosure care of radioactive waste land disposal facilities, taking into account existing financial
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assurance requirements.
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(10) The board shall establish rules under Title 63, Chapter 46a, Utah Administrative
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Rulemaking Act, to establish requirements and standards governing actual or potential discharges
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into underground waters of the state from operations or activities subject to this part or 42 U.S.C.
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2011 et seq., as amended, Atomic Energy Act, to the extent the rules are not preempted by the
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Atomic Energy Act.
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Section 3.
Section
19-3-108
is amended to read:
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19-3-108. Powers and duties of executive secretary.
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(1) The executive director shall appoint an executive secretary, with the approval of the
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board, to serve under the direction of the executive director.
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(2) The executive secretary may:
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(a) develop programs to promote and protect the public from radiation sources in the state;
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(b) advise, consult, and cooperate with other agencies, states, the federal government,
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political subdivisions, industries, and other groups to further the purposes of this chapter;
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(c) as authorized by the board:
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(i) issue licenses, registrations, and certifications;
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(ii) review and approve plans;
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(iii) enforce rules through the issuance of orders and assess penalties in accordance with
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Section
19-3-109
;
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(iv) impound radioactive material under Section
19-3-111
; [and]
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(v) authorize employees or representatives of the department to enter at reasonable times
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and upon reasonable notice in and upon public or private property for the purpose of inspecting
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and investigating conditions and records concerning radiation sources[.]; and
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(vi) issue permits for discharge into underground waters of the state to persons who have
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received a license, registration, or certification under this part or the 42 U.S.C. 2011 et seq., as
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amended, Atomic Energy Act, to the extent the issuance of the permits is not preempted by the
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Atomic Energy Act.
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Section 4.
Section
19-3-110
is amended to read:
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19-3-110. Criminal penalties.
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(1) Any person who knowingly violates any provision of Sections
19-3-104
through
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[
19-3-113
]
19-3-116
or lawful orders or rules adopted by the department under those sections shall
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in a criminal proceeding:
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(a) for the first violation, be guilty of a class B misdemeanor; and
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(b) for a subsequent similar violation within two years, be guilty of a third degree felony.
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(2) In addition, a person is liable for any expense incurred by the department in removing
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or abating any violation.
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(3) Conviction under Sections
19-3-104
through [
19-3-113
]
19-3-116
does not relieve the
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person convicted from civil liability for any act which was also a violation of the public health
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laws.
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Section 5.
Section
19-3-111
is amended to read:
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19-3-111. Impounding of radioactive material.
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(1) The board may impound the radioactive material of any person if:
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(a) the material poses an imminent threat or danger to the public health or safety; or
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(b) that person is violating:
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(i) any provision of Sections
19-3-104
through [
19-3-113
]
19-3-116
;
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(ii) any rules or orders enacted or issued under the authority of those sections; or
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(iii) the terms of a license, permit, or registration certificate issued under the authority of
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those sections.
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(2) Before any dispositive action may be taken with regard to impounded radioactive
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materials, the board shall comply with the procedures and requirements of Title 63, Chapter 46b,
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Administrative Procedures Act.
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Section 6.
Section
19-3-114
is enacted to read:
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19-3-114. Discharge of pollutants unlawful - Discharge permit required.
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(1) (a) Except as provided in this part or rules made under this part, it is unlawful for any
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person receiving a license, registration, or certification under this part or under 42 U.S.C. 2011 et
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seq., as amended, Atomic Energy Act, to:
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(i) discharge a pollutant into underground waters of the state or to cause pollution from
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the discharges which constitutes a menace to public health or welfare, or is harmful to wildlife,
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fish, or aquatic life, or impairs domestic, agricultural, industrial, recreational, or other beneficial
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uses of water; or
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(ii) place or cause to be placed any wastes in a location where there is probable cause to
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believe the wastes will cause pollution.
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(b) For purposes of injunctive relief, any violation of Subsection (1)(a) is a public
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nuisance.
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(2) It is unlawful for any person receiving a license, registration, or certification under this
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part or under 42 U.S.C. 2011 et seq., as amended, Atomic Energy Act, without first securing a
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permit from the executive secretary, to:
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(a) make any discharge not authorized under an existing valid discharge permit; or
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(b) construct, install, modify, or operate any treatment works or part of any treatment
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works or any extension or addition to any treatment works or construct, install, or operate any
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establishment or extension or modification of or any addition to any treatment works, the operation
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of which would probably result in a discharge.
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(3) This section has application to the extent it is not preempted by 42 U.S.C. 2011 et seq.,
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as amended, Atomic Energy Act.
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Section 7.
Section
19-3-115
is enacted to read:
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19-3-115. Grounds for revocation, modification, or suspension of discharge permit.
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(1) Any permit issued under this part may be revoked, modified, or suspended in whole
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or in part for cause, which may include:
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(a) violation of any condition or term of the permit;
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(b) obtaining a permit by misrepresentation or failure to disclose fully all relevant facts;
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or
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(c) a change in any condition that requires either a temporary or permanent reduction or
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elimination of the discharge allowed by the permit.
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(2) As used in Subsection (1)(c), "condition" does not include statutory or regulatory
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effluent limitations enacted or adopted during the permit term other than for toxic pollutants.
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Section 8.
Section
19-3-116
is enacted to read:
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19-3-116. Limitations and standards.
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In establishing limitations and standards for protection of underground waters of the state
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under this part, the executive secretary shall use the applicable limits and standards established by:
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(1) the Water Quality Board under Title 19, Chapter 5, Water Quality Act; and
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(2) the Environmental Protection Agency under 33 U.S.C. 1251 et seq., Water Pollution
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Control Act, and 42 U.S.C. 2011 et seq., as amended, Atomic Energy Act.
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Section 9.
Section
19-5-104
is amended to read:
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19-5-104. Powers and duties of board.
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(1) The board has the following powers and duties, but the board shall give priority to
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pollution that results in hazards to the public health:
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(a) develop programs for the prevention, control, and abatement of new or existing
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pollution of the waters of the state;
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(b) advise, consult, and cooperate with other agencies of the state, the federal government,
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other states, and interstate agencies, and with affected groups, political subdivisions, and industries
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to further the purposes of this chapter;
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(c) encourage, participate in, or conduct studies, investigations, research, and
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demonstrations relating to water pollution and causes of water pollution as the board finds
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necessary to discharge its duties;
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(d) collect and disseminate information relating to water pollution and the prevention,
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control, and abatement of water pollution;
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(e) adopt, modify, or repeal standards of quality of the waters of the state and classify those
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waters according to their reasonable uses in the interest of the public under conditions the board
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may prescribe for the prevention, control, and abatement of pollution;
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(f) make rules in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking
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Act, to:
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(i) implement awarding construction loans to political subdivisions and municipal
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authorities under Section
11-8-2
, including:
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(A) requirements pertaining to applications for loans;
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(B) requirements for determination of eligible projects;
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(C) requirements for determination of the costs upon which loans are based, which costs
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may include engineering, financial, legal, and administrative expenses necessary for the
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construction, reconstruction, and improvement of sewage treatment plants, including major
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interceptors, collection systems, and other facilities appurtenant to the plant;
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(D) a priority schedule for awarding loans, in which the board may consider in addition
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to water pollution control needs any financial needs relevant, including per capita cost, in making
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a determination of priority; and
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(E) requirements for determination of the amount of the loan, taking into consideration the
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availability of federal grants in determining the eligible project costs and in establishing priorities;
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(ii) set effluent limitations and standards subject to Section
19-5-116
;
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(iii) implement or effectuate the powers and duties of the board; and
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(iv) protect the public health for the design, construction, operation, and maintenance of
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individual wastewater disposal systems, liquid scavenger operations, and vault and earthen pit
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privies;
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(g) issue, modify, or revoke orders:
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(i) prohibiting or abating discharges;
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(ii) requiring the construction of new treatment works or any parts of them, or requiring
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the modification, extension, or alteration of existing treatment works as specified by board rule or
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any parts of them, or the adoption of other remedial measures to prevent, control, or abate
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pollution;
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(iii) setting standards of water quality, classifying waters or evidencing any other
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determination by the board under this chapter; and
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(iv) requiring compliance with this chapter and with rules made under this chapter;
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(h) review plans, specifications, or other data relative to disposal systems or any part of
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disposal systems, and issue construction permits for the installation or modification of treatment
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works or any parts of them;
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(i) after public notice and opportunity for a public hearing, issue, continue in effect,
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revoke, modify, or deny discharge permits under reasonable conditions the board may prescribe
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to control the management of sewage sludge or to prevent or control the discharge of pollutants,
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including effluent limitations for the discharge of wastes into the waters of the state;
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(j) give reasonable consideration in the exercise of its powers and duties to the economic
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impact of water pollution control on industry and agriculture;
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(k) exercise all incidental powers necessary to carry out the purposes of this chapter,
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including delegation to the department of its duties as appropriate to improve administrative
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efficiency;
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(l) meet the requirements of federal law related to water pollution;
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(m) establish and conduct a continuing planning process for control of water pollution
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including the specification and implementation of maximum daily loads of pollutants;
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(n) make rules governing inspection, monitoring, recordkeeping, and reporting
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requirements for underground injections and require permits for them, to protect drinking water
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sources, except for wells, pits, and ponds covered by Section
40-6-5
regarding gas and oil,
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recognizing that underground injection endangers drinking water sources if:
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(i) injection may result in the presence of any contaminant in underground water which
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supplies or can reasonably be expected to supply any public water system, as defined in Section
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19-4-102
; and
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(ii) the presence of the contaminant may result in the public water system not complying
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with any national primary drinking water standards or may otherwise adversely affect the health
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of persons;
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(o) make rules governing sewage sludge management, including permitting, inspecting,
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monitoring, recordkeeping, and reporting requirements;
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(p) adopt and enforce rules and establish fees to cover the costs of testing for certification
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of operators of treatment works and sewerage systems operated by political subdivisions; and
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(q) notwithstanding the provisions of Section
19-4-112
, make rules governing design and
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construction of irrigation systems which convey sewage treatment facility effluent of human origin
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in pipelines under pressure, unless contained in surface pipes wholly on private property and for
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agricultural purposes, and which are constructed after May 4, 1998.
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(2) In establishing certification rules under Subsection (1)(p), the board shall:
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(a) base the requirements for certification on the size, treatment process type, and
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complexity of the treatment works and sewerage systems operated by political subdivisions;
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(b) allow operators until three years after the date of adoption of the rules to obtain initial
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certification;
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(c) allow new operators one year from the date they are hired by a treatment plant or
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sewerage system or three years after the date of adoption of the rules, whichever occurs later, to
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obtain certification;
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(d) issue certification upon application and without testing, at a grade level comparable
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to the grade of current certification to operators who are currently certified under the voluntary
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certification plan for wastewater works operators as recognized by the board; and
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(e) issue a certification upon application and without testing that is valid only at the
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treatment works or sewerage system where that operator is currently employed if the operator:
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(i) is in charge of and responsible for the treatment works or sewerage system on March
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16, 1991;
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(ii) has been employed at least ten years in the operation of that treatment works or
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sewerage system prior to March 16, 1991; and
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(iii) demonstrates to the board his capability to operate the treatment works or sewerage
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system at which he is currently employed by providing employment history and references as
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required by the board.
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(3) The board shall regulate the discharge of contaminants into underground waters of the
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state by persons who have received a license, registration, or certification under Title 19, Chapter
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3, Radiation Control Act, or 42 U.S.C. 2011 et seq., to the extent the regulation is not preempted
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by 42 U.S.C. 2011 et seq., as amended, Atomic Energy Act.
Legislative Review Note
as of 2-17-00 11:04 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.