DEE-9: Radiation Enforcement Policy
Department ID: DEE - 9
Program ID: N/A
The DEC Policy System
Issuing Authority: Michael D. Zagata, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Michael D. Zagata
Date: 17 May 1995
Issuance Date: 17 May 1995
Latest Review Date (Office Use):
Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:
- The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
- Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
- Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
- The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.
This document sets forth the policies and procedures the Department of Environmental Conservation (DEC or "the Department") will follow to promote compliance with statutes, regulations, permits, and orders pertaining to activities subject to 6 NYCRR Part 380. This document reaffirms the Departments commitment to maintaining an effective enforcement presence with respect to the prevention, control, and abatement of environmental pollution by radioactive materials. This Enforcement Guidance Memorandum (EGM) is a program-specific application of the overall enforcement policy enunciated and supplemented in various memoranda from the Commissioner, including the commissioner's Civil Penalty Policy signed June 1991.
Nothing in this document should be construed to establish rules of general applicability. Rather, this guidance should be applied on a case-specific basis with due regard for the circumstances involved in each matter. This guidance should not be construed as a rule against which Department staff performance may be reviewed in an adjudicatory proceeding.
The DEC is one of four agencies in the State of New York responsible for the regulation of radioactive materials. The New York State Departments of Health and of Labor and the New York City Department of Health are each responsible in particular separate categories for licensing the possession and use of radioactive materials. The DEC is responsible for regulating the environmental impacts of regulated radioactive materials pursuant to authority contained in Articles 3, 17, 19, 27, and 29 of the Environmental Conservation Law (ECL).
The ECL vests in the DEC broad powers with respect to the discharge of pollutants into the environment. These powers are set forth in ECL §1-0101(1):
"The quality of our environment is fundamental to our concern for the quality of life. It is hereby declared to be the policy of the State of New York to conserve, improve and protect its natural resources and environment and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well being."
"Pollution" is defined as
". . . the presence in the environment of conditions and or contaminants in quantities of characteristics which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout such areas of the state as shall be affected thereby." ECL §1-0303 (19).
The DEC further implements this policy by ECL §3-0303(19), which lists as one of the general functions, powers, and duties of the DEC and Commissioner the power to
"Provide for prevention and abatement of all water, land and air pollution including but not limited to that related to particulates, gases, dust, vapors, noise, radiation. odor, nutrients and heated liquids." (Emphasis added.)
There is not a separate ECL Article that comprehensively governs the regulation of radioactive materials. Rather, the source of legal authority, in addition to ECL Article 3, is divided among the following ECL articles:
- Article 17 (Water),
- Article 19 (Air),
- Article 27 (Solid Waste), and
- Article 29 (Low Level Radioactive Waste Facilities).
The DEC's regulations for environmental discharges are found at 6 NYCRR Part 380; the transportation and manifest requirements are in Part 381, and LLRW disposal facility regulations are in Parts 382 and 383.
The Bureau of Radiation in the Division of Hazardous Substances regulation is responsible for implementation of DEC's regulatory program governing discharges and disposal of radioactive materials to the environment. This program includes review and evaluation of all applications for DEC permits for discharge or Disposal of radioactive material to the air, water, or land, and implementation of an inspection program of all Part 380 permitters.
The goal of this policy is to foster the prevention and control of environmental pollution by radioactive materials through
- promoting compliance with 6 NYCRR Part 380 and permit conditions;
- obtaining prompt correction of violations and adverse conditions that may affect the environment; and
- deterring future violations and occurrences of conditions adverse to environmental quality, thereby encouraging permittee compliance with the DEC regulations and assuring that no economic gain is derived from failure to comply with the law.
IV. Applicable Statutes
ECL Articles 3, 17, 19, 27, and 29 provide the statutory authority for DEC's regulatory program governing discharges and Disposal of radioactive materials to the environment. Civil and criminal sanctions for a violation of 6 NYCRR Part 380 would be determined by the appropriate enforcement provisions for the ECL Article pertaining to the violation:
- unpermitted discharges of radioactive materials to the waters of the State are governed by ECL Article 17 and Article 71, Title 19;
- unpermitted discharges of radioactive materials to the air of the State are governed by ECL Article 19 and Article 71, Title 21; and
- unpermitted land disposal of radioactive materials is governed by ECL Article 27 and Article 71, Title 27.
- ECL Article 17 - Water Pollution Control
ECL §17-0803 provides that ". . . it shall be unlawful to discharge pollutants to the waters of the state from any outlet or point source without a SPDES [State Pollutant Discharge Elimination System] permit." A pollutant is defined to include "radioactive materials" [see ECL §17-0105(17)]. This statutory definition establishes DEC's authority to regulate radioactive materials directly under State law and as contemplated by the State's 1962 agreement with the NRC. Discharge limits and permitting standards are found in 6 NYCRR Part 380. Sanctions for violations of ECL Article 17, Title 8 include civil penalties of up to $25,000 per day for each violation and criminal penalties (ECL §§71-1929 and 71-1933). The Commissioner may also seek injunctive relief (ECL §71-1931).
- ECL Article 19 - Air Pollution Control
State law to prevent and control air pollution is found in article 19 of the ECL. Section 19-0301 gives DEC the power to promulgate regulations that require permits to construct and certificates to operate for sources of air pollutants. Part 380 implements this requirement for radioactive material discharges. Section 19-0301 also allows DEC to establish emission limitations for air contamination sources and to promulgate ambient air quality standards. Radioactive materials are considered to be an air contaminant (ECL §19-0107), and emission limitations for radionuclides are found in 6 NYCRR Part 380. Sanctions for violations of ECL Article 19 include civil penalties not less than $250 nor more than $10,000 for each violation, an additional penalty not to exceed $500 for each day during which the violation continues, and criminal penalties (ECL §§71-2103 and 71-2105). The Commissioner may also seek injunctive relief (ECL §71-2103).
- ECL Article 27 - Land Burial of Radioactive materials
Part 380 prohibits the land disposal of radioactive material except at a Part 383 permitted disposal facility or as authorized by a permit issued pursuant to part 380. Radioactive materials are considered to be a solid waste As they are not excluded from the definition of solid waste in ECL §27-0501. Sanctions for violations of ECL Article 27, Title 7, include civil penalties of up to $2,500 for each violation, an additional penalty of up to $1,000 for each day during which the violation continues, and criminal penalties [ECL §71-2703 (1) and (2)]. The Commissioner may also seek injunctive relief and revoke or suspend the permit or deny a pending permit renewal [ECL §71-2703 (1)].
- ECL Article 17 - Water Pollution Control
V. Enforcement Procedures
- Identifying and Classifying Violations
Violations may come to the attention of the Department in several ways. Violations may be reported to the Department by the permittee or regulated party. (1) The Bureau of Radiation may discover or identify violations in the course of a routine inspection. The Bureau of Radiation may also identify violations in the course of a special inspection that was performed in response to information from another agency or party having knowledge of an alleged violation.
Once a violation has been identified, the inspector, in consultation with his or her supervisor and the section supervisor, will assign a priority level (from I to IV) to the violation. (the designation of priority levels is discussed in Section VII of this memorandum, and examples are provided in Appendix A to this EGM.) Any violations in Priority Level I, II, or III shall be reported to the Chief of the Bureau of Radiation. The Chief of the Bureau of Radiation will notify the Radiation Attorney of any Priority Level I or II violations. If the inspector believes there is any possibility of willfulness or deliberate wrongdoing by the regulated party, the attorney assigned to radiation program enforcement ("the radiation Attorney") shall be consulted before the Priority Level is chosen.
- Initiating Enforcement
- Priority Levels I and II
In most circumstances, a Priority Level I or II violation warrants an enforcement action initiated by Counsel's Office. The Director of the Division of Hazardous Substances Regulation will refer Priority Level I and II violations to the Office of General Counsel as soon as possible after the Bureau of Radiation has determined that a such a violation has occurred.
A Priority Level I violation may involve environmental crimes. Coordination of matters handled by the District Attorney in this program area is the responsibility of the Radiation Attorney, while all referrals to the Attorney. General are done by the General Counsel upon recommendation of the Radiation Attorney.
During an inspection, Bureau of Radiation staff shall give notice to a regulated party that Priority Level I and/or II violations have been found and that actions should be taken to correct the violations and prevent a recurrence (see Section VI.A.1 of this EGM). Whether or not such notice is given at the inspection, the Bureau of Radiation may, with the prior approval of the Radiation Attorney, send a Notice of Violation (see Section VI.B of this EGM) to the regulated party after the inspection.
Where there is an immediate need for corrective measures, the Bureau of Radiation may approve proposed corrective measures before the enforcement action is complete. In that case, the Bureau must first obtain the concurrence of the Radiation Attorney. However, in Most circumstances, the Bureau of Radiation will not approve any proposed corrective measures until the enforcement action initiated by Counsel's Office is completed. Cleanup of sites contaminated with radioactive material should be governed by the Division of Hazardous Substances Regulation's Technical Administrative Guidance Memorandum, "Cleanup Guideline for Soils Contaminated with Radioactive Materials" (TAGM-4003).
- Priority Level III
Priority Level III violations may warrant an enforcement action initiated by Counsel's Office. The Chief of the Bureau of Radiation will make that determination, and if the decision is to pursue such action, will recommend that the Director of the Division of Hazardous Substances Regulation refer the violation to the Office of General Counsel.
- Priority Level IV
Priority Level IV violations do not usually warrant an enforcement action initiated by Counsel's Office. The Bureau Radiation will respond to the violation and pursue corrective actions as described in Section V.D of this EGM.
- Priority Levels I and II
- Procedures for Enforcement Actions Initiated by Counsel's Office
- Selection of Enforcement Action
The Radiation Attorney should consult with the Bureau of Radiation as to the most appropriate enforcement action to undertake. However, the Radiation Attorney will determine the enforcement action to be pursued, based on the nature of the violations, the evidence supporting the Notice of Violation, and other relevant factors. The Radiation Attorney may select any of the following:
- Consent Order;
- Notice of Hearing and Complaint seeking Commissioner's order;
- Recommendation to General Counsel seeking:
- issuance of summary abatement order,
- referral to Attorney General for criminal or civil prosecution,
- coordination with a District Attorney for criminal prosecution,
- warning letter issued by the Radiation Attorney, or
- no action by Counsel's Office (in which case the Bureau of radiation will pursue correction of the violation through permit modification or other appropriate corrective actions).
- Case Management
Within the Department, for radiation purposes, all enforcement actions initiated by Counsel's Office will be handled by the Radiation Attorney, rather than the Regional Attorney. The Central Office lead for radiation enforcement responsibilities is dictated by the fact that Bureau of Radiation staff who are assigned inspection and compliance functions, and who will provide the radiation program's input for enforcement actions, are all assigned to the Central Office. Furthermore, Central Office enforcement responsibility is intended to ensure that the radiation enforcement program is carried out in a timely, efficient, and consistent manner throughout the State.
The Radiation Attorney has the lead role in organizing and presenting the Department's case in administrative enforcement proceedings. For cases that go to court, the assigned Assistant Attorney General or Assistant District Attorney assumes this responsibility and the Radiation Attorney is the designated DEC contact person for such cases.
In cases involving violations other than just radiation violations, the Director of the Division of Environmental Enforcement shall determine whether the Radiation Attorney shall take the lead or support the enforcement action.
Since administrative enforcement orders are subject to Judicial Review pursuant to Civil Practice Laws and Rules Article 78 [see ECL §71-2303(1)], a complete and proper record must be kept concerning the violation. The Radiation Attorney is responsible for transmitting enforcement data and updates to the Department's Environmental Enforcement Data System (EEDS)(2) and the Litigation Information Tracking System (LITS). LITS and EEDS will provide case management functions for all radiation enforcement actions initiated by counsel's Office.
- Bureau of Radiation's Responsibilities
The Bureau of Radiation will provide technical expertise in cases that proceed to administrative hearings or judicial proceedings. This may take the form of documentary evidence, testimony, affidavits, and other materials, as appropriate and necessary to establish liability. Other Divisions may be called upon to support enforcement to the extent that such expertise is needed for a radioactive materials violation or if other DEC permitting and regulatory functions are considered to be related to or affected by the enforcement action.
- Selection of Enforcement Action
- Procedures for Enforcement Actions initiated by the Bureau of Radiation
The Bureau of Radiation will respond-to the violation through the inspection report letter which will include, if appropriate, a Notice of Violation.
The Department may refrain from issuing a Notice of Violation for a Priority Level IV violation that is documented in an inspection report provided that the inspection report includes a brief description of the corrective action and that the violation meets all of the following criteria:
- It was not a violation that could reasonably be expected to have been prevented by the regulated party's corrective action for a previous violation or a previous finding by the party that occurred within the past two years of the inspection at issue, or the period Within the last two inspections, whichever is longer.
- It was or will be corrected within a reasonable time, by specific corrective action committed to by the permittee by the end of the inspection, including immediate corrective action and comprehensive corrective action to prevent recurrence.
- It was not a willful violation.
The Bureau of Radiation will pursue corrective action through modification of the permit pursuant to Part 621, if appropriate.
- Coordination with the Regional Office
The Regional Directors will serve as a point of contact for regulatory violations involving radioactive materials that first come to the attention of regional staff. The Regional Director will insure that information obtained concerning regulatory violations is promptly transmitted to the Bureau of Radiation and the Radiation Attorney. The Bureau of Radiation will keep the Regional Hazardous Substances Engineer informed of all enforcement actions.
- Coordination with the Division of Regulatory Affairs (3)
The Bureau of Radiation will inform the regional staff of the Division of Regulatory Affairs (DRA) of all Priority Level I or II violations at the same time it informs the Radiation Attorney. the DRA, the Radiation Attorney, and the Chief of the Bureau of Radiation (and if necessary, the air, water, and solid waste Compliance Attorneys) will consult concerning any action to take regarding the permit pursuant to the Uniform Procedures Act and its implementing regulations (6 NYCRR Part 621). Suspension or revocation may be appropriate, depending upon case-specific circumstances and consistent with the provisions of 6 NYCRR Section 621.14. Each case must be reviewed in light of the specific circumstances involved.
The Radiation Attorney will notify DRA of any enforcement actions initiated by Counsel's Office so that DRA may determine, in consultation with the Radiation Attorney and the Chief of the Bureau of Radiation, whether to suspend processing any pending related permits pursuant to 6 NYCRR §621.3(f). It is incumbent upon the Department, to the extent practicable, to expeditiously resolve the enforcement matter so that all parties understand their respective positions regarding the permit and enforcement proceeding.
The Bureau of Radiation will provide to the regional office of the DRA copies of all correspondence related to Priority Level III and IV violations.
- Monitoring Compliance After Conclusion of Action
Compliance inspections by Bureau of Radiation staff should occur as a matter of course following issuance of a permit, execution of an Order on Consent, issuance of a Commissioner's order or judicial decision, or issuance of a Notice of Violation. Failure to comply with the terms of an order is itself a violation to be dealt with according to standard procedures hereunder with special consideration to the suitability of seeking a court order (1) compelling adherence to the original provisions and (2) imposing additional sanctions. In the alternative, a second administrative order may be sought, but normally should include substantial penalties for all violations of the prior order. Depending on the nature of the noncompliance, a further ECL violation may be involved, and these must be taken into account.
VI. Sanctions Under State Law
The range of sanctions available to the Department for violations of ECL provisions that apply to radioactive material violations is described in Section IV, above. The consistent and uniform application of these sanctions is vital to attaining the Department's enforcement objectives and to the overall integrity of the Department's administration of the radiation control program.
- Responses to Ongoing Violations
- Notice Given at Exit Interview
When Priority Level I or II violations are clearly identified During an inspection, the inspector should provide written notice to the facility that the violation has been identified. The Bureau of Radiation uses a standard form (Appendix B to this EGM) for this purpose. (Revisions of this form must be approved by the Radiation Attorney.) The form is completed in duplicate and both the inspector and the facility's representative sign and retain a copy. This form is only an initial notice and does not constitute the final Notice of Violation, which will be transmitted with the inspection findings letter sent to the facility. Nor does this device constitute formal initiation of an enforcement proceeding. Rather, it serves to put the violator on notice that DEC considers that a violation has occurred. It can pave the way for initiation of negotiations toward a consent order or can add an aggravating factor to continuing or subsequent violations (i.e., a more culpable mental state).
- Summary Abatement
The Commissioner's summary abatement power includes but is not limited to conditions that present an imminent health danger. The Commissioner has the authority to order immediate cessation if
". . . a condition or activity which presents an imminent danger to the health or welfare of the people of the state or results in or is likely to result in irreversible or irreparable damage to natural resources, . . . and it therefore appears to be prejudicial to the interests of the people of the State to delay action until an opportunity for a hearing can be provided . . ." (ECL §71-0301)
Noncompliance with a summary abatement order is in itself a violation punishable by injunction, a civil penalty of up to $2,500 for each violation, and $500 for each day during which the violation continues (ECL §71-0301).
The Department's Enforcement Directives shall be consulted for the procedures to be followed for the issuance of summary abatement orders.
- Referral to Attorney General for Equitable Relief
Where the facts do not warrant issuance of a summary abatement order, but where the need exists to require cessation of an ongoing activity before the Department is able to proceed through the administrative process, a request to the Attorney General's office that it seek an injunction or temporary restraining order may be appropriate. Such requests are made by the General Counsel upon the recommendation of the Radiation Attorney or Regional Attorney. Referral to the Attorney General may also be considered as an alternative to issuance of a summary abatement order.
While arrest itself does not constitute an order to cease violations, as a practical matter, it may have the same result and should therefore be considered if the violation is knowing and ongoing.
- Notice Given at Exit Interview
- Notice of Violation
A Notice of Violation is a written statement setting forth one or more violations of either a regulation or a condition of the permit. The Notice of Violation normally requires the recipient to provide a written statement describing
- the reasons for the violation or, if contested, the basis for disputing the violation;
- corrective steps that have been taken and the results achieved;
- corrective steps that will be taken to prevent recurrence; and
- the date when full compliance will be achieved.
It also states that these violations may be subject to further enforcement action under the ECL. The standard format of a Notice of Violation is presented in Appendix C of this EGM. The Bureau of Radiation sends a copy of the Notice of Violation to the Radiation Attorney.
Where violations are discovered during an inspection, the Notice of Violation is transmitted with the Department's letter to the permittee reporting the results of the inspection. With the prior approval of the Radiation Attorney, Notices of Violation for Priority Level I and II violations may be sent to the facility prior to commencement of other enforcement actions.
- Guidelines for Determining Penalty Amounts
The guidance contained in this EGM is intended to apply the Department's Civil Penalty Policy to the specific program, area of radiation enforcement. The Civil Penalty Policy establishes the Department's overall policy and guidance for developing monetary penalties for violation of the ECL and the Department's regulations.
- Statutory Maximum
The starting point of all penalty calculations is a computation of the potential statutory maximum for all provable violations. Because the monetary penalty amounts for violations vary according to the environmental medium affected, program staff preparing case reports should carefully analyze all potential statutory cases for penalties. In order to achieve the goals of deterrence and recovery of the economic benefit of the violation as set forth in the Civil Penalty Policy, it may be necessary and appropriate to assess the statutory maximum penalty. However, if an amount less than the maximum penalty amount will serve as a deterrent against future violations, a smaller penalty may be assessed.
In addition, in calculating a penalty, the Civil Penalty Policy requires, among other things, consideration of the violator's conduct and willingness to take corrective actions, economic benefit realized by the violator and the seriousness of or gravity of harm or the potential for harm resulting from the violation.
- Economic Benefit
It is Department policy to calculate and recover the economic benefit of noncompliance. In the area of radioactive materials violations, economic benefit of noncompliance is frequently realized by failure to install radiation control equipment and comply with the obligation to maintain discharges to the environment at a level that is as low as reasonably achievable. Therefore, the economic benefit component of the Civil Penalty Policy is most readily applied to the situation where the potential for economic benefit can be removed by enforcement. Where the potential for economic benefit cannot be removed, the Department should attempt to recover the benefit realized in the form of monetary fines. However, if in staff's judgement, the economic benefit is minor or nonexistent, the maximum penalty may be diminished.
- Gravity of Harm or Environmental Threat
It is not the intention of this guidance document to specify penalty amounts for particular categories of violations. Generally, the gravity of harm can be assessed by evaluating the nature and extent of the violation and the environmental threat posed by the violation. If harm is insignificant or nonexistent, the maximum penalty may be lowered. An assessment of gravity of harm or environmental threat must take into consideration the following:
- Impacts - Did the violation actively or potentially impact the environment? If so, to what degree and with what consequence and for what duration? Did the radionuclides involved have a short half-life and no appreciable impacts on the environment and public health and safety that would require remediation efforts?
- Importance - What is the violation and its importance to the facility's overall environmental radiation protection program and compliance with Part 380?
- Extent - Is the violation an isolated incident or is it indicative of a programmatic breakdown? A programmatic breakdown exists where there is inadequate supervision and procedures to prevent a reoccurrence of the same incident.
- Violator's conduct - Consider the culpable mental state, recidivism, cooperative response, awareness of obligations. This consideration includes whether the circumstances surrounding the matter involve careless disregard of permit and regulatory requirements, deception, repetitive conduct, willingness or unwillingness to settle in lieu of litigation, and awareness of regulatory restrictions.
- Previous Violations - Is this a repeat violation? What is the Duration of the violation? Was this a one-time incident or the result of an ongoing violation that has occurred over a lengthy period of time during which the permitter should have been aware of the condition and corrected the condition but failed to do so? Consideration should also be given to whether the permitted failed to take the corrective action required for the previous violation.
Calculation of the gravity of harm resulting to the environment or the public health and safety as a consequence of the violation should be done in reference to the priority levels attributed to violations of permit requirements and 6 NYCRR Part 380. The Priority Levels I through IV are described in Section VII of this EGM.
- Economic Benefit
VII. Priority Levels For Violations of 6 NYCRR Part 380
In general terms, Priority Level I has been assigned to violations that are considered to be most significant, and Priority Level IV violations are the least significant. Priority Level I and II violations are of great regulatory concern. In general, violations that are included in these categories involve actual, or high potential for, impact on the public or the environment. Priority Level III violations are less serious but are of more than minor concern. They have the potential to result in significant impacts to the environment and the public health and safety. They include violations that may not be serious by themselves, but which if left uncorrected, could lead to a more serious concern. Priority Level IV violations are of minor safety or environmental concern, but should, nevertheless, be corrected and should not recur.
This section serves as guidance in determining the appropriate priority level for a violation. Examples are presented in Appendix A of this EGM. However, the examples are neither exhaustive nor controlling. DEC will review each case being considered for enforcement action on its own merits to ensure that the priority level of the violation is assigned at the level best Suited to the significance of the particular violation.
- Adjustments to Priority Levels
Any of the following factors may warrant an adjustment in the priority level assigned:
- Repetitive Violations
The priority level of a violation should be increased if the violation can be considered a repetitive violation.(4) The purpose of escalating the priority level of a repetitive violation is to acknowledge the added significance of the situation based on the regulated party's failure to implement effective corrective action for the previous violation. The decision to escalate the priority level of a repetitive violation will depend on the circumstances, such as (but not limited to) the number of times the violation has occurred, the similarity of the violations and their root causes, the adequacy of previous corrective actions, the period of time between violations, and the significance of the violations.
- Aggregation of Violations
A group of violations in Priority Levels III or IV may be evaluated in the aggregate and assigned a single, increased priority level of II or III, if the violations have the same underlying cause or programmatic deficiencies, or if the violations contributed to, or were the consequences of, an underlying problem.
The purpose of aggregating violations is twofold. First, it should focus the regulated party's attention on the fundamental underlying causes for which enforcement action appears warranted. Second, it reflects the fact that several violations with a common cause may be more significant collectively than individually and may, therefore, warrant a more substantial enforcement action. Assigning a group of Priority Level III violations to Priority Level II will automatically result in a referral to Counsel's office for enforcement action
- Willful Violations
Willful violations are, by definition, of particular concern to DEC because its regulatory program relies, in part, on regulated parties acting with integrity and communicating with candor. Therefore, the priority level of a violation should be-increased if the circumstances surrounding the matter involve careless disregard of requirements, deception, or other indications of willfulness. The term "willfulness" as used in this EGM embraces a spectrum of violations ranging from deliberate intent to violate or falsify to (and including) careless disregard for requirements. Willfulness does not include acts that do not rise to the level of careless disregard, such as inadvertent clerical errors in documents that a regulated party submitted to the Department.
In determining the specific priority level of a violation involving willfulness, consideration will be given to such factors as the position and responsibility of the person involved in the violation, the significance of any underlying violation, the intent of the violator (i.e., careless disregard or deliberateness), and the economic or other advantage, if any, gained as a result of the violations. The relative weight given to each of these factors in arriving at the appropriate priority level will depend on the circumstances of the violations. However, the priority of a willful Priority Level IV violation will be increased to at least a Priority Level III.
Willful violations cannot be tolerated by either the DEC or a regulated party. The regulated party is expected to take significant remedial action in response to willful violations. the action taken should be commensurate with the circumstances and should demonstrate to the employees the seriousness of the violations, thereby creating a deterrent effect within the regulated party's organization. While removal of the person is not necessarily required, substantial disciplinary action is expected. The Bureau of Radiation shall refer all willful violations to the Radiation Attorney.
- Failure to Obtain a Required Permit
While the failure to obtain the required permit is, by itself, a Priority Level II violation, the combination of this violation with any other Level II, III, or IV violation should increase the priority Level of the other violation or violations by at least one level. For example, if a party had no permit for a discharge that caused an exposure to a member of the public exceeding 2 mrem/hour (a Priority Level II violation), the latter violation would become a Priority Level I violation. If the same party also kept inaccurate or incomplete records of its discharges, that Priority Level III violation would become Priority Level II. In establishing Priority Levels involving lack of a permit, consideration should be given to the history of the Bureau of Radiation's interaction with the regulated party.
- Adjustment to Priority Levels for Violations of Reporting Requirements
The Department expects regulated parties to provide complete, accurate, and timely information and reports. Accordingly, unless otherwise categorized in Appendix A, the priority level of a violation involving the failure to make required report to the Department will be based upon the significance of and the circumstances surrounding the matter that should have been reported. However, the priority level of an untimely report, in contrast to no report at all, may be reduced depending on the circumstances surrounding the matter.
A regulated party will not normally be cited for a failure to report a condition or event unless the regulated party was actually aware of the condition or event that it failed to report. a regulated party will, on the other hand, normally be cited for a failure to report a condition or event if the party knew of the information to be reported, but did not recognize that it was required to make a report.
- Adjustments to Priority Levels for Inaccurate and Incomplete Information
A violation of the regulations involving submittals of incomplete or inaccurate information, whether or not considered a material false statement, can result in any of the full range of enforcement actions. The labeling of a communication failure as a material false statement will be made on a case-by-case basis and will be reserved for egregious violations. Violations involving Inaccurate or incomplete information normally will be categorized based on the guidance in Section VII.B.5 and Appendix A to this EGM.
The Department recognizes that oral information may in some situations be inherently less reliable than written submittals because of the absence of an opportunity for reflection and management review. However, the Department must be able to rely on oral communications from regulated parties' officials.(5) therefore, in determining whether to take enforcement action for an oral statement, consideration may be given to such factors as
- the degree of knowledge that the communicator should have had regarding the matter, in view of his or her position, training, and experience,
- the opportunity and time available prior to the communication to assure the accuracy or completeness of the information,
- the degree of intent or negligence, if any, involved,
- the formality of the communication,
- the reasonableness of the Department's reliance on the information,
- the importance of the information that was wrong or not provided, and
- the reasonableness of the explanation for not having provided complete and accurate information.
Absent at least careless disregard, an incomplete or inaccurate unsworn oral statement normally will not be subject to enforcement action unless it involves significant information provided by a regulated party's official. However, enforcement action may be taken for an unintentionally incomplete or inaccurate oral Statement provided to the Department by a regulated party's official (or others on behalf of the regulated party), if a record was made of the oral information and provided to the regulated party, thereby providing an opportunity to correct the oral information. For example, enforcement action may be taken if a transcript of the communication or a meeting summary containing the error was made available to the regulated party and the regulated party did not subsequently correct the error in a timely manner.
When a regulated party has corrected inaccurate or incomplete information, the decision to issue a Notice of Violation for the initial inaccurate or incomplete information normally will be dependent on the circumstances, including the ease of detection of the error, the timeliness of the correction, whether the Department or the regulated party identified the problem with communication, and whether the Department relied on the information prior to the correction. Generally, if the regulated party promptly identified and corrected the error before the Department relied upon it or Raised a question about the information, no enforcement action will be taken for the initial inaccurate or incomplete information.
- Adjustments of Priority Levels Due to Potential for Significant Impacts
The priority level of a violation shall be increased if the violation itself created a situation in which there was a substantial potential for either the unauthorized disposal of radioactive material or an exposure or a discharge in excess of Part 380 limits, whether or not such disposal, exposure, or discharge occurred.
- Repetitive Violations
Effective enforcement against violators of handling and discharging of radioactive waste is crucial to the overall Radiation Program. Firm, fair and efficient enforcement protects the health and well-being of our people and our environment.
New York State Department of Environmental Conservation
Michael D. Zagata
1. The term "regulated party" as used in this EGM refers to all parties subject to 6 NYCRR Part 380, whether or not the party is required to obtain a permit under Part 380.
2. "VISTA," the Visual Inspection System for Tracking and Analysis, replaced EEDS as of January 1, 2000.
3. Now known as the Division of Environmental Permits.
4. The term "repetitive violation" or "similar violation" as used in this EGM means a violation that reasonably could have been prevented by a regulated party's corrective action for a previous violation that had occurred (1) within the past two years of the inspection at issue, or (2) the period within the last two inspections, whichever is longer.
5. The term "regulated party's official" as used in this EGM means a first-line supervisor or above, a radiation safety officer, or an individual authorized to use licensed radioactive materials under the regulated party's radioactive materials license (whether or not that user is identified on the license).
Examples of Priority Levels for Violations of 6 NYCRR Part 380
Priority Level I
- Exposure to the Public
A discharge of radioactive material to the environment that results in an exposure to a member of the public in excess of 100 millirems (total effective dose equivalent, "TEDE") in one year [Section 380-5.l(a)(l)]
- Discharge of Radioactive Material to the Environment
An unauthorized discharge of radioactive material to the environment such that the concentration of radioactive material in an unrestricted area in the environment exceeds the concentration in Table II of Section 380-11.7 (Section 380-5.2)
- Disposal of Radioactive Material to Sanitary Sewer systems
Disposal of radioactive material to the sanitary sewer in excess of five times the limits in Section 380-4.2
- Disposal of Radioactive Material
Disposal of any of the following in a manner not authorized in Section 380-4.1:
- Class B or C Low-Level Radioactive Waste (LLRW)
- Class A LLRW or naturally-occurring or accelerator-produced radioactive material (NARM) waste that presents a realistic potential for exposures to the public in excess of the limits for doses to the public in Part 380
Note: This covers transferring such material to an unauthorized person, releasing the material to the environment, or using some disposal method or facility other than a Part 383 permitted facility without first getting the Department's approval under section 380-4.3
- Notices of Incidents and Accidental Discharges
Failure to make immediate notification as required by Section 380-9.2(a) -- a discharge with the potential for, or actually resulting in, a 24-hour concentration five times the annual limits on intake (all; see table I in Section 380-11.7) in an unrestricted area in the environment.
Inaccurate or incomplete information that is provided to the Department deliberately, with the knowledge of a regulated party's official that the information is incomplete or inaccurate.
Inaccurate or incomplete information that is provided to the Department where the information, had it been complete and accurate at the time provided, likely would have resulted in an enforcement action to stop operation (such as a summary abatement order or other action required to protect the environment or the public health and safety)
Incomplete or inaccurate information that the Department requires be kept by a regulated party and that is incomplete or inaccurate because of falsification by, or with the knowledge of, a regulated party's official.
Incomplete or inaccurate information that the Department requires be kept by a regulated party where the information, had it been complete and accurate when reviewed by the Department, likely would have resulted in an enforcement action to stop operation (such as a summary abatement order or other action required to protect the environment or the public health and safety).
Priority Level II
- Exposure to the Public
A discharge of radioactive material to the environment that results in a dose from external sources of radiation to a member of the public in excess of 2 millirems in any hour [Section 380-5.l(a)(2)]
- Discharge of Radioactive Material to the Environment
An unauthorized discharge of radioactive material to the environment at a concentration that exceeds the concentration in table II of Section 380-11.7 at the point of discharge.
- Disposal of Radioactive Material to Sanitary Sewer systems
Disposal of radioactive material to the sanitary sewer in excess of the limits in Section 380-4.2
Disposal of radioactive material to the sanitary sewer that is not readily soluble in water or biological material that is not readily dispersible in water [Section 380-4.2(a)(1)] where such disposal has the potential for a significant impact on the environment or the public health and safety.
- Disposal of Radioactive Material
Disposal of Class A LLRW or NARM waste not included in Priority Level I in a manner not authorized under Section 380-4.1
- Permitting Requirement
Failure to obtain a permit pursuant to Part 380 prior to commencing an activity that requires a Part 380 permit (Section 380-3.1)
- Permitting Requirements - Changes in Operations or Procedures
Failure to obtain a modification to the permit for changes in operation or procedures that require a permit modification where the change resulted in or contributed to a significant impact on the environment or public health and safety.
- Notices of Incidents and Accidental Discharges
Failure to make the 24-hour notification as required by Section 380-9.2(b) - a discharge with the potential for, or actually resulting in, a concentration of at least 1 ALI (when averaged over 24 hours) in an unrestricted area in the environment.
- Surveys and Evaluation of Discharges
Failure to make the surveys required by Section 380-6(a) where there is a Potential for discharges resulting in concentrations in an unrestricted area in the environment that exceed 20 percent of the Concentrations in Table II of Subpart 380-11.
Incomplete or inaccurate information that the Department requires be kept by a regulated party that is incomplete or inaccurate because of careless disregard for the accuracy of the information on the part of a regulated party's official.
Incomplete or inaccurate information that the Department requires be kept by a regulated party where the information, had it been complete and accurate when reviewed by the Department, likely would have resulted in an enforcement action initiated by counsel's Office.
Inaccurate or incomplete information that is provided to Department by a regulated party's official that is inaccurate or incomplete because of careless disregard for the completeness or accuracy of the information.
Inaccurate or incomplete information that is provided to the Department where the information, had it been complete and accurate At the time provided, likely would have resulted an enforcement action initiated by Counsel's Office.
- Multiple Violations
A breakdown in the implementation of the procedures approved in the permit involving a number of violations where those violations are related, or if isolated, are recurring, and that collectively represent a significant lack of attention to, or carelessness toward, permit responsibilities.
Priority Level III
Note: Priority Level III violations may indicate that higher priority level violations have occurred.
- Discharge of Radioactive Material to the environment
Discharge of radioactive material to the environment in excess of permit limits [Section 380-5.1(a)(3)] *
- Discharge of Radioactive Material to Sanitary Sewer systems
Disposal of radioactive material to the sanitary sewer that is not readily soluble in water or biological material that is not readily dispersible in water (Section 380-4.2(a)(1)) where such disposal has little or no potential for a significant impact on the environment or the public health and safety
- Permitting Requirements - Changes in Operations or Procedures
Failure to obtain a modification to the permit for changes in operation or procedure that require a permit modification where the change has the potential to cause a significant impact on the environment or public health and safety, but no such impact has yet occurred.
- Notices of Incidents and Accidental Discharges
Failure to make a 30-day report required by Section 380-9.3
Incomplete or inaccurate information that the Department requires be kept by a regulated party that is incomplete or inaccurate because of inadequate actions on the part of regulated party's officials but not amounting to a Priority Level I in or II violation.
Incomplete or inaccurate information that the Department requires be kept by a regulated party where the information, had it been complete and accurate when reviewed by the Department, likely would have resulted in a reconsideration of a regulatory position or substantial further inquiry such as an additional inspection or a formal request for information.
Incomplete or inaccurate information that is provided to the Department because of inadequate actions on the part of regulated party's officials but not amounting to a Priority Level I or II violation.
Incomplete or inaccurate information that is provided to the Department where the information, had it been complete and accurate at the time provided, likely would have resulted in a reconsideration of a regulatory position or substantial further inquiry such as an additional inspection or a formal request for information.
Failure to submit annual reports and periodic reports required in permit conditions after receiving written notice from the Bureau that the report is overdue; in this case, "Failure to Submit" means failure to submit by the due date set in the overdue notice.
- Surveys and Evaluations
Failure to make the surveys required by Section 380-6.1 where the potential concentration of radioactive material in a discharge is less than or equal to 20 percent of the effluent concentrations in Table II of Section 380-11.7
Failure to calibrate instruments as required by Section 380-6.2
Inadequate or incomplete surveys that are due to careless disregard of the requirements in Part 380.
Priority Level IV
Note: The Department may refrain from issuing a Notice of Violation for a Priority Level IV violation under certain circumstances. See Section 5.4 of this EGM.
- Permitting Requirements
Failure to produce a copy of the permit upon request by a department representative (Note: In assigning the priority level for this violation, Bureau staff should take into account the degree to which the permitter exhibits careless disregard of permit responsibilities and the potential for significant impacts. Either factor may warrant assigning a higher priority level. See sections 7.2.3 and 7.2.7 of the EGM).
- Permitting Requirements - Changes in Operations or procedures
Minor changes made in, or deviations from, the operations or procedures as referenced in the permit where those changes have~an insignificant effect or no effect on the following:
- the environment;
- the public health and safety;
- the regulated party's ability to meet the requirements of Part 380 and the other conditions of the permit; and
- the Department's ability to determine that the regulated party complies with Part 380 and the other conditions of the permit
Minor, inadvertent arithmetic or other errors in records that have only minor or no safety or environmental significance.
Minor, inadvertent arithmetic or other errors in reports that have only minor or no safety or environmental significance.
Failure to submit an annual discharge report on time. (Note: The priority level of this violation should be increased if the report is more than two weeks overdue.)
- Other Matters
Any other matter that has only minor or no safety or environmental significance.
* Section 380-5.1(a)(3) requires discharges to be maintained ALARA. The permit limits correspond to ALARA discharge.
Notice to be Given at Inspection
Facility Name ______________________________________________________
Part 380 Radiation Control Permit Number ________________________________
Effective Date _________________
Permit Expiration Date _________________
NYSDEC Inspector(s) _______________________________
Division of Hazardous Substances Regulation, Bureau of radiation
You are hereby notified that during my inspection on ________________________, your facility was found to be in violation of the following requirements of 6 NYCRR Part 380 and/or conditions of your permit. These violations may be subject to enforcement action and penalties as authorized by the Environmental Conservation Law. Continued operation in this manner may be subject to additional enforcement action for each day of operation.
This Notice is not necessarily inclusive of all of the violations which have been identified at your facility. This Notice will be followed by a Department letter formally reporting the results of this inspection. Failure to remedy the above-noted violations, prior to recommencement of operations, may subject the facility to further enforcement action by the Department for continuing violations of the regulations and/or the permit.
Signature of Inspector(s) _____________________________
I acknowledge receipt of this notice and have been provided with a copy.
Facility Representative(s) ______________________________
[Give copy to facility, keep original for file.]
Notice of Violation
DEC Region: ___________
DEC Permit Number _______-____________-________ / _________-__________
Program/Facility Number _________-_________
During an inspection on _____________ the following item(s) were found to be in violation of [6 NYCRR Part 380 (and) / conditions of radiation Control Permit Number ______-________]:
- Section 380 ________ / Condition _________ requires ...
Contrary to the above, it was observed that ...
according to records maintained by ...
This is a Priority Level ________ violation.
If Notice Given at Exit Interview:
Item(s) ______________ above was/were identified in the Notice given to ______________ at the close of the inspection on ________________.
For Repetitive Violations:
Item(s) __________ above was/were identified during a previous inspection of your facility and documented in a Department letter Dated _________. In response to [the Department's findings/ these events], _______________ submitted specific proposed corrective measures to the Department in a letter dated ____________. The proposed corrective measures were approved by the Department [in a letter/ and incorporated into the permit in a modification] dated ____________. However, based on this inspection, it appears that these corrective actions were not effectively implemented, and the violation(s) has/have recurred. Therefore, the priority level of this/these violation(s) has/have been increased.
For Priority I and II Violations and those Priority III that have been referred to Counsel's Office:
These violations may be subject to enforcement actions and penalties as authorized by the Environmental Conservation Law. [Continued operation in this manner may be subject to additional enforcement action for each day of operations.] This matter has been referred to the Department's Division of Environmental Enforcement for review.
For Priority Level IV Violations and those Priority III that are not referred to Counsel's Office:
If these violations recur or are not corrected, _______________________ may be subject to enforcement actions and penalties as authorized by the Environmental Conservation Law.
Notice of Enforcement Conference:
The New York State Department of Environmental Conservation will Hold an enforcement conference regarding these violations on ____________ at ____________ in room _______ at the Department's Offices at 50 Wolf Road, Albany, New York. Contact ____________ at 518-###-#### by ____________ to confirm that representatives of _________________ will attend.
For All Violations:
___________________ must submit to the Department a written statement or explanation in reply to this notice describing:
- the corrective actions that have been taken, and the results achieved;
- the corrective measures that will be taken to avoid further violations; and
- the estimated date when full compliance will be achieved.
Those actions taken or proposed to be taken must ensure that the identified violations will be completely corrected and will not recur. Your reply must be submitted in writing by ____________ to the address below:
Bureau of Radiation
Division of Hazardous Substances Regulation
NYS Department of Environmental Conservation
50 Wolf Road, Room 442
Albany, New York 12233-7255