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Oregon Bulletin

March 1, 2013

Department of Energy, Energy Facility Siting Council, Chapter 345

Rule Caption: Establish rules for reporting requirements for shipments containing radioactive materials and clarify civil penalties.

Adm. Order No.: EFSC 1-2013

Filed with Sec. of State: 1-28-2013

Certified to be Effective: 1-28-13

Notice Publication Date: 12-1-2012

Rules Amended: 345-029-0060, 345-060-0004, 345-060-0007, 345-060-0025

Subject: The proposed rules for the transport of radioactive materials describe the “Oregon Radioactive Materials Shipment Report” form requirements for carriers, and clarify civil penalties for failure to comply with Oregon rules. The reporting requirements described in the proposed rule are consistent with a long-standing process for carriers to report their shipping activity in Oregon. The rules also include housekeeping amendments to correct grammar.

 A public hearing was held on January 10, 2013 at 9:00 a.m. and an opportunity to provide oral comment was provided at the Energy Facility Siting Council’s January 25, 2013 meeting.

Rules Coordinator: Kathy Stuttaford—(503) 373-2127

345-029-0060

Civil Penalties

(1) Following the responsible party’s response to the notice of violation described under OAR 345-029-0040, and any enforcement conference, the Department of Energy may assess a civil penalty for a Class II violation. The Department shall determine the amount of the civil penalty, if any, as follows:

(a) Base amount:

(A) $1000 per day from the date of discovery for a violation of site certificate terms or conditions or violation of a Department of Energy order as described in OAR 345-027-0230, or $2000 per day from the date of discovery for such violation if the Department finds that substantially the same violation occurred within the preceding 36 months; or

(B) $100 per day from the date of discovery of a violation of the rules of division 50 of this Chapter; or

(C) $250 for the first violation, and $500 for each violation afterwards during a calendar year for failure to provide specific shipment information for a shipment traveling under an Oregon Radioactive Material Transport Permit as outlined in division 60 of this Chapter. This information must be provided either by filling out a form at an Oregon Port-of-Entry or electronically within 48 hours after entering the state by using a form provided on the ODOT website; or

(D) $2000 per day from the date of discovery for a violation of an enforcement order of the Council, or $5000 per day from the date of discovery for such violation if the Department finds that substantially the same violation occurred within the preceding 36 months;

(b) The Department may multiply the base amount by a factor of:

(A) 3.0 if the Department finds the violation was intentional or reckless; or

(B) 5.0 if the Department finds the violation was intentional or reckless and the violation involved a requirement relating to public health, safety or the environment;

(c) The Department may multiply the base amount by either or both of the following factors:

(A) 0.75 if the responsible party corrected the violation within the time required to respond to the notice of violation and the responsible party has submitted a plan adequate to minimize the possibility of recurrence; and

(B) 0.8 if the responsible party reported the conditions or circumstances of the violation as a result of a routine audit conducted as part of an ongoing comprehensive compliance audit program; and

(d) The Department shall not reduce the base amount under subsection (c) above if the Department determines an increase in the base amount is warranted under subsection (b).

(2) In a notice of assessment of the civil penalty, the Department shall include:

(a) An analysis of the violation(s) in light of the criteria described in section (1);

(b) The amount of the assessment;

(c) A proposed order assessing the civil penalty; and

(d) A statement of the responsible party’s right to a contested case proceeding as provided for in OAR 345-029-0070.

(3) The Department shall serve the notice of assessment of civil penalty by personal service and by certified or registered mail.

Stat. Auth.: ORS 469.470
Stats. Implemented: ORS 469.085 & 469.992
Hist.: EFSC 5-1994, f. & cert. ef. 11-30-94; EFSC 1-1995, f. & cert. ef. 5-15-95; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2000, f. & cert. ef. 2-2-00; EFSC 1-2007, f. & cert. ef. 5-15-07; EFSC 1-2013, f. & cert. ef. 1-28-13

345-060-0004

Permits

(1) Persons must obtain an “Oregon Radioactive Material Transport” (RAM) permit from the Oregon Department of Transportation (ODOT) Motor Carrier Transportation Division (MCTD) prior to transport in the State of Oregon of radioactive material that requires a placard on the vehicle according to 49 CFR 172(f) in effect as of the date of this rule.

(2) A carrier shall submit a permit application annually to ODOT MCTD, 550 Capitol Street NE, Salem, Oregon 97301. A carrier applying for the first time shall submit the application at least 30 days prior to transporting any materials specified in section (1).

(3) ODOT may issue a permit on an emergency basis by telephone when the carrier cannot comply with the 30 day requirement of section (2) as a result of conditions beyond the carrier’s control. A carrier acquiring a permit under this section shall provide the information contained in subsections (4)(a) through (d) and (f) of this rule and the name of its insurance company, policy number, minimum levels of coverage and date of policy expiration or verification of self insurance.

(4) In the permit application, the carrier shall include:

(a) The name and address of the carrier;

(b) The telephone numbers of the carrier that will be answered at any time for emergencies and a statement that the carrier has a 24-hour telephone number for contacting all shippers;

(c) A description of the material to be transported, number of shipments and estimated radioactivity per shipment. Precise information is not necessary if unavailable;

(d) A description of the route or routes to be taken and approximate schedule. Precise information is not necessary if unavailable;

(e) A description of any violations by the applicant of any local, state or federal regulations within the past two years related to radioactive material transportation. The carrier may satisfy this requirement by submitting copies of the most recent federal or state motor carrier safety or hazardous material audit and inspection reports that include descriptions of those violations, if any;

(f) ODOT Operating Authority Identification Number, U.S. Department of Transportation Number, and U.S. Environmental Protection Agency Identification Number, when appropriate; and

(g) Proof of insurance including minimum levels of coverage and policy expiration date or verification of self insurance.

(5) ODOT shall issue a regular permit if the applicant’s record of violations of federal and state motor carrier safety and hazardous material requirements indicate that its practices have not and will not create an undue risk to public health, safety, or the environment.

(6) ODOT shall issue a conditional permit, which requires pre trip notification to arrange for inspection, to any carrier who has a “conditional” safety fitness rating pursuant to the authority of Title 49 CFR 385.1 in effect as of the date of this rule.

(7) ODOT shall not issue an Oregon Radioactive Material Transport permit if the carrier has an “unsatisfactory” safety fitness rating pursuant to the authority of Title 49 CFR 385.1 in effect as of the date of this rule.

(8) For all shipments requiring an Oregon Radioactive Material Transport Permit, the carrier shall have a copy of the permit in the vehicle during shipment.

(9) Any person who has been denied a permit under this rule may submit to the Department of Energy a written request for a contested case proceeding. In the request, the person shall describe the issues to be contested, state the facts believed to be at issue, and include the person’s mailing address. The Council shall conduct the proceeding under the provisions of OAR 345-015-0012 to 345-015-0085. After the hearing in the contested case proceeding, the Council, in its final order, shall grant or deny the permit.

(10) Once issued, permits remain valid for one year from the date of issuance unless revoked or suspended under section (11).

(11) ODOT or the Department of Energy may revoke or suspend permits for failure to comply with the conditions named on the permit or violations of the motor carrier safety requirements or hazardous or radioactive materials requirements.

(12) For reinstatement of a permit revoked or suspended under section (11) of this rule, the carrier shall submit a new application and evidence that the carrier has taken remedial actions to prevent recurrence of the violation(s).

(13) Upon entering the State of Oregon with a shipment made under this permit, the driver must either stop at the nearest Oregon Port of Entry and provide specific shipment information in writing by filling out an “Oregon Radioactive Materials Shipment Report” form or provide the same information in electronic format as described below. The Shipment Report is available at all Oregon Ports-of-Entry at all times, open or closed. Information to be provided includes name of carrier; name of shipper; vehicle license plate number; driver’s name; RAM permit number; commodity description and UN identification number; whether the shipment is Highway Route Control; shipment origin; and shipment destination. Carriers who elect to submit the information electronically in lieu of stopping at an Oregon Port-of-Entry, must submit the form provided on the ODOT website within 48 hours of entering the state.

(14) Failure to fill out an “Oregon Radioactive Materials Shipment Report” or omitting required information may subject the carrier to civil penalties as described in Division 29 of this chapter.

(15) With prior approval of the Department, carriers that do not pass through an Oregon Port of Entry must self-report each individual shipment on a monthly basis, directly to the Department.

Stat. Auth.: ORS 469.470 & 469.607
Stats. Implemented: ORS 469.603, 469.605, 469.607 & 469.615
Hist.: EFSC 3-1982, f. & ef. 3-8-82; EFSC 2-1983(Temp), f. 6-22-83, ef. 7-1-83; EFSC 3-1983, f. & ef. 11-4-83; EFSC 5-1986, f. & ef. 9-5-86; EFSC 1-1991, f. & cert. ef. 3-12-91, Prior sections (5)-(10) renumbered to 345-060-0006(1)-(5); EFSC 1-1995, f. & cert. ef. 5-15-95; EFSC 3-1995, f. & cert. ef. 11-16-95; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2007, f. & cert. ef. 5-15-07; EFSC 1-2013, f. & cert. ef. 1-28-13

345-060-0007

Inspections

The State of Oregon or its agents may inspect shipments under these rules for compliance with applicable rules and regulations. The State shall inspect all irradiated reactor fuel (defined in 10 CFR 73.37 in effect as of the date of this rule) and Highway Route Controlled Quantity shipments (defined in 49 CFR 173.403 in effect as of the date of this rule). The state may choose to waive inspection if the shipment is carrying a current Commercial Vehicle Safety Alliance inspection sticker. The state may inspect samplings of other shipments. The State may inspect highway shipments made under conditional permits described in OAR 345 060 0004(6). The State shall make arrangements for inspection when the carrier gives notice for inspection, as described in 345 060 0005.

Stat. Auth.: ORS 469.470, 469.605 & 469.607
Stats. Implemented: ORS 469.603 - 469.615
Hist.: NTEC 7, f. 2-20-74, ef. 3-11-74; EFSC 3-1982, f. & ef. 3-8-82; EFSC 2-1983(Temp), f. 6-22-83, ef. 7-1-83; EFSC 5-1986, f. & ef. 9-5-86; EFSC 1-1991, f. & cert. ef. 3-12-91; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2007, f. & cert. ef. 5-15-07; EFSC 1-2013, f. & cert. ef. 1-28-13

345-060-0025

Packaging, Placarding, Labeling and Documentation

The shipper shall maintain all packaging, placarding, labeling, shipment documentation and all other aspects of transporting any radioactive material in accordance with 10 CFR 71 and 73, and 49 CFR 171 through 179 in effect as of the date of this rule.

Stat. Auth.: ORS 469.470 & 469.607
Stats. Implemented: ORS 469.607
Hist.: EFSC 3-1982, f. & ef. 3-8-82; EFSC 2-1983(Temp), f. 6-22-83, ef. 7-1-83; EFSC 5-1986, f. & ef. 9-5-86; EFSC 1-1991, f. & cert. ef. 3-12-91; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2013, f. & cert. ef. 1-28-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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