RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 218]
Fees
[31 Pa.B. 6280] The Environmental Quality Board (Board) by this order amends Chapter 218 (relating to fees) to adjust existing fees for registration of X-ray machines for inflation since last revised; to establish fees for accelerator licensing; and to establish fees for radioactive material licenses now administered by the Nuclear Regulatory Commission (NRC) that will be transferred to the Department of Environmental Protection (Department) when the Commonwealth attains agreement state status from the NRC.
This order was adopted by the Board at its meeting of September 18, 2001.
A. Effective Date
These amendments are effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information, the contact persons are L. Ray Urciuolo, Chief, Licensing Section, Radiation Control Division, Bureau of Radiation Protection, 13th Floor, Rachel Carson State Office Building, P. O. Box 8469, Harrisburg, PA 17105-8469, (717) 787-3720; and Marylou Barton, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 9th Floor, 400 Market Street, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department's website (http://www.dep.state.pa.us).
C. Statutory Authority
This final-form rulemaking is being made under the authority of sections 301 and 302 of the Radiation Protection Act (act) (35 P. S. §§ 7110.301 and 7110.302), which, respectively, direct the Department to develop and conduct comprehensive programs for the registration, licensing, control, management, regulation and inspection of radiation sources and radiation source users, and delegate to the Board the power to adopt the regulations of the Department to implement the act.
Section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) authorizes and directs the Board to adopt regulations necessary for the proper performance of the work of the Department.
D. Background and Summary
The act requires the Department to establish fees in amounts at least sufficient to cover the costs of the radiation protection program mandated by that act. The present fees were established in 1992 and have not been revised since that time, despite a substantial increase in inspector salaries and equipment costs. In the last fiscal year, receipts from registrations and licenses fell short of the costs to operate the program. Further, in 1998, Chapter 228 (relating to radiation safety requirements for particle accelerators) was amended to provide that accelerators be licensed, with review of the proposed installation, use and radiation safety program, rather than simply being registered like X-ray machines. In addition to the costs of license application review, experience in recent years has demonstrated that the cost to the Department of inspections and enforcement for accelerators is greater than for X-ray installations. Finally, before the Commonwealth can acquire the authority and responsibility for the radioactive materials licenses in this Commonwealth that are now administered by the NRC, the Department will have a fee structure in place to fund the effort. It is particularly important that the authority be established for ''full cost'' recovery for certain types of licenses, notably low-level radioactive waste and decommissioning licenses, where there is no reasonable way of establishing fixed fees.
Therefore, Chapter 218 is being amended for the purposes of:
(1) Increasing annual fees for registration of X-ray machines and for licenses to possess and use naturally occurring and accelerator-produced radioactive material (NARM) by an overall average of 40%, an amount sufficient to ensure income adequate to fund those programs.
(2) Establishing fees for licensing of particle accelerators.
(3) Establishing annual fees for radioactive material licenses located in this Commonwealth and now administered by the NRC. These fees will not be effective until the Commonwealth is granted agreement state authority by the NRC under section 274 of the Atomic Energy Act of 1954 (42 U.S.C.A. § 2021).
As required by section 301(c)(14) of the act, the Department provided the Radiation Protection Advisory Committee (Committee) with an opportunity to review the final amendments and to advise the Department prior to submittal to the Board. On May 17, 2001, the Committee met and reviewed the draft final rulemaking. The chairperson announced by letter dated May 17, 2001, the Committee's concurrence to send the final-form rulemaking to the Board.
E. Summary of Regulatory Requirements
A description of the amendments is provided as follows.
General
§ 218.1. Purpose and scope.
A new subsection (b)(3) is added to include holders of and applicants for accelerator licenses to the list of persons subject to this chapter.
Payment of Fees
§ 218.11. Registration, renewal of registration and license fees.
Subsection (a) is rewritten to remove accelerators from the category of radiation-producing machines and to revise the fee structure for X-ray machines. The existing fee structure contains a registration fee that includes the first tube, and a fee of $25 for each additional tube. Fees will now consist of the sum of an annual administrative fee for each registrant plus a $35 fee for each tube possessed. The fees are presented in a table. Overall, fees are increased by an average of 40% to compensate for increased staff salaries since 1992 when they were established.
Subsection (c) is revised to provide for fees for the NRC licenses that will be transferred to the Commonwealth upon achievement of agreement state status. Because there are many types of licenses recognized by the NRC for which the Commonwealth does not have separate categories, the fees are tabulated in a new Appendix A. The lead sentence is revised by deleting ''this subsection'' and adding ''Appendix A.'' Existing paragraph (1) and subparagraphs (i)--(iii) have been deleted. A new paragraph (1) is added to specify that no refunds will be made if a license is terminated. New paragraph (2) provides for changes in license category to take place on the anniversary date of the license. Existing paragraph (2), pertaining to exceptions, is deleted as it is no longer needed.
Existing subsections (d)--(f) are renumbered as (e)--(g), respectively, and a new subsection (d) is added to institute license fees for several classes of accelerators. These fees are proportional to the complexity and potential for radiation safety problems of the accelerators.
Language was added to renumbered subsection (e) to include reciprocity as a license category requiring advance payment of fees, to include the fees instituted in new subsection (d), and to recognize the various fee schedules in revised Chapter 218.
Language was also added to renumbered subsection (f) to recognize the new fee schedules. Other than renumbering, no change was made to subsection (g).
§ 218.12. Failure by registrant or licensee to pay required fee.
Subsection (b) was revised to provide that failure to pay X-ray registration fees shall be cause for revocation of the registration. The subsection already provides for revocation of licenses for nonpayment of fees.
Appendix A
Appendix A is new and both replaces former language of § 218.11(c), which specified fees for NARM licenses, and establishes fees for licenses that will be transferred to the Commonwealth when regulatory authority for most types of radioactive material is transferred from the NRC.
F. Summary of Comments and Responses on the Proposed Rulemaking
The notice of proposed rulemaking was published at 31 Pa.B. 943 (February 17, 2001) and included a 30-day comment period that ended on March 19, 2001. The Board received no comments from the public, the Independent Regulatory Review Commission (IRRC) or the legislative committees concerning the proposed rulemaking. Therefore, no Comment/Response document was prepared.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form rulemaking.
Benefits
Receipt of fees necessary to cover the costs of the radiation protection program will preserve the current program for the benefit of the people of this Commonwealth. Holders of radioactive materials licenses will benefit from simplification of compliance costs associated with the present dual regulation and by generally reduced fees as noted as follows.
Compliance Costs
The compliance costs under the proposed amendments will vary with the type of license or registration held, or both. X-ray registrants and NARM licensees will incur a fee increase on average of about 40%. License fees for former NRC radioactive materials licenses will decrease by about 30% from FY 2000 NRC fees, and somewhat more if they also hold a NARM license, which will be combined with the NRC license at the fee for the NRC license. These holders of both types of radioactive materials (RAM) licenses will also experience substantial savings by no longer being required to follow two sets of regulations and be inspected by two regulators.
Holders of accelerator registrations being converted to licenses will incur a significant increase in fees, the exact amount of which will be determined by the type and number of machines that they possess. The Board instituted the change to licensing because of the complexity and potential hazards associated with accelerator use. License review, facility inspection and enforcement activities require considerably more time than regulation of X-ray machines, and the proposed fees reflect that fact.
Compliance Assistance Plan
Compliance assistance requirements are expected to be negligible because, other than changes in the amount of fees and, for former NRC licensees, to whom they are paid, and the elimination of one set of inspectors, no changes in operating requirements are involved. Outreach and assistance will be provided by regional inspectors and technical staff in the Radiation Control Division.
Paperwork Requirements
No additional paperwork will be required under these amendments. Once agreement state authority is approved, which is anticipated in 2002, and the NRC licenses are converted to State licenses, over a period of a year, licensees will have significantly less paperwork.
H. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 6, 2001, the Department submitted a copy of the notice of proposed rulemaking, published at 31 Pa.B. 943, to IRRC and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment. There were no comments received from the public, IRRC or the Committees on the proposed rulemaking.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. 745.5a(d)), on October 11, 2001, these final-form regulations were deemed approved by the House and Senate Committees. The regulations were deemed approved under section 5(g) of the Regulatory Review Act by IRRC, effective October 12, 2001.
J. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and no comments were received.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 31 Pa.B. 943.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 218, are amended by amending §§ 218.1, 218.11 and 218.12; and by adding Appendix A to read as set forth at 31 Pa.B. 943.
(b) The Chairperson of the Board shall submit this order and 31 Pa.B. 943 to the Office of General Counsel and the Office of the Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and 31 Pa.B. 943 to IRRC and the Senate and House Environmental Resource and Energy Committees as required by law.
(d) The Chairperson of the Board shall certify this order and 31 Pa.B. 943 and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
DAVID E. HESS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 6120 (November 3, 2001).)
Fiscal Note: Fiscal Note 7-363 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 01-2051. Filed for public inspection November 16, 2001, 9:00 a.m.]
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