(1) Definitions. For purposes of this rule:
(a) "Byproduct material" has the same meaning
as defined in
42
U.S.C. Section 2014(e) (2);
(b) "License" means a radioactive
materials license for a uranium mill or disposal of byproduct material,
including any ground water discharge permit incorporated in a license; and
(c) "Question and answer hearing"
means the informal hearing described in paragraphs (3) through (5) held for the
purpose of responding to questions from the public.
(2) Scope. This rule R313-17-4 applies only
to licensing activities that meet both of the following criteria:
(a) they are licensing activities described
in
R313-17-2(a)(i)(A)
through (I); and
(b) they are for licenses or license
amendments for uranium mills and disposal of byproduct materials.
(3) Opportunity for Question and
Answer Hearing Prior to Director's Decision.
(a) For licensing actions that are subject to
the scope of this rule, the division may, at its discretion, schedule a
question and answer hearing at the time it proposes the action.
(b) If the division does not choose to
schedule a question and answer hearing at the time it proposes a licensing
action, it shall provide notice to the public of an opportunity to request a
question and answer hearing, and it shall schedule and hold a hearing if there
is a request from a member of the public.
(c) Notice of a hearing or an opportunity to
request a hearing under this rule shall be made as provided in
R313-17-3(5).
Members of the public shall be given at least ten days to request a hearing.
(d) The division may combine the
question and answer hearing with a licensing hearing held for the purpose of
taking public comment on a proposed licensing action.
(4) Procedures Prior to Question and Answer
Hearing.
(a) The division shall provide a
notice of the question and answer hearing at least 30 days before the hearing.
The notice shall also summarize the applicable procedures, including the
obligation to provide questions in advance of the hearing.
(b) Any person who proposes to ask questions
during the question and answer hearing shall submit the questions to the
division. Questions must be received by the division by the deadline specified
in the public notice, which shall be no fewer than 15 days after the notice of
the question and answer hearing is posted. If a question relies on information
that is not included in the licensing record, that information shall be
submitted with the questions. The relevance of and the relevant portions of any
supporting materials shall be described with reasonable specificity.
Information submitted in accordance with this paragraph will become part of the
record.
(c) If the Director
determines that any of the questions submitted will not be answered during the
question and answer hearing, as provided in paragraph (5)(f), the Director
shall notify the person who submitted the questions prior to the hearing.
Notification shall include a statement about the Director's reasons for the
determination.
(5)
Procedures for Question and Answer Hearing.
(a) The question and answer hearing shall
ordinarily be held in the Department of Environmental Quality offices. Unless
the question and answer hearing is held in a place near the proposed facility,
the division shall provide an opportunity for the public to participate by
telephone or other electronic means.
(b) The question and answer hearing will not
ordinarily be scheduled for longer than three hours. The division may allocate
time to those who have submitted questions after considering the number and
nature of the questions submitted.
(c) A hearing officer who is not the director
or a member of the director's staff shall manage the question and answer
hearing. Representatives of the licensee and division staff shall attend the
hearing.
(d) The question and
answer hearing shall be recorded and transcribed. Alternatively, the division
may elect to have a court reporter record and transcribe the hearing.
(e) The Director shall determine
whether the initial and follow-up question will be answered by the applicant,
by division staff, or by both. Notwithstanding the Director's decision, the
applicant may choose to respond to any question. After the response to a
question, the person who submitted the question shall be allowed to follow up
with additional questions based on the response provided.
(f) Appropriate questions are those that seek
specific factual information about the license application, or about other
documents created during the licensing process. The following kinds of
questions do not require a response during a question and answer hearing:
(i) Questions that are not relevant to the
licensing action;
(ii) Questions
that are based on information that is not in the record;
(iii) Questions that are vague;
(iv) Questions that require speculation;
(v) Questions that seek legal
conclusions;
(vi) Questions that
have been previously answered;
(vii) Questions that are more appropriately
characterized as comments; and
(viii) Questions that would not have to be
answered during a trial-type hearing.
(g) Either the agency or the applicant may
elect to answer a question even if it is a question that does not require a
response under paragraph (f). No waiver will result from answering a question
that does not require a response.
(h) Questions requesting information that is
clear in the record may be answered by referring the questioner to the record.
(i) In the event that a questioner
or the applicant disagrees with the Director's determinations under paragraphs
(4)(c), (5)(b), or (5)(e), it may request a determination by the hearing
officer. If the hearing officer disagrees with the Director's determination,
the division or, as appropriate, the applicant may then:
(i) comply with the hearing officer's
determination during the question and answer hearing;
(ii) comply with the hearing officer's
determination by responding to the question in writing no fewer than 10 days
before the end of the comment period; or
(iii) notify the questioner or applicant that
it contests the determination, and provide information to the questioner about
the procedures available to it under paragraph (5)(j).
(j) If a decision of the hearing officer is
contested as described in paragraph (5)(i)(iii), the person who asked the
question may challenge that failure to comply with the hearing officer's
decision on appeal. If the hearing officer's determination is upheld on appeal,
the record on appeal shall be supplemented as described in paragraph (6) and
R305-7-607.
(6) Formal Questioning
During Appeal.
If no opportunity for a question and answer hearing is
provided, or if an opportunity that was provided is found by the ALJ to have
been deficient, an opportunity for questions and answers shall be provided on
appeal as described in
R305-7-607.
This opportunity for questions and answers on appeal shall be available only to
a petitioner who has exhausted procedures and remedies available under
paragraphs R313-17-4(1) through R313-17-4(5). The scope of questions and
answers on appeal shall be limited by the scope of the deficiency.