DSHW-2024-004717

February21, 2024
Jason Short
Operations Leader
Barnes Aerospace
1025 Depot Dr.
Ogden, UT 84404
RE:Division of Waste Management and Radiation ControlAccess to Barnes AerospaceUTR000010025
Dear Mr. Short:
On January 8, 2024, and February 9, 2024, Sally Kaiser and Erika Greenwell, representatives of the Director of the Division of Waste Management and Radiation Control (Division),visited
the Barnes Aerospace Facility (the Facility) to perform a compliance inspection.On both occasions, the Director’s representatives requested access to the Facility at a reasonable time
and upon presenting appropriate credentials. Despite this, the Director’s representatives were refused access to the Facility unless they provided personal information, including proof
of citizenship, to employees of Barnes Aerospace. For the following reasons, Barnes Aerospace does not have the legal authority to refuse access to the Director’s representatives.
The Director’s representatives have authority to inspect the Facility under Utah Code § 19-6-109(1), which provides:
A duly authorized officer, employee, or representative of the Director may at any reasonable time and upon presentation of appropriate credentials, enter upon and inspect any property,
premise, or place on or at which solid or hazardous wastes are generated, transported, stored, treated, or disposed of, and have access to and the right to copy any records relating
to wastes, for the purpose of ascertaining compliance with this part and the rules of the board.
The Director is aware of Barnes Aerospace’s obligations under the International Traffic in Arms Regulations (ITAR), including the Arms Export Control Act, 22 U.S.C. § 2751 et seq., and
associated regulations under 22 C.F.R. § 120 et seq. Compliance with ITAR is intended to prevent the export of defense articles through the release of technical data to an individual
who is not a U.S. person. Under 22 C.F.R. § 120.62, a U.S. person is a lawful permanent resident, a protected individual, or any state entity.
The Director’s representatives are U.S. persons under ITAR. The Division is a subdivision of the Utah Department of Environmental Quality (DEQ), a state entity, and thus a U.S. person.
Moreover, the Director only hires individuals who may be lawfully employed in Utah and in the United States. The individuals that the Director hires, whether they are lawful permanent
residents or protected individuals, are duly authorized officers, employees, and representatives of the Director. Accordingly, the Director’s representatives are U.S. persons.
As U.S. persons, the Director’s representatives may request entry to the Facility at any “reasonable time upon presentation of appropriate credentials.” Utah Code § 19-6-109(1). “Reasonable
time”is interpreted by the Director to mean any time the regulated entity is conducting regulated activities at the Facility. In practical terms, this means that if the regulated entity
is operating, the Director’s representatives may request entry.The Director’s representatives must present “appropriate credentials.” DEQprovides an identification card to each of its
employees, which includes a photograph of the employee, the employee’s name, and a statement that the employee is a representative of DEQ. This identification card constitutes “appropriate
credentials.”
Absent superseding legal authority, Barnes Aerospacelacks the authority to refuse access tothe Director’s representatives when they request entry to the Facility at any reasonable time
and upon presentation of their DEQ identification card. If Barnes Aerospace believes there is superseding legal authority for Barnes Aerospace to require the Director’s representatives
to provide additional documentation, such as proof of citizenship, please provide citation to that authority.The Division welcomes the opportunity to accommodate those requirements while
allowing the Director’s representatives to conduct their waste management regulatory duties.
If you have any questions, please call Sally Kaiser at [phone] or have your attorney call Raymond Wixom, Assistant Attorney General, at [phone].
Sincerely,
Douglas J. Hansen,Director
Division of Waste Management and Radiation Control
DJH/SHK/wa
c:Brian Hatch, Health Officer, Davis County Health Department
David W. Spence, Deputy Director, Davis County Health Department
Jay Clark, Environmental Health Director, Davis County Health DepartmentKyle Nebeker, Operations Manager, Barnes Aerospace,([e-mail])
Megan Gardner, HSE Manager, Barnes Aerospace, ([e-mail])
Jason Short, Operations Leader, Barnes Aerospace, ([e-mail])
Jessica McCormack, Assistant General Counsel,Barnes Aerospace, ([e-mail])John Andrews, Counsel, Barnes Aerospace, ([e-mail])
Stevie Norcross, PhD, Assistant Director, Division of Waste Management and RadiationControl
Erika Greenwell, Environmental Scientist, Division of Waste Management and Radiation Control
Raymond Wixom, Assistant Attorney General, Utah Attorney General’s Office