BILL ANALYSIS
SB 13
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
2003-2004 Regular Session
BILL NO: SB 13
AUTHOR: Romero
AMENDED: As Amended April 3, 2003
FISCAL: Yes HEARING DATE: April 7, 2003
URGENCY: No CONSULTANT: Kip Lipper
SUBJECT : RADIATION SAFETY ACT OF 2003
SUMMARY :
Existing law:
1) Under the federal Atomic Energy Act of 1954 and the
Low-level Radioactive Waste Policy Act (42 U.S.C.A. Section
2014-2114), generally vests the Nuclear Regulatory
Commission (NRC) with the authority to regulate radioactive
materials and wastes, and provides that the NRC may
delegate authority over low-level radioactive materials and
wastes (essentially all radioactive wastes other than spent
nuclear fuel rods and the like) to "agreement states" such
as California.
2) Under Chapter 6.5 (commencing with Section 25100) of the
Health and Safety Code requires the Department of Toxic
Substance Control (DTSC) to establish standards and
regulations for the management of hazardous wastes to
protect against the hazards to public health, domestic
livestock, wildlife and the environment.
3) Under Chapter 8 (Commencing with Section 114960) of the
Health and Safety Code, requires the Department of Health
Services (DHS) to regulate the handling and use of ionizing
radiation (essentially all radioactive wastes other than
high-level wastes which are regulated by the NRC) for the
protection of public health and safety.
4) Under the California Integrated Waste Management Act
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(Division 30 commencing with Section 40000) of the Public
Resources Code, provides that the Integrated Waste
Management Board shall have no jurisdiction over facilities
that accept both hazardous wastes and radioactive waste and
that such facilities shall be regulated by DTSC and DHS
pursuant to the statutes referenced above.
This bill :
1)Makes extensive findings and declarations relative to the
state's recent actions relative to radioactive materials.
2) Notwithstanding any other provision of law, prohibits the
disposal of radioactive waste at a hazardous waste disposal
facility.
3)Authorizes DTSC, in consultation with the CIWMB, and DHS, to
adopt regulations establishing the permit conditions
implementing the disposal prohibition described in (2)
above, specifies several types of conditions it may adopt,
and specifies that if it adopts regulations governing
restrictions or limits on technologically enhanced naturally
occurring radioactive materials (TENORM) as defined
elsewhere in the bill's provisions, requires the department
to ensure that such materials are disposed at a facility
licensed to accept radioactive waste.
4)Enacts the Radiation Safety Act of 2002 which does all of
the following:
a) Notwithstanding any other provision of law, prohibits
the disposal, transport for disposal, or transfer for
possession, recycling, or reuse of radioactive waste in
the state except to a person or a facility licensed by
DHS or the federal Nuclear Regulatory Commission (NRC)
to dispose of that particular type and amount of
radioactive waste.
b) Exempts from the prohibition in (a) specified types
of radioactive materials, including: short-lived
radioactive materials commonly used in medicine,
biotechnology, and academia that managed according to
standards in the bill; liquid and gaseous radioactive
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effluents and releases to sanitary sewers in the types
amounts and concentrations permitted by the NRC or DHS;
scintillation liquids from research and animal tissues
containing tritium and carbon 14 specified in federal
regulation; specified radioactive materials used in
radioisotope generators for medical purposes;
radioactive materials intentionally inserted into
products for their radioactive purpose and exempted from
specified NRC regulation; the reuse or recycling of
radioactive materials by persons licensed to do so
provided it remains onsite and under the regulatory
control of its onsite use; the reuse or recycling of a
radioactive item by an unlicensed federal entity to the
extent the item remains on the property of the entity
and under its control; and the handling and disposal of
TENORM provided it does not also contain radioactive
waste and it is below any limits established by DTSC.
c) With regard to enforcing the provisions referenced
above, establishes a rebuttable presumption that the
material that is subject of the enforcement action is
contaminated and that the burden of showing that the
material is not contaminated is borne by the producer or
generator of the waste.
d) Defines terms used in the act, including
"background," "naturally occurring radioactive material
(NORM)," "radioactive waste," and "radioactive
materials."
4) Notwithstanding any other provision of law, prohibits the
disposal of radioactive waste at a solid waste facility.
5) Prohibits a waste producer or generator from submitting
TENORM generated by petroleum and natural gas production
and refining, geothermal production, or mining for disposal
to a class three waste management unit, any other unit
that receives significant amounts of solid waste, or
unclassified units that accept inert wastes, and authorizes
the CIWMB, in consultation with the DTSC, the State Water
Resources Control Board (SWRCB), and DHS, to adopt
regulations governing the disposal of wastes containing
TENORM.
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6) Authorizes any TENORM waste that is not hazardous waste to
be disposed of at a class two waste management unit that
meets certain conditions, authorizes the SWRCB to adopt
regulations establishing requirements to implement this
authorization, specifies criteria for those regulations,
and specifies that any TENORM above limits set by the board
must be disposed at a facility specifically licensed to
accept that type and quantity of waste.
7) Authorizes local solid waste enforcement agencies (LEA's)
to restrict disposal of waste containing TENORM and
radioactive waste provided that any such restrictions must
be at least as stringent as those adopted by the SWRCB.
8) Provides that nothing in the aforementioned provisions
shall limit the authority of the state or regional water
boards to impose conditions on the disposal of TENORM at
solid waste disposal facilities.
9) Prohibits an owner or operator of a solid waste facility
from knowingly accepting or disposing of radioactive waste
other than in accordance with statutes and regulations
governing the licensure of radioactive waste disposal
facilities, and specifies criteria for the "knowing"
acceptance of such wastes, including specific actions an
owner or operator may take to avoid knowingly accepting
such wastes.
10)Defines terms used in the aforementioned provisions and
provides that the provisions of the bill are severable.
COMMENTS :
1)Purpose of Bill . According to the author's office and the
sponsors of the bill, this measure is intended to ensure
that radioactive wastes are not improperly handled or
disposed at California solid waste landfills or hazardous
waste disposal facilities. The author notes that the
Department of Health Services (DHS) recently adopted
regulations providing criteria for the cleanup of
radioactively contaminated nuclear sites. "These
regulations have been interpreted by DHS to allow for the
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unregulated disposal of radioactive waste for the first time
in California history", according to the author's office.
This action allows the disposal of these wastes at solid and
hazardous waste landfills or at virtually any location
(schools, parks and farms). The DHS regulations also allow
for the recycling or reuse of radioactive materials which
could result in such materials in consumer usage. This
measure is intended to ensure that radioactive wastes are
properly disposed and public health and the environment are
protected.
2)Background on Disposal of Radioactive Wastes at Solid and
Hazardous Waste Disposal Facilities . The latest saga in the
long history of regulation, or lack thereof, of low-level
radioactive wastes began in 2001, when the U.S. Department
of Energy (DOE) shipped contaminated soils with residual
radioactivity to the Buttonwillow Class I hazardous waste
landfill for disposal. The contaminated soils were
generated from cleanup activities at the Santa Susana Field
Laboratory (SSFL), a nuclear facility operated for DOE by
Boeing-Rocketdyne in Ventura County.
The DOE decision triggered inquiries as to the overall
prevention and control of radioactive materials at
nonhazardous municipal solid waste facilities. It was
additionally revealed that wastes with radioactive
contamination had been transferred from SSFL to the Bradley
municipal landfill, a ranch in Ventura County, and a metal
recycler in San Pedro.
Furthermore, former Manhattan Project nuclear wastes from New
York State were apparently shipped to Buttonwillow in 1999.
DHS declared those shipments to violate state law, but
subsequently adopted regulations that it interprets as
permitting radioactive waste to be disposed of at Class I,
II, or III landfills.
According to the supporters of this measure, the new DHS
regulation, as interpreted by DHS, would have permitted
deregulation of much radioactive waste in the state. If it
is estimated that the dose to members of the public from
contamination at a nuclear site would be less than 25
millirem/year from various pathways, DHS says that waste can
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now be shipped anywhere - municipal landfills, schools,
farms, or recyclers. 25 millirem/year is equivalent to
approximately 300 additional chest Xrays over one's
lifetime, for a 1 in 1000 risk of producing a fatal cancer.
By contrast, most other carcinogens (e.g., chemicals) are
regulated at a 1 in a million risk of cancer incidence.
The supporters state that this 25 millirem/year level is for
each aggregate shipment, so a municipal landfill receiving
multiple such shipments could yield even higher doses. And
they contend that it represents an average dose to the
affected public, so the maximally exposed individual would
get yet higher doses. By contrast, the same department,
DHS, estimated that the controversial Ward Valley
radioactive waste disposal facility would produce less than
2 millirem exposure from all shipments combined over 30
years. Thus, according to the supporters, under the new DHS
policy, each shipment to an unlicensed municipal landfill
could produce 12.5 times the dose that a licensed
radioactive waste facility was to produce from all shipments
combined.
3)DHS Regulations "Deregulating" Radioactive Waste Disposal
Struck Down By Sacramento Superior Court Last Year . The
regulations which prompted this measure were overturned by
the Superior Court in Sacramento County last year. In
setting aside the regulation, Judge Gail D. Ohanesian stated
that the regulations "will have a significant adverse
environmental effect." In addition, the judge found that,
contrary to the claims of state officials, California has
authority to pursue more protective standards for
radioactive waste disposal, but failed to consider that
option--a breach of state law.
In a ruling dated April 10, 2002 (Case No. 01CS01445) the
court made the following specific findings:
There was no merit to DHS' contention that the regulation
was exempt from the California Environmental Quality Act.
DHS' contention that the regulation offered a more stringent
disposal standard was "not persuasive." "In practice,
decommissioned sites have been required to meet a more
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stringent standard . . . than the 25 millirem standard in
the subject regulation.
DHS failed to comply with the Administrative Procedure Act
by failing to provide a sufficient statement of reasons for
the regulation. DHS failed to discuss and consider
alternatives to the regulation.
The ruling came in response to a lawsuit filed by the
Committee to Bridge the Gap, the California Federation of
Scientists and Physicians for Social Responsibility, a
supporter of this measure, which argued that landfills are
not engineered to safely accommodate nuclear waste.
The regulation was proposed by DHS in the summer of 2000
and took effect in November 2001. The regulations would
have set allowable exposure levels at more than 12.5 times
greater than exposure for the low-level radioactive waste
facility that had been proposed for Ward Valley.
To the knowledge of the committee staff, the department has
not commented on the Judge's ruling nor suggested how it
will proceed in light of the ruling.
1)Governor's Actions In 2002 on LLRW Summarized . While
vetoing most measures which reached his desk on the subject
of LLRW, the Governor issued an executive order which did
all of the following:
Imposed a moratorium on the disposal of all decommissioned
materials with emissions above background levels in public
landfills (Class III) and unclassified waste management
facilities and directed the State Water Resources Control
Board (SWRCB) to begin implementation of the moratorium
within the next 30 days.
Directed the DHS to develop regulations for decommissioning
licensed facilities utilizing the California Environmental
Quality Act (CEQA) process and as part of that process, to
include an assessment of the public health and environmental
risk factors regarding disposal of decommissioned material
and to make recommendations at the conclusion of this
review.
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Stated that if further restrictions are recommended by DHS
based on sound scientific evidence, that the Governor would
"act on those recommendations.
Stated that the moratorium on disposal of decommissioned
materials above background levels in public landfills will
be in place until the Department completes its assessment
and the regulations take effect, at which time a new
Executive Order or legislation may be considered.
1)Recent Actions By DHS on LLRW in Response to Governor's
Executive Orders Described . Last month, several new actions
regarding the development of regulations for low-level
radioactive materials were announced by DHS. The actions
were taken in response to the executive order issued by the
Governor September 30, 2002, and to the court order last
year requiring the California Department of Health Services
(CDHS) to comply with the California Environmental Quality
Act (CEQA) in establishing regulations for the termination
of radioactive material licenses
DHS announced that it was entering into an inter-agency
agreement with the California Environmental Protection
Agency (Cal-EPA) to consult with it on how to fulfill the
legal and procedural requirements for completing the CEQA
process. (It should be noted that the Resources Agency and
the Governor's Office of Planning and Research, and not
CAL-EPA, are the lead agencies in state government for CEQA
compliance.)
DHS also announced the creation of an advisory panel that will
provide it with expertise on environmental policy issues
related to the CEQA process. The advisory panel members will
include legal counsel from Cal-EPA and the Resources Agency,
and environmental experts from Caltrans and DTSC.
2)SWRCB's Report Shows "Unusually High" Levels of
Radioactivity at Solid Waste Landfills . Last month, the
SWRCB announced the preliminary results of testing it had
done at fifty or so local solid waste disposal sites in the
state to determine radioactivity levels. The report found
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that twenty-two of the landfills had "unusually high levels"
of radiation. It was unclear from these results (which
sampled only about 10% of the state's landfills) how
extensive radioactive contamination was in these facilities
and how well it had been contained due to liners and other
containment systems at the facilities. Groundwater
monitoring adjacent to six of the landfills (all of which
were unlined) showed elevated levels of radioactive
materials in the groundwater.
SOURCE : Committee to Bridge the Gap
SUPPORT : Allied Waste, American Federation of State,
County, and Municipal Employees, California
League of Conservation Voters, California
Refuse Removal Council, Californians Against
Waste, Center for Safe Energy, Grandmothers for
Peace, Greenaction for Health and Environmental
Justice, Nuclear Information and Resource
Service, Public Citizen's Critical Mass Energy
and Environment Program, Rural Counties
Environmental Services Joint Powers Authority,
Sierra Club California, Waste Management
OPPOSITION : BIOCOM, California Chamber of Commerce,
California Council for Environmental and
Economic Balance, California Health Care
Institute, California Manufacturers and
Technology Association, Cal Rad Forum, Ligand
Pharmaceuticals Incorporated, Pacific Gas and
Electric Company, Southern California Edison