BILL ANALYSIS
SB 201
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
2003-2004 Regular Session
BILL NO: SB 201
AUTHOR: Romero
AMENDED: As Amended April 21, 2003
FISCAL: Yes HEARING DATE: April 21, 2003
URGENCY: No CONSULTANT: Kip Lipper
SUBJECT : REGULATION OF RADIOACTIVE MATERIALS AND
DISPOSAL: TRANSFER OF AUTHORITY
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 8 (Commencing with Section 114960) of the
Health and Safety Code (generally referred to as the
Radiation Control Law), requires the Department of Health
Services (DHS) to regulate the use, handling, transport and
disposal of ionizing radiation (essentially all radioactive
wastes other than high-level wastes which are regulated by
the NRC, and X-Ray and other medical-related devices) for
the protection of public health and safety. The law also
does all of the following:
a) Establishes civil and criminal penalties for
violations of the law but does not expressly establish
administrative civil penalties that may be imposed by DHS
for such violations
b) Prohibits the disposal of radioactive waste unless it
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will result in no significant radioactive contamination
being released into the environment.
3)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.
4)Under the California Integrated Waste Management Act
(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) Repeals the Radiation Control Law described under (2) above
and re-enacts those provisions as the Radioactive Materials
Management Act.
2) Transfers authority, jurisdiction, and responsibility for
the regulation of radioactive materials and waste from DHS
to DTSC, except for the regulation of x-ray machines and
other similar medical devices, nuclear medicine related
radioactive materials, and the monitoring of off-site
radiation from nuclear power plants which would continue to
be regulated by DHS.
3) Specifies the scientific positions, units, and branches at
DHS which are transferred to DTSC, requires DTSC to perform
a job classification review of the positions affected by
the bill and requires DTSC to report the Legislature on
additional statutory changes needed to effectuate that
change.
4) Increases both civil and criminal penalties for violations
of the act, imposes felony criminal penalties for theft of
radioactive materials, and authorizes DTSC to issue
administrative civil penalties of up to $5,000 per day for
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willful or grossly negligent violations of the act.
5) Requires persons applying for licenses for receipt,
possession, or transfer of radioactive materials to submit
a disclosure statement which includes specified information
on the person's identity, fingerprints, business interests,
and past violations of law, requires DTSC to forward
fingerprint cards, images and related information to the
Department of Justice prior to issuing any licenses, and
requires the Department of Justice to provide reciprocal
information to DTSC on the criminal history of the
applicant.
6) Prohibits any person from selling, transferring or leasing
radioactively contaminated property, other than a former
military base, for any subsequent land use until DTSC
certifies that the radioactive contamination has been
remediated pursuant to the standards, guidance, procedures,
and practices established under the federal Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended (CERCLA) (42 U.S.C. Section 9601 et.
seq.), also referred to as the federal Superfund Law.
7) Exempts from the prohibition in (5) any portion of a
radioactively contaminated property that is uncontaminated
portions of the property for specified uses.
COMMENTS :
1) Purpose of Bill . According to the sponsor of the bill, the
Committee to Bridge the Gap, the radiation control branch
of DHS is "incapable" of properly regulating the public
health and environmental effects of radioactive materials.
The sponsors state that DHS is a medical device licensure
agency and is not well-suited to implementing what is more
properly an environmental regulatory and cleanup program.
The sponsors further note that the activities proposed to
be transferred under the bill's provisions are activities
analogous to those DTSC already performs for hazardous
substances and wastes. This measure is intended to
transfer, and strengthen, the regulation of radioactive
materials in order to ensure greater public health and
environmental protection.
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2) Opponents State Bill Changes Rules Mid-Stream, Would Not
Improve Environmental Protection . Opponents to this
measure state that transferring radiation control
activities from DHS to DTSC would disrupt the current
effective regulatory program and disrupt cleanup activities
already underway. The opponents assert that the
application of CERCLA cleanup standard in lieu of those
currently used by DHS and the NRC would create new costs,
regulatory confusion, and would do nothing to improve
public health and environmental protection. Finally,
opponents state that the bill imposes a cleanup standard
that may be technically not measurable.
3) DHS Activities Under Radiation Control Law Subject of
Extensive Legislative and Judicial Oversight and Criticism.
For at least fifteen years, the subject of DHS'
implementation of radiation control law has been the
subject of legislative oversight hearings, investigations,
and litigation in the state and federal courts. In the
mid-1980's when California was under pressure to site a
low-level radioactive waste disposal facility and to adopt
a multi-state compact for the disposal of such wastes, the
State Assembly's Natural Resources Committee held extensive
hearings on the activities of DHS in licensing parties to
construct the facility and related issues. More recently,
the Senate Select Committee on Urban Landfills (chaired by
the author of this measure) has held oversight hearings on
DHS's proposals to allow the disposal of radioactive
materials at solid waste landfills.
In addition, two recent and notable actions were taken by the
courts relative to DHS's radiation control program: last
year, DHS proposed regulation to allow Low-level
radioactive wastes to be disposed at landfills was
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.
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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
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 sponsor of this measure),
the California Federation of Scientists and Physicians for
Social Responsibility, a supporter of this measure, both of
whom 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.
The second recent action took place when a court rejected
the contention of the licensee for the proposed Ward Valley
LLRW disposal facility that the state had violated the law
in not following through on the construction and operation
of the facility.
4)Governor's Actions In 2002 on LLRW Summarized . Last year,
several measures addressing radiation control issues were
passed by the Legislature and sent to the Governor. While
vetoing most measures which reached his desk, the Governor
issued an executive order which did all of the following:
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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.
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.
5)US EPA/NRC Sign MOU on Cleanup of Certain Contaminated
Sites . After decades of jurisdictional wrangling, NRC and
US EPA recently signed a Memorandum of Understanding (MOU)
last year establishing outlines of authority and provisions
for joint consultation on cleanup of specified contaminated
sites. According to a press release on the NRC website,
"On October 9 the Nuclear Regulatory Commission signed an
agreement with the Environmental Protection Agency on the
radiological decommissioning and decontamination of
NRC-licensed sites.
"The Memorandum of Understanding (MOU) signed by NRC and EPA
provides that EPA will defer exercise of authority under the
Comprehensive Environmental Response, Compensation and
Liability Act (Superfund) for the majority of facilities
decommissioned under NRC authority. The MOU includes
provisions for NRC and EPA consultation for certain sites
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when, at the time of license termination, (1) groundwater
contamination exceeds EPA-permitted levels; (2) NRC
contemplates restricted release of the site; and/or (3)
residual radioactive soil concentrations exceed levels
defined in the MOU.
"The MOU responds to a 1999 report from the House Committee on
Appropriations that stated: "In the interest of ensuring
that sites do not face dual regulation, the Committee
strongly encourages both agencies to enter into an MOU which
clarifies the circumstances for EPA's involvement at NRC
sites when requested by the NRC." The MOU also is responsive
to a Government Accounting Office report issued in 2000. The
MOU does not fully meet the intent of the Appropriations
Committee because the threat of dual regulation remains for
certain licensees.
?.The MOU does not impose any new requirements on NRC
licensees and will reduce the involvement of EPA with NRC
licensees who are decommissioning. Most sites are expected
to meet the NRC criteria for unrestricted use, and NRC
believes that only a few sites will have groundwater or soil
contamination in excess of the levels specified in the MOU
which trigger consultation with EPA. If there are other
hazardous materials on the site, EPA may be involved in
cleanup.
6)Technical Amendments Needed . As presently drafted, this
measure needs a number of technical amendments:
First, the contaminated land cleanup provisions of this bill
and of SB 13 (Romero) and SB 208 (Kuehl) should be
reconciled so that they are all consistent with one another.
Second, and with reference to the provisions relating to
background checks on license applicants, the author and
committee may wish to consider whether persons who have a
criminal history should be issued licenses to possess or
transfer radioactive materials.
Third, and with reference to the new administrative civil
penalty authority given to DTSC, it's unclear why the
standard for the penalty is "gross negligence" as opposed to
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simple negligence.
Fourth, a with reference to the provisions related to cleaning
up radioactively contaminated properties, it's unclear why
the provision applies to radioactively contaminated property
that is sold, transferred or leased "for any subsequent land
use." Typically property is sold, and the "subsequent land
use" is determined separately by the new owner and the
jurisdictional local government. This provision may also
need further clarification over what terms like "risk range"
"and "point of departure" mean and how they are applied.
Fifth, in repealing, reenacting, and transferring authority
over radiation control, the Legislative Counsel has made
several perplexing, if minor, revisions. For example, on
page 9, lines 24-26, the provision is limited to a
misdemeanor penalty. In addition, several provisions of
current law related to mammography machine regulation appear
to have been omitted.
And last, recent amendments to the bill suggest that the
environmental management branch of DHS would be transferred
along with the radiation control branch. There may be
functions within the environmental management branch that do
not relate to radiation control and therefore should not be
transferred to DTSC.
SOURCE : Committee to Bridge the Gap
SUPPORT : California League of Conservation Voters,
Sierra Club California
OPPOSITION : BIOCOM, Boeing Company, Cal Rad Forum,
California Chamber of Commerce, California
Council for Environmental and Economic Balance,
California Health Care Institute, California
Manufacturers and Technology Association,
Council on Radionuclides and
Radiopharmaceuticals, Industrial Environmental
Association, Ligand Pharmaceuticals
Incorporated, Pacific Gas and Electric,
Southern California Edison, Southern California
Health Society
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