BILL ANALYSIS
SENATE HEALTH AND HUMAN SERVICES
COMMITTEE ANALYSIS
Senator Deborah V. Ortiz, Chair
BILL NO: SB 201
S
AUTHOR: Romero
B
AMENDED: April 29, 2003
HEARING DATE: May 7, 2003
2
FISCAL: Appropriations
0
1
CONSULTANT:
Hailey / ak
SUBJECT
Regulation of radioactive materials and disposal: Transfer
of authority
SUMMARY
Transfers responsibilities to regulate radioactive
materials, including their transportation, from the
Department of Health Services to the Department of Toxic
Substances Control, and requires that future cleanups of
sites contaminated by radioactivity in California meet US
Environmental Protection Agency standards.
ABSTRACT
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.
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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:
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.
Prohibits the disposal of radioactive waste unless
it will result in no significant radioactive
contamination being released into the environment.
1.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.
2.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.
3.Transfers staff responsible for the regulation of
radioactive materials and waste, up to management level,
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from DHS to DTSC. 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.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 (DOJ) prior to
issuing any licenses, and requires DOJ to provide
reciprocal information to DTSC on the criminal history of
the applicant.
5.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.
6.Exempts from the prohibition in (5) any portion of a
radioactively contaminated property that is
uncontaminated.
FISCAL IMPACT
Unknown.
BACKGROUND AND DISCUSSION
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,
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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' 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' 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.
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
(CEQA).
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,
and 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
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accommodate nuclear waste safely.
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
(LLRW) 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.
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 that reached his
desk, the governor issued an executive order that 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 DHS to develop regulations for decommissioning
licensed facilities utilizing the 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.
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US EPA/NRC Sign MOU on Cleanup of Certain Contaminated
Sites
After decades of jurisdictional wrangling, NRC and US
Environmental Protection Agency (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 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
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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.
Remediation of Nuclear Waste
There are two sets of standards available nationally for
the cleanup of nuclear waste. The first is set by the NRC
and is used by DHS' Radiologic Health Branch. These
standards are "dose-based," that is, they are based on an
assessment of the dose at which an individual begins to
experience adverse health effects. This bill would
substitute standards developed by the EPA, which are
"risk-based," that is, they establish the statistical
incidence of a particular health outcome resulting from
given levels of exposure, for example, cancer deaths per
million persons.
There is disagreement among scientists as to which
standards are more appropriate to the cleanup of
radioactive waste. Moving from the NRC to the EPA
standards is also controversial because the EPA standards
are more restrictive and therefore more costly to meet.
Arguments in Support
The author states that:
DHS has engaged in lax enforcement of licensees.
DHS has adopted disposal standards that are not
protective of human health and the environment, adopting
the less protective of two available Federal standards.
The Sacramento Superior Court has struck down existing
DHS regulations for not following CEQA and the
Administrative Procedures Act.
Radioactive leachate, above safe drinking water
standards, has been discovered in 22 of 50 landfills
monitored by the SWRCB despite DHS assurances that their
disposal practices did not harm human health or the
environment.
DHS has failed to adequately monitor licensees in
possession of radioactive devices resulting in
potentially serious security problems and public safety
concerns.
According to the sponsor of the bill, the Committee to
Bridge the Gap, this measure is intended to transfer and
strengthen the regulation of radioactive materials in order
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to ensure greater public health and environmental
protection. The sponsors state 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.
Arguments in Opposition
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 are unnecessary to protect public
health. Finally, opponents state that the transfer of DHS
responsibilities to DTSC will disrupt and set back
California's radiological counter-terrorism and response
teams, newly established by the Radiologic Health Branch.
Recent actions:
The Senate Environmental Quality Committee amended and
passed this bill on a 5-2 vote, April 21, 2003.
This analysis borrows extensively from the analysis
prepared for the Environmental Quality Committee's hearing.
QUESTIONS BEFORE THE COMMITTEE
1.Is the regulation of radioactive material, including the
decommissioning of a nuclear power plant, rightly placed
within the department responsible for environmental
quality and toxic substances (DTSC) rather than the
department responsible for ensuring the public health
(DHS)?
2.Should radioactive materials be regulated under
risk-based standards set for hazardous chemicals (CERCLA)
rather than dose-based standards established by the
federal Nuclear Regulatory Agency?
POSITIONS
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Support: Committee to Bridge the Gap (sponsor)
Americans for a Safe Future
California League of Conservation Voters
Committee to Bridge the Gap
Concerned Citizens to Stop Outside Dumping
East Valley Coalition
Physicians for Social Responsibility, Los
Angeles
Rocketdyne Cleanup Coalition
Sierra Club California
Southern California Federation of Scientists
7 individuals
Oppose: American College of Nuclear Physicians
BIOCOM San Diego
The Boeing Company
California Chamber of Commerce
California Council for Environmental and
Economic Balance
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California Space Authority
California Healthcare Institute
California Manufacturers and Technology
Association
Council on Radionuclides and
Radiopharmaceuticals Inc.
California Radioactive Materials Management
Forum
Industrial Environmental Association
Ligand Pharmaceuticals
Pacific Gas and Electric Company
Solid Waste Association of North American,
California Chapters
Southern California Edison
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