BILL ANALYSIS
SB 415
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
2003-2004 Regular Session
BILL NO: SB 415
AUTHOR: Kuehl
AMENDED: As introduced
FISCAL: No HEARING DATE: April 21, 2003
URGENCY: No CONSULTANT: Derek Ishikawa
SUBJECT : REAL PROPERTY: DISCLOSURE OF RADIOACTIVE
CONTAMINATION
SUMMARY :
Existing law :
1) Requires a transferor of real property, as specified, to
disclose the property's location within a natural hazard
zone;
2) Provides for the specific content and format of these
disclosures in a Natural Hazard Transfer Disclosure
Statement.
3) Permits a buyer to terminate his or her offer to transfer
the property if the transferor fails to deliver any natural
hazard transfer disclosure statement prior to the transfer
of title.
4) Requires owners of nonresidential real property to disclose
to potential buyers and lessees any known release of
hazardous substances on or beneath that property.
5) Provides that the deed transferring ownership of federal
property must contain a notice providing details regarding
the storage, disposal, or release of hazardous substances
on that property.
This bill :
1) Requires a person or entity that sells, leases, subleases,
or otherwise transfers radioactive contaminated property to
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provide the transferee prior to the transfer with written
disclosure of the specific increased risk of cancer to
which residents of the contaminated property would be
exposed.
2) Identifies documents available from the Office of Solid
Waste and Emergency Response (OSWER) of the United States
Environmental Protection Agency (US EPA) to be used in
establishing the level of radioactive contamination to be
disclosed.
3) Requires that the risk estimate be specific to the parcel
being transferred, and not represent an average risk
associated with the entire radioactive contaminated
property.
4) Provides that a person who is not an owner or operator, but
is involved in the transfer of radioactive contaminated
property be exempt from liability if disclosure is
completed accurately and provided prior to the transfer.
5) Defines "radioactive contaminated property" and "background
level" for the purposes of the section.
COMMENTS :
1) Purpose of Bill . This bill is designed to inform potential
buyers of radioactive-contaminated real estate with
information detailing the increased risk of cancer
associated with occupying that specific parcel of property.
Existing law provides for disclosure to potential buyers of
real property that is located within areas with an
increased incidence of specified natural hazards for
purposes of consumer protection. It also provides for
disclosure of the presence of radionuclides on a piece of
real property to a potential buyer, lessee, or renter under
civil fines.
According to the author's office, radioactive contamination
in excess of that allowed by the US EPA should be viewed as
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a material importance as its presence could materially
affect the value of a residential property. Thus, in
keeping with consumer-protection provisions for disclosure
of hazards-both real and statistical-in other situations,
this information should be disclosed to those potential
buyers prior to sale.
2) Background on radiation exposure and federal clean-up
standards . According to the National Council on Radiation
Protection and Measurements, the US population receives a
radiation dose of a little more than one-third of a rem a
year, mostly from background radiation. Although exposure
to small amounts of radiation is believed to cause fatal
cancer or hereditary defects in human beings, verification
of this causal relationship is difficult. While roughly 1
in 5 deaths that occur in the US are from all types of
cancer, the estimated risk of dying from natural background
radiation (principally radon) in a lifetime is roughly 1 in
100.
According to the International Commission on Radiological
Protection, the estimated lifetime risk of cancer death
resulting from exposure to human-generated sources of
radiation (including medical sources) is much
smaller-estimated at 1 in 3,000. Various federal laws and
regulations/standards have been developed and administered
by US EPA, the Nuclear Regulatory Commission (NRC), and
other agencies. US EPA has a mandate to regulate
environmental contamination-including radioactive
contamination-while NRC has a responsibility to regulate
civilian uses of nuclear materials.
The NRC issues licenses, and, in some cases, maintains
agreements with signatory states by which those states
regulate possession of certain radioactive materials for
certain uses (e.g., research and medical). In California,
the Department of Health Services (DHS) issues all of the
licenses except for all federal facilities and those
facilities that exceed a specified critical mass of special
nuclear materials. These licenses include those issued for
diagnostic and therapeutic medical use, biomedical
applications, research, and other purposes.
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Under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA),
"Superfund" sites are required to be remediated by the US
EPA to a level resulting in between 1 in 15,000 and 1 in
1,500,000 additional premature cancer deaths. According to
the author, sites such as the Santa Susanna Field
Laboratory, located on the border of the author's district,
are under the jurisdiction of NRC which has low-level waste
standards allowing for a level of residual contamination
resulting in a increased theoretical risk of cancer death
of 1 in 1,000.
3) Why do the risk estimate between USEPA & NRC differ? The
exposure limits and risks associated with federal radiation
standards and guidelines established by these two agencies
differ in part due to a lack of interagency agreement on
the technical assumptions underlying various standards.
According to the US General Accounting Office, agencies'
calculation methods often differ, reflecting a major
difference of philosophy and giving different results.
NRC, for example, typically favors a "top down" protective
strategy, which involves setting an "upper bound" or limit,
but reducing dose and risk well below it to a reasonably
achieved lower level, based on economic and social
considerations as well as technical feasibility. US EPA,
however, generally favors a "bottom-down" approach which
involves setting a lower, more stringent risk goal (a
desirable target, not a limit) to be pursued through "best
available technology"; if the goal is not achievable based
on cost and feasibility considerations, then the regulator
may decide to accept a less stringent level of achieved
protection.
Moreover, US EPA & NRC use different scenarios for
depicting how human exposure may occur, including
assumptions that may sometimes result in an overestimation
of risk. These overestimations can lead to levels of
regulatory dose and risk limitation that require large
expenditures for compliance, but do not necessarily reduce
the health risk to the public. For example, NRC typically
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employs models that operate under a "resident-farmer"
scenario-involving individuals occupying a self-supporting
plot of land so that the model includes every conceivable
pathway.
EPA's preference, however, is to set standards for
individual pathways, which is, in part, based upon the fact
that many of EPA's standard-setting authorities for
radiation protection are part of umbrella statutes for
environmental protection that address specific pathways for
potential environmental pollution (e.g., the Clean Air Act
and the Safe Drinking Water Act). As such, using other
scenarios eliminates or reduces a number of pathways by
which occupants would be exposed to radioactive material.
In the "resident" scenario, for example, it is unlikely
that the occupant raises cows and chickens and get drinking
water on-site; in the "office-business" scenario estimating
exposure is based upon an 8-hour workday-resulting in
estimates very different from those developed with lifetime
exposure in mind.
Taken as a whole, these differences in both model and
approach seem to preclude an effective comparison of NRC
and US EPA radioactivity protection standards that would
necessarily lead one to elevate one standard above the
other. Continuing uncertainty with regard to the
jurisdiction of US EPA over NRC-licensed sites reflects the
historical difficulty in assessing acceptable levels of
risk.
4) Scope of bill's applicability raises issues . This bill
applies to a specified number of properties. In order to be
defined as being "radioactive contaminated," properties
must have radioactivity above background levels (local
levels of radioactivity from nature) and be sites where
actions took place: a) subject to a radioactive materials
license issued by either the California Department of
Health Services or NRC; or b) for, or by, an unlicensed
federal entity.
According to DHS, there are over 2100 active licensees in
the state, all of which could be subject to the provisions
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of this bill. The number of licenses, however, do not
fully account for the number of sites that might be
affected by the bill, as some licenses are used for
multiple sites, or historically reflect more than one site
(e.g., the license having been transferred rather than
re-issued upon moving to a new site).
The scope of the bill is further complicated by the
existence of roughly 4,500 sites that have already been
decommissioned for both restricted and unrestricted use.
Would the disclosure requirement apply to these sites as
well? Current occupants of these previously decommissioned
sites may be unaware of the site's former contaminated
status and may be similarly be unaware of their need to
assess the site's radioactivity prior to future transfer of
the site. The committee may want to receive clarity with
regard to the bill's applicability to these decommissioned
sites as well.
5) Residential vs. non-residential. In its current form, the
bill seems to apply to any form of real property that has
been decontaminated and yet has remaining levels of
radioactivity higher than background radiation. According
to several opponents, this disclosure is unnecessary as it
overlaps with current statutes that require owners of
nonresidential real property to disclose to potential
buyers the presence of hazardous substances (including
radionuclides).
According to the author's office, this broad jurisdiction
may have been unintentional as they intended to focus the
bill on residential properties. The committee may want to
ask the author to clarify the bill's intent with respect to
its applicability to non-residential properties.
6) The creation of a new standard? After decades of
jurisdictional wrangling, NRC and US EPA finally signed an
MOU last year, establishing fairly clear outlines of
authority and provisions for joint consultation. Opponents
argue that since NRC has jurisdiction over the possession
and use of radioactive materials, it is inappropriate to
superimpose EPA remediation goals over NRC regulatory
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standards, given the potential to confuse individuals as to
which set of guidelines to follow when seeking to terminate
their operating licenses.
Existing NRC standards provide for the classification of
decommissioned sites for use that is either "restricted" or
"unrestricted." This bill, however, makes no distinction
between these two classifications, and effectively creates
a new "unrestricted" standard-no more than "background
radiation"-for decommissioned sites to meet if those sites
are to be transferred without an accompanying disclosure
statement.
7) The costs of compliance. This bill requires the risk
estimate to be specific to the parcel of land being
transferred, and prevents that estimate from being the
average risk associated with the entire radioactive
contaminated property. This would seem to be an
economically prohibitive standard, especially considering
that as of 2002, EPA generally accepts NRC's
decommissioning standard of "unrestricted usage" as being
sufficiently comprehensive and adequately providing for
public health.
Furthermore, the bill requires that specified documents
available from the Office of Solid Waste and Emergency
Response of US EPA be utilized in establishing the level of
radioactive contamination to be disclosed, but fails to
outline how individuals interested in estimating the risk
associated with a particular property would go about making
this estimation.
Likewise, the bill does not clearly identify who would be
qualified to make this estimation, nor does it outline any
liability for negligently or fraudulently estimating the
risk associated with a particular parcel or merely
substituting the entire property's average risk for the
specific parcel-the latter being specifically prohibited by
the bill.
8) Opponents state the bill falsely raises risk concerns .
Critics of the bill argue that the bill creates a false and
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misleading impression that use of decommissioned
properties-such as those decontaminated for unrestricted
use according to NRC-standards-would endanger occupants.
They argue that disclosure of increased risk of any type or
level is only beneficial when there is in fact an actual
increase in risk; when that risk is theoretical, disclosure
consisting of a statistical probability provides an
unnecessary, and potentially misleading.
More specifically, several opponents of the bill draw
attention to the format of the form outlined in section
1130.20 (b), which opens with a sentence that some
opponents describe as "alarming." As a result of the bill,
these properties that would described to potential buyers
as "radioactively contaminated," whereas existing NRC
"decommissioned" status allows for unrestricted usage not
subject to any disclosure.
Moreover, critics allege that the form outlined by the bill
fails to adequately what the estimation of risk is
predicated upon. These estimations rely on any number of
assumptions-the US EPA standard cited in the form, for
example, is predicated on a lifetime exposure-which, even
if appropriate, is not adequately explained by the form's
current format.
Other critics state that the bill arbitrarily singles out
federal property, but not any other private, state-owned,
or municipally owned property with radioactivity above
local background levels if no activities requiring a
license took place there. While it is unclear how many
sites exist in this latter set, the committee may wish the
author to clarify why federal properties were selected for
priority.
Opponents argue that this attaches an unnecessary stigma on
land that has been decontaminated to acceptable levels-as
well as undue economic burden on property transfers for
facilities that have been already been decontaminated
according to peer-reviewed NRC-standards.
9) Suggested amendments. Natural hazard transfer disclosure
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statements provide potential buyers, lessees, and renters
with an opportunity to terminate their offer to purchase
the property if disclosure has not been provided prior to
the transfer. The disclosure outlined by this bill
provides no such provision, and seems to lack any other
provision for enforcement. Given the similarity between
these two disclosure statements, the author may wish to
consider amending the bill to include a similar provision
for the termination of an offer to transfer property in the
event that disclosure is not made prior to the transfer.
Likewise, the author may wish to consider amending the bill as
it refers to persons who are not owners or operators, but
are involved in the transfer of these radioactive
properties. Existing law requires a natural hazard
transfer disclosure statement to be delivered to the
transferee prior the transfer of the property; this bill
would require that the disclosure statement also be
"completed accurately." The author may wish to delete this
reference as it creates a higher standard for disclosure of
radioactivity than for disclosure of other hazards, and may
have been unintentional.
As an alternative to the current format of the bill, the
author may wish to incorporate notice of the real
property's status as being decommissioned by the NRC for
"unrestricted" usage as an addendum to the existing Natural
Hazard Transfer Disclosure Statement (NHTDS). This would
require amending the current name of NHTDS to reflect its
new status as disclosing both natural and man-made hazards.
Incorporation of a site's status as having been
decommissioned for "unrestricted usage" would seem to
provide the potential buyer with a disclosure of material
importance along with an assurance that the site was
nevertheless decontaminated according to NRC-standards to
ensure the health and safety of the public. Utilization of
this kind of disclosure would also seem to answer the
concerns of a number of the bill's opponents.
10)Double Referral to Judiciary Committee. Should this
measure be approved by this committee, the do pass motion
should include the action to re-refer the bill to the
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Senate Committee on Judiciary for further review.
SOURCE : Senator Kuehl
SUPPORT : None on file
OPPOSITION : Boeing, California Association of Realtors
(unless amended),
California Healthcare Institute
California Manufacturers and Technology
Association, California Radioactive Materials
Management Forum,
Council on Radionuclides and
Radiopharmaceuticals,
County of Sacramento, Industrial Environmental
Association, Ligand Pharmaceuticals, McClellan
Park,
Southern California Edison