Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
SECOND EXTRAORDINARY SESSION
                   ENROLLED
              House Bill 208
       BY DELEGATES HANSHAW (MR. SPEAKER) AND
                      HORNBUCKLE
            (BY REQUEST OF THE EXECUTIVE)
    [Passed October 8, 2024; in effect from passage.]
     Enr HB 208
  AN ACT to repeal §16-27-1, §16-27-2, §16-27-3, and §16-27-4 of the Code of West Virginia, 1931,
         as amended; and to amend said code by adding thereto a new article, designated §16-
         27B-1, §16-27B-2, §16-27B-3, §16-27B-4, §16-27B-5, §16-27B-6, §16-27B-7, §16-27B-8,
         §16-27B-9, §16-27B-10, §16-27B-11, §16-27B-12, §16-27B-13, §16-27B-14, §16-27B-15
         and §16-27B-16, all relating to making West Virginia an agreement state with the United
         States Nuclear Regulatory Commission; establishing a comprehensive regulatory system
         for the control of sources of radiation for the protection of the public; creating the Radiation
         Control Act; providing for declaration of policy and purpose; providing for certain
         definitions; providing for exemptions; providing that the Department of Health is to be
        designated as the state radiation control agency; providing for the department’s duties,
        authorities, and requirements for consistency with federal law and regulations; providing
        for comprehensive programs and procedures to control radiation through general and
        specific licensing of radioactive materials and equipment; establishing rule making
        authority under the department concerning radiation control; establishing licensing and
        registration requirements and procedures; establishing fee schedules, funding sources,
        and forms; establishing procedures and requirements regarding radioactive materials and
        sureties; creating the Radiation Site Closure and Reclamation Fund with requirements
        and funding sources; creating the Radiation Licensure and Inspection Fund with
        requirements and funding sources; allowing for impounding sources of ionizing radiation;
        providing authority for the Governor and the department to enter into agreements with the
        federal government, other states, or interstate agencies; defining effects on local
        ordinances; defining enforcement procedures regarding violations of law; establishing civil
        penalties; establishing felonies with criminal penalties; providing for administrative
        procedures; and authorizing judicial review.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 27. STORAGE AND DISPOSAL OF RADIOACTIVE WASTE MATERIALS.
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     §16-27-1. Definitions.
         [Repealed.]
     §16-27-2. Storage or disposal of radioactive waste material within the state prohibited;
            exceptions.
         [Repealed.]
     §16-27-3. Authority of director of health.
         [Repealed.]
     §16-27-4. Penalties.
         [Repealed].
     ARTICLE 27B. RADIATION CONTROL ACT.
     §16-27B-1. Declaration of policy.
         It is the policy of the state in furtherance of its responsibility to protect the occupational
  and public health and safety and the environment:
         (1) To institute and maintain a regulatory program for sources of ionizing radiation so as
  to provide for compatibility and equivalency with the standards and regulatory programs of the
  federal government, a single effective system of regulation within the state, and a system
  consonant insofar as possible with those of other states.
         (2) To institute and maintain a program to permit development and use of sources of
  radiation for peaceful purposes consistent with the health and safety of the public.
         (3) To provide for the availability of capacity outside the state for the disposal of low-level
 radioactive waste generated within the state except for waste generated as a result of defense or
 federal research and development activities and to recognize that such radioactive waste can be
 most safely and efficiently managed on a regional basis.
     §16-27B-2. Declaration of purpose.
         This article is enacted to provide:
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          (1) A program of effective regulation of sources of radiation for the protection of the
  occupational and public health and safety.
          (2) A program to promote an orderly regulatory pattern within the state, among the states,
  and between the federal government and the state and facilitate intergovernmental cooperation
  with respect to use and regulation of sources of radiation to the end that duplication of regulation
  may be minimized.
          (3) A program to establish procedures for assumption and performance of certain
  regulatory responsibilities with respect to byproduct, source and special nuclear materials, and
 radiation generating equipment.
         (4) A program to permit use of sources of radiation consistent with the health and safety
 of the public.
     §16-27B-3. Definitions.
          As used in this article unless the context requires a different meaning:
          (1) "By-product material" means:
          (A) Any radioactive material, except special nuclear material, yielded in or made
  radioactive by exposure to the radiation incident to the process of producing or utilizing special
  nuclear material;
          (B) Any discrete source of radium-226 that is produced, extracted, or converted after
  extraction for use for a commercial, medical, or research activity;
          (C) Any material that has been made radioactive by use of a particle accelerator and is
  produced, extracted, or converted after extraction for use for a commercial, medical, or research
 activity; and
         (D) Any discrete source of naturally occurring radioactive material (NORM), other than
 source material that the United States Nuclear Regulatory Commission, in consultation with the
 Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of
 Homeland Security, and the head of any other appropriate federal agency, determines would
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 pose a threat similar to the threat posed by a discrete source of radium-226 to the public health
 and safety or the common defense and security including conversion to technologically enhanced
 naturally occurring radioactive material (TENORM) through extraction, or conversion after
 extraction, for use for a commercial, medical, or research activity.
         (2) "Civil penalty" means any monetary penalty levied on a licensee or registrant because
 of violations of statutes, regulations, licenses, or registration certificates, but does not include
 criminal penalties.
         (3) "Decommissioning" means final operational activities at a facility to dismantle site
 structures, to decontaminate site surfaces and remaining structures, to stabilize and contain
 residual radioactive material, and to carry out any other activities to prepare the site for post-
 operational care.
         (4) "Department" means the West Virginia Department of Health.
         (5) "General license" means a license effective under rules promulgated by the
 department without the filing of an application with the department or the issuance of licensing
 documents to particular persons to transfer, acquire, own, possess, or use quantities of, or
 devices or equipment utilizing, radioactive material.
         (6) "High-level radioactive waste" means:
         (A) Irradiated reactor fuel;
         (B) Liquid wastes resulting from the operation of the first cycle solvent extraction system,
 or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in
 a facility for reprocessing irradiated reactor fuel; or
         (C) Solids into which such liquid wastes have been converted.
         (7) "Ionizing radiation" means gamma rays and X-rays, alpha and beta particles, high-
 speed electrons, neutrons, protons, and other nuclear particles.
         (8) "Licensing" means licensing with the department in accordance with rules and
 regulations adopted pursuant to this article.
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        (9) "Low-level radioactive waste" means radioactive waste not classified as high-level
 radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material.
        (10) "Person" means any individual, corporation, LLC, partnership, firm, association, trust,
 estate, public or private institution, group, agency of this state, other than the Department of
 Health, political subdivision of this state, any other state or political subdivision or department
 thereof, and any legal successor, representative, agent, or department of the foregoing, but not
 including federal government agencies.
        (11) "Radiation" means ionizing radiation.
        (12) "Radiation emergency" means any situation, excluding events resulting from nuclear
 warfare, which involves the possibility of accidental release of ionizing radiation that may pose a
 threat to public health and safety or the environment.
        (13) "Radiation generating equipment" means any manufactured product or device, or
 component part of such a product or device, or any machine or system which during operation
 can generate or emit radiation except those which emit radiation only from radioactive material.
        (14) "Radioactive material" means any material (solid, liquid, or gas) which emits ionizing
 radiation spontaneously. It includes accelerator-produced, byproduct, naturally occurring, and
 source and special nuclear materials.
        (15) "Registration" means registration with the department in accordance with rules and
 regulations adopted pursuant to this article.
        (16) "Secretary" means the secretary of the West Virginia Department of Health or his or
 her designee.
        (17) "Source material" means uranium or thorium, or any combination thereof, in any
 physical or chemical form; or ores that contain by weight one-twentieth of one percent (0.05
 percent) or more of uranium, thorium, or any combination thereof. Source material does not
 include special nuclear material.
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         (18) "Sources of radiation" means, collectively, radioactive material and radiation
 generating equipment.
         (19) "Special nuclear material" means (i) plutonium, uranium 233, uranium enriched in the
 isotope 233 or in the isotope 235, and any other material which the United States Nuclear
 Regulatory Commission or any successor thereto has determined to be such but does not include
 source material; or (ii) any material artificially enriched by any of the foregoing but not including
 source material.
         (20) "Specific license" means a license, issued to a named person upon application filed
 under the rules promulgated pursuant to this article, to use, manufacture, produce, transfer,
 receive, acquire, or possess quantities of, or devices utilizing, radioactive material.
         (21) "Spent nuclear fuel" means irradiated nuclear fuel that has undergone at least one
 year’s decay since being used as a source of energy in a power reactor. Spent fuel includes the
 special nuclear material, byproduct material, source material, and other radioactive material
 associated with fuel assemblies.
         (22) "Transuranic waste" means radioactive waste containing alpha emitting transuranic
 elements, with radioactive half-lives greater than five years, in excess of 10 nanocuries per gram.
     §16-27B-4. Exemption.
          The provisions of this article shall not apply to radioactive materials or facilities, including
  nuclear reactors, that are subject to exclusive licensing and regulation by the United States
  Nuclear Regulatory Commission.
     §16-27B-5. Department designated state radiation control agency; powers and duties.
          (a) The Department of Health is hereby designated as the state radiation control agency.
          (b) The secretary shall designate the director of the state radiation control agency who
  shall perform the functions vested in the state radiation control agency under the provisions of
  this article.
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          (c) In accordance with the laws of the state, the state radiation control agency may employ,
  compensate, and prescribe the powers and duties of such individuals as may be necessary to
 carry out the provisions of this article.
         (d) The state radiation control agency, for the protection of the occupational and public
 health and safety, and the environment shall:
         (1) Develop programs for evaluation and control of hazards associated with use of sources
 of radiation.
         (2) Develop programs with due regard for compatibility with federal programs for regulation
 of byproduct, source, and special nuclear materials.
         (3) Develop programs with due regard for consistency with federal programs for regulation
 of radiation generating equipment.
         (4) Formulate, adopt, promulgate, and repeal rules and regulations, which may provide for
 licensing and/or registration, relating to control of sources of radiation with due regard for
 compatibility with the regulatory programs of the federal government.
         (5) Advise, consult, and cooperate with other agencies of the state, the federal
 government, other states and interstate agencies, political subdivisions, and other organizations
 concerned with the control of sources of radiation.
         (6) Have the authority to accept and administer loans, grants, or other funds or gifts,
 conditional or otherwise, in furtherance of its functions, from the federal government and from
 public or private sources.
         (7) Encourage, participate in, or conduct studies, investigations, training, research, and
 demonstrations relating to the control of sources of radiation.
         (8) Collect and disseminate information relating to the control of sources of radiation,
 including:
         (A) Establish and maintain a file of all license applications, issuances, denials,
 amendments, transfers, renewals, modifications, suspensions, and revocations;
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        (B) Establish and maintain a file of registrants possessing sources of radiation requiring
 registration under the provisions of this article and any administrative or judicial action pertaining
 thereto; and
        (C) Establish and maintain a file of all agency rules related to regulation of sources of
 radiation, pending or promulgated, and proceedings thereon.
        (9) Establish a database of registered and certified radiation producing devices, which
 shall include but not be limited to the name of the owner or operator and the location of the
 machine.
        (10) Pursuant to its powers enumerated in §16-27B-6 of this code, provide for scheduled
 and random unannounced inspections of facilities that house radiation producing devices and
 radioactive sources and provide relevant services to ensure compliance with all applicable laws,
 rules, licenses, or conditions.
        (11) Establish all necessary forms, including periodic radiation inspection reports.
        (12) Develop programs for responding adequately to radiation emergencies and
 coordinate such programs with the emergency management agencies.
        (13) Publish and make available a list of qualified physicists and vendors of radiation
 producing devices, radioactive supplies, and those qualified to perform work related to the same.
        (14) Ensure compliance with all requirements under the Appalachian States Low-Level
 Radioactive Waste Compact pursuant to §29-1H-1 et seq. of this code and all federal laws.
        (15) Promulgate all rules necessary under this article, in accordance with the provisions
 of §29A-3-1 et seq. of this code, related to (i) general or specific licenses necessary to use, store,
 dispose, manufacture, produce, transfer, receive, acquire, own, or possess quantities of, or
 devices or equipment utilizing, by-product, source, special nuclear materials, or other radioactive
 material occurring naturally or produced artificially, (ii) registration of the possession of a source
 of radiation and maintaining all related records, (iii) regulation of by-product, source and special
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 nuclear material and (iv) compliance with Appalachian States Low-Level Radioactive Waste
 Compact pursuant to §29-1H-1 et seq. of this code and all federal laws.
        (16) Issue such orders or modifications thereof as may be necessary in connection with
 proceedings under this article.
        (e) The department is authorized to require by rule, regulation, or order, the keeping of
 such records with respect to activities under licenses and registration certificates issued under
 this article as may be necessary to effectuate the purpose of this article. These records shall be
 made available for inspection by, or copies thereof shall be submitted to, the department on
 request.
        (f) The secretary shall establish fee schedules for licensures, registrations, inspections,
 and modifications thereto required pursuant to this article. All such fees collected shall be paid to
 the department for deposit in a special fund called the Radiation Licensure and Inspection Fund