Bill H.109

HOUSE DOCKET, NO. 3368 FILED ON: 2/19/2021

HOUSE . . . . . . . . . . . . . . . No. 109

By Ms. Duffy of Holyoke (by request), a petition (accompanied by bill, House, No. 109) of Kirstin Beatty relative to improving non-ionizing radiation regulation and monitoring. Advanced Information Technology, the Internet and Cybersecurity.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act improving non-ionizing radiation regulation and monitoring.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The legislature finds and confirms all of the following:-

Whereas, the radiation regulation and licensing authority should be separate from the authority for civil penalties to prevent corruption.

Whereas, the FCC fails to regulate many different non-ionizing radiation frequencies, nor does any there federal agency do so.

Whereas, consumers should know if an appliance or device is wireless, the type of exposure, and have a choice to make safer purchases.

Whereas, a registry of cell towers is necessary for study of non-ionizing radiation health effects.

Whereas, residents should have the right to be informed and ability to sue if legal radiation limits are exceeded.

Whereas, other countries have recognized hazards of wireless by adopting more stringent limits and by limiting use in sensitive locations such as schools and hospitals.

SECTION 2. Chapter 111 of the General Laws is hereby amended by striking out Section 5N as appearing in the 2021 Official Edition and inserting in place thereof the following section:--

Section 5N. (a) Definitions. As used in this section, the following words shall have the following meanings:

“Building Biology EMRS certification” refers to an electromagnetic radiation specialist certification offered by the Building Biology Institute, a 501(c)(3) founded in 1987 based on the German principles of Building Biology.

(b) Mission. There shall be a Radiation Regulatory Agency, hereafter called the agency, within the department of public health. The mission of the agency shall be to enhance and protect public health, safety, and environmental quality in the Commonwealth through establishment and implementation of regulations, licensing, inspection, and programs that protect individuals and their environment from the potentially harmful effects of radiation.

(c) Transparency and coordination. The agency shall keep the public and all other legitimate interests as completely informed as possible on matters relating to radiation development and control, maintaining public transparency with limited exceptions only to prevent crime. The agency shall maintain a record and file of all license applications, issuances, denials, amendments, transfers, renewals, modifications, suspensions, and revocations. The agency shall, as far as possible and as relevant to its mission, assure the coordination of its programs with relevant local, state, and federal government authorities, departments, and agencies, including the Atomic Energy Commission.

(d) Duties. For the purpose of protecting the general public and individuals against hazards associated with the possession, use, transportation, storage, packaging, sale, distribution, production, and disposal thereof of ionizing and non-ionizing radiation, the agency shall adopt programs and regulations for issuance, amendment, suspension and revocation of general and specific licenses for electromagnetic radiative by-product, source, device, and equipment including, but not limited to, the following:

(1) The agency shall adopt rules and regulations for electromagnetic radiation exposures based on optimum exposure ranges, conditions, and limitations, and these shall be clear and accessible to the public and to applicants along with warnings with regard to non-compliance. Such rules and regulations shall be based on cautionary interpretations of current science.

(2) The agency shall manage the licensing of radioactive materials, registration of X-ray-producing machines, certification of medical and industrial X-ray and radioactive material users, registration of lasers, inspection of facilities using or emitting radiation, inspection of devices using or emitting radiation, investigation of radiation incidents, surveillance of radioactive contamination in the environment, inspection of decontamination compliance, and any other state-wide licensing, registration, certification, and inspection necessary for electromagnetic radiation products and services are safe for the public with regard to both ionizing and non-ionizing radiation.

(3) The agency shall adopt regulations that require personnel and facilities using radiation-producing equipment for medical and dental purposes to maintain and implement medical and dental quality assurance standards that protect the public health and safety by reducing unnecessary exposure to radiation while ensuring that images are of diagnostic quality. The standards shall require quality assurance tests to be performed on all radiation-producing equipment used for medical and dental purposes. For purposes of this section, “medical and dental quality assurance” means the detection of a change in X-ray and ancillary equipment that adversely affects the quality of films or images and the radiation dose to the patients, and the correction of this change.

(4) The agency shall promulgate rules and regulations that will ensure optimum exposure ranges for safe and effective diagnostic radiographic examinations. Such rules and regulations shall be no less stringent than the most current standards and guidelines developed by the National Council on Radiation Protection and Measurements, the American College of Radiology, the Conference of Radiation Control Program Directors and other pertinent national and international organizations. Such rules and regulations shall not limit the intentional exposure of patients to radiation for the purpose of lawful therapy or research conducted by licensed health professionals, but the rules and regulations shall make note of preferable and safer exposures and associated technologies. Such rules and regulations shall be filed with the state secretary at least thirty days prior to their effective date and shall become effective thirty days thereafter unless a later effective date is specified by the agency.

(5) The agency shall develop and manage a program to support a qui tam provision to deputize all citizens and allow any citizen to retain the services of a licensed technical expert to ascertain radiation exposures and compliance with regulations.

(6) The agency shall maintain a public registry of non-ionizing radiation specialists that provides the following public information: (i) name; (ii) services and frequency bands served; (iii) clientele (such as industry, residential, municipal); (iv) geographic region served; (v) equipment utilized and calibration; (vi) degree; (vii) relevant certifications, such as but not limited to the Building Biology EMRS certification; (viii) contact information, including website and hours of availability. Non-ionizing radiation specialists shall further provide a transcript of relevant education, proof of relevant certifications, a work sample to indicate basic competence, and basic interview – the agency may choose to refer to this process as state certification. Provided all of this information is provided, excepting website, non-ionizing radiation specialists may be included on the registry provided all of this information is provided.

(7) The agency shall retain at least 5 full-time non-ionizing radiation specialists to provide the following public services: (i) maintain and vet the non-ionizing radiation registry; (ii) monitor ambient non-ionizing radiation levels across the region; (iii) provide or assist with investigations of Indoor Air Quality; (iv) provide qui tam assistance as described in paragraph (5); (v) lead, manage, or assist with reducing non-ionizing radiation exposures in state buildings; (vi) assist with non-ionizing radiation product investigations or certifications; (vii) provide assistance to municipalities; and (viii) provide such other assistance as helpful to the needs of the agency and commonwealth.

(6) The agency shall investigate radiation incidents.

(7) The agency shall provide comprehensive advance planning and programs to deal with radiation emergencies from both ionizing and non-ionizing radiation.

(8) The agency shall coordinate with municipal, regional, and the department of public utilities to assure ongoing inspection of electrical infrastructure and other utilities for good power quality, limitation of ground current, and limits on field strength. The agency shall have the right to conduct its own investigations and shall share the data with the department of public utilities.

(9) The agency may provide a stamp of product certification regarding devices or products which meet the Building Biology non-ionizing radiation guidelines of no concern.

(10) The agency shall establish a state-wide registry of non-ionizing radiation antennas and an accompanying searchable database and a location map with exposure data that shall be freely available and easily accessible to the public that includes peak exposures and a visualization of higher versus lower exposure areas. For legal operation, full registration shall be required for federally licensed and unlicensed transmitting antennas. The agency shall establish a filing system for initial registration and subsequent updates to assure accuracy and public access. For personal devices purchased by consumers, the agency shall establish an alternate registration process and database which limits the consumer’s part in registration and focuses upon providing consumers with access to registration information. Excepting exemptions where not applicable to the antenna or device, registration shall include the following, and shall be formatted and may be further defined or expanded upon by the agency:

(i) GPS coordinates and street address, electromagnetic frequency, range and direction of signal, peak volts per meter or other equally accurate signal measurement at named distances appropriate to use, time period the signal transmits, and any other technical parameters of the transmitted signal or antenna required by the department;

(ii) Full legal contact information for all entities legally responsible for the safety of the antenna, including partners or board members where applicable, and including but not limited to the (A) installer; (B) manufacturer; (C) personal wireless service provider; (D) parent companies; (E) antenna or permit owner; and (F) property owner;

(iii) Where required by municipal, state, or federal law, a current copy of the certificates providing evidence of insurance with licensed third party providers, not a self-insured indemnity substitute, and the accompanying policies with insurance terms.

(iv) A report that the antenna or antennas, as used in actual practice, are safe and in compliance with town, state, and federal laws with respect to electromagnetic exposures, electromagnetic interference, engineering, and public safety, and for all of which the report is verified under oath, under penalties of perjury, by the person who prepared any such report and for which the sworn verification is attached.

(e) Inspection. The duly authorized inspectors of the agency shall have the power to enter at all reasonable times or at any time during relevant radiation emergency upon any private or public property subject to its jurisdiction for the purpose of determining whether there is compliance with or violation of sections five N to five Q, inclusive, or any rule, regulation, license, registration or order adopted or issued thereunder.

(f) Municipalities. Nothing in this chapter shall be construed as precluding municipalities from establishing additional permitting, inspection, and zoning requirements with regard to sources of radiation.

(g) Department of Labor. Nothing in this section shall prevent the department of labor standards from establishing rules and regulations for the protection of the health and safety of employees against radiation in any place of employment as defined in section one of chapter one hundred and forty-nine. Said department of labor standards shall consult with the department of public health at least thirty days prior to the adoption or modification of any rules or regulations insofar as they pertain to the health aspects of ionizing and non-ionizing radiation.

(h) Conflicts of Interest. All agency employees, including agency leadership, shall file a conflict of interest statement, which shall be freely available for public view, with the Secretary of State annually during employment that details any relevant conflicts of interest, including activities of immediate and extended family members.

No agency employee, including agency leadership, shall (1) have a history involving telecommunications, energy, IT, or utility industry clients; (2) have a current investment portfolio with conflicts of interest in the areas of energy, telecommunications, IT, or utilities; (3) accept gifts, paid speaking engagements, or payment other than the existing salary and funding provided by the agency, except where salary is inadequate and the payment is not tied to the energy, telecommunications, IT, or utilities industry sectors, and where such evidence is filed with the Secretary of State, including amount of payment and job; (4) take a lucrative assignment with the energy, telecommunications, IT, or utility industry sectors within 5 years after leaving the agency. A conflict of interest may be used as grounds for a civil suit, result in loss of any qualified immunity protections, and result in financial penalties, imprisonment, or both.

(i) Fees. The Agency may set reasonable fees for its services, including for registration and licensure, and may set a sliding scale fee.

SECTION 3. Chapter 111 of the General Laws is hereby amended by striking out Section 5O as appearing in the 2021 Official Edition and inserting in place thereof the following section:--

(a) Notice of violation. The Radiation Regulatory Agency, hereafter called the agency, shall issue notices of violation and orders as necessary to enforce the provisions of sections five N to five Q, inclusive, or any rule, regulation, license or registration adopted or issued under such sections. Such orders may include, but not be limited to, orders modifying, suspending or revoking licenses or registrations and orders requiring persons to cease any activity that is in violation of the provisions of said sections five N to five Q, inclusive, or any rule, regulation, license or registration adopted or issued by the department under said sections.

Such orders may include, but not be limited to, orders modifying, suspending, revoking licenses or registrations and orders requiring persons to cease any activity that is in violation of the provisions of said sections five N to five Q, inclusive, or any rule, regulation, license or registration adopted or issued under said sections.

Orders shall be issued after notice and an opportunity for a hearing except where public health, safety or the environment would be threatened by delay in the issuance of an order; in such circumstance, an opportunity for hearing shall be provided promptly after the issuance of such order.

(b) Hearing. Every action regarding violation shall be heard by a radiation tribunal consisting of a single justice of the superior court, one member of the jury, and a non-ionizing radiation technical expert of the agency who was not privy to the original finding. In favor of the public interest, every action and all accompanying evidence shall be logged with the court, shall be public, and shall in no case be sealed, although personal identifying birth date and social security number shall be censored from public records if present. The hearing shall serve to determine if violation occurred and where appropriate to set a civil penalty and sentence.

(c) Civil Penalty. In determining the amount of the civil penalty, the radiation tribunal shall consider the willfulness of the violation, the actual and potential danger or injury to the public health or the environment; the actual and potential cost of such damage or injury; the actual or potential danger or injury to the public health or the environment; the actual and potential cost of such damage or injury; the actual or potential cost to the commonwealth of enforcing the provisions of this chapter; whether the person being assessed the civil penalty did everything reasonable to prevent the failure to comply from occurring, to come into compliance promptly, and to remedy and mitigate whatever harm might have been done as a result of the failure to comply; whether the person being assessed the civil penalty has previously failed to comply with any other order issued pursuant to said sections five N to five Q, inclusive, or any rule or regulation adopted by the department thereunder; deterring future noncompliance; the financial condition of the person being assessed the civil penalty; and public safety and the public interest. Such civil penalty may be assessed whether or not the violation was willful.

Additionally, a fee shall be assessed to provide for notification of the public and nearby residents of the actual or predicted radiation exposure characteristics in comparison to municipal, state, and federal requirements and where to find information regarding the hearing.

(d) Enforcement. If, after a notice has been issued and an opportunity for a hearing has been provided, a person or facility still is not in compliance with an order issued pursuant to this section, or with any provision of section five N, five P or five Q or any such sections rule, regulation, license or registration adopted or issued under, the supreme judicial court or superior court, upon application of the tribunal or upon application of any party interested may enforce the provisions of said sections five N to five Q, inclusive, and any rule or regulation, license, registration or order adopted or issued thereunder by the department, when said court determines that any person has engaged in, or is about to engage in any act or practice which constitutes or will constitute a violation of such provision, rule, regulation, license, registration or order, and may restrain such act or practice or the use or occupation of premises or such parts thereof as the tribunal may specify until such provision, rule, regulation, license, registration or order have been complied with.

(e) Public Notice. If radiation exposures were non-compliant with rules and regulations, the agency shall inform the public and nearby residents of the actual or predicted radiation exposure characteristics in comparison to municipal, state, and federal requirements, as well as where to find information regarding the hearing.

(f) Qui Tam. Any resident may bring to the radiation tribunal evidence of a violation. Further, any resident with good cause may bring to district court a relevant personal injury case.

(g) Civil Penalty Fees. Excepting payment to provide funds for public notice, all civil penalties shall be provided to the Massachusetts General Fund for delegation by legislators.

SECTION 4. Chapter 111 of the General Laws is hereby amended by striking out Section 5P as appearing in the 2021 Official Edition and inserting in place thereof the following section:--

It shall be unlawful for any person to use, manufacture, produce, transfer, receive, acquire, own, or possess any source of ionizing radiation unless licensed, registered or exempted from licensing or registration requirements by the department pursuant to section five N. Any person who violates said section five N or five O, or any rule, regulation, license, registration or order adopted or issued under said section five N or five O shall be fined not less than 300 dollars and up to 2% of the preceding years’ income, including with respect to a business, or be imprisoned for a period of not more than two years, or both. Any person who continues to violate the provisions of this section after due notice shall be fined not less than one thousand dollars and up to 4% of the preceding years income, or be imprisoned for a period of not more than twenty years, or both. After due notice has been issued by the Radiation Regulatory Agency or Radiation Tribunal, each day of such violation shall constitute a separate offense.

SECTION 5. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out in line 1 the word “department” and inserting in place thereof the following phrase:--

Radiation Regulatory Agency, hereafter called agency,

SECTION 6. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the fifth sentence and inserting in place thereof the following:--

The agency may accept, in lieu of the above, certification by the American College of Radiology or other recognized organization as deemed status for licensing; provided, however, that the standards of said organization shall be no less stringent than the most current standards of the American College of Radiology as well as state and federal standards.

SECTION 7. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in the sixth sentence and inserting in place thereof:--

agency

SECTION 8. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (d) and inserting in place thereof:--

agency

SECTION 9. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (e) and inserting in place thereof:--

agency

SECTION 10. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (f) and inserting in place thereof:--

agency

SECTION 11. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (g) and inserting in place thereof:--

agency

SECTION 12. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (h) and inserting in place thereof:--

agency

SECTION 13. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (i) and inserting in place thereof:--

agency

SECTION 14. Section 5Q of Chapter 111 of the General Laws as appearing in the 2021 Official Edition is hereby amended by striking out the word “department” in subsection (e) and inserting in place thereof:--

agency

Name:	District/Address:	Date Added:
Kirstin Beatty	149 Central Park Drive, Holyoke, MA 01040	2/19/2021