S.B. 177

1

HIGH LEVEL NUCLEAR WASTE
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Leonard M. Blackham
5 AN ACT RELATING TO STATE AFFAIRS AND THE ENVIRONMENT; DENYING LIMITED
6 LIABILITY FOR ORGANIZATIONS INVOLVED IN THE TRANSFER OR STORAGE OF
7 HIGH LEVEL NUCLEAR WASTE OR CERTAIN RADIOACTIVE WASTE WITHIN THE
8 STATE; REQUIRING THAT CERTAIN REQUESTS BY THESE ORGANIZATIONS
9 REGARDING TRANSPORTATION, SUCH AS GRADE CROSSINGS, EMINENT DOMAIN,
10 AND PROPERTY EASEMENTS MAY NOT BE GRANTED WITHOUT THE APPROVAL OF
11 THE GOVERNOR h WITH THE CONCURRENCE OF THE LEGISLATURE h .
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 19-3-315, as enacted by Chapter 348, Laws of Utah 1998
15 54-4-15, as last amended by Chapter 9, Laws of Utah 1975, First Special Session
16 78-34-6, Utah Code Annotated 1953
17 ENACTS:
18 19-3-318, Utah Code Annotated 1953
19 Be it enacted by the Legislature of the state of Utah:
20 Section 1. Section 19-3-315 is amended to read:
21 19-3-315. Transportation requirements.
22 (1) A person may not transport wastes in the state, including on highways, roads, rail, by
23 air, or otherwise, without:
24 (a) having received approval from the state Department of Transportation; and
25 (b) having demonstrated compliance with rules of the state Department of Transportation.
26 (2) The Department of Transportation may:
27 (a) make rules requiring a transport and route approval permit, weight restrictions, tracking

28 systems, and state escort; and
29 (b) assess appropriate fees as established under Section 63-38-3.2 for each shipment of
30 waste, consistent with the requirements and limitations of federal law.
31 (3) The Department of Environmental Quality shall establish any other transportation rules
32 as necessary to protect the public health, safety, and environment.
33 (4) Unless expressly authorized h [ in writing ] h by the governor, h WITH THE
33a CONCURRENCE OF THE LEGISLATURE , h an easement or other interest
34 in property may not be granted S UPON ANY LANDS WITHIN THE STATE s for a right of way for any
34a carrier transportation system that:
35 S [ (a) is not a common carrier; and
35a (a) IS NOT A CLASS I COMMON OR CONTRACT RAIL CARRIER ORGANIZED AND DOING BUSINESS
35b PRIOR TO JANUARY 1, 1999; AND s
36 (b) transports S [ wastes upon any lands ] HIGH LEVEL NUCLEAR WASTE OR GREATER THAN
36a CLASS C RADIOACTIVE WASTE TO A STORAGE FACILITY s within the state.
37 Section 2. Section 19-3-318 is enacted to read:
38 19-3-318. No limitation of liability regarding businesses involved in high level
39 radioactive waste.
40 (1) As used in this section:
41 (a) "Controlling interest" means:
42 (i) the direct or indirect possession of the power to direct or cause the direction of the
43 management and policies of an organization, whether through the ownership of voting interests,
44 by contract, or otherwise; or
45 (ii) the direct or indirect possession of a 10% or greater equity interest in an organization.
46 (b) "Equity interest holder" means a shareholder, member, partner, limited partner, trust
47 beneficiary, or other person whose interest in an organization:
48 (i) is in the nature of an ownership interest;
49 (ii) entitles the person to participate in the profits and losses of the organization; or
50 (iii) is otherwise of a type generally considered to be an equity interest.
51 (c) "Organization" means a corporation, limited liability company, partnership, limited
52 partnership, limited liability partnership, joint venture, consortium, association, trust, or other
53 entity formed to undertake an enterprise or activity, whether or not for profit.
54 (d) "Parent organization" means an organization with a controlling interest in another
55 organization.
56 (e) S (i) s "Subject activity" means S [ engaging in ] s :
57 S [ (i) ] (A) TO ARRANGE FOR OR ENGAGE IN s the transportation or transfer of high level nuclear waste or greater than class C
58 radioactive waste S TO OR FROM A STORAGE FACILITY IN THE STATE s ; or

59 S [ (ii) ] (B) TO ARRANGE FOR OR ENGAGE IN s the operation or maintenance of a storage
59a facility or a transfer facility for that waste.
59b S (ii) "SUBJECT ACTIVITY" DOES NOT INCLUDE THE TRANSPORTATION OF HIGH LEVEL NUCLEAR
59c WASTE OR GREATER THAN CLASS C RADIOACTIVE WASTE BY A CLASS I RAILROAD THAT WAS
59d DOING BUSINESS IN THE STATE AS A COMMON OR CONTRACT CARRIER BY RAIL PRIOR TO
59e JANUARY 1, 1999. s
60 (f) "Subsidiary organization" means an organization in which a parent organization has
61 a controlling interest.
62 (2) (a) The Legislature enacts this section because of the state's compelling interest in the
63 transportation, transfer, and storage of high level nuclear waste and greater than class C radioactive
64 waste in this state. Legislative intent supporting this section is further described in Section
65 19-3-302 .
66 (b) Limited liability for equity interest holders is a privilege, not a right, under the law and
67 is meant to benefit the state and its citizens. An organization engaging in subject activities has
68 significant potential to affect the health, welfare, or best interests of the state and should not have
69 limited liability for its equity interest holders. To shield equity interest holders from the debts and
70 obligations of an organization engaged in subject activities would have the effect of attracting
71 capital to enterprises whose goals are contrary to the state's interests.
72 (c) This section has the intent of revoking any and all statutory and common law grants
73 of limited liability for an equity interest holder of an organization that chooses to engage in a
74 subject activity in this state.
75 (d) This section shall be interpreted liberally to allow the greatest possible lawful recourse
76 against an equity interest holder of an organization engaged in a subject activity in this state for
77 the debts and liabilities of that organization.
77a S (e) THIS SECTION DOES NOT REDUCE OR AFFECT ANY LIABILITY LIMITATION OTHERWISE
77b GRANTED TO AN ORGANIZATION BY UTAH LAW IF THAT ORGANIZATION IS NOT ENGAGED IN A
77c SUBJECT ACTIVITY IN THIS STATE. s
78 (3) Notwithstanding any law to the contrary, if a domestic or foreign organization engages
79 in a subject activity in this state, no equity interest holder of that organization enjoys any shield
80 or limitation of liability for the acts, omissions, debts, and obligations of the organization incurred
81 in this state. Each equity interest holder of the organization is strictly and jointly and severally
82 liable for all these obligations.
83 (4) Notwithstanding any law to the contrary, each officer and director of an organization
84 engaged in a subject activity in this state is individually liable for the acts, omissions, debts, and
85 obligations of the organization incurred in this state.
86 (5) (a) Notwithstanding any law to the contrary, if a subsidiary organization is engaged in
87 a subject activity in this state, then each parent organization of the subsidiary is also considered
88 to be engaged in a subject activity in this state. Each parent organization's equity interest holders
89 and officers and directors are subject to this section to the same degree as the subsidiary's equity

90 interest holders and officers and directors.
91 (b) Subsection (5)(a) applies regardless of the number of parent organizations through
92 which the controlling interest passes in the relationship between the subsidiary and the ultimate
93 parent organization that controls the subsidiary.
94 (6) This section does not excuse or modify the requirements imposed upon an applicant
95 for a license by Subsection 19-3-306 (9).
96 Section 3. Section 54-4-15 is amended to read:
97 54-4-15. Establishment and regulation of grade crossings.
98 (1) No track of any railroad shall be constructed across a public road, highway or street
99 at grade, nor shall the track of any railroad corporation be constructed across the track of any other
100 railroad or street railroad corporation at grade, nor shall the track of a street railroad corporation
101 be constructed across the track of a railroad corporation at grade, without the permission of the
102 Department of Transportation having first been secured; provided, that this subsection shall not
103 apply to the replacement of lawfully existing tracks. The department shall have the right to refuse
104 its permission or to grant it upon such terms and conditions as it may prescribe.
105 (2) The department shall have the power to determine and prescribe the manner, including
106 the particular point of crossing, and the terms of installation, operation, maintenance, use and
107 protection of each crossing of one railroad by another railroad or street railroad, and of a street
108 railroad by a railroad and of each crossing of a public road or highway by a railroad or street
109 railroad, and of a street by a railroad or vice versa, and to alter or abolish any such crossing, to
110 restrict the use of such crossings to certain types of traffic in the interest of public safety and is
111 vested with power and it shall be its duty to designate the railroad crossings to be traversed by
112 school buses and motor vehicles carrying passengers for hire, and to require, where in its judgment
113 it would be practicable, a separation of grades at any such crossing heretofore or hereafter
114 established, and to prescribe the terms upon which such separation shall be made and the
115 proportions in which the expense of the alteration or abolition of such crossings or the separation
116 of such grades shall be divided between the railroad or street railroad corporations affected, or
117 between such corporations and the state, county, municipality or other public authority in interest.
118 (3) Whenever the department shall find that public convenience and necessity demand the
119 establishment, creation or construction of a crossing of a street or highway over, under or upon the
120 tracks or lines of any public utility, the department may by order, decision, rule or decree require

121 the establishment, construction or creation of such crossing, and such crossing shall thereupon
122 become a public highway and crossing.
123 (4) (a) The commission [shall retain] retains exclusive jurisdiction for the resolution of any
124 dispute upon petition by any person aggrieved by any action of the department pursuant to this
125 section, except as provided under Subsection (4)(b).
126 (b) If a petition is filed by a person or entity engaged in a subject activity, as defined in
127 Section 19-3-318 , the commission's decision under Subsection (4)(a) regarding resolution of a
128 dispute requires the concurrence of the governor h AND THE LEGISLATURE h in order to take
128a effect.
129 Section 4. Section 78-34-6 is amended to read:
130 78-34-6. Complaint -- Contents.
131 The complaint must contain:
132 (1) the name of the corporation, association, commission or person in charge of the public
133 use for which the property is sought, who must be styled plaintiff[.];
134 (2) the names of all owners and claimants of the property, if known, or a statement that
135 they are unknown, who must be styled defendants[.];
136 (3) a statement of the right of the plaintiff[.];
137 (4) if a right of way is sought, the complaint must show its location, general route and
138 termini, and must be accompanied by a map thereof, so far as the same is involved in the action
139 or proceeding[.];
140 (5) if any interest in land is sought for a right of way or associated facilities for a subject
141 activity as defined in Section 19-3-318 :
142 (a) the h [ written ] h permission of the governor h WITH THE CONCURRENCE OF THE
142a LEGISLATURE h authorizing:
143 (i) use of the site for a subject activity; and
144 (ii) use of the proposed route for a subject activity; and
145 (b) the proposed route as required by Subsection (4); and
146 [(5)] (6) a description of each piece of land sought to be taken, and whether the same
147 includes the whole or only part of an entire parcel or tract. All parcels lying in the county and
148 required for the same public use may be included in the same or separate proceedings, at the option
149 of the plaintiff, but the court may consolidate or separate them to suit the convenience of parties.

Legislative Review Note
as of 2-10-99 4:39 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel