Bill Text: TX SB1504 | 2011-2012 | 82nd Legislature | Enrolled

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Bill Title: Relating to the disposal or storage of waste at, or adjacent to, the Texas Low-Level Radioactive Waste Disposal Compact waste disposal facility.

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB1504 Detail]

Download: Texas-2011-SB1504-Enrolled.html

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S.B. No. 1504

AN ACT
relating to the disposal or storage of waste at, or adjacent to, the
Texas Low-Level Radioactive Waste Disposal Compact waste disposal
facility.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 401.2005, Health and Safety Code, is
amended by amending Subdivision (1) and adding Subdivisions (1-a),
(1-b), (6-a), (8), and (9) to read as follows:
(1) "Compact" means the Texas Low-Level Radioactive
Waste Disposal Compact established under Section 403.006.
(1-a) "Compact waste" means low-level radioactive
waste that:
(A) is originally generated onsite in a host
state or a party state; or
(B) is not generated in a host state or a party
state but has been approved for importation to this state by the
compact commission under Section 3.05 of the compact [established
under Section 403.006].
(1-b) "Curie capacity" means the amount of the
radioactivity of the waste that may be accepted by the compact waste
disposal facility as determined by the commission in the compact
waste disposal facility license.
(6-a) "Nonparty compact waste" means low-level
radioactive waste imported from a state other than a party state as
authorized under Section 3.05(6) of the compact.
(8) "Party state compact waste" means low-level
radioactive waste generated in a party state.
(9) "Waste of international origin" means low-level
radioactive waste that originates outside of the United States or a
territory of the United States, including waste subsequently stored
or processed in the United States.
SECTION 2. Section 401.207, Health and Safety Code, is
amended to read as follows:
Sec. 401.207. OUT-OF-STATE WASTE; NONPARTY COMPACT WASTE.
(a) The compact waste disposal facility license holder may not
accept low-level radioactive waste generated in another state for
disposal under a license issued by the commission unless the waste
is:
(1) accepted under a compact to which the state is a
contracting party;
(2) federal facility waste that the license holder is
licensed to dispose of under Section 401.216; or
(3) generated from manufactured sources or devices
originating in this state.
(b) The compact waste disposal facility license holder may
accept for disposal at the compact waste disposal facility approved
nonparty compact waste that is classified as Class A, Class B, or
Class C low-level radioactive waste in accordance with the compact
waste disposal facility license to the extent the acceptance does
not diminish the disposal volume or curie capacity available to
party states. The license holder may not accept any nonparty
compact waste for disposal at the facility until the license has
been modified by the commission to specifically authorize the
disposal of nonparty compact waste.
(c) The compact waste disposal facility license holder may
not accept waste of international origin for disposal at the
facility.
(d) The compact waste disposal facility license holder may
not accept for disposal at the compact waste disposal facility
nonparty compact waste that does not meet the waste characteristics
and waste forms for disposal applicable to compact waste as set
forth by the commission in the compact waste disposal facility
license. Before the license holder may accept nonparty compact
waste for disposal, the commission must certify through a written
evaluation that the waste is authorized for disposal under the
license. If the disposal is not authorized under the license, the
commission must inform the license holder of the license amendments
necessary to authorize the disposal.
(e) The compact waste disposal facility license holder may
not accept more than 50,000 total cubic feet of nonparty compact
waste annually. The compact waste disposal facility license holder
may not accept more than 120,000 curies of nonparty compact waste
annually, except that in the first year the license holder may
accept 220,000 curies. The legislature by general law may
establish revised limits after considering the results of the study
under Section 401.208.
(e-1) The commission's executive director, on completion of
the study under Section 401.208, may prohibit the license holder
from accepting any additional nonparty compact waste if the
commission determines from the study that the capacity of the
facility will be limited, regardless of whether the limit under
Subsection (f) has been reached.
(f) Of the total initial licensed capacity of the compact
waste disposal facility:
(1) not more than 30 percent of the volume and curie
capacity shall be for nonparty compact waste; and
(2) of the remaining capacity, not less than 80
percent of the volume and curie capacity shall be for compact waste
generated in the host state and 20 percent of the volume and curie
capacity shall be for compact waste generated in Vermont.
(g) The commission shall assess a surcharge for the disposal
of nonparty compact waste at the compact waste disposal facility.
The surcharge is 20 percent of the total contracted rate under
Section 401.2456 and must be assessed in addition to the total
contracted rate under that section.
(h) A surcharge collected under Subsection (g) shall be
deposited to the credit of the low-level radioactive waste fund.
(h-1) The commission shall conduct a study of the surcharge
described by Subsection (g) and, not later than December 1, 2016,
shall issue the results of the review to the legislature. The
commission shall review the operations and expenses of the compact
waste disposal facility license holder and shall require the
compact waste disposal facility license holder to provide
justification of disposal expenses and historical costs associated
with the facility through appropriate evidentiary and empirical
records, studies, and other applicable methodologies. The
commission shall consider the impact of the surcharge on the
overall revenue generated for the state and may request the
assistance of the comptroller in conducting the analysis of the
impact of the surcharge.
(i) The Texas Low-Level Radioactive Waste Disposal Compact
Commission by rule shall adopt procedures and forms for the
approval of the importation of nonparty compact waste.
(j) An application for the approval of the importation of
nonparty compact waste may be submitted to the Texas Low-Level
Radioactive Waste Disposal Compact Commission only by the generator
of the waste.
(k) The commission, in coordination with the Texas
Low-Level Radioactive Waste Disposal Compact Commission, shall
adopt rules establishing criteria and thresholds by which
incidental commingling of party state compact waste and waste from
other sources at a commercial processing facility is considered and
reasonably limited. The criteria and thresholds for commingling
under this subsection established by commission rule are binding on
any criteria and thresholds that may be established by the Texas
Low-Level Radioactive Waste Disposal Compact Commission.
SECTION 3. Subchapter F, Chapter 401, Health and Safety
Code, is amended by adding Sections 401.208 and 401.2085 to read as
follows:
Sec. 401.208. STUDY OF CAPACITY. (a) The commission shall
conduct a study on the available volume and curie capacity of the
compact waste disposal facility for the disposal of party state
compact waste and nonparty compact waste.
(b) The commission shall consider and make recommendations
regarding:
(1) the future volume and curie capacity needs of
party state and nonparty state generators and any additional
reserved capacity necessary to meet those needs;
(2) the calculation of radioactive decay related to
the compact waste disposal facility and radiation dose assessments
based on the curie capacity;
(3) the necessity of containerization of the waste;
(4) the effects of the projected volume and
radioactivity of the waste on the health and safety of the public;
and
(5) the costs and benefits of volume reduction and
stabilized waste forms.
(c) Not later than December 1, 2012, the commission shall
submit a final report of the results of the study to the standing
committees of the senate and the house of representatives with
jurisdiction over the disposal of low-level radioactive waste.
(d) The Texas Low-Level Radioactive Waste Disposal Compact
Commission shall use the study to anticipate the future capacity
needs of the compact waste disposal facility.
(e) The commission may conduct a study described by
Subsection (a) at any time after December 1, 2012, if the commission
determines that a study is necessary.
Sec. 401.2085. REVIEW OF FINANCIAL ASSURANCE. (a) The
commission shall conduct a review of the adequacy of the financial
assurance mechanisms of the compact waste disposal facility license
holder that were approved by the commission before January 1, 2011,
against projected post-closure costs, including a review of the
adequacy of funds for unplanned events. The review shall consider:
(1) the segregation of financial assurance funds from
other funds;
(2) the degree of risk that the financial instruments
are subject to financial reversal;
(3) potential post-closure risks associated with the
compact waste disposal facility; and
(4) the adequacy of the financial instruments to cover
the state's liabilities.
(b) Not later than December 1, 2012, the commission shall
submit a final report of the results of the review to the standing
committees of the senate and the house of representatives with
jurisdiction over the disposal of low-level radioactive waste.
SECTION 4. The heading to Section 401.245, Health and
Safety Code, is amended to read as follows:
Sec. 401.245. PARTY STATE COMPACT WASTE DISPOSAL FEES.
SECTION 5. Section 401.245, Health and Safety Code, is
amended by amending Subsections (a) and (b) and adding Subsections
(g) and (h) to read as follows:
(a) A compact waste disposal facility license holder who
receives party state compact [low-level radioactive] waste for
disposal pursuant to the compact [Texas Low-Level Radioactive Waste
Disposal Compact established under Chapter 403] shall have
collected a waste disposal fee to be paid by each person who
delivers party state compact [low-level radioactive] waste to the
compact waste disposal facility for disposal.
(b) The commission by rule shall adopt and periodically
revise party state compact waste disposal fees under this section
according to a schedule that is based on the projected annual volume
of low-level radioactive waste received, the relative hazard
presented by each type of low-level radioactive waste that is
generated by the users of radioactive materials, and the costs
identified in Section 401.246.
(g) For the purposes of a contested case involving the
adoption of fees under this section, only a party state generator of
low-level radioactive waste may be considered a person affected.
(h) The administrative law judge assigned to the contested
case involving the adoption of fees under this section shall issue a
proposal for decision on fees proposed by the commission not later
than the first anniversary of the date the State Office of
Administrative Hearings assumes jurisdiction of the case.
SECTION 6. Subchapter F, Chapter 401, Health and Safety
Code, is amended by adding Sections 401.2455 and 401.2456 to read as
follows:
Sec. 401.2455. INTERIM PARTY STATE COMPACT WASTE DISPOSAL
FEES. (a) The commission's executive director may establish
interim party state compact waste disposal fees effective only for
the period beginning on the date the compact waste disposal
facility license holder is approved to accept waste at the disposal
facility and ending on the effective date of the rules establishing
the fees under Section 401.245. A generator is not entitled to a
refund, and may not be charged a surcharge, for the disposal of
waste under interim fees once the final fees have been adopted.
(b) An extension of the period during which interim rates
apply may not be granted. If the State Office of Administrative
Hearings has not issued a proposal for decision before the
expiration of the period under Section 401.245(h), all disposal at
the compact waste disposal facility must cease until the rates are
adopted.
Sec. 401.2456. CONTRACTS FOR NONPARTY COMPACT WASTE
DISPOSAL. (a) At any time after the commission has granted
approval to begin operating the compact waste disposal facility,
the compact waste disposal facility license holder may contract
rates with nonparty compact waste generators for the disposal of
nonparty compact waste at the facility in accordance with the
compact waste disposal facility license.
(b) Rates and contract terms negotiated under this section
are subject to review and approval by the commission's executive
director to ensure they meet all of the requirements of this
section.
(c) Rates negotiated under this section must be set both by
a price per curie and a price per cubic foot. Fees resulting from
the negotiated rates must be greater than, as applicable:
(1) the compact waste disposal fees under Section
401.245 as set by the commission that are in effect at the time the
rates are negotiated; or
(2) the interim compact waste disposal fees under
Section 401.2455 as set by the commission's executive director that
are in effect at the time the rates are negotiated.
(d) A contract under this section must:
(1) be negotiated in good faith;
(2) conform to applicable antitrust statutes and
regulations; and
(3) be nondiscriminatory.
(e) Rates set under this section must generate fees
sufficient to meet the criteria for party state compact waste under
Sections 401.246(a) and (c).
SECTION 7. Section 401.246, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (c) to
read as follows:
(a) Party state compact [Compact] waste disposal fees
adopted by the commission under Section 401.245 must be sufficient
to:
(1) allow the compact waste facility license holder to
recover costs of operating and maintaining the compact waste
disposal facility and a reasonable profit on the operation of that
facility;
(2) provide an amount necessary to meet future costs
of decommissioning, closing, and postclosure maintenance and
surveillance of the compact waste disposal facility and the compact
waste disposal facility portion of the disposal facility site;
(3) provide an amount to fund local public projects
under Section 401.244;
(4) provide a reasonable rate of return on capital
investment in the facilities used for management or disposal of
compact waste at the compact waste disposal facility; and
(5) provide an amount necessary to pay compact waste
disposal facility licensing fees, to pay compact waste disposal
facility fees set by rule or statute, and to provide security for
the compact waste disposal facility as required by the commission
under law and commission rules.
(c) In determining compact waste disposal fees, the
commission shall only consider capital investment in property by
the compact waste disposal facility license holder that is used and
useful to the compact waste disposal facility as authorized under
this chapter. The commission may not consider the capital
investment costs or related costs incurred before September 1,
2003, in determining disposal fees.
SECTION 8. Subsection (b), Section 401.248, Health and
Safety Code, is amended to read as follows:
(b) The state may enter into compacts with another state or
several states for the disposal in this state of low-level
radioactive waste only if the compact:
(1) limits the total volume of all low-level
radioactive waste to be disposed of in this state from the other
party state or party states to 20 percent of the annual average of
low-level radioactive waste projected to be disposed of [that the
governor projects will be produced] in this state from [the years]
1995 through 2045;
(2) gives this state full administrative control over
management and operation of the compact waste disposal facility;
(3) requires the other state or states to join this
state in any legal action necessary to prevent states that are not
members of the compact from disposing of low-level radioactive
waste at the compact waste disposal facility;
(4) allows this state to charge a fee for the disposal
of low-level radioactive waste at the compact waste disposal
facility;
(5) requires the other state or states to join in any
legal action involving liability from the compact waste disposal
facility;
(6) requires the other state or states to share the
full cost of constructing the compact waste disposal facility;
(7) allows this state to regulate, in accordance with
federal law, the means and routes of transportation of the
low-level radioactive waste in this state;
(8) requires the other state or states to pay for
community assistance projects selected by the host county in an
amount not less than $1 million or 10 percent of the amount
contributed by the other state or states;
(9) is agreed to by the Texas Legislature, the
legislature of the other state or states, and the United States
Congress; and
(10) complies with all applicable federal law.
SECTION 9. Section 401.250, Health and Safety Code, is
amended to read as follows:
Sec. 401.250. PAYMENTS BY PARTY STATES.
(a) Notwithstanding any other provision of law, Act of the
legislature or the executive branch, or any other agreement, the
initial payment of $12.5 million due from each nonhost party state
under Section 5.01 of the compact established under Section 403.006
is due not later than November 1, 2003. In accordance with Section
7.01 of the compact, the host state establishes the following terms
and conditions for a state to become a party state to the compact
after January 1, 2011:
(1) the state must make an initial payment of half of
the total amount due to the host state under Subsection (b) on the
later of September 1, 2011, or the date the state becomes a party
state; and
(2) the state must pay the remainder of the amount owed
under Subsection (b) on the later of the date of the opening of the
compact waste disposal facility or the date the facility first
accepts waste from the state.
(b) Each state that becomes a party state:
(1) after January 1, 2011, and before September 1,
2018, shall contribute a total of $30 million to the host state,
including the initial payment under Subsection (a)(1); and
(2) on or after September 1, 2018, and before
September 1, 2023, shall contribute $50 million to the host state,
including the initial payment under Subsection (a)(1).
(c) The requirements of this section apply to a state that
becomes a party state after January 1, 2011, regardless of whether
the state had previously been a party to the compact. A state that
has withdrawn as a party state shall pay the previously committed
fee of $25 million in addition to the fees set in Subsection (b).
(d) A payment made under this section may not be refunded,
even if a party state withdraws from the compact.
(e) For the purposes of calculating the amount of a payment
required under Section 4.05(5) of the compact, the amount of a
payment under this section is considered to be a payment under
Article V of the compact.
(f) This section prevails over any other law or agreement in
conflict or inconsistent with this section.
SECTION 10. Section 401.271, Health and Safety Code, is
amended by adding Subsection (c) to read as follows:
(c) A holder of a license or permit issued by the commission
under this chapter or Chapter 361 that authorizes the storage,
other than disposal, of a radioactive waste or elemental mercury
from other persons shall remit each quarter to the commission for
deposit into the general revenue fund an amount equal to 20 percent
of the license or permit holder's gross receipts received from the
storage of the substance for any period exceeding one year. This
subsection applies only to the storage of the substance for any
period exceeding one year. This subsection applies only to the
storage of radioactive waste or elemental mercury at or adjacent to
the compact waste disposal facility.
SECTION 11. Subsection (d), Section 401.248, Health and
Safety Code, is repealed.
SECTION 12. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1504 passed the Senate on
April 13, 2011, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 25, 2011, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1504 passed the House, with
amendments, on May 18, 2011, by the following vote: Yeas 91,
Nays 38, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor