78R7082 JTS-F
By: West H.B. No. 1567
A BILL TO BE ENTITLED
AN ACT
relating to the disposal of low-level radioactive waste.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 401.052(c), (d), and (f), Health and
Safety Code, are amended to read as follows:
(c) In adopting [promulgating] rules under this section,
the board shall consult with the advisory board [and the
commission].
(d)(1) Fees assessed under the rules adopted under
Subsection (b)(5) [this section shall]:
(A) may not exceed $10 per cubic foot of shipped
low-level radioactive waste;
(B) shall be collected by the low-level
radioactive waste disposal license holder [authority] and remitted
to the department for deposit [deposited] to the credit of the
radiation and perpetual care fund; and
(C) may be used only [exclusively] by the
department for emergency planning for and response to
transportation accidents or other incidents involving low-level
radioactive waste.
(2) Fee assessments under the rules adopted under
Subsection (b)(5) [this section] shall be suspended when the amount
of fees collected reaches $500,000, except that if the balance of
fees collected is reduced to $350,000 or less, the assessments
shall be reinstituted to bring the balance of fees collected to
$500,000.
(f) In this section, "shipper" [:
[(1) "Shipper"] means a person who generates low-level
radioactive waste and ships or arranges with others to ship the
waste to a disposal site.
[(2) "Authority" means the Texas Low-Level
Radioactive Waste Disposal Authority.]
SECTION 2. Section 401.104(b), Health and Safety Code, is
amended to read as follows:
(b) Except as provided by Subsection (e), the commission by
rule shall provide for licensing for the disposal of radioactive
material except for the disposal of by-product material defined by
Section 401.003(3)(B) and the disposal of low-level radioactive
waste under Subchapter F. The department by rule shall provide for
licensing the disposal of by-product material defined by Section
401.003(3)(B).
SECTION 3. Section 401.106(a), Health and Safety Code, is
amended to read as follows:
(a) The board by rule or the department on a case-by-case
basis may exempt a source of radiation or a kind of use or user from
the licensing or registration requirements provided by this chapter
if the board or department finds that the exemption of that source
of radiation or kind of use or user will not constitute a
significant risk to the public health and safety and the
environment.
SECTION 4. Section 401.153(b), Health and Safety Code, is
amended to read as follows:
(b) A rule adopted under this section may not take effect
before the 24th month preceding the opening date of a low-level
radioactive waste disposal site authorized under Subchapter F
[Chapter 402,] and expires on the date [that] the disposal site
opens.
SECTION 5. Subchapter F, Chapter 401, Health and Safety
Code, is amended to read as follows:
SUBCHAPTER F. SPECIAL PROVISIONS CONCERNING LOW-LEVEL
RADIOACTIVE WASTE DISPOSAL
Sec. 401.2005. DEFINITIONS. In this subchapter:
(1) "Compact waste" means low-level radioactive waste
that:
(A) is generated 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.
(2) "Disposal facility" means the low-level
radioactive waste disposal facility licensed by the department
under this subchapter.
(3) "Federal facility waste" means low-level
radioactive waste that is the responsibility of the federal
government under the Low-Level Radioactive Waste Policy Act, as
amended by the Low-Level Radioactive Waste Policy Amendments Act of
1985 (42 U.S.C. Sections 2021b-2021j).
(4) "Host state" has the meaning assigned by Section
2.01 of the compact established under Section 403.006.
(5) "Party state" has the meaning assigned by Section
2.01 of the compact established under Section 403.006.
Sec. 401.201. REGULATION OF LOW-LEVEL RADIOACTIVE WASTE
DISPOSAL. The department [commission] shall directly regulate the
disposal of low-level radioactive waste in accordance with this
subchapter. The person making the disposal shall comply with this
subchapter and department [commission] rules.
Sec. 401.202. LICENSING AUTHORITY. (a) The [commission
or] department may [, within its respective jurisdiction, shall]
grant, deny, renew, revoke, suspend, or withdraw licenses for the
disposal of low-level radioactive waste from other persons and for
the processing of that waste.
(b) The department shall receive applications for and may
issue not more than one license for a low-level radioactive waste
disposal facility. The department may issue the license only for a
facility that meets:
(1) requirements for licensing provided by this
subchapter and by department rules; and
(2) requirements for disposal adopted by the
department that are as stringent as necessary to meet federal
requirements for disposal.
(c) Except as provided by Section 401.216, the department
shall provide that the disposal facility license authorizes only
the disposal of compact waste.
[Sec. 401.203. LICENSE RESTRICTED TO PUBLIC ENTITY. A
low-level radioactive waste disposal license may be issued only to
a public entity specifically authorized by law for low-level
radioactive waste disposal.]
Sec. 401.204. ACQUISITION OF PROPERTY. An application for
a disposal facility license [to dispose of low-level radioactive
waste from other persons] may not be considered unless the
applicant has acquired the title to and any interest in land and
buildings as required by department [commission] rule.
Sec. 401.205. RESPONSIBILITIES OF PERSONS LICENSED TO
DISPOSE OF LOW-LEVEL RADIOACTIVE WASTE. (a) The disposal facility
license holder [A person who is licensed to dispose of low-level
radioactive waste from other persons] shall:
(1) arrange for and pay the costs of management,
control, stabilization, and disposal of low-level radioactive
waste and the decommissioning of the licensed activity;
(2) convey to the state when the license is issued all
necessary right, title, and interest in land and buildings acquired
under department [commission] rules, together with requisite
rights of access to that property; and
(3) formally acknowledge before termination of the
license the conveyance to the state of the right, title, and
interest in low-level radioactive waste located on the property
conveyed.
(b) The disposal facility license holder, if authorized
under Section 401.216 to dispose of federal facility waste, shall:
(1) arrange for and pay the costs of management,
control, stabilization, and disposal of federal facility waste and
the decommissioning of the authorized federal facility waste
disposal activity;
(2) on decommissioning of the authorized federal
facility waste disposal activity, convey to the federal government
or its designee, as provided by the federal Nuclear Waste Policy Act
of 1982, Subtitle D (42 U.S.C. Section 10171 et seq.), as amended,
all necessary right, title, and interest in land and buildings
acquired under department rules, together with requisite rights of
access to that property; and
(3) formally acknowledge before termination of the
authorization the conveyance to the federal government or its
designee of the right, title, and interest in radioactive waste
located on the property conveyed.
Sec. 401.2051. CONVEYANCE OF WASTE. (a) The disposal
facility license holder shall convey to the state at no cost to the
state title to the compact waste delivered to the disposal facility
for disposal at the time the waste is accepted at the site. This
section does not apply to federal facility waste accepted at a
disposal facility authorized under Section 401.216 to dispose of
federal facility waste.
(b) The title and all related rights and interest in compact
waste conveyed under this section are the property of the
department on the state's behalf. The department may administer
the waste as property in the name of the state.
Sec. 401.206. RESIDENT INSPECTOR. (a) The disposal
facility license holder [of a license to dispose of low-level
radioactive waste from other persons] shall reimburse the
department [commission] for the salary and other expenses of a
resident inspector employed by the department [commission].
(b) The department [commission] may require that the
disposal facility license holder provide facilities at the [a]
disposal site for the resident inspector.
Sec. 401.207. OUT-OF-STATE WASTE. The disposal facility
[A] license holder may not accept low-level radioactive waste
generated in another state for [processing or] disposal under a
license issued by the department unless the waste [is]:
(1) is accepted under a compact to which the state is a
contracting party;
(2) is from a state having an operating low-level
radioactive waste disposal site at which that state is willing to
accept low-level radioactive waste generated in this state; [or]
(3) is generated from manufactured sources or devices
originating in this state; or
(4) is federal facility waste disposed of under an
authorization granted under Section 401.216.
Sec. 401.209. ACQUISITION AND OPERATION OF LOW-LEVEL
RADIOACTIVE WASTE DISPOSAL SITES. (a) The department [commission]
may acquire the fee simple title in land, affected mineral rights,
and buildings at which low-level radioactive waste can be or is
being disposed of in a manner consistent with public health and
safety and the environment.
(b) Property acquired under this section may be used only
for disposing of low-level radioactive waste until the department
[commission] determines that another use would not endanger the
health, safety, or general welfare of the public or the
environment.
(c) The department [commission] may lease property acquired
under this section for operating disposal sites for low-level
radioactive waste.
(d) The right, title, and interest in low-level radioactive
waste accepted for disposal at property and facilities acquired
under this section and any other interest acquired under this
chapter are the property of the department [commission], acting on
behalf of the state, and shall be administered and controlled by the
department [commission] in the name of the state.
(e) A right, title, or interest acquired under this chapter
does not vest in any fund created by the Texas Constitution.
Sec. 401.210. TRANSFER COSTS OF PROPERTY. Low-level
radioactive waste and land and buildings transferred to the state
or to the federal government under this chapter shall be
transferred to the state or to the federal government without cost,
other than administrative and legal costs incurred in making the
transfer.
Sec. 401.211. LIABILITY. (a) The transfer [to the state]
of the title to low-level radioactive waste and land and buildings
to the state or to the federal government does not relieve a license
holder of liability for any act or omission [fraudulent or
negligent acts] performed before the transfer or while the
low-level radioactive waste or land and buildings are in the
possession and control of the license holder.
(b) The acceptance, storage, or disposal of low-level
radioactive waste by the disposal facility license holder does not
create any liability under state law on the part of the state, or on
the part of any officer or agency of the state, for damages,
removal, or remedial action with respect to the land, the facility,
or the low-level radioactive waste accepted, stored, or disposed
of.
(c) The low-level radioactive waste disposal facility
license must require the license holder to indemnify the state for
any liability imposed on the state under state or federal law, as
required by the department.
Sec. 401.212. MONITORING, MAINTENANCE, AND EMERGENCY
MEASURES. The department [commission] may undertake monitoring,
maintenance, and emergency measures that are necessary to protect
the public health and safety and the environment in connection with
low-level radioactive waste and property for which it has assumed
custody.
Sec. 401.213. INTERSTATE COMPACTS. The department
[commission] shall cooperate with and encourage the use of
interstate compacts, including the Southern States Energy Board, to
develop regional sites that divide among the states the disposal
burden of low-level radioactive waste generated in the region.
Sec. 401.214. REGIONAL DISPOSAL FACILITY. The disposal
facility licensed under this subchapter is the regional disposal
facility established and operated under the compact established
under Chapter 403 for purposes of the federal Low-Level Radioactive
Waste Policy Act, as amended by the Low-Level Radioactive Waste
Policy Amendments Act of 1985 (42 U.S.C. Sections 2021b-2021j).
Sec. 401.215. ACCEPTANCE OF LOW-LEVEL RADIOACTIVE WASTE.
Subject to limitations provided by Sections 401.207 and 401.245,
the disposal facility shall accept for disposal all compact waste
that is presented to it and that is properly processed and packaged.
Sec. 401.216. FEDERAL FACILITY WASTE DISPOSAL. (a) The
department may authorize the disposal facility license holder to
dispose of federal facility waste. The department may authorize
federal facility waste disposal only at a separate and distinct
facility adjacent to the facility at which compact waste is
disposed of.
(b) The department may restrict the amount and type of
federal facility waste the license holder may accept at the
separate adjacent facility. The restrictions must be based on the
performance objective established by 10 C.F.R. Section 61.41.
(c) The department may not allow commingling of compact
waste and federal facility waste.
Sec. 401.217. LOCATION OF LOW-LEVEL RADIOACTIVE WASTE
DISPOSAL SITE. The department may not issue a license for a
low-level radioactive waste disposal facility located:
(1) in a county that is contiguous with an
international boundary;
(2) in a county in which the average annual rainfall is
greater than 20 inches;
(3) in a county that adjoins river segment 2309, 2310,
or 2311 as identified by the commission in the Texas Surface Water
Quality Standards, 30 T.A.C. Section 307.10(3);
(4) in a 100-year flood plain; or
(5) less than 20 miles upstream of or up-drainage from
the maximum elevation of the surface of a reservoir project that:
(A) has been constructed or is under construction
by the United States Bureau of Reclamation or the United States Army
Corps of Engineers; or
(B) has been approved for construction by the
Texas Water Development Board as part of the state water plan under
Subchapter C, Chapter 16, Water Code.
Sec. 401.218. DISPOSAL OF CERTAIN WASTE. (a) In this
section, "Class B low-level radioactive waste" and "Class C
low-level radioactive waste" have the meanings assigned by
department rule.
(b) The disposal facility license holder shall dispose of
Class B low-level radioactive waste and Class C low-level
radioactive waste:
(1) within a reinforced concrete barrier or within
containment structures made of materials technologically
equivalent or superior to reinforced concrete; and
(2) in such a manner that the waste can be monitored
and retrieved.
Sec. 401.219. TECHNIQUES FOR MANAGING LOW-LEVEL
RADIOACTIVE WASTE. (a) As a condition for obtaining a disposal
facility license, an applicant must submit to the department or its
designee evidence relating to the reasonableness of any technique
for managing low-level radioactive waste to be practiced at the
proposed disposal facility.
(b) Before determining the techniques to be used for
managing low-level radioactive waste, an applicant shall study
alternative techniques, including:
(1) waste processing and reduction at the site of
waste generation and at the disposal facility; and
(2) the use of aboveground isolation facilities.
Sec. 401.220. DESIGN OF FACILITY. The design of a disposal
facility should incorporate, to the extent practicable, safeguards
against hazards resulting from local meteorological conditions,
including phenomena such as hurricanes, tornados, earthquakes,
earth tremors, violent storms, and susceptibility to flooding.
Sec. 401.221. MIXED WASTE. (a) In this section, "mixed
waste" means a combination of hazardous waste as defined by Chapter
361 and low-level radioactive waste.
(b) The disposal facility license holder in accepting mixed
waste at the disposal facility shall comply with Chapter 361, the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901 et seq.), as amended, and this chapter.
Sec. 401.222. TERM OF LICENSE. The disposal facility
license issued under this subchapter expires on the 35th
anniversary of its date of issuance.
Sec. 401.223. HEALTH SURVEILLANCE SURVEY. The department
and local public health officials shall develop a health
surveillance survey for the population located in the vicinity of
the disposal facility.
Sec. 401.224. PACKAGING OF RADIOACTIVE WASTE. The
department shall adopt rules relating to the packaging of
radioactive waste.
Sec. 401.225. SHIPMENT OF LOW-LEVEL RADIOACTIVE WASTE. (a)
On arrival of a shipment of low-level radioactive waste at the
disposal facility, the disposal facility license holder must
determine that the waste complies with all laws, rules, and
standards relating to processing and packaging of low-level
radioactive waste before the waste is accepted for disposal at the
disposal facility.
(b) A person making a shipment of low-level radioactive
waste that is in excess of 75 cubic feet shall give the disposal
facility license holder written notice of the shipment at least 72
hours before shipment to the disposal facility begins. The written
notice must contain information required by the board.
Sec. 401.226. IMPROPERLY PROCESSED OR PACKAGED LOW-LEVEL
RADIOACTIVE WASTE. (a) If low-level radioactive waste that is not
properly processed or packaged arrives at the disposal facility,
the disposal facility license holder shall properly process and
package the waste for disposal and charge the person making the
shipment a fee to have the low-level radioactive waste properly
processed and packaged.
(b) The disposal facility license holder shall report to the
federal and state agencies that establish rules and standards for
processing, packaging, and transporting low-level radioactive
waste any person who delivers to the disposal facility low-level
radioactive waste that is not properly processed or packaged.
Sec. 401.227. SELECTION OF APPLICATION FOR DISPOSAL
FACILITY LICENSE. (a) In selecting an application for the disposal
facility license, the department and commissioner shall proceed as
follows:
(1) The department shall issue notice of the
opportunity to submit an application to dispose of low-level
radioactive waste in accordance with Section 401.228.
(2) The commissioner shall review all applications
received under Subdivision (1) for administrative completeness.
(3) The commissioner shall evaluate all
administratively complete applications in accordance with the
evaluation criteria established by Sections 401.233-401.236 and
shall select the application that has the highest comparative merit
in accordance with Section 401.232.
(4) The commissioner shall review the selected
application under Subdivision (3) for technical completeness and
issue a draft license in accordance with Sections 401.237 and
401.238.
(b) If the selected application is rejected or denied by the
department, the commissioner may select the next highest
comparative merit application and proceed in accordance with
Subsection (a)(4).
Sec. 401.228. NOTICE TO RECEIVE APPLICATIONS. Not later
than October 1, 2003, the department shall give to the secretary of
state for publication in the Texas Register notice that:
(1) the department will accept applications for a
30-day period, beginning 180 days after the date of the Texas
Register notice, for the siting, construction, and operation of
facilities for disposal of low-level radioactive waste;
(2) applications must comply with Chapter 401, Health
and Safety Code, the rules of the department, and any other
applicable requirements in the commissioner's discretion;
(3) applications must include a nonrefundable
$500,000 commitment fee;
(4) applications received within the 30-day
application receipt period will be evaluated by the commissioner
for administrative completeness;
(5) applications deemed administratively complete
will be evaluated by the commissioner in accordance with the
statutory evaluation criteria under Sections 401.233-401.236; and
(6) based on the commissioner's evaluation, one
application will be selected to be processed by the department.
Sec. 401.229. COMMITMENT FEE. (a) An application for a
low-level radioactive waste disposal license must include payment
to the department of a commitment fee of $500,000. The department
may not review an application for administrative completeness until
the department receives the commitment fee. The commitment fee is
nonrefundable.
(b) In the event that the application processing fees as
determined by the commissioner exceed the amount of the commitment
fee, the commitment fee shall be credited by the commissioner to an
applicant's payment of the application processing fees.
Sec. 401.230. RECEIPT OF APPLICATIONS. (a) For a 30-day
period beginning 180 days after the date notice is published under
Section 401.228, the department shall accept applications for the
disposal of low-level radioactive waste.
(b) Not later than the 45th day after the date an
application is received, the commissioner shall issue an
administrative notice of deficiency to each applicant whose
application is timely submitted but is determined by the
commissioner to be administratively incomplete.
(c) The department shall provide an applicant for whom an
administrative notice of deficiency is issued not more than three
opportunities to cure the noted deficiencies in the application not
later than the 90th day after the date the first notice of
deficiency is issued.
(d) The commissioner shall reject any application that,
after the period for correcting deficiencies has expired, is not
administratively complete.
Sec. 401.231. ADMINISTRATIVELY COMPLETE APPLICATION. The
department shall consider as administratively complete an
application for which the department has received the portions of
the application necessary to allow the department to review the
technical merits of the application, including:
(1) the identity and qualifications of the applicant;
(2) a description of the proposed disposal facility
and disposal facility site;
(3) a description of the character of the proposed
activities and the types and quantities of waste to be managed at
the disposal facility;
(4) a description of the proposed schedules for
construction, receipt of waste, and closure;
(5) a description of the financial assurance mechanism
to be used;
(6) a description of the design features of the
facility, along with a description of the methods of construction
and operation of the facility;
(7) a characterization of the area and site
characteristics, including ecology, geology, soils, hydrology,
natural radiation background, climatology, meteorology,
demography, and current land uses;
(8) a description of the safety programs to be used at
the proposed facility;
(9) a copy of the warranty deed or other conveyance
showing necessary right, title, and interest in the land and
buildings on which the facility is proposed to be located is owned
in fee by the applicant;
(10) a commitment fee in the amount of $500,000 in
accordance with Section 401.229 and proof of additional funds
sufficient to cover any further costs of processing the application
as estimated by the commissioner; and
(11) a copy of a resolution of support of the proposed
facility from the commissioners court of the county in which the
facility is proposed to be located.
Sec. 401.232. EVALUATION OF APPLICATIONS; COMMISSIONER
SELECTION. (a) The commissioner shall have prepared by department
personnel or an independent contractor a written evaluation of each
administratively complete application in terms of the criteria
established under Sections 401.233-401.236.
(b) The commissioner shall conduct at least one public
meeting in each county, as applicable, to receive public comments
on the administratively complete applications. The commissioner
shall set the time and place of the meetings as soon as practicable
after the close of the period for administrative review of the
applications.
(c) The commissioner may issue a request for further
information to each applicant whose application is determined by
the commissioner to be insufficient for the purposes of the
commissioner's evaluation.
(d) The commissioner shall provide an applicant for whom a
request for further information is issued two opportunities to
adequately respond in the discretion of the commissioner not later
than the 60th day after the date the request for further information
is issued.
(e) The commissioner shall use the written evaluations and
application materials to evaluate each application according to the
statutory criteria established by Sections 401.233-401.236. The
commissioner shall evaluate each application for each statutory
criterion for purposes of comparing the relative merit of the
applications, giving:
(1) equal weight to each criterion within a tier of
criteria; and
(2) the greatest weight to tier 1 criteria, greater
weight to tier 2 criteria than to tier 3 criteria, and the least
weight to tier 4 criteria.
(f) The commissioner, based on the written evaluations and
application materials, shall select the application that has the
highest comparative merit.
Sec. 401.233. TIER 1 CRITERIA. (a) The commissioner shall
consider as tier 1 criteria:
(1) the natural characteristics of the site for a
proposed disposal facility;
(2) the adequacy of the proposed disposal facility and
activities to safely isolate, shield, and contain low-level
radioactive waste from mankind and mankind's environment; and
(3) the adequacy of financial assurance related to the
proposed activities.
(b) Natural characteristics of the disposal site include:
(1) the suitability of the site for the proposed
activities, including the site's:
(A) geological characteristics;
(B) topography, including features relating to
erosion;
(C) surface and underground hydrology;
(D) meteorological factors; and
(E) natural hazards;
(2) the compatibility of disposal activities with any
uses of land near the disposal site that could affect the natural
performance of the site or that could affect monitoring of the
disposal facility and site;
(3) the adequacy of prelicense monitoring data and
background monitoring plans for the disposal site, including
analysis of the ambient conditions of the site and established
trends of the site's natural parameters, including:
(A) natural background radioactivity levels;
(B) radon gas levels;
(C) air particulate levels;
(D) soil characteristics, including chemical
characteristics;
(E) surface water and groundwater
characteristics; and
(F) flora and fauna at the site;
(4) the possible effects of disposal activities on
flora and fauna at or near the site; and
(5) the ease of access to the site.
(c) Adequacy of the proposed disposal facility and
activities includes:
(1) the capability of the proposed disposal facility
and activities to isolate, shield, and contain low-level
radioactive waste in conformity with federal standards;
(2) acceptable operational safety; and
(3) acceptable long-term safety as demonstrated by
analysis or study.
(d) Financial assurance criteria include:
(1) adequacy of the applicant's financial
qualifications to conduct the licensed activities as proposed,
including any required decontamination, decommissioning,
reclamation, or disposal and control and maintenance of the
disposal site and facility after the cessation of active
operations;
(2) the adequacy of the applicant's financial
assurance in an amount and type acceptable to the department and
adequate to cover potential injury to any property or person;
(3) the adequacy of the applicant's financial
security, as required by department rules; and
(4) the degree of certainty that the applicant will be
able to maintain adequate financial security.
Sec. 401.234. TIER 2 CRITERIA. The commissioner shall
consider as tier 2 criteria:
(1) the suitability of facilities at the site that are
associated with proposed activities and the adequacy of their
engineering and design; and
(2) the suitability of the proposed disposal facility
for the chemical, radiological, and biological characteristics of
the low-level radioactive waste as classified under the system
established under Section 401.053.
Sec. 401.235. TIER 3 CRITERIA. The commissioner shall
consider as tier 3 criteria the applicant's:
(1) technical qualifications to receive, store,
process, and dispose of low-level radioactive waste;
(2) experience in management and disposal of low-level
radioactive waste and other radioactive materials;
(3) previous operating practices in this state and
elsewhere, including the practices of a parent, subsidiary, or
affiliated entity of the applicant, related to radioactive
materials;
(4) record of compliance with environmental statutes,
rules, and licenses in this state and in any other jurisdiction,
including the records of a parent or subsidiary of the applicant;
(5) training programs proposed for its employees whose
duties relate to the proposed site and activities;
(6) monitoring, recordkeeping, and reporting plans;
(7) low-level radioactive waste spill detection and
cleanup plans for the proposed site and activities;
(8) decommissioning and postclosure plans;
(9) security plans;
(10) monitoring and protection plans for workers;
(11) emergency plans;
(12) plans for background monitoring during the
license period, including analysis of the ambient conditions of the
site and analysis of established trends of the site's natural
parameters, including:
(A) natural background radioactivity levels;
(B) radon gas levels;
(C) air particulate levels;
(D) soil characteristics, including chemical
characteristics;
(E) surface water and groundwater
characteristics; and
(F) flora and fauna at the site; and
(13) ability to adequately manage the proposed
disposal facility and activities for the term of the license.
Sec. 401.236. TIER 4 CRITERIA. The commissioner shall
consider as tier 4 criteria:
(1) the compatibility of uses of land near the
proposed site that could be affected by the construction and
operation of the disposal facility; and
(2) possible socioeconomic effects of the proposed
disposal facility, its operation, and related transportation of
low-level radioactive waste to the disposal facility on communities
in the host county.
Sec. 401.237. TECHNICAL REVIEW. (a) Immediately on the
commissioner's selection of the application that has the highest
comparative merit in accordance with Section 401.232, the
department shall begin a technical review of the selected
application.
(b) The commissioner shall complete the technical review
and prepare a draft license not later than the 15th month after the
month in which the technical review begins.
(c) The department shall give priority to the review of the
selected application over all other radioactive materials and waste
licensing and registration matters pending before the department.
Sec. 401.238. NOTICE OF DRAFT LICENSE AND OPPORTUNITY FOR
HEARING. On completion of the technical review of the selected
application and preparation of the draft license, the commissioner
shall publish, at the applicant's expense, notice of the draft
license and specify the requirements for requesting a contested
case hearing by a person affected. The notice shall include a
statement that the draft license is available for review on the
department's website and that the draft license and the application
materials are available for review at the offices of the department
and in the county in which a site for the proposed disposal facility
is located. Notice shall be published in the Texas Register and in
a newspaper of general circulation in each county in which a site
for the proposed disposal facility is located. The applicant shall
mail the notice by certified mail to each person who owns land
adjacent to the site of the proposed disposal facility.
Sec. 401.239. CONTESTED CASE; FINAL ACTION ON APPLICATION.
(a) An administrative law judge of the State Office of
Administrative Hearings shall conduct a contested case hearing on
the application and draft license if:
(1) the applicant or a person affected requests a
hearing; and
(2) the department refers the issue to the State
Office of Administrative Hearings.
(b) The administrative law judge may not admit as a party to
the contested case hearing a person other than the applicant, the
commissioner, or a person affected.
(c) The department may not refer an issue to the State
Office of Administrative Hearings for a hearing unless:
(1) the request complies with department rules and the
notice of draft license published under Section 401.238; and
(2) the department determines that the issue:
(A) involves a disputed question of fact; and
(B) is relevant and material to the decision on
the application.
(d) If the department grants a request for a contested case
hearing, it shall:
(1) limit the number and scope of the issues to be
referred to the State Office of Administrative Hearings for a
hearing; and
(2) consistent with the nature and number of the
issues to be considered at the hearing, specify the maximum
expected duration of the hearing.
(e) The administrative law judge shall issue a proposal for
decision not later than the first anniversary of the publication
date of the notice of draft license published under Section
401.238.
(f) The department shall take final action on the proposal
for decision of the administrative law judge not later than the 90th
day after the date the proposal is issued.
Sec. 401.240. JUDICIAL REVIEW. (a) Notwithstanding any
other law, a person affected by an action of the commissioner or the
department under this subchapter may file a petition for judicial
review of the action only after the department takes final action on
a license application under Section 401.239(f). A petition must be
filed not later than the 30th day after the date of the final
action.
(b) In its review of an action under this subchapter, a
court may not substitute its judgment for the judgment of the
commissioner or the department on the weight of the evidence the
commissioner or department considered, but:
(1) may affirm the action in whole or in part; and
(2) shall reverse or remand the case for further
proceedings if substantial rights of the petitioner have been
prejudiced because the administrative findings, inferences,
conclusions, or decisions:
(A) are in violation of a constitutional or
statutory provision;
(B) are in excess of the agency's statutory
authority;
(C) are made through unlawful procedure;
(D) are affected by other error of law;
(E) are not reasonably supported by substantial
evidence considering the reliable and probative evidence in the
record as a whole; or
(F) are arbitrary or capricious or characterized
by abuse of discretion or clearly unwarranted exercise of
discretion.
SECTION 6. Section 402.252, Health and Safety Code, is
transferred to Subchapter F, Chapter 401, Health and Safety Code,
renumbered as Section 401.241, and amended to read as follows:
Sec. 401.241 [402.252]. HOST COUNTY [LOCAL] PUBLIC
PROJECTS. (a) The disposal facility license holder each quarter
[board] shall [quarterly] transfer [money in the low-level
radioactive waste fund generated by planning and implementation fee
surcharges under Sections 402.2721(e) and (f), and that portion of
waste disposal fees identifiable as adopted for the purposes of
Sections 402.273(a)(3) and (b)] to the commissioners court of the
host county 10 percent of the gross receipts from waste received at
the disposal facility and any facility adjacent to the disposal
facility that is authorized under Section 401.216 to receive
federal facility waste.
(b) The commissioners court of the host county may:
(1) spend the money for [local] public projects in the
host county; or
(2) disburse the money to other local entities or to
public nonprofit corporations to be spent for local public
projects.
(c) Money received from the disposal facility license
holder [low-level radioactive waste fund] under this section may be
spent only for [local] public projects in the host county that are
for the use and benefit of the public at large. [The board shall
adopt guidelines for the expenditure of money received under this
section, and the commissioners court shall spend or disburse the
money for use according to those guidelines.]
(d) Funds received by the commissioners court of the host
county under this section are not loans or grants-in-aid subject to
review by a regional planning committee under Chapter 391, Local
Government Code. [Annually the commissioners court shall provide
to the board a detailed accounting of the money held, expended, or
disbursed by the county.]
SECTION 7. Section 402.219, Health and Safety Code, is
transferred to Subchapter F, Chapter 401, Health and Safety Code,
renumbered as Section 401.245, and amended to read as follows:
Sec. 401.245 [402.219]. LIMITATIONS ON LOW-LEVEL
RADIOACTIVE WASTE DISPOSAL. (a) Except as provided by an
interstate compact, a disposal facility [site] may accept only
low-level radioactive waste that is generated in this state.
(b) The board by rule shall exclude from a disposal facility
[site] certain types of low-level radioactive waste that are
incompatible with disposal operations.
(c) 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
state or states to 20 percent of the annual average of low-level
radioactive waste 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 disposal facility [site];
(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 disposal facility [site];
(4) allows this state to charge a fee for the disposal
of low-level radioactive waste at the disposal facility [site];
(5) requires the other state or states to join in any
legal action involving liability from the disposal facility [site];
(6) requires the other state or states to share the
full cost of constructing the disposal facility [site];
(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.
(d) This section does not affect the ability of this state
to transfer low-level radioactive waste to another state.
(e) If this state enters into a compact with another state
and the terms of the compact conflict with this section, the terms
of the compact control.
SECTION 8. Sections 402.272, 402.273, and 402.276, Health
and Safety Code, are transferred to Subchapter F, Chapter 401,
Health and Safety Code, renumbered as Sections 401.242, 401.243,
and 401.244, and amended to read as follows:
Sec. 401.242 [402.272]. WASTE DISPOSAL FEES. (a) A
disposal facility license holder who receives low-level
radioactive waste for disposal pursuant to the Texas Low-Level
Radioactive Waste Disposal Compact established under Chapter 403
[The board] shall have collected a waste disposal fee to be paid by
each person who delivers low-level radioactive waste to the
facility [authority] for disposal.
(b) An applicant for the disposal facility license shall
submit to the department for review and approval in the application
process a schedule of the proposed waste disposal fees it expects to
collect under this section.
(c) The disposal facility license holder [board by rule]
shall [adopt and] periodically revise waste disposal fees 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 401.243 [402.273].
[(c)] In determining relative hazard, the disposal facility
license holder [board] shall consider the radioactive, physical,
and chemical properties of each type of low-level radioactive
waste.
(d) The disposal facility license holder may request from
the department an amendment to its license as waste disposal fees
are periodically revised.
Sec. 401.243 [402.273]. WASTE DISPOSAL FEE
CRITERIA. [(a)] Waste disposal fees collected by a disposal
facility license holder who receives low-level radioactive waste
for disposal pursuant to the Texas Low-Level Radioactive Waste
Disposal Compact established under Chapter 403 [adopted by the
board] must be sufficient to:
(1) allow the license holder [authority] to recover
operating and maintenance costs plus a reasonable profit;
(2) provide an amount necessary to meet future costs
of decommissioning, closing, and postclosure maintenance and
surveillance of the disposal facility and site;
(3) provide an amount to fund local public projects
under Section 401.241 [Subchapter I];
(4) provide a reasonable rate of return on capital
investment in the facilities used for management or disposal of
compact waste; and [an amount sufficient to fund, in whole or in
part, a rangeland and wildlife management plan;]
(5) provide an amount necessary to pay licensing fees,
to pay fees set by rule or statute, and to provide security required
by the department [commission] under law and department
[commission] rules[; and
[(6) provide an amount necessary to fund debt service
and necessary fees and charges, including insurance premiums and
similar costs, associated with the issuance and payment of bonds
under Subchapter K].
[(b) This subsection applies only if the authority does not
issue bonds under Subchapter K. The waste disposal fees must also
include an amount sufficient to allow the authority to recover
expenses incurred before beginning operation of the disposal site
amortized over a period of not more than 20 years beginning on the
first day of operation of the disposal site. The fees must be
sufficient to recover the depository interest that the general
revenue fund would have earned had the fund not been used to pay
expenses incurred before the disposal site begins operation.
Depository interest recovered under this subsection shall be
deposited to the credit of the general revenue fund. Principal
recovered under this subsection shall be deposited to the credit of
the general revenue fund until the amount deposited has fully
reimbursed the fund for expenses paid from the fund before the
disposal site begins operation. The remainder of the principal
shall be deposited as provided by Section 402.272(a).
[(c) The amount required by Subsection (a)(3) may not be
less than 10 percent of the annual gross receipts from waste
received at the disposal site.]
Sec. 401.244 [402.276]. REASONABLE AND NECESSARY EXPENSES.
Fees paid under this subchapter are reasonable and necessary
expenses for ratemaking purposes.
SECTION 9. Section 401.301(b), Health and Safety Code, is
amended to read as follows:
(b) The board by rule shall set the fee in an amount that may
not exceed the actual expenses annually incurred to:
(1) process applications for licenses or
registrations;
(2) amend or renew licenses or registrations;
(3) make inspections of license holders and
registrants; and
(4) enforce this chapter and rules, orders, licenses,
and registrations under this chapter[; and
[(5) collect payments to the low-level radioactive
waste fund and general revenue as provided by Section 402.2721].
SECTION 10. Section 403.001(a), Health and Safety Code, is
amended to read as follows:
(a) The governor shall appoint six members to represent this
state on the commission established by Article III of the Texas
Low-Level Radioactive Waste Disposal Compact. One of the voting
members of the compact commission shall be a legal resident of the
host county [Hudspeth County, Texas].
SECTION 11. Section 51.0511, Natural Resources Code, is
amended to read as follows:
Sec. 51.0511. SALE OR LEASE OF LAND FOR RADIOACTIVE WASTE
DISPOSAL SITE. Subchapter F [E], Chapter 401 [402], Health and
Safety Code, regarding the sale or lease of permanent school fund
land for purposes of a disposal site prevails over provisions of
this chapter, Chapters 32, 52, and 53 of this code, and the board's
rules relating to the sale or lease of permanent school fund land to
the extent of any conflict.
SECTION 12. Section 5.013(a), Water Code, is amended to
read as follows:
(a) The commission has general jurisdiction over:
(1) water and water rights including the issuance of
water rights permits, water rights adjudication, cancellation of
water rights, and enforcement of water rights;
(2) continuing supervision over districts created
under Article III, Sections 52(b)(1) and (2), and Article XVI,
Section 59, of the Texas Constitution;
(3) the state's water quality program including
issuance of permits, enforcement of water quality rules, standards,
orders, and permits, and water quality planning;
(4) the determination of the feasibility of certain
federal projects;
(5) the adoption and enforcement of rules and
performance of other acts relating to the safe construction,
maintenance, and removal of dams;
(6) conduct of the state's hazardous spill prevention
and control program;
(7) the administration of the state's program relating
to inactive hazardous substance, pollutant, and contaminant
disposal facilities;
(8) the administration of a portion of the state's
injection well program;
(9) the administration of the state's programs
involving underground water and water wells and drilled and mined
shafts;
(10) the state's responsibilities relating to regional
waste disposal;
(11) the responsibilities assigned to the commission
by Chapters 361, 363, 382, and 401, [and 402,] Health and Safety
Code;
(12) the administration of the national flood
insurance program;
(13) administration of the state's water rate program
under Chapter 13 of this code; and
(14) any other areas assigned to the commission by
this code and other laws of this state.
SECTION 13. Sections 401.153 and 401.306, Health and Safety
Code, and Chapter 402, Health and Safety Code, are repealed.
SECTION 14. This Act takes effect September 1, 2003.