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.