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By: West, Chisum, Smith of Harris H.B. No. 1567
(Senate Sponsor - Bivins)
(In the Senate - Received from the House April 24, 2003;
April 25, 2003, read first time and referred to Committee on
Natural Resources; May 2, 2003, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 7, Nays 2;
May 2, 2003, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 1567 By: Jackson
A BILL TO BE ENTITLED
AN ACT
relating to the disposal of low-level radioactive waste;
authorizing the exercise of the power of eminent domain.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 401.003(11), Health and Safety Code, is
amended to read as follows:
(11) "Perpetual care account" ["Fund"] means the
radiation and perpetual care account [fund].
SECTION 2. Sections 401.052(b), (c), (d), (e), and (f),
Health and Safety Code, are amended to read as follows:
(b) Rules adopted under this section for low-level
radioactive waste must [shall]:
(1) to the extent practicable, be compatible with
United States Department of Transportation and United States
Nuclear Regulatory Commission regulations relating to the
transportation of low-level radioactive waste;
(2) require each shipper and transporter of low-level
radioactive waste to adopt an emergency plan approved by the
department for responding to transportation accidents;
(3) require the notification and reporting of
accidents to the department and to local emergency planning
committees in the county where the accident occurs;
(4) require each shipper to adopt a quality control
program approved by the department to verify that shipping
containers are suitable for shipment to a licensed disposal
facility; [and]
(5) assess a fee on shippers for shipments to a Texas
low-level radioactive waste disposal facility of low-level
radioactive waste originating in Texas or out-of-state; and
(6) require a transporter to carry liability insurance
in an amount the board determines is sufficient to cover damages
likely to be caused by a shipping accident in accordance with
regulations imposed by the United States Department of
Transportation and the United States Nuclear Regulatory
Commission.
(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 compact waste
disposal facility license holder under Subchapter F [authority] and
remitted to the department for deposit [deposited] to the credit of
the [radiation and] perpetual care account [fund]; and
(C) may be used only [exclusively] by the
department for emergency planning for and response to
transportation accidents 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.
(e) Money expended from the [radiation and] perpetual care
account [fund] to respond to accidents involving low-level
radioactive waste must be reimbursed to the [radiation and]
perpetual care account [fund] by the responsible shipper or
transporter according to rules adopted by the board.
(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 3. Subchapter C, Chapter 401, Health and Safety
Code, is amended by adding Section 401.071 to read as follows:
Sec. 401.071. GENERAL POWERS OF COMMISSION IN RELATION TO
LOW-LEVEL RADIOACTIVE WASTE. (a) The commission may:
(1) conduct, request, and participate in studies,
investigations, and research relating to selection, preparation,
construction, operation, maintenance, decommissioning, closing,
and financing of disposal sites for and disposal of low-level
radioactive waste; and
(2) advise, consult, and cooperate with the federal
government, the state, interstate agencies, local governmental
entities in this state, and private entities on matters involving
the disposal of low-level radioactive waste.
(b) In carrying out its duties under this section the
commission may:
(1) apply for, receive, accept, and administer gifts,
grants, and other funds available from any source; and
(2) contract with the federal government, the state,
interstate agencies, local governmental agencies, and private
entities.
SECTION 4. 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 5. Section 401.109, Health and Safety Code, is
amended to read as follows:
Sec. 401.109. SECURITY. (a) The department or commission
may require a holder of a license issued by the agency to provide
security acceptable to the agency to assure performance of the
license holder's obligations under this chapter. The department or
commission shall deposit security or evidence of security provided
under this section to the credit of the perpetual care account.
(b) The department or commission shall require a holder of a
license that authorizes the disposal of low-level radioactive waste
as provided by Subchapter F to provide security acceptable to the
agency to assure performance of the license holder's obligations
under this chapter.
(c) The amount and type of security required shall be
determined under the agency's rules in accordance with criteria
that include:
(1) the need for and scope of decontamination,
decommissioning, reclamation, or disposal activity reasonably
required to protect the public health and safety and the
environment;
(2) reasonable estimates of the cost of
decontamination, decommissioning, reclamation, and disposal as
provided by Section 401.303; and
(3) the cost of perpetual maintenance and
surveillance, if any.
(d) [(c)] In this section "security" includes:
(1) a cash deposit;
(2) a surety bond;
(3) a certificate of deposit;
(4) an irrevocable letter of credit;
(5) a deposit of government securities;
(6) an insurance policy; and
(7) [(6)] other security acceptable to the agency.
SECTION 6. Section 401.152(b), Health and Safety Code, is
amended to read as follows:
(b) The agency shall use the security provided by the
license holder to pay the costs of actions that are taken or that
are to be taken under this section. The agency shall send to the
comptroller a copy of its order together with necessary written
requests authorizing the comptroller to:
(1) enforce security supplied by the license holder;
(2) convert an amount of security into cash, as
necessary; and
(3) disburse from the security in the perpetual care
account [fund] the amount necessary to pay the costs.
SECTION 7. 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) "Compact waste disposal facility" means the
low-level radioactive waste disposal facility licensed by the
department under this subchapter for the disposal of compact waste.
(3) "Disposal facility site" means the tract of land
on which is located the compact waste disposal facility and the
federal facility waste disposal facility, if applicable. The term
includes the immediate area surrounding the facility or facilities.
(4) "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).
(5) "Federal facility waste disposal facility" means a
facility for the disposal of federal facility waste licensed under
Section 401.216.
(6) "Host state" has the meaning assigned by Section
2.01 of the compact established under Section 403.006.
(7) "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 single compact 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 meet federal requirements for disposal.
(c) Except as provided by Section 401.216, the department
shall provide that the compact waste 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. (a) An application
for a compact waste 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.
(b) If an applicant for a compact waste disposal license is
unsuccessful in acquiring a mineral right that the rules adopted
under Subsection (a) require the applicant to acquire, the
department may allow the applicant, to the extent permissible under
federal law, to enter into a surface use agreement that restricts
mineral access, including slant drilling and subsurface mining, to
the extent necessary to prevent intrusion into the disposal
facility site.
(c) If an applicant cannot reach a surface use agreement
described by Subsection (b) with a private landowner, the attorney
general shall, on request of the department, institute condemnation
proceedings as provided under Chapter 21, Property Code, to acquire
fee simple interest in the mineral right.
Sec. 401.205. RESPONSIBILITIES OF PERSONS LICENSED TO
DISPOSE OF LOW-LEVEL RADIOACTIVE WASTE. (a) The compact waste
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 compact [low-level
radioactive] waste and the decommissioning of the licensed
activity;
(2) convey to the state when the license is issued all
required right, title, and interest in land and buildings acquired
under department [commission] rules adopted under Section 401.204,
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 compact [low-level radioactive] waste located on the
property conveyed.
(b) The compact waste disposal facility license holder, if
licensed 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 licensed federal facility waste disposal
activity;
(2) on decommissioning of the licensed federal
facility waste disposal activity, convey to the federal government,
as provided by the federal Nuclear Waste Policy Act of 1982,
Subtitle D (42 U.S.C. Section 10171 et seq.), as amended, all
required right, title, and interest in land and buildings acquired
under department rules under Section 401.204, together with
requisite rights of access to that property; and
(3) formally acknowledge before termination of the
license the conveyance to the federal government of the right,
title, and interest in radioactive waste located on the property
conveyed.
Sec. 401.2051. CONVEYANCE OF WASTE. (a) The compact waste
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. Acceptance occurs when the acceptance criteria specified
in the license have been satisfied. This section does not apply to
federal facility waste accepted at a federal facility waste
disposal facility.
(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 compact waste
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 two or
more [a] resident inspectors [inspector] employed by the department
[commission].
(b) The department [commission] may require that the
compact waste disposal facility license holder provide facilities
at the [a] disposal site for the resident inspectors [inspector].
Sec. 401.207. OUT-OF-STATE WASTE. The compact waste
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 [commission]
unless the waste is:
(1) accepted under a compact to which the state is a
contracting party;
(2) federal facility waste that the license holder is
licensed to dispose of under Section 401.216 [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) generated from manufactured sources or devices
originating in this state.
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 a disposal site [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 federal
facility waste by the compact waste disposal facility license
holder at a federal facility waste disposal facility 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 waste accepted, stored, or disposed of.
(c) The compact 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 for the disposal of federal facility waste.
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 UNDER COMPACT.
The compact waste 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 401.248,
the compact waste 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 license the compact waste disposal facility license
holder to dispose of federal facility waste. The department may
license federal facility waste disposal only at a separate and
distinct facility that is operated exclusively for the disposal of
federal facility waste and that is adjacent to the compact waste
disposal facility.
(b) In addition to any restrictions imposed by the
performance objective established by 10 C.F.R. Section 61.41, the
compact waste disposal facility may not accept for disposal more
than 10 million cubic yards of federal facility waste at the federal
facility waste disposal facility.
(c) The department may not allow commingling of compact
waste and federal facility waste.
(d) The compact waste disposal facility license holder may
not accept federal facility waste at a federal facility waste
disposal facility until the license holder is ready to accept
compact waste at the compact waste disposal facility.
Sec. 401.217. LOCATION OF DISPOSAL FACILITY SITE. The
department may not issue a license for a compact waste disposal
facility or license the operation of a federal facility waste
disposal facility if the disposal facility site is located:
(1) in a county any part of which is located 62 miles
or less from 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 A low-level radioactive waste," "Class B low-level
radioactive waste," and "Class C low-level radioactive waste" have
the meanings assigned by department rule.
(b) The compact waste 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 container and 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.
(c) The department by rule may require a compact waste
disposal facility license holder to dispose of certain Class A
low-level radioactive wastes that present a hazard because of their
high radiation levels in the manner required for Class B low-level
radioactive waste and Class C low-level radioactive waste under
Subsection (b). To the extent practicable, rules adopted under
this subsection shall be consistent with federal rules regarding
classification of low-level radioactive waste under 10 C.F.R. Part
61.
Sec. 401.219. TECHNIQUES FOR MANAGING LOW-LEVEL
RADIOACTIVE WASTE. (a) As a condition for obtaining a compact
waste 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 or facilities.
(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 and includes federal mixed
waste.
(b) The compact waste disposal facility license holder in
accepting mixed waste at the compact waste disposal facility or a
federal facility waste 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 compact waste disposal
facility license issued under this subchapter expires on the 15th
anniversary of its date of issuance and may be renewed for one or
more terms of 10 years.
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 site.
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
compact waste disposal facility or a federal facility waste
disposal facility, the compact waste 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
facility.
(b) A person making a shipment of low-level radioactive
waste that is in excess of 75 cubic feet shall give the compact
waste disposal facility license holder written notice of the
shipment at least 72 hours before shipment to the compact waste
disposal facility or a federal facility waste disposal facility
begins. The written notice must contain information required by
the department.
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 compact waste
disposal facility or a federal facility waste disposal facility,
the compact waste 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 compact waste 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 compact
waste disposal facility or a federal facility waste disposal
facility low-level radioactive waste that is not properly processed
or packaged.
Sec. 401.227. SELECTION OF APPLICATION FOR COMPACT WASTE
DISPOSAL FACILITY LICENSE. (a) In selecting an application for the
compact waste disposal facility license, the department shall:
(1) issue notice of the opportunity to submit an
application to dispose of low-level radioactive waste in accordance
with Section 401.228;
(2) review all applications received under
Subdivision (1) for administrative completeness;
(3) 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; and
(4) 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 department 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 January 1, 2004, 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 a
facility or 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 department's discretion;
(3) applications must include a nonrefundable
$500,000 application processing fee;
(4) applications received within the 30-day
application receipt period will be evaluated by the department for
administrative completeness;
(5) applications deemed administratively complete
will be evaluated by the department in accordance with the
statutory evaluation criteria under Sections 401.233-401.236; and
(6) based on the department's evaluation, one
application will be selected to be processed by the department.
Sec. 401.229. APPLICATION PROCESSING FEE. An application
for a compact waste disposal facility license must include payment
to the department of an application processing fee of $500,000. The
department may not review an application for administrative
completeness until the department receives the application
processing fee. The application processing fee is nonrefundable.
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 a
compact waste disposal facility license.
(b) Not later than the 45th day after the date an
application is received, the department shall issue an
administrative notice of deficiency to each applicant whose
application is timely submitted but is determined by the department
to be administratively incomplete.
(c) The department shall provide an applicant for whom an
administrative notice of deficiency is issued not more than three
30–day opportunities to cure the noted deficiencies in the
application.
(d) The department 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 or
facilities 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 or facilities;
(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 or facilities, along with a description of the methods of
construction and operation of the facility or facilities;
(7) a characterization of the area and disposal
facility 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 or facilities;
(9) a copy of the warranty deed or other conveyance
showing required right, title, and interest in the land and
buildings on which the facility or facilities are proposed to be
located is owned in fee by the applicant as required by Section
401.204;
(10) an application processing fee in the amount
prescribed by Section 401.229 and proof of additional funds
sufficient to cover any further costs of processing the application
as estimated by the department; and
(11) a copy of a resolution of support of the proposed
facility or facilities from the commissioners court of the county
in which the facility or facilities are proposed to be located.
Sec. 401.232. EVALUATION OF APPLICATIONS; DEPARTMENT
SELECTION. (a) The department 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 department shall conduct at least one public meeting
in the county or counties where a compact waste disposal facility or
federal facility waste disposal facility is to be located to
receive public comments on the administratively complete
applications. The department 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 department may issue a request for further
information to each applicant whose application is determined by
the department to be insufficient for the purposes of the
department's evaluation.
(d) The department shall provide an applicant for whom a
request for further information is issued two 30–day opportunities
to adequately respond in the discretion of the department.
(e) The department 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
department 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) Before publication of the notice of the department's
intention to accept applications under Section 401.228, the
department by rule may adopt criteria in addition to the criteria
under Sections 401.233–401.236 by which the department may evaluate
applications. The criteria must be consistent with those sections.
(g) Not later than the 180th day after it receives the last
timely filed application, the department, 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 department shall
consider as tier 1 criteria:
(1) the natural characteristics of the disposal
facility site for a proposed disposal facility or facilities;
(2) the adequacy of the proposed facility or
facilities 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 facility 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 site that could affect the natural performance
of the site or that could affect monitoring of the disposal facility
or facilities and disposal facility site;
(3) the adequacy of plans for the collection of
prelicense monitoring data and background monitoring plans for the
disposal facility 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 or
facilities and activities includes:
(1) the capability of the proposed facility or
facilities 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:
(A) conduct the licensed activities as proposed,
including:
(i) any required decontamination,
decommissioning, reclamation, or disposal; and
(ii) control and maintenance of the
disposal facility site and facility or facilities after the
cessation of active operations; and
(B) address any unanticipated extraordinary
events that would pose a risk to public health and safety and the
environment and that may occur at the disposal facility site after
decommissioning and closure of the disposal facility or facilities;
(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 department 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
or facilities 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 department 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,
subject to Section 401.243;
(5) training programs proposed for its employees whose
duties relate to the proposed disposal facility site and
activities;
(6) monitoring, recordkeeping, and reporting plans;
(7) low-level radioactive waste spill detection and
cleanup plans for the proposed disposal facility 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
disposal facility site and analysis of established trends of the
disposal facility 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 or facilities and activities for the term of the
license.
Sec. 401.236. TIER 4 CRITERIA. The department shall
consider as tier 4 criteria:
(1) the compatibility of uses of land near the
proposed disposal facility site that could be affected by the
construction and operation of the disposal facility or facilities;
and
(2) possible socioeconomic effects on communities in
the host county of:
(A) the proposed disposal facility or
facilities;
(B) the operation of the proposed disposal
facility or facilities; and
(C) related transportation of low-level
radioactive waste to the disposal facility or facilities.
Sec. 401.237. TECHNICAL REVIEW. (a) Immediately on the
department'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 department 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,
except those the commissioner determines necessary to avert or
address a health and safety emergency.
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 department
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 or counties in which the proposed disposal
facility site is located. Notice shall be published in the Texas
Register and in a newspaper of general circulation in each county in
which the proposed disposal facility site is located. The
applicant shall mail the notice by certified mail to each person who
owns land adjacent to the proposed disposal facility site.
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 the applicant or a person
affected requests a hearing.
(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 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.
(d) 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(d). 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 department'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.
Sec. 401.241. SECURITY. (a) In determining the amount of
security required of a compact waste disposal facility license
holder under Section 401.109, the department shall also consider
the need for financial security to address and prevent unplanned
events that pose a risk to public health and safety and that may
occur after the decommissioning and closure of the compact waste
disposal facility or a federal facility waste disposal facility
licensed under Section 401.216.
(b) The amount of security required of a license holder
under this section may not be less than $20 million at the time the
disposal facility site is decommissioned. The department shall use
interest earned on the security to offset any other financial
obligations incurred by the license holder to the department. The
department shall establish a schedule for the total payment of the
amount of the security required under this section based on:
(1) the amount of low-level radioactive waste received
at the site;
(2) the long-term risk to health, safety, and the
environment posed by the waste; and
(3) the need to address and prevent unplanned events
that pose a risk to public health and safety.
(c) In addition to the forms of security listed under
Section 401.109(d), the department may require a license holder
under this subchapter to provide security in the form of liability
insurance.
Sec. 401.242. ACCEPTANCE OF WASTE. (a) The department
shall require the compact waste disposal facility license holder to
follow, as closely as is possible, the schedule submitted to the
department under Section 401.231. If the compact waste disposal
facility license holder holds a permit to process, store, or
dispose of hazardous waste under Chapter 361, the license holder
may accept hazardous waste according to the schedule under Section
401.231 before the compact waste disposal facility begins
operation.
(b) If the department finds that the compact waste disposal
facility license holder has violated this chapter or any department
rule in a manner that may endanger public health or safety, the
director of the Bureau of Radiation Control may prohibit the
license holder from accepting low-level radioactive waste at either
the compact waste disposal facility or the federal facility waste
disposal facility until the department finds that the license
holder is in compliance with the statute or rule found to be
violated.
Sec. 401.243. COMPLIANCE HISTORY. After an opportunity for
a hearing, the department shall deny an application for a license
under this subchapter or an amendment or renewal for a license under
this subchapter if the applicant's compliance history reveals a
recurring pattern of conduct that demonstrates a consistent
disregard for the regulatory process through a history of
violations of this chapter or the department's rules under this
chapter.
SECTION 8. Section 402.252, Health and Safety Code, is
transferred to Subchapter F, Chapter 401, Health and Safety Code,
renumbered as Section 401.244, and amended to read as follows:
Sec. 401.244 [402.252]. HOST COUNTY [LOCAL] PUBLIC
PROJECTS. (a) Subject to Section 401.2446, the compact waste
disposal facility license holder each quarter [The 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 5 percent of the gross receipts from:
(1) compact waste received at the compact waste
disposal facility; and
(2) any federal facility waste received at a federal
facility waste disposal facility licensed under Section 401.216.
(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 compact waste 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) Money received by the commissioners court of the host
county under this section is not a loan or grant-in-aid subject to
review by a regional planning commission 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 9. Subchapter F, Chapter 401, Health and Safety
Code, is amended by adding Sections 401.2445 and 401.2446 to read as
follows:
Sec. 401.2445. STATE FEE. Subject to Section 401.2446, the
compact waste disposal facility license holder each quarter shall
transfer to the state general revenue fund five percent of the gross
receipts from:
(1) compact waste received at the compact waste
disposal facility; and
(2) any federal facility waste received at a federal
facility waste disposal facility licensed under Section 401.216.
Sec. 401.2446. COMPETITIVE ADJUSTMENTS FOR STATE FEE AND
HOST COUNTY PUBLIC PROJECT FEES. (a) The department periodically
shall review the host county and state fees and similar fees or
charges imposed on all comparable, privately operated low-level
radioactive waste disposal facilities in operation in the United
States and shall determine the highest combined rate of host county
and state fees and similar fees or charges.
(b) The department shall set the combined rate of surcharges
imposed on gross receipts under Sections 401.244 and 401.2445 to be
the lower of:
(1) 10 percent; or
(2) a rate equal to the sum of the highest combined
rate determined under Subsection (a) and 2.5 percent.
(c) If the department reduces the surcharges imposed under
Sections 401.244 and 401.2445, those reductions shall be on a pro
rata basis between the two surcharges.
SECTION 10. Section 402.219, Health and Safety Code, is
transferred to Subchapter F, Chapter 401, Health and Safety Code,
renumbered as Section 401.248, and amended to read as follows:
Sec. 401.248 [402.219]. LIMITATIONS ON LOW-LEVEL
RADIOACTIVE WASTE DISPOSAL. (a) [Except as provided by an
interstate compact, a disposal 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.
(b) [(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 compact waste 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 compact waste disposal facility [site];
(4) allows this state to charge a fee for the disposal
of low-level radioactive waste at the compact waste disposal
facility [site];
(5) requires the other state or states to join in any
legal action involving liability from the compact waste disposal
facility [site];
(6) requires the other state or states to share the
full cost of constructing the compact waste 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.
(c) [(d)] This section does not affect the ability of this
state to transfer low-level radioactive waste to another state.
(d) [(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 11. 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 401.245, 401.246,
and 401.247, and amended to read as follows:
Sec. 401.245 [402.272]. COMPACT WASTE DISPOSAL FEES. (a)
A compact waste 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 compact waste disposal facility [authority] for disposal.
(b) The board by rule shall adopt and periodically revise
compact 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 401.246 [402.273].
(c) In determining relative hazard, the board shall
consider the radioactive, physical, and chemical properties of each
type of low-level radioactive waste.
(d) Rules adopted under this section may include provisions
establishing:
(1) classification of customers and services; and
(2) applicability of fees.
(e) Fees adopted under this section must be consistent with
the criteria listed under Section 401.246.
(f) A rule or order adopted by the department under this
section may not conflict with a ruling of a federal regulatory body.
Sec. 401.246 [402.273]. WASTE DISPOSAL FEE CRITERIA. (a)
Compact waste [Waste] disposal fees adopted by the board must be
sufficient to:
(1) allow the compact waste facility license holder
[authority] to recover costs of operating and maintaining the
compact waste disposal facility and a reasonable profit on the
operation of that facility [maintenance costs];
(2) provide an amount necessary to meet future costs
of decommissioning, closing, and postclosure maintenance and
surveillance of the compact waste disposal facility and the compact
waste disposal facility portion of the disposal facility site;
(3) provide an amount to fund local public projects
under Section 401.244 [Subchapter I];
(4) provide a reasonable rate of return on capital
investment in the facilities used for management or disposal of
compact waste at the compact waste disposal facility; and [an
amount sufficient to fund, in whole or in part, a rangeland and
wildlife management plan;]
(5) provide an amount necessary to pay compact waste
disposal facility licensing fees, to pay compact waste disposal
facility fees set by rule or statute, and to provide security for
the compact waste disposal facility as required by the 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) To the extent practicable, the department shall use the
methods used by the Public Utility Commission of Texas under
Sections 36.051, 36.052, and 36.053, Utilities Code, when
establishing overall revenues, reasonable return, and invested
capital for the purpose of setting fees under Subsection (a). [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. 401.247 [402.276]. REASONABLE AND NECESSARY EXPENSES.
Fees paid under this subchapter are reasonable and necessary
expenses for ratemaking purposes.
SECTION 12. Section 402.275, Health and Safety Code, is
transferred to Subchapter F, Chapter 401, Health and Safety Code,
renumbered as Section 401.249, and amended to read as follows:
Sec. 401.249 [402.275]. LOW-LEVEL RADIOACTIVE WASTE FUND.
(a) The low-level radioactive waste fund is in the state treasury.
(b) The low-level radioactive waste fund is an
interest-bearing fund. Interest earned on money in the fund shall
be deposited to the credit of the fund.
(c) Except as otherwise provided by this chapter, money
[Money received by the authority, including waste disposal fees,
planning and implementation fees, surcharges on planning and
implementation fees, processing and packaging fees, civil
penalties, payments made by a party state to a low-level
radioactive waste compact entered into under Section 402.219(c),
and other receipts] collected by the department [authority] under
this chapter shall be deposited to the credit of the low-level
radioactive waste fund.
[(d) Except as provided by Subsection (f), money in the
low-level radioactive waste fund may be used to pay:
[(1) operating and maintenance costs of the authority;
[(2) future costs of decommissioning, closing, and
postclosure maintenance and surveillance of the disposal site;
[(3) licensing fees and to provide security required
by the commission;
[(4) money judgments rendered against the authority
that are directed by a court of this state to be paid from this fund;
[(5) expenses associated with implementation of the
rangeland and wildlife management plan;
[(6) funds for local public projects under Subchapter
I;
[(7) debt service and necessary fees and charges,
including insurance premiums and similar costs, associated with the
issuance and payment of bonds under Subchapter K; and
[(8) expenses for any other purpose under this
chapter.
[(e) A payment for debt service and related costs under
Subsection (d)(7) has priority for payment from the low-level
radioactive waste fund over a payment for another expense
authorized by Subsection (d).
[(f) The authority may transfer money from the low-level
radioactive waste fund to the radiation and perpetual care fund to
make payments required by the commission under Section 401.303.]
SECTION 13. Subchapter F, Chapter 401, Health and Safety
Code, is amended by adding Section 401.250 to read as follows:
Sec. 401.250. PAYMENTS BY PARTY STATES. (a)
Notwithstanding any other provision of law, Act of the legislature
or the executive branch, or any other agreement, the initial
payment of $12.5 million due from each nonhost party state under
Section 5.01 of the compact established under Section 403.006 is
due not later than November 1, 2003.
(b) This section prevails over any other law or agreement in
conflict or inconsistent with this section.
(c) All payments made by a party state under Section 5.01 of
the compact established under Section 403.006 shall be deposited to
the credit of the general revenue fund.
SECTION 14. Section 401.270(e), Health and Safety Code, is
amended to read as follows:
(e) The department shall use the security provided by the
license holder to pay the costs of actions that are taken or that
are to be taken under this section. The department shall send to
the comptroller a copy of its order together with necessary written
requests authorizing the comptroller to:
(1) enforce security supplied by the licensee;
(2) convert an amount of security into cash, as
necessary; and
(3) disburse from the security in the perpetual care
account [fund] the amount necessary to pay the costs.
SECTION 15. 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 16. Section 401.301(d), Health and Safety Code, is
amended to read as follows:
(d) The department may require that each person who holds a
specific license issued by the department annually pay to the
department an additional five percent of the appropriate annual fee
set under Subsection (b). Fees collected under this subsection
shall be deposited to the credit of the [radiation and] perpetual
care account [fund]. The fees are not refundable.
SECTION 17. Section 401.303(g), Health and Safety Code, is
amended to read as follows:
(g) If a license holder satisfies the obligations under this
chapter, the issuing agency shall have the comptroller promptly
refund to the license holder from the perpetual care account [fund]
the excess of the amount of all payments made by the license holder
to the issuing agency and the investment earnings of those payments
over the amount determined to be required for the continuing
maintenance and surveillance of land, buildings, and radioactive
material conveyed to the state.
SECTION 18. Section 401.305, Health and Safety Code, is
amended to read as follows:
Sec. 401.305. RADIATION AND PERPETUAL CARE ACCOUNT [FUND].
(a) The radiation and perpetual care account is an account in the
general revenue fund [is in the state treasury].
(b) The department and commission each shall deposit to the
credit of the perpetual care account [fund] money and security they
receive under this chapter, including an administrative penalty
collected by the department under Sections 401.384-401.390 but
excluding fees collected under Sections 401.301(a)-(c) and
401.302. Interest earned on money in the perpetual care account
[fund] shall be credited to the perpetual care account [fund].
(c) Money and security in the perpetual care account [fund]
may be administered by the department or commission only for the
decontamination, decommissioning, stabilization, reclamation,
maintenance, surveillance, control, storage, and disposal of
radioactive material for the protection of the public health and
safety and the environment under this chapter and for refunds under
Section 401.303.
(d) Money and security in the perpetual care account [fund]
may not be used for normal operating expenses of the department or
commission.
(e) The department may use money in the perpetual care
account [fund] to pay for measures:
(1) to prevent or mitigate the adverse effects of
abandonment of radioactive materials, default on a lawful
obligation, insolvency, or other inability by the holder of a
license issued by the department to meet the requirements of this
chapter or department rules; and
(2) to assure the protection of the public health and
safety and the environment from the adverse effects of ionizing
radiation.
(f) The department may provide, by the terms of a contract
or lease entered into between the department and any person or by
the terms of a license issued by the department to any person, for
the decontamination, closure, decommissioning, reclamation,
surveillance, or other care of a site or facility subject to
department jurisdiction under this chapter as needed to carry out
the purpose of this chapter.
(g) The existence of the [radiation and] perpetual care
account [fund] does not make the department liable for the costs of
decontamination, transfer, transportation, reclamation,
surveillance, or disposal of radioactive material arising from a
license holder's abandonment of radioactive material, default on a
lawful obligation, insolvency, or inability to meet the
requirements of this chapter or department rules.
SECTION 19. Section 401.342(b), Health and Safety Code, is
amended to read as follows:
(b) The attorney general may petition the court for:
(1) an order enjoining the act or practice or an order
directing compliance and reimbursement of the perpetual care
account [fund], if applicable;
(2) civil penalties as provided by Section 401.381; or
(3) a permanent or temporary injunction, restraining
order, or other appropriate order if the department shows that the
person engaged in or is about to engage in any of the acts or
practices.
SECTION 20. Section 401.343(a), Health and Safety Code, is
amended to read as follows:
(a) The department shall seek reimbursement, either by an
order of the department or a suit filed by the attorney general at
the department's request, of security from the perpetual care
account [fund] used by the department to pay for actions, including
corrective measures, to remedy spills or contamination by
radioactive material resulting from a violation of this chapter
relating to an activity under the department's jurisdiction or a
rule, license, registration, or order adopted or issued by the
department under this chapter.
SECTION 21. 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 22. 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 23. Section 7.033, Water Code, is amended to read as
follows:
Sec. 7.033. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH
AND SAFETY CODE, VIOLATION. The commission shall seek
reimbursement, either by a commission order or by a suit filed under
Subchapter D by the attorney general at the commission's request,
of security from the radiation and perpetual care account [fund]
used by the commission to pay for actions, including corrective
measures, to remedy spills or contamination by radioactive material
resulting from a violation of Chapter 401, Health and Safety Code,
relating to an activity under the commission's jurisdiction or a
rule adopted or a license, registration, or order issued by the
commission under that chapter.
SECTION 24. Sections 401.153 and 401.306, Health and Safety
Code, Chapter 402, Health and Safety Code, and Section 51.0511,
Natural Resources Code, are repealed.
SECTION 25. This Act prevails to the extent of a conflict
between this Act and any other Act of the 78th Legislature, Regular
Session, 2003, dealing with the organization, powers, and duties of
the Texas Department of Health, particularly with regard to:
(1) application processing and licensing;
(2) judicial review of an application;
(3) facility siting;
(4) fee schedules;
(5) financial security;
(6) site monitoring;
(7) term of license and renewal; and
(8) the operation and maintenance of a low-level
radioactive waste disposal site in Texas.
SECTION 26. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2003.
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