82R26611 JTS-D

By: Seliger, Hinojosa S.B. No. 1504

(Lewis)

Substitute the following for S.B. No. 1504: No.

A BILL TO BE ENTITLED

AN ACT

relating to the disposal of waste at the Texas Low-Level Radioactive Waste Disposal Compact waste disposal facility.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 401.2005, Health and Safety Code, is amended by amending Subdivision (1) and adding Subdivisions (1-a), (1-b), (6-a), (8), and (9) to read as follows:

(1) "Compact" means the Texas Low-Level Radioactive Waste Disposal Compact established under Section 403.006.

(1-a) "Compact waste" means low-level radioactive waste that:

(A) is originally generated onsite in a host state or a party state; or

(B) is not generated in a host state or a party state but has been approved for importation to this state by the compact commission under Section 3.05 of the compact [established under Section 403.006].

(1-b) "Curie capacity" means the amount of the radioactivity of the waste that may be accepted by the compact waste disposal facility as determined by the commission in the compact waste disposal facility license.

(6-a) "Nonparty compact waste" means low-level radioactive waste imported from a state other than a party state as authorized under Section 3.05(6) of the compact.

(8) "Party state compact waste" means low-level radioactive waste generated in a party state.

(9) "Waste of international origin" means low-level radioactive waste that originates outside of the United States or a territory of the United States, including waste subsequently stored or processed in the United States.

SECTION 2. Section 401.207, Health and Safety Code, is amended to read as follows:

Sec. 401.207. OUT-OF-STATE WASTE; NONPARTY COMPACT WASTE. (a) The compact waste disposal facility license holder may not accept low-level radioactive waste generated in another state for disposal under a license issued by the commission unless the waste is:

(1) accepted under a compact to which the state is a contracting party;

(2) federal facility waste that the license holder is licensed to dispose of under Section 401.216; or

(3) generated from manufactured sources or devices originating in this state.

(b) The compact waste disposal facility license holder may accept for disposal at the compact waste disposal facility approved nonparty compact waste that is classified as Class A, Class B, or Class C low-level radioactive waste in accordance with the compact waste disposal facility license to the extent the acceptance does not diminish the disposal volume or curie capacity available to party states.

(c) The compact waste disposal facility license holder may not accept waste of international origin for disposal at the facility.

(d) The compact waste disposal facility license holder may not accept for disposal at the compact waste disposal facility nonparty compact waste that does not meet the waste characteristics and waste forms for disposal applicable to compact waste as set forth by the commission in the compact waste disposal facility license. Before the license holder may accept nonparty compact waste for disposal, the commission must certify through a written evaluation that the waste is authorized for disposal under the license. If the disposal is not authorized under the license, the commission must inform the license holder of the license amendments necessary to authorize the disposal.

(e) The compact waste disposal facility license holder may not accept more than 50,000 total cubic feet of nonparty compact waste annually. The compact waste disposal facility license holder may not accept an average of more than 120,000 curies of nonparty compact waste annually over the first 10 years of disposal operations, with an annual limit of not more than 220,000 curies. The legislature by general law may establish revised limits after considering the results of the study under Section 401.208.

(e-1) The commission's executive director, on completion of the study under Section 401.208, may prohibit the license holder from accepting any additional nonparty compact waste if the commission determines from the study that the capacity of the facility will be limited, regardless of whether the limit under Subsection (f) has been reached.

(f) The compact waste disposal facility license holder may not accept a volume of nonparty compact waste that would exceed 30 percent of the total volume and radioactivity established for the facility by the commission in the compact waste disposal facility license. Of the remaining amount of total capacity, the host state is entitled to 80 percent of that capacity and Vermont is entitled to 20 percent.

(g) The commission shall assess a surcharge for the disposal of nonparty compact waste at the compact waste disposal facility. The surcharge must be assessed in addition to the total contracted rate under Section 401.2457 and is:

(1) 10 percent of that rate before the fifth anniversary of the date disposal operations begin; and

(2) 20 percent of that rate on or after the fifth anniversary of the date disposal operations begin.

(h) A surcharge collected under Subsection (g) shall be deposited to the credit of the low-level radioactive waste fund.

(i) The Texas Low-Level Radioactive Waste Disposal Compact Commission by rule shall adopt procedures and forms for the approval of the importation of nonparty compact waste.

(j) An application for the approval of the importation of nonparty compact waste may be submitted to the Texas Low-Level Radioactive Waste Disposal Compact Commission only by:

(1) the generator of the waste;

(2) the compact waste disposal facility license holder; or

(3) a party contracted by the generator to dispose of the waste.

(k) The compact waste disposal facility license holder may accept for disposal at the compact waste disposal facility nonparty compact waste that is incidentally commingled, as defined by commission rule or policy, with party state compact waste at a commercial processing facility.

SECTION 3. Subchapter F, Chapter 401, Health and Safety Code, is amended by adding Sections 401.208 and 401.2085 to read as follows:

Sec. 401.208. STUDY OF CAPACITY. (a) The commission shall conduct a study on the available volume and curie capacity of the compact waste disposal facility for the disposal of party state compact waste and nonparty compact waste.

(b) The commission shall consider and make recommendations regarding:

(1) the future volume and curie capacity needs of party state and nonparty state generators and any additional reserved capacity necessary to meet those needs;

(2) the result of using decay factors in revising curie capacity limits;

(3) the necessity of containerization of the waste; and

(4) the effects of the projected volume and radioactivity of the waste on the health and safety of the public.

(c) Not later than December 1, 2012, the commission shall submit a final report of the results of the study to the standing committees of the senate and the house of representatives with jurisdiction over the disposal of low-level radioactive waste.

(d) The Texas Low-Level Radioactive Waste Disposal Compact Commission shall use the study to anticipate the future capacity needs of the compact waste disposal facility.

(e) This section expires August 31, 2013.

Sec. 401.2085. REVIEW OF FINANCIAL ASSURANCE. (a) The commission shall conduct a review of the adequacy of the financial assurance mechanisms of the compact waste disposal facility license holder that were approved by the commission before January 1, 2011, against projected post-closure costs, including a review of the adequacy of funds for unplanned events. The review shall consider:

(1) the segregation of financial assurance funds from other funds;

(2) the degree of risk that the financial instruments are subject to financial reversal;

(3) potential post-closure risks associated with the compact waste disposal facility; and

(4) the adequacy of the financial instruments to cover the state's liabilities.

(b) Not later than December 1, 2012, the commission shall submit a final report of the results of the review to the standing committees of the senate and the house of representatives with jurisdiction over the disposal of low-level radioactive waste.

(c) This section expires August 31, 2013.

SECTION 4. Section 401.218, Health and Safety Code, is amended by adding Subsection (d) to read as follows:

(d) The compact waste disposal facility license holder may not accept for disposal at the compact waste disposal facility elemental mercury the disposal of which is regulated under Chapter 361.

SECTION 5. The heading to Section 401.245, Health and Safety Code, is amended to read as follows:

Sec. 401.245. PARTY STATE COMPACT WASTE DISPOSAL FEES.

SECTION 6. Section 401.245, Health and Safety Code, is amended by amending Subsections (a) and (b) and adding Subsections (g) and (h) to read as follows:

(a) A compact waste disposal facility license holder who receives party state compact [low-level radioactive] waste for disposal pursuant to the compact [Texas Low-Level Radioactive Waste Disposal Compact established under Chapter 403] shall have collected a waste disposal fee to be paid by each person who delivers party state compact [low-level radioactive] waste to the compact waste disposal facility for disposal.

(b) The commission by rule shall adopt and periodically revise party state compact waste disposal fees under this section according to a schedule that is based on the projected annual volume of low-level radioactive waste received, the relative hazard presented by each type of low-level radioactive waste that is generated by the users of radioactive materials, and the costs identified in Section 401.246.

(g) For the purposes of a contested case involving the adoption of fees under this section, only a party state generator of low-level radioactive waste may be considered a person affected.

(h) The administrative law judge assigned to the contested case involving the adoption of fees under this section shall issue a proposal for decision on fees proposed by the commission not later than the first anniversary of the date the case is referred by the commission.

SECTION 7. Subchapter F, Chapter 401, Health and Safety Code, is amended by adding Sections 401.2455, 401.2456, 401.2457, 401.2458, and 401.2459 to read as follows:

Sec. 401.2455. MAXIMUM DISPOSAL RATES. (a) The commission by rule shall set maximum disposal rates.

(b) Maximum disposal rates do not apply to generators of nonparty compact waste.

(c) In establishing the maximum disposal rates for generators in the host state and party states, the commission:

(1) shall assume that nonparty compact waste will be accepted for disposal at the compact waste disposal facility at the maximum disposal rate; and

(2) may not consider the historical operating losses incurred by the compact waste disposal facility license holder before beginning operations.

Sec. 401.2456. RECOVERY OF HISTORICAL OPERATING LOSSES. (a) Historical operating losses incurred by the compact waste disposal facility license holder before beginning operations may be recovered by the license holder solely through revenues from the disposal of nonparty compact waste.

(b) The commission shall determine the amount of historical operating losses by the compact waste disposal facility license holder that have been incurred before the license holder begins operations at the compact waste disposal facility. In determining the amount of historical operating losses, the commission:

(1) may only consider the costs, expenses, and expenditures established as true and accurate by the license holder;

(2) shall include:

(A) any cost, expense, or expenditure incurred or paid by the license holder before September 1, 2003, except for costs, expenses, or expenditures associated with real property used for the compact waste disposal facility site;

(B) losses relating to the development and operation of any facility other than the compact waste disposal facility;

(C) any other losses or factors that the commission determines are appropriate; and

(D) a reasonable rate of return on the items described by Paragraphs (A), (B), and (C); and

(3) may not include reasonable and necessary expenditures by the license holder for the compact waste disposal facility incurred on or after September 1, 2003, for:

(A) any asset related to plant, property, equipment, or working capital; or

(B) permitting or licensing.

(c) In determining the amount of historical operating losses under Subsection (b), the commission shall request and the compact waste disposal facility license holder shall file in response to the request a proposed amount of historical operating losses based on verifiable financial statements, supporting information, and analysis. The commission shall solicit and consider comments from party state compact waste generators regarding the license holder's proposed historical operating losses, and shall determine the amount of historical operating losses not later than the 90th day after the date the commission receives the proposed amount of the historical operating losses from the license holder.

Sec. 401.2457. CONTRACTS FOR WASTE DISPOSAL. (a) At any time before the adoption by the commission of party state compact waste disposal fees or maximum disposal rates, the compact waste disposal facility license holder may contract with a generator for the disposal of low-level radioactive waste at the compact waste disposal facility at fees and rates established under the contract and may dispose of waste under the contract. A contract under this subsection is subject to authorization by the compact commission under Section 3.05(6) of the compact.

(b) Party state compact waste generators located in the compact states of Texas and Vermont are not required to enter into any contract with the compact waste disposal facility license holder before the adoption by the commission of party state compact waste disposal fees or maximum disposal rates.

(c) Regardless of whether the commission approves or disapproves a contract authorized under this section, after the adoption of final party state compact waste disposal fees under Section 401.245 or final maximum disposal rates under Section 401.2455, the parties to the contract are not entitled to any refund or surcharge not contained in the contract.

(d) A contract under this section must:

(1) be negotiated in good faith;

(2) conform to applicable antitrust statutes and regulations; and

(3) be nondiscriminatory.

Sec. 401.2458. INTERIM FEES AND RATES. (a) Before the commission adopts final disposal fees under Section 401.245 and final maximum disposal rates under Section 401.2455, the commission's executive director may set interim disposal fees and interim maximum disposal rates according to commission rules.

(b) The compact waste disposal facility license holder shall charge generators in the host state and party states fees and rates consistent with the interim fees and rates while the interim fees or rates are in effect. A generator is not entitled to a refund, and may not be charged a surcharge, for the disposal of waste under interim fees or rates once the final fees or rates have been adopted.

Sec. 401.2459. CONSIDERATIONS IN CONTRACT APPROVAL. After the commission adopts party state compact waste disposal fees under Section 401.245 and maximum disposal rates under Section 401.2455, in approving contracts between the compact waste disposal facility license holder and a party state compact waste generator, the commission may consider, subject to reasonable rules of confidentiality, the net revenues recovered by the compact waste disposal facility license holder from the disposal of nonparty compact waste.

SECTION 8. Section 401.246(a), Health and Safety Code, is amended to read as follows:

(a) Party state compact [Compact] waste disposal fees adopted by the commission under Section 401.245 must be sufficient to:

(1) allow the compact waste facility license holder to recover costs of operating and maintaining the compact waste disposal facility and a reasonable profit on the operation of that facility;

(2) provide an amount necessary to meet future costs of decommissioning, closing, and postclosure maintenance and surveillance of the compact waste disposal facility and the compact waste disposal facility portion of the disposal facility site;

(3) provide an amount to fund local public projects under Section 401.244;

(4) provide a reasonable rate of return on capital investment in the facilities used for management or disposal of compact waste at the compact waste disposal facility; and

(5) provide an amount necessary to pay compact waste disposal facility licensing fees, to pay compact waste disposal facility fees set by rule or statute, and to provide security for the compact waste disposal facility as required by the commission under law and commission rules.

SECTION 9. Section 401.248(b), Health and Safety Code, is amended to read as follows:

(b) The state may enter into compacts with another state or several states for the disposal in this state of low-level radioactive waste only if the compact:

(1) limits the total volume of all low-level radioactive waste to be disposed of in this state from the other party state or party states to 20 percent of the annual average of low-level radioactive waste projected to be disposed of [that the governor projects will be produced] in this state from [the years] 1995 through 2045;

(2) gives this state full administrative control over management and operation of the compact waste disposal facility;

(3) requires the other state or states to join this state in any legal action necessary to prevent states that are not members of the compact from disposing of low-level radioactive waste at the compact waste disposal facility;

(4) allows this state to charge a fee for the disposal of low-level radioactive waste at the compact waste disposal facility;

(5) requires the other state or states to join in any legal action involving liability from the compact waste disposal facility;

(6) requires the other state or states to share the full cost of constructing the compact waste disposal facility;

(7) allows this state to regulate, in accordance with federal law, the means and routes of transportation of the low-level radioactive waste in this state;

(8) requires the other state or states to pay for community assistance projects selected by the host county in an amount not less than $1 million or 10 percent of the amount contributed by the other state or states;

(9) is agreed to by the Texas Legislature, the legislature of the other state or states, and the United States Congress; and

(10) complies with all applicable federal law.

SECTION 10. Section 401.250, Health and Safety Code, is amended to read as follows:

Sec. 401.250. PAYMENTS BY PARTY STATES. (a) Notwithstanding any other provision of law, Act of the legislature or the executive branch, or any other agreement, the initial payment of $12.5 million due from each nonhost party state under Section 5.01 of the compact established under Section 403.006 is due not later than November 1, 2003. In accordance with Section 7.01 of the compact, the host state establishes the following terms and conditions for a state to become a party state to the compact after January 1, 2011:

(1) the state must make an initial payment of half of the total amount due to the host state under Subsection (b) on the later of September 1, 2011, or the date the state becomes a party state; and

(2) the state must pay the remainder of the amount owed under Subsection (b) on the later of the date of the opening of the compact waste disposal facility or the date the facility first accepts waste from the state.

(b) Each state that becomes a party state:

(1) after January 1, 2011, and before September 1, 2018, shall contribute a total of $30 million to the host state, including the initial payment under Subsection (a)(1); and

(2) on or after September 1, 2018, and before September 1, 2023, shall contribute $50 million to the host state, including the initial payment under Subsection (a)(1).

(c) The requirements of this section apply to a state that becomes a party state after January 1, 2011, regardless of whether the state had previously been a party to the compact. A state that has withdrawn as a party state shall pay the previously committed fee of $25 million in addition to the fees set in Subsection (b).

(d) A payment made under this section may not be refunded, even if a party state withdraws from the compact.

(e) The host county, as defined by Section 2.01 of the compact, is entitled to receive 10 percent of a payment under Subsection (b).

(f) This section prevails over any other law or agreement in conflict or inconsistent with this section.

SECTION 11. Section 401.248(d), Health and Safety Code, is repealed.

SECTION 12. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.