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A BILL TO BE ENTITLED
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AN ACT
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relating to the disposal of waste at the Texas Low-Level |
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Radioactive Waste Disposal Compact waste disposal facility. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 401.2005, Health and Safety Code, is |
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amended by amending Subdivision (1) and adding Subdivisions (1-a), |
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(1-b), (6-a), (8), and (9) to read as follows: |
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(1) "Compact" means the Texas Low-Level Radioactive |
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Waste Disposal Compact established under Section 403.006. |
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(1-a) "Compact waste" means low-level radioactive |
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waste that: |
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(A) is originally generated onsite in a host |
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state or a party state; or |
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(B) is not generated in a host state or a party |
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state but has been approved for importation to this state by the |
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compact commission under Section 3.05 of the compact [established
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under Section 403.006]. |
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(1-b) "Curie capacity" means the amount of the |
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radioactivity of the waste that may be accepted by the compact waste |
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disposal facility as determined by the commission in the compact |
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waste disposal facility license. |
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(6-a) "Nonparty compact waste" means low-level |
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radioactive waste imported from a state other than a party state as |
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authorized under Section 3.05(6) of the compact. |
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(8) "Party state compact waste" means low-level |
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radioactive waste generated in a party state. |
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(9) "Waste of international origin" means low-level |
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radioactive waste that originates outside of the United States or a |
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territory of the United States, including waste subsequently stored |
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or processed in the United States. |
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SECTION 2. Section 401.207, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 401.207. OUT-OF-STATE WASTE; NONPARTY COMPACT WASTE. |
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(a) The compact waste disposal facility license holder may not |
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accept low-level radioactive waste generated in another state for |
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disposal under a license issued by the commission unless the waste |
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is: |
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(1) accepted under a compact to which the state is a |
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contracting party; |
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(2) federal facility waste that the license holder is |
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licensed to dispose of under Section 401.216; or |
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(3) generated from manufactured sources or devices |
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originating in this state. |
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(b) The compact waste disposal facility license holder may |
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accept for disposal at the compact waste disposal facility approved |
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nonparty compact waste that is classified as Class A, Class B, or |
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Class C low-level radioactive waste in accordance with the compact |
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waste disposal facility license to the extent the acceptance does |
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not diminish the disposal volume or curie capacity available to |
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party states. |
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(c) The compact waste disposal facility license holder may |
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not accept waste of international origin for disposal at the |
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facility. |
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(d) The compact waste disposal facility license holder may |
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not accept for disposal at the compact waste disposal facility |
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nonparty compact waste that does not meet the waste characteristics |
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and waste forms for disposal applicable to compact waste as set |
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forth by the commission in the compact waste disposal facility |
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license. Before the license holder may accept nonparty compact |
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waste for disposal, the commission must certify through a written |
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evaluation that the waste is authorized for disposal under the |
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license. If the disposal is not authorized under the license, the |
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commission must inform the license holder of the license amendments |
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necessary to authorize the disposal. |
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(e) The compact waste disposal facility license holder may |
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not accept more than 50,000 total cubic feet of nonparty compact |
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waste annually. The compact waste disposal facility license holder |
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may not accept an average of more than 120,000 curies of nonparty |
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compact waste annually over the first 10 years of disposal |
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operations, with an annual limit of not more than 220,000 curies. |
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The legislature by general law may establish revised limits after |
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considering the results of the study under Section 401.208. |
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(e-1) The commission's executive director, on completion of |
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the study under Section 401.208, may prohibit the license holder |
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from accepting any additional nonparty compact waste if the |
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commission determines from the study that the capacity of the |
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facility will be limited, regardless of whether the limit under |
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Subsection (f) has been reached. |
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(f) The compact waste disposal facility license holder may |
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not accept a volume of nonparty compact waste that would exceed 30 |
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percent of the total volume and radioactivity established for the |
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facility by the commission in the compact waste disposal facility |
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license. Of the remaining amount of total capacity, the host state |
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is entitled to 80 percent of that capacity and Vermont is entitled |
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to 20 percent. |
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(g) The commission shall assess a surcharge for the disposal |
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of nonparty compact waste at the compact waste disposal facility. |
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The surcharge must be assessed in addition to the total contracted |
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rate under Section 401.2457 and is: |
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(1) 10 percent of that rate before the fifth |
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anniversary of the date disposal operations begin; and |
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(2) 20 percent of that rate on or after the fifth |
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anniversary of the date disposal operations begin. |
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(h) A surcharge collected under Subsection (g) shall be |
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deposited to the credit of the low-level radioactive waste fund. |
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(i) The Texas Low-Level Radioactive Waste Disposal Compact |
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Commission by rule shall adopt procedures and forms for the |
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approval of the importation of nonparty compact waste. |
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(j) An application for the approval of the importation of |
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nonparty compact waste may be submitted to the Texas Low-Level |
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Radioactive Waste Disposal Compact Commission only by: |
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(1) the generator of the waste; |
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(2) the compact waste disposal facility license |
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holder; or |
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(3) a party contracted by the generator to dispose of |
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the waste. |
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(k) The compact waste disposal facility license holder may |
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accept for disposal at the compact waste disposal facility nonparty |
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compact waste that is incidentally commingled, as defined by |
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commission rule or policy, with party state compact waste at a |
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commercial processing facility. |
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SECTION 3. Subchapter F, Chapter 401, Health and Safety |
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Code, is amended by adding Sections 401.208 and 401.2085 to read as |
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follows: |
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Sec. 401.208. STUDY OF CAPACITY. (a) The commission shall |
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conduct a study on the available volume and curie capacity of the |
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compact waste disposal facility for the disposal of party state |
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compact waste and nonparty compact waste. |
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(b) The commission shall consider and make recommendations |
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regarding: |
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(1) the future volume and curie capacity needs of |
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party state and nonparty state generators and any additional |
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reserved capacity necessary to meet those needs; |
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(2) the result of using decay factors in revising |
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curie capacity limits; |
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(3) the necessity of containerization of the waste; |
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and |
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(4) the effects of the projected volume and |
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radioactivity of the waste on the health and safety of the public. |
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(c) Not later than December 1, 2012, the commission shall |
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submit a final report of the results of the study to the standing |
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committees of the senate and the house of representatives with |
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jurisdiction over the disposal of low-level radioactive waste. |
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(d) The Texas Low-Level Radioactive Waste Disposal Compact |
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Commission shall use the study to anticipate the future capacity |
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needs of the compact waste disposal facility. |
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(e) This section expires August 31, 2013. |
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Sec. 401.2085. REVIEW OF FINANCIAL ASSURANCE. (a) The |
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commission shall conduct a review of the adequacy of the financial |
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assurance mechanisms of the compact waste disposal facility license |
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holder that were approved by the commission before January 1, 2011, |
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against projected post-closure costs, including a review of the |
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adequacy of funds for unplanned events. The review shall consider: |
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(1) the segregation of financial assurance funds from |
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other funds; |
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(2) the degree of risk that the financial instruments |
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are subject to financial reversal; |
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(3) potential post-closure risks associated with the |
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compact waste disposal facility; and |
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(4) the adequacy of the financial instruments to cover |
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the state's liabilities. |
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(b) Not later than December 1, 2012, the commission shall |
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submit a final report of the results of the review to the standing |
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committees of the senate and the house of representatives with |
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jurisdiction over the disposal of low-level radioactive waste. |
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(c) This section expires August 31, 2013. |
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SECTION 4. Section 401.218, Health and Safety Code, is |
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amended by adding Subsection (d) to read as follows: |
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(d) The compact waste disposal facility license holder may |
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not accept for disposal at the compact waste disposal facility |
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elemental mercury the disposal of which is regulated under Chapter |
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361. |
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SECTION 5. The heading to Section 401.245, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 401.245. PARTY STATE COMPACT WASTE DISPOSAL FEES. |
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SECTION 6. Section 401.245, Health and Safety Code, is |
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amended by amending Subsections (a) and (b) and adding Subsections |
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(g) and (h) to read as follows: |
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(a) A compact waste disposal facility license holder who |
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receives party state compact [low-level radioactive] waste for |
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disposal pursuant to the compact [Texas Low-Level Radioactive Waste
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Disposal Compact established under Chapter 403] shall have |
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collected a waste disposal fee to be paid by each person who |
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delivers party state compact [low-level radioactive] waste to the |
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compact waste disposal facility for disposal. |
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(b) The commission by rule shall adopt and periodically |
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revise party state compact waste disposal fees under this section |
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according to a schedule that is based on the projected annual volume |
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of low-level radioactive waste received, the relative hazard |
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presented by each type of low-level radioactive waste that is |
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generated by the users of radioactive materials, and the costs |
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identified in Section 401.246. |
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(g) For the purposes of a contested case involving the |
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adoption of fees under this section, only a party state generator of |
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low-level radioactive waste may be considered a person affected. |
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(h) The administrative law judge assigned to the contested |
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case involving the adoption of fees under this section shall issue a |
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proposal for decision on fees proposed by the commission not later |
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than the first anniversary of the date the case is referred by the |
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commission. |
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SECTION 7. Subchapter F, Chapter 401, Health and Safety |
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Code, is amended by adding Sections 401.2455, 401.2456, 401.2457, |
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401.2458, and 401.2459 to read as follows: |
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Sec. 401.2455. MAXIMUM DISPOSAL RATES. (a) The commission |
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by rule shall set maximum disposal rates. |
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(b) Maximum disposal rates do not apply to generators of |
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nonparty compact waste. |
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(c) In establishing the maximum disposal rates for |
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generators in the host state and party states, the commission: |
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(1) shall assume that nonparty compact waste will be |
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accepted for disposal at the compact waste disposal facility at the |
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maximum disposal rate; and |
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(2) may not consider the historical operating losses |
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incurred by the compact waste disposal facility license holder |
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before beginning operations. |
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Sec. 401.2456. RECOVERY OF HISTORICAL OPERATING LOSSES. |
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(a) Historical operating losses incurred by the compact waste |
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disposal facility license holder before beginning operations may be |
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recovered by the license holder solely through revenues from the |
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disposal of nonparty compact waste. |
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(b) The commission shall determine the amount of historical |
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operating losses by the compact waste disposal facility license |
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holder that have been incurred before the license holder begins |
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operations at the compact waste disposal facility. In determining |
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the amount of historical operating losses, the commission: |
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(1) may only consider the costs, expenses, and |
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expenditures established as true and accurate by the license |
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holder; |
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(2) shall include: |
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(A) any cost, expense, or expenditure incurred or |
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paid by the license holder before September 1, 2003, except for |
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costs, expenses, or expenditures associated with real property used |
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for the compact waste disposal facility site; |
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(B) losses relating to the development and |
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operation of any facility other than the compact waste disposal |
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facility; |
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(C) any other losses or factors that the |
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commission determines are appropriate; and |
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(D) a reasonable rate of return on the items |
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described by Paragraphs (A), (B), and (C); and |
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(3) may not include reasonable and necessary |
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expenditures by the license holder for the compact waste disposal |
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facility incurred on or after September 1, 2003, for: |
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(A) any asset related to plant, property, |
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equipment, or working capital; or |
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(B) permitting or licensing. |
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(c) In determining the amount of historical operating |
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losses under Subsection (b), the commission shall request and the |
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compact waste disposal facility license holder shall file in |
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response to the request a proposed amount of historical operating |
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losses based on verifiable financial statements, supporting |
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information, and analysis. The commission shall solicit and |
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consider comments from party state compact waste generators |
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regarding the license holder's proposed historical operating |
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losses, and shall determine the amount of historical operating |
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losses not later than the 90th day after the date the commission |
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receives the proposed amount of the historical operating losses |
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from the license holder. |
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Sec. 401.2457. CONTRACTS FOR WASTE DISPOSAL. (a) At any |
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time before the adoption by the commission of party state compact |
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waste disposal fees or maximum disposal rates, the compact waste |
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disposal facility license holder may contract with a generator for |
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the disposal of low-level radioactive waste at the compact waste |
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disposal facility at fees and rates established under the contract |
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and may dispose of waste under the contract. A contract under this |
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subsection is subject to authorization by the compact commission |
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under Section 3.05(6) of the compact. |
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(b) Party state compact waste generators located in the |
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compact states of Texas and Vermont are not required to enter into |
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any contract with the compact waste disposal facility license |
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holder before the adoption by the commission of party state compact |
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waste disposal fees or maximum disposal rates. |
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(c) Regardless of whether the commission approves or |
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disapproves a contract authorized under this section, after the |
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adoption of final party state compact waste disposal fees under |
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Section 401.245 or final maximum disposal rates under Section |
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401.2455, the parties to the contract are not entitled to any refund |
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or surcharge not contained in the contract. |
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(d) A contract under this section must: |
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(1) be negotiated in good faith; |
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(2) conform to applicable antitrust statutes and |
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regulations; and |
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(3) be nondiscriminatory. |
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Sec. 401.2458. INTERIM FEES AND RATES. (a) Before the |
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commission adopts final disposal fees under Section 401.245 and |
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final maximum disposal rates under Section 401.2455, the |
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commission's executive director may set interim disposal fees and |
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interim maximum disposal rates according to commission rules. |
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(b) The compact waste disposal facility license holder |
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shall charge generators in the host state and party states fees and |
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rates consistent with the interim fees and rates while the interim |
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fees or rates are in effect. A generator is not entitled to a |
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refund, and may not be charged a surcharge, for the disposal of |
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waste under interim fees or rates once the final fees or rates have |
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been adopted. |
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Sec. 401.2459. CONSIDERATIONS IN CONTRACT APPROVAL. After |
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the commission adopts party state compact waste disposal fees under |
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Section 401.245 and maximum disposal rates under Section 401.2455, |
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in approving contracts between the compact waste disposal facility |
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license holder and a party state compact waste generator, the |
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commission may consider, subject to reasonable rules of |
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confidentiality, the net revenues recovered by the compact waste |
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disposal facility license holder from the disposal of nonparty |
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compact waste. |
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SECTION 8. Section 401.246(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) Party state compact [Compact] waste disposal fees |
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adopted by the commission under Section 401.245 must be sufficient |
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to: |
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(1) allow the compact waste facility license holder to |
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recover costs of operating and maintaining the compact waste |
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disposal facility and a reasonable profit on the operation of that |
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facility; |
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(2) provide an amount necessary to meet future costs |
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of decommissioning, closing, and postclosure maintenance and |
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surveillance of the compact waste disposal facility and the compact |
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waste disposal facility portion of the disposal facility site; |
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(3) provide an amount to fund local public projects |
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under Section 401.244; |
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(4) provide a reasonable rate of return on capital |
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investment in the facilities used for management or disposal of |
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compact waste at the compact waste disposal facility; and |
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(5) provide an amount necessary to pay compact waste |
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disposal facility licensing fees, to pay compact waste disposal |
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facility fees set by rule or statute, and to provide security for |
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the compact waste disposal facility as required by the commission |
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under law and commission rules. |
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SECTION 9. Section 401.248(b), Health and Safety Code, is |
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amended to read as follows: |
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(b) The state may enter into compacts with another state or |
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several states for the disposal in this state of low-level |
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radioactive waste only if the compact: |
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(1) limits the total volume of all low-level |
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radioactive waste to be disposed of in this state from the other |
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party state or party states to 20 percent of the annual average of |
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low-level radioactive waste projected to be disposed of [that the
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governor projects will be produced] in this state from [the years] |
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1995 through 2045; |
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(2) gives this state full administrative control over |
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management and operation of the compact waste disposal facility; |
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(3) requires the other state or states to join this |
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state in any legal action necessary to prevent states that are not |
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members of the compact from disposing of low-level radioactive |
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waste at the compact waste disposal facility; |
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(4) allows this state to charge a fee for the disposal |
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of low-level radioactive waste at the compact waste disposal |
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facility; |
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(5) requires the other state or states to join in any |
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legal action involving liability from the compact waste disposal |
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facility; |
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(6) requires the other state or states to share the |
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full cost of constructing the compact waste disposal facility; |
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(7) allows this state to regulate, in accordance with |
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federal law, the means and routes of transportation of the |
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low-level radioactive waste in this state; |
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(8) requires the other state or states to pay for |
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community assistance projects selected by the host county in an |
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amount not less than $1 million or 10 percent of the amount |
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contributed by the other state or states; |
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(9) is agreed to by the Texas Legislature, the |
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legislature of the other state or states, and the United States |
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Congress; and |
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(10) complies with all applicable federal law. |
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SECTION 10. Section 401.250, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 401.250. PAYMENTS BY PARTY STATES. (a) |
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Notwithstanding any other provision of law, Act of the legislature |
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or the executive branch, or any other agreement, the initial |
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payment of $12.5 million due from each nonhost party state under |
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Section 5.01 of the compact established under Section 403.006 is |
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due not later than November 1, 2003. In accordance with Section |
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7.01 of the compact, the host state establishes the following terms |
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and conditions for a state to become a party state to the compact |
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after January 1, 2011: |
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(1) the state must make an initial payment of half of |
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the total amount due to the host state under Subsection (b) on the |
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later of September 1, 2011, or the date the state becomes a party |
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state; and |
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(2) the state must pay the remainder of the amount owed |
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under Subsection (b) on the later of the date of the opening of the |
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compact waste disposal facility or the date the facility first |
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accepts waste from the state. |
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(b) Each state that becomes a party state: |
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(1) after January 1, 2011, and before September 1, |
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2018, shall contribute a total of $30 million to the host state, |
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including the initial payment under Subsection (a)(1); and |
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(2) on or after September 1, 2018, and before |
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September 1, 2023, shall contribute $50 million to the host state, |
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including the initial payment under Subsection (a)(1). |
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(c) The requirements of this section apply to a state that |
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becomes a party state after January 1, 2011, regardless of whether |
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the state had previously been a party to the compact. A state that |
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has withdrawn as a party state shall pay the previously committed |
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fee of $25 million in addition to the fees set in Subsection (b). |
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(d) A payment made under this section may not be refunded, |
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even if a party state withdraws from the compact. |
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(e) The host county, as defined by Section 2.01 of the |
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compact, is entitled to receive 10 percent of a payment under |
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Subsection (b). |
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(f) This section prevails over any other law or agreement in |
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conflict or inconsistent with this section. |
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SECTION 11. Section 401.248(d), Health and Safety Code, is |
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repealed. |
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SECTION 12. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2011. |