By: Seliger S.B. No. 791

(In the Senate - Filed February 25, 2013; March 5, 2013, read first time and referred to Committee on Natural Resources; April 8, 2013, reported adversely, with favorable Committee Substitute by the following vote: Yeas 7, Nays 2; April 8, 2013, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 791 By: Seliger

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of low-level radioactive waste disposal facilities and radioactive substances.

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

SECTION 1. Subdivision (15), Section 401.003, Health and Safety Code, is amended to read as follows:

(15) "Person affected" means a person who demonstrates that the person has suffered or will suffer actual injury or economic damage and, if the person is not a local government:

(A) is a resident of a Texas county, or a Texas county adjacent to that county, in which nuclear or radioactive material is or will be located; or

(B) is doing business or has a legal interest in land in the county in which nuclear or radioactive material is disposed or in an adjacent Texas county.

SECTION 2. Subsection (d), Section 401.052, Health and Safety Code, as amended by Chapter 580 (H.B. 1678), Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:

(d) Fees assessed under this section:

(1) may not exceed $10 per cubic foot of shipped low-level radioactive waste;

(2) shall be collected by the department and deposited to the credit of the perpetual care account;

(3) shall be used [exclusively] by the department for emergency planning for and response to transportation accidents involving low-level radioactive waste, including first responder training in counties through which transportation routes are designated in accordance with Subsection (a); and

(4) shall not be collected on waste being disposed of at a federal facility waste disposal facility [shall be suspended when the amount of fees collected reaches $500,000, except that if the balance of the fees collected is reduced to $350,000 or less, the assessments shall be reinstituted to bring the balance of fees collected to $500,000].

SECTION 3. Subsection (a), Section 401.109, Health and Safety Code, is amended to read as follows:

(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 provided to the department under this section to the credit of the perpetual care account. The department [or commission] by rule shall provide that any evidence of security must be made payable to the credit of the perpetual care account. The commission shall deposit security provided to the commission under this section to the credit of the environmental radiation and perpetual care account. The commission shall provide that security must be made payable to the credit of the environmental radiation and perpetual care account.

SECTION 4. Section 401.152, Health and Safety Code, is amended to read as follows:

Sec. 401.152. CORRECTIVE ACTION AND MEASURES. (a) If the department or commission, under procedures provided by Section 401.056, finds that low-level radioactive waste under its jurisdiction threatens the public health and safety and the environment and that the license holder managing the low-level radioactive waste is unable to remove the threat, the agency by order may require any action, including a corrective measure, that is necessary to remove the threat.

(b) The department [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 department [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 radiation and perpetual care account the amount necessary to pay the costs.

(c) The commission 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 commission 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 environmental radiation and perpetual care account the amount necessary to pay the costs.

SECTION 5. Section 401.2005, Health and Safety Code, is amended by adding Subdivision (6-b) to read as follows:

(6-b) "Operational year" means the period from April 27 of one year through April 26 of the following year unless otherwise defined by the Texas Low-Level Radioactive Waste Disposal Compact Commission by rule.

SECTION 6. Section 401.202, Health and Safety Code, is amended by adding Subsection (d) to read as follows:

(d) If the commission issues a compact waste disposal facility license that is later reversed or remanded to the commission by order of a court on procedural error:

(1) the commission's executive director may enter into a compliance agreement with the license holder authorizing continued operation of the disposal facility until the court determines in a final order that the procedural errors that are the basis for the remand have been resolved by the commission; and

(2) all terms and conditions of the license shall remain in effect until the court determines in a final order that the procedural errors that are the basis for the remand have been resolved by the commission.

SECTION 7. Section 401.207, Health and Safety Code, is amended by adding Subsection (d-1) and amending Subsections (e) and (h) to read as follows:

(d-1) Beginning in operational year three, the compact waste disposal facility license holder must accept for disposal at the compact waste disposal facility nonparty compact waste that, if eligible for volume reduction, has been volume-reduced by at least a factor of three. The commission by rule shall establish requirements for ensuring that low-level radioactive waste has been subjected to volume reduction in a manner consistent with this subchapter. Prior to establishing requirements for volume reduction of any low-level radioactive waste, the commission must first determine that there are competitive volume reduction technologies and companies in operation in the United States marketplace.

(e) The compact waste disposal facility license holder may not enter into contracts for the disposal of nonparty low-level radioactive waste that has been designated as Class A under 10 C.F.R. Section 61.55 and commission rule [accept more than 50,000 total cubic feet of nonparty compact waste annually]. The compact waste disposal facility license holder may not accept more than 300,000 [120,000 curies of nonparty compact waste annually, except that in the first year the license holder may accept 220,000] curies of nonparty compact waste annually until April 26, 2019. The legislature by general law may establish revised limits after considering the results of the study under Section 401.208.

(h) A surcharge collected under Subsection (g) shall be deposited to the credit of the environmental radiation and perpetual care account [low-level radioactive waste fund].

SECTION 8. Subchapter F, Chapter 401, Health and Safety Code, is amended by adding Section 401.2077 to read as follows:

Sec. 401.2077. COMPACT WASTE. (a) To the greatest extent practicable, if a party state compact waste generator desires to export low-level radioactive waste described in this subsection, or a subset of such waste, the compact waste disposal facility license holder shall work with party state compact waste generators to support the export of the low-level radioactive waste that has been designated as Class A under 10 C.F.R. Section 61.55 and commission rule. The Texas Low-Level Radioactive Waste Disposal Compact Commission shall support this effort by granting export petitions for Class A waste as it finds appropriate.

SECTION 9. Section 401.218, Health and Safety Code, is amended by adding Subsection (d) to read as follows:

(d) Modifications to waste forms, types, or streams allowed in the license by the executive director of the commission shall be based on a site-specific performance assessment and performance objectives as defined by commission rule. The executive director of the commission may adjust, correct, or otherwise modify the license on completion of the annual performance assessment. No amendment is required for licensing actions initiated by the executive director of the commission in response to the site-specific performance assessment or other studies.

SECTION 10. Section 401.2456, Health and Safety Code, is amended by amending Subsection (b) and adding Subsections (f) and (g) to read as follows:

(b) Rates and contract terms negotiated under this section are subject to review and approval by the commission's executive director to ensure they meet all of the requirements of this section and the rules of the commission.

(f) The commission shall adopt rules governing the executive director's review and approval of contract terms under this section.

(g) A person affected by an action under this section may seek judicial review under Subchapter I, Chapter 5, Water Code.

SECTION 11. Subsection (d), Section 401.301, Health and Safety Code, is amended to read as follows:

(d) The commission and department shall [may] require that each person who holds a specific license issued by the agency pay to the agency an additional five percent of the appropriate fee set under Subsection (b). Fees collected under this subsection shall be deposited to the respective credit of the perpetual care accounts [account]. The fees are not refundable.

SECTION 12. Section 401.305, Health and Safety Code, is amended to read as follows:

Sec. 401.305. RADIATION AND PERPETUAL CARE ACCOUNT. (a) The radiation and perpetual care account is an account in the general revenue fund.

(b) The department [and commission each] shall deposit to the credit of the perpetual care account money and security it received [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 shall be credited to the perpetual care account.

(c) Money and security in the perpetual care account may be administered by the department [or commission] only for storage, maintenance, and distribution of mammography medical records or the decontamination, decommissioning, stabilization, reclamation, maintenance, surveillance, control, storage, and disposal of radioactive substances 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 may not be used for normal operating expenses of the department [or commission].

(e) The department [or commission] may use money in the perpetual care account to pay for measures:

(1) to prevent or mitigate the adverse effects of abandonment of radioactive substances, default on a lawful obligation, insolvency, or other inability by the holder of a license issued by the department [or commission] to meet the requirements of this chapter or of department [or commission] rules;

(2) to assure the protection of the public health and safety and the environment from the adverse effects of ionizing radiation; and

(3) to protect the health and safety of mammography patients by assuring mammography medical records are made available to affected patients.

(f) The department [or commission] may provide, by the terms of a contract or lease entered into between the department [or commission] and any person, by the terms of a mammography certification issued by the department [or commission] to any person, or by the terms of a license issued to any person, for the storage, maintenance, and distribution of mammography medical records. The department [or commission] may provide, by the terms of a contract or lease entered into between the department [or commission] and any person or by the terms of a license issued by the department [or commission] to any person, for the decontamination, closure, decommissioning, reclamation, surveillance, or other care of a site or facility subject to department [or commission] jurisdiction under this chapter as needed to carry out the purpose of this chapter.

(g) The existence of the perpetual care account does not make the department [or commission] liable for the costs of storage, maintenance, and distribution of mammography medical records arising from a mammography certification holder's failure to store, maintain, and make available mammography medical records or for the costs of decontamination, transfer, transportation, reclamation, surveillance, or disposal of radioactive substances arising from a license holder's abandonment of radioactive substances, default on a lawful obligation, insolvency, or inability to meet the requirements of this chapter or of department [or commission] rules.

SECTION 13. Subchapter H, Chapter 401, Health and Safety Code, is amended by adding Section 401.306 to read as follows:

Sec. 401.306. ENVIRONMENTAL RADIATION AND PERPETUAL CARE ACCOUNT. (a) The environmental radiation and perpetual care account is an account in the general revenue fund.

(b) The commission shall deposit to the credit of the environmental radiation and perpetual care account money and security received under this chapter, including fees collected under Section 401.301(d). Interest earned on money in the environmental radiation and perpetual care account shall be credited to the environmental radiation and perpetual care account.

(c) Money and security in the environmental radiation and perpetual care account may be administered by the commission only for the decontamination, decommissioning, stabilization, reclamation, maintenance, surveillance, control, storage, and disposal of radioactive substances 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 environmental radiation and perpetual care account may not be used for the normal operating expenses of the commission.

(e) The commission may use money in the environmental radiation and perpetual care account to pay for measures:

(1) to prevent or mitigate the adverse effects of abandonment of radioactive substances, default on a lawful obligation, insolvency, or other inability by the holder of a license issued by the commission to meet the requirements of this chapter or commission rules; and

(2) to ensure the protection of the public health and safety and the environment.

(f) The commission may provide, by the terms of a contract or lease entered into between the commission and any person or by the terms of a license issued by the commission to any person, for the decontamination, closure, decommissioning, reclamation, surveillance, or other care of a site or facility subject to commission jurisdiction under this chapter as needed to carry out the purposes of this chapter.

(g) The existence of the environmental radiation and perpetual care account does not make the commission liable for the costs of decontamination, transfer, transportation, reclamation, surveillance, or disposal of radioactive substances arising from a license holder's abandonment of radioactive substances, default on a lawful obligation, insolvency, or inability to meet the requirements of this chapter or commission rules.

SECTION 14. Subchapter H, Chapter 401, Health and Safety Code, is amended by adding Section 401.307 to read as follows:

Sec. 401.307. RADIATION AND PERPETUAL CARE ACCOUNT AND ENVIRONMENTAL RADIATION AND PERPETUAL CARE ACCOUNT CAP. (a) Fees imposed under Sections 401.301(d) and 401.052(d), and the surcharge collected under Section 401.207(h), and which are deposited to the credit of either the radiation and perpetual care account or the environmental radiation and perpetual care account shall be suspended when the sum of the two accounts reaches $150 million. If the balance of fees collected subsequently is reduced to $75 million or less, the commission and department shall reinstitute assessment of the fees until the balance reaches $150 million.

(b) The surcharge collected under Section 401.207(h) shall continue to be collected regardless of whether the cap established in this subchapter is reached.

SECTION 15. The following provisions of the Health and Safety Code are repealed:

(1) Subsection (d), Section 401.052, as amended by Chapter 1067 (H.B. 1567), Acts of the 78th Legislature, Regular Session, 2003;

(2) Subsection (h), Section 401.245;

(3) Subsection (b), Section 401.2455;

(4) Subsection (e), Section 401.301; and

(5) Section 403.0052.

SECTION 16. As soon as practicable after the effective date of this Act, the Texas Commission on Environmental Quality shall adopt rules under Subsection (d-1), Section 401.207, Health and Safety Code, as added by this Act.

SECTION 17. As soon as practicable after the effective date of this Act, the Texas Commission on Environmental Quality shall adopt rules under Subsection (d), Section 401.218, Health and Safety Code, as added by this Act.

SECTION 18. As soon as practicable after the effective date of this Act, and no later than one year after the effective date of this Act, the Texas Commission on Environmental Quality shall adopt rules under Subsection (b), Section 401.2456, Health and Safety Code, as added by this Act.

SECTION 19. As soon as practicable after the effective date of this Act but no later than January 1, 2014, the Texas Commission on Environmental Quality and the Department of State Health Services shall update the portion of the memorandum of understanding between the two agencies under Section 401.069, Health and Safety Code, that governs each agency's role regarding the regulation and oversight of radioactive materials and sources of radiation.

SECTION 20. Any contract for compact waste or nonparty compact waste that has been signed before the effective date of this Act shall not be affected by the changes in law made by this Act.

SECTION 21. This Act takes effect September 1, 2013.

* * * * *