HBA-MPM H.B. 1910 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1910 By: Chisum Environmental Regulation 3/5/1999 Introduced BACKGROUND AND PURPOSE The Texas Low-Level Radioactive Waste Disposal Authority (authority) was created by the Texas Legislature in 1981 in response to federal law making each state responsible for the disposal of its own low-level radioactive waste. The authority was commissioned by Texas law to finance, construct, operate, and decommission a disposal site for low-level radioactive waste produced in Texas. Following state legislative direction, the authority filed an application to permit a site in Sierra Blanca, Hudspeth County. This application was denied by the Texas Natural Resource Conservation Commission (TNRCC) on October 22, 1998, citing inadequate characterization of the fault referred to in the application and failure to adequately address the socioeconomic impacts of the effects of the proposed facility and associated transport of radioactive material. H.B. 1910 establishes the Texas Low-Level Radioactive Waste Management Authority and defines its role and authority, as well as that of its board of directors, TNRCC, and the Texas Department of Health (department) with respect to methods of low-level radioactive waste management and disposal. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the board of directors of the Texas Low-Level Radioactive Waste Management Authority (board) in SECTION 8 (Section 402.028, Health and Safety Code); to the Texas Low-Level Radioactive Waste Management Authority in SECTION 14 (Section 402.0521, Health and Safety Code); and to the Texas Department of Health in SECTION 39 (Section 402.1511, Health and Safety Code); and that rulemaking authority previously delegated to the board is modified in SECTION 47 (Section 402.212, Health and Safety Code) and SECTION 65 (Section 402.272, Health and Safety Code) of this bill; and that rulemaking authority previously delegated to the Texas Natural Resource Conservation Commission (commission) is modified in SECTION 39 (Section 402.1511, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 402.001, Health and Safety Code, as follows: Sec. 402.001. SHORT TITLE. Provides that this chapter may be cited as the Texas LowLevel Radioactive Waste Management Authority Act, rather than the Texas Low-Level Radioactive Waste Disposal Authority Act. SECTION 2. Amends Section 402.002, Health and Safety Code, to provide that the purpose of this chapter is to establish the Texas Low-Level Radioactive Waste Management Authority (authority), rather than the Texas Low-Level Waste Disposal Authority, with responsibility for assuring necessary disposal or assured isolation capability for specific categories of low-level radioactive waste (waste). Makes conforming changes. SECTION 3. Amends Section 402.003, Health and Safety Code, as follows: Sec. 402.003. DEFINITIONS. Defines "assured isolation site" as the property and facilities acquired, constructed, and owned by the authority at which waste can be placed in abovegrade, concrete vaults designed to isolate it, while preserving options for long-term, lowlevel waste management and featuring accessibility, planned preventive maintenance, and sureties adequate to address contingencies or future management authorities. Defines "compact" as the Texas Low-Level Radioactive Waste Disposal Compact under Section 403.006 (Text of Compact), Health and Safety Code. Defines "party state" with the meaning assigned to it by Section 2.01(13) of the compact, where the term is defined as any state that has become a party in accordance with Article VII of this compact (Texas, Maine, and Vermont are initial party states under this compact). Defines "temporary storage" as the placement of waste in constructed facilities for eventual placement in a disposal or assured isolation site. Redesignates existing Subdivisions (1) and (2) to Subdivisions (2) and (3); Subdivisions (3)-(8) to Subdivisions (5)-(10); and Subdivisions (9)-(14) to Subdivisions (12)-(17), respectively. SECTION 4. Amends Section 402.012, Health and Safety Code, to make the authority subject to Chapter 325 (Texas Sunset Act), Government Code. Provides that unless continued in existence as provided by that chapter, the authority is abolished and this chapter expires September 1, 2007, rather than September 1, 2007. SECTION 5. Amends Section 402.013(c), Health and Safety Code, to make a conforming change. SECTION 6. Amends Section 402.020, Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 7. Amends Section 402.021(b), Health and Safety Code, to make a conforming change. SECTION 8. Amends Section 402.028, Health and Safety Code, as follows: Sec. 402.028. CONTRACTS OVER $15,000. (a) Requires the board of directors of the authority (board) to ask for competitive bids as provided by Subchapter B, Chapter 271 (Competitive Bidding on Certain Public Works Contracts, Purchasing and Contracting Authority of Municipalities, Counties, and Certain Other Local Governments), Local Government Code, if the estimated amount of a proposed contract for the purchase of materials, machinery, equipment, or supplies is more than $15,000, except as provided by this section. (b) Authorizes the board to use the design-build method for the construction of a disposal or assured isolation site facilitiy, and requires the board, in using that method and entering into a contract for services of a design-build firm, to follow the procedures authorized by Section 51.780 (Design-Build Contracts for Facilities), Education Code, for institutions of higher learning. (c) Authorizes the board to use a design-build-operate method for the construction and operation of a disposal or assured isolation site facility, and requires it, if choosing this option, to follow the procedures authorized by Subsection (b) and, in addition, by rule, to adopt and require for the facility operator professional and performance qualifications that are substantially similar, for services being contracted for, to the professional and performance requirements for architects and engineers under Section 51.780, Education Code. (d) Makes this section inapplicable to purchases of property from public agencies or to contracts for personal services, rather than personal or professional services. SECTION 9. Amends Sections 402.029(a) and (c), Health and Safety Code, as follows: (a) Authorizes the authority, through the board, to sue and be sued in the name of the authority in any court in this state, except as to matters pertaining to site selection and licensing of a disposal or assured isolation site, rather than a facility within the geographical area of Hudspeth County described in Section 402.0921 (Site Area), Health and Safety Code, which suits may only be brought in the courts of Travis County. (c) Makes conforming changes. SECTION 10. Amends Sections 402.031(a), (d), and (e), Health and Safety Code, to make conforming changes. SECTION 11. Amends Section 402.032, Health and Safety Code, to exempt the purchase by the authority of supplies, materials, services, or equipment necessary to prepare, construct, or operate a disposal or assured isolation site from the purchasing requirements of Subtitle D (State Purchasing and General Services), Title 10 (General Government), Government Code, except as provided under Section 402.212 (Contract for Operation of Disposal Site), Health and Safety Code. Makes conforming and nonsubstantive changes. SECTION 12. Amends Section 402.051, Health and Safety Code, as follows: Sec. 402.051. New title: JURISDICTION OVER DISPOSAL OR ASSURED ISOLATION SITE. (a) Created from existing text. Makes conforming and nonsubstantive changes. (b) Requires that a license for a disposal or assured isolation site be issued in the name of the authority and prohibits its transference to a private entity. SECTION 13. Amends Section 402.052, Health and Safety Code, as follows: Sec. 402.052. New title: DEVELOPMENT AND OPERATION OF DISPOSAL OR ASSURED ISOLATION SITE. Requires the authority to develop and operate one disposal or assured isolation site for the disposal, assured isolation, or both disposal and assured isolation of waste in this state. Makes conforming changes. SECTION 14. Amends Subchapter C, Chapter 402, Health and Safety Code, by amending Section 42.0521, as follows: Sec. 402.0521. TEMPORARY STORAGE FACILITIES. (a) Authorizes the authority to construct and operate temporary storage facilities for waste generated in this state and in the compact. (b) Authorizes the authority to contract with a political subdivision or other agency of the state or a private entity to construct and operate a temporary storage facility. (c) Requires that a license issued for the temporary storage facility under this section shall be issued in the authority's name and prohibits its transference to a private entity. (d) Authorizes the authority, by rule, to charge a fee, which shall be in an amount sufficient to recover costs of constructing, operating, and maintaining a temporary storage facility, to a person delivering waste to the facility. SECTION 15. Amends Section 402.053, Health and Safety Code, to make a conforming change. SECTION 16. Amends Section 402.058, Health and Safety Code, to make a conforming change. SECTION 17. Amends Section 402.059(a), Health and Safety Code, to make a conforming change. SECTION 18. Amends Section 402.081, Health and Safety Code, as follows: Sec. 402.081. New title: SITE SELECTION STUDIES. Deletes "disposal" from title. Authorizes the authority to give preference to counties that volunteer to be host counties in its site selection. Makes conforming changes. SECTION 19. Amends Section 402.082, Health and Safety Code, to specify that studies required under Section 402.081, Health and Safety Code, regarding disposal must consider certain factors. Deletes the alternative management technique of aboveground isolation facilities from the list of these factors. Provides that studies required under Section 402.081, Health and Safety Code, regarding assured isolation must consider certain factors. SECTION 20. Amends Section 402.083, Health and Safety Code, to require the board to choose a potential disposal or assured isolation site, rather than to choose at least two potential disposal sites, for further analysis under Section 402.084 (Evaluation of Potential Site), Health and Safety Code. SECTION 21. Amends Section 402.084, Health and Safety Code, as follows: Sec. 402.084. New title: EVALUATION OF POTENTIAL SITE. Makes conforming and nonsubstantive changes. SECTION 22. Amends Section 402.085, Health and Safety Code, to require the board to propose the site, rather than a site, if the site appears to be suitable, rather than the most suitable, for disposal or assured isolation, and to hold a public hearing to consider whether the site should be selected as the state's disposal or assured isolation site. Makes conforming changes. SECTION 23. Amends Section 402.086(a), Health and Safety Code, to make conforming changes. SECTION 24. Amends Section 402.087(a) and (c), Health and Safety Code, to make conforming changes. SECTION 25. Amends Section 402.088(b), Health and Safety Code, to make a conforming change. SECTION 26. Amends Section 402.089, Health and Safety Code, to make conforming changes. SECTION 27. Amends Section 402.090, Health and Safety Code, to make conforming changes. SECTION 28. Amends Section 402.091, Health and Safety Code, to make conforming changes. SECTION 29. Amends Section 402.092, Health and Safety Code, to make a conforming change. SECTION 30. Amends Section 402.0922, Health and Safety Code, to make conforming changes. SECTION 31. Amends Section 402.094, Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 32. Amends Section 402.122, Health and Safety Code, to make a conforming change. SECTION 33. Amends Section 402.123, Health and Safety Code, to require the School Land Board or the board of regents (regents) of the University of Texas System to authorize the authority to conduct any studies of the proposed site required by rule of the Texas Natural Resource Conservation Commission (TNRCC) or Texas Department of Health (department). Deletes the requirement that the School Land Board or regents, as appropriate, authorize the authority to enter on the land to conduct a detailed technical characterization of a proposed disposal site if the board determines that a suitable site can be located on land dedicated to the permanent school fund or permanent university fund and issues an order selecting that site as a proposed disposal site. Makes conforming changes. SECTION 34. Amends Section 402.124(b), Health and Safety Code, to make a conforming change. SECTION 35. Amends Section 402.125(b), Health and Safety Code, to make a conforming change. SECTION 36. Amends Section 402.126, Health and Safety Code, to authorize, rather than require, the authority to lease from the School Land Board on its terms and conditions the land determined by the School Land Board as necessary to serve as a rangeland and wildlife management area, rather than a buffer, for the disposal or assured isolation site. Makes conforming and nonsubstantive changes. SECTION 37. Amends Section 402.128, Health and Safety Code, to include the department among those entities which are prohibited from lessening any standards for the siting, constructing, or operation of a disposal or assured isolation site because it is located on state-owned land dedicated to the permanent school fund or the permanent university fund. Makes conforming and nonsubstantive changes. SECTION 38. Amends Section 402.151, Health and Safety Code, to make conforming changes. SECTION 39. Amends Section 402.1511, Health and Safety Code, as follows: Sec. 402.1511. New title: COMMISSION OR DEPARTMENT LICENSE. (a) Provides that the department has sole authority to issue a license to operate an assured isolation site under this chapter. Prohibits the authority or any other entity authorized by contract, rather than authorized, to operate a disposal or assured isolation site under this chapter unless the authority, rather than the authority or entity, has first obtained an operating license as required under this section, rather than an operating license from the commission. Authorizes the department, in addition to the commission, to adopt any rules reasonably necessary to exercise its authority under this section. Makes conforming changes. SECTION 40. Amends Section 402.152, Health and Safety Code, as follows: Sec. 402.152. APPLICATIONS FOR LICENSES AND AUTHORIZATIONS. (a) Makes a conforming change. (b) Deletes the requirement that, notwithstanding any other law or provision of this chapter, the authority submit to the appropriate state and federal agencies an application to construct and operate a disposal site located within the geographical area described in Section 402.0921, Health and Safety Code. (c) Deletes the requirement that the authority maintain such field offices and conduct such studies and activities as necessary to provide information required to support the license application for a disposal site located within the geographical area described in Section 402.0921, Health and Safety Code. (d) Deletes the requirement that the commission complete its review of the completeness and administrative sufficiency of the application within 30 days of receiving the application from the authority, and the requirement that the authority promptly respond to the commission's requests for additional documentation or other information in order to complete a sufficiency review of the application. Deletes the provision that the application is presumed to be administratively sufficient if the commission does not inform the authority within 45 days of receiving the application. (e) Deletes the requirement that the commission complete all activities associated with the review and processing of an application, including the publication of an environmental assessment, if required, but excluding public hearings, and either propose to issue or deny a license for the operation of the site no later than 15 months after the date that the application is declared or presumed to be administratively sufficient. Deletes the requirement that the commission shall give priority to the review of the application over all other radioactive materials and waste licensing and registration matters pending before the commission. SECTION 41. Amends Section 402.154, Health and Safety Code, to make conforming changes. SECTION 42. Amends Section 402.155, Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 43. Amends Section 402.181, Health and Safety Code, as follows: Sec. 402.181. New title: DISPOSAL OR ASSURED ISOLATION SITE CONSTRUCTION. Requires the authority to contract for construction as provided by this chapter, in addition to construct all works and facilities on the disposal or assured isolation site, and to make improvements necessary to prepare the site for management of waste, rather than for disposal and to permanently dispose of waste. Makes conforming changes. SECTION 44. Amends Section 402.182, Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 45. Amends Sections 402.183(a) and (b), Health and Safety Code, to make conforming changes. SECTION 46. Amends Sections 402.211, Health and Safety Code, as follows: Sec. 402.211. New title: MANAGEMENT AND OPERATION OF DISPOSAL OR ASSURED ISOLATION SITE. Makes conforming changes. SECTION 47. Amends Section 402.212, Health and Safety Code, as follows: Sec. 402.212. New title: CONTRACT FOR OPERATION OF DISPOSAL OR ASSURED ISOLATION SITE. Authorizes the board, after bidding conducted in accordance with Section 402.028, Health and Safety Code, to contract with a political subdivision or state agency or a private entity to perform the overall operation of a disposal or assured isolation site. Makes conforming changes. SECTION 48. Amends Section 402.213, Health and Safety Code, to authorize the board, in contracting with a contract operator, to select the operator before the authority, rather than before the board, obtains the license for the disposal or assured isolation site so that the board may allow the operator to advise and consult with the board, general manager, and staff of the authority on the design of the site plans. Makes conforming changes. SECTION 49. Amends Section 402.214, Health and Safety Code, to make conforming changes. SECTION 50. Amends Section 402.215, Health and Safety Code, to make conforming changes. SECTION 51. Amends Section 402.216, Health and Safety Code, as follows: Sec. 402.216. New title: RULES RELATING TO DISPOSAL OR ASSURED ISOLATION SITE. Makes conforming changes. SECTION 52. Amends Section 402.217, Health and Safety Code, as follows: Sec. 402.217. New title: SITE ACTIVITIES. Deletes "disposal" from title. Makes conforming and nonsubstantive changes. SECTION 53. Amends Section 402.218, Health and Safety Code, to provide that on acceptance by the disposal or assured isolation site, title and liability for the waste transfers to the authority. Makes conforming and nonsubstantive changes. SECTION 54. Amends Section 402.219, Health and Safety Code, as follows: Sec. 402.219. New title: LIMITATIONS ON WASTE ACCEPTANCE. Authorizes a licensed disposal or assured isolation site, rather than a site, to accept only waste generated in this state, except as provided by an interstate compact. Makes conforming changes. SECTION 55. Amends Sections 402.220(a), (c), and (d), Health and Safety Code, to authorize the authority to contract for the construction of facilities and procure equipment required to provide fire, police, and emergency services needed to support the disposal or assured isolation site. Makes conforming and nonsubstantive changes. SECTION 56. Amends Section 402.221(b), Health and Safety Code, to require an inspector under contract to the department, in addition to one employed by the department, to inspect all packaged waste before it is transported to a disposal or assured isolation site in this state. SECTION 57. Amends Section 402.222, Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 58. Amends Section 402.223, Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 59. Amends Section 402.224(a), Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 60. Amends Section 402.225, Health and Safety Code, to delete the prohibition that waste may not be disposed of in a landfill below the natural level of a disposal site unless federal or state regulatory programs for waste preclude or recommend against aboveground disposal, or if the authority has, by rule, determined that belowground disposal provides greater protection than aboveground disposal for public health and the environment for the period for which the waste will continue to pose a hazard to public health and the environment. Redesignates Subdivisions (2) and (3) to Subdivisions (1) and (2), respectively. SECTION 61. Amends Section 402.226(a), Health and Safety Code, to make conforming and nonsubstantive change. SECTION 62. Amends Section 402.228, Health and Safety Code, as follows: Sec. 402.228. New title: DECOMMISSIONING AND CLOSING SITE. Makes conforming changes. SECTION 63. Amends Section 402.252(a), Health and Safety Code, to require the board to transfer on a quarterly basis that portion of waste acceptance fees, rather than disposal fees, identifiable as adopted for the purposes of Sections 402.273(a)(3) and (b) (Waste Disposal Fee Criteria) to the commissioners court of the host county. SECTION 64. Amends Section 402.271, Health and Safety Code, to make a conforming change. SECTION 65. Amends Section 402.272, Health and Safety Code, as follows: Sec. 402.272. New title: WASTE ACCEPTANCE FEES. Requires the board by rule to adopt and periodically revise waste acceptance, rather than disposal, fees according to a specified schedule. Makes conforming changes. SECTION 66. Amends Sections 402.2721(b)-(h), Health and Safety Code, as follows: (b) Makes conforming changes. (c) Makes a conforming change. (d) Deletes the requirement that fees established under this section include minimum and maximum annual fees in an amount of at least $5 million for the 1992-1993 biennium to pay for the estimated costs of administering, implementing, and planning the activities authorized by this chapter and that the fees include at least $5 million to reimburse the general revenue fund for appropriation expended and incurred by the authority in selecting, characterizing, and licensing a disposal site. Redesignates existing Subdivisions (2)-(6) to Subdivisions (1)(5), respectively. (e) Requires the board to assess a surcharge of 10 percent of the fee established for each biennium, rather than for the 1996-1997 biennium and subsequent bienniums. (f) Deletes the requirement that the board assess, for the 1994-1995 biennium only, a surcharge of 10 percent of the fee established for the 1992-1993 biennium. Requires that surcharges assessed under Subsection (e), rather than Subsections (e) and (f), be used to fund local public projects under Subchapter I. (g) Redesignated from Subsection (h). SECTION 67. Amends Section 402.273, Health and Safety Code, as follows: Sec. 402.273. New title: WASTE ACCEPTANCE FEE CRITERIA. Makes conforming changes. SECTION 68. Amends Section 402.274, Health and Safety Code, to make conforming changes. SECTION 69. Amends Sections 402.275(c) and (d), Health and Safety Code, to make conforming changes. SECTION 70. Amends Sections 402.291(a) and (d), Health and Safety Code, to make conforming changes. SECTION 71. Amends Section 403.001(a), Health and Safety Code, to provide that one of the voting members of the compact commission be a legal resident of the host county, rather than of Hudspeth County. SECTION 72. Repealer: Sections 402.059(d) (regarding the power to enter property as it applies to property located in whole or in part in the geographical are of Hudspeth County); 402.0921 (Site Area); 402.121 (Preference to School or University Land); 402.127 (Finding by Board of Regents Before Sale or Lease); and 402.129 (Report to Governor and Legislature on Siting), Health and Safety Code. SECTION 73. Effective date: September 1, 1999. SECTION 74. Emergency clause.