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.