AMW SEP, C.S.S.B. 1541 77(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.S.B. 1541
By: Duncan
Environmental Regulation
5/17/2001
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Chapter 402, Health and Safety Code, sets forth requirements for the
siting, licensing, financing, construction, operation, decommissioning, and
closure of a low-level radioactive waste disposal site. The original
statute established the duties and functions of the Texas Low-Level
Radioactive Waste Disposal Authority (authority) and granted licensing
authority to the Texas Natural Resource Conservation Commission (TNRCC).
The authority was charged with building and operating a site for the
disposal of low-level radioactive waste generated in Texas. Texas later
joined Maine and Vermont in the Texas LowLevel Radioactive Waste Disposal
Compact (compact) for the disposal of low-level radioactive waste generated
in the three states. The legislature designated a preferred siting area in
Hudspeth County, but the authority's license application was denied by
TNRCC in 1998. The 76th Legislature abolished the authority and
transferred its functions to TNRCC.
Since the denial of the authority's application, Texas has not actively
pursued methods to permanently manage waste generated from utilities,
industry, and numerous medical and research operations. In 1998, there
were over 900 identified sites of potential generators of low-level
radioactive waste in Texas and much of the waste generated at these
facilities is currently being stored on-site until viable permanent
management options are available. Additionally, Texas remains obligated
under the compact to permanently manage low-level radioactive waste
generated in Maine and Vermont. Assured isolation, an alternative method
to belowground disposal, has been developed and may provide for technically
sound and safe management of low-level radioactive waste. C.S.S.B. 1541
sets forth provisions regarding the permanent management of low-level
radioactive waste, including the use of assured isolation, and establishes
procedures for the licensing and regulation of permanent management
facilities.
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Natural Resource Conservation
Commission (TNRCC) in SECTION 5 (Sections 402.012, 402.014, 402.016,
402.020, 402.024, 402.032, 402.035, 402.036, and 402.037, Health and Safety
Code), in SECTION 8 (Sections 402.060, 402.0605, 402.061, and 402.062,
Health and Safety Code), in SECTION 9 (Sections 402.083, 402.084, 402.087,
and 402.088, Health and Safety Code), in SECTION 11 (Section 402.093,
Health and Safety Code), in SECTION 12 (Section 402.094, Health and Safety
Code), in SECTION 14 (Section 402.096, Health and Safety Code), and in
SECTION 61; and rulemaking authority previously delegated to TNRCC is
modified in SECTION 7 (Section 402.054, Health and Safety Code), in SECTION
11 (Section 402.093, Health and Safety Code), in SECTION 17 (Section
402.272, Health and Safety Code), and in SECTION 18 (Section 402.274,
Health and Safety Code) of this bill. It is the opinion of the Office of
House Bill Analysis that rulemaking authority previously delegated to the
Texas Board of Health is modified in SECTION 25 (Section 401.052, Health
and Safety Code) of this bill.
ANALYSIS
C.S.S.B. 1541 amends the Health and Safety Code to establish the Permanent
Management of Low-Level Radioactive Waste Act (Sec. 402.001). The bill
provides that the purpose of the Permanent Management of Low-Level
Radioactive Waste Act is to provide the Texas Natural Resource Conservation
Commission (TNRCC) with the powers to ensure that the state has the
necessary capability to permanently manage specific categories of low-level
radioactive waste (waste) (Sec. 402.002). The bill removes language
regarding references to the Low-Level Radioactive Waste Disposal Authority
(authority) and provides that a reference to the authority means the TNRCC
(Sec. 402.004). The bill defines "permanent management" to mean the
disposal or assured isolation with later conversion of the assured
isolation facility for on-site disposal of the isolated waste and related
on-site activities including receipt, processing, packaging, storage, and
monitoring of low-level radioactive waste (waste) (Sec. 402.003).
The bill specifies the requirements for a person to obtain a permanent
management license (license) (Sec. 402.011). The bill requires TNRCC by
rule to provide for receiving applications for and issuing a single license
for permanent management at a single permanent management facility
(facility) and provides the standards the facility must meet before TNRCC
is authorized to issue the license. The bill requires TNRCC by rule to
provide that the license authorizes only the permanent management of
low-level radioactive waste to be managed under the Texas Low-Level
Radioactive Waste Disposal Compact (compact) in accordance with the volumes
and types of waste established by the Texas Low-Level Radioactive Waste
Disposal Compact Commission (compact commission) and non-compact waste
approved for importation to the state by the compact commission. The bill
sets forth provisions regarding the authorization of a facility to meet an
unmet necessary capacity. The bill requires TNRCC by rule to provide for
issuing a license that, in addition to the permanent management activities
related to low-level radioactive waste, would allow the license holder,
under the same license, to dispose of federal facility waste (federal
waste) at a separate facility adjacent to the facility for the disposal of
low-level radioactive waste (Sec. 402.012).
To the extent necessary to protect the public health and safety and the
environment, the bill requires TNRCC by rule to adopt criteria for the
designation of a site as unsuitable for assured isolation or disposal. The
bill specifies the reasons for the prohibition of a site by TNRCC and
requires TNRCC to consider whether sites appropriate for a facility are
appropriate for waste that is not managed under the compact (Sec. 402.014).
C.S.S.B. 1541 sets forth provisions regarding notice of applications for
the license (application), procedures for handling applications, and the
contents of the application and requires TNRCC by rule to adopt procedures
for handling applications (Secs. 402.015, 402.016, and 402.017). The bill
also sets forth provisions regarding requirements for an applicant,
procedures for completed applications, the technical review of
applications, and recommendations by the executive director of TNRCC
(executive director) (Secs. 402.017, 402.018, and 402.019).
The bill requires TNRCC by rule to adopt tier 1 criteria to evaluate the
natural characteristics of the site for a proposed facility and the
adequacy of financial assurance related to the proposed facility. The bill
provides criteria for evaluating natural characteristics of the site,
assessing the adequacy of a proposed facility, and for evaluating financial
assurance. The bill authorizes TNRCC, in adopting financial assurance
criteria, to consider the different times at which similar expenditures
would be necessary for an assured isolation facility as compared to a
disposal facility, the different expenditures necessary for those types of
facilities, and the different life-cycle costs for those types of
facilities (Sec. 402.020).
C.S.S.B. 1541 requires TNRCC to adopt tier 2 criteria, tier 3 criteria, and
tier 4 criteria and specifies what is to be evaluated by the criteria
(Secs. 402.021-402.023). TNRCC is also authorized by rule to adopt other
criteria found to be necessary (Sec. 402.024). The bill establishes
provisions regarding a proposed recommendation for a licensing hearing, a
contested case hearing on an application, mediation of a contested case,
and deadlines for final action on an application (Secs. 402.025-402.027).
The bill also sets forth provisions regarding judicial review of an action
or inaction of TNRCC or the executive director regarding the licensing of a
facility (Sec. 402.028).
The bill establishes provisions regarding issuance of a license, conveyance
of a facility, and license conditions and provides that a license expires
on the 35th anniversary of its issuance (Secs. 402.029402.031). The bill
requires TNRCC to require the license holder to provide financial security
acceptable to TNRCC. The bill requires the amount and type of security to
be determined as provided by TNRCC rules in accordance with criteria
specified by those rules, specifies what is to be included in the criteria,
and sets forth requirements regarding an annual review of financial
qualifications and security provided by the license holder (Secs. 402.032
and 402.033).
C.S.S.B. 1541 provides that a license is not transferable (Sec. 402.034).
The bill requires TNRCC by rule to adopt reasonable procedures for renewal
of the license and sets forth provisions regarding license renewal (Sec.
402.035). The bill requires TNRCC by rule to adopt standards and
procedures for amending the license and sets forth provisions regarding
license amendments (Sec. 402.036).
The bill requires TNRCC to adopt rules and amend a license as necessary for
compliance with federal standards for facilities and sites for the disposal
of waste and for assured isolation of waste intended for conversion to
on-site disposal (Sec. 402.037). The bill sets forth procedures for a
commissioners court, after receiving notice of intent from TNRCC of a
proposed facility site, regarding approval by referendum or county election
on the question of whether county residents are in favor of being the host
county of a facility (Sec. 402.038).
The bill entitles TNRCC to exclusive statewide jurisdiction over facility
site selection, preparation, construction, operation, maintenance,
decommissioning, closing, post-closure institutional control, and
financing. The bill also authorizes TNRCC to take any action regarding
waste, including monitoring or maintenance of permanent management
activities and measures to prevent or alleviate an emergency involving
waste (Sec. 402.051). The bill authorizes TNRCC to adopt rules, standards,
and orders related to permanent management (Sec. 402.054). The bill
authorizes TNRCC and its employees, contractors, and agents to enter public
or private property to assess the suitability of land for a facility to be
licensed and removes provisions regarding the right to enter property
located in whole or in part in Hudspeth County, Texas (Sec. 402.059).
C.S.S.B. 1541 requires TNRCC by rule to prescribe acceptable permanent
management methods and procedures and requires the rules to be designed to
protect the public health and the environment from hazards presented by the
radioactive and nonradioactive characteristics of waste during and after
its disposal or assured isolation and in case of failure to contain the
waste during or after its disposal or assured isolation. The bill requires
TNRCC by rule to prohibit disposal as the waste is received at the facility
by burial in an unlined land disposal unit with no technical enhancements
designed to contain waste. The bill requires TNRCC by rule to prohibit
disposal in a landfill below the natural level of the permanent facility
site and provides for exceptions to the prohibition. The bill requires
TNRCC by rule to prohibit disposal of liquid waste unless the waste is
solidified or packaged in sufficient absorbent material to absorb twice the
volume of the liquid. The bill also requires TNRCC by rule to prohibit
disposal of waste containing free standing liquid in excess of one percent
of the volume (Sec. 402.060).
C.S.S.B. 1541 requires TNRCC by rule to authorize a facility, permit
allowing, to accept federal waste for disposal only at a separate and
distinct facility adjacent to the facility at which permanent management of
waste is conducted. The bill requires TNRCC by rule and by permit
conditions to restrict the amount and type of, and the rate at which, the
license holder is authorized to accept federal waste at the separate
adjacent facility. The bill provides that the restrictions must be based
on the performance objective established by federal licensing requirements
for land disposal of radioactive waste. The bill authorizes TNRCC to
provide separate rules for the management and disposal of federal waste at
the separate adjacent facility as necessary or useful to ensure that the
acceptance, management, and disposal of federal waste at the permanent
facility does not pose a greater risk to human health and the environment
than the acceptance and permanent management of the waste at the facility.
The rules must prohibit the permanent management license holder from
allowing the United States Department of Energy (DOE) from owning or
controlling the permanent management facility and from accepting from DOE
the status of prime contractor in relation to activities at the permanent
management facility or separate adjacent facility. The rules must prohibit
the permanent management facility from commingling waste (Sec. 402.0605).
The bill requires TNRCC, in conjunction with the compact commission, by
rule to determine the capacity for permanent management necessary to meet
the terms of the compact and the needs presented by waste generated in this
state and specifies what is to be considered in the determination (Sec.
402.061). The bill requires TNRCC by rule to establish standards and
criteria, at least as stringent as the federal requirements for disposal,
that the site and on-site improvements of the facility must meet to qualify
for disposal or assured isolation and the processing, packaging, and
storage to be authorized by the license. The bill authorizes TNRCC by rule
to impose specific design criteria or performance-based design criteria for
the facility's improvements and specifies factors the standards and
criteria must address (Sec. 402.062). The bill sets forth provisions
regarding standards for safeguards against hazards and license holder
payment for maintenance, surveillance, or other care of a facility (Secs.
402.062 and 402.063).
C.S.S.B. 1541 sets forth provisions regarding the conveyance of waste and
exclusive use of the facility site (Secs. 402.081 and 402.082). The bill
requires TNRCC by rule to prohibit major construction relating to license
activities until required proceedings regarding contested cases, final
action on a license application, license renewal, or license amendments are
completed and the license or amendment is issued. The bill also sets forth
provisions regarding construction at a facility (Sec. 402.083).
The bill authorizes TNRCC by rule or by conditions stated in the license to
regulate any aspect of the operation of the facility and sets forth
provisions regarding TNRCC's authority over facility operation (Sec.
402.084). The bill establishes provisions regarding resident inspectors,
prohibitions against a facility's acceptance of out-of-state or mixed
waste, and the acceptance by a facility of federal waste and mixed waste
(Secs. 402.085 and 402.086). The bill sets forth provisions regarding
emergency response planning and specifies that TNRCC rules must provide
standards for determining whether, depending on needed facilities, the
proximity of the community nearest the facility, and other appropriate
factors, the fire, police, and emergency medical facilities and equipment
must be located at or proximate to the facility or in the nearest community
(Sec. 402.087).
The bill requires TNRCC by rule to adopt and enforce groundwater protection
standards applicable to the facility that are compatible with federal
standards adopted under the Atomic Energy Act of 1954 and requires TNRCC,
in adopting rules related to standards regarding nonradioactive
constituents, to consider the compatibility of those standards with TNRCC's
groundwater protection standards adopted under other programs (Sec.
402.088). The bill also sets forth provisions regarding operations after
license expiration, suspension or revocation, decommissioning and closing a
facility, emergency orders, and corrective actions and measures taken by
TNRCC (Secs. 402.089, 402.090, 402.091, and 402.092).
C.S.S.B. 1541 requires a license holder that accepts federal waste for
disposal to arrange for and pay the costs of management, control,
stabilization, and disposal of the federal waste and convey to the federal
government before the termination of the license, all rights, title, and
interests in waste located on the property to be conveyed and on
termination of the license, the necessary rights, title, and interests in
the land and buildings used for the disposal of federal waste, together
with all required rights of access to the property (Sec. 402.100).
The bill sets forth that Texas and any agency or officer of this state are
not liable for any damages with respect to the land or facility at which
federal waste is accepted or with respect to the federal waste and are not
liable for costs associated with removal or remediation at the land or
facility at which federal waste is accepted or with respect to the federal
waste. The license, to the extent it allows the acceptance of federal
waste, must require the owner or operator of the separate adjacent facility
at which the federal waste may be accepted to insure and indemnify this
state for any liability imposed on this state or any agency or officer of
this state because of activities related to the acceptance or disposal of
federal waste (Sec. 402.101). The bill also requires the license holder to
assess the generator of the federal waste a surcharge for the disposal of
the federal waste at the separate adjacent facility, if any. The bill
requires the surcharge to be 10 percent of the gross receipts from fees or
charges related to the disposal of federal waste and requires all
surcharges collected by the license holder for the disposal of federal
waste to be transferred to the commissioners court of the host county (Sec.
402.252).
The bill transfers from the board of directors of the authority to TNRCC
rulemaking authority relating to the operation and management of a
facility. The bill requires TNRCC by rule to exclude from the facility
types of waste that are incompatible with permanent management operations
at the facility (Sec. 402.093). The bill requires TNRCC by rule to require
the facility to have on-site, as necessary, facilities for processing and
packaging waste for disposal or assured isolation (Sec. 402.094).
The bill sets forth provisions regarding collection of expenses by TNRCC,
waste disposal fees collected by TNRCC and by a license holder for the
acceptance and disposal of federal waste, and processing and packaging fees
collected by TNRCC and by a license holder for federal waste accepted under
the license (Secs. 402.271- 402.274). The bill establishes provisions
regarding the permanent management facility decommissioning account, the
assured isolation conversion account, and the federal facility waste
decommissioning account (Secs. 402.2744 - 402.2746). The bill modifies
provisions relating to the lowlevel radioactive waste fund (Sec. 402.275).
The bill provides that a reference to the Code of Federal Regulations in
the provisions regarding radioactive materials and other sources or
radiation refers to the code as it existed on September 1, 2001, rather
than September 1, 1999 (Sec. 401.005). The bill modifies provisions
regarding the rules for the transportation and routing of waste and
regarding fees assessed for the transportation and routing of waste (Sec.
401.052).
The bill requires TNRCC to maintain information on the known locations at
which radioactive material has been managed by an assured isolation
facility and information on inspection reports relating to radioactive
material managed by an assured isolation facility (Sec. 401.058). The bill
modifies provisions regarding the conducting of waste studies by TNRCC and
the Texas Department of Health (TDH) and the rights of TNRCC and TDH to
enter public or private property to determine compliance with the permanent
management of waste (Secs. 401.061 and 401.063). The bill also modifies
provisions regarding the requirements for licensing and registration of
waste (Secs. 401.101 and 401.104).
The bill provides that TDH and the Texas Board of Health have exclusive
authority over the processing of waste and removes TNRCC's authority over
the processing of waste (Secs. 401.111-117, 401.151, and 401.152). The
bill provides that TNRCC has sole and exclusive authority to directly
regulate and to grant, deny, renew, revoke, suspend, amend, or withdraw
licenses for the disposal of waste, certain by-product material, naturally
occurring radioactive material waste except oil and gas NORM waste, source
material, and special nuclear material (Sec. 401.412).
The bill requires one of the members of the compact commission to be a
legal resident of the host county in which a disposal facility is located
or being developed, rather than of Hudspeth County, Texas (Sec. 403.001).
The bill deletes references to a radioactive substance or substances (Secs.
401.003, 401.011, and 401.412)
C.S.S.B. 1541 amends the Water Code to extend certain provisions regarding
enforcement by TNRCC to the permanent management of low-level radioactive
waste (Secs. 7.033, 7.111, 7.184, 7.303, 7.311, 7.351, 7.354, 7.355,
7.357).
The bill repeals law relating to schools and university land, licenses and
authorizations, disposal site construction, management and operation of a
disposal site, planning and implementation fees, and revenue bonds. The
bill also repeals law relating to the authority, low-level radioactive
waste disposal, the lowlevel radioactive waste fund, and TNRCC's
requirement of a disposal license (SECTION 60). The bill requires TNRCC to
formally propose all rules necessary to effect the receipt of applications
for and issuance of a license on or before June 1, 2002 (SECTION 61).
EFFECTIVE DATE
September 1, 2001.
COMPARISON OF ORIGINAL TO SUBSTITUTE
C.S.S.B. 1541 modifies the original to include mixed waste in the
definition of "federal facility waste" (Sec. 402.003). The substitute
specifies that the restrictions to the amount of federal waste that may be
accepted at a permanent management facility must be based on the
performance objective established by federal licensing requirements for
land disposal of radioactive waste rather than risk posed by the federal
waste to human health and the environment and on the financial security and
operational capacity of the facility. The substitute provides that the
Texas Natural Resource Conservation Commission (TNRCC) rules must prohibit
a permanent management license holder from allowing the United States
Department of Energy (DOE) from owning or controlling the permanent
management facility and from accepting, from DOE, the status of prime
contractor in relation to activities at the permanent management facility
or separate adjacent facility (Sec. 402.0605).
The substitute authorizes TNRCC to suspend the permanent management license
if the license holder has not completed the construction of the permanent
management facility on or before the first anniversary of the date the
license is issued (Sec. 402.083). The substitute specifies that, if the
permanent management license allows the disposal of federal waste, the
permanent license holder is authorized to accept mixed waste if the mixed
waste consists of hazardous waste and low-level radioactive waste
regardless of whether the mixed waste was generated by an agency of the
federal government (Sec. 402.086).
The substitute also specifies that TNRCC is to act on a recommendation from
the radiation advisory board in regard to certain provisions relating to
the permanent management facility decommissioning account and the assured
isolation conversion account (accounts) and the federal facility waste
decommissioning account. The substitute requires, at the end of each state
fiscal year, the comptroller of public accounts to transfer to the general
revenue fund the amount of money in the accounts that TNRCC determines
would generate enough interest income to fully finance the costs of
decommissioning the facility by the time the facility is projected to be
decommissioned or converted. The substitute specifies that the accounts
are in the state treasury outside of the general revenue fund rather than
in the general revenue fund. The substitute removes provisions regarding
permanent licensed facilities licensed to dispose of federal facility waste
at a separate adjacent facility in regard to the permanent management
facility decommissioning account (Secs. 402.2744 and 402.2745). The
substitute replaces provisions regarding the decommissioning of federal
facility waste under the permanent management facility decommissioning
account with provisions regarding a federal facility waste decommissioning
account applicable to permanent licensed facilities licensed to dispose of
federal facility waste at a separate adjacent facility (Sec. 402.2746).
The substitute repeals provisions regarding revenue bonds (SECTION 60).