HBA-MPM, JRA H.B. 1172 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 1172 By: Chisum Environmental Regulation 7/20/1999 Enrolled BACKGROUND AND PURPOSE Prior to the 76th Legislature, references to radioactive waste in state law did not conform to references to radioactive waste in federal law. In order to maintain Texas' delegation from the Nuclear Regulatory Commission to regulate radioactive materials, H.B. 1172 changes the statutory definition of and references to low-level radioactive waste to conform with the federal definition. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly granted to the Texas Natural Resource Conservation Commission (TNRCC) and the Texas Department of Health (TDH) in SECTION 2 (Section 401.004, Health and Safety Code), that rulemaking authority previously delegated to TNRCC is modified in SECTION 5 (Section 401.104, Health and Safety Code); and that rulemaking authority previously delegated to TDH and TNRCC is modified in SECTION 6 (Section 401.106, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 401.003(8), (16), and (19), Health and Safety Code, as follows: (8) Redefines "disposal," to mean, with regard to low-level radioactive waste, isolation or removal of low-level radioactive waste, rather than radioactive waste, from mankind and mankind's environment without intent to retrieve that low-level radioactive waste later. (16) Makes a conforming change. (19) Makes a conforming change. SECTION 2. Amends Subchapter A, Chapter 401, Health and Safety Code, by adding Sections 401.004 and 401.005, as follows: Sec. 401.004. LOW-LEVEL RADIOACTIVE WASTE DEFINED. (a) Defines "low-level radioactive waste" as radioactive material that is discarded or unwanted and not exempt by Texas Board of Health (board) rule adopted under Section 401.106 (Exemption From Licensing or Registration Requirements), Health and Safety Code; is waste, as defined by 10 C.F.R. Section 61.2; and is subject to concentration limits and disposal criteria established under 10 C.F.R. Section 61.55, or compatible rules established by the Texas Department of Health (TDH) or the Texas Natural Resource Conservation Commission (TNRCC), as applicable. (b) Specifies that low-level radioactive waste does not include high-level radioactive waste as defined by 10 C.F.R. Section 60.2; spent nuclear fuel as defined by 10 C.F.R. Section 72.3; by-product material described by Section 401.003(3)(B) (Definitions), Health and Safety Code; naturally occurring radioactive material waste that is not oil and gas NORM waste; or oil and gas NORM waste. Sec. 401.005. CODE OF FEDERAL REGULATION REFERENCES. Establishes that a reference in this chapter to the "C.F.R." or the "Code of Federal Regulations" means the Code of Federal Regulations as it existed on September 1, 1999. SECTION 3. Amends Sections 401.052(b), (d), and (e), Health and Safety Code, to make conforming changes. SECTION 4. Amends Sections 401.053 and 401.061, Health and Safety Code, as follows: Sec. 401.053. New title: CLASSIFICATION SYSTEM FOR LOW-LEVEL RADIOACTIVE WASTE. Makes conforming changes. Sec. 401.061. New title: LOW-LEVEL RADIOACTIVE WASTE STUDIES. Makes conforming changes. SECTION 5. Amends Sections 401.104, Health and Safety Code, to amend Subsections (a) and (b) and add Subsection (e). (a) Includes Subsection (e) as an exception with respect to the provision for the general or specific licensing of radioactive material or devices or equipment using such material by board rule. Makes a conforming change. (b) Includes Subsection (e) as an exception to the provision for licensing by TNRCC rule for the disposal of radioactive material except by-product defined by Section 401.003(3)(B), Health and Safety Code. (e) Prohibits the board or TNRCC from requiring a license for a person who is party to an order issued under Section 361.188 (Final Administrative Order) or 361.272 (Administrative Orders Concerning Imminent and Substantial Endangerment), Health and Safety Code, for sites subject to Subchapter F (Registry and Cleanup of Certain Hazardous Waste Facilities), Chapter 361 (Solid Waste Disposal Act), Health and Safety Code, or an agreement entered into under Section 361.606 (Voluntary Cleanup Agreement), Health and Safety Code. Provides that this subsection does not exempt a person from complying with technical standards required of a license holder in this chapter. Makes an exemption granted by this subsection applicable only to the assessment and remediation of the contamination at the site. SECTION 6. Amends Section 401.106, Health and Safety Code, as follows: Sec. 401.106. New title: EXEMPTION FROM LICENSING OR REGISTRATION REQUIREMENTS OR FROM APPLICATION OF RULE. Authorizes TDH or TNRCC, as applicable, to exempt a radiation source or a kind or use or user from the application of a rule adopted by TDH or TNRCC under this chapter if these entities, respectively, determine that the exemption is not illegal and will not result in a significant risk to public health and safety and the environment. Authorizes TNRCC, notwithstanding any other law, and on request or its own initiative, to authorize on-site disposal of low-level radioactive waste on a specific basis at any site at which the waste disposal operations began prior to September 1, 1989, if, after evaluation of specific waste characteristics, the disposal site, and the disposal method, TNRCC determines that the continuation of the disposal will not constitute a significant risk to the public health and safety and to the environment. SECTION 7. Amends Section 401.111(a), Health and Safety Code, to make a conforming change. SECTION 8. Amends Section 401.112, Health and Safety Code, as follows: Sec. 401.112. New title: LOW-LEVEL RADIOACTIVE WASTE PROCESSING OR DISPOSAL LICENSE APPLICATION AND CONSIDERATIONS. Makes conforming and nonsubstantive changes. SECTION 9. Amends Section 401.113(c), Health and Safety Code, to make a conforming change. SECTION 10. Amends Section 401.114(a), Health and Safety Code, to make a conforming change. SECTION 11. Amends Section 401.115, Health and Safety Code, to make a conforming change. SECTION 12. Amends Section 401.116(a), Health and Safety Code, to make a conforming change. SECTION 13. Amends Section 401.117, Health and Safety Code, to make a conforming change. SECTION 14. Amends the heading to Subchapter E, Chapter 401, Health and Safety Code, as follows: SUBCHAPTER E. MANAGEMENT OF LOW-LEVEL RADIOACTIVE WASTE SECTION 15. Amends Section 401.151, Health and Safety Code, to make a conforming change. SECTION 16. Amends Section 401.152(a), Health and Safety Code, to make conforming changes. SECTION 17. Amends Section 401.153(a), Health and Safety Code, to make a conforming change. SECTION 18. Amends the heading to Subchapter F, Chapter 401, Health and Safety Code, as follows: SUBCHAPTER F. SPECIAL PROVISIONS CONCERNING LOW-LEVEL RADIOACTIVE WASTE DISPOSAL SECTION 19. Amends Sections 401.201-401.205, Health and Safety Code, as follows: Sec. 401.201. New title: REGULATION OF LOW-LEVEL RADIOACTIVE WASTE DISPOSAL. Makes a conforming change. Sec. 401.202. LICENSING AUTHORITY. Makes a conforming change. Sec. 401.203. LICENSE RESTRICTED TO PUBLIC ENTITY. Makes conforming changes. Sec. 401.204. ACQUISITION OF PROPERTY. Makes a conforming change. Sec. 401.205. New title: RESPONSIBILITIES OF PERSONS LICENSED TO DISPOSE OF LOW-LEVEL RADIOACTIVE WASTE. Makes conforming changes. SECTION 20. Amends Section 401.206(a), Health and Safety Code, to make a conforming change. SECTION 21. Amends Sections 401.207 and 401.209-401.213, Health and Safety Code, as follows: Sec. 401.207. OUT-OF-STATE WASTE. Makes conforming changes. Sec. 401.209. New title: ACQUISITION AND OPERATION OF LOW-LEVEL RADIOACTIVE WASTE DISPOSAL SITES. Makes conforming changes. Sec. 401.210. TRANSFER COSTS OF PROPERTY. Makes a conforming change. Sec. 401.211. LIABILITY. Makes conforming changes. Sec. 401.212. MONITORING, MAINTENANCE, AND EMERGENCY MEASURES. Makes a conforming changes. Sec. 401.213. INTERSTATE COMPACTS. Makes a conforming change. SECTION 22. Amends Section 401.301(b), Health and Safety Code, to make a change conforming to this section, which changes the name of the fund from the low-level waste fund to the low-level radioactive waste fund. SECTION 23. Amends Section 401.306, Health and Safety Code, as follows: Sec. 401.306. New title: LOW-LEVEL RADIOACTIVE WASTE FUND. Makes a conforming change. SECTION 24. Amends Section 402.003(5), (6), and (8), Health and Safety Code, as follows: (5) Makes a conforming change. (6) Establishes that "low-level radioactive waste" has the meaning assigned by Section 401.004. Deletes existing definition. (8) Makes a conforming change. SECTION 25. Amends Sections 402.014, 402.052, 402.053, 402.081, 402.082, and 402.154, Health and Safety Code, as follows: Sec. 402.014. SPECIAL LIMITATIONS ON PUBLIC MEMBERS. Makes a conforming change. Sec. 402.052. DEVELOPMENT AND OPERATION OF DISPOSAL SITE. Makes a conforming change. Sec. 402.053. GENERAL POWERS. Makes a conforming change. Sec. 402.081. DISPOSAL SITE SELECTION STUDIES. Makes conforming changes. Sec. 402.082. STUDY CRITERIA. Makes conforming changes. Sec. 402.154. New title: TECHNIQUES FOR MANAGING LOW-LEVEL RADIOACTIVE WASTE. Makes conforming changes. SECTION 26. Amends Section 402.181(a), Health and Safety Code, to make a conforming change. SECTION 27. Amends Section 402.182, Health and Safety Code, to make a conforming change. SECTION 28. Amends Section 402.216(a), Health and Safety Code, to make a conforming change. SECTION 29. Amends Sections 402.217, 402.218, 402.219, 402.222, 402.223, and 402.225, Health and Safety Code, as follows. Sec. 402.217. DISPOSAL SITE ACTIVITIES. Makes conforming changes. Sec. 402.218. New title: ACCEPTANCE OF LOW-LEVEL RADIOACTIVE WASTE. Makes a conforming change. Sec. 402.219. New title: LIMITATION ON LOW-LEVEL RADIOACTIVE WASTE DISPOSAL. Makes conforming changes. Sec. 402.222. New title: SHIPMENT OF LOW-LEVEL RADIOACTIVE WASTE. Makes conforming changes. Sec. 402.223. New title: IMPROPERLY PROCESSED OR PACKAGED LOW-LEVEL RADIOACTIVE WASTE. Makes conforming changes. Sec. 402.225. BELOWGROUND DISPOSAL RESTRICTED. Makes conforming changes. SECTION 30. Amends Section 402.226(b), Health and Safety Code, to make conforming changes. SECTION 31. Amends Section 402.227, Health and Safety Code, to make a conforming change. SECTION 32. Amends Section 402.252(a) and (c), Health and Safety Code, to make conforming changes. SECTION 33. Amends Sections 402.271 and 402.272, Health and Safety Code, as follows: Sec. 402.271. AUTHORITY'S EXPENSES. Deletes the requirement that the Texas LowLevel Radioactive Waste Disposal Authority's expenses be paid from surcharge rebates made by the United States Department of Energy under Pub. L. No. 99-240. Makes conforming changes. Sec. 402.272. WASTE DISPOSAL FEES. Makes conforming changes. SECTION 34. Amends Section 402.2721, Health and Safety Code, by amending Subsections (d)-(h) and adding Subsection (i), as follows: (d) Deletes the requirement that fees established under this section include minimum and maximum annual fees for the 1992-1993 biennium to pay for the estimated costs of administering, implementing, and planning the activities authorized by this chapter and include at least $5 million to reimburse the general revenue fund for appropriations expended and incurred by the authority in selecting, characterizing, and licensing a disposal site. Deletes the requirement that at least $10 million assessed and collected in the 1992-1993 biennium to reimburse the general revenue fund (fund) for expenses incurred prior to September 1, 1991, be deposited to the credit of the fund. Makes conforming changes. (e) Prohibits fees established under this section from being assessed prior to the fiscal year following the fiscal year in which the balance in the low-level radioactive waste fund falls below $4 million; being assessed in an amount that would result in a total amount of fees assessed that exceeds $3 million in any fiscal biennium; or be collected at any time the lowlevel radioactive waste fund balance is $9 million or more. (f) Redesignated from existing Subsection (e). Requires the board of directors of the authority (board) to assess a surcharge of 10 percent of the fee established for a biennium for each biennium, rather than the 1996-1997 biennium and subsequent bienniums. Deletes the requirement that the board of directors assess a surcharge of 10 percent of the fee established for the 1992-1993 biennium, for the 1994-1995 biennium only. (g) Makes a conforming change. (h) Makes a conforming change. (i) Requires the balance of the low-level radioactive waste fund attributable to planning and implementation fees, on termination of the imposition of fees under Subsection (d), to be transferred to a separate account in the fund and credited pro rata to generators who have paid planning and implementation fees. Requires a generator to receive a credit equal to a pro rata share in the account established under this section against waste and disposal fees the generator is required to pay under Section 402.272 (Waste Disposal Fees), Health and Safety Code, if the generator, on the date the imposition of fees is terminated, has paid all planning and implementation fees owned by the generator under this section. This credit will be maintained until the balance of the generator's pro rata share in the account is exhausted. Provides that a generator who, on the date the imposition of the fees is terminated, owes planning and implementation fees under this section is ineligible for the credit. SECTION 35. Amends Sections 402.274 and 402.275, Health and Safety Code, as follows: Sec. 402.274. PROCESSING AND PACKAGING FEES. Makes conforming changes. Sec. 402.275. New title: LOW-LEVEL RADIOACTIVE WASTE FUND. Includes payments made by a party state to a low-level radioactive waste compact entered into under Section 402.219(c) (Limitations on Waste Disposal), Health and Safety Code, among those monies required to be deposited to the credit of the low-level radioactive waste fund. Deletes text authorizing payments to this state under Public Law 99 240 from being used for the purposes stated in the federal law. Makes conforming changes. SECTION 36. Amends Section 402.291(b), Health and Safety Code, to make a conforming change. SECTION 37. Amends Section 401.383, Health and Safety Code, as follows: Sec. 401.383. New Title: CRIMINAL PENALTY FOR CERTAIN ACTS RELATED TO LOW-LEVEL RADIOACTIVE WASTE. Makes a conforming change. SECTION 38. Amends Section 7.184, Water Code, as follows: Sec. 7.184. New Title: VIOLATIONS RELATING TO LOW-LEVEL RADIOACTIVE WASTE. Makes a conforming change. SECTION 39. Repealer: Sections 401.003(20), which defines "radioactive waste;" 401.208 (Limitation on Certain Radioactive Waste Disposal), and 402.127 (Finding by Board of Regents Before Sale or Lease), Health and Safety Code, relating to a low-level waste disposal site interfering with the potential siting of the Super-conducting Super Colliding Particle Accelerator Project. SECTION 40. Makes this Act effective only if a specific appropriation for its implementation is provided in H.B. 1 (General Appropriations Act), Acts of the 76th Legislature, Regular Session, 1999. SECTION 41. Effective Date: September 1, 1999. SECTION 42. Emergency clause.