HBA-AMW H.B. 3420 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3420
By: Chisum
Environmental Regulation
3/29/2001
Introduced



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.  House Bill 3420
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, 402.034, 402.037, 402.038, and 402.039, Health and Safety
Code), in SECTION 8 (Sections 402.060, 402.61, 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 402.217, Health and Safety Code),
and in SECTION 32 (Section 401.104, Health and Safety Code); 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 26 (Section 401.052, Health and Safety Code) of this
bill.  

ANALYSIS

House Bill 3420 amends the Health and Safety Code to establish the
Permanent Management of LowLevel 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 (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,
including criteria regarding specified risks.  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.  The bill requires TNRCC to report
to the governor and the compact commission policy recommendations and
recommendations for legislation regarding permanent management of that
waste at or adjacent to a licensed facility (Sec. 402.014). 

H.B. 3420 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, and the scoring of applications
(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 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). 

H.B. 3420 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, 402.022, and 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, the response to public comments and alternatives on the proposed
recommendation and the recommendation to TNRCC by the executive director of
TNRCC (executive director), and the consideration of the executive
director's recommendation by TNRCC (Secs. 402.025, 402.026, and 402.027).
The bill sets forth provisions regarding a contested case hearing on an
application, mediation of a contested case, and deadlines for final action
on an application (Secs. 402.028 and 402.029).  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.
402.030). 

The bill establishes provisions regarding issuance of a license, conveyance
of a facility, and license  conditions and provides that a license expires
on the 20th anniversary of its issuance (Secs. 402.031, 402.032, and
402.033).  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.
402.034 and 402.035). 

H.B. 3420 provides that a license is not transferable (Sec. 402.036).  The
bill requires TNRCC by rule to adopt reasonable procedures for renewal of
the license and sets forth provisions regarding license renewal (Sec.
402.037).  The bill requires TNRCC by rule to adopt standards and
procedures for amending the license and sets forth provisions regarding
license amendments (Sec. 402.038).   

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. 402.039).  The bill sets forth procedures regarding
a county referendum on the question of whether county residents approve the
siting of a proposed  facility in the county (Sec. 402.040). 

The bill entitles TNRCC to exclusive statewide jurisdiction over facility
site selection, preparation, construction, operation, maintenance,
decommissioning, closing, 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).   

H.B. 3420 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 by burial in an earthen trench as the
waste is received at the facility.  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 (Sec.
402.060). 

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.  The bill also authorizes TNRCC, in conjunction with the compact
commission, by rule to revise the determined capacity to meet changed
conditions or new information and specifies what is to be considered in the
determination (Sec. 402.061). 

The bill requires TNRCC by rule to establish standards and criteria 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 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).   

H.B. 3420 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
and prohibitions against a facility's acceptance of out-of-state or 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). 

H.B. 3420 authorizes TNRCC to lease up to 65,000 acres of property
proximate to a facility site for a rangeland and wildlife management plan.
TNRCC shall require the license holder to purchase or lease an area of land
surrounding the facility sufficient to serve as a buffer for the facility
and provides that the license holder must be in possession of the land to
be used as the buffer zone before the facility may accept waste under the
license (Sec. 402.126).   

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, and processing and packaging fees (Secs. 402.271,
402.272, 402.273, 402.274).   The bill establishes provisions regarding the
permanent management facility decommissioning account and the assured
isolation conversion account (Secs. 402.2744 and 402.2745).  The bill
modifies provisions relating to the low-level radioactive waste disposal
fund, the issuance, authorization, and approval of bonds, the sale of bonds
and proceeds from the sale, and  the use of bonds as investments and as
security for deposits (Secs. 402.275, 402.291, 404.292, 402.293, 402.294,
and 402.296).  

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, 401.112, 401.113, 401.114, 401.115,
401.116, 401.117, 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) 

H.B. 3420 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, and planning and implementation fees.  The bill also repeals
law relating to the authority,  low-level radioactive waste disposal, the
low-level radioactive waste fund, and TNRCC's requirement of a disposal
license (SECTION 62). 

EFFECTIVE DATE

September 1, 2001.