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).