By: Seliger  S.B. No. 791
         (In the Senate - Filed February 25, 2013; March 5, 2013,
  read first time and referred to Committee on Natural Resources;
  April 8, 2013, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 7, Nays 2; April 8, 2013,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 791 By:  Seliger
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the regulation of low-level radioactive waste disposal
  facilities and radioactive substances.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subdivision (15), Section 401.003, Health and
  Safety Code, is amended to read as follows:
               (15)  "Person affected" means a person who demonstrates
  that the person has suffered or will suffer actual injury or
  economic damage and, if the person is not a local government:
                     (A)  is a resident of a Texas county, or a Texas
  county adjacent to that county, in which nuclear or radioactive
  material is or will be located; or
                     (B)  is doing business or has a legal interest in
  land in the county in which nuclear or radioactive material is
  disposed or in an adjacent Texas county.
         SECTION 2.  Subsection (d), Section 401.052, Health and
  Safety Code, as amended by Chapter 580 (H.B. 1678), Acts of the 78th
  Legislature, Regular Session, 2003, is amended to read as follows:
         (d)  Fees assessed under this section:
               (1)  may not exceed $10 per cubic foot of shipped
  low-level radioactive waste;
               (2)  shall be collected by the department and deposited
  to the credit of the perpetual care account;
               (3)  shall be used [exclusively] by the department for
  emergency planning for and response to transportation accidents
  involving low-level radioactive waste, including first responder
  training in counties through which transportation routes are
  designated in accordance with Subsection (a); and
               (4)  shall not be collected on waste being disposed of
  at a federal facility waste disposal facility [shall be suspended
  when the amount of fees collected reaches $500,000, except that if
  the balance of the fees collected is reduced to $350,000 or less,
  the assessments shall be reinstituted to bring the balance of fees
  collected to $500,000].
         SECTION 3.  Subsection (a), Section 401.109, Health and
  Safety Code, is amended to read as follows:
         (a)  The department or commission may require a holder of a
  license issued by the agency to provide security acceptable to the
  agency to assure performance of the license holder's obligations
  under this chapter. The department [or commission] shall deposit
  security provided to the department under this section to the
  credit of the perpetual care account. The department [or
  commission] by rule shall provide that any evidence of security
  must be made payable to the credit of the perpetual care account.
  The commission shall deposit security provided to the commission
  under this section to the credit of the environmental radiation and
  perpetual care account. The commission shall provide that security
  must be made payable to the credit of the environmental radiation
  and perpetual care account.
         SECTION 4.  Section 401.152, Health and Safety Code, is
  amended to read as follows:
         Sec. 401.152.  CORRECTIVE ACTION AND MEASURES. (a)  If the
  department or commission, under procedures provided by Section
  401.056, finds that low-level radioactive waste under its
  jurisdiction threatens the public health and safety and the
  environment and that the license holder managing the low-level
  radioactive waste is unable to remove the threat, the agency by
  order may require any action, including a corrective measure, that
  is necessary to remove the threat.
         (b)  The department [agency] shall use the security provided
  by the license holder to pay the costs of actions that are taken or
  that are to be taken under this section. The department [agency]
  shall send to the comptroller a copy of its order together with
  necessary written requests authorizing the comptroller to:
               (1)  enforce security supplied by the license holder;
               (2)  convert an amount of security into cash, as
  necessary; and
               (3)  disburse from the security in the radiation and
  perpetual care account the amount necessary to pay the costs.
         (c)  The commission shall use the security provided by the
  license holder to pay the costs of actions that are taken or that
  are to be taken under this section. The commission shall send to
  the comptroller a copy of its order together with necessary written
  requests authorizing the comptroller to:
               (1)  enforce security supplied by the license holder;
               (2)  convert an amount of security into cash, as
  necessary; and
               (3)  disburse from the security in the environmental
  radiation and perpetual care account the amount necessary to pay
  the costs.
         SECTION 5.  Section 401.2005, Health and Safety Code, is
  amended by adding Subdivision (6-b) to read as follows:
         (6-b)  "Operational year" means the period from April 27 of
  one year through April 26 of the following year unless otherwise
  defined by the Texas Low-Level Radioactive Waste Disposal Compact
  Commission by rule.
         SECTION 6.  Section 401.202, Health and Safety Code, is
  amended by adding Subsection (d) to read as follows:
         (d)  If the commission issues a compact waste disposal
  facility license that is later reversed or remanded to the
  commission by order of a court on procedural error:
               (1)  the commission's executive director may enter into
  a compliance agreement with the license holder authorizing
  continued operation of the disposal facility until the court
  determines in a final order that the procedural errors that are the
  basis for the remand have been resolved by the commission; and
               (2)  all terms and conditions of the license shall
  remain in effect until the court determines in a final order that
  the procedural errors that are the basis for the remand have been
  resolved by the commission.
         SECTION 7.  Section 401.207, Health and Safety Code, is
  amended by adding Subsection (d-1) and amending Subsections (e) and
  (h) to read as follows:
         (d-1)  Beginning in operational year three, the compact
  waste disposal facility license holder must accept for disposal at
  the compact waste disposal facility nonparty compact waste that, if
  eligible for volume reduction, has been volume-reduced by at least
  a factor of three. The commission by rule shall establish
  requirements for ensuring that low-level radioactive waste has been
  subjected to volume reduction in a manner consistent with this
  subchapter.  Prior to establishing requirements for volume
  reduction of any low-level radioactive waste, the commission must
  first determine that there are competitive volume reduction
  technologies and companies in operation in the United States
  marketplace.
         (e)  The compact waste disposal facility license holder may
  not enter into contracts for the disposal of nonparty low-level
  radioactive waste that has been designated as Class A under 10
  C.F.R. Section 61.55 and commission rule [accept more than 50,000
  total cubic feet of nonparty compact waste annually]. The compact
  waste disposal facility license holder may not accept more than
  300,000 [120,000 curies of nonparty compact waste annually, except
  that in the first year the license holder may accept 220,000] curies
  of nonparty compact waste annually until April 26, 2019. The
  legislature by general law may establish revised limits after
  considering the results of the study under Section 401.208.
         (h)  A surcharge collected under Subsection (g) shall be
  deposited to the credit of the environmental radiation and
  perpetual care account [low-level radioactive waste fund].
         SECTION 8.  Subchapter F, Chapter 401, Health and Safety
  Code, is amended by adding Section 401.2077 to read as follows:
         Sec. 401.2077.  COMPACT WASTE. (a)  To the greatest extent
  practicable, if a party state compact waste generator desires to
  export low-level radioactive waste described in this subsection, or
  a subset of such waste, the compact waste disposal facility license
  holder shall work with party state compact waste generators to
  support the export of the low-level radioactive waste that has been
  designated as Class A under 10 C.F.R. Section 61.55 and commission
  rule. The Texas Low-Level Radioactive Waste Disposal Compact
  Commission shall support this effort by granting export petitions
  for Class A waste as it finds appropriate.
         SECTION 9.  Section 401.218, Health and Safety Code, is
  amended by adding Subsection (d) to read as follows:
         (d)  Modifications to waste forms, types, or streams allowed
  in the license by the executive director of the commission shall be
  based on a site-specific performance assessment and performance
  objectives as defined by commission rule. The executive director
  of the commission may adjust, correct, or otherwise modify the
  license on completion of the annual performance assessment. No
  amendment is required for licensing actions initiated by the
  executive director of the commission in response to the
  site-specific performance assessment or other studies.
         SECTION 10.  Section 401.2456, Health and Safety Code, is
  amended by amending Subsection (b) and adding Subsections (f) and
  (g) to read as follows:
         (b)  Rates and contract terms negotiated under this section
  are subject to review and approval by the commission's executive
  director to ensure they meet all of the requirements of this section
  and the rules of the commission.
         (f)  The commission shall adopt rules governing the
  executive director's review and approval of contract terms under
  this section.
         (g)  A person affected by an action under this section may
  seek judicial review under Subchapter I, Chapter 5, Water Code.
         SECTION 11.  Subsection (d), Section 401.301, Health and
  Safety Code, is amended to read as follows:
         (d)  The commission and department shall [may] require that
  each person who holds a specific license issued by the agency pay to
  the agency an additional five percent of the appropriate fee set
  under Subsection (b).  Fees collected under this subsection shall
  be deposited to the respective credit of the perpetual care
  accounts [account]. The fees are not refundable.
         SECTION 12.  Section 401.305, Health and Safety Code, is
  amended to read as follows:
         Sec. 401.305.  RADIATION AND PERPETUAL CARE ACCOUNT.
  (a)  The radiation and perpetual care account is an account in the
  general revenue fund.
         (b)  The department [and commission each] shall deposit to
  the credit of the perpetual care account money and security it
  received [they receive] under this chapter, including an
  administrative penalty collected by the department under Sections
  401.384-401.390 but excluding fees collected under Sections
  401.301(a)-(c) and 401.302. Interest earned on money in the
  perpetual care account shall be credited to the perpetual care
  account.
         (c)  Money and security in the perpetual care account may be
  administered by the department [or commission] only for storage,
  maintenance, and distribution of mammography medical records or the
  decontamination, decommissioning, stabilization, reclamation,
  maintenance, surveillance, control, storage, and disposal of
  radioactive substances for the protection of the public health and
  safety and the environment under this chapter and for refunds under
  Section 401.303.
         (d)  Money and security in the perpetual care account may not
  be used for normal operating expenses of the department [or
  commission].
         (e)  The department [or commission] may use money in the
  perpetual care account to pay for measures:
               (1)  to prevent or mitigate the adverse effects of
  abandonment of radioactive substances, default on a lawful
  obligation, insolvency, or other inability by the holder of a
  license issued by the department [or commission] to meet the
  requirements of this chapter or of department [or commission]
  rules;
               (2)  to assure the protection of the public health and
  safety and the environment from the adverse effects of ionizing
  radiation; and
               (3)  to protect the health and safety of mammography
  patients by assuring mammography medical records are made available
  to affected patients.
         (f)  The department [or commission] may provide, by the terms
  of a contract or lease entered into between the department [or
  commission] and any person, by the terms of a mammography
  certification issued by the department [or commission] to any
  person, or by the terms of a license issued to any person, for the
  storage, maintenance, and distribution of mammography medical
  records. The department [or commission] may provide, by the terms
  of a contract or lease entered into between the department [or
  commission] and any person or by the terms of a license issued by
  the department [or commission] to any person, for the
  decontamination, closure, decommissioning, reclamation,
  surveillance, or other care of a site or facility subject to
  department [or commission] jurisdiction under this chapter as
  needed to carry out the purpose of this chapter.
         (g)  The existence of the perpetual care account does not
  make the department [or commission] liable for the costs of
  storage, maintenance, and distribution of mammography medical
  records arising from a mammography certification holder's failure
  to store, maintain, and make available mammography medical records
  or for the costs of decontamination, transfer, transportation,
  reclamation, surveillance, or disposal of radioactive substances
  arising from a license holder's abandonment of radioactive
  substances, default on a lawful obligation, insolvency, or
  inability to meet the requirements of this chapter or of department
  [or commission] rules.
         SECTION 13.  Subchapter H, Chapter 401, Health and Safety
  Code, is amended by adding Section 401.306 to read as follows:
         Sec. 401.306.  ENVIRONMENTAL RADIATION AND PERPETUAL CARE
  ACCOUNT. (a)  The environmental radiation and perpetual care
  account is an account in the general revenue fund.
         (b)  The commission shall deposit to the credit of the
  environmental radiation and perpetual care account money and
  security received under this chapter, including fees collected
  under Section 401.301(d). Interest earned on money in the
  environmental radiation and perpetual care account shall be
  credited to the environmental radiation and perpetual care account.
         (c)  Money and security in the environmental radiation and
  perpetual care account may be administered by the commission only
  for the decontamination, decommissioning, stabilization,
  reclamation, maintenance, surveillance, control, storage, and
  disposal of radioactive substances for the protection of the public
  health and safety and the environment under this chapter and for
  refunds under Section 401.303.
         (d)  Money and security in the environmental radiation and
  perpetual care account may not be used for the normal operating
  expenses of the commission.
         (e)  The commission may use money in the environmental
  radiation and perpetual care account to pay for measures:
               (1)  to prevent or mitigate the adverse effects of
  abandonment of radioactive substances, default on a lawful
  obligation, insolvency, or other inability by the holder of a
  license issued by the commission to meet the requirements of this
  chapter or commission rules; and
               (2)  to ensure the protection of the public health and
  safety and the environment.
         (f)  The commission may provide, by the terms of a contract
  or lease entered into between the commission and any person or by
  the terms of a license issued by the commission to any person, for
  the decontamination, closure, decommissioning, reclamation,
  surveillance, or other care of a site or facility subject to
  commission jurisdiction under this chapter as needed to carry out
  the purposes of this chapter.
         (g)  The existence of the environmental radiation and
  perpetual care account does not make the commission liable for the
  costs of decontamination, transfer, transportation, reclamation,
  surveillance, or disposal of radioactive substances arising from a
  license holder's abandonment of radioactive substances, default on
  a lawful obligation, insolvency, or inability to meet the
  requirements of this chapter or commission rules.
         SECTION 14.  Subchapter H, Chapter 401, Health and Safety
  Code, is amended by adding Section 401.307 to read as follows:
         Sec. 401.307.  RADIATION AND PERPETUAL CARE ACCOUNT AND
  ENVIRONMENTAL RADIATION AND PERPETUAL CARE ACCOUNT CAP. (a) Fees
  imposed under Sections 401.301(d) and 401.052(d), and the surcharge
  collected under Section 401.207(h), and which are deposited to the
  credit of either the radiation and perpetual care account or the
  environmental radiation and perpetual care account shall be
  suspended when the sum of the two accounts reaches $150 million.  If
  the balance of fees collected subsequently is reduced to $75
  million or less, the commission and department shall reinstitute
  assessment of the fees until the balance reaches $150 million.
         (b)  The surcharge collected under Section 401.207(h) shall
  continue to be collected regardless of whether the cap established
  in this subchapter is reached.
         SECTION 15.  The following provisions of the Health and
  Safety Code are repealed:
               (1)  Subsection (d), Section 401.052, as amended by
  Chapter 1067 (H.B. 1567), Acts of the 78th Legislature, Regular
  Session, 2003;
               (2)  Subsection (h), Section 401.245;
               (3)  Subsection (b), Section 401.2455;
               (4)  Subsection (e), Section 401.301; and
               (5)  Section 403.0052.
         SECTION 16.  As soon as practicable after the effective date
  of this Act, the Texas Commission on Environmental Quality shall
  adopt rules under Subsection (d-1), Section 401.207, Health and
  Safety Code, as added by this Act.
         SECTION 17.  As soon as practicable after the effective date
  of this Act, the Texas Commission on Environmental Quality shall
  adopt rules under Subsection (d), Section 401.218, Health and
  Safety Code, as added by this Act.
         SECTION 18.  As soon as practicable after the effective date
  of this Act, and no later than one year after the effective date of
  this Act, the Texas Commission on Environmental Quality shall adopt
  rules under Subsection (b), Section 401.2456, Health and Safety
  Code, as added by this Act.
         SECTION 19.  As soon as practicable after the effective date
  of this Act but no later than January 1, 2014, the Texas Commission
  on Environmental Quality and the Department of State Health
  Services shall update the portion of the memorandum of
  understanding between the two agencies under Section 401.069,
  Health and Safety Code, that governs each agency's role regarding
  the regulation and oversight of radioactive materials and sources
  of radiation.
         SECTION 20.  Any contract for compact waste or nonparty
  compact waste that has been signed before the effective date of this
  Act shall not be affected by the changes in law made by this Act.
         SECTION 21.  This Act takes effect September 1, 2013.
 
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