S.B. No. 1504
 
 
 
 
AN ACT
  relating to the disposal or storage of waste at, or adjacent to, the
  Texas Low-Level Radioactive Waste Disposal Compact waste disposal
  facility.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 401.2005, Health and Safety Code, is
  amended by amending Subdivision (1) and adding Subdivisions (1-a),
  (1-b), (6-a), (8), and (9) to read as follows:
               (1)  "Compact" means the Texas Low-Level Radioactive
  Waste Disposal Compact established under Section 403.006.
               (1-a)  "Compact waste" means low-level radioactive
  waste that:
                     (A)  is originally generated onsite in a host
  state or a party state; or
                     (B)  is not generated in a host state or a party
  state but has been approved for importation to this state by the
  compact commission under Section 3.05 of the compact [established
  under Section 403.006].
               (1-b)  "Curie capacity" means the amount of the
  radioactivity of the waste that may be accepted by the compact waste
  disposal facility as determined by the commission in the compact
  waste disposal facility license.
               (6-a)  "Nonparty compact waste" means low-level
  radioactive waste imported from a state other than a party state as
  authorized under Section 3.05(6) of the compact.
               (8)  "Party state compact waste" means low-level
  radioactive waste generated in a party state.
               (9)  "Waste of international origin" means low-level
  radioactive waste that originates outside of the United States or a
  territory of the United States, including waste subsequently stored
  or processed in the United States.
         SECTION 2.  Section 401.207, Health and Safety Code, is
  amended to read as follows:
         Sec. 401.207.  OUT-OF-STATE WASTE; NONPARTY COMPACT WASTE.
  (a)  The compact waste disposal facility license holder may not
  accept low-level radioactive waste generated in another state for
  disposal under a license issued by the commission unless the waste
  is:
               (1)  accepted under a compact to which the state is a
  contracting party;
               (2)  federal facility waste that the license holder is
  licensed to dispose of under Section 401.216; or
               (3)  generated from manufactured sources or devices
  originating in this state.
         (b)  The compact waste disposal facility license holder may
  accept for disposal at the compact waste disposal facility approved
  nonparty compact waste that is classified as Class A, Class B, or
  Class C low-level radioactive waste in accordance with the compact
  waste disposal facility license to the extent the acceptance does
  not diminish the disposal volume or curie capacity available to
  party states.  The license holder may not accept any nonparty
  compact waste for disposal at the facility until the license has
  been modified by the commission to specifically authorize the
  disposal of nonparty compact waste.
         (c)  The compact waste disposal facility license holder may
  not accept waste of international origin for disposal at the
  facility.
         (d)  The compact waste disposal facility license holder may
  not accept for disposal at the compact waste disposal facility
  nonparty compact waste that does not meet the waste characteristics
  and waste forms for disposal applicable to compact waste as set
  forth by the commission in the compact waste disposal facility
  license.  Before the license holder may accept nonparty compact
  waste for disposal, the commission must certify through a written
  evaluation that the waste is authorized for disposal under the
  license.  If the disposal is not authorized under the license, the
  commission must inform the license holder of the license amendments
  necessary to authorize the disposal.
         (e)  The compact waste disposal facility license holder may
  not 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 120,000 curies of nonparty compact waste
  annually, except that in the first year the license holder may
  accept 220,000 curies.  The legislature by general law may
  establish revised limits after considering the results of the study
  under Section 401.208.
         (e-1)  The commission's executive director, on completion of
  the study under Section 401.208, may prohibit the license holder
  from accepting any additional nonparty compact waste if the
  commission determines from the study that the capacity of the
  facility will be limited, regardless of whether the limit under
  Subsection (f) has been reached.
         (f)  Of the total initial licensed capacity of the compact
  waste disposal facility:
               (1)  not more than 30 percent of the volume and curie
  capacity shall be for nonparty compact waste; and
               (2)  of the remaining capacity, not less than 80
  percent of the volume and curie capacity shall be for compact waste
  generated in the host state and 20 percent of the volume and curie
  capacity shall be for compact waste generated in Vermont.
         (g)  The commission shall assess a surcharge for the disposal
  of nonparty compact waste at the compact waste disposal facility.  
  The surcharge is 20 percent of the total contracted rate under
  Section 401.2456 and must be assessed in addition to the total
  contracted rate under that section.
         (h)  A surcharge collected under Subsection (g) shall be
  deposited to the credit of the low-level radioactive waste fund.
         (h-1)  The commission shall conduct a study of the surcharge
  described by Subsection (g) and, not later than December 1, 2016,
  shall issue the results of the review to the legislature. The
  commission shall review the operations and expenses of the compact
  waste disposal facility license holder and shall require the
  compact waste disposal facility license holder to provide
  justification of disposal expenses and historical costs associated
  with the facility through appropriate evidentiary and empirical
  records, studies, and other applicable methodologies. The
  commission shall consider the impact of the surcharge on the
  overall revenue generated for the state and may request the
  assistance of the comptroller in conducting the analysis of the
  impact of the surcharge.
         (i)  The Texas Low-Level Radioactive Waste Disposal Compact
  Commission by rule shall adopt procedures and forms for the
  approval of the importation of nonparty compact waste.
         (j)  An application for the approval of the importation of
  nonparty compact waste may be submitted to the Texas Low-Level
  Radioactive Waste Disposal Compact Commission only by the generator
  of the waste.
         (k)  The commission, in coordination with the Texas
  Low-Level Radioactive Waste Disposal Compact Commission, shall
  adopt rules establishing criteria and thresholds by which
  incidental commingling of party state compact waste and waste from
  other sources at a commercial processing facility is considered and
  reasonably limited. The criteria and thresholds for commingling
  under this subsection established by commission rule are binding on
  any criteria and thresholds that may be established by the Texas
  Low-Level Radioactive Waste Disposal Compact Commission.
         SECTION 3.  Subchapter F, Chapter 401, Health and Safety
  Code, is amended by adding Sections 401.208 and 401.2085 to read as
  follows:
         Sec. 401.208.  STUDY OF CAPACITY.  (a)  The commission shall
  conduct a study on the available volume and curie capacity of the
  compact waste disposal facility for the disposal of party state
  compact waste and nonparty compact waste.
         (b)  The commission shall consider and make recommendations
  regarding:
               (1)  the future volume and curie capacity needs of
  party state and nonparty state generators and any additional
  reserved capacity necessary to meet those needs;
               (2)  the calculation of radioactive decay related to
  the compact waste disposal facility and radiation dose assessments
  based on the curie capacity;
               (3)  the necessity of containerization of the waste;
               (4)  the effects of the projected volume and
  radioactivity of the waste on the health and safety of the public;
  and
               (5)  the costs and benefits of volume reduction and
  stabilized waste forms.
         (c)  Not later than December 1, 2012, the commission shall
  submit a final report of the results of the study to the standing
  committees of the senate and the house of representatives with
  jurisdiction over the disposal of low-level radioactive waste.
         (d)  The Texas Low-Level Radioactive Waste Disposal Compact
  Commission shall use the study to anticipate the future capacity
  needs of the compact waste disposal facility.
         (e)  The commission may conduct a study described by
  Subsection (a) at any time after December 1, 2012, if the commission
  determines that a study is necessary.
         Sec. 401.2085.  REVIEW OF FINANCIAL ASSURANCE. (a)  The
  commission shall conduct a review of the adequacy of the financial
  assurance mechanisms of the compact waste disposal facility license
  holder that were approved by the commission before January 1, 2011,
  against projected post-closure costs, including a review of the
  adequacy of funds for unplanned events. The review shall consider:
               (1)  the segregation of financial assurance funds from
  other funds;
               (2)  the degree of risk that the financial instruments
  are subject to financial reversal;
               (3)  potential post-closure risks associated with the
  compact waste disposal facility; and
               (4)  the adequacy of the financial instruments to cover
  the state's liabilities.
         (b)  Not later than December 1, 2012, the commission shall
  submit a final report of the results of the review to the standing
  committees of the senate and the house of representatives with
  jurisdiction over the disposal of low-level radioactive waste.
         SECTION 4.  The heading to Section 401.245, Health and
  Safety Code, is amended to read as follows:
         Sec. 401.245.  PARTY STATE COMPACT WASTE DISPOSAL FEES.
         SECTION 5.  Section 401.245, Health and Safety Code, is
  amended by amending Subsections (a) and (b) and adding Subsections
  (g) and (h) to read as follows:
         (a)  A compact waste disposal facility license holder who
  receives party state compact [low-level radioactive] waste for
  disposal pursuant to the compact [Texas Low-Level Radioactive Waste
  Disposal Compact established under Chapter 403] shall have
  collected a waste disposal fee to be paid by each person who
  delivers party state compact [low-level radioactive] waste to the
  compact waste disposal facility for disposal.
         (b)  The commission by rule shall adopt and periodically
  revise party state compact waste disposal fees under this section
  according to a schedule that is based on the projected annual volume
  of low-level radioactive waste received, the relative hazard
  presented by each type of low-level radioactive waste that is
  generated by the users of radioactive materials, and the costs
  identified in Section 401.246.
         (g)  For the purposes of a contested case involving the
  adoption of fees under this section, only a party state generator of
  low-level radioactive waste may be considered a person affected.
         (h)  The administrative law judge assigned to the contested
  case involving the adoption of fees under this section shall issue a
  proposal for decision on fees proposed by the commission not later
  than the first anniversary of the date the State Office of
  Administrative Hearings assumes jurisdiction of the case.
         SECTION 6.  Subchapter F, Chapter 401, Health and Safety
  Code, is amended by adding Sections 401.2455 and 401.2456 to read as
  follows:
         Sec. 401.2455.  INTERIM PARTY STATE COMPACT WASTE DISPOSAL
  FEES. (a)  The commission's executive director may establish
  interim party state compact waste disposal fees effective only for
  the period beginning on the date the compact waste disposal
  facility license holder is approved to accept waste at the disposal
  facility and ending on the effective date of the rules establishing
  the fees under Section 401.245.  A generator is not entitled to a
  refund, and may not be charged a surcharge, for the disposal of
  waste under interim fees once the final fees have been adopted.
         (b)  An extension of the period during which interim rates
  apply may not be granted.  If the State Office of Administrative
  Hearings has not issued a proposal for decision before the
  expiration of the period under Section 401.245(h), all disposal at
  the compact waste disposal facility must cease until the rates are
  adopted.
         Sec. 401.2456.  CONTRACTS FOR NONPARTY COMPACT WASTE
  DISPOSAL. (a)  At any time after the commission has granted
  approval to begin operating the compact waste disposal facility,
  the compact waste disposal facility license holder may contract
  rates with nonparty compact waste generators for the disposal of
  nonparty compact waste at the facility in accordance with the
  compact waste disposal facility license.
         (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.
         (c)  Rates negotiated under this section must be set both by
  a price per curie and a price per cubic foot.  Fees resulting from
  the negotiated rates must be greater than, as applicable:
               (1)  the compact waste disposal fees under Section
  401.245 as set by the commission that are in effect at the time the
  rates are negotiated; or
               (2)  the interim compact waste disposal fees under
  Section 401.2455 as set by the commission's executive director that
  are in effect at the time the rates are negotiated.
         (d)  A contract under this section must:
               (1)  be negotiated in good faith;
               (2)  conform to applicable antitrust statutes and
  regulations; and
               (3)  be nondiscriminatory.
         (e)  Rates set under this section must generate fees
  sufficient to meet the criteria for party state compact waste under
  Sections 401.246(a) and (c).
         SECTION 7.  Section 401.246, Health and Safety Code, is
  amended by amending Subsection (a) and adding Subsection (c) to
  read as follows:
         (a)  Party state compact [Compact] waste disposal fees
  adopted by the commission under Section 401.245 must be sufficient
  to:
               (1)  allow the compact waste facility license holder to
  recover costs of operating and maintaining the compact waste
  disposal facility and a reasonable profit on the operation of that
  facility;
               (2)  provide an amount necessary to meet future costs
  of decommissioning, closing, and postclosure maintenance and
  surveillance of the compact waste disposal facility and the compact
  waste disposal facility portion of the disposal facility site;
               (3)  provide an amount to fund local public projects
  under Section 401.244;
               (4)  provide a reasonable rate of return on capital
  investment in the facilities used for management or disposal of
  compact waste at the compact waste disposal facility; and
               (5)  provide an amount necessary to pay compact waste
  disposal facility licensing fees, to pay compact waste disposal
  facility fees set by rule or statute, and to provide security for
  the compact waste disposal facility as required by the commission
  under law and commission rules.
         (c)  In determining compact waste disposal fees, the
  commission shall only consider capital investment in property by
  the compact waste disposal facility license holder that is used and
  useful to the compact waste disposal facility as authorized under
  this chapter.  The commission may not consider the capital
  investment costs or related costs incurred before September 1,
  2003, in determining disposal fees.
         SECTION 8.  Subsection (b), Section 401.248, Health and
  Safety Code, is amended to read as follows:
         (b)  The state may enter into compacts with another state or
  several states for the disposal in this state of low-level
  radioactive waste only if the compact:
               (1)  limits the total volume of all low-level
  radioactive waste to be disposed of in this state from the other
  party state or party states to 20 percent of the annual average of
  low-level radioactive waste projected to be disposed of [that the
  governor projects will be produced] in this state from [the years]
  1995 through 2045;
               (2)  gives this state full administrative control over
  management and operation of the compact waste disposal facility;
               (3)  requires the other state or states to join this
  state in any legal action necessary to prevent states that are not
  members of the compact from disposing of low-level radioactive
  waste at the compact waste disposal facility;
               (4)  allows this state to charge a fee for the disposal
  of low-level radioactive waste at the compact waste disposal
  facility;
               (5)  requires the other state or states to join in any
  legal action involving liability from the compact waste disposal
  facility;
               (6)  requires the other state or states to share the
  full cost of constructing the compact waste disposal facility;
               (7)  allows this state to regulate, in accordance with
  federal law, the means and routes of transportation of the
  low-level radioactive waste in this state;
               (8)  requires the other state or states to pay for
  community assistance projects selected by the host county in an
  amount not less than $1 million or 10 percent of the amount
  contributed by the other state or states;
               (9)  is agreed to by the Texas Legislature, the
  legislature of the other state or states, and the United States
  Congress; and
               (10)  complies with all applicable federal law.
         SECTION 9.  Section 401.250, Health and Safety Code, is
  amended to read as follows:
         Sec. 401.250.  PAYMENTS BY PARTY STATES.  
  (a)  Notwithstanding any other provision of law, Act of the
  legislature or the executive branch, or any other agreement, the
  initial payment of $12.5 million due from each nonhost party state
  under Section 5.01 of the compact established under Section 403.006
  is due not later than November 1, 2003.  In accordance with Section
  7.01 of the compact, the host state establishes the following terms
  and conditions for a state to become a party state to the compact
  after January 1, 2011:
               (1)  the state must make an initial payment of half of
  the total amount due to the host state under Subsection (b) on the
  later of September 1, 2011, or the date the state becomes a party
  state; and
               (2)  the state must pay the remainder of the amount owed
  under Subsection (b) on the later of the date of the opening of the
  compact waste disposal facility or the date the facility first
  accepts waste from the state.
         (b)  Each state that becomes a party state:
               (1)  after January 1, 2011, and before September 1,
  2018, shall contribute a total of $30 million to the host state,
  including the initial payment under Subsection (a)(1); and
               (2)  on or after September 1, 2018, and before
  September 1, 2023, shall contribute $50 million to the host state,
  including the initial payment under Subsection (a)(1).
         (c)  The requirements of this section apply to a state that
  becomes a party state after January 1, 2011, regardless of whether
  the state had previously been a party to the compact.  A state that
  has withdrawn as a party state shall pay the previously committed
  fee of $25 million in addition to the fees set in Subsection (b).
         (d)  A payment made under this section may not be refunded,
  even if a party state withdraws from the compact.
         (e)  For the purposes of calculating the amount of a payment
  required under Section 4.05(5) of the compact, the amount of a
  payment under this section is considered to be a payment under
  Article V of the compact.
         (f)  This section prevails over any other law or agreement in
  conflict or inconsistent with this section.
         SECTION 10.  Section 401.271, Health and Safety Code, is
  amended by adding Subsection (c) to read as follows:
         (c)  A holder of a license or permit issued by the commission
  under this chapter or Chapter 361 that authorizes the storage,
  other than disposal, of a radioactive waste or elemental mercury
  from other persons shall remit each quarter to the commission for
  deposit into the general revenue fund an amount equal to 20 percent
  of the license or permit holder's gross receipts received from the
  storage of the substance for any period exceeding one year.  This
  subsection applies only to the storage of the substance for any
  period exceeding one year. This subsection applies only to the
  storage of radioactive waste or elemental mercury at or adjacent to
  the compact waste disposal facility.
         SECTION 11.  Subsection (d), Section 401.248, Health and
  Safety Code, is repealed.
         SECTION 12.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2011.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1504 passed the Senate on
  April 13, 2011, by the following vote: Yeas 31, Nays 0; and that
  the Senate concurred in House amendments on May 25, 2011, by the
  following vote: Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1504 passed the House, with
  amendments, on May 18, 2011, by the following vote: Yeas 91,
  Nays 38, one present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor