In Texas: if HB 7 moves forward, it needs to be amended, in order to be applicable to the "high-level" radioactive waste we're concerned about...

Analyses provided by Karen Hadden of the SEED (Sustainable Energy & Economic Development) Coalition in Austin, Texas. First there is a short summary/overview of the current legislative status, followed by a longer legal-technical analysis of the complex details.

Short Summary/Overview of Legislative Status of House Bill (HB) 7:

HB 7 by Rep. Landgraf would purportedly put the brakes on the proposed high-level radioactive waste facility in Texas.

However, it has major loopholes, the most glaring of which is that it would fail to apply to the proposed Consolidated Interim Storage facility due to flaws in definitions. 

The license being considered by the NRC includes two major highly radioactive waste streams; spent nuclear fuel and reactor-related Greater-Than-Class C waste.

But reactor-related Greater-Than-Class C was left out of HB 7 entirely, most likely intentionally. Other technical problems in the bill would allow Interim Storage Partners, a partnership of Waste Control Specialists and Orano, easy legal challenges. The sentiment of the bill is good, but as legislation, it would be completely ineffective, even in halting state permits for the facility. Legislators who voted no did so in hopes of getting the bill amended to have teeth. 

The bill passed 94-32 on the House floor on August 30th. The vote did reflect the overall sentiment of Texas Legislators, that when it comes to high-level radioactive waste, We Don't Want It!  A press conference on August 25 made that message clear. A press release and related documents are online at www.NoNuclearWaste.org.

HB 7 has been sent to the Senate, and there will be a hearing tomorrow morning. The second special session ends, September 6th. 

An additional Landgraf bill, HB 200, would lead to zones that could not be used for Consolidated Interim Storage, but also fails to do the job. What is needed is a real and effective ban and a governor who stands by his previous strong words. We call on Governor Abbott to file legal action. 

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Karen Hadden, SEED Coalition, 512-797-8481 Press release and related documents online - www.NoNuclearWaste.org

Cyrus Reed, Lone Star Chapter of the Sierra Club, 512-740-4086

Lon Burnam, Public Citizen's Texas, 817-721-5846

HB 7 -Amendment Needed:

Protect Texans Against Radioactive Waste Risks

HB 7 must be amended in order to apply to  the deadly wastes sought by ISP in their “high-level radioactive waste” license application before the Nuclear Regulatory Commission

The Nuclear Regulatory Commission (NRC) may soon issue a license to store up to 40,000 metric tons of dangerous nuclear waste in Texas. Texans are clearly opposed to importing and storing this nuclear reactor waste around the country. An effective ban on this dangerous radioactive waste is needed.

We want Texas protected, and it's important to get this right. 

• HB 7 is supposed to put the brakes on “high-level radioactive waste” storage in Texas by preventing TCEQ from issuing related licenses. Without amendments, the bill is basically meaningless.
• “Reactor-related Greater-Than-Class C radioactive waste" (rr-GTCC), must be addressed, along with spent nuclear fuel. These two waste streams are commonly referred to as "high-level" radioactive waste, but high-level radioactive waste has a different technical definition, creating a loophole.

• ·      An amendment is needed if HB 7 is to be applicable to the waste that could will be stored in Andrews County 

• Two amendments offered by Rep. Craddick were good ways to do this.
• HB 7 passed 94-32 in the House on August 30th. 100 votes would allow the bill to be enacted immediately. 
• House members who voted NO would likely support HB 7 if amendments made it applicable to spent nuclear fuel and rr-GTCC.

Opposition to ISP’s federal license for Consolidated Interim Storage:

Andrews County, where this dangerous waste could go, recently passed a strong resolution that called for the license application to be withdrawn. Bringing in deadly nuclear waste would risk our health, safety, the environment and our economy.  Opposition to high-level radioactive waste has come from every level of government and from Texans statewide. A bipartisan group of Texas Congressional Representatives recently expressed their opposition. Governor Abbott has made several strong, clear statements. Many Texas Legislators have written to the NRC.  Five other major counties, three cities and the Midland Chamber of Commerce have passed resolutions, representing the voices of 5.4 million Texans. School districts and a Catholic Bishop have spoken out. Environmentalists and oil and gas companies agree: we don't want high-level radioactive waste.

Without the right definitions, HB 7 is essentially meaningless.

When people say "high-level radioactive waste" they typically mean spent nuclear fuel and rr-GTCC.

But legally,  "high-level radioactive waste" (HLW)  is defined as waste from the reprocessing of spent nuclear fuel, which can be in a liquid form.  This is NOT what would come to Texas under the license before the Nuclear Regulatory Commission. 

The two waste streams in the so-called "high-level radioactive waste" federal license application are: 

1) spent nuclear fuel - the irradiated fuel rods that are very hot. Exposure to unshielded spent nuclear fuel is lethal. 

2) reactor-related Greater-Than-Class C waste (rr-GTCC) - the control rods and other metal from inside a reactor. The control rods may have been in a reactor for 40 years and are also extremely hot. They can be hotter than spent nuclear fuel. 

Interim Storage Partners (ISP) includes Waste Control Specialists (WCS) and their partner, Orano. Their license application with the Nuclear Regulatory Commission – Rev.4 says:

“The function of the CISF will be to store spent nuclear fuel and reactor-related Greater Than Class C (GTCC) Low-Level Radioactive Waste (LLRW) (both are collectively referenced henceforth as spent nuclear fuel or SNF) that has been used to generate electricity from commercial nuclear power reactors.”

HB 7 reads: (12-b) "High-level radioactive waste" has the meaning assigned by 42 U.S.C. Section 10101(12) and includes spent nuclear fuel as defined by 42 U.S.C. Section 10101(23).

The Problem? Combining these terms, saying that one includes the other, re-defines federal definitions, As a federal Compact State, Texas cannot do this. We are required to use definitions that match the federal definitions, which are used in regulations. Reactor-related Greater Than Class C waste should be defined as well.

Attempting to redefine an existing federal definition of HLW that also affects the existing definition of SNF when both are clearly established in federal law (Nuclear Waste Policy Act, 42 USC 10101) places the Texas Agreement State program at odds with federal requirements.

42 U.S.C Section 10101

(12)The term “high-level radioactive waste” means—

(A)the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and

(B)other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation.

(23)The term “spent nuclear fuel” means fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.

The State of Texas cannot redefine legal terms by saying that high-level radioactive waste includes spent nuclear fuel. We are required to use definitions that match federal regulations:  

As a party to an NRC Agreement State Agreement, Texas is obligated to maintain compatibility with federal terminology and definitions in our statutes and regulations. Therefore, attempting to redefine an existing federal definition of HLW that also affects the existing definition of SNF when both are clearly established in federal law (Nuclear Waste Policy Act, 42 USC 10101) places the Texas Agreement State program at odds with federal requirements. 

Further and most importantly, the definitions of SNF, RR-GTCC, and HLW have legal implications that are stipulated in licenses, shipping manifests, design plans, etc. Any legislation designed to affect operations that involve these materials must scrupulously adhere to the established definitions. Otherwise, a party seeking judicial relief from state requirements placed on operations involving HLW can merely state that HLW is not, by definition, SNF or RR-GTCC. Therefore, a statute stipulating requirements on an operation involving HLW does not apply to SNF or RR-GTCC, despite the TX Legislature’s attempt to redefine the materials in question. 

This definition should be added to the bill, along with further clarifying amendments:

"Reactor-related greater than Class C waste" means greater than Class C low-level radioactive waste originating from a civilian nuclear power reactor that exceeds the concentration limits of radionuclides established for Class C waste in 10 C.F.R. Section 61.55. A reference in this subdivision to the "C.F.R." means the Code of Federal Regulations as it existed on September 1, 2021.

How to amend HB 7:  This amendment  would make the bill applicable to the waste that would come if a federal CISF license is granted. This amendment (H2)was offered by Rep. Tom Craddick, but a point of order was sustained:

Amend HB 7 (house committee report) as follows:

(1)  On page 1, line 6, strike "Subdivision (12-b)" and substitute "Subdivisions (12-b), (20), and (25-a)".

(2)  On page 1, line 8, immediately following "42 U.S.C. Section 10101(12)", add the following:

. A reference in this subdivision to the "U.S.C." means the United States Code as it existed on September 1, 2021. 

(3)  On page 1, lines 8 and 9, strike "and includes spent nuclear fuel as defined by 42 U.S.C. Section 10101(23).".

(4)  On page 1, between lines 9 and 10, insert the following:

(20)  "Reactor-related greater than Class C waste" means greater than Class C low-level radioactive waste originating from a civilian nuclear power reactor that exceeds the concentration limits of radionuclides established for Class C waste in 10 C.F.R. Section 61.55. A reference in this subdivision to the "C.F.R." means the Code of Federal Regulations as it existed on September 1, 2021.

(25-a)  "Spent nuclear fuel" has the meaning assigned by 42 U.S.C. Section 10101(23). A reference in this subdivision to the "U.S.C." means the United States Code as it existed on September 1, 2021.

(5)  On page 1, line 23, between "waste" and "by", insert ", spent nuclear fuel, or reactor-related greater than Class C waste".

(6)  On page 2, line 6, between "WASTE" and the underlined period, insert ", SPENT NUCLEAR FUEL, AND REACTOR-RELATED GREATER THAN CLASS C WASTE".

(7)  On page 2, line 7, between "waste" and "on", insert ", spent nuclear fuel, or reactor-related greater than Class C waste".

(8)  On page 2, line 10, between "WASTE" and the underlined period, insert ", SPENT NUCLEAR FUEL, AND REACTOR-RELATED GREATER THAN CLASS C WASTE".

(9)  On page 2, line 15, between "waste" and "in", insert ", spent nuclear fuel, or reactor-related greater than Class C waste".

Another amendment approach – a clear ban: (Craddick’s HB 3) [See the HB 3 language, here]

An amendment by Landgraf was adopted;

Amend HB 7 (house committee report) as follows:

(1)  On page 1, line 15, strike "located on university campuses" and substitute "operated by a university".

(2)  On page 2, line 3, strike "Sections 401.072 and 401.073" and substitute "Section 401.072".

(3)  On page 2, strike lines 5 through 8.

(4)  On page 2, line 9, strike "401.073" and substitute "401.072".

(5)  On page 2, lines 12 and 13, strike "located on university campuses" and substitute "operated by a university".