H*3706(Rat #0611, Act #0523 of 1986)  General Bill, By H.H. Keyserling, 
P. Freeman, T.E. Huff and Sheheen
 A Bill to effectuate the powers granted to the states under Low-Level
 Radioactive Waste Policy Act Amendments of 1985, P.L. 99-240; to provide for
 limitations on the use of the Barnwell Facility for disposal of low-level
 nuclear waste; to provide for methods of increasing those limits; to provide
 for the collection of information under this Act and P.L. 99-240 and to
 provide penalties for the failure to give this information; to impose the
 penalties authorized by P.L. 99-240 for failure to comply with the
 requirements for nonsited compact regions and nonmember states set forth in
 such Act; to provide fo investigation of the capacity of the Barnwell Site on
 December 31, 1992; to provide penalties for failure to comply with shipping
 standards; to reserve the authority of the Department of Health and
 Environmental Control and the Budget and Control Board to act under other
 authority; and to preserve the State's immunity under the Constitution of the
 United States. amended title

   03/26/86  House  Introduced and read first time HJ-1954
   03/26/86  House  Referred to Committee on Judiciary HJ-1954
   05/08/86  House  Committee report: Favorable with amendment
                     Judiciary HJ-2914
   05/21/86  House  Debate adjourned HJ-3183
   05/22/86  House  Amended HJ-3249
   05/22/86  House  Debate adjourned until Tuesday, May 27, 1986 HJ-3253
   05/28/86  House  Debate adjourned HJ-3392
   05/28/86  House  Reconsidered HJ-3398
   05/28/86  House  Amended HJ-3398
   05/28/86  House  Read second time HJ-3405
   05/29/86  House  Read third time and sent to Senate HJ-3492
   06/02/86  Senate Introduced, read first time, placed on calendar
                     without reference SJ-3442
   06/03/86  Senate Read second time SJ-3487
   06/03/86  Senate Ordered to third reading with notice of
                     amendments SJ-3487
   06/05/86  Senate Amended SJ-3658
   06/05/86  Senate  Read third time SJ-3658
   06/05/86  Senate Returned SJ-3665
   06/05/86  House  Concurred in Senate amendment and enrolled HJ-3873
   06/05/86         Ratified R 611
   06/11/86         Signed By Governor
   06/11/86         Effective date 06/11/86
   06/11/86         Act No. 523
   06/20/86         Copies available

AN ACT TO EFFECTUATE THE POWERS GRANTED TO THE STATES UNDER LOW-LEVEL RADIOACTIVE WASTE POLICY ACT AMENDMENTS OF 1985, P. L. 99-240; TO PROVIDE FOR LIMITATIONS ON THE USE OF THE BARNWELL FACILITY FOR DISPOSAL OF LOW-LEVEL NUCLEAR WASTE; TO PROVIDE FOR METHODS OF INCREASING THOSE LIMITS; TO PROVIDE FOR THE COLLECTION OF INFORMATION UNDER THIS ACT AND P. L. 99-240 AND TO PROVIDE PENALTIES FOR THE FAILURE TO GIVE THIS INFORMATION; TO IMPOSE THE PENALTIES AUTHORIZED BY P. L. 99-240 FOR FAILURE TO COMPLY WITH THE REQUIREMENTS FOR NONSITED COMPACT REGIONS AND NONMEMBER STATES SET FORTH IN SUCH ACT; TO PROVIDE FOR INVESTIGATION OF THE CAPACITY OF THE BARNWELL SITE ON DECEMBER 31, 1992; TO PROVIDE PENALTIES FOR FAILURE TO COMPLY WITH SHIPPING STANDARDS; TO RESERVE THE AUTHORITY OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AND THE BUDGET AND CONTROL BOARD TO ACT UNDER OTHER AUTHORITY; AND TO PRESERVE THE STATE'S IMMUNITY UNDER THE CONSTITUTION OF THE UNITED STATES.

Be it enacted by the General Assembly of the State of South Carolina:

Definitions

SECTION 1. As used in this act:

(1) "Department" means the Department of Health and Environmental Control.

(2) "Sited region" means a region of the United States including one or more states which, at the date of this section, had within its boundaries a licensed and operating site for the disposal of low-level radioactive waste pursuant to 42 U.S.C. 2021(b) as amended.

(3) "Operator" means the person who operates a facility.

(4) "P. L. 99-240" means the Federal Low-Level Radioactive Waste Policy Amendments Act of 1985.

The definitions contained in Article 3, Chapter 47, of Title 48 of the 1976 Code are also applicable to this section as they apply.

Findings

SECTION 2. Pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985, P. L. 99-240, amending 42 U.S.C. 2021(b) et seq., "The Low-Level Radioactive Waste Policy Act of 1980", the General Assembly of South Carolina adopts this act to further effectuate the state's responsibilities for management and disposal of low-level radioactive waste.

Limits on low-level radioactive waste

SECTION 3. (A) The regional disposal facility located at Barnwell may accept not more than eight million, four hundred thousand cubic feet of low-level radioactive waste during the seven-year period beginning January 1, 1986, and ending December 31, 1992. For the duration of the period beginning January 1, 1986, and ending December 31, 1992, the facility shall accept no waste from out of the region if receipt of such waste would result in disposal in excess of one million, two hundred thousand cubic feet of waste for a calendar year except under the provisions of Sections 5 and 6 of P. L. 99-240 or as otherwise provided in this act.

(B) If in any calendar year the provisions of Section 5, "Limited Availability of Certain Regional Disposal Facilities During Transition and Licensing Periods", subpart a(3)(B) of P. L. 99-240 are invoked then the facility shall increase the burial limit in that year in increments of ten percent but the increases shall not result in burial in excess of the eight million, four hundred thousand cubic feet through December 31, 1992, except as provided by law.

(C) If in any calendar year the provisions of Section 6, "Emergency Access", of P. L. 99-240, are invoked then the facility shall increase the yearly burial limit as required pursuant to certification of the Nuclear Regulatory Commission. Increases in the yearly burial limit under Section 6 of P. L. 99-240 shall not be greater than one hundred twenty percent of the burial rate of the previous year nor shall the increases result in burial in excess of the eight million, four hundred thousand cubic feet through December 31, 1992, except as provided by law.

Department may require information

SECTION 4. Pursuant to Section 5 of P. L. 99-240, subpart f, "Availability of Information During Interim Access Period", the Department may require information from disposal facility operators, generators, intermediate handlers, and the Department of Energy that is reasonably necessary to monitor the availability of disposal capacity, the use and assignment of allocations, and the applicability of surcharges. After written notice followed by a period of at least thirty days, the Department may deny access to the disposal facility to any generator or intermediate handler who fails to comply with an information request by the Department. Written notice of a denial of access shall be provided to such generator or intermediate handler, to the governor of the state in which such generator or intermediate handler is located, and to the operator of the disposal facility. The generator or intermediate handler may apply to the South Carolina Board of Health and Environmental Control for a hearing on the decision by the Department to deny access to the disposal facility. Such hearing shall be held within thirty days of the date of the filing of the application. The Attorney General of South Carolina shall represent the interests of the State of South Carolina in all such proceedings and any subsequent appeals. The generator or intermediate handler may within ten days of the decision petition the South Carolina Board of Health and Environmental Control for reconsideration of a determination of noncompliance with an information request and for restoration of access to the disposal facility upon compliance. The generator or intermediate handler may appeal the decision of the South Carolina Board of Health and Environmental Control to the Court of Common Pleas of Richland County. Any hearings held pursuant to this section shall be conducted in accordance with the procedure set forth in Chapter 23 of Title 1, Code of Laws of South Carolina, 1976, except that where the provisions of this act are in conflict with the provisions of Chapter 23 of Title 1, this act shall control. In consultation with appropriate agencies in the sited states, the compact commissions, and agencies of the federal government, the Department shall establish guidelines for defining waste from decontamination or recycling and determining the proportion of brokered or processed waste that is attributable to each state or to each original generator. The guidelines must not be inconsistent with any policies or guidelines pertaining to accountability for brokered or processed waste established by the Southeast Low-Level Radioactive Waste Compact Commission.

Department shall monitor and insure allocations

SECTION 5. The department shall monitor and insure that allocations to commercial nuclear power reactors of an amount of waste disposal capacity as determined by Section 5, "Limited Availability of Certain Regional Disposal Facilities During Transition and Licensing Periods", subpart c, "Commercial Nuclear Power Reactor Allocations" are available. The department shall act to the extent possible in cooperation and in concert with other states' agencies, federal agencies, and compact commissions to insure these allocations are available as provided by law for the regional facility at Barnwell.

Department may act to deny access

SECTION 6. The department shall act pursuant to P. L. 99-240 to deny access to the regional facility when the waste from nuclear power reactors accepted by the sited regions equals or exceeds eleven million, nine hundred thousand cubic feet during the seven-year period beginning January 1, 1986, and ending December 31, 1992.

Penalties may be imposed on generators

SECTION 7. Pursuant to Section 5 of P. L. 99-240, "Limited Availability of Certain Regional Disposal Facilities During Transition and Licensing Periods", subpart d(1), "Surcharges" and subpart e, "Requirements for Access to Regional Disposal Facilities", penalties must be imposed on all generators in states which fail to comply with the requirements as set forth in the above-referenced act.

To be considered for a determination of compliance with a milestone the governor of the state seeking to be determined in compliance or the chairman of a compact commission of a region seeking to be determined in compliance must present to the Chairman of the Board of the Department of Health and Environmental Control his certification that his state has complied as well as copies of all applicable documentation of the actions completed in compliance with the applicable law. Failure to provide such materials may result in a determination of noncompliance.

The Chairman of the Board of the Department of Health and Environmental Control shall, upon request, provide to the representatives to the Southeast Low-Level Radioactive Waste Compact Commission, the Speaker of the House of Representatives, and to the President of the Senate copies of any of such certifications and documentation.

Upon determination of noncompliance, the department shall impose the applicable penalty on the generator in the noncomplying state.

The South Carolina Board of Health and Environmental Control may, by majority vote, based on information received from the commission, from appropriate federal agencies, and from appropriate state agencies in this and other states, determine that a state or region has failed to comply with the requirements of P. L. 99-240 and shall inform the department which shall immediately impose the penalty provided by law. The Board of Health and Environmental Control shall take action to ensure that such determinations are made not later than thirty days following incidents of noncompliance. The state or region found to be in noncompliance may apply to the Board of Health and Environmental Control for a hearing on the Board of Health and Environmental Control's determination of noncompliance. Such hearing shall be held within thirty days of the date of the filing of the application.

Upon a determination of noncompliance the Board of Health and Environmental Control shall immediately impose the penalty provided by law. The noncomplying state, or its chief legal officer, shall represent itself and the generator who was denied access because of the state's noncompliance in all further proceedings. The Attorney General of South Carolina shall represent the interests of South Carolina in all further proceedings. The noncomplying state, or its chief legal officer, may petition the Board of Health and Environmental Control for reconsideration of the determination of noncompliance or for restoration of access to the disposal facility upon compliance. The noncomplying state, or its chief legal officer, may appeal the decision of the Board of Health and Environmental Control to a court of competent jurisdiction. Any hearings held pursuant to this section shall be held pursuant to the procedures set forth in Chapter 23 of Title 1, Code of Laws of South Carolina, 1976, except that where the provisions of this act are in conflict with the provisions of Chapter 23 of Title 1, this act shall control. Upon a determination of compliance the applicable penalty surcharge shall be discontinued or access shall be restored to generators in that state. All penalty surcharges levied during a period of noncompliance shall be retained by the State of South Carolina as provided in P. L. 99-240.

Barnwell plant to cease to accept radioactive

waste after January 1, 1993

SECTION 8. Beginning January 1, 1993, the disposal facility located at Barnwell shall cease to accept radioactive waste from outside the borders of the State and to serve as the regional disposal facility for the Southeast Regional Compact. Further operation of the facility beyond January 1, 1993, must be specifically authorized by the General Assembly. Within one year prior to closure, the department shall evaluate the remaining capacity of the site and recommend to the General Assembly the need and use of any remaining disposal capacity of the site. In accordance with Section 13-7-30 of the 1976 Code, the State Budget and Control Board, or its designee, is responsible for extended custody and maintenance of the Barnwell site following closure and license transfer from the facility operator. The department is responsible for continued site monitoring.

Unused annual site capacity

SECTION 9. The site operator may carry forward to any subsequent year unused annual site capacity up to two hundred thousand cubic feet whenever the site does not receive as much as one million, two hundred thousand cubic feet in a calendar year. In no calendar year may this carry-forward be used by the site operator to accept for disposal or storage an amount of waste in excess of one million, four hundred thousand cubic feet by operation of this or any other section. The use of this carry-forward of unused annualized site capacity may not result in disposal or storage of waste in excess of eight million, four hundred thousand cubic feet of waste prior to December 31, 1992.

No carry-forward of site capacity may be used after December 31, 1992.

Department may terminate authorization

SECTION 10. The department shall have the authority to terminate authorization of any shipper or transporter of radioactive waste where it determines a failure to comply with applicable standards of state or federal law. Any person aggrieved under this section has the right to a hearing, pursuant to Title 1, Chapter 23, of the 1976 Code, prior to permanent revocation of authorization to ship or transport nuclear waste. Authorization to begin shipping or transportation after termination of authority to do so requires affirmative action by the Department in accordance with applicable procedures.

Severability clause

SECTION 11. If any provision of this act is declared to be invalid or unconstitutional the declaration shall not invalidate the remaining provisions of this act.

Act to not limit authority

SECTION 12. Nothing in this act shall be construed to limit the authority of the Department of Health and Environmental Control or the Budget and Control Board acting pursuant to the authority granted to them by statute or contract to enforce restrictions to promote health and safety of persons or the environment.

Act may not be construed to waive immunity

SECTION 13. Nothing in act shall be construed as a waiver of the state's immunity under the Eleventh Amendment of the United States Constitution.

Time effective

SECTION 14. This act shall take effect upon approval by the Governor.