GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	4 

HOUSE BILL 1312*
Committee Substitute Favorable 5/10/89
Committee Substitute #2 Favorable 6/27/89
Fourth Edition Engrossed 7/6/89

Short Title:  Waste Amendments-1.	(Public)
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Sponsors:
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Referred to:  
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April 12, 1989

A BILL TO BE ENTITLED
AN ACT TO EXPAND THE RADIATION PROTECTION COMMISSION, TO IMPOSE  A TAX ON THE GROSS RECEIPTS OF A LOW-LEVEL RADIOACTIVE WASTE DISPOSAL FACILITY AT A RATE OF ONE PERCENT TO BE CREDITED TO THE GENERAL FUND, AND TO AMEND VARIOUS STATUTES RELATING TO LOW-LEVEL RADIOACTIVE WASTE.
The General Assembly of North Carolina enacts:
Section. 1.  G.S. 104E-6.1(a) reads as rewritten:
"(a)	No land may be used as a low-level radioactive waste disposal facility until fee simple title to the land has been conveyed to the State of North Carolina. In consideration for such conveyance, the State shall enter into a lease agreement with the grantor for a term equal to the estimated life of the facility in which the State will be the lessor and the grantor the lessee. Such lease agreement shall specify that for an annual rent of fifty dollars ($50.00), the lessee shall be allowed to use the land for the development and operation of a low-level radioactive waste disposal facility. Such lease agreement shall provide that the lessor or any person authorized by the lessor shall have at all times the right to enter without a search warrant or permission of the lessee upon any and all parts of the premises for monitoring, inspection and all other purposes necessary to carry out the provisions of Chapter 104E. The lessee shall remain fully liable for all damages, losses, personal injury or property damage which may result or arise out of the lessee's operation of the facility, and for compliance with regulatory requirements concerning insurance, bonding for closure and post-closure costs, monitoring and other financial or health and safety requirements as required by applicable law and regulations. The State, as lessor, shall be immune from liability except as otherwise provided by statute. The lease shall be transferrable with the written consent of the lessor, which consent will not be unreasonably withheld. In the case of such a transfer of the lease, the transferee shall be subject to all terms and conditions that the State deems necessary to ensure compliance with applicable laws and regulations. If the lessee or any successor in interest fails in any material respect to comply with any applicable law, regulation, or permit condition, or with any term or condition of the lease, the State may terminate the lease after giving the lessee written notice specifically describing the failure to comply and upon providing the lessee a reasonable time to comply. If the lessee does not effect compliance within the reasonable time allowed, the State may reenter and take possession of the premises."
Sec. 2.  G.S. 104E-8 reads as rewritten:
"§ 104E-8. Radiation Protection Commission – Members; selections; removal; compensation; quorum; services.
(a)	The Commission shall consist of 13 voting public members and 10 nonvoting ex officio members. The 13 voting public members of the Commission shall be appointed by the Governor as follows:
(1) 	One member who shall be actively involved in the field of environmental protection;
(2) 	One member who shall be an employee of one of the licensed public utilities involved in the generation of power by atomic energy;
(3) 	One member who shall have experience in the field of atomic energy other than power generation;
(4) 	One member who shall be a scientist or engineer from the faculty of one of the institutions of higher learning in the  State;
(5) 	One member who shall have recognized knowledge in the field of radiation and its biological effects from the North Carolina Medical Society;
(6) 	One member who shall have recognized knowledge in the field of radiation and its biological effects from the North Carolina Dental Society;
(7) 	One member who shall have recognized knowledge in the field of radiation and its biological effects from the State at large;
(8) 	One member who shall have recognized knowledge in the field of radiation and its biological effects and who shall be a practicing hospital administrator from the North Carolina Hospital Association;
(9) 	One member who shall have recognized knowledge in the field of radiation and its biological effects from the North Carolina Chiropractic Association;
(10)	One member who shall have recognized knowledge in the clinical application of radiation, shall be a practicing radiologic technologist from the North Carolina Society of Radiologic Technologists, and shall be certified by the American Registry of Radiologic Technologists;
(11)	One member who shall have recognized knowledge in the clinical application of radiation and shall be a practicing podiatrist licensed by the North Carolina State Board of Podiatry Examiners;
(12)	One member who shall have recognized knowledge in the field of radiation and its biological effects from the North Carolina Chapter of the Health Physics Society;
(13)	One member who shall have recognized knowledge in the field of radiation and its biological effects, who shall be a licensed veterinarian, and who shall be appointed by the Governor upon consultation with the Dean of the College of Veterinary Medicine of North Carolina State University.
(b)	Public members so appointed shall serve terms of office of four years. Four of the initial members shall be appointed for two years, three members for three years, and three members for four years.  Any appointment to fill a vacancy on the Commission created by the resignation, dismissal, death or disability of a public member shall be for the balance of the unexpired term. At the expiration of each public member's term, the Governor shall reappoint or replace the member with a member of like qualifications. At its first meeting on or after July first of each year, the Commission shall designate by election one of its public members as chairman and one of its public members as vice-chairman to serve through June thirtieth of the following year.
(c)	The 10 ex officio members shall be appointed by the Governor, shall be members or employees of the following State agencies or their successors, and shall serve at the Governor's pleasure:
(1)	The Utilities Commission;
(2)	The Commission for Health Services;
(3)	The Environmental Management Commission;
(4)	The Board of Transportation;
(5)	The Division of Emergency Management of the Department of Crime Control and Public Safety;
(6)	The Radiation Protection Division of the Department;
(7)	The Department of Labor;
(8)	The Industrial Commission;
(9)	The Department of Insurance;
(10)	The Medical Care Commission.
(d)	The Governor shall have the power to remove any member from the Commission for misfeasance, malfeasance, or nonfeasance in accordance with G.S. 143B-13.
(e)	The members of the Commission shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138-5.
(f)	A majority of the public members of the Commission shall constitute a quorum for the transaction of business.
(g)	All clerical and other services required by the Commission shall be supplied by the Secretary of the Department."
Sec. 3.  The initial term of public members of the Radiation Protection Commission who are appointed to the positions on the Commission added by Section 1 of this act shall be for two, three, four, or five years, depending on the expiration of the current terms of current members of the Commission.  In making initial appointments under this section and Section 1 of this act, the Governor shall specify initial terms such that, as nearly as possible, the same number of terms will expire in each year.
Sec. 4.  G.S. 104G-6(19) reads as rewritten:
"(19)	May procure and keep in force adequate insurance or otherwise provide for the indemnification of itself and its members, officers, agents, employees, adjoining property owners, or the general public against loss or liability resulting from any act or omission by or on behalf of the Authority, and for the protection of its property, provided that the procurement of insurance by the Authority shall be deemed a waiver of liability only to the extent of the insurance coverage and shall not otherwise be deemed a waiver of any immunity from liability available under any provision of law;".
Sec. 5.  G.S. 104G-8 reads as rewritten:
"§ 104G-8.  Liability defense, and legal representation.
(a)	The provisions of Article 31 of Chapter 143 (Tort Claims Against State Departments and Agencies) shall apply to the Authority.  No member, officer, or employee of the Authority, while acting within the scope of their authority, shall be subject to any personal liability or accountability by reason of any act or omission in connection with the exercise of any power or performance of any duty, whether express or implied, pursuant to this Chapter.
(b)	The provisions of Article 31A of Chapter 143 of the General Statutes shall apply to current or former members, officers, agents, or employees of the Authority.
(c)	The Attorney General shall be the legal representative of the Authority and shall provide legal advice and counsel to the Authority.  The Authority and the Department of Justice shall enter into an appropriate contract or make other mutually satisfactory arrangements for legal services, including reimbursement of the Department of Justice for any costs incurred other than routine or minor costs.  The Authority may employ or retain other legal counsel with the prior approval of the Attorney General."
Sec. 6.  G.S. 104G-9(e) reads as rewritten:
	"(e) No later than 1 October 1989, the Authority shall select a minimum of two sites that are suitable for the location of a low-level radioactive disposal facility, for characterization.  No site may be selected for the location of a low-level radioactive waste disposal facility without first having been characterized."
Sec. 7.  G.S. 104G-9(f) reads as rewritten:
"(f)	No later than 1 October 1990, the Authority shall complete all site characterizations."
Sec. 8.  G.S. 104G-10(c) reads as rewritten:
	"(c) The Authority shall select and employ an operator for a low-level radioactive waste disposal facility no later than 1 August 1989. If no private operator is employed by 1 August 1989, the Authority shall designate itself as the operator and shall do everything necessary to obtain all required licenses or permits to operate a low-level radioactive waste disposal facility."
Sec. 9.  G.S. 104G-13(d) reads as rewritten:
	"(d) Upon proper closure, the Authority shall assume responsibility for environmental monitoring, maintenance, care, and custody of a low-level radioactive waste disposal facility site during the institutional control period.  The Authority may release the operator from further responsibility for maintenance of the low-level radioactive waste disposal facility, subject to approval by the Department of Human Resources of the transfer of the license to the Authority.  The Authority may not release the operator from liability for damages, losses, personal injury, or property damage which may result or arise out of the operation of the low-level radioactive waste disposal facility."
Sec. 10.  G.S. 104G-15(c) reads as rewritten:
	"(c) The Authority shall prepare, on a quarterly basis, a detailed financial statement showing its current fee schedules, income from all sources, indebtedness, and expenses for the quarter and fiscal year to date.  This report, and any other information regarding the operation of the Authority which may be requested, shall be submitted to the chairmen of the House and Senate committees on Finance and Appropriations, the Joint Legislative Commission on Governmental Operations, the Joint Select Committee on Low-Level Radioactive Waste, the Research Division, and the Fiscal Research Division of the General Assembly."
Sec. 11.  G.S. 104G-16(a) reads as rewritten:
"(a)	There is hereby established under the control and direction of the Authority a nonreverting Long-Term Care Fund, to be administered by the State Treasurer, which may be used for:
(1)	Administration of the Fund;
(2)	Emergency response to and decontamination of radiation accidents at facilities operated pursuant to this Chapter; or
(3)	Environmental monitoring, maintenance, care, and custody of a disposal facility including necessary remedial actions during the institutional control period."
Sec. 12.  G.S. 104G-18 is amended by adding a new subsection to read:
"( e)	The Authority shall collect and deposit with the State Treasurer a tax on the gross receipts of the facility in the amount of one percent (1%).  The tax is payable on a quarterly basis.  The operator shall remit the tax due for a quarter to the Authority by the 15th day of the month following the end of the quarter.  The State Treasurer shall credit receipts under this subsection to the General Fund."
Sec. 13.  G.S. 104G-21(a) reads as rewritten:
"(a)	Any local government in the county or counties where a low-level radioactive waste facility is proposed to be located pursuant to this Chapter may negotiate with the Authority with respect to any issue relating to the facility except:
(1)	The need for the facility;
(2)	Any proposal to reduce the duties of the Authority under this Chapter or under any license issued for the facility;
(3)	Any proposal to reduce the duties of the Commission or to make less stringent any rule of the Commission; 
(4)	Any proposal to reduce the duties of the Board; or
(5)	Any decision of the Authority regarding site selection, operator selection, or technology pursuant to G.S. 104G-9, 104G-10, and 104G-11."
Sec. 14.  G.S. 104G-21(e) reads as rewritten:
"(e)	In addition to those issues set out in subsection (d), upon petition to the Board by a local government in the county or counties where a low-level radioactive waste facility is proposed to be located, any other issue may be submitted for arbitration except:
(1)	Those issues excluded from negotiation under subsection (a) of this section;
(2)	Any issue relating to the imposition by the General Assembly of a tax, or fee not authorized by this Chapter; and
(3)	Any issue requiring an appropriation by the General Assembly."
Sec. 15.  G.S. 104G-22(a) reads as rewritten:
"(a)	To assist the Authority in the performance of its responsibilities under this Chapter and to advise the General Assembly, there is created the Inter-Agency Committee on Low-Level Radioactive Waste (herein called the ‘Committee').  The Committee shall be composed of:  the Chairman of the Board; the Chairman of the Board's Technical Committee on Low-Level Radioactive Waste; the Chief of the North Carolina Radiation Protection Section; the Chairman of the Commission's Low-Level Radioactive Waste Management Committee; the Chairman of the Authority; the Vice-Chairman of the Authority; the Executive Director of the Authority; one additional member of the Authority designated by the Chairman; four representatives of the Department of Natural Resources and Community Development with expertise in geology, groundwater, water quality, and air quality; a representative of the Solid Waste Management Section of the Division of Health Services of the Department of Human Resources; and the two representatives of the Attorney General's office who provide legal services to the Authority and the Commission.  The Chairman of the Board shall serve as the Chairman of the Committee, and the Board shall provide professional and clerical support to the Committee."
Sec. 15.1.  G.S. 104G-6 is amended by adding the following subsection:
"( c)	The Authority may in its discretion refuse to contract for the services described in G.S. 104G-6(a)(3) with a person who, or any affiliate of a person who, has been convicted within the previous three years on felony charges in a federal or state court of committing a contract crime or an environmental crime.  Notice of any contract with parties listed above shall be disclosed to all members of the General Assembly, detailing the conviction, prior to entering into any contract with said parties.  The terms of any contract for services described in G.S. 104G-6(a)(3) entered into by the Authority shall include the following provisions:
(1)	That the contract is voidable by the Authority if a party to the contract subcontracts with or is supplied by a person who has been convicted within the previous three years of a contract crime or an environmental crime.
(2)	That if a party to the contract or an affiliate of a party to the contract is charged in an indictment or an information with engaging in a contract crime or an environmental crime in any federal court or state court, the Authority's obligations under the contract may in the discretion of the Authority be suspended until the charges are resolved.
(3)	That immediate notice be given to the Authority in the event that the contractor is charged in an indictment or information or is convicted of a crime described in this subsection."
Sec. 15.2.  G.S. 104G-2 reads as rewritten:
"§ 104G-2.  Definitions.
Unless the context otherwise requires, the following definitions shall apply to this Chapter:
(1)	‘Affiliate' means one of a group of two or more corporations whose relationship to each other is such that (i) one corporation is substantially controlled, directly or indirectly, by the other or others, or (ii) one of the corporations is substantially controlled directly or indirectly, by the same interests as the other or others, or (iii) one is a predecessor or successor of the other or others under the same, or substantially the same, control.  The term ‘affiliate' includes the officers, directors, executives, shareholders active in management, employees, and agents of the affiliate.  The ownership by one business entity of a controlling interest in another business entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another.
(1a)	‘Authority' means the North Carolina Low-Level Radioactive Waste Management Authority established pursuant to this Chapter, its governing board, or any successor thereto.
(2)	‘Board' means the Governor's Waste Management Board established pursuant to Part 27 of Article 3 of Chapter 143B of the General Statutes.
(3)	‘Commission' means the North Carolina Radiation Protection Commission established pursuant to Chapter 104E of the General Statutes.
(3a)	‘Contract crime' means (i) any felony violation of state or federal antitrust laws with respect to a public contract, or (ii) any felony violation of any state or federal law involving fraud, bribery, collusion, conspiracy, or other unlawful act in restraint of trade laws.
(3b)	‘Convicted' or ‘conviction' means a finding of guilt or a conviction of a contract crime or an environmental crime, with or without an adjudication of guilt, in any federal or state trial court of record as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere.
(3c)	‘Environmental crime' means any felony violation of state or federal law that protects the environment.
(4)	‘LLRWPAA' means the Low-Level Radioactive Waste Policy Act of 1980, Pub. L. No. 96-573, 94 Stat. 3347, and the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. 99-240, 99 Stat. 1842, 42 U.S.C. 2021b et seq.
(5)	‘Low-level radioactive waste' means low-level radioactive waste as defined in the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. 99-240, 99 Stat. 1842, 42 U.S.C. 2021b et seq. and other waste, including waste containing naturally occurring and accelerator produced radioactive material, which is not regulated by the United States Nuclear Regulatory Commission or other agency of the federal government and which is determined to be low-level radioactive waste by the Commission.
(6)	‘Low-level radioactive waste facility' means a facility for the storage, collection, processing, treatment, recycling, recovery, or disposal of low-level radioactive waste.
(7)	‘Low-level radioactive waste disposal facility' means any low-level radioactive waste facility or any portion of such facility, including land, buildings, and equipment, which is used or intended to be used for the disposal of low-level radioactive waste on or in land in accordance with rules promulgated under Chapter 104E of the General Statutes.
(8)	‘Local government(s)' means the board of commissioners of a county or the governing board of a city, as the term ‘city' is defined in G.S. 160A-1(2). 
(9)	‘Person' means any individual, partnership, corporation, association, or other entity formed for the purpose of doing business as a contractor, subcontractor, supplier, or consultant.
(10)	‘Pooling' means a combination of persons or corporations engaged in the same business, or for the purpose of engaging in a particular business or commercial or speculative venture, in which all contribute to a common fund or place their holdings of a given stock or other security in the hands and control of a managing member or committee."
Sec. 16.  G.S. 104G-22(d) reads as rewritten:
	"(d) Consistent with existing law, each agency, board, commission, or authority from whose membership the Committee is drawn shall be responsible for any expenses incident to the participation of its members in the work of the Committee, including per diem, travel, and subsistence, from funds otherwise appropriated to it.  "
Sec. 16.1.  G.S. 104G-23 is amended by adding a new subsection to read:
"( d)	No low-level radioactive waste shall be accepted for disposal at a disposal facility established pursuant to this Chapter until such time as the Southeast Interstate Low-Level Radioactive Waste Management Compact Commission has established a schedule and intitiated the process for designating a state to host the third regional disposal facility."
Sec. 17.  Sections 6, 7, and 8 of this act are effective 31 January 1989.  Sections 2 and 3 of this act are effective 1 July  1989.  Sections 1, 4, and 5 and Sections 9 through 17 are effective upon ratification.