1     
RADIOACTIVE AND HAZARDOUS WASTE ACCOUNT

2     
AMENDMENTS

3     
2017 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Brad R. Wilson

6     
Senate Sponsor: Jacob L. Anderegg

7     

8     LONG TITLE
9     General Description:
10          This bill amends provisions relating to funding and reporting on perpetual care and
11     maintenance of commercial radioactive waste disposal facilities and reporting on the
12     maintenance of hazardous waste disposal facilities.
13     Highlighted Provisions:
14          This bill:
15          ▸     exempts funds in the Radioactive Waste Perpetual Care and Maintenance Account
16     from the State Money Management Act;
17          ▸     requires the state treasurer to:
18               •     follow certain account management and investment guidelines; and
19               •     report to the Legislative Management Committee on account performance;
20          ▸     repeals the requirement that an existing commercial radioactive waste treatment or
21     disposal facility pay an annual fee;
22          ▸     repeals the requirement that the Waste Management and Radiation Control Board
23     report to the Legislative Management Committee on the adequacy of the funds to
24     provide for the closure, postclosure, and perpetual care and maintenance of
25     commercial radioactive waste treatment or disposal facilities and hazardous waste
26     treatment, storage, or disposal facilities.
27          ▸     provides that the Waste Management and Radiation Control Board may report on
28     account adequacy and impose fees if an existing facility increases its licensed disposal volume
29     by 25% or more; and
30          ▸     makes technical changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          None
35     Utah Code Sections Affected:
36     AMENDS:
37          19-1-307, as last amended by Laws of Utah 2015, Chapter 451
38          19-3-106.2, as last amended by Laws of Utah 2010, Chapter 278
39          51-7-2, as last amended by Laws of Utah 2015, Chapter 319
40     

41     Be it enacted by the Legislature of the state of Utah:
42          Section 1. Section 19-1-307 is amended to read:
43          19-1-307. Evaluation of closure, postclosure, and perpetual care and maintenance
44     for hazardous waste and radioactive waste treatment and disposal facilities -- Report.
45          (1) (a) [Beginning in 2006, the] The Waste Management and Radiation Control Board
46     created in Section 19-1-106 [shall] may direct an evaluation [every five years] of a commercial
47     hazardous waste treatment, storage, or disposal facility, if the facility is:
48          (i) licensed or permitted after July 1, 2017; or
49          (ii) (A) licensed or permitted before July 1, 2017; and
50          (B) has cumulatively increased the facility's licensed disposal volume by 25% or more.
51          (b) The evaluation shall determine:
52          (i) the adequacy of the amount of financial assurance required for closure and
53     postclosure care under 40 C.F.R. subpart H, Sections 264.140 through 264.151 submitted
54     pursuant to a hazardous waste operation plan for a commercial hazardous waste treatment,
55     storage, or disposal facility under Section 19-6-108; [and]
56          (ii) the adequacy of the amount of financial assurance or funds required for perpetual
57     care and maintenance following the closure and postclosure period of a commercial hazardous
58     waste treatment, storage, or disposal facility, if found necessary following the evaluation under
59     Subsection (1)(c)[.];
60          [(b) The evaluation shall determine:]
61          [(i)] (iii) whether the amount of financial assurance required is adequate for closure
62     and postclosure care of hazardous waste treatment, storage, or disposal facilities;
63          [(ii)] (iv) whether the amount of financial assurance or funds required is adequate for
64     perpetual care and maintenance following the closure and postclosure period of a commercial
65     hazardous waste treatment, storage, or disposal facility, if found necessary following the
66     evaluation under Subsection (1)(c); and
67          [(iii)] (v) the costs above the minimal maintenance and monitoring for reasonable risks
68     that may occur during closure, postclosure, and perpetual care and maintenance of commercial
69     hazardous waste treatment, storage, or disposal facilities including:
70          (A) groundwater corrective action;
71          (B) differential settlement failure; or
72          (C) major maintenance of a cell or cells.
73          (c) The Waste Management and Radiation Control Board shall evaluate in 2006
74     whether financial assurance or funds are necessary for perpetual care and maintenance
75     following the closure and postclosure period of a commercial hazardous waste treatment,
76     storage, or disposal facility to protect human health and the environment.
77          (2) (a) [Beginning in 2006, the] The Waste Management and Radiation Control Board
78     created in Section 19-1-106 [shall] may direct an evaluation [every five years] of a commercial
79     radioactive waste treatment or disposal facility if the facility is:
80          (i) licensed or permitted after July 1, 2017; or
81          (ii) (A) licensed or permitted before July 1, 2017; and
82          (B) has cumulatively increased the facility's licensed disposal volume by 25% or more.
83          (b) The evaluation shall determine:
84          (i) the adequacy of the Radioactive Waste Perpetual Care and Maintenance Account
85     created by Section 19-3-106.2; [and]
86          (ii) the adequacy of the amount of financial assurance required for closure and
87     postclosure care of commercial radioactive waste treatment or disposal facilities under
88     Subsection 19-3-104(11)[.];
89          [(b) The evaluation shall determine:]
90          [(i)] (iii) whether the restricted account is adequate to provide for perpetual care and
91     maintenance of commercial radioactive waste treatment or disposal facilities;
92          [(ii) whether the amount of financial assurance required is adequate to provide for
93     closure and postclosure care of commercial radioactive waste treatment or disposal facilities;]
94          [(iii)] (iv) the costs under Subsection 19-3-106.2[(5)](4)(b) of using the Radioactive
95     Waste Perpetual Care and Maintenance Account during the period before the end of 100 years
96     following final closure of the facility for maintenance, monitoring, or corrective action in the
97     event that the owner or operator is unwilling or unable to carry out the duties of postclosure
98     maintenance, monitoring, or corrective action; and
99          [(iv)] (v) the costs above the minimal maintenance and monitoring for reasonable risks
100     that may occur during closure, postclosure, and perpetual care and maintenance of commercial
101     radioactive waste treatment or disposal facilities including:
102          (A) groundwater corrective action;
103          (B) differential settlement failure; or
104          (C) major maintenance of a cell or cells.
105          (3) (a) The board under Subsections (1) and (2) shall submit a report on the evaluations
106     to the Legislative Management Committee [on or before October 1 of the year in which the
107     report is due].
108          (b) For each report received under Subsection (3)(a), the Legislative Management
109     Committee shall review and evaluate the report and determine whether to recommend further
110     action.
111          Section 2. Section 19-3-106.2 is amended to read:
112          19-3-106.2. Perpetual care and maintenance of commercial radioactive waste
113     disposal facilities -- Radioactive Waste Perpetual Care and Maintenance Account created
114     -- Contents -- Use of restricted account money -- Evaluation.
115          (1) As used in this section, "perpetual care and maintenance" means perpetual care and
116     maintenance of a commercial radioactive waste treatment or disposal facility, excluding sites
117     within the facility used for the disposal of byproduct material, as required by applicable laws,
118     rules, and license requirements beginning 100 years after the date of final closure of the
119     facility.
120          [(2) (a) On and after July 1, 2002, the owner or operator of an active commercial
121     radioactive waste treatment or disposal facility shall pay an annual fee of $400,000 to provide
122     for the perpetual care and maintenance of the facility.]
123          [(b) The owner or operator shall remit the fee to the department on or before July 1 of
124     each year.]
125          [(3) The department shall deposit fees received under Subsection (2) into the
126     Radioactive Waste Perpetual Care and Maintenance Account created in Subsection (4).]
127          [(4)] (2) (a) There is created a restricted account within the General Fund known as the
128     "Radioactive Waste Perpetual Care and Maintenance Account" to finance perpetual care and
129     maintenance of commercial radioactive waste treatment or disposal facilities, excluding sites
130     within those facilities used for the disposal of byproduct material.
131          (b) The sources of revenue for the restricted account are:
132          [(i) the fee imposed under this section; and]
133          (i) fees paid into the account by the owner or operator of a commercial radioactive
134     waste treatment or disposal facility; and
135          (ii) investment income derived from money in the restricted account.
136          (c) (i) The revenues for the restricted account shall be segregated into subaccounts for
137     each commercial radioactive waste treatment or disposal facility covered by the restricted
138     account.
139          (ii) Each subaccount shall contain:
140          (A) the fees paid by each owner or operator of a commercial radioactive waste
141     treatment or disposal facility; and
142          (B) the associated investment income.
143          (3) (a) The state treasurer shall invest money in the account with the primary goal of
144     providing for the stability, income, and growth of the principal.
145          (b) The state treasurer shall seek account growth that is designed to achieve a minimum
146     target account balance of $414,838,740 in the year 2141.
147          (c) Nothing in this section requires a specific outcome in investing.
148          (d) The state treasurer may deduct administrative costs incurred in managing account
149     assets from earnings before distributing them.
150          (e) (i) The state treasurer may employ professional asset managers to assist in the
151     investment of assets of the account.
152          (ii) The state treasurer may only provide compensation to asset managers from earnings
153     generated by the account's investments.
154          (f) The state treasurer shall invest and manage the account assets as a prudent investor
155     would, by:
156          (i) considering the purposes, terms, distribution requirements, and other circumstances
157     of the account; and
158          (ii) exercising reasonable care, skill, and caution in order to meet the standard of care
159     of a prudent investor.
160          (g) In determining whether or not the state treasurer has met the standard of care of a
161     prudent investor, the judge or finder of fact shall:
162          (i) consider the state treasurer's actions in light of the facts and circumstances existing
163     at the time of the investment decision or action, and not by hindsight; and
164          (ii) evaluate the state treasurer's investment and management decisions respecting
165     individual assets not in isolation, but in the context of an account portfolio as a whole and as a
166     part of an overall investment strategy that has risk and return objectives reasonably suited to
167     the account.
168          (h) (i) Beginning in 2021, the state treasurer shall report every five years to the
169     Legislative Management Committee the following information about the account's investments
170     at the sub-account level:
171          (A) market value of investments;
172          (B) asset allocation targets;
173          (C) investment performance measured against appropriate benchmarks, at the portfolio
174     and individual investment level;
175          (D) projected investment returns;
176          (E) actual contributions;
177          (F) projected 10 and 20 year market values; and
178          (G) whether account growth is progressing adequately to reasonably achieve the
179     minimum target account balance established in Subsection (3)(b).
180          (ii) The Legislative Management Committee shall:
181          (A) review and evaluate the report; and
182          (B) determine whether to recommend further action, including whether to impose a fee
183     on an owner or operator of a commercial radioactive waste treatment or disposal facility for the
184     perpetual care and maintenance of the facility.
185          [(5)] (4) The Legislature may appropriate money from the Radioactive Waste Perpetual
186     Care and Maintenance Account for:
187          (a) perpetual care and maintenance of a commercial radioactive waste treatment or
188     disposal facility, excluding sites within the facility used for the disposal of byproduct material,
189     beginning 100 years after the date of final closure of the facility; or
190          (b) maintenance or monitoring of, or implementing corrective action at, a commercial
191     radioactive waste treatment or disposal facility, excluding sites within the facility used for the
192     disposal of byproduct material, before the end of 100 years after the date of final closure of the
193     facility, if:
194          (i) the owner or operator is unwilling or unable to carry out postclosure maintenance,
195     monitoring, or corrective action; and
196          (ii) the financial surety arrangements made by the owner or operator, including any
197     required under applicable law, are insufficient to cover the costs of postclosure maintenance,
198     monitoring, or corrective action.
199          [(6)] (5) The money appropriated from the Radioactive Waste Perpetual Care and
200     Maintenance Account for the purposes specified in Subsection [(5)] (4)(a) or (b) at a particular
201     commercial radioactive waste treatment or disposal facility may be appropriated only from the
202     subaccount established under Subsection [(4)] (2)(c) for the facility.
203          [(7)] (6) The attorney general shall bring legal action against the owner or operator or
204     take other steps to secure the recovery or reimbursement of the costs of maintenance,
205     monitoring, or corrective action, including legal costs, incurred pursuant to Subsection [(5)]
206     (4)(b).
207          [(8) The board shall direct an evaluation of the adequacy of the restricted account as
208     required under Section 19-1-307.]
209          [(9)] (7) This section does not apply to a uranium mill licensed under 10 C.F.R. Part
210     40, Domestic Licensing of Source Material.
211          Section 3. Section 51-7-2 is amended to read:
212          51-7-2. Exemptions from chapter.
213          The following funds are exempt from this chapter:
214          (1) funds invested in accordance with the participating employees' designation or
215     direction pursuant to a public employees' deferred compensation plan established and operated
216     in compliance with Section 457 of the Internal Revenue Code of 1986, as amended;
217          (2) funds of the Workers' Compensation Fund;
218          (3) funds of the Utah State Retirement Board;
219          (4) funds of the Utah Housing Corporation;
220          (5) endowment funds of higher education institutions;
221          (6) permanent and other land grant trust funds established pursuant to the Utah
222     Enabling Act and the Utah Constitution;
223          (7) the State Post-Retirement Benefits Trust Fund;
224          (8) the funds of the Utah Educational Savings Plan;
225          (9) funds of the permanent state trust fund created by and operated under Utah
226     Constitution, Article XXII, Section 4; [and]
227          (10) the funds in the Navajo Trust Fund[.]; and
228          (11) the funds in the Radioactive Waste Perpetual Care and Maintenance Account.




Legislative Review Note
Office of Legislative Research and General Counsel