N.Y. Public Authorities Law § 1854-d: Generator reporting and fees

§ 1854-d. Generator reporting and fees. 1. Reports. a. Any person who

generates low-level radioactive waste in New York shall submit to the

authority, on dates specified by the authority, but in no event later

than nine months after the effective date of the low-level radioactive

waste management act and, thereafter, no less frequently than annually,

reports detailing the classes and quantities of low-level radioactive

waste generated, stored by the generator for decay or for later transfer

to other facilities, or transferred by the generator to other

facilities, the general type of generator (e.g., medical, university,

industry, electric utility, government), and such additional information

as the authority may reasonably require on the nature and

characteristics (including, without limitation, chemical and physical

characteristics, properties, or constituents, radionuclides present,

curie content or concentration of radioactivity) of such waste and the

extent of reduction in quantity and the nature and extent of reduction

or other change in the nature or characteristics of such waste as a

result of treatment or interim storage after generation and before

delivery to facilities for permanent disposal of such waste. The

authority shall provide by regulation appropriate procedures for the

preparation and submission of such reports, including procedures to

designate a person or persons responsible for such filing when more than

one person is the generator of the same waste. Such reports shall be

subject to the provisions of article six of the public officers law.

b. Commencing no later than the first day of July nineteen hundred

eighty-seven, the authority shall submit annually to the governor, the

temporary president of the senate, the speaker of the assembly, the

minority leader of the senate, and the minority leader of the assembly,

and thereafter, not later than one hundred eighty days after the end of

each calendar year, a report summarizing and categorizing, by type of

generator and region of generation, the nature, characteristics, and

quantities of low-level radioactive waste generated in New York during

such calendar year.

2. Fees. a. (i) Pursuant to this title the authority shall, pursuant

to regulations promulgated in accordance with article two of the state

administrative procedure act, establish, revise, assess, and collect

reasonable rates, charges, or other fees upon the disposal of low-level

radioactive waste generated in New York sufficient to fully recover all

costs and expenses of the state and its agencies and authorities

associated with low-level radioactive waste management facilities. Such

assessed rates, charges, or other fees shall be paid to the authority in

the manner, and accompanied by such returns, reports, or other

documentation as the authority may prescribe. Fees paid shall be treated

as expenses for purposes of recovery in rates. Surcharges collected by

or for facilities which accept low-level radioactive waste generated in

New York State for disposal pursuant to the Federal Low-level

Radioactive Waste Policy Amendments of nineteen hundred eighty-five

(Pub. Law 99-240), but deposited in escrow pursuant to section 5 (d) (2)

of such law shall be paid to and received by the authority. Such

payments shall be disbursed or transferred pursuant to this paragraph

and shall be used for the purpose of reducing the amounts otherwise

recoverable as assessments imposed pursuant to paragraph c of this

subdivision.

(ii) The authority shall deposit the proceeds from such rates,

charges, or other fees in a separate segregated account maintained

solely for the purpose of holding such deposits. The authority shall

first apply the proceeds of the account to payments of principal and

interest on bonds, notes or other obligations issued by the authority

for the purposes of the low-level radioactive waste management act.

Upon appropriation or pursuant to other legislative authorization,

disbursements or transfers from such account shall be made solely for

other costs and expenses incurred under the low-level radioactive waste

management act.

(iii) In establishing, revising, assessing, and collecting such

reasonable rates, charges, or other fees associated with low-level

radioactive waste management facilities or incurred under the low-level

radioactive waste management act, the authority shall include, but need

not be limited to, such amounts as will meet all incremental costs and

expenses of:

A. selecting, developing, licensing, constructing, operating, and

maintaining such facilities;

B. establishing reserves for related purposes, including, but not

limited to, debt service, decontamination and decommissioning, closure,

and post-closure care, and contingencies;

C. making reimbursements of expenditures from appropriations to state

agencies or authorities to implement the low-level radioactive waste

management act; and

D. making payments in lieu of taxes.

(iv) The authority may establish and revise, not inconsistent with

federal law and regulation, reasonable classifications of low-level

radioactive waste based upon the nature, class, characteristics (other

than type of generator) or condition of such waste. The authority may

utilize such classifications for purposes of establishing or revising

the rates, charges, or other fees upon the disposal of such waste

pursuant to paragraphs b and c of this subdivision.

b. Upon delivery of low-level radioactive waste to permanent disposal

facilities owned or operated by the authority, the rates, charges, or

other fees as established or revised by the authority for disposal of

such waste at such facilities, and related services, shall be paid.

Such rates, charges, or other fees shall be sufficient to meet all costs

and expenses which may be reasonably and practically identified or

allocated to permanent disposal facilities, over the life of such

facilities, and the low-level radioactive waste disposed of at such

facilities, including without limitation, all costs and expenses

associated with: development, licensing, operation, maintenance, and

meeting debt service requirements, or requirements for repayment of

expenditures from appropriations for capital costs of such facilities,

which requirements are due after such facilities begin accepting

low-level radioactive waste; establishing reserves, including but not

limited to reserves for decontamination and decommissioning, closure and

post-closure care, and contingencies, including but not limited to

potential accidents, damages, and injuries; and making any payments in

lieu of taxes or fees for local assistance and repayments of any amounts

expended from appropriations for aid to localities with respect to

permanent disposal facilities, provided, however, that all capital costs

incurred prior to the receipt and acceptance of low-level radioactive

waste at the disposal facilities shall be recovered in a period of not

less than twenty years after such receipt and acceptance.

c. (i) During the period before the commencement of operation of

permanent disposal facilities owned or operated by the authority,

expenditures from appropriations to the departments of environmental

conservation and health and the commission for siting low-level

radioactive waste disposal facilities for the purpose of implementing

the low-level radioactive waste management act shall be recovered

through assessment against United States nuclear regulatory commission

licensees for nuclear electric generating facilities located in the

state of New York which have full power operating licenses. For the

state fiscal year ending March thirty-first, nineteen hundred

eighty-seven and each successive state fiscal year until commencement of

operation of the permanent disposal facilities, the chairman of the

authority shall estimate such expenditures and shall assess such

estimated expenditures on a pro rata basis in proportion to the number

of reactors with full power operating licenses of each such licensee.

For the assessment for the state fiscal year ending March thirty-first,

nineteen hundred eighty-seven, such estimated expenditures shall be

based upon actual appropriations available to such state agencies for

such fiscal year for such purpose and shall be billed by the authority

as soon as practicable after the effective date of the low-level

radioactive waste management act and paid by such licensees not later

than December thirty-first, nineteen hundred eighty-six. For the

assessment for each subsequent fiscal year, such estimated expenditures

shall be based upon the proposed appropriations to such state agencies

for such purpose, net of any over or under assessment for prior fiscal

years compared to the latest available data on such expenditures for

such prior fiscal years, and shall be billed by the authority on or

before February first preceding such fiscal year and paid on or before

April first of such fiscal year; provided, however, that a licensee may

elect to make partial payments for such assessments on March tenth of

the preceding fiscal year and on June tenth, September tenth, and

December tenth of such fiscal year. Each such partial payment shall be

an amount not less than twenty-five per centum of the total annual

assessment against such licensee for the relevant fiscal year. The

authority shall establish and maintain records to account for

assessments made against and received from each licensee. Upon receipt

of such assessments, and pursuant to an agreement with the director of

the budget, the authority shall transmit to the state comptroller such

amount as shall be required to reimburse actual expenditures made and

subject to assessment. The amounts so assessed, notwithstanding their

assessment, shall be included as cost and expenses for purposes of

computing and imposing rates, charges, or other fees pursuant to

paragraphs a and b of this subdivision. In imposing such rates, charges,

or other fees pursuant to such paragraph b, the authority shall provide

a credit to the assessed licensees until such time as the aggregate of

all such credits for a licensee shall equal the actual assessments paid

by such licensee, plus interest at a reasonable market rate.

(ii) In the calculation of the assessment due pursuant to this

paragraph for any fiscal year beginning on or after April first,

nineteen hundred ninety-seven, the net of any over or under assessment

for fiscal years ending on or before March thirty-first, nineteen

hundred ninety-six, shall be deemed to be zero.

d. (i) The authority may refuse to accept at facilities established

pursuant to section eighteen hundred fifty-four-b of this title any

low-level radioactive waste generated by a person who has failed to

submit to the authority, the one or more reports required by the

authority pursuant to subdivision one of this section.

(ii) The proceeds of any penalty or interest collected pursuant to

subparagraph (i) of paragraph a of subdivision three of this section

shall be remitted to the authority for the purposes of the low-level

radioactive waste management act.

3. Violations. a. Any failure or refusal to file a report, return, or

other documentation, or related information, required pursuant to the

provisions of this section shall be deemed a violation of the provisions

of, and a failure to perform a duty imposed by, this section and shall

be subject to the following civil and criminal penalties:

(i) By a civil penalty, in the case of a first violation, not to

exceed five thousand dollars, and in the case of a second or subsequent

violation, a civil penalty not to exceed ten thousand dollars; which

penalty may be assessed and collected by a court in any action or

proceeding pursuant to subparagraph (ii) of this paragraph in addition

to any criminal penalty which may be assessed for such violation.

(ii) By a misdemeanor, in the case of a willful violation by a person

having any of the culpable mental states defined in section 15.05 of the

penal law, which shall be deemed a misdemeanor, and upon a first

conviction thereof, by a fine not to exceed five thousand dollars, or by

imprisonment for a term of not more than six months, or both such fine

and imprisonment; and, upon a second or subsequent conviction thereof,

punishment by a fine not to exceed ten thousand dollars, or by

imprisonment for a term of not more than one year, or by both such fine

and imprisonment.

b. The attorney general shall institute such civil proceedings as the

authority may request for the purpose of enforcing the provisions of

this section, and such criminal proceedings as the authority may request

for the purpose of prosecuting criminal violations of this section.

4. Upon appropriation or other legislative authorization and

consistent with a repayment agreement executed with the director of the

budget, the authority shall repay from the special account established

pursuant to subparagraph (ii) of paragraph a of subdivision two of this

section to the general fund, capital projects fund, or any other fund

all amounts expended from appropriations made to the authority, the

department of environmental conservation, the commission for siting

low-level radioactive waste disposal facilities, the department of

health, or the department of labor for actual and incremental expenses

in the selection, development, licensing, construction, operation,

maintenance, decontamination and decommissioning, closure and

post-closure care of low-level radioactive waste management facilities,

including any regulatory program associated therewith, or for aid to

localities.

5. The authority may establish reasonable terms and conditions for

receipt, acceptance or disposal of low-level radioactive waste at any

facilities developed pursuant to section eighteen hundred fifty-four-c

of this title, including but not limited to packaging, identification of

the nature and sources of the waste and the generators, shippers, or

carriers of such waste, or other persons having any care or custody of

such waste from the place of generation to arrival at such facilities,

and requirements for bonds, insurance, or other forms of financial

protection or assurance of performance by persons responsible for such

waste.

6. Title to any low-level radioactive waste shall at all times remain

in the generator of such waste, including the period following

acceptance of such waste by the authority at the permanent disposal

facilities. Acceptance at permanent disposal facilities shall not occur

until completion of such inspection and examination of the waste and

determination of compliance with applicable terms and conditions,

including but not limited to payment of applicable fees, as the

authority may require.

7. Notwithstanding the provisions of subdivision twelve of section

eighteen hundred fifty-five of this title, the authority shall enter

into agreements to pay annual sums in lieu of taxes to any municipality

or taxing district of the state with respect to any real property

acquired and held by the authority in the state or improvements to any

real property held by the authority in the state, which real property

was acquired or improvements were made after the effective date of the

low-level radioactive waste management act and for the purposes of such

act; provided, that any amount so paid shall be recovered through rates,

charges, or other fees applicable to disposal of low-level radioactive

waste, pursuant to subdivision two of this section.

8. Actions by the authority pursuant to the provisions of section

eighteen hundred fifty-four-c of this title shall be subject, where

applicable, to the environmental and judicial review provisions set

forth in article twenty-nine of the environmental conservation law.