By Saunders H.B. No. 2430
Substitute the following for H.B. No. 2430:
By Oakley C.S.H.B. No. 2430
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of radioactive source material recovery,
1-3 processing, and disposal activities; establishing fees; providing
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 401.003, Health and Safety Code, is
1-7 amended by amending Subdivisions (3) and (18) and by adding
1-8 Subdivisions (24) and (25) to read as follows:
1-9 (3) "By-product material" means:
1-10 (A) a radioactive material, other than special
1-11 nuclear material, that is produced in or made radioactive by
1-12 exposure to radiation incident to the process of producing or using
1-13 special nuclear material; and
1-14 (B) tailings or wastes, other than naturally
1-15 occurring radioactive material, produced by or resulting from the
1-16 extraction or concentration of uranium or thorium from ore
1-17 processed primarily for its source material content, including
1-18 discrete surface wastes resulting from uranium solution extraction
1-19 processes, and other tailings having similar radiological
1-20 characteristics.
1-21 (18) "Radioactive waste" means radioactive material,
1-22 other than by-product material defined by Subdivision (3)(B), <or>
1-23 uranium ore, or naturally occurring radioactive material having
2-1 similar radiological characteristics to by-product material defined
2-2 by Subsection (3)(B), that:
2-3 (A) is discarded or unwanted and is not exempt
2-4 by department rule adopted under Section 401.106; or
2-5 (B) would require processing before it could
2-6 have a beneficial reuse.
2-7 (24) "Naturally occurring radioactive material (NORM)"
2-8 means any nuclide that is radioactive in its natural physical state
2-9 (i.e., not man-made), but does not include source, by-product, or
2-10 special nuclear material.
2-11 (25) "NORM waste" means an oil and gas waste, as that
2-12 term is defined in Section 91.1011, Natural Resources Code, which
2-13 consists of, contains, or is contaminated with NORM.
2-14 SECTION 2. Subchapter G, Chapter 401, Health and Safety
2-15 Code, is amended to read as follows:
2-16 Sec. 401.261. Subchapter Application. <A reference in this
2-17 subchapter to by-product material includes only that by-product
2-18 material defined by Section 401.003(3)(B).>
2-19 (1) "By-product material" means:
2-20 (A) the by-product material as defined under Section
2-21 401.003(3), and
2-22 (B) For purposes of this subchapter only, by-product
2-23 material also includes naturally occurring radioactive material as
2-24 defined under Section 401.003(24) which is generated during the
2-25 exploration or production of oil, gas, or other minerals.
3-1 (2) "Commission" means the Texas Natural Resource
3-2 Conservation Commission.
3-3 (3) "Federal commission" means the United States Nuclear
3-4 Regulatory Commission.
3-5 (4) "Processing" means the storage, extraction of material,
3-6 transfer, volume reduction, compaction, or other separation
3-7 incidental to recovery of source material and disposal of
3-8 by-product material.
3-9 Sec. 401.262. Management of Certain By-Product Material.
3-10 The commission <department> shall assure that by-product material
3-11 is processed <managed> in compliance with the federal commission's
3-12 applicable standards.
3-13 Sec. 401.2625. Licensing Authority. The commission
3-14 <commissioner> shall grant, deny, renew, revoke, suspend, amend,
3-15 modify, or withdraw licenses for source material <uranium> recovery
3-16 and processing, including the disposal and processing of by-product
3-17 material <uranium mill tailings>.
3-18 Sec. 401.263. Application; Environmental Analysis. (a) If
3-19 the commission <department> is considering the issuance, <or>
3-20 renewal, amendment, or modification of a license to process
3-21 materials that produce by-product materials and determines that the
3-22 licensed activity <license> will have a significant impact on the
3-23 human environment, the commission <department> shall prepare or
3-24 have prepared a written environmental analysis.
3-25 (b) the analysis must include:
4-1 (1) an assessment of the radiological and
4-2 nonradiological effects of the licensed activity on the public
4-3 health;
4-4 (2) an assessment of any effect of the licensed
4-5 activity on a waterway or groundwater;
4-6 (3) consideration of alternatives to the licensed
4-7 activity, including alternative sites and engineering methods; and
4-8 (4) consideration of decommissioning, decontamination,
4-9 reclamation, and other long-term effects associated with a licensed
4-10 activity, including processing <management> of by-product material.
4-11 (c) The commission <department> shall give notice of the
4-12 analysis as provided by agency rule and shall make the analysis
4-13 available to the public for written comment not later than the 31st
4-14 day before the date of the hearing on the license.
4-15 (d) After notice is given, the commission <department> shall
4-16 provide an opportunity for written comments by persons affected.
4-17 (e) The analysis shall be included as part of the record of
4-18 the commission's <department's> proceedings.
4-19 (f) The commission <department> shall prohibit major
4-20 construction with respect to an activity that is to be licensed
4-21 until the requirements of Subsections (a), (b), (c), and (e) are
4-22 completed.
4-23 Sec. 401.264. Notice and Hearing. (a) The commission
4-24 <department> on its own motion may, or on the written request of a
4-25 person affected shall, provide an opportunity for a public hearing
5-1 on an application over which the commission has jurisdiction
5-2 <environmental analysis> to determine whether to issue, <or> renew,
5-3 or amend a license to process materials that produce by-product
5-4 materials in the manner provided by the Administrative Procedure
5-5 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
5-6 Statutes), and permit appearances with or without counsel and the
5-7 examination and cross-examination of witnesses under oath.
5-8 (b) A person affected may become a party to a proceeding on
5-9 a determination that the person possesses a justiciable interest in
5-10 the result of the proceeding.
5-11 (c) The commission <department> shall make a record of the
5-12 proceedings and provide a transcript of the hearing on request of,
5-13 and payment for, the transcript or provision of a sufficient
5-14 deposit to assure payment by any person requesting the transcript.
5-15 (d) The commission <department> shall provide an opportunity
5-16 to obtain a written determination of action to be taken. The
5-17 determination must be based on evidence presented to the commission
5-18 and include findings. The written determination is available to
5-19 the public.
5-20 (e) The determination is subject to judicial review in the
5-21 district court of Travis County.
5-22 Sec. 401.265. Conditions of By-Product Material Licenses.
5-23 The commission <department> shall prescribe conditions in a
5-24 radioactive material license issued, <or> renewed, amended, or
5-25 modified for an activity that results in production of by-product
6-1 material to minimize or, if possible, eliminate the need for
6-2 long-term maintenance and monitoring before the termination of the
6-3 license, including conditions that:
6-4 (1) the license holder will comply with the applicable
6-5 decontamination, decommissioning, reclamation, and disposal
6-6 standards that are prescribed by the <board> commission and that
6-7 are equivalent to or more stringent than the federal commission's
6-8 standards for sites at which those ores were processed and at which
6-9 the by-product material is deposited; and
6-10 (2) the ownership of a disposal site, other than a
6-11 disposal well covered by a permit issued under Chapter 27, Water
6-12 Code, and the by-product material resulting from the licensed
6-13 activity are transferred, subject to Sections 401.266-401.269, to:
6-14 (A) the state; or
6-15 (B) the federal government if the state declines
6-16 to acquire the site, the by-product material, or both the site and
6-17 the by-product material.
6-18 Sec. 401.266. Transfer of Land Required. (a) The
6-19 commission <board> by rule or <may require or the department> by
6-20 order may require that before a license covering land used for the
6-21 disposal of by-product material is terminated, the land, including
6-22 any affected interests in the land, must be transferred to the
6-23 federal government or to the state unless:
6-24 (1) the federal commission determines before the
6-25 license terminates that the transfer of title to the land and the
7-1 by-product material is unnecessary to protect the public health,
7-2 safety, or welfare or to minimize danger to life or property; or
7-3 (2) the land is held in trust by the federal
7-4 government for an Indian tribe, is owned by an Indian tribe subject
7-5 to a restriction against alienation imposed by the federal
7-6 government, is owned by the federal government, or is owned by the
7-7 state.
7-8 (b) By-product material transferred to the state under this
7-9 section shall be transferred without cost to the state<, other than
7-10 administrative and legal costs incurred in making the transfer.>
7-11 Sec. 401.267. Acquisition of Certain By-Product Materials
7-12 and Sites. The commission <department> may acquire by-product
7-13 material and fee simple title in land, affected mineral rights, and
7-14 buildings at which that by-product material is disposed of and
7-15 abandoned so that the by-product material and property can be
7-16 managed in a manner consistent with protecting public health,
7-17 safety, and the environment.
7-18 Sec. 401.268. Liability. The transfer of title to
7-19 by-product material, land, and buildings under Section 401.267 does
7-20 not relieve a license holder of liability for <fraudulent or
7-21 negligent> acts performed before the transfer.
7-22 Sec. 401.269. Monitoring, Maintenance, and Emergency
7-23 Measures. (a) The commission <department> may undertake
7-24 monitoring, maintenance, and emergency measures in connection with
7-25 by-product material and property for which it has assumed custody
8-1 under Section 401.267 that are necessary to protect the public
8-2 health and safety and the environment.
8-3 (b) The commission <department> shall maintain the
8-4 by-product material and property transferred to it in a manner that
8-5 will protect the public health and safety and the environment.
8-6 Sec. 401.270. Corrective Action and Measures. (a) If the
8-7 commission <department> finds that by-product material or the
8-8 operation by which that by-product material is derived threatens
8-9 the public health and safety or <and> the environment <and that the
8-10 license holder is unable to correct or remove the threat,> the
8-11 commission <department> by order may require any action, including
8-12 a corrective measure, that is necessary to correct or remove the
8-13 threat.
8-14 (b) The commission may issue an emergency order to a person
8-15 responsible for an activity, including a past activity, concerning
8-16 the recovery and processing of source material or disposal and
8-17 processing of by-product material if it appears that there is an
8-18 actual or threatened release of source material or by-product
8-19 material that presents an imminent and substantial endangerment to
8-20 the public health and safety or the environment, regardless of
8-21 whether the activity was lawful at the time. The emergency order
8-22 may be issued without notice or hearing.
8-23 (c) An emergency order may be issued under Subsection (b)
8-24 to:
8-25 (1) restrain the person from allowing or continuing
9-1 the release or threatened release; and
9-2 (2) require the person to take any action necessary to
9-3 provide and implement an environmentally sound remedial action plan
9-4 designed to eliminate the release or threatened release.
9-5 (d) An emergency order issued under Subsection (b) shall:
9-6 (1) be delivered to the person identified by the order
9-7 by certified mail, return receipt requested;
9-8 (2) be delivered by hand delivery to the person
9-9 identified by the order; or
9-10 (3) on failure of delivery of the order by certified
9-11 mail or hand delivery, be served on the person by publication;
9-12 (A) once in the Texas Register; and
9-13 (B) once in a newspaper of general circulation
9-14 in each county in which a person identified by the order had the
9-15 person's last known address.
9-16 (e) The commission <department> shall use the security
9-17 provided by the license holder to pay the costs of actions that are
9-18 taken or that are to be taken under this section. The commission
9-19 <department> shall send to the comptroller a copy of its order
9-20 together with necessary written requests authorizing the
9-21 comptroller to:
9-22 (1) enforce security provided by the licensee;
9-23 (2) convert an amount of security into cash, as
9-24 necessary; and
9-25 (3) disburse from the security in the fund the amount
10-1 necessary to pay the costs.
10-2 SECTION 3. Section 401.412, Health and Safety Code, is
10-3 amended to read as follows:
10-4 Sec. 401.412. Commission Licensing Authority.
10-5 (a) Notwithstanding any other provision of this chapter and
10-6 subject to Section 401.102, the Texas Natural Resource Conservation
10-7 Commission has sole authority to directly regulate, and to grant,
10-8 deny, renew, revoke, suspend, amend, modify or withdraw <issue>
10-9 licenses to any person for, the disposal of any radioactive
10-10 substances.
10-11 (b) Notwithstanding any other provision of this chapter, the
10-12 Texas Natural Resource Conservation Commission has the sole
10-13 authority to grant, deny, renew, revoke, suspend, amend, modify or
10-14 withdraw licenses to any person for the recovery and processing of
10-15 source material, including the disposal and processing of
10-16 by-product material pursuant to Subchapter G.
10-17 (c) The Texas Natural Resource Conservation Commission may
10-18 adopt any rules and guidelines reasonably necessary to exercise its
10-19 authority under this section. In adopting rules and guidelines,
10-20 the Texas Natural Resource Conservation Commission shall consider
10-21 the compatibility of those rules and guidelines with federal
10-22 regulatory programs and the rules and guidelines of the Texas Board
10-23 of Health. Guidelines adopted under this provision may not exceed
10-24 the requirements of Commission rules and such guidelines shall not
10-25 be effective until 60 days after publication of the guidelines in
11-1 the Texas Register.
11-2 (d) The Texas Natural Resource Conservation Commission may
11-3 assess and collect an annual fee for each license and registration
11-4 and for each application in an amount sufficient to recover its
11-5 reasonable costs to administer its authority under this chapter.
11-6 (e) The Texas Natural Resource Conservation Commission may
11-7 set and collect an annual fee from the operator of each nuclear
11-8 reactor or other fixed nuclear facility in the state that uses
11-9 special nuclear material. The amount of the fees collected may not
11-10 exceed the actual expenses that arise from emergency response
11-11 activities, including training.
11-12 (f) The Texas Natural Resource Conservation Commission shall
11-13 establish by rule the amounts appropriate for the fees collected
11-14 under this section. The fees collected under this section shall be
11-15 deposited into the Radioactive Substance Fee Fund and
11-16 reappropriated for use by the commission for expenses incurred by
11-17 the commission in administering the provisions of this chapter.
11-18 SECTION 4. Chapter 401, Health and Safety Code, is amended
11-19 by adding Section 401.416 to read as follows:
11-20 Section 401.416. OIL AND GAS NORM WASTE DISPOSAL. Disposal
11-21 of NORM waste is subject to all requirements of Subchapter G
11-22 applicable to disposal of by-product material, except that disposal
11-23 of such NORM waste by persons owning or operating a site that has
11-24 or is generating NORM waste shall not be subject to the
11-25 requirements of Subchapter G if that NORM waste is disposed at
12-1 properties owned or operated by that person. Disposal on such
12-2 properties shall be subject to applicable regulations, standards
12-3 and permitting requirements for disposal of NORM waste on
12-4 properties or in wells owned or operated by that person.
12-5 SECTION 5. EFFECTIVE DATE. This Act takes effect on
12-6 September 1, 1993.
12-7 SECTION 6. TRANSFER OF AUTHORITY; TRANSITION. (a) On
12-8 September 1, 1993, the powers, duties, obligations, functions, and
12-9 activities of the Texas Board of Health and the Texas Department of
12-10 Health or the officers or employees of those agencies assigned by
12-11 Chapter 401, Health and Safety Code, as it relates to the licensing
12-12 and regulation of source material recovery and processing,
12-13 including the disposal and processing of by-product material, are
12-14 transferred to the Texas Natural Resource Conservation Commission.
12-15 (b) All personnel, equipment, data, documents, facilities,
12-16 and other items of the Texas Department of Health pertaining to the
12-17 licensing and regulation of source material recovery and
12-18 processing, including the disposal and processing of by-product
12-19 material, are transferred to the Texas Natural Resource
12-20 Conservation Commission.
12-21 (c) All appropriations to the Texas Department of Health
12-22 pertaining to the licensing and regulation of source material
12-23 recovery and processing, including the disposal and processing of
12-24 by-product material, are automatically transferred to the Texas
12-25 Natural Resource Conservation Commission.
13-1 (d) The Texas Natural Resource Conservation Commission is
13-2 the successor to the Texas Department of Health for the enforcement
13-3 of laws pertaining to the licensing and regulation of source
13-4 material recovery and processing, including the disposal and
13-5 processing of by-product material, and shall carry out those
13-6 duties, responsibilities, functions, and activities as provided by
13-7 law, including Acts of the 73rd Legislature.
13-8 (e) The transfer of duties from the Texas Board of Health
13-9 and the Texas Department of Health does not affect or impair any
13-10 act done or obligation, right, license, permit, substantive rule,
13-11 criterion, standard, requirement, or penalty accrued or existing
13-12 under former law, and that law remains in effect for any action
13-13 concerning such obligation, right, license, permit, substantive
13-14 rule, criterion, standard, requirement, or penalty. An action
13-15 brought or proceeding commenced before the effective date of this
13-16 Act is governed by the rules applicable to the action or proceeding
13-17 before the effective date of this Act. In this subsection, "action
13-18 or proceeding" includes a contested case commenced before the
13-19 effective date of this Act and an action or proceeding remanded to
13-20 the Texas Department of Health by a reviewing court before the
13-21 effective date of this Act.
13-22 SECTION 7. The importance of this legislation and the
13-23 crowded condition of the calendars in both houses create an
13-24 emergency and an imperative public necessity that the
13-25 constitutional rule requiring bills to be read on three several
14-1 days in each house be suspended, and this rule is hereby suspended.