By:  Parker                                           S.B. No. 1043
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the regulation of radioactive source material recovery,
    1-2  processing, and disposal activities and establishing and
    1-3  appropriating fees.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subchapter G, Chapter 401, Health and Safety
    1-6  Code, is amended to read as follows:
    1-7   SUBCHAPTER G.  SPECIAL PROVISIONS CONCERNING BY-PRODUCT MATERIAL
    1-8        Sec. 401.261.  SUBCHAPTER APPLICATION.  In <A reference in>
    1-9  this subchapter:
   1-10              (1)  "By-product material" does not include <to by
   1-11  product material includes only> that by-product material defined by
   1-12  Section 401.003(3)(A) <401.003(3)(B)>.
   1-13              (2)  "Commission" means the Texas Natural Resource
   1-14  Conservation Commission.
   1-15              (3)  "Federal commission" means the United States
   1-16  Nuclear Regulatory Commission.
   1-17              (4)  "Processing" means the storage, extraction of
   1-18  material, transfer, volume reduction, compaction, or other
   1-19  separation incidental to recovery of source material.
   1-20        Sec. 401.262.  MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
   1-21  The commission <department> shall assure that by-product material
   1-22  is managed in compliance with the federal commission's applicable
   1-23  standards.
    2-1        Sec. 401.2625.  LICENSING AUTHORITY.  The commission
    2-2  <commissioner> shall grant, deny, renew, revoke, suspend, amend, or
    2-3  withdraw licenses for source material <uranium> recovery and
    2-4  processing, including the disposal of by-product material <uranium
    2-5  mill tailings>.
    2-6        Sec. 401.263.  APPLICATION; ENVIRONMENTAL ANALYSIS.  (a)  If
    2-7  the commission <department> is considering the issuance, <or>
    2-8  renewal, or amendment of a license to process materials that
    2-9  produce by-product materials and determines that the licensed
   2-10  activity <license> will have a significant impact on the human
   2-11  environment, the commission <department> shall prepare or have
   2-12  prepared a written environmental analysis.
   2-13        (b)  The analysis must include:
   2-14              (1)  an assessment of the radiological and
   2-15  nonradiological effects of the licensed activity on the public
   2-16  health;
   2-17              (2)  an assessment of any effect of the licensed
   2-18  activity on a waterway or groundwater;
   2-19              (3)  consideration of alternatives to the licensed
   2-20  activity, including alternative sites and engineering methods; and
   2-21              (4)  consideration of decommissioning, decontamination,
   2-22  reclamation, and other long-term effects associated with a licensed
   2-23  activity, including management of by-product material.
   2-24        (c)  The commission <department> shall give notice of the
   2-25  analysis as provided by agency rule and shall make the analysis
    3-1  available to the public for written comment not later than the 31st
    3-2  day before the date of the hearing on the license.
    3-3        (d)  After notice is given, the commission <department> shall
    3-4  provide an opportunity for written comments by persons affected.
    3-5        (e)  The analysis shall be included as part of the record of
    3-6  the commission's <department's> proceedings.
    3-7        (f)  The commission <department> shall prohibit major
    3-8  construction with respect to an activity that is to be licensed
    3-9  until the requirements of Subsections (a), (b), (c), and (e) are
   3-10  completed.
   3-11        Sec. 401.264.  Notice and Hearing.  (a)  The commission on
   3-12  its own motion may or on the written request of a person affected
   3-13  <department> shall provide an opportunity for a public hearing on
   3-14  an application over which the commission has jurisdiction
   3-15  <environmental analysis> to determine whether to issue, <or> renew,
   3-16  or amend a license to process materials that produce by-product
   3-17  materials in the manner provided by the Administrative Procedure
   3-18  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   3-19  Statutes), and permit appearances with or without counsel and the
   3-20  examination and cross-examination of witnesses under oath.
   3-21        (b)  A person affected may become a party to a proceeding on
   3-22  a determination that the person possesses a justiciable interest in
   3-23  the result of the proceeding.
   3-24        (c)  The commission <department> shall make a record of the
   3-25  proceedings and provide a transcript of the hearing on request of,
    4-1  and payment for, the transcript or provision of a sufficient
    4-2  deposit to assure payment by any person requesting the transcript.
    4-3        (d)  The commission <department> shall provide an opportunity
    4-4  to obtain a written determination of action to be taken.  The
    4-5  determination must be based on evidence presented to the commission
    4-6  <department> and include findings.  The written determination is
    4-7  available to the public.
    4-8        (e)  The determination is subject to judicial review in a
    4-9  district court of Travis County.
   4-10        Sec. 401.265.  Conditions of Certain By-Product Material
   4-11  Licenses.  The commission <department> shall prescribe conditions
   4-12  in a radioactive material license issued, <or> renewed, or amended
   4-13  for an activity that results in production of by-product material
   4-14  to minimize or, if possible, eliminate the need for long-term
   4-15  maintenance and monitoring before the termination of the license,
   4-16  including conditions that:
   4-17              (1)  the license holder will comply with the applicable
   4-18  decontamination, decommissioning, reclamation, and disposal
   4-19  standards that are prescribed by the board or commission and that
   4-20  are equivalent to or more stringent than the federal commission's
   4-21  standards for sites at which those ores were processed and at which
   4-22  the by-product material is deposited; and
   4-23              (2)  the ownership of a disposal site, other than a
   4-24  disposal well covered by a permit issued under Chapter 27, Water
   4-25  Code, and the by-product material resulting from the licensed
    5-1  activity are transferred, subject to Sections 401.266-401.269, to:
    5-2                    (A)  the state; or
    5-3                    (B)  the federal government if the state declines
    5-4  to acquire the site, the by-product material, or both the site and
    5-5  the by-product material.
    5-6        Sec. 401.266.  Transfer of Land Required.  (a)  The
    5-7  commission <board> by rule or <may require or the department> by
    5-8  order may require that before a license covering land used for the
    5-9  disposal of by-product material is terminated, the land, including
   5-10  any affected interests in the land, must be transferred to the
   5-11  federal government or to the state unless:
   5-12              (1)  the federal commission determines before the
   5-13  license terminates that the transfer of title to the land and the
   5-14  by-product material is unnecessary to protect the public health,
   5-15  safety, or welfare or to minimize danger to life or property; or
   5-16              (2)  the land is held in trust by the federal
   5-17  government for an Indian tribe, is owned by an Indian tribe subject
   5-18  to a restriction against alienation imposed by the federal
   5-19  government, is owned by the federal government, or is owned by the
   5-20  state.
   5-21        (b)  By-product material transferred to the state under this
   5-22  section shall be transferred without cost to the state<, other than
   5-23  administrative and legal costs incurred in making the transfer>.
   5-24        Sec. 401.267.  ACQUISITION OF CERTAIN BY-PRODUCT MATERIALS
   5-25  AND SITES.  The commission <department> may acquire by-product
    6-1  material and fee simple title in land, affected mineral rights, and
    6-2  buildings at which that by-product material is disposed of and
    6-3  abandoned so that the by-product material and property can be
    6-4  managed in a manner consistent with protecting public health,
    6-5  safety, and the environment.
    6-6        Sec. 401.268.  LIABILITY.  The transfer of the title to
    6-7  by-product material, land, and buildings under Section 401.267 does
    6-8  not relieve a license holder of liability for <fraudulent or
    6-9  negligent> acts performed before the transfer.
   6-10        Sec. 401.269.  MONITORING, MAINTENANCE, AND EMERGENCY
   6-11  MEASURES.  (a)  The commission <department> may undertake
   6-12  monitoring, maintenance, and emergency measures in connection with
   6-13  by-product material and property for which it has assumed custody
   6-14  under Section 401.267 that are necessary to protect the public
   6-15  health and safety and the environment.
   6-16        (b)  The commission <department> shall maintain the
   6-17  by-product material and property transferred to it in a manner that
   6-18  will protect the public health and safety and the environment.
   6-19        Sec. 401.270.  Corrective Action and Measures.  (a)  If the
   6-20  commission <department> finds that by-product material or the
   6-21  operation by which that by-product material is derived threatens
   6-22  the public health and safety or <and> the environment <and that the
   6-23  license holder is unable to correct or remove the threat>, the
   6-24  commission <department> by order may require any action, including
   6-25  a corrective measure, that is necessary to correct or remove the
    7-1  threat.
    7-2        (b)  The commission may issue an emergency order to a person
    7-3  responsible for an activity, including a past activity, concerning
    7-4  the recovery or processing of source material or the disposal of
    7-5  by-product material if it appears that there is an actual or
    7-6  threatened release of source material or by-product material that
    7-7  presents an imminent and substantial danger to the public health
    7-8  and safety or the environment, regardless of whether the activity
    7-9  was lawful at the time.  The emergency order may be issued without
   7-10  notice or hearing.
   7-11        (c)  An emergency order may be issued under Subsection (b)
   7-12  to:
   7-13              (1)  restrain the person from allowing or continuing
   7-14  the release or threatened release; and
   7-15              (2)  require the person to take any action necessary to
   7-16  provide and implement an environmentally sound remedial action plan
   7-17  designed to eliminate the release or threatened release.
   7-18        (d)  An emergency order issued under Subsection (b) shall:
   7-19              (1)  be delivered to the person identified by the order
   7-20  by certified mail, return receipt requested;
   7-21              (2)  be delivered by hand delivery to the person
   7-22  identified by the order; or
   7-23              (3)  on failure of delivery of the order by certified
   7-24  mail or hand delivery, be served on the person by publication:
   7-25                    (A)  once in the Texas Register; and
    8-1                    (B)  once in a newspaper of general circulation
    8-2  in each county in which was located the last known address of a
    8-3  person identified by the order.
    8-4        (e)  The commission <department> shall use the security
    8-5  provided by the license holder to pay the costs of actions that are
    8-6  taken or that are to be taken under this section.  The commission
    8-7  <department> shall send to the comptroller a copy of its order
    8-8  together with necessary written requests authorizing the
    8-9  comptroller to:
   8-10              (1)  enforce security supplied by the licensee;
   8-11              (2)  convert an amount of security into cash, as
   8-12  necessary; and
   8-13              (3)  disburse from the security in the fund the amount
   8-14  necessary to pay the costs.
   8-15        SECTION 2.  Section 401.412, Health and Safety Code, is
   8-16  amended to read as follows:
   8-17        Sec. 401.412.  COMMISSION LICENSING AUTHORITY.
   8-18  (a)  Notwithstanding any other provision of this chapter and
   8-19  subject to Section 401.102, the Texas Natural Resource Conservation
   8-20  Commission has sole authority to directly regulate and to grant,
   8-21  deny, renew, revoke, suspend, amend, or withdraw <issue> licenses
   8-22  for the disposal of radioactive substances.
   8-23        (b)  Notwithstanding any other provision of this chapter, the
   8-24  Texas Natural Resource Conservation Commission has the sole
   8-25  authority to grant, deny, renew, revoke, suspend, amend, or
    9-1  withdraw licenses for the recovery and processing of source
    9-2  material, including the disposal of by-product material.
    9-3        (c)  The Texas Natural Resource Conservation Commission may
    9-4  adopt any rules and guidelines reasonably necessary to exercise its
    9-5  authority under this section.  In adopting rules and guidelines,
    9-6  the Texas Natural Resource Conservation Commission shall consider
    9-7  the compatibility of those rules and guidelines with federal
    9-8  regulatory programs and the rules and guidelines of the Texas Board
    9-9  of Health.
   9-10        (d)  The Texas Natural Resource Conservation Commission may
   9-11  assess and collect an annual fee for each license and registration
   9-12  and for each application in an amount sufficient to recover its
   9-13  reasonable costs to administer its authority under this chapter.
   9-14        (e)  The Texas Natural Resource Conservation Commission may
   9-15  set and collect an annual fee from the operator of each nuclear
   9-16  reactor or other fixed nuclear facilities in the state that uses
   9-17  special nuclear material.  The amount of the fees collected may not
   9-18  exceed the actual expenses that arise from emergency response
   9-19  activities, including training.
   9-20        (f)  The Texas Natural Resource Conservation Commission shall
   9-21  establish by rule the amounts appropriate for the fees collected
   9-22  under this section.  The fees collected under this section shall be
   9-23  deposited in the radioactive substance fee fund and reappropriated
   9-24  for use by the commission for expenses incurred by the commission
   9-25  in administering the provisions of this chapter.
   10-1        SECTION 3.  This Act takes effect September 1, 1993.
   10-2        SECTION 4.  (a)  On September 1, 1993:
   10-3              (1)  the powers, duties, obligations, functions, and
   10-4  activities of the Texas Board of Health and the Texas Department of
   10-5  Health or the officers or employees of those agencies assigned by
   10-6  Chapter 401, Health and Safety Code, as it relates to the licensing
   10-7  and regulation of source material recovery and processing are
   10-8  transferred to the Texas Natural Resource Conservation Commission;
   10-9              (2)  all personnel, equipment, data, documents,
  10-10  facilities, and other items of the Texas Department of Health
  10-11  pertaining to the licensing and regulation of source material
  10-12  recovery and processing are transferred to the Texas Natural
  10-13  Resource Conservation Commission; and
  10-14              (3)  all appropriations to the Texas Department of
  10-15  Health pertaining to the licensing and regulation of source
  10-16  material recovery and processing are automatically transferred to
  10-17  the Texas Natural Resource Conservation Commission.
  10-18        (b)  The Texas Natural Resource Conservation Commission is
  10-19  the successor to the Texas Department of Health for the enforcement
  10-20  of laws pertaining to the licensing and regulation of source
  10-21  material recovery and processing and shall carry out those duties,
  10-22  responsibilities, functions, and activities as provided by law,
  10-23  including Acts of the 73rd Legislature.
  10-24        (c)  The transfer of duties from the Texas Board of Health
  10-25  and the Texas Department of Health does not affect or impair any
   11-1  act done or obligation, right, license, permit, substantive rule,
   11-2  criterion, standard, requirement, or penalty accrued or existing
   11-3  under former law, and that law remains in effect for any action
   11-4  concerning such obligation, right, license, permit, substantive
   11-5  rule, criterion, standard, requirement, or penalty.  An action
   11-6  brought or proceeding commenced before the effective date of this
   11-7  Act is governed by the rules applicable to the action or proceeding
   11-8  before the effective date of this Act.  In this subsection, "action
   11-9  or proceeding" includes a contested case commenced before the
  11-10  effective date of this Act and an action or proceeding remanded to
  11-11  the Texas Department of Health by a reviewing court before the
  11-12  effective date of this Act.
  11-13        SECTION 5.  The importance of this legislation and the
  11-14  crowded condition of the calendars in both houses create an
  11-15  emergency and an imperative public necessity that the
  11-16  constitutional rule requiring bills to be read on three several
  11-17  days in each house be suspended, and this rule is hereby suspended.