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.