1-1  By:  Parker                                           S.B. No. 1043
    1-2        (In the Senate - Filed March 12, 1993; March 15, 1993, read
    1-3  first time and referred to Committee on Natural Resources;
    1-4  April 1, 1993, reported favorably by the following vote:  Yeas 8,
    1-5  Nays 0; April 1, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Sims               x                               
    1-9        Truan              x                               
   1-10        Armbrister         x                               
   1-11        Barrientos                                     x   
   1-12        Bivins             x                               
   1-13        Brown              x                               
   1-14        Carriker           x                               
   1-15        Lucio              x                               
   1-16        Montford                                       x   
   1-17        Ratliff            x                               
   1-18        Shelley                                        x   
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the regulation of radioactive source material recovery,
   1-22  processing, and disposal activities and establishing and
   1-23  appropriating fees.
   1-24        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-25        SECTION 1.  Subchapter G, Chapter 401, Health and Safety
   1-26  Code, is amended to read as follows:
   1-27   SUBCHAPTER G.  SPECIAL PROVISIONS CONCERNING BY-PRODUCT MATERIAL
   1-28        Sec. 401.261.  SUBCHAPTER APPLICATION.  In <A reference in>
   1-29  this subchapter:
   1-30              (1)  "By-product material" does not include <to
   1-31  by-product material includes only> that by-product material defined
   1-32  by Section 401.003(3)(A) <401.003(3)(B)>.
   1-33              (2)  "Commission" means the Texas Natural Resource
   1-34  Conservation Commission.
   1-35              (3)  "Federal commission" means the United States
   1-36  Nuclear Regulatory Commission.
   1-37              (4)  "Processing" means the storage, extraction of
   1-38  material, transfer, volume reduction, compaction, or other
   1-39  separation incidental to recovery of source material.
   1-40        Sec. 401.262.  MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
   1-41  The commission <department> shall assure that by-product material
   1-42  is managed in compliance with the federal commission's applicable
   1-43  standards.
   1-44        Sec. 401.2625.  LICENSING AUTHORITY.  The commission
   1-45  <commissioner> shall grant, deny, renew, revoke, suspend, amend, or
   1-46  withdraw licenses for source material <uranium> recovery and
   1-47  processing, including the disposal of by-product material <uranium
   1-48  mill tailings>.
   1-49        Sec. 401.263.  APPLICATION; ENVIRONMENTAL ANALYSIS.  (a)  If
   1-50  the commission <department> is considering the issuance, <or>
   1-51  renewal, or amendment of a license to process materials that
   1-52  produce by-product materials and determines that the licensed
   1-53  activity <license> will have a significant impact on the human
   1-54  environment, the commission <department> shall prepare or have
   1-55  prepared a written environmental analysis.
   1-56        (b)  The analysis must include:
   1-57              (1)  an assessment of the radiological and
   1-58  nonradiological effects of the licensed activity on the public
   1-59  health;
   1-60              (2)  an assessment of any effect of the licensed
   1-61  activity on a waterway or groundwater;
   1-62              (3)  consideration of alternatives to the licensed
   1-63  activity, including alternative sites and engineering methods; and
   1-64              (4)  consideration of decommissioning, decontamination,
   1-65  reclamation, and other long-term effects associated with a licensed
   1-66  activity, including management of by-product material.
   1-67        (c)  The commission <department> shall give notice of the
   1-68  analysis as provided by agency rule and shall make the analysis
    2-1  available to the public for written comment not later than the 31st
    2-2  day before the date of the hearing on the license.
    2-3        (d)  After notice is given, the commission <department> shall
    2-4  provide an opportunity for written comments by persons affected.
    2-5        (e)  The analysis shall be included as part of the record of
    2-6  the commission's <department's> proceedings.
    2-7        (f)  The commission <department> shall prohibit major
    2-8  construction with respect to an activity that is to be licensed
    2-9  until the requirements of Subsections (a), (b), (c), and (e) are
   2-10  completed.
   2-11        Sec. 401.264.  Notice and Hearing.  (a)  The commission on
   2-12  its own motion may or on the written request of a person affected
   2-13  <department> shall provide an opportunity for a public hearing on
   2-14  an application over which the commission has jurisdiction
   2-15  <environmental analysis> to determine whether to issue, <or> renew,
   2-16  or amend a license to process materials that produce by-product
   2-17  materials in the manner provided by the Administrative Procedure
   2-18  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   2-19  Statutes), and permit appearances with or without counsel and the
   2-20  examination and cross-examination of witnesses under oath.
   2-21        (b)  A person affected may become a party to a proceeding on
   2-22  a determination that the person possesses a justiciable interest in
   2-23  the result of the proceeding.
   2-24        (c)  The commission <department> shall make a record of the
   2-25  proceedings and provide a transcript of the hearing on request of,
   2-26  and payment for, the transcript or provision of a sufficient
   2-27  deposit to assure payment by any person requesting the transcript.
   2-28        (d)  The commission <department> shall provide an opportunity
   2-29  to obtain a written determination of action to be taken.  The
   2-30  determination must be based on evidence presented to the commission
   2-31  <department> and include findings.  The written determination is
   2-32  available to the public.
   2-33        (e)  The determination is subject to judicial review in a
   2-34  district court of Travis County.
   2-35        Sec. 401.265.  Conditions of Certain By-Product Material
   2-36  Licenses.  The commission <department> shall prescribe conditions
   2-37  in a radioactive material license issued, <or> renewed, or amended
   2-38  for an activity that results in production of by-product material
   2-39  to minimize or, if possible, eliminate the need for long-term
   2-40  maintenance and monitoring before the termination of the license,
   2-41  including conditions that:
   2-42              (1)  the license holder will comply with the applicable
   2-43  decontamination, decommissioning, reclamation, and disposal
   2-44  standards that are prescribed by the board or commission and that
   2-45  are equivalent to or more stringent than the federal commission's
   2-46  standards for sites at which those ores were processed and at which
   2-47  the by-product material is deposited; and
   2-48              (2)  the ownership of a disposal site, other than a
   2-49  disposal well covered by a permit issued under Chapter 27, Water
   2-50  Code, and the by-product material resulting from the licensed
   2-51  activity are transferred, subject to Sections 401.266-401.269, to:
   2-52                    (A)  the state; or
   2-53                    (B)  the federal government if the state declines
   2-54  to acquire the site, the by-product material, or both the site and
   2-55  the by-product material.
   2-56        Sec. 401.266.  Transfer of Land Required.  (a)  The
   2-57  commission <board> by rule or <may require or the department> by
   2-58  order may require that before a license covering land used for the
   2-59  disposal of by-product material is terminated, the land, including
   2-60  any affected interests in the land, must be transferred to the
   2-61  federal government or to the state unless:
   2-62              (1)  the federal commission determines before the
   2-63  license terminates that the transfer of title to the land and the
   2-64  by-product material is unnecessary to protect the public health,
   2-65  safety, or welfare or to minimize danger to life or property; or
   2-66              (2)  the land is held in trust by the federal
   2-67  government for an Indian tribe, is owned by an Indian tribe subject
   2-68  to a restriction against alienation imposed by the federal
   2-69  government, is owned by the federal government, or is owned by the
   2-70  state.
    3-1        (b)  By-product material transferred to the state under this
    3-2  section shall be transferred without cost to the state<, other than
    3-3  administrative and legal costs incurred in making the transfer>.
    3-4        Sec. 401.267.  ACQUISITION OF CERTAIN BY-PRODUCT MATERIALS
    3-5  AND SITES.  The commission <department> may acquire by-product
    3-6  material and fee simple title in land, affected mineral rights, and
    3-7  buildings at which that by-product material is disposed of and
    3-8  abandoned so that the by-product material and property can be
    3-9  managed in a manner consistent with protecting public health,
   3-10  safety, and the environment.
   3-11        Sec. 401.268.  LIABILITY.  The transfer of the title to
   3-12  by-product material, land, and buildings under Section 401.267 does
   3-13  not relieve a license holder of liability for <fraudulent or
   3-14  negligent> acts performed before the transfer.
   3-15        Sec. 401.269.  MONITORING, MAINTENANCE, AND EMERGENCY
   3-16  MEASURES.  (a)  The commission <department> may undertake
   3-17  monitoring, maintenance, and emergency measures in connection with
   3-18  by-product material and property for which it has assumed custody
   3-19  under Section 401.267 that are necessary to protect the public
   3-20  health and safety and the environment.
   3-21        (b)  The commission <department> shall maintain the
   3-22  by-product material and property transferred to it in a manner that
   3-23  will protect the public health and safety and the environment.
   3-24        Sec. 401.270.  Corrective Action and Measures.  (a)  If the
   3-25  commission <department> finds that by-product material or the
   3-26  operation by which that by-product material is derived threatens
   3-27  the public health and safety or <and> the environment <and that the
   3-28  license holder is unable to correct or remove the threat>, the
   3-29  commission <department> by order may require any action, including
   3-30  a corrective measure, that is necessary to correct or remove the
   3-31  threat.
   3-32        (b)  The commission may issue an emergency order to a person
   3-33  responsible for an activity, including a past activity, concerning
   3-34  the recovery or processing of source material or the disposal of
   3-35  by-product material if it appears that there is an actual or
   3-36  threatened release of source material or by-product material that
   3-37  presents an imminent and substantial danger to the public health
   3-38  and safety or the environment, regardless of whether the activity
   3-39  was lawful at the time.  The emergency order may be issued without
   3-40  notice or hearing.
   3-41        (c)  An emergency order may be issued under Subsection (b)
   3-42  to:
   3-43              (1)  restrain the person from allowing or continuing
   3-44  the release or threatened release; and
   3-45              (2)  require the person to take any action necessary to
   3-46  provide and implement an environmentally sound remedial action plan
   3-47  designed to eliminate the release or threatened release.
   3-48        (d)  An emergency order issued under Subsection (b) shall:
   3-49              (1)  be delivered to the person identified by the order
   3-50  by certified mail, return receipt requested;
   3-51              (2)  be delivered by hand delivery to the person
   3-52  identified by the order; or
   3-53              (3)  on failure of delivery of the order by certified
   3-54  mail or hand delivery, be served on the person by publication:
   3-55                    (A)  once in the Texas Register; and
   3-56                    (B)  once in a newspaper of general circulation
   3-57  in each county in which was located the last known address of a
   3-58  person identified by the order.
   3-59        (e)  The commission <department> shall use the security
   3-60  provided by the license holder to pay the costs of actions that are
   3-61  taken or that are to be taken under this section.  The commission
   3-62  <department> shall send to the comptroller a copy of its order
   3-63  together with necessary written requests authorizing the
   3-64  comptroller to:
   3-65              (1)  enforce security supplied by the licensee;
   3-66              (2)  convert an amount of security into cash, as
   3-67  necessary; and
   3-68              (3)  disburse from the security in the fund the amount
   3-69  necessary to pay the costs.
   3-70        SECTION 2.  Section 401.412, Health and Safety Code, is
    4-1  amended to read as follows:
    4-2        Sec. 401.412.  COMMISSION LICENSING AUTHORITY.
    4-3  (a)  Notwithstanding any other provision of this chapter and
    4-4  subject to Section 401.102, the Texas Natural Resource Conservation
    4-5  Commission has sole authority to directly regulate and to grant,
    4-6  deny, renew, revoke, suspend, amend, or withdraw <issue> licenses
    4-7  for the disposal of radioactive substances.
    4-8        (b)  Notwithstanding any other provision of this chapter, the
    4-9  Texas Natural Resource Conservation Commission has the sole
   4-10  authority to grant, deny, renew, revoke, suspend, amend, or
   4-11  withdraw licenses for the recovery and processing of source
   4-12  material, including the disposal of by-product material.
   4-13        (c)  The Texas Natural Resource Conservation Commission may
   4-14  adopt any rules and guidelines reasonably necessary to exercise its
   4-15  authority under this section.  In adopting rules and guidelines,
   4-16  the Texas Natural Resource Conservation Commission shall consider
   4-17  the compatibility of those rules and guidelines with federal
   4-18  regulatory programs and the rules and guidelines of the Texas Board
   4-19  of Health.
   4-20        (d)  The Texas Natural Resource Conservation Commission may
   4-21  assess and collect an annual fee for each license and registration
   4-22  and for each application in an amount sufficient to recover its
   4-23  reasonable costs to administer its authority under this chapter.
   4-24        (e)  The Texas Natural Resource Conservation Commission may
   4-25  set and collect an annual fee from the operator of each nuclear
   4-26  reactor or other fixed nuclear facilities in the state that uses
   4-27  special nuclear material.  The amount of the fees collected may not
   4-28  exceed the actual expenses that arise from emergency response
   4-29  activities, including training.
   4-30        (f)  The Texas Natural Resource Conservation Commission shall
   4-31  establish by rule the amounts appropriate for the fees collected
   4-32  under this section.  The fees collected under this section shall be
   4-33  deposited in the radioactive substance fee fund and reappropriated
   4-34  for use by the commission for expenses incurred by the commission
   4-35  in administering the provisions of this chapter.
   4-36        SECTION 3.  This Act takes effect September 1, 1993.
   4-37        SECTION 4.  (a)  On September 1, 1993:
   4-38              (1)  the powers, duties, obligations, functions, and
   4-39  activities of the Texas Board of Health and the Texas Department of
   4-40  Health or the officers or employees of those agencies assigned by
   4-41  Chapter 401, Health and Safety Code, as it relates to the licensing
   4-42  and regulation of source material recovery and processing are
   4-43  transferred to the Texas Natural Resource Conservation Commission;
   4-44              (2)  all personnel, equipment, data, documents,
   4-45  facilities, and other items of the Texas Department of Health
   4-46  pertaining to the licensing and regulation of source material
   4-47  recovery and processing are transferred to the Texas Natural
   4-48  Resource Conservation Commission; and
   4-49              (3)  all appropriations to the Texas Department of
   4-50  Health pertaining to the licensing and regulation of source
   4-51  material recovery and processing are automatically transferred to
   4-52  the Texas Natural Resource Conservation Commission.
   4-53        (b)  The Texas Natural Resource Conservation Commission is
   4-54  the successor to the Texas Department of Health for the enforcement
   4-55  of laws pertaining to the licensing and regulation of source
   4-56  material recovery and processing and shall carry out those duties,
   4-57  responsibilities, functions, and activities as provided by law,
   4-58  including Acts of the 73rd Legislature.
   4-59        (c)  The transfer of duties from the Texas Board of Health
   4-60  and the Texas Department of Health does not affect or impair any
   4-61  act done or obligation, right, license, permit, substantive rule,
   4-62  criterion, standard, requirement, or penalty accrued or existing
   4-63  under former law, and that law remains in effect for any action
   4-64  concerning such obligation, right, license, permit, substantive
   4-65  rule, criterion, standard, requirement, or penalty.  An action
   4-66  brought or proceeding commenced before the effective date of this
   4-67  Act is governed by the rules applicable to the action or proceeding
   4-68  before the effective date of this Act.  In this subsection, "action
   4-69  or proceeding" includes a contested case commenced before the
   4-70  effective date of this Act and an action or proceeding remanded to
    5-1  the Texas Department of Health by a reviewing court before the
    5-2  effective date of this Act.
    5-3        SECTION 5.  The importance of this legislation and the
    5-4  crowded condition of the calendars in both houses create an
    5-5  emergency and an imperative public necessity that the
    5-6  constitutional rule requiring bills to be read on three several
    5-7  days in each house be suspended, and this rule is hereby suspended.
    5-8                               * * * * *
    5-9                                                         Austin,
   5-10  Texas
   5-11                                                         April 1, 1993
   5-12  Hon. Bob Bullock
   5-13  President of the Senate
   5-14  Sir:
   5-15  We, your Committee on Natural Resources to which was referred S.B.
   5-16  No. 1043, have had the same under consideration, and I am
   5-17  instructed to report it back to the Senate with the recommendation
   5-18  that it do pass and be printed.
   5-19                                                         Sims,
   5-20  Chairman
   5-21                               * * * * *
   5-22                               WITNESSES
   5-23                                                  FOR   AGAINST  ON
   5-24  ___________________________________________________________________
   5-25  Name:  Susan S. Ferguson                                       x
   5-26  Representing:  Tx Water Commission
   5-27  City:  Austin
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   5-29  Name:  C. D. Rao                                               x
   5-30  Representing:  Tx Water Commission
   5-31  City:  Austin
   5-32  -------------------------------------------------------------------
   5-33  Name:  Richard Allen Ratliff, P.E.                             x
   5-34  Representing:  Tx Dept of Health/Bur. Radia
   5-35  City:  Austin
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