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
5-28 -------------------------------------------------------------------
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
5-36 -------------------------------------------------------------------