75R11097 JJT-D
By Chisum H.B. No. 3462
Substitute the following for H.B. No. 3462:
By Howard C.S.H.B. No. 3462
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to transferring certain responsibilities of the Texas
1-3 Natural Resource Conservation Commission related to certain
1-4 radioactive materials to the Texas Department of Health.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 401.011(a) and (b), Health and Safety
1-7 Code, are amended to read as follows:
1-8 (a) The department is the Texas Radiation Control Agency.
1-9 The department has jurisdiction over activities and substances
1-10 regulated under this chapter except as provided by Subsection (b)
1-11 and Subchapters F[, G,] and K.
1-12 (b) The commission has jurisdiction to regulate and
1-13 license[:]
1-14 [(1)] the disposal of radioactive substances except
1-15 by-product material defined by Section 401.003(3)(B)[; and]
1-16 [(2) the recovery and processing of source material].
1-17 SECTION 2. Section 401.104(b), Health and Safety Code, is
1-18 amended to read as follows:
1-19 (b) The commission by rule shall provide for licensing for
1-20 the disposal of radioactive material except by-product material
1-21 defined by Section 401.003(3)(B). The department by rule shall
1-22 provide for licensing the disposal of by-product material defined
1-23 by Section 401.003(3)(B).
1-24 SECTION 3. Section 401.262, Health and Safety Code, is
2-1 amended to read as follows:
2-2 Sec. 401.262. MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
2-3 The department [commission] has sole and exclusive authority to
2-4 assure that processing and disposal sites are closed and that
2-5 by-product material is managed and disposed of in compliance with:
2-6 (1) the federal commission's applicable standards; and
2-7 (2) closure criteria the federal commission and the
2-8 United States Environmental Protection Agency have determined are
2-9 protective of human health and safety and the environment.
2-10 SECTION 4. Section 401.2625, Health and Safety Code, is
2-11 amended to read as follows:
2-12 Sec. 401.2625. LICENSING AUTHORITY. The commissioner
2-13 [commission] has sole and exclusive authority to grant, deny,
2-14 renew, revoke, suspend, amend, or withdraw licenses for source
2-15 material recovery and processing or [, including the] disposal of
2-16 by-product material.
2-17 SECTION 5. Sections 401.263(a), (c), (d), (e), and (f),
2-18 Health and Safety Code, are amended to read as follows:
2-19 (a) If the department [commission] is considering the
2-20 issuance, renewal, or amendment of a license to process materials
2-21 that produce by-product materials or a license to dispose of
2-22 by-product material and the department determines that the licensed
2-23 activity will have a significant impact on the human environment,
2-24 the department [commission] shall prepare or have prepared a
2-25 written environmental analysis.
2-26 (c) The department [commission] shall give notice of the
2-27 analysis as provided by board [agency] rule and shall make the
3-1 analysis available to the public for written comment not later than
3-2 the 31st day before the date of the hearing on the license.
3-3 (d) After notice is given, the department [commission] 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 department's [commission's] proceedings.
3-7 (f) The board by rule [commission] 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 SECTION 6. Sections 401.264(a), (c), and (d), Health and
3-12 Safety Code, are amended to read as follows:
3-13 (a) The department [commission] on its own motion may or on
3-14 the written request of a person affected shall provide an
3-15 opportunity for a public hearing on an application over which the
3-16 department [commission] has jurisdiction to determine whether to
3-17 issue, renew, or amend a license to process materials that produce
3-18 by-product materials in the manner provided by Chapter 2001,
3-19 Government Code, and permit appearances with or without counsel and
3-20 the examination and cross-examination of witnesses under oath.
3-21 (c) The department [commission] shall make a record of the
3-22 proceedings and provide a transcript of the hearing on request of,
3-23 and payment for, the transcript or provision of a sufficient
3-24 deposit to assure payment by any person requesting the transcript.
3-25 (d) The department [commission] shall provide an opportunity
3-26 to obtain a written determination of action to be taken. The
3-27 determination must be based on evidence presented to the department
4-1 [commission] and include findings. The written determination is
4-2 available to the public.
4-3 SECTION 7. Section 401.265, Health and Safety Code, is
4-4 amended to read as follows:
4-5 Sec. 401.265. CONDITIONS OF CERTAIN BY-PRODUCT MATERIAL
4-6 LICENSES. The department [commission] shall prescribe conditions
4-7 in a radioactive material license issued, renewed, or amended for
4-8 an activity that results in production of by-product material to
4-9 minimize or, if possible, eliminate the need for long-term
4-10 maintenance and monitoring before the termination of the license,
4-11 including conditions that:
4-12 (1) the license holder will comply with the applicable
4-13 decontamination, decommissioning, reclamation, and disposal
4-14 standards that are prescribed by the board [or commission] and that
4-15 are compatible with [equivalent to or more stringent than] the
4-16 federal commission's standards for sites at which those ores were
4-17 processed and at which the by-product material is deposited; and
4-18 (2) the ownership of a disposal site, other than a
4-19 disposal well covered by a permit issued under Chapter 27, Water
4-20 Code, and the by-product material resulting from the licensed
4-21 activity are transferred, subject to Sections 401.266-401.269, to:
4-22 (A) the state; or
4-23 (B) the federal government if the state declines
4-24 to acquire the site, the by-product material, or both the site and
4-25 the by-product material.
4-26 SECTION 8. Section 401.266(a), Health and Safety Code, is
4-27 amended to read as follows:
5-1 (a) The board [commission] by rule or [by] order or the
5-2 department by order may require that before a license covering land
5-3 used for the disposal of by-product material is terminated, the
5-4 land, including any affected interests in the land, must be
5-5 transferred to the federal government or to the state unless:
5-6 (1) the federal commission determines before the
5-7 license terminates that the transfer of title to the land and the
5-8 by-product material is unnecessary to protect the public health,
5-9 safety, or welfare or to minimize danger to life or property; or
5-10 (2) the land is held in trust by the federal
5-11 government for an Indian tribe, is owned by an Indian tribe subject
5-12 to a restriction against alienation imposed by the federal
5-13 government, is owned by the federal government, or is owned by the
5-14 state.
5-15 SECTION 9. Section 401.267, Health and Safety Code, is
5-16 amended to read as follows:
5-17 Sec. 401.267. ACQUISITION OF CERTAIN BY-PRODUCT MATERIALS
5-18 AND SITES. The department [commission] may acquire by-product
5-19 material and fee simple title in land, affected mineral rights, and
5-20 buildings at which that by-product material is disposed of and
5-21 abandoned so that the by-product material and property can be
5-22 managed in a manner consistent with protecting public health,
5-23 safety, and the environment.
5-24 SECTION 10. Section 401.269, Health and Safety Code, is
5-25 amended to read as follows:
5-26 Sec. 401.269. MONITORING, MAINTENANCE, AND EMERGENCY
5-27 MEASURES. (a) The department [commission] may undertake
6-1 monitoring, maintenance, and emergency measures in connection with
6-2 by-product material and property for which it has assumed custody
6-3 under Section 401.267 that are necessary to protect the public
6-4 health and safety and the environment.
6-5 (b) The department [commission] shall maintain the
6-6 by-product material and property transferred to it in a manner that
6-7 will protect the public health and safety and the environment.
6-8 SECTION 11. Sections 401.270(a), (b), (e), and (f), Health
6-9 and Safety Code, are amended to read as follows:
6-10 (a) If the department [commission] finds that by-product
6-11 material or the operation by which that by-product material is
6-12 derived threatens the public health and safety or the environment,
6-13 the department [commission] by order may require any action,
6-14 including a corrective measure, that is necessary to correct or
6-15 remove the threat.
6-16 (b) The department [commission] may issue an emergency order
6-17 to a person responsible for an activity, including a past activity,
6-18 concerning the recovery or processing of source material or the
6-19 disposal of by-product material if it appears that there is an
6-20 actual or threatened release of source material or by-product
6-21 material that presents an imminent and substantial danger to the
6-22 public health and safety or the environment, regardless of whether
6-23 the activity was lawful at the time. The emergency order may be
6-24 issued without notice or hearing.
6-25 (e) The department [commission] shall use the security
6-26 provided by the license holder to pay the costs of actions that are
6-27 taken or that are to be taken under this section. The department
7-1 [commission] shall send to the comptroller a copy of its order
7-2 together with necessary written requests authorizing the
7-3 comptroller to:
7-4 (1) enforce security supplied by the licensee;
7-5 (2) convert an amount of security into cash, as
7-6 necessary; and
7-7 (3) disburse from the security in the fund the amount
7-8 necessary to pay the costs.
7-9 (f) If an [the] order issued by the department under
7-10 [commission pursuant to] this section is adopted without notice or
7-11 hearing, the order shall set a time, at least 10 but not more than
7-12 30 days following the date of issuance of the emergency order, and
7-13 a place for a hearing to be held in accordance with the rules of
7-14 the board [commission]. As a result of this hearing, the
7-15 department [commission] shall decide whether to affirm, modify, or
7-16 set aside the emergency order. All provisions of the emergency
7-17 order shall remain in force and effect during the pendency of the
7-18 hearing, unless otherwise altered by the department [commission].
7-19 SECTION 12. Sections 401.412(a) and (b), Health and Safety
7-20 Code, are amended to read as follows:
7-21 (a) Notwithstanding any other provision of this chapter and
7-22 subject to Sections [Section] 401.102 and 401.415, the commission
7-23 has sole and exclusive authority to directly regulate and to grant,
7-24 deny, renew, revoke, suspend, amend, or withdraw licenses for the
7-25 disposal of radioactive substances. In this subsection,
7-26 "radioactive substance" does not include by-product material as
7-27 defined by Section 401.003(3)(B).
8-1 (b) Notwithstanding any other provision of this chapter, the
8-2 commissioner [commission] has the sole and exclusive authority to
8-3 grant, deny, renew, revoke, suspend, amend, or withdraw licenses
8-4 for the recovery and processing of source material or [, including
8-5 the] disposal of by-product material under [pursuant to] Subchapter
8-6 G.
8-7 SECTION 13. Section 401.413, Health and Safety Code, is
8-8 amended to read as follows:
8-9 Sec. 401.413. COMMISSION DISPOSAL LICENSE REQUIRED. A
8-10 person required by another section of this chapter to obtain a
8-11 license for the disposal of a radioactive substance is required to
8-12 obtain the license from the commission and not from the department.
8-13 This section does not apply to a person required to obtain a
8-14 license for recovery or processing of source material or for
8-15 recovery, processing, or disposal of by-product material as defined
8-16 by Section 401.003(3)(B).
8-17 SECTION 14. (a) On the earlier of 30 days after the
8-18 effective date of this Act or September 1, 1997, the following
8-19 rights, powers, duties, obligations, functions, activities,
8-20 property, and programs are transferred to the Texas Department of
8-21 Health:
8-22 (1) all of the rights, powers, duties, obligations,
8-23 functions, and activities:
8-24 (A) that Chapter 401, Health and Safety Code,
8-25 assigns to the Texas Natural Resource Conservation Commission or to
8-26 the commission's officers or employees; and
8-27 (B) that are related to the licensing and
9-1 regulation of:
9-2 (i) radioactive source material recovery
9-3 and processing, including recovery, processing, and disposal of
9-4 by-product material as defined by Section 401.003(3)(B), Health and
9-5 Safety Code; and
9-6 (ii) the long-term care of decommissioned
9-7 sites for the disposal of by-product material as defined by Section
9-8 401.003(3)(B), Health and Safety Code;
9-9 (2) all equipment, information, documents, facilities,
9-10 and other property of the Texas Natural Resource Conservation
9-11 Commission pertaining to the licensing and regulation of:
9-12 (A) radioactive source material recovery and
9-13 processing, including recovery, processing, or disposal of
9-14 by-product material as defined by Section 401.003(3)(B), Health and
9-15 Safety Code; or
9-16 (B) the long-term care of decommissioned sites
9-17 for the disposal of by-product material as defined by Section
9-18 401.003(3)(B), Health and Safety Code;
9-19 (3) except as provided by Section 15 of this Act, all
9-20 appropriations for the biennium that begins September 1, 1997, made
9-21 to the Texas Natural Resource Conservation Commission for
9-22 activities related to licensing and regulation of:
9-23 (A) radioactive source material recovery and
9-24 processing, including recovery, processing, or disposal of
9-25 by-product material as defined by Section 401.003(3)(B), Health and
9-26 Safety Code; or
9-27 (B) the long-term care of decommissioned sites
10-1 for the disposal of by-product material as defined by Section
10-2 401.003(3)(B), Health and Safety Code; and
10-3 (4) the unexpended and unobligated balance of the
10-4 appropriations to the Texas Natural Resource Conservation
10-5 Commission for the biennium beginning September 1, 1995, for
10-6 activities described by Subdivision (3) of this subsection.
10-7 (b) Appropriations transferred under Subsection (a)(4) are
10-8 transferred for the remainder of the biennium.
10-9 (c) The Texas Department of Health may not charge a fee for
10-10 an application pending before the commission on the date the
10-11 transfer provided by Subsection (a) occurs.
10-12 (d) The Texas Department of Health is the successor to the
10-13 Texas Natural Resource Conservation Commission for the
10-14 administration and enforcement of laws related to licensing and
10-15 regulation of radioactive source material recovery and processing,
10-16 including recovery, processing, or disposal of by-product material
10-17 as defined by Section 401.003(3)(B), Health and Safety Code, and
10-18 the licensing and regulation of long-term care of decommissioned
10-19 sites for the disposal of by-product material as defined by Section
10-20 401.003(3)(B), Health and Safety Code. The Texas Department of
10-21 Health shall carry out those duties, responsibilities, functions,
10-22 and activities as provided by law, including Acts of the 75th
10-23 Legislature.
10-24 (e) The transfer of rights, powers, duties, obligations,
10-25 functions, activities, property, and programs from the Texas
10-26 Natural Resource Conservation Commission to the Texas Department of
10-27 Health made by this Act does not affect or impair any act done or
11-1 obligation, right, license, permit, requirement, or penalty accrued
11-2 or existing under the former law, and that law remains in effect
11-3 for the purposes of any action concerning such an act, obligation,
11-4 right, license, permit, requirement, or penalty. The Texas
11-5 Department of Health shall continue a proceeding of the Texas
11-6 Natural Resource Conservation Commission related to a program,
11-7 responsibility, duty, or function transferred by this Act,
11-8 including processing an application for a license or other
11-9 authorization or enforcing the requirements of Chapter 401, Health
11-10 and Safety Code, or a rule adopted under that chapter. Rules of the
11-11 Texas Natural Resource Conservation Commission related to a right,
11-12 power, duty, obligation, function, activity, or program transferred
11-13 to the Texas Department of Health by this Act are enforceable as
11-14 rules of the department until the department adopts other rules.
11-15 The Texas Department of Health shall make every effort to
11-16 consolidate and streamline the rules affecting a right, power,
11-17 duty, obligation, function, activity, or program transferred by
11-18 this Act to give concise and clear notice to the regulated
11-19 community of regulatory requirements.
11-20 (f) The Texas Department of Health shall provide an
11-21 opportunity for employees of the Texas Natural Resource
11-22 Conservation Commission who have performed duties for the
11-23 commission related to a right, power, duty, obligation, function,
11-24 activity, or program transferred by this Act to request to
11-25 transfer to the department's program. In making employment
11-26 decisions, the Texas Department of Health shall ensure that federal
11-27 requirements for engineering expertise are met by departmental
12-1 employees and shall consider the value of continuity in personnel
12-2 staffing the relevant programs. The Texas Department of Health
12-3 shall consider employing a person to ensure that ecological issues
12-4 receive proper attention.
12-5 (g) The Texas Natural Resource Conservation Commission and
12-6 the Texas Department of Health by interagency agreement or by
12-7 contract shall cooperate in preventing any delay that might be
12-8 caused by the transfer of property or personnel or a right, power,
12-9 duty, obligation, function, activity, or program made by this Act
12-10 in the closure certification program.
12-11 SECTION 15. Notwithstanding any other provision of this Act,
12-12 the Texas Natural Resource Conservation Commission shall continue
12-13 all activities related to the groundwater cleanup cooperative
12-14 agreement with the United States Department of Energy for the mill
12-15 tailing site at Falls City. All appropriations made for the
12-16 biennium beginning September 1, 1997, that pertain to the
12-17 commission's activities related to the mill tailing site at Falls
12-18 City remain appropriations to the commission and are not
12-19 transferred by Section 14 of this Act.
12-20 SECTION 16. The transfers made by this Act do not affect:
12-21 (1) the Texas Natural Resource Conservation
12-22 Commission's jurisdiction over the Low-Level Radioactive Waste
12-23 Disposal Authority provided by Chapters 401 and 402, Health and
12-24 Safety Code;
12-25 (2) the United States Department of Transportation's
12-26 jurisdiction over or regulation of the shipping of low specific
12-27 activity material or uranium; or
13-1 (3) any matter that is the subject of litigation
13-2 pending on the effective date of this Act.
13-3 SECTION 17. In performing, exercising, or conducting a
13-4 right, power, duty, obligation, function, activity, or program
13-5 transferred by this Act, the Texas Department of Health shall, to
13-6 the extent feasible, apply standards of the United States Nuclear
13-7 Regulatory Commission until the department adopts relevant
13-8 standards.
13-9 SECTION 18. The Texas Department of Health shall ensure that
13-10 the fees the department assesses under Chapter 401, Health and
13-11 Safety Code, as amended by this Act, are sufficient to pay the
13-12 department's costs incurred under that chapter in conducting the
13-13 department's licensing and regulatory activities and issuing
13-14 closure certifications. If the department finds that the fees
13-15 adopted by the Texas Natural Resource Conservation Commission
13-16 generate more revenue than necessary to pay those costs, the
13-17 department shall refund to each person who paid a fee that was
13-18 increased during the 12 months preceding the effective date of this
13-19 Act an amount that represents that person's share of the excess fee
13-20 revenue.
13-21 SECTION 19. The importance of this legislation and the
13-22 crowded condition of the calendars in both houses create an
13-23 emergency and an imperative public necessity that the
13-24 constitutional rule requiring bills to be read on three several
13-25 days in each house be suspended, and this rule is hereby suspended,
13-26 and that this Act take effect and be in force from and after its
13-27 passage, and it is so enacted.