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