By: Brown S.B. No. 1857
A BILL TO BE ENTITLED
AN ACT
1-1 relating to transferring certain responsibilities of the Texas
1-2 Natural Resource Conservation Commission related to certain
1-3 radioactive materials to the Texas Department of Health.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subdivision (3), Section 401.003, Health and
1-6 Safety Code, is amended to read as follows:
1-7 (3) "By-product material" means:
1-8 (A) a radioactive material, other than special
1-9 nuclear material, that is produced in or made radioactive by
1-10 exposure to radiation incident to the process of producing or using
1-11 special nuclear material; and
1-12 (B) tailings or wastes produced by or resulting
1-13 from the extraction or concentration of uranium or thorium from ore
1-14 processed primarily for its source material content, including
1-15 discrete surface wastes resulting from uranium solution extraction
1-16 processes[, and other tailings having similar radiological
1-17 characteristics].
1-18 SECTION 2. Subsections (a) and (b), Section 401.011, Health
1-19 and Safety Code, are amended to read as follows:
1-20 (a) The department is the Texas Radiation Control Agency.
1-21 The department has jurisdiction over activities and substances
1-22 regulated under this chapter except as provided by Subsection (b)
1-23 and Subchapters F[, G,] and K.
2-1 (b) The commission has jurisdiction to regulate and
2-2 license[:]
2-3 [(1)] the disposal of radioactive substances except
2-4 by-product material defined by Section 401.003(3)(B)[; and]
2-5 [(2) the recovery and processing of source material].
2-6 SECTION 3. Subsection (b), Section 401.104, Health and
2-7 Safety Code, is amended to read as follows:
2-8 (b) The commission by rule shall provide for licensing for
2-9 the disposal of radioactive material except by-product material
2-10 defined by Section 401.003(3)(B). The department by rule shall
2-11 provide for licensing the disposal of by-product material defined
2-12 by Section 401.003(3)(B).
2-13 SECTION 4. Section 401.262, Health and Safety Code, is
2-14 amended to read as follows:
2-15 Sec. 401.262. MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
2-16 The department [commission] has sole and exclusive authority to
2-17 assure that processing and disposal sites are closed and that
2-18 by-product material is managed and disposed of in compliance with:
2-19 (1) the federal commission's applicable standards; and
2-20 (2) closure criteria the federal commission and the
2-21 United States Environmental Protection Agency have determined are
2-22 protective of human health and safety and the environment.
2-23 SECTION 5. Section 401.2625, Health and Safety Code, is
2-24 amended to read as follows:
2-25 Sec. 401.2625. LICENSING AUTHORITY. The commissioner
3-1 [commission] has sole and exclusive authority to grant, deny,
3-2 renew, revoke, suspend, amend, or withdraw licenses for source
3-3 material recovery and processing or[, including the] disposal of
3-4 by-product material.
3-5 SECTION 6. Subsections (a), (c), (d), (e), and (f), Section
3-6 401.263, Health and Safety Code, are amended to read as follows:
3-7 (a) If the department [commission] is considering the
3-8 issuance, renewal, or amendment of a license to process materials
3-9 that produce by-product materials or a license to dispose of
3-10 by-product material and the department determines that the licensed
3-11 activity will have a significant impact on the human environment,
3-12 the department [commission] shall prepare or have prepared a
3-13 written environmental analysis.
3-14 (c) The department [commission] shall give notice of the
3-15 analysis as provided by board [agency] rule and shall make the
3-16 analysis available to the public for written comment not later than
3-17 the 31st day before the date of the hearing on the license.
3-18 (d) After notice is given, the department [commission] shall
3-19 provide an opportunity for written comments by persons affected.
3-20 (e) The analysis shall be included as part of the record of
3-21 the department's [commission's] proceedings.
3-22 (f) The board by rule [commission] shall prohibit major
3-23 construction with respect to an activity that is to be licensed
3-24 until the requirements of Subsections (a), (b), (c), and (e) are
3-25 completed.
4-1 SECTION 7. Subsections (a), (c), and (d), Section 401.264,
4-2 Health and Safety Code, are amended to read as follows:
4-3 (a) The department [commission] on its own motion may or on
4-4 the written request of a person affected shall provide an
4-5 opportunity for a public hearing on an application over which the
4-6 department [commission] has jurisdiction to determine whether to
4-7 issue, renew, or amend a license to process materials that produce
4-8 by-product materials in the manner provided by Chapter 2001,
4-9 Government Code, and permit appearances with or without counsel and
4-10 the examination and cross-examination of witnesses under oath.
4-11 (c) The department [commission] shall make a record of the
4-12 proceedings and provide a transcript of the hearing on request of,
4-13 and payment for, the transcript or provision of a sufficient
4-14 deposit to assure payment by any person requesting the transcript.
4-15 (d) The department [commission] shall provide an opportunity
4-16 to obtain a written determination of action to be taken. The
4-17 determination must be based on evidence presented to the department
4-18 [commission] and include findings. The written determination is
4-19 available to the public.
4-20 SECTION 8. Section 401.265, Health and Safety Code, is
4-21 amended to read as follows:
4-22 Sec. 401.265. CONDITIONS OF CERTAIN BY-PRODUCT MATERIAL
4-23 LICENSES. The department [commission] shall prescribe conditions
4-24 in a radioactive material license issued, renewed, or amended for
4-25 an activity that results in production of by-product material to
5-1 minimize or, if possible, eliminate the need for long-term
5-2 maintenance and monitoring before the termination of the license,
5-3 including conditions that:
5-4 (1) the license holder will comply with the applicable
5-5 decontamination, decommissioning, reclamation, and disposal
5-6 standards that are prescribed by the board [or commission] and that
5-7 are compatible with [equivalent to or more stringent than] the
5-8 federal commission's standards for sites at which those ores were
5-9 processed and at which the by-product material is deposited; and
5-10 (2) the ownership of a disposal site, other than a
5-11 disposal well covered by a permit issued under Chapter 27, Water
5-12 Code, and the by-product material resulting from the licensed
5-13 activity are transferred, subject to Sections 401.266-401.269, to:
5-14 (A) the state; or
5-15 (B) the federal government if the state declines
5-16 to acquire the site, the by-product material, or both the site and
5-17 the by-product material.
5-18 SECTION 9. Subsection (a), Section 401.266, Health and
5-19 Safety Code, is amended to read as follows:
5-20 (a) The board [commission] by rule or [by] order or the
5-21 department by order may require that before a license covering land
5-22 used for the disposal of by-product material is terminated, the
5-23 land, including any affected interests in the land, must be
5-24 transferred to the federal government or to the state unless:
5-25 (1) the federal commission determines before the
6-1 license terminates that the transfer of title to the land and the
6-2 by-product material is unnecessary to protect the public health,
6-3 safety, or welfare or to minimize danger to life or property; or
6-4 (2) the land is held in trust by the federal
6-5 government for an Indian tribe, is owned by an Indian tribe subject
6-6 to a restriction against alienation imposed by the federal
6-7 government, is owned by the federal government, or is owned by the
6-8 state.
6-9 SECTION 10. Section 401.267, Health and Safety Code, is
6-10 amended to read as follows:
6-11 Sec. 401.267. ACQUISITION OF CERTAIN BY-PRODUCT MATERIALS
6-12 AND SITES. The department [commission] may acquire by-product
6-13 material and fee simple title in land, affected mineral rights, and
6-14 buildings at which that by-product material is disposed of and
6-15 abandoned so that the by-product material and property can be
6-16 managed in a manner consistent with protecting public health,
6-17 safety, and the environment.
6-18 SECTION 11. Section 401.269, Health and Safety Code, is
6-19 amended to read as follows:
6-20 Sec. 401.269. MONITORING, MAINTENANCE, AND EMERGENCY
6-21 MEASURES. (a) The department [commission] may undertake
6-22 monitoring, maintenance, and emergency measures in connection with
6-23 by-product material and property for which it has assumed custody
6-24 under Section 401.267 that are necessary to protect the public
6-25 health and safety and the environment.
7-1 (b) The department [commission] shall maintain the
7-2 by-product material and property transferred to it in a manner that
7-3 will protect the public health and safety and the environment.
7-4 SECTION 12. Subsections (a), (b), (e), and (f), Section
7-5 401.270, Health and Safety Code, are amended to read as follows:
7-6 (a) If the department [commission] finds that by-product
7-7 material or the operation by which that by-product material is
7-8 derived threatens the public health and safety or the environment,
7-9 the department [commission] by order may require any action,
7-10 including a corrective measure, that is necessary to correct or
7-11 remove the threat.
7-12 (b) The department [commission] may issue an emergency order
7-13 to a person responsible for an activity, including a past activity,
7-14 concerning the recovery or processing of source material or the
7-15 disposal of by-product material if it appears that there is an
7-16 actual or threatened release of source material or by-product
7-17 material that presents an imminent and substantial danger to the
7-18 public health and safety or the environment, regardless of whether
7-19 the activity was lawful at the time. The emergency order may be
7-20 issued without notice or hearing.
7-21 (e) The department [commission] shall use the security
7-22 provided by the license holder to pay the costs of actions that are
7-23 taken or that are to be taken under this section. The department
7-24 [commission] shall send to the comptroller a copy of its order
7-25 together with necessary written requests authorizing the
8-1 comptroller to:
8-2 (1) enforce security supplied by the licensee;
8-3 (2) convert an amount of security into cash, as
8-4 necessary; and
8-5 (3) disburse from the security in the fund the amount
8-6 necessary to pay the costs.
8-7 (f) If an [the] order issued by the department under
8-8 [commission pursuant to] this section is adopted without notice or
8-9 hearing, the order shall set a time, at least 10 but not more than
8-10 30 days following the date of issuance of the emergency order, and
8-11 a place for a hearing to be held in accordance with the rules of
8-12 the board [commission]. As a result of this hearing, the
8-13 department [commission] shall decide whether to affirm, modify, or
8-14 set aside the emergency order. All provisions of the emergency
8-15 order shall remain in force and effect during the pendency of the
8-16 hearing, unless otherwise altered by the department [commission].
8-17 SECTION 13. Subsections (a) and (b), Section 401.412, Health
8-18 and Safety Code, are amended to read as follows:
8-19 (a) Notwithstanding any other provision of this chapter and
8-20 subject to Sections [Section] 401.102 and 401.415, the commission
8-21 has sole and exclusive authority to directly regulate and to grant,
8-22 deny, renew, revoke, suspend, amend, or withdraw licenses for the
8-23 disposal of radioactive substances. In this subsection,
8-24 "radioactive substance" does not include by-product material as
8-25 defined by Section 401.003(3)(B).
9-1 (b) Notwithstanding any other provision of this chapter, the
9-2 commissioner [commission] has the sole and exclusive authority to
9-3 grant, deny, renew, revoke, suspend, amend, or withdraw licenses
9-4 for the recovery and processing of source material or[, including
9-5 the] disposal of by-product material under [pursuant to] Subchapter
9-6 G.
9-7 SECTION 14. Section 401.413, Health and Safety Code, is
9-8 amended to read as follows:
9-9 Sec. 401.413. COMMISSION DISPOSAL LICENSE REQUIRED. A
9-10 person required by another section of this chapter to obtain a
9-11 license for the disposal of a radioactive substance is required to
9-12 obtain the license from the commission and not from the department.
9-13 This section does not apply to a person required to obtain a
9-14 license for recovery or processing of source material or for
9-15 recovery, processing, or disposal of by-product material as defined
9-16 by Section 401.003(3)(B).
9-17 SECTION 15. (a) On the earlier of 30 days after the
9-18 effective date of this Act or September 1, 1997, the following
9-19 rights, powers, duties, obligations, functions, activities,
9-20 property, and programs are transferred to the Texas Department of
9-21 Health:
9-22 (1) all of the rights, powers, duties, obligations,
9-23 functions, and activities:
9-24 (A) that Chapter 401, Health and Safety Code,
9-25 assigns to the Texas Natural Resource Conservation Commission or to
10-1 the commission's officers or employees; and
10-2 (B) that are related to the licensing and
10-3 regulation of:
10-4 (i) radioactive source material recovery
10-5 and processing, including recovery, processing, and disposal of
10-6 by-product material as defined by Paragraph (B), Subdivision (3),
10-7 Section 401.003, Health and Safety Code; and
10-8 (ii) the long-term care of decommissioned
10-9 sites for the disposal of by-product material as defined by
10-10 Paragraph (B), Subdivision (3), Section 401.003, Health and Safety
10-11 Code;
10-12 (2) all equipment, information, documents, facilities,
10-13 and other property of the Texas Natural Resource Conservation
10-14 Commission pertaining to the licensing and regulation of:
10-15 (A) radioactive source material recovery and
10-16 processing, including recovery, processing, or disposal of
10-17 by-product material as defined by Paragraph (B), Subdivision (3),
10-18 Section 401.003, Health and Safety Code; or
10-19 (B) the long-term care of decommissioned sites
10-20 for the disposal of by-product material as defined by Paragraph
10-21 (B), Subdivision (3), Section 401.003, Health and Safety Code;
10-22 (3) all appropriations for the biennium that begins
10-23 September 1, 1997, made to the Texas Natural Resource Conservation
10-24 Commission for activities related to licensing and regulation of:
10-25 (A) radioactive source material recovery and
11-1 processing, including recovery, processing, or disposal of
11-2 by-product material as defined by Paragraph (B), Subdivision (3),
11-3 Section 401.003, Health and Safety Code; or
11-4 (B) the long-term care of decommissioned sites
11-5 for the disposal of by-product material as defined by Paragraph
11-6 (B), Subdivision (3), Section 401.003, Health and Safety Code; and
11-7 (4) the unexpended and unobligated balance of the
11-8 appropriations to the Texas Natural Resource Conservation
11-9 Commission for the biennium beginning September 1, 1995, for
11-10 activities described by Subdivision (3) of this subsection.
11-11 (b) Appropriations transferred under Subdivision (4) of
11-12 Subsection (a) of this section are transferred for the remainder of
11-13 the biennium.
11-14 (c) The Texas Department of Health may not charge a fee for
11-15 an application pending before the Texas Natural Resource
11-16 Conservation Commission on the date the transfer provided by
11-17 Subsection (a) of this section occurs.
11-18 (d) The Texas Department of Health is the successor to the
11-19 Texas Natural Resource Conservation Commission for the
11-20 administration and enforcement of laws related to licensing and
11-21 regulation of radioactive source material recovery and processing,
11-22 including recovery, processing, or disposal of by-product material
11-23 as defined by Paragraph (B), Subdivision (3), Section 401.003,
11-24 Health and Safety Code, and the licensing and regulation of
11-25 long-term care of decommissioned sites for the disposal of
12-1 by-product material as defined by Paragraph (B), Subdivision (3),
12-2 Section 401.003, Health and Safety Code. The Texas Department of
12-3 Health shall carry out those duties, responsibilities, functions,
12-4 and activities as provided by law, including Acts of the 75th
12-5 Legislature.
12-6 (e) The transfer of rights, powers, duties, obligations,
12-7 functions, activities, property, and programs from the Texas
12-8 Natural Resource Conservation Commission to the Texas Department of
12-9 Health made by this Act does not affect or impair any act done or
12-10 obligation, right, license, permit, requirement, or penalty accrued
12-11 or existing under the former law, and that law remains in effect
12-12 for the purposes of any action concerning such an act, obligation,
12-13 right, license, permit, requirement, or penalty. The Texas
12-14 Department of Health shall continue a proceeding of the Texas
12-15 Natural Resource Conservation Commission related to a program,
12-16 responsibility, duty, or function transferred by this Act,
12-17 including processing an application for a license or other
12-18 authorization or enforcing the requirements of Chapter 401, Health
12-19 and Safety Code, or a rule adopted under that chapter. Rules of
12-20 the Texas Natural Resource Conservation Commission related to a
12-21 right, power, duty, obligation, function, activity, or program
12-22 transferred to the Texas Department of Health by this Act are
12-23 enforceable as rules of the department until the department adopts
12-24 other rules. The Texas Department of Health shall make every
12-25 effort to consolidate and streamline the rules affecting a right,
13-1 power, duty, obligation, function, activity, or program transferred
13-2 by this Act to give concise and clear notice to the regulated
13-3 community of regulatory requirements.
13-4 (f) The Texas Department of Health shall provide an
13-5 opportunity for employees of the Texas Natural Resource
13-6 Conservation Commission who have performed duties for the
13-7 commission related to a right, power, duty, obligation, function,
13-8 activity, or program transferred by this Act to request to transfer
13-9 to the department's program. In making employment decisions, the
13-10 Texas Department of Health shall ensure that federal requirements
13-11 for engineering expertise are met by departmental employees and
13-12 shall consider the value of continuity in personnel staffing the
13-13 relevant programs. The Texas Department of Health shall consider
13-14 employing a person to ensure that ecological issues receive proper
13-15 attention.
13-16 (g) The Texas Natural Resource Conservation Commission and
13-17 the Texas Department of Health by interagency agreement or by
13-18 contract shall cooperate in preventing any delay that might be
13-19 caused by the transfer of property or personnel or a right, power,
13-20 duty, obligation, function, activity, or program made by this Act
13-21 in the closure certification program.
13-22 SECTION 16. The transfers made by this Act do not affect:
13-23 (1) the Texas Natural Resource Conservation
13-24 Commission's jurisdiction over the Texas Low-Level Radioactive
13-25 Waste Disposal Authority provided by Chapters 401 and 402, Health
14-1 and Safety Code;
14-2 (2) the United States Department of Transportation's
14-3 jurisdiction over or regulation of the shipping of low specific
14-4 activity material or uranium; or
14-5 (3) any matter that is the subject of litigation
14-6 pending on the effective date of this Act.
14-7 SECTION 17. In performing, exercising, or conducting a
14-8 right, power, duty, obligation, function, activity, or program
14-9 transferred by this Act, the Texas Department of Health shall, to
14-10 the extent feasible, apply standards of the United States Nuclear
14-11 Regulatory Commission until the department adopts relevant
14-12 standards.
14-13 SECTION 18. The Texas Department of Health shall ensure that
14-14 the fees the department assesses under Chapter 401, Health and
14-15 Safety Code, as amended by this Act, are sufficient to pay the
14-16 department's costs incurred under that chapter in conducting the
14-17 department's licensing and regulatory activities and issuing
14-18 closure certifications. If the department finds that the fees
14-19 adopted by the Texas Natural Resource Conservation Commission
14-20 generate more revenue than necessary to pay those costs, the
14-21 department shall refund to each person who paid a fee that was
14-22 increased during the 12 months preceding the effective date of this
14-23 Act an amount that represents that person's share of the excess fee
14-24 revenue.
14-25 SECTION 19. The importance of this legislation and the
15-1 crowded condition of the calendars in both houses create an
15-2 emergency and an imperative public necessity that the
15-3 constitutional rule requiring bills to be read on three several
15-4 days in each house be suspended, and this rule is hereby suspended,
15-5 and that this Act take effect and be in force from and after its
15-6 passage, and it is so enacted.