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.