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.

1-24           (b)  The commission has jurisdiction to regulate and

 2-1     license[:]

 2-2                 [(1)]  the disposal of radioactive substances except

 2-3     by-product material defined by Section 401.003(3)(B)[; and]

 2-4                 [(2)  the recovery and processing of source material].

 2-5           SECTION 3.  Subsection (b), Section 401.104, Health and

 2-6     Safety Code, is amended to read as follows:

 2-7           (b)  The commission by rule shall provide for licensing for

 2-8     the disposal of radioactive material except by-product material

 2-9     defined by Section 401.003(3)(B).  The department by rule shall

2-10     provide for licensing the disposal of by-product material defined

2-11     by Section 401.003(3)(B).

2-12           SECTION 4.  Section 401.262, Health and Safety Code, is

2-13     amended to read as follows:

2-14           Sec. 401.262.  MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.

2-15     The department [commission] has sole and exclusive authority to

2-16     assure that processing and disposal sites are closed and that

2-17     by-product material is managed and disposed of in compliance with:

2-18                 (1)  the federal commission's applicable standards; and

2-19                 (2)  closure criteria the federal commission and the

2-20     United States Environmental Protection Agency have determined are

2-21     protective of human health and safety and the environment.

2-22           SECTION 5.  Section 401.2625, Health and Safety Code, is

2-23     amended to read as follows:

2-24           Sec. 401.2625.  LICENSING AUTHORITY.  The commissioner

2-25     [commission] has sole and exclusive authority to grant, deny,

2-26     renew, revoke, suspend, amend, or withdraw licenses for source

2-27     material recovery and processing or[, including the] disposal of

 3-1     by-product material.

 3-2           SECTION 6.  Subsections (a), (c), (d), (e), and (f), Section

 3-3     401.263, Health and Safety Code, are amended to read as follows:

 3-4           (a)  If the department [commission] is considering the

 3-5     issuance, renewal, or amendment of a license to process materials

 3-6     that produce by-product materials or a license to dispose of

 3-7     by-product material and the department determines that the licensed

 3-8     activity will have a significant impact on the human environment,

 3-9     the department [commission] shall prepare or have prepared a

3-10     written environmental analysis.

3-11           (c)  The department [commission] shall give notice of the

3-12     analysis as provided by board [agency] rule and shall make the

3-13     analysis available to the public for written comment not later than

3-14     the 31st day before the date of the hearing on the license.

3-15           (d)  After notice is given, the department [commission] shall

3-16     provide an opportunity for written comments by persons affected.

3-17           (e)  The analysis shall be included as part of the record of

3-18     the department's [commission's] proceedings.

3-19           (f)  The board by rule [commission] shall prohibit major

3-20     construction with respect to an activity that is to be licensed

3-21     until the requirements of Subsections (a), (b), (c), and (e) are

3-22     completed.

3-23           SECTION 7.  Subsections (a), (c), and (d), Section 401.264,

3-24     Health and Safety Code, are amended to read as follows:

3-25           (a)  The department [commission] on its own motion may or on

3-26     the written request of a person affected shall provide an

3-27     opportunity for a public hearing on an application over which the

 4-1     department [commission] has jurisdiction to determine whether to

 4-2     issue, renew, or amend a license to process materials that produce

 4-3     by-product materials in the manner provided by Chapter 2001,

 4-4     Government Code, and permit appearances with or without counsel and

 4-5     the examination and cross-examination of witnesses under oath.

 4-6           (c)  The department [commission] shall make a record of the

 4-7     proceedings and provide a transcript of the hearing on request of,

 4-8     and payment for, the transcript or provision of a sufficient

 4-9     deposit to assure payment by any person requesting the transcript.

4-10           (d)  The department [commission] shall provide an opportunity

4-11     to obtain a written determination of action to be taken.  The

4-12     determination must be based on evidence presented to the department

4-13     [commission] and include findings.  The written determination is

4-14     available to the public.

4-15           SECTION 8.  Section 401.265, Health and Safety Code, is

4-16     amended to read as follows:

4-17           Sec. 401.265.  CONDITIONS OF CERTAIN BY-PRODUCT MATERIAL

4-18     LICENSES.  The department [commission] shall prescribe conditions

4-19     in a radioactive material license issued, renewed, or amended for

4-20     an activity that results in production of by-product material to

4-21     minimize or, if possible, eliminate the need for long-term

4-22     maintenance and monitoring before the termination of the license,

4-23     including conditions that:

4-24                 (1)  the license holder will comply with the applicable

4-25     decontamination, decommissioning, reclamation, and disposal

4-26     standards that are prescribed by the board [or commission] and that

4-27     are compatible with [equivalent to or more stringent than] the

 5-1     federal commission's standards for sites at which those ores were

 5-2     processed and at which the by-product material is deposited; and

 5-3                 (2)  the ownership of a disposal site, other than a

 5-4     disposal well covered by a permit issued under Chapter 27, Water

 5-5     Code, and the by-product material resulting from the licensed

 5-6     activity are transferred, subject to Sections 401.266-401.269, to:

 5-7                       (A)  the state; or

 5-8                       (B)  the federal government if the state declines

 5-9     to acquire the site, the by-product material, or both the site and

5-10     the by-product material.

5-11           SECTION 9.  Subsection (a), Section 401.266, Health and

5-12     Safety Code, is amended to read as follows:

5-13           (a)  The board [commission] by rule or [by] order or the

5-14     department by order may require that before a license covering land

5-15     used for the disposal of by-product material is terminated, the

5-16     land, including any affected interests in the land, must be

5-17     transferred to the federal government or to the state unless:

5-18                 (1)  the federal commission determines before the

5-19     license terminates that the transfer of title to the land and the

5-20     by-product material is unnecessary to protect the public health,

5-21     safety, or welfare or to minimize danger to life or property; or

5-22                 (2)  the land is held in trust by the federal

5-23     government for an Indian tribe, is owned by an Indian tribe subject

5-24     to a restriction against alienation imposed by the federal

5-25     government, is owned by the federal government, or is owned by the

5-26     state.

5-27           SECTION 10.  Section 401.267, Health and Safety Code, is

 6-1     amended to read as follows:

 6-2           Sec. 401.267.  ACQUISITION OF CERTAIN BY-PRODUCT MATERIALS

 6-3     AND SITES.  The department [commission] may acquire by-product

 6-4     material and fee simple title in land, affected mineral rights, and

 6-5     buildings at which that by-product material is disposed of and

 6-6     abandoned so that the by-product material and property can be

 6-7     managed in a manner consistent with protecting public health,

 6-8     safety, and the environment.

 6-9           SECTION 11.  Section 401.269, Health and Safety Code, is

6-10     amended to read as follows:

6-11           Sec. 401.269.  MONITORING, MAINTENANCE, AND EMERGENCY

6-12     MEASURES.  (a)  The department [commission] may undertake

6-13     monitoring, maintenance, and emergency measures in connection with

6-14     by-product material and property for which it has assumed custody

6-15     under Section 401.267 that are necessary to protect the public

6-16     health and safety and the environment.

6-17           (b)  The department [commission] shall maintain the

6-18     by-product material and property transferred to it in a manner that

6-19     will protect the public health and safety and the environment.

6-20           SECTION 12.  Subsections (a), (b), (e), and (f), Section

6-21     401.270, Health and Safety Code, are amended to read as follows:

6-22           (a)  If the department [commission] finds that by-product

6-23     material or the operation by which that by-product material is

6-24     derived threatens the public health and safety or the environment,

6-25     the department [commission] by order may require any action,

6-26     including a corrective measure, that is necessary to correct or

6-27     remove the threat.

 7-1           (b)  The department [commission] may issue an emergency order

 7-2     to a person responsible for an activity, including a past activity,

 7-3     concerning the recovery or processing of source material or the

 7-4     disposal of by-product material if it appears that there is an

 7-5     actual or threatened release of source material or by-product

 7-6     material that presents an imminent and substantial danger to the

 7-7     public health and safety or the environment, regardless of whether

 7-8     the activity was lawful at the time.  The emergency order may be

 7-9     issued without notice or hearing.

7-10           (e)  The department [commission] shall use the security

7-11     provided by the license holder to pay the costs of actions that are

7-12     taken or that are to be taken under this section.  The department

7-13     [commission] shall send to the comptroller a copy of its order

7-14     together with necessary written requests authorizing the

7-15     comptroller to:

7-16                 (1)  enforce security supplied by the licensee;

7-17                 (2)  convert an amount of security into cash, as

7-18     necessary; and

7-19                 (3)  disburse from the security in the fund the amount

7-20     necessary to pay the costs.

7-21           (f)  If an [the] order issued by the department under

7-22     [commission pursuant to] this section is adopted without notice or

7-23     hearing, the order shall set a time, at least 10 but not more than

7-24     30 days following the date of issuance of the emergency order, and

7-25     a place for a hearing to be held in accordance with the rules of

7-26     the board [commission].  As a result of this hearing, the

7-27     department [commission] shall decide whether to affirm, modify, or

 8-1     set aside the emergency order.  All provisions of the emergency

 8-2     order shall remain in force and effect during the pendency of the

 8-3     hearing, unless otherwise altered by the department [commission].

 8-4           SECTION 13.  Subsections (a) and (b), Section 401.412, Health

 8-5     and Safety Code, are amended to read as follows:

 8-6           (a)  Notwithstanding any other provision of this chapter and

 8-7     subject to Sections [Section] 401.102 and 401.415, the commission

 8-8     has sole and exclusive authority to directly regulate and to grant,

 8-9     deny, renew, revoke, suspend, amend, or withdraw licenses for the

8-10     disposal of radioactive substances.  In this subsection,

8-11     "radioactive substance" does not include by-product material as

8-12     defined by Section 401.003(3)(B).

8-13           (b)  Notwithstanding any other provision of this chapter, the

8-14     commissioner [commission] has the sole and exclusive authority to

8-15     grant, deny, renew, revoke, suspend, amend, or withdraw licenses

8-16     for the recovery and processing of source material or[, including

8-17     the] disposal of by-product material under [pursuant to] Subchapter

8-18     G.

8-19           SECTION 14.  Section 401.413, Health and Safety Code, is

8-20     amended to read as follows:

8-21           Sec. 401.413.  COMMISSION DISPOSAL LICENSE REQUIRED.  A

8-22     person required by another section of this chapter to obtain a

8-23     license for the disposal of a radioactive substance is required to

8-24     obtain the license from the commission and not from the department.

8-25     This section does not apply to a person required to obtain a

8-26     license for recovery or processing of source material or for

8-27     recovery, processing, or disposal of by-product material as defined

 9-1     by Section 401.003(3)(B).

 9-2           SECTION 15.  (a)  On the earlier of 30 days after the

 9-3     effective date of this Act or September 1, 1997, the following

 9-4     rights, powers, duties, obligations, functions, activities,

 9-5     property, and programs are transferred to the Texas Department of

 9-6     Health:

 9-7                 (1)  all of the rights, powers, duties, obligations,

 9-8     functions, and activities:

 9-9                       (A)  that Chapter 401, Health and Safety Code,

9-10     assigns to the Texas Natural Resource Conservation Commission or to

9-11     the commission's officers or employees; and

9-12                       (B)  that are related to the licensing and

9-13     regulation of:

9-14                             (i)  radioactive source material recovery

9-15     and processing, including recovery, processing, and disposal of

9-16     by-product material as defined by Paragraph (B), Subdivision (3),

9-17     Section 401.003, Health and Safety Code; and

9-18                             (ii)  the long-term care of decommissioned

9-19     sites for the disposal of by-product material as defined by

9-20     Paragraph (B), Subdivision (3), Section 401.003, Health and Safety

9-21     Code;

9-22                 (2)  all equipment, information, documents, facilities,

9-23     and other property of the Texas Natural Resource Conservation

9-24     Commission pertaining to the licensing and regulation of:

9-25                       (A)  radioactive source material recovery and

9-26     processing, including recovery, processing, or disposal of

9-27     by-product material as defined by Paragraph (B), Subdivision (3),

 10-1    Section 401.003, Health and Safety Code; or

 10-2                      (B)  the long-term care of decommissioned sites

 10-3    for the disposal of by-product material as defined by Paragraph

 10-4    (B), Subdivision (3), Section 401.003, Health and Safety Code;

 10-5                (3)  all appropriations for the biennium that begins

 10-6    September 1, 1997, made to the Texas Natural Resource Conservation

 10-7    Commission for activities related to licensing and regulation of:

 10-8                      (A)  radioactive source material recovery and

 10-9    processing, including recovery, processing, or disposal of

10-10    by-product material as defined by Paragraph (B), Subdivision (3),

10-11    Section 401.003, Health and Safety Code; or

10-12                      (B)  the long-term care of decommissioned sites

10-13    for the disposal of by-product material as defined by Paragraph

10-14    (B), Subdivision (3), Section 401.003, Health and Safety Code; and

10-15                (4)  the unexpended and unobligated balance of the

10-16    appropriations to the Texas Natural Resource Conservation

10-17    Commission for the biennium beginning September 1, 1995, for

10-18    activities described by Subdivision (3) of this subsection.

10-19          (b)  Appropriations transferred under Subdivision (4) of

10-20    Subsection (a) of this section are transferred for the remainder of

10-21    the biennium.

10-22          (c)  The Texas Department of Health may not charge a fee for

10-23    an application pending before the Texas Natural Resource

10-24    Conservation Commission on the date the transfer provided by

10-25    Subsection (a) of this section occurs.

10-26          (d)  The Texas Department of Health is the successor to the

10-27    Texas Natural Resource Conservation Commission for the

 11-1    administration and enforcement of laws related to licensing and

 11-2    regulation of radioactive source material recovery and processing,

 11-3    including recovery, processing, or disposal of by-product material

 11-4    as defined by Paragraph (B), Subdivision (3), Section 401.003,

 11-5    Health and Safety Code, and the licensing and regulation of

 11-6    long-term care of decommissioned sites for the disposal of

 11-7    by-product material as defined by Paragraph (B), Subdivision (3),

 11-8    Section 401.003, Health and Safety Code.  The Texas Department of

 11-9    Health shall carry out those duties, responsibilities, functions,

11-10    and activities as provided by law, including Acts of the 75th

11-11    Legislature.

11-12          (e)  The transfer of rights, powers, duties, obligations,

11-13    functions, activities, property, and programs from the Texas

11-14    Natural Resource Conservation Commission to the Texas Department of

11-15    Health made by this Act does not affect or impair any act done or

11-16    obligation, right, license, permit, requirement, or penalty accrued

11-17    or existing under the former law, and that law remains in effect

11-18    for the purposes of any action concerning such an act, obligation,

11-19    right, license, permit, requirement, or penalty.  The Texas

11-20    Department of Health shall continue a proceeding of the Texas

11-21    Natural Resource Conservation Commission related to a program,

11-22    responsibility, duty, or function transferred by this Act,

11-23    including processing an application for a license or other

11-24    authorization or enforcing the requirements of Chapter 401, Health

11-25    and Safety Code, or a rule adopted under that chapter.  Rules of

11-26    the Texas Natural Resource Conservation Commission related to a

11-27    right, power, duty, obligation, function, activity, or program

 12-1    transferred to the Texas Department of Health by this Act are

 12-2    enforceable as rules of the department until the department adopts

 12-3    other rules.  The Texas Department of Health shall make every

 12-4    effort to consolidate and streamline the rules affecting a right,

 12-5    power, duty, obligation, function, activity, or program transferred

 12-6    by this Act to give concise and clear notice to the regulated

 12-7    community of regulatory requirements.

 12-8          (f)  The Texas Department of Health shall provide an

 12-9    opportunity for employees of the Texas Natural Resource

12-10    Conservation Commission who have performed duties for the

12-11    commission related to a right, power, duty, obligation, function,

12-12    activity, or program transferred by this Act to request to transfer

12-13    to the department's program.  In making employment decisions, the

12-14    Texas Department of Health shall ensure that federal requirements

12-15    for engineering expertise are met by departmental employees and

12-16    shall consider the value of continuity in personnel staffing the

12-17    relevant programs.  The Texas Department of Health shall consider

12-18    employing a person to ensure that ecological issues receive proper

12-19    attention.

12-20          (g)  The Texas Natural Resource Conservation Commission and

12-21    the Texas Department of Health by interagency agreement or by

12-22    contract shall cooperate in preventing any delay that might be

12-23    caused by the transfer of property or personnel or a right, power,

12-24    duty, obligation, function, activity, or program made by this Act

12-25    in the closure certification program.

12-26          SECTION 16.  The transfers made by this Act do not affect:

12-27                (1)  the Texas Natural Resource Conservation

 13-1    Commission's jurisdiction over the Texas Low-Level Radioactive

 13-2    Waste Disposal Authority provided by Chapters 401 and 402, Health

 13-3    and Safety Code;

 13-4                (2)  the United States Department of Transportation's

 13-5    jurisdiction over or regulation of the shipping of low specific

 13-6    activity material or uranium; or

 13-7                (3)  any matter that is the subject of litigation

 13-8    pending on the effective date of this Act.

 13-9          SECTION 17.  In performing, exercising, or conducting a

13-10    right, power, duty, obligation, function, activity, or program

13-11    transferred by this Act, the Texas Department of Health shall, to

13-12    the extent feasible, apply standards of the United States Nuclear

13-13    Regulatory Commission until the department adopts relevant

13-14    standards.

13-15          SECTION 18.  The Texas Department of Health shall ensure that

13-16    the fees the department assesses under Chapter 401, Health and

13-17    Safety Code, as amended by this Act, are sufficient to pay the

13-18    department's costs incurred under that chapter in conducting the

13-19    department's licensing and regulatory activities and issuing

13-20    closure certifications.  If the department finds that the fees

13-21    adopted by the Texas Natural Resource Conservation Commission

13-22    generate more revenue than necessary to pay those costs, the

13-23    department shall refund to each person who paid a fee that was

13-24    increased during the 12 months preceding the effective date of this

13-25    Act an amount that represents that person's share of the excess fee

13-26    revenue.

13-27          SECTION 19.  The importance of this legislation and the

 14-1    crowded condition of the calendars in both houses create an

 14-2    emergency and an imperative public necessity that the

 14-3    constitutional rule requiring bills to be read on three several

 14-4    days in each house be suspended, and this rule is hereby suspended,

 14-5    and that this Act take effect and be in force from and after its

 14-6    passage, and it is so enacted.