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.