By: Brown S.B. No. 1857
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
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. Section 401.104(b), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (b) The commission by rule shall provide for licensing for
1-8 the disposal of radioactive material except by-product material
1-9 defined by Section 401.003(3)(B). The department by rule shall
1-10 provide for licensing for the disposal of by-product material
1-11 defined by Section 401.003(3)(B).
1-12 SECTION 2. Section 401.262, Health and Safety Code, is
1-13 amended to read as follows:
1-14 Sec. 401.262. MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
1-15 The department [commission] has sole and exclusive authority to
1-16 assure that sites are closed out and by-product material is managed
1-17 and disposed of in compliance with:
1-18 (1) the federal commission's applicable standards; and
1-19 (2) closure dose rates the federal commission has
1-20 determined to be protective of human health and safety and the
1-21 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
3-1 until the requirements of Subsections (a), (b), (c), and (e) are
3-2 completed.
3-3 SECTION 5. Sections 401.264(a), (c), and (d), Health and
3-4 Safety Code, are amended to read as follows:
3-5 (a) The board [commission] on its own motion may or on the
3-6 written request of a person affected shall provide an opportunity
3-7 for a public hearing on an application over which the department
3-8 [commission] has jurisdiction to determine whether to issue, renew,
3-9 or amend a license to process materials that produce by-product
3-10 materials in the manner provided by Chapter 2001, Government Code,
3-11 and permit appearances with or without counsel and the examination
3-12 and cross-examination of witnesses under oath.
3-13 (c) The department [commission] shall make a record of the
3-14 proceedings and provide a transcript of the hearing on request of,
3-15 and payment for, the transcript or provision of a sufficient
3-16 deposit to assure payment by any person requesting the transcript.
3-17 (d) The department [commission] shall provide an opportunity
3-18 to obtain a written determination of action to be taken. The
3-19 determination must be based on evidence presented to the department
3-20 [commission] and include findings. The written determination is
3-21 available to the public.
3-22 SECTION 6. Section 401.265, Health and Safety Code, is
3-23 amended to read as follows:
3-24 Sec. 401.265. Conditions of Certain By-Product Material
3-25 Licenses. The board [commission] shall prescribe conditions in a
4-1 radioactive material license issued, renewed, or amended for an
4-2 activity that results in production of by-product material to
4-3 minimize or, if possible, eliminate the need for long-term
4-4 maintenance and monitoring before the termination of the license,
4-5 including conditions that:
4-6 (1) the license holder will comply with the applicable
4-7 decontamination, decommissioning, reclamation, and disposal
4-8 standards that are prescribed by the board [or commission] and that
4-9 are equivalent to or compatible with [more stringent than] the
4-10 federal commission's standards for sites at which those ores were
4-11 processed and at which the by-product material is deposited; and
4-12 (2) the ownership of a disposal site, other than a
4-13 disposal well covered by a permit issued under Chapter 27, Water
4-14 Code, and the by-product material resulting from the licensed
4-15 activity are transferred, subject to Sections 401.266-401.269, to:
4-16 (A) the state; or
4-17 (B) the federal government if the state declines
4-18 to acquire the site, the by-product material, or both the site and
4-19 the by-product material.
4-20 SECTION 7. Section 401.266(a), Health and Safety Code, is
4-21 amended to read as follows:
4-22 (a) The board [commission] by rule or [by] order may require
4-23 that before a license covering land used for the disposal of
4-24 by-product material is terminated, the land, including any affected
4-25 interests in the land, must be transferred to the federal
5-1 government or to the state unless:
5-2 (1) the federal commission determines before the
5-3 license terminates that the transfer of title to the land and the
5-4 by-product material is unnecessary to protect the public health,
5-5 safety, or welfare or to minimize danger to life or property; or
5-6 (2) the land is held in trust by the federal
5-7 government for an Indian tribe, is owned by an Indian tribe subject
5-8 to a restriction against alienation imposed by the federal
5-9 government, is owned by the federal government, or is owned by the
5-10 state.
5-11 SECTION 8. Section 401.267, Health and Safety Code, is
5-12 amended to read as follows:
5-13 Sec. 401.267. Acquisition of Certain By-Product Materials
5-14 and Sites. The department [commission] may acquire by-product
5-15 material and fee simple title in land, affected mineral rights, and
5-16 buildings at which that by-product material is disposed of and
5-17 abandoned so that the by-product material and property can be
5-18 managed in a manner consistent with protecting public health,
5-19 safety, and the environment.
5-20 SECTION 9. Section 401.269, Health and Safety Code, is
5-21 amended to read as follows:
5-22 Sec. 401.269. Monitoring, Maintenance, and Emergency
5-23 Measures. (a) The department [commission] may undertake
5-24 monitoring, maintenance, and emergency measures in connection with
5-25 by-product material and property for which it has assumed custody
6-1 under Section 401.267 that are necessary to protect the public
6-2 health and safety and the environment.
6-3 (b) The department [commission] shall maintain the
6-4 by-product material and property transferred to it in a manner that
6-5 will protect the public health and safety and the environment.
6-6 SECTION 10. Sections 401.270(a), (b), (e), and (f), Health
6-7 and Safety Code, are amended to read as follows:
6-8 (a) If the department [commission] finds that by-product
6-9 material or the operation by which that by-product material is
6-10 derived threatens the public health and safety or the environment,
6-11 the board [commission] by order may require any action, including a
6-12 corrective measure, that is necessary to correct or remove the
6-13 threat.
6-14 (b) The board [commission] may issue an emergency order to a
6-15 person responsible for an activity, including a past activity,
6-16 concerning the recovery or processing of source material or the
6-17 disposal of by-product material if it appears that there is an
6-18 actual or threatened release of source material or by-product
6-19 material that presents an imminent and substantial danger to the
6-20 public health and safety or the environment, regardless of whether
6-21 the activity was lawful at the time. The emergency order may be
6-22 issued without notice or hearing.
6-23 (e) The department [commission] shall use the security
6-24 provided by the license holder to pay the costs of actions that are
6-25 taken or that are to be taken under this section. The department
7-1 [commission] shall send to the comptroller a copy of its order
7-2 together with necessary written requests authorizing the
7-3 comptroller to:
7-4 (1) enforce security supplied by the licensee;
7-5 (2) convert an amount of security into cash, as
7-6 necessary; and
7-7 (3) disburse from the security in the fund the amount
7-8 necessary to pay the costs.
7-9 (f) If an [the] order issued by the board under [commission
7-10 pursuant to] this section is adopted without notice or hearing, the
7-11 order shall set a time, at least 10 but not more than 30 days
7-12 following the date of issuance of the emergency order, and a place
7-13 for a hearing to be held in accordance with the rules of the board
7-14 [commission]. As a result of this hearing, the board [commission]
7-15 shall decide whether to affirm, modify, or set aside the emergency
7-16 order. All provisions of the emergency order shall remain in force
7-17 and effect during the pendency of the hearing, unless otherwise
7-18 altered by the board [commission].
7-19 SECTION 11. Sections 401.412(a) and (b), Health and Safety
7-20 Code, are amended to read as follows:
7-21 (a) Notwithstanding any other provision of this chapter and
7-22 subject to Section 401.102, the commission has sole and exclusive
7-23 authority to directly regulate and to grant, deny, renew, revoke,
7-24 suspend, amend, or withdraw licenses for the disposal of
7-25 radioactive substances. In this subsection, "radioactive
8-1 substance" does not include by-product material as defined by
8-2 Section 401.003(3)(B).
8-3 (b) Notwithstanding any other provision of this chapter, the
8-4 board [commission] has the sole and exclusive authority to grant,
8-5 deny, renew, revoke, suspend, amend, or withdraw licenses for the
8-6 recovery and processing of source material or [, including the]
8-7 disposal of by-product material under [pursuant to] Subchapter G.
8-8 SECTION 12. Section 401.413, Health and Safety Code, is
8-9 amended to read as follows:
8-10 Sec. 401.413. Commission Disposal License Required. A
8-11 person required by another section of this chapter to obtain a
8-12 license for the disposal of a radioactive substance is required to
8-13 obtain the license from the commission and not from the department.
8-14 This section does not apply to a person required to obtain a
8-15 license for recovery, processing, or disposal of source material or
8-16 by-product material.
8-17 SECTION 13. (a) One month after the effective date of this
8-18 act, but in no case later than September 1, 1997, the following
8-19 rights, powers, duties, obligations, functions, activities,
8-20 property, and programs are transferred to the Texas Department of
8-21 Health:
8-22 (1) all of the rights, powers, duties, obligations,
8-23 functions, and activities:
8-24 (A) that Chapter 401, Health and Safety Code,
8-25 assigns to the Texas Natural Resource Conservation Commission or to
9-1 the commission's officers or employees; and
9-2 (B) that are related to the licensing and
9-3 regulation of:
9-4 (i) radioactive source material recovery
9-5 and processing, including recovery, processing, and disposal of
9-6 by-product material as defined by Section 401.003(3)(B), Health and
9-7 Safety Code; and
9-8 (ii) the long-term care of decommissioned
9-9 sites;
9-10 (2) all equipment, information, documents, facilities,
9-11 and other property of the Texas Natural Resource Conservation
9-12 Commission pertaining to the licensing and regulation of:
9-13 (A) radioactive source material recovery and
9-14 processing, including recovery, processing, or disposal of
9-15 by-product material as defined by Section 401.003(3)(B); or
9-16 (B) the long-term care of decommissioned sites;
9-17 and
9-18 (3) all appropriations to the Texas Natural Resource
9-19 Conservation Commission for activities related to licensing and
9-20 regulation of:
9-21 (A) radioactive source material recovery and
9-22 processing, including recovery, processing, or disposal of
9-23 by-product material as defined by Section 401.003(3)(B); or
9-24 (B) the long-term care of decommissioned sites.
9-25 (b) Money collected by the Texas Natural Resource
10-1 Conservation Commission for fees related to applications pending
10-2 before the commission at the time the program transfers are
10-3 transferred to the Texas Department of Health. The application
10-4 fees may not be assessed again for the same applications.
10-5 (c) The Texas Department of Health is the successor to Texas
10-6 Natural Resource Conservation Commission for the administration and
10-7 enforcement of laws related to licensing and regulation of
10-8 radioactive source material recovery and processing, including
10-9 recovery, processing, or disposal of by-product material as defined
10-10 by Section 401.003(3)(B), and the licensing and regulation of
10-11 long-term care of decommissioned sites. The Texas Department of
10-12 Health shall carry out those duties, responsibilities, functions,
10-13 and activities as provided by law, including Acts of the 75th
10-14 Legislature.
10-15 (d) The transfer of rights, powers, duties, obligations,
10-16 functions, activities, property, and programs from the Texas
10-17 Natural Resource Conservation Commission to the Texas Department of
10-18 Health made by this Act does not affect or impair any act done or
10-19 obligation, right, license, permit, requirement, or penalty accrued
10-20 or existing under the former law, and that law remains in effect
10-21 for the purposes of any action concerning such an act, obligation,
10-22 right, license, permit, requirement, or penalty. The Texas
10-23 Department of Health shall continue a proceeding of the Texas
10-24 Natural Resource Conservation Commission related to a program,
10-25 responsibility, duty, or function transferred by this Act,
11-1 including processing an application for a license or other
11-2 authorization or enforcing the requirements of Chapter 401, Health
11-3 and Safety Code, or a rule adopted under that chapter.
11-4 (e) The Texas Department of Health shall provide an
11-5 opportunity for employees of the Texas Natural Resource
11-6 Conservation Commission who have performed duties for the
11-7 commission related to a right, power, duty, obligation, function,
11-8 activity, or program transferred by this Act to apply for
11-9 employment with the department. In making employment decisions,
11-10 the Texas Department of Health shall ensure that federal
11-11 requirements for engineering expertise are met by departmental
11-12 employees and shall consider the value of continuity in personnel
11-13 staffing the relevant programs. The Texas Department of Health
11-14 shall consider employing a person to ensure that ecological issues
11-15 receive proper attention.
11-16 (f) The Texas Natural Resource Conservation Commission and
11-17 the Texas Department of Health by interagency agreement or by
11-18 contract shall cooperate in preventing any delay that might be
11-19 caused by the transfer of property or personnel or a right, power,
11-20 duty, obligation, function, activity, or program made by this Act
11-21 in the licensing and closure certification program.
11-22 SECTION 14. The transfers made by this Act do not affect:
11-23 (1) the Texas Natural Resource Conservation
11-24 Commission's jurisdiction over the Low-Level Radioactive Waste
11-25 Disposal Authority provided by Chapter 402, Health and Safety Code;
12-1 (2) the United States Department of Transportation's
12-2 jurisdiction over or regulation of the shipping of low specific
12-3 activity material or uranium; or
12-4 (3) any matter that is the subject of litigation
12-5 pending on the effective date of this Act.
12-6 SECTION 15. In performing, exercising, or conducting a
12-7 right, power, duty, obligation, function, activity, or program
12-8 transferred by this Act, the Texas Department of Health shall, to
12-9 the extent feasible, apply standards of the United States Nuclear
12-10 Regulatory Commission until the department adopts relevant
12-11 standards.
12-12 SECTION 16. The Department of Health shall reevaluate the
12-13 fees assessed under the program, ensuring that the fees are
12-14 sufficient to pay the costs of the department in conducting its
12-15 licensing and regulatory activities and closure certifications. If
12-16 the department finds that current fees adopted by the Texas Natural
12-17 Resource Conservation Commission are higher than necessary to
12-18 operate the program, the department shall provide that any fees
12-19 newly increased in the past year will be refunded to the payor as
12-20 appropriate.
12-21 SECTION 17. The importance of this legislation and the
12-22 crowded condition of the calendars in both houses create an
12-23 emergency and an imperative public necessity that the
12-24 constitutional rule requiring bills to be read on three several
12-25 days in each house be suspended, and this rule is hereby suspended,
13-1 and that this Act take effect and be in force from and after its
13-2 passage, and it is so enacted.