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.