1-1 By: Brown S.B. No. 1857
1-2 (In the Senate - Filed March 14, 1997; March 24, 1997, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 25, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 10, Nays 0; April 25, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1857 By: Brown
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to transferring certain responsibilities of the Texas
1-11 Natural Resource Conservation Commission related to certain
1-12 radioactive materials to the Texas Department of Health.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Subdivision (3), Section 401.003, Health and
1-15 Safety Code, is amended to read as follows:
1-16 (3) "By-product material" means:
1-17 (A) a radioactive material, other than special
1-18 nuclear material, that is produced in or made radioactive by
1-19 exposure to radiation incident to the process of producing or using
1-20 special nuclear material; and
1-21 (B) tailings or wastes produced by or resulting
1-22 from the extraction or concentration of uranium or thorium from ore
1-23 processed primarily for its source material content, including
1-24 discrete surface wastes resulting from uranium solution extraction
1-25 processes[, and other tailings having similar radiological
1-26 characteristics].
1-27 SECTION 2. Subsections (a) and (b), Section 401.011, Health
1-28 and Safety Code, are amended to read as follows:
1-29 (a) The department is the Texas Radiation Control Agency.
1-30 The department has jurisdiction over activities and substances
1-31 regulated under this chapter except as provided by Subsection (b)
1-32 and Subchapters F[, G,] and K.
1-33 (b) The commission has jurisdiction to regulate and
1-34 license[:]
1-35 [(1)] the disposal of radioactive substances except
1-36 by-product material defined by Section 401.003(3)(B)[; and]
1-37 [(2) the recovery and processing of source material].
1-38 SECTION 3. Subsection (b), Section 401.104, Health and
1-39 Safety Code, is amended to read as follows:
1-40 (b) The commission by rule shall provide for licensing for
1-41 the disposal of radioactive material except by-product material
1-42 defined by Section 401.003(3)(B). The department by rule shall
1-43 provide for licensing the disposal of by-product material defined
1-44 by Section 401.003(3)(B).
1-45 SECTION 4. Section 401.262, Health and Safety Code, is
1-46 amended to read as follows:
1-47 Sec. 401.262. MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
1-48 The department [commission] has sole and exclusive authority to
1-49 assure that processing and disposal sites are closed and that
1-50 by-product material is managed and disposed of in compliance with:
1-51 (1) the federal commission's applicable standards; and
1-52 (2) closure criteria the federal commission and the
1-53 United States Environmental Protection Agency have determined are
1-54 protective of human health and safety and the environment.
1-55 SECTION 5. Section 401.2625, Health and Safety Code, is
1-56 amended to read as follows:
1-57 Sec. 401.2625. LICENSING AUTHORITY. The commissioner
1-58 [commission] has sole and exclusive authority to grant, deny,
1-59 renew, revoke, suspend, amend, or withdraw licenses for source
1-60 material recovery and processing or [, including the] disposal of
1-61 by-product material.
1-62 SECTION 6. Subsections (a), (c), (d), (e), and (f), Section
1-63 401.263, Health and Safety Code, are amended to read as follows:
1-64 (a) If the department [commission] is considering the
2-1 issuance, renewal, or amendment of a license to process materials
2-2 that produce by-product materials or a license to dispose of
2-3 by-product material and the department determines that the licensed
2-4 activity will have a significant impact on the human environment,
2-5 the department [commission] shall prepare or have prepared a
2-6 written environmental analysis.
2-7 (c) The department [commission] shall give notice of the
2-8 analysis as provided by board [agency] rule and shall make the
2-9 analysis available to the public for written comment not later than
2-10 the 31st day before the date of the hearing on the license.
2-11 (d) After notice is given, the department [commission] shall
2-12 provide an opportunity for written comments by persons affected.
2-13 (e) The analysis shall be included as part of the record of
2-14 the department's [commission's] proceedings.
2-15 (f) The board by rule [commission] shall prohibit major
2-16 construction with respect to an activity that is to be licensed
2-17 until the requirements of Subsections (a), (b), (c), and (e) are
2-18 completed.
2-19 SECTION 7. Subsections (a), (c), and (d), Section 401.264,
2-20 Health and Safety Code, are amended to read as follows:
2-21 (a) The department [commission] on its own motion may or on
2-22 the written request of a person affected shall provide an
2-23 opportunity for a public hearing on an application over which the
2-24 department [commission] has jurisdiction to determine whether to
2-25 issue, renew, or amend a license to process materials that produce
2-26 by-product materials in the manner provided by Chapter 2001,
2-27 Government Code, and permit appearances with or without counsel and
2-28 the examination and cross-examination of witnesses under oath.
2-29 (c) The department [commission] shall make a record of the
2-30 proceedings and provide a transcript of the hearing on request of,
2-31 and payment for, the transcript or provision of a sufficient
2-32 deposit to assure payment by any person requesting the transcript.
2-33 (d) The department [commission] shall provide an opportunity
2-34 to obtain a written determination of action to be taken. The
2-35 determination must be based on evidence presented to the department
2-36 [commission] and include findings. The written determination is
2-37 available to the public.
2-38 SECTION 8. Section 401.265, Health and Safety Code, is
2-39 amended to read as follows:
2-40 Sec. 401.265. CONDITIONS OF CERTAIN BY-PRODUCT MATERIAL
2-41 LICENSES. The department [commission] shall prescribe conditions
2-42 in a radioactive material license issued, renewed, or amended for
2-43 an activity that results in production of by-product material to
2-44 minimize or, if possible, eliminate the need for long-term
2-45 maintenance and monitoring before the termination of the license,
2-46 including conditions that:
2-47 (1) the license holder will comply with the applicable
2-48 decontamination, decommissioning, reclamation, and disposal
2-49 standards that are prescribed by the board [or commission] and that
2-50 are compatible with [equivalent to or more stringent than] the
2-51 federal commission's standards for sites at which those ores were
2-52 processed and at which the by-product material is deposited; and
2-53 (2) the ownership of a disposal site, other than a
2-54 disposal well covered by a permit issued under Chapter 27, Water
2-55 Code, and the by-product material resulting from the licensed
2-56 activity are transferred, subject to Sections 401.266-401.269, to:
2-57 (A) the state; or
2-58 (B) the federal government if the state declines
2-59 to acquire the site, the by-product material, or both the site and
2-60 the by-product material.
2-61 SECTION 9. Subsection (a), Section 401.266, Health and
2-62 Safety Code, is amended to read as follows:
2-63 (a) The board [commission] by rule or [by] order or the
2-64 department by order may require that before a license covering land
2-65 used for the disposal of by-product material is terminated, the
2-66 land, including any affected interests in the land, must be
2-67 transferred to the federal government or to the state unless:
2-68 (1) the federal commission determines before the
2-69 license terminates that the transfer of title to the land and the
3-1 by-product material is unnecessary to protect the public health,
3-2 safety, or welfare or to minimize danger to life or property; or
3-3 (2) the land is held in trust by the federal
3-4 government for an Indian tribe, is owned by an Indian tribe subject
3-5 to a restriction against alienation imposed by the federal
3-6 government, is owned by the federal government, or is owned by the
3-7 state.
3-8 SECTION 10. Section 401.267, Health and Safety Code, is
3-9 amended to read as follows:
3-10 Sec. 401.267. ACQUISITION OF CERTAIN BY-PRODUCT MATERIALS
3-11 AND SITES. The department [commission] may acquire by-product
3-12 material and fee simple title in land, affected mineral rights, and
3-13 buildings at which that by-product material is disposed of and
3-14 abandoned so that the by-product material and property can be
3-15 managed in a manner consistent with protecting public health,
3-16 safety, and the environment.
3-17 SECTION 11. Section 401.269, Health and Safety Code, is
3-18 amended to read as follows:
3-19 Sec. 401.269. MONITORING, MAINTENANCE, AND EMERGENCY
3-20 MEASURES. (a) The department [commission] may undertake
3-21 monitoring, maintenance, and emergency measures in connection with
3-22 by-product material and property for which it has assumed custody
3-23 under Section 401.267 that are necessary to protect the public
3-24 health and safety and the environment.
3-25 (b) The department [commission] shall maintain the
3-26 by-product material and property transferred to it in a manner that
3-27 will protect the public health and safety and the environment.
3-28 SECTION 12. Subsections (a), (b), (e), and (f), Section
3-29 401.270, Health and Safety Code, are amended to read as follows:
3-30 (a) If the department [commission] finds that by-product
3-31 material or the operation by which that by-product material is
3-32 derived threatens the public health and safety or the environment,
3-33 the department [commission] by order may require any action,
3-34 including a corrective measure, that is necessary to correct or
3-35 remove the threat.
3-36 (b) The department [commission] may issue an emergency order
3-37 to a person responsible for an activity, including a past activity,
3-38 concerning the recovery or processing of source material or the
3-39 disposal of by-product material if it appears that there is an
3-40 actual or threatened release of source material or by-product
3-41 material that presents an imminent and substantial danger to the
3-42 public health and safety or the environment, regardless of whether
3-43 the activity was lawful at the time. The emergency order may be
3-44 issued without notice or hearing.
3-45 (e) The department [commission] shall use the security
3-46 provided by the license holder to pay the costs of actions that are
3-47 taken or that are to be taken under this section. The department
3-48 [commission] shall send to the comptroller a copy of its order
3-49 together with necessary written requests authorizing the
3-50 comptroller to:
3-51 (1) enforce security supplied by the licensee;
3-52 (2) convert an amount of security into cash, as
3-53 necessary; and
3-54 (3) disburse from the security in the fund the amount
3-55 necessary to pay the costs.
3-56 (f) If an [the] order issued by the department under
3-57 [commission pursuant to] this section is adopted without notice or
3-58 hearing, the order shall set a time, at least 10 but not more than
3-59 30 days following the date of issuance of the emergency order, and
3-60 a place for a hearing to be held in accordance with the rules of
3-61 the board [commission]. As a result of this hearing, the
3-62 department [commission] shall decide whether to affirm, modify, or
3-63 set aside the emergency order. All provisions of the emergency
3-64 order shall remain in force and effect during the pendency of the
3-65 hearing, unless otherwise altered by the department [commission].
3-66 SECTION 13. Subsections (a) and (b), Section 401.412, Health
3-67 and Safety Code, are amended to read as follows:
3-68 (a) Notwithstanding any other provision of this chapter and
3-69 subject to Sections [Section] 401.102 and 401.415, the commission
4-1 has sole and exclusive authority to directly regulate and to grant,
4-2 deny, renew, revoke, suspend, amend, or withdraw licenses for the
4-3 disposal of radioactive substances. In this subsection,
4-4 "radioactive substance" does not include by-product material as
4-5 defined by Section 401.003(3)(B).
4-6 (b) Notwithstanding any other provision of this chapter, the
4-7 commissioner [commission] has the sole and exclusive authority to
4-8 grant, deny, renew, revoke, suspend, amend, or withdraw licenses
4-9 for the recovery and processing of source material or [, including
4-10 the] disposal of by-product material under [pursuant to] Subchapter
4-11 G.
4-12 SECTION 14. Section 401.413, Health and Safety Code, is
4-13 amended to read as follows:
4-14 Sec. 401.413. COMMISSION DISPOSAL LICENSE REQUIRED. A
4-15 person required by another section of this chapter to obtain a
4-16 license for the disposal of a radioactive substance is required to
4-17 obtain the license from the commission and not from the department.
4-18 This section does not apply to a person required to obtain a
4-19 license for recovery or processing of source material or for
4-20 recovery, processing, or disposal of by-product material as defined
4-21 by Section 401.003(3)(B).
4-22 SECTION 15. (a) On the earlier of 30 days after the
4-23 effective date of this Act or September 1, 1997, the following
4-24 rights, powers, duties, obligations, functions, activities,
4-25 property, and programs are transferred to the Texas Department of
4-26 Health:
4-27 (1) all of the rights, powers, duties, obligations,
4-28 functions, and activities:
4-29 (A) that Chapter 401, Health and Safety Code,
4-30 assigns to the Texas Natural Resource Conservation Commission or to
4-31 the commission's officers or employees; and
4-32 (B) that are related to the licensing and
4-33 regulation of:
4-34 (i) radioactive source material recovery
4-35 and processing, including recovery, processing, and disposal of
4-36 by-product material as defined by Paragraph (B), Subdivision (3),
4-37 Section 401.003, Health and Safety Code; and
4-38 (ii) the long-term care of decommissioned
4-39 sites for the disposal of by-product material as defined by
4-40 Paragraph (B), Subdivision (3), Section 401.003, Health and Safety
4-41 Code;
4-42 (2) all equipment, information, documents, facilities,
4-43 and other property of the Texas Natural Resource Conservation
4-44 Commission pertaining to the licensing and regulation of:
4-45 (A) radioactive source material recovery and
4-46 processing, including recovery, processing, or disposal of
4-47 by-product material as defined by Paragraph (B), Subdivision (3),
4-48 Section 401.003, Health and Safety Code; or
4-49 (B) the long-term care of decommissioned sites
4-50 for the disposal of by-product material as defined by Paragraph
4-51 (B), Subdivision (3), Section 401.003, Health and Safety Code;
4-52 (3) all appropriations for the biennium that begins
4-53 September 1, 1997, made to the Texas Natural Resource Conservation
4-54 Commission for activities related to licensing and regulation of:
4-55 (A) radioactive source material recovery and
4-56 processing, including recovery, processing, or disposal of
4-57 by-product material as defined by Paragraph (B), Subdivision (3),
4-58 Section 401.003, Health and Safety Code; or
4-59 (B) the long-term care of decommissioned sites
4-60 for the disposal of by-product material as defined by Paragraph
4-61 (B), Subdivision (3), Section 401.003, Health and Safety Code; and
4-62 (4) the unexpended and unobligated balance of the
4-63 appropriations to the Texas Natural Resource Conservation
4-64 Commission for the biennium beginning September 1, 1995, for
4-65 activities described by Subdivision (3) of this subsection.
4-66 (b) Appropriations transferred under Subdivision (4) of
4-67 Subsection (a) of this section are transferred for the remainder of
4-68 the biennium.
4-69 (c) The Texas Department of Health may not charge a fee for
5-1 an application pending before the Texas Natural Resource
5-2 Conservation Commission on the date the transfer provided by
5-3 Subsection (a) of this section occurs.
5-4 (d) The Texas Department of Health is the successor to the
5-5 Texas Natural Resource Conservation Commission for the
5-6 administration and enforcement of laws related to licensing and
5-7 regulation of radioactive source material recovery and processing,
5-8 including recovery, processing, or disposal of by-product material
5-9 as defined by Paragraph (B), Subdivision (3), Section 401.003,
5-10 Health and Safety Code, and the licensing and regulation of
5-11 long-term care of decommissioned sites for the disposal of
5-12 by-product material as defined by Paragraph (B), Subdivision (3),
5-13 Section 401.003, Health and Safety Code. The Texas Department of
5-14 Health shall carry out those duties, responsibilities, functions,
5-15 and activities as provided by law, including Acts of the 75th
5-16 Legislature.
5-17 (e) The transfer of rights, powers, duties, obligations,
5-18 functions, activities, property, and programs from the Texas
5-19 Natural Resource Conservation Commission to the Texas Department of
5-20 Health made by this Act does not affect or impair any act done or
5-21 obligation, right, license, permit, requirement, or penalty accrued
5-22 or existing under the former law, and that law remains in effect
5-23 for the purposes of any action concerning such an act, obligation,
5-24 right, license, permit, requirement, or penalty. The Texas
5-25 Department of Health shall continue a proceeding of the Texas
5-26 Natural Resource Conservation Commission related to a program,
5-27 responsibility, duty, or function transferred by this Act,
5-28 including processing an application for a license or other
5-29 authorization or enforcing the requirements of Chapter 401, Health
5-30 and Safety Code, or a rule adopted under that chapter. Rules of
5-31 the Texas Natural Resource Conservation Commission related to a
5-32 right, power, duty, obligation, function, activity, or program
5-33 transferred to the Texas Department of Health by this Act are
5-34 enforceable as rules of the department until the department adopts
5-35 other rules. The Texas Department of Health shall make every
5-36 effort to consolidate and streamline the rules affecting a right,
5-37 power, duty, obligation, function, activity, or program transferred
5-38 by this Act to give concise and clear notice to the regulated
5-39 community of regulatory requirements.
5-40 (f) The Texas Department of Health shall provide an
5-41 opportunity for employees of the Texas Natural Resource
5-42 Conservation Commission who have performed duties for the
5-43 commission related to a right, power, duty, obligation, function,
5-44 activity, or program transferred by this Act to request to transfer
5-45 to the department's program. In making employment decisions, the
5-46 Texas Department of Health shall ensure that federal requirements
5-47 for engineering expertise are met by departmental employees and
5-48 shall consider the value of continuity in personnel staffing the
5-49 relevant programs. The Texas Department of Health shall consider
5-50 employing a person to ensure that ecological issues receive proper
5-51 attention.
5-52 (g) The Texas Natural Resource Conservation Commission and
5-53 the Texas Department of Health by interagency agreement or by
5-54 contract shall cooperate in preventing any delay that might be
5-55 caused by the transfer of property or personnel or a right, power,
5-56 duty, obligation, function, activity, or program made by this Act
5-57 in the closure certification program.
5-58 SECTION 16. The transfers made by this Act do not affect:
5-59 (1) the Texas Natural Resource Conservation
5-60 Commission's jurisdiction over the Texas Low-Level Radioactive
5-61 Waste Disposal Authority provided by Chapters 401 and 402, Health
5-62 and Safety Code;
5-63 (2) the United States Department of Transportation's
5-64 jurisdiction over or regulation of the shipping of low specific
5-65 activity material or uranium; or
5-66 (3) any matter that is the subject of litigation
5-67 pending on the effective date of this Act.
5-68 SECTION 17. In performing, exercising, or conducting a
5-69 right, power, duty, obligation, function, activity, or program
6-1 transferred by this Act, the Texas Department of Health shall, to
6-2 the extent feasible, apply standards of the United States Nuclear
6-3 Regulatory Commission until the department adopts relevant
6-4 standards.
6-5 SECTION 18. The Texas Department of Health shall ensure that
6-6 the fees the department assesses under Chapter 401, Health and
6-7 Safety Code, as amended by this Act, are sufficient to pay the
6-8 department's costs incurred under that chapter in conducting the
6-9 department's licensing and regulatory activities and issuing
6-10 closure certifications. If the department finds that the fees
6-11 adopted by the Texas Natural Resource Conservation Commission
6-12 generate more revenue than necessary to pay those costs, the
6-13 department shall refund to each person who paid a fee that was
6-14 increased during the 12 months preceding the effective date of this
6-15 Act an amount that represents that person's share of the excess fee
6-16 revenue.
6-17 SECTION 19. The importance of this legislation and the
6-18 crowded condition of the calendars in both houses create an
6-19 emergency and an imperative public necessity that the
6-20 constitutional rule requiring bills to be read on three several
6-21 days in each house be suspended, and this rule is hereby suspended,
6-22 and that this Act take effect and be in force from and after its
6-23 passage, and it is so enacted.
6-24 * * * * *