1-1     By:  Chisum (Senate Sponsor - Brown)                  H.B. No. 1171
 1-2           (In the Senate - Received from the House April 23, 1999;
 1-3     April 26, 1999, read first time and referred to Committee on
 1-4     Natural Resources; May 14, 1999, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 4, Nays 1;
 1-6     May 14, 1999, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 1171                   By:  Brown
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to regulation of radioactive materials and other sources
1-11     of radiation.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Section 401.003(17), Health and Safety Code, is
1-14     amended and Section 401.003(28) is added to read as follows:
1-15                 (17)  "Radiation" means one or more of the following:
1-16                       (A)  gamma-rays and X-rays, alpha and beta
1-17     particles, and other atomic or nuclear particles or rays;
1-18                       (B)  [stimulated] emission of radiation from an
1-19     electronic device to energy density levels that could reasonably
1-20     cause bodily harm; or
1-21                       (C)  sonic, ultrasonic, or infrasonic waves
1-22     emitted from an electronic device or resulting from the operation
1-23     of an electronic circuit in an electronic device in the energy
1-24     range to reasonably cause detectable bodily harm.
1-25                 (28)  "Assured isolation" means an integrated
1-26     management system for isolating low-level radioactive waste through
1-27     robust, accessible facilities, planned preventative maintenance,
1-28     and sureties adequate to address contingencies or implement future
1-29     management alternatives.
1-30           SECTION 2.  Subchapter A, Chapter 401, Health and Safety
1-31     Code, is amended by adding Section 401.004 to read as follows:
1-32           Sec. 401.004.  LOW-LEVEL RADIOACTIVE WASTE DEFINED.
1-33     (a)  Except as provided by Subsection (b), "low-level radioactive
1-34     waste" means radioactive material that:
1-35                 (1)  is discarded or unwanted and is not exempt by
1-36     board rule adopted under Section 401.106;
1-37                 (2)  is waste, as that term is defined by 10 C.F.R.
1-38     Section 61.2; and
1-39                 (3)  is subject to:
1-40                       (A)  concentration limits established under 10
1-41     C.F.R. Section 61.55, or compatible rules established by the
1-42     department or commission, as applicable; and
1-43                       (B)  disposal criteria established under Title
1-44     10, Code of Federal Regulations, or established by the department
1-45     or commission, as applicable.
1-46           (b)  "Low-level radioactive waste" does not include:
1-47                 (1)  high-level radioactive waste as defined by 10
1-48     C.F.R. Section 60.2;
1-49                 (2)  spent nuclear fuel as defined by 10 C.F.R. Section
1-50     72.3;
1-51                 (3)  by-product material described by Section
1-52     401.003(3)(B);
1-53                 (4)  naturally occurring radioactive material waste
1-54     that is not oil and gas NORM waste; or
1-55                 (5)  oil and gas NORM waste.
1-56           SECTION 3.  Section 401.011, Health and Safety Code, is
1-57     amended to read as follows:
1-58           Sec. 401.011.  Radiation Control Agency.  (a)  The department
1-59     is the Texas Radiation Control Agency.  The department has
1-60     jurisdiction over activities and substances regulated under this
1-61     chapter except as provided by Subsection (b) and Subchapters F and
1-62     K.  The department has jurisdiction to regulate and license assured
1-63     isolation defined by Section 401.003(28).
1-64           (b)  The commission has jurisdiction to regulate and license
 2-1     the disposal of radioactive substances except by-product material
 2-2     defined by Section 401.003(3)(B).
 2-3           (c)  The department and commission each shall exercise its
 2-4     respective powers and duties under this chapter for the protection
 2-5     of the occupational health and safety and the environment.
 2-6           SECTION 4.  Section 401.104, Health and Safety Code, is
 2-7     amended by amending Subsection (a) and (b) and adding Subsection
 2-8     (e) to read as follows:
 2-9           (a)  Except as provided by Subsections [Subsection] (b) and
2-10     (e), the board by rule shall provide for the general or specific
2-11     licensing of:
2-12                 (1)  radioactive material; or
2-13                 (2)  devices or equipment using radioactive material.
2-14           (b)  Except as provided by Subsection (e), the [The]
2-15     commission by rule shall provide for licensing for the disposal of
2-16     radioactive material except by-product material defined by Section
2-17     401.003(3)(B).  The department by rule shall provide for licensing
2-18     the disposal of by-product material defined by Section
2-19     401.003(3)(B).
2-20           (e)  The board or commission may not require a license for a
2-21     person that is a party to an order issued under Section 361.188 or
2-22     361.272 for sites subject to Subchapter F, Chapter 361, or an
2-23     agreement entered into under Section 361.606.  This subsection does
2-24     not exempt the person from complying with technical standards that
2-25     a holder of a license otherwise required by this chapter for the
2-26     particular activity is required to meet.  The exemption granted by
2-27     this subsection applies only to the assessment and remediation of
2-28     the contamination at the site.
2-29           SECTION 5.  Sections 401.106, 401.108, 401.110, 401.201,
2-30     401.202, 401.203, 401.205, and 401.208 are amended to read as
2-31     follows:
2-32           Sec. 401.106.  EXEMPTION FROM LICENSING OR REGISTRATION
2-33     REQUIREMENTS OR FROM APPLICATION OF RULE.  (a)  The board by rule
2-34     may exempt a source of radiation or a kind of use or user from the
2-35     licensing or registration requirements provided by this chapter if
2-36     the board finds that the exemption of that source of radiation or
2-37     kind of use or user will not constitute a significant risk to the
2-38     public health and safety and the environment.
2-39           (b)  The department or commission, as applicable, may exempt
2-40     a source of radiation or a kind of use or user from the application
2-41     of a rule adopted by the department or commission under this
2-42     chapter if the department or commission, respectively, determines
2-43     that the exemption:
2-44                 (1)  is not prohibited by law; and
2-45                 (2)  will not result in a significant risk to public
2-46     health and safety and the environment.
2-47           (c)  Notwithstanding any other law, the commission may, on
2-48     request or its own initiative, authorize on-site disposal of
2-49     low-level radioactive waste on a specific basis at any site at
2-50     which low-level radioactive waste disposal operations began before
2-51     September 1, 1989, if after evaluation of the specific
2-52     characteristics of the waste, the disposal site, and the method of
2-53     disposal, the commission finds that the continuation of the
2-54     disposal activity will not constitute a significant risk to the
2-55     public health and safety and to the environment.
2-56           (d)  Not later than the 30th day before the date an exemption
2-57     is granted under Subsection (b), the department or commission, as
2-58     applicable, shall provide to the secretary of state for publication
2-59     in the Texas Register a notice of the agency's intent to grant the
2-60     exemption and a brief summary of the agency's reasons for granting
2-61     the exemption.
2-62           Sec. 401.108.  Financial Qualifications.  (a)  Before a
2-63     license is issued or renewed by the [department or] commission, the
2-64     applicant shall demonstrate to the commission [issuing agency] that
2-65     the applicant is financially qualified to conduct the licensed
2-66     activity, including any required decontamination, decommissioning,
2-67     reclamation, and disposal.  The board by rule may require an
2-68     applicant to demonstrate to the department that the applicant is
2-69     financially qualified to conduct the licensed activity, including
 3-1     any required decontamination, decomissioning, reclamation, and
 3-2     disposal, before the department issues or renews a license.
 3-3           (b)  A license holder shall submit to the department or
 3-4     commission, as appropriate [issuing agency], at intervals required
 3-5     by board or commission [issuing agency] rules or the license, proof
 3-6     of the license holder's financial qualifications.
 3-7           (c)  The commission shall reevaluate every five years the
 3-8     qualifications and security provided by a license holder under
 3-9     Subchapter F [or Subchapter G].  The reevaluation may coincide with
3-10     license renewal procedures if renewal and reevaluation occur in the
3-11     same year.
3-12           Sec. 401.110.  Determination on License.  In making a
3-13     determination whether to grant, deny, amend, renew, revoke,
3-14     suspend, or restrict a license or registration, the department or
3-15     commission may consider those aspects of an applicant's or license
3-16     holder's background that bear materially on the ability to fulfill
3-17     the obligations of licensure, including technical competence,
3-18     financial qualifications, and the applicant's or license holder's
3-19     record in areas involving radiation.
3-20           Sec. 401.201.  Regulation of Radioactive Waste Disposal AND
3-21     ASSURED ISOLATION.  (a)  The commission shall directly regulate the
3-22     disposal of radioactive waste.  The person making the disposal
3-23     shall comply with commission rules.
3-24           (b)  The department shall directly regulate the assured
3-25     isolation of radioactive waste.  The person isolating low-level
3-26     radioactive waste through assured isolation shall comply with
3-27     department rules.
3-28           (c)  The provisions of Chapter 402, Health and Safety Code
3-29     relating to the disposal of radioactive waste apply to the assured
3-30     isolation of radioactive waste.
3-31           Sec. 401.202.  Licensing Authority.  The commission or
3-32     department, within its respective jurisdiction, shall grant, deny,
3-33     renew, revoke, suspend, or withdraw licenses for the disposal of
3-34     radioactive waste from other persons and for the processing and
3-35     assured isolation of that waste.
3-36           Sec. 401.203.  LICENSE CLASSIFICATIONS [RESTRICTED TO PUBLIC
3-37     ENTITY].  (a)  A [radioactive waste disposal] license for the
3-38     disposal or assured isolation of low-level radioactive waste, to
3-39     the extent the activities are required by the Low-level Radioactive
3-40     Waste Policy Act, as amended by the Low-level Radioactive Waste
3-41     Policy Amendments Act of 1985 (42 U.S.C. Sections 2021b-2021j), may
3-42     be issued [only] to a private [public] entity [specifically
3-43     authorized by law for radioactive waste disposal].
3-44           (b)  The commission may issue a radioactive waste disposal
3-45     license to a private entity in accordance with the requirements of
3-46     this chapter and to fulfill the duties and responsibilities of
3-47     Chapter 402 and 403, Health and Safety Code.
3-48           Sec. 401.205.  Responsibilities of Persons Licensed to
3-49     Dispose of Radioactive Waste.  (a)  A person who is licensed to
3-50     dispose of radioactive waste from other persons shall:
3-51                 (1)  arrange for and pay the costs of management,
3-52     control, stabilization, and disposal of radioactive waste and the
3-53     decommissioning of the licensed activity; and
3-54                 (2)  to the extent required by Section 401.151 of this
3-55     chapter:  (a) convey to the state or federal government prior to
3-56     the termination of the license [when the license is issued] all
3-57     right, title, and interest in land and buildings acquired under
3-58     commission rules, together with requisite rights of access to that
3-59     property; and
3-60           (b) [(3)]  formally acknowledge before termination of the
3-61     license to conveyance to the state or federal government of the
3-62     right, title and interest in radioactive waste located on the
3-63     property conveyed.
3-64           Sec. 401.208.  Limitation on Certain Radioactive Waste
3-65     Disposal.  (a)  A license holder may not accept for disposal under
3-66     a license issued by the commission:
3-67                 (1)  high-level radioactive waste as defined by Title
3-68     10, Code of Federal Regulations;
3-69                 (2)  irradiated reactor fuel; [or]
 4-1                 (3)  radioactive waste that contains 10 or more
 4-2     nanocuries per gram of transuranics; or
 4-3                 (4)  any discarded atomic weapon component or the
 4-4     radioactive waste resulting from the testing of any atomic weapon.
 4-5           (b)  The commission by rule shall adopt special criteria for
 4-6     the disposal of radioactive waste with a half-life greater than 35
 4-7     years and radioactive waste that contains less than 10 nanocuries
 4-8     per gram of transuranics.
 4-9           SECTION 6.  Subchapter F, Chapter 401, Health and Safety
4-10     Code, is amended by adding Section 401.2081 to read as follows:
4-11           Sec. 401.2081.  LIMITATION ON UNITED STATES DEPARTMENT OF
4-12     ENERGY WASTE DISPOSAL IN A PRIVATE FACILITY.  The total
4-13     radioactivity of United States Department of Energy wastes licensed
4-14     for disposal at a site owned by a private entity shall be twenty
4-15     percent less than the radioactivity of wastes projected to be
4-16     received pursuant to the Texas Low-Level Radioactive Waste Disposal
4-17     Compact, unless the radioactivity is otherwise exempt or existing
4-18     in nature.
4-19           SECTION 7.  Section 401.211, Health and Safety Code, is
4-20     amended to read as follows:
4-21           Sec. 401.211.  Liability.  (a)  The transfer to the state of
4-22     the title to radioactive waste and land and buildings does not
4-23     relieve a license holder of liability for any fraudulent or
4-24     negligent acts performed before the transfer or while the
4-25     radioactive waste or land and buildings are in the possession and
4-26     control of the license holder.
4-27           (b)  The acceptance or storage of low-level waste at a site
4-28     owned or operated by a private entity does not create any liability
4-29     under state law on the part of the state, or of any agency or
4-30     officer of the state, for damages, removal, or remedial action with
4-31     respect to the land, the facility, or the accepted or stored waste.
4-32           (c)  A provision requiring the private entity to insure, hold
4-33     harmless, or indemnify the state for any liability imposed on the
4-34     state by state or federal law must be included in any license or
4-35     permit issued by the state, or by any agency or officer of the
4-36     state, to a private entity authorizing the private entity to
4-37     operate a low-level waste site.
4-38           SECTION 8.  Chapter 401, Health and Safety Code, is amended
4-39     by adding Sections 401.214, 401.215 and 401.216 to read as follows:
4-40           Sec. 401.214.  REPORTING LOW-LEVEL RADIOACTIVE WASTE
4-41     DISPOSAL.  (a)  On request of a member of the legislature the
4-42     commission or department shall report to the legislature the
4-43     location, character, and amount of low-level radioactive waste
4-44     stored or disposed of in the state.
4-45           (b)  The commission and department shall post on the Internet
4-46     information regarding the location, character, and amount of
4-47     low-level radioactive waste stored or disposed of in the state and
4-48     update the information at least annually.
4-49           Sec. 401.215.  SITING.  The commission may not license a
4-50     disposal site, and the department may not license an assured
4-51     isolation site under this Subtitle that:
4-52                 (1)  is located in a county any part of which is
4-53     located within 62 miles of the international boundary between this
4-54     state and Mexico; or
4-55                 (2)  is located in a county in which the average annual
4-56     rainfall is greater than 26 inches.
4-57           Sec. 401.216.  DEVELOPMENT AND OPERATION OF ASSURED ISOLATION
4-58     SITE.  (a)  The department may not issue a license for the
4-59     development or operation of an assured isolation site for low-level
4-60     radioactive waste unless assured isolation at the site includes:
4-61                 (1)  above-grade vaults with internal access designed
4-62     to isolate the waste from the environment from which the waste is
4-63     easily retrievable;
4-64                 (2)  individual monitoring of each waste structure or
4-65     building;
4-66                 (3)  monitoring of the ground beneath the assured
4-67     isolation facility and the perimeter of the facility for leakage;
4-68     and
4-69                 (4)  active inspection and preventive maintenance.
 5-1           (b)  Underground disposal may be considered for the
 5-2     management of low-level radioactive waste received from the Compact
 5-3     states only if assured isolation is found not to be feasible.
 5-4           SECTION 9.  Section 401.305(b), Health and Safety Code, is
 5-5     amended to read as follows:
 5-6           (b)  The department and commission each shall deposit to the
 5-7     credit of the fund money and security they receive under this
 5-8     chapter, including an administrative penalty collected by the
 5-9     department under Sections 401.384-401.390 but excluding [other
5-10     than] fees collected under Sections 401.301 and 401.302.  Interest
5-11     earned on money in the fund shall be credited to the fund.
5-12           SECTION 10.  Section 401.381(a), Health and Safety Code, is
5-13     amended to read as follows:
5-14           (a)  A person who causes, suffers, allows, or permits a
5-15     violation of [violates] this chapter, a department rule or order,
5-16     or a license or registration condition is subject to a civil
5-17     penalty of not less than $100 or more than $25,000 for each
5-18     violation and for each day that a continuing violation occurs.
5-19           SECTION 11.  Section 401.384(a), Health and Safety Code, is
5-20     amended to read as follows:
5-21           (a)  The department may assess an administrative [a civil]
5-22     penalty as provided by this section and Sections 401.385-401.390
5-23     [401.385-401.391] against a person who causes, suffers, allows, or
5-24     permits a violation of [violates] a provision of this chapter
5-25     relating to an activity under the department's jurisdiction, a rule
5-26     or order adopted by the department under this chapter, or a
5-27     condition of a license or registration issued by the department
5-28     under this chapter.
5-29           SECTION 12.  Section 401.385, Health and Safety Code, is
5-30     amended to read as follows:
5-31           Sec. 401.385.  Preliminary Report of Violation.  If the
5-32     department, after an investigation, concludes that a violation
5-33     relating to an activity under its jurisdiction has occurred, the
5-34     department may issue a preliminary report:
5-35                 (1)  stating the facts that support the conclusion;
5-36                 (2)  recommending that an administrative [a civil]
5-37     penalty under Section 401.384 be imposed; and
5-38                 (3)  recommending the amount of the penalty, which
5-39     shall be based on the seriousness of the violation as determined
5-40     from the facts surrounding the violation.
5-41           SECTION 13.  Sections 401.388(d) and (f), Health and Safety
5-42     Code, are amended to read as follows:
5-43           (d)  Based on the findings of fact and the recommendations of
5-44     the hearing examiner, the commissioner by order may find that a
5-45     violation has occurred and assess an administrative [a civil]
5-46     penalty or may find that no violation occurred.
5-47           (f)  The commissioner shall give notice to the person charged
5-48     of the commissioner's decision, and if the commissioner finds that
5-49     a violation has occurred and an administrative [a civil] penalty
5-50     has been assessed, the commissioner shall give to the person
5-51     charged written notice of:
5-52                 (1)  the commissioner's findings;
5-53                 (2)  the amount of the penalty; and
5-54                 (3)  the person's right to judicial review of the
5-55     commissioner's order.
5-56           SECTION 14.  Section 402.012, Health and Safety Code, is
5-57     amended to read as follows:
5-58           Sec. 402.012.  Sunset Provision.  The Texas Low-Level
5-59     Radioactive Waste Disposal Authority is subject to Chapter 325,
5-60     Government Code (Texas Sunset Act).  Unless continued in existence
5-61     as provided by that chapter, the authority is abolished and this
5-62     chapter expires on September 1, 1999 [2001].
5-63           SECTION 15.  Section 402.0921, Health and Safety Code, is
5-64     repealed.
5-65           SECTION 16.  (a)  This Act takes effect September 1, 1999.
5-66           (b)  Section 401.305(b), Health and Safety Code, as amended
5-67     by this Act, applies only to the deposit of an administrative
5-68     penalty collected under Sections 401.384-401.390, Health and Safety
5-69     Code, on or after the effective date of this Act.  An
 6-1     administrative penalty collected under Sections 401.384-401.390,
 6-2     Health and Safety Code, before the effective date of this Act shall
 6-3     be deposited as provided by the law as it existed immediately
 6-4     before the effective date of this Act, and that law is continued in
 6-5     effect for that purpose.
 6-6           (c)  Sections 401.381(a) and 401.384(a), Health and Safety
 6-7     Code, as amended by this Act, apply only to a violation committed
 6-8     on or after the effective date of this Act.  For purposes of this
 6-9     section, a violation is committed before the effective date of this
6-10     Act if any element of the violation occurs before that date.
6-11           (d)  Any act, duty or responsibility of the commission in
6-12     Chapters 401 and 402, Health and Safety Code, relating to the
6-13     disposal of radioactive waste may be performed by the department,
6-14     as appropriate, for the licensing of an assured isolation site for
6-15     low-level radioactive waste.
6-16           SECTION 17.  The importance of this legislation and the
6-17     crowded condition of the calendars in both houses create an
6-18     emergency and an imperative public necessity that the
6-19     constitutional rule requiring bills to be read on three several
6-20     days in each house be suspended, and this rule is hereby suspended.
6-21                                  * * * * *