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 * * * * *