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