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By: Duncan S.B. No. 39
(In the Senate - Filed June 24, 2005; June 24, 2005, read
first time and referred to Committee on Natural Resources;
June 29, 2005, reported favorably by the following vote: Yeas 9,
Nays 0; June 29, 2005, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to responsibilities of certain state agencies concerning
radioactive substances; imposing fees and surcharges.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 401.003, Health and Safety Code, is
amended by amending Subdivisions (2), (4), (5), (6), and (15) and
adding Subdivision (12-a) to read as follows:
(2) "Board" means the executive commissioner of
the Health and Human Services Commission [Texas Board of
Health].
(4) "Commission" means the Texas [Natural Resource
Conservation] Commission on Environmental Quality.
(5) "Commissioner" means the commissioner of state
[public] health services.
(6) "Department" means the [Texas] Department of State
Health Services or other department designated by the executive
commissioner of the Health and Human Services Commission.
(12-a) "Gross receipts" includes, with respect to an
entity or affiliated members, owners, shareholders, or limited or
general partners, all receipts from the entity's disposal
operations in Texas licensed under this chapter including any
bonus, commission, or similar payment received by the entity from a
customer, contractor, subcontractor, or other person doing
business with the entity or affiliated members, owners,
shareholders, or limited or general partners. This term does not
include receipts from the entity's operations in Texas, or
affiliated members, owners, shareholders, or limited or general
partners, for capital reimbursements, bona fide storage and
processing, and federal or state taxes or fees on waste received
uniquely required to meet the specifications of a license or
contract. The commission may promulgate rules in establishing the
criteria for determining gross receipts consistent with the
parameters of this definition.
(15) "Person affected" means a person who demonstrates
that the person has suffered or will suffer actual injury or
economic damage and, if the person is not a local government:
(A) is a resident of a county, or a county
adjacent to that county, in which a nuclear or radioactive
substance [material] is or will be located; or
(B) is doing business or has a legal interest in
land in the county or adjacent county.
SECTION 2. Subsections (a) and (b), Section 401.011, Health
and Safety Code, are amended to read as follows:
(a) The department is the Texas Radiation Control Agency.
The department has jurisdiction over activities and substances
regulated under this chapter except as provided by Subsection (b)
and Subchapters E, F, G, and K.
(b) The commission has jurisdiction to regulate and
license:
(1) the disposal of radioactive substances;
(2) the processing or storage of low-level radioactive
waste or naturally occurring radioactive material waste received
from other persons, except oil and gas NORM;
(3) the recovery or processing of source material in
accordance with Subchapter G;
(4) the processing of by-product material as defined
by Section 401.003(3)(B); and
(5) sites for the disposal of:
(A) low-level radioactive waste;
(B) by-product material; or
(C) naturally occurring radioactive material
waste [except by-product material defined by Section
401.003(3)(B)].
SECTION 3. Section 401.054, Health and Safety Code, is
amended to read as follows:
Sec. 401.054. NOTICE AND HEARING. (a) The department or
commission shall provide notice and an opportunity for a hearing on
a matter under its jurisdiction as provided by its formal hearing
procedures and Chapter 2001, Government Code, unless otherwise
required by this chapter, on written request of a person affected by
any of the following procedures:
(1) the denial, suspension, or revocation by the
department or commission of a license or registration;
(2) the determination by the department or commission
of compliance with or the grant of exemptions from a department or
commission rule or order; or
(3) the grant or amendment by the department or
commission of a specific license.
(b) The commission may hold a contested case hearing on a
license application under this chapter on the commission's
determination that a timely written request for a contested case
hearing was filed by a person affected. The determination of who is
a person affected under this chapter is governed exclusively [This
section does not apply to license or registration activities for
which other notice and hearing procedures are required] by this
chapter.
(c) The commission may hold a contested case hearing on an
application for the renewal of or an amendment of a license issued
under this chapter only if a change is being requested that would
constitute a major amendment and a person affected requests the
hearing.
SECTION 4. Section 401.104, Health and Safety Code, is
amended by amending Subsection (b) and adding Subsection (f) to
read as follows:
(b) Except as provided by Subsection (e), the commission by
rule shall provide for licensing for the disposal of radioactive
substances [material except for the disposal of by-product material
defined by Section 401.003(3)(B). The department by rule shall
provide for licensing the disposal of by-product material defined
by Section 401.003(3)(B)].
(f) A separate commercial storage and processing license
may be issued for a site also licensed for disposal under this
chapter.
SECTION 5. Subsection (a), Section 401.106, Health and
Safety Code, is amended to read as follows:
(a) The board or commission by rule may exempt a source of
radiation or a kind of use or user from the licensing or
registration requirements provided by this chapter and under the
agency's jurisdiction if the board or commission finds that the
exemption of that source of radiation or kind of use or user will
not constitute a significant risk to the public health and safety
and the environment.
SECTION 6. Subsection (c), Section 401.108, Health and
Safety Code, is amended to read as follows:
(c) The [department or] commission shall reevaluate every
five years the qualifications and security provided by a license
holder under Subchapter F or Subchapter G. The reevaluation may
coincide with license renewal procedures if renewal and
reevaluation occur in the same year.
SECTION 7. Subsection (b), Section 401.109, Health and
Safety Code, is amended to read as follows:
(b) The [department or] commission shall require a holder of
a license that authorizes the disposal of radioactive substances
[low-level radioactive waste as provided by Subchapter F] to
provide security acceptable to the commission [agency] to assure
performance of the license holder's obligations under this chapter.
SECTION 8. Section 401.111, Health and Safety Code, is
amended to read as follows:
Sec. 401.111. CRITERIA FOR CERTAIN UNSUITABLE NEW SITES.
(a) The [board and] commission [each], in adopting rules for the
issuance of licenses under the commission's jurisdiction [their
respective jurisdictions] for new sites for processing or disposal
of radioactive substances [low-level radioactive waste] from other
persons, shall adopt criteria for the designation of unsuitable
sites, including:
(1) flood hazard areas;
(2) areas with characteristics of discharge from or
recharge of a groundwater aquifer system; or
(3) areas in which soil conditions make spill cleanup
impracticable.
(b) The [board and] commission [each] shall consult with the
advisory board and with the Texas Water Development Board, the
State Soil and Water Conservation Board, the Bureau of Economic
Geology, and other appropriate state agencies in developing
proposed rules. The [board and] commission [each] by rule shall:
(1) require selection of sites in areas in which
natural conditions minimize potential contamination of surface
water and groundwater; and
(2) prohibit issuance of licenses for unsuitable sites
as defined by the rules.
SECTION 9. Section 401.112, Health and Safety Code, is
amended to read as follows:
Sec. 401.112. LOW-LEVEL RADIOACTIVE WASTE PROCESSING OR
DISPOSAL LICENSE APPLICATION AND CONSIDERATIONS. (a) The
[department or] commission[, within its jurisdiction], in making a
licensing decision on a specific license application to process or
dispose of low-level radioactive waste from other persons, shall
consider:
(1) site suitability, geological, hydrological, and
meteorological factors, and natural [naturals] hazards;
(2) compatibility with present uses of land near the
site;
(3) socioeconomic effects on surrounding communities
of operation of the licensed activity and of associated
transportation of low-level radioactive waste;
(4) the need for and alternatives to the proposed
activity, including an alternative siting analysis prepared by the
applicant;
(5) the applicant's qualifications, including
financial and technical qualifications and compliance history
under the method for evaluation of compliance history developed by
the commission under Section 5.754, Water Code, for an application
to the commission [or the requirements of Section 401.110(b) for an
application to the department];
(6) background monitoring plans for the proposed site;
(7) suitability of facilities associated with the
proposed activities;
(8) chemical, radiological, and biological
characteristics of the low-level radioactive waste and waste
classification under Section 401.053;
(9) adequate insurance of the applicant to cover
potential injury to any property or person, including potential
injury from risks relating to transportation;
(10) training programs for the applicant's employees;
(11) a monitoring, record-keeping, and reporting
program;
(12) spill detection and cleanup plans for the
licensed site and related to associated transportation of low-level
radioactive waste;
(13) decommissioning and postclosure care plans;
(14) security plans;
(15) worker monitoring and protection plans;
(16) emergency plans; and
(17) a monitoring program for applicants that includes
prelicense and postlicense monitoring of background radioactive
and chemical characteristics of the soils, groundwater, and
vegetation.
(b) An applicant for the specific license must submit with
the application information necessary for the commission [issuing
agency] to consider the factors under Subsection (a).
(c) The [board and] commission [each within its
jurisdiction] by rule shall provide specific criteria for the
different types of licensed low-level radioactive waste activities
for the listed factors and may include additional factors and
criteria that the [board or] commission[, as appropriate,]
determines necessary for full consideration of a license.
SECTION 10. Subsections (a) and (b), Section 401.113,
Health and Safety Code, are amended to read as follows:
(a) Before a hearing under Section 401.114 begins, the
commission [agency holding the hearing] shall prepare or have
prepared a written analysis of the effect on the environment of a
proposed licensed activity that the commission [agency] determines
has a significant effect on the human environment.
(b) The commission [agency] shall make the analysis
available to the public not later than the 31st day before the date
of a hearing under Section 401.114.
SECTION 11. Section 401.114, Health and Safety Code, is
amended to read as follows:
Sec. 401.114. NOTICE AND HEARING. (a) Before the
[department or] commission[, within its jurisdiction,] grants or
renews a license to process or dispose of low-level radioactive
waste from other persons, the commission [agency] shall give notice
and shall provide an opportunity for a public hearing in the manner
provided by the commission's [agency's] formal hearing procedure
and Chapter 2001, Government Code.
(b) In addition to other notice, the commission [agency]
shall publish notice of the hearing in the manner provided by
Chapter 313, Government Code, in the county in which the proposed
facility is to be located. The notice shall state the subject and
the time, place, and date of the hearing.
(c) The commission [agency] shall mail, by certified mail in
the manner provided by the commission's [agency's] rules, written
notice to each person who owns property adjacent to the proposed
site. The notice must be mailed not later than the 31st day before
the date of the hearing and must include the same information that
is in the published notice. If true, the commission [agency] or the
applicant must certify that the notice was mailed as required by
this subsection, and at the hearing the certificate is conclusive
evidence of the mailing.
SECTION 12. Section 401.116, Health and Safety Code, is
amended to read as follows:
Sec. 401.116. LICENSE AMENDMENT. The commission shall
adopt rules to establish requirements for public notice of and
public participation in the amendment of a license issued under
this subchapter, including both minor and major amendments,
consistent with Section 401.054(c) [(a) An amendment to a license
to process or dispose of low-level radioactive waste from other
persons may take effect immediately.
[(b) The department or commission, as appropriate, shall
publish notice of the license amendment once in the Texas Register
and in a newspaper of general circulation in the county in which the
licensed activity is located and shall give notice to any person who
has notified the agency, in advance, of the desire to receive notice
of proposed amendment of the license.
[(c) Notice under this section must include:
[(1) the identity of the license holder;
[(2) identification of the license; and
[(3) a short and plain statement of the license
amendment's substance.
[(d) The agency shall give notice and hold a hearing to
consider the license amendment if a person affected files a written
complaint with the agency before the 31st day after the date on
which notice is published under Subsection (b). The agency shall
give notice of the hearing as provided by Section 401.114].
SECTION 13. Section 401.117, Health and Safety Code, is
amended to read as follows:
Sec. 401.117. CONSTRUCTION LIMITATION. The [department or]
commission shall prohibit major construction relating to
activities to be permitted under a license issued by the commission
[agency] to process or dispose of low-level radioactive waste from
other persons until the requirements in Sections 401.113 and
401.114 are completed.
SECTION 14. Subsection (a), Section 401.202, Health and
Safety Code, is amended to read as follows:
(a) The commission [or department, within its respective
jurisdiction,] may grant, deny, renew, revoke, suspend, or withdraw
licenses for the disposal of low-level radioactive waste from other
persons and for the processing of that waste.
SECTION 15. Subsections (a) and (b), Section 401.241,
Health and Safety Code, are amended to read as follows:
(a) In determining the amount of security required of a
[compact waste disposal facility license] holder of a license to
dispose of radioactive substances under Section 401.109, the
commission shall also consider the need for financial security to
address and prevent unplanned events that pose a risk to public
health and safety and that may occur after the decommissioning and
closure of the radioactive substances [compact waste] disposal
facility [or a federal facility waste disposal facility licensed
under Section 401.216].
(b) The amount of security required of a compact waste
disposal facility license holder under this section may not be less
than $20 million at the time the disposal facility site is
decommissioned. The commission shall use interest earned on the
security to offset any other financial obligations incurred by the
license holder to the commission. The commission shall establish a
schedule for the total payment of the amount of the security
required under this section based on:
(1) the amount of low-level radioactive waste received
at the site;
(2) the long-term risk to health, safety, and the
environment posed by the waste; and
(3) the need to address and prevent unplanned events
that pose a risk to public health and safety.
SECTION 16. Section 401.262, Health and Safety Code, is
amended to read as follows:
Sec. 401.262. MANAGEMENT OF CERTAIN BY-PRODUCT MATERIAL.
The commission [department] has sole and exclusive authority to
assure that processing and disposal sites are closed and that
by-product material is managed and disposed of in compliance with:
(1) the federal commission's applicable standards; and
(2) closure criteria the federal commission and the
United States Environmental Protection Agency have determined are
protective of human health and safety and the environment.
SECTION 17. Section 401.2625, Health and Safety Code, is
amended to read as follows:
Sec. 401.2625. LICENSING AUTHORITY. The commission
[commissioner] has sole and exclusive authority to grant, deny,
renew, revoke, suspend, amend, or withdraw licenses for source
material recovery and processing or for storage, processing, or
disposal of by-product material.
SECTION 18. Subsections (a), (c), (d), (e), and (f),
Section 401.263, Health and Safety Code, are amended to read as
follows:
(a) If the commission [department] is considering the
issuance, renewal, or amendment of a license to process materials
that produce by-product materials or a license to dispose of
by-product material and the commission [department] determines
that the licensed activity will have a significant impact on the
human environment, the commission [department] shall prepare or
have prepared a written environmental analysis.
(c) The commission [department] shall give notice of the
analysis as provided by commission [board] rule and shall make the
analysis available to the public for written comment not later than
the 31st day before the date of the hearing on the license.
(d) After notice is given, the commission [department]
shall provide an opportunity for written comments by persons
affected.
(e) The analysis shall be included as part of the record of
the commission's [department's] proceedings.
(f) The commission [board] by rule shall prohibit major
construction with respect to an activity that is to be licensed
until the requirements of Subsections (a), (b), (c), and (e) are
completed.
SECTION 19. Subsections (a), (c), and (d), Section 401.264,
Health and Safety Code, are amended to read as follows:
(a) The commission [department] on its own motion may or on
the written request of a person affected shall provide an
opportunity for a public hearing on an application over which the
commission [department] has jurisdiction to determine whether to
issue, renew, or amend a license to process materials that produce
by-product materials or a license to dispose of by-product
materials in the manner provided by Chapter 2001, Government Code,
and permit appearances with or without counsel and the examination
and cross-examination of witnesses under oath.
(c) The commission [department] shall make a record of the
proceedings and provide a transcript of the hearing on request of,
and payment for, the transcript or provision of a sufficient
deposit to assure payment by any person requesting the transcript.
(d) The commission [department] shall provide an
opportunity to obtain a written determination of action to be
taken. The determination must be based on evidence presented to the
commission [department] and include findings. The written
determination is available to the public.
SECTION 20. Section 401.265, Health and Safety Code, is
amended to read as follows:
Sec. 401.265. CONDITIONS OF CERTAIN BY-PRODUCT MATERIAL
LICENSES. The commission [department] shall prescribe conditions
in a radioactive substances [material] license issued, renewed, or
amended for an activity that results in production of by-product
material to minimize or, if possible, eliminate the need for
long-term maintenance and monitoring before the termination of the
license, including conditions that:
(1) the license holder will comply with the applicable
decontamination, decommissioning, reclamation, and disposal
standards that are prescribed by the commission [board] and that
are compatible with the federal commission's standards for sites at
which those ores were processed and at which the by–product
material is deposited; and
(2) the ownership of a disposal site, other than a
disposal well covered by a permit issued under Chapter 27, Water
Code, licensed on-site waste disposal associated with a licensed in
situ leach uranium recovery facility, and the by-product material
resulting from the licensed activity are transferred, subject to
Sections 401.266-401.269, to:
(A) the state; or
(B) the federal government if the state declines
to acquire the site, the by-product material, or both the site and
the by-product material.
SECTION 21. Subsection (a), Section 401.266, Health and
Safety Code, is amended to read as follows:
(a) The commission [board] by rule or [order or the
department by] order may require that before a license covering
land used for the disposal of by-product material is terminated,
the land, including any affected interests in the land, must be
transferred to the federal government or to the state unless:
(1) the federal commission determines before the
license terminates that the transfer of title to the land and the
by-product material is unnecessary to protect the public health,
safety, or welfare or to minimize danger to life or property; or
(2) the land is held in trust by the federal government
for an Indian tribe, is owned by an Indian tribe subject to a
restriction against alienation imposed by the federal government,
is owned by the federal government, or is owned by the state.
SECTION 22. Section 401.267, Health and Safety Code, is
amended to read as follows:
Sec. 401.267. ACQUISITION AND SALE OF CERTAIN BY-PRODUCT
MATERIALS AND SITES. (a) The commission [department] may acquire
by-product material and fee simple title in land, affected mineral
rights, and buildings at which that by-product material is disposed
of and abandoned so that the by-product material and property can be
managed in a manner consistent with protecting public health,
safety, and the environment.
(b) The commission [department] may sell land acquired
under this section at the land's fair market value after the
commission [department] has taken corrective action to restore the
land to a condition that does not compromise the public health or
safety or the environment. The General Land Office shall negotiate
and close a transaction under this subsection on behalf of the
commission [department] using procedures under Section 31.158(c),
Natural Resources Code. Proceeds from the transaction shall be
deposited in the Texas capital trust fund.
SECTION 23. Section 401.269, Health and Safety Code, is
amended to read as follows:
Sec. 401.269. MONITORING, MAINTENANCE, AND EMERGENCY
MEASURES. (a) The commission [department] may undertake
monitoring, maintenance, and emergency measures in connection with
by-product material and property for which it has assumed custody
under Section 401.267 that are necessary to protect the public
health and safety and the environment.
(b) The commission [department] shall maintain the
by-product material and property transferred to it in a manner that
will protect the public health and safety and the environment.
SECTION 24. Subsections (a), (b), (e), and (f), Section
401.270, Health and Safety Code, are amended to read as follows:
(a) If the commission [department] finds that by-product
material or the operation by which that by-product material is
derived threatens the public health and safety or the environment,
the commission [department] by order may require any action,
including a corrective measure, that is necessary to correct or
remove the threat.
(b) The commission [department] may issue an emergency
order to a person responsible for an activity, including a past
activity, concerning the recovery or processing of source material
or the disposal of by-product material if it appears that there is
an actual or threatened release of source material or by-product
material that presents an imminent and substantial danger to the
public health and safety or the environment, regardless of whether
the activity was lawful at the time. The emergency order may be
issued without notice or hearing.
(e) The commission [department] shall use the security
provided by the license holder to pay the costs of actions that are
taken or that are to be taken under this section. The commission
[department] shall send to the comptroller a copy of its order
together with necessary written requests authorizing the
comptroller to:
(1) enforce security supplied by the licensee;
(2) convert an amount of security into cash, as
necessary; and
(3) disburse from the security in the perpetual care
account the amount necessary to pay the costs.
(f) If an order issued by the commission [department] under
this section is adopted without notice or hearing, the order shall
set a time, at least 10 but not more than 30 days following the date
of issuance of the emergency order, and a place for a hearing to be
held in accordance with the rules of the commission [board]. As a
result of this hearing, the commission [department] shall decide
whether to affirm, modify, or set aside the emergency order. All
provisions of the emergency order shall remain in force and effect
during the pendency of the hearing, unless otherwise altered by the
commission [department].
SECTION 25. Subchapter G, Chapter 401, Health and Safety
Code, is amended by adding Sections 401.271 and 401.272 to read as
follows:
Sec. 401.271. STATE FEE ON RADIOACTIVE SUBSTANCES. (a) A
holder of a license issued by the commission under this chapter that
authorizes the disposal of a radioactive substance from other
persons shall remit each quarter an amount equal to 10 percent of
the license holder's gross receipts received from disposal
operations under a license issued under this chapter that occur
after the effective date of the Act enacting this section as
follows:
(1) eight percent shall be remitted to the comptroller
for deposit into the general revenue fund; and
(2) two percent shall be remitted to the host county in
accordance with Sections 401.244(b) and (d).
(b) Subsection (a) does not apply to compact waste or
federal facility waste as defined by Section 401.2005, or
industrial solid waste as defined by Section 361.003.
Sec. 401.272. AUDIT AUTHORITY. The commission may audit a
license holder's financial records and waste manifest information
to ensure that the fees imposed under this chapter are accurately
paid. The license holder shall comply with the commission's
audit–related requests for information.
SECTION 26. Section 401.301, Health and Safety Code, is
amended to read as follows:
Sec. 401.301. LICENSE AND REGISTRATION FEES [COLLECTED BY
DEPARTMENT]. (a) The commission and department may collect a fee
for each license and registration the agency [it] issues.
(b) The commission and the board each by rule shall set the
fee in an amount that may not exceed the actual expenses annually
incurred to:
(1) process applications for licenses or
registrations;
(2) amend or renew licenses or registrations;
(3) make inspections of license holders and
registrants; and
(4) enforce this chapter and rules, orders, licenses,
and registrations under this chapter.
(c) The commission and department may collect a fee, in
addition to the annual license and registration fee, of not less
than 20 percent of the amount of the annual license and registration
fee nor more than $10,000 per annum from each licensee or registrant
who fails to pay the fees authorized by this section.
(d) The commission and department may require that each
person who holds a specific license issued by the agency
[department] annually pay to the agency [department] an additional
five percent of the appropriate annual fee set under Subsection
(b). Fees collected under this subsection shall be deposited to the
credit of the perpetual care account. The fees are not refundable.
(e) The commission and department shall suspend assessment
of a fee imposed under Subsection (d) if the amount of fees
collected under that subsection reaches $500,000. If the balance
of fees collected subsequently is reduced to $350,000 or less, the
commission and department shall reinstitute assessment of the fee
until the balance reaches $500,000.
(f) The commission may assess and collect additional fees
from the applicant to recover the costs the commission incurs for
administrative review, technical review, and hearings on the
application.
SECTION 27. Subsection (a), Section 401.302, Health and
Safety Code, is amended to read as follows:
(a) The department, in coordination with the commission,
may set and collect an annual fee from the operator of each nuclear
reactor or other fixed nuclear facility in the state that uses
special nuclear material.
SECTION 28. Subsections (c), (e), (f), and (g), Section
401.305, Health and Safety Code, are amended to read as follows:
(c) Money and security in the perpetual care account may be
administered by the department or commission only for the
decontamination, decommissioning, stabilization, reclamation,
maintenance, surveillance, control, storage, and disposal of
radioactive substances [material] for the protection of the public
health and safety and the environment under this chapter and for
refunds under Section 401.303.
(e) The department or commission may use money in the
perpetual care account to pay for measures:
(1) to prevent or mitigate the adverse effects of
abandonment of radioactive substances [materials], default on a
lawful obligation, insolvency, or other inability by the holder of
a license issued by the department or commission to meet the
requirements of this chapter or of department or commission rules;
and
(2) to assure the protection of the public health and
safety and the environment from the adverse effects of ionizing
radiation.
(f) The department or commission may provide, by the terms
of a contract or lease entered into between the department or
commission and any person or by the terms of a license issued by the
department or commission to any person, for the decontamination,
closure, decommissioning, reclamation, surveillance, or other care
of a site or facility subject to department or commission
jurisdiction under this chapter as needed to carry out the purpose
of this chapter.
(g) The existence of the perpetual care account does not
make the department or commission liable for the costs of
decontamination, transfer, transportation, reclamation,
surveillance, or disposal of radioactive substances [material]
arising from a license holder's abandonment of radioactive
substances [material], default on a lawful obligation, insolvency,
or inability to meet the requirements of this chapter or of
department or commission rules.
SECTION 29. Section 401.343, Health and Safety Code, is
amended to read as follows:
Sec. 401.343. RECOVERY OF SECURITY. (a) The department or
commission shall seek reimbursement, either by an order of the
department or commission or a suit filed by the attorney general at
the [department's] request of the department or commission, of
security from the perpetual care account used by the department or
commission to pay for actions, including corrective measures, to
remedy spills or contamination by radioactive substances
[material] resulting from a violation of this chapter relating to
an activity under the [department's] jurisdiction of the department
or commission or a violation of a rule, license, registration, or
order adopted or issued by the department or commission under this
chapter.
(b) On request by the department or commission, the attorney
general shall file suit to recover security under this section.
SECTION 30. The heading to Subchapter K, Chapter 401,
Health and Safety Code, is amended to read as follows:
SUBCHAPTER K. LICENSING AUTHORITY OF TEXAS [NATURAL RESOURCE
CONSERVATION] COMMISSION ON ENVIRONMENTAL QUALITY AND THE RAILROAD
COMMISSION OF TEXAS
SECTION 31. Subsections (a) and (b), Section 401.412,
Health and Safety Code, are amended to read as follows:
(a) Notwithstanding any other provision of this chapter and
subject to Sections 401.102 and 401.415, the commission has sole
and exclusive authority to directly regulate and to grant, deny,
renew, revoke, suspend, amend, or withdraw licenses for the
disposal of radioactive substances. [In this subsection,
"radioactive substance" does not include by-product material as
defined by Section 401.003(3)(B).]
(b) Notwithstanding any other provision of this chapter,
the commission [commissioner] has the sole and exclusive authority
to grant, deny, renew, revoke, suspend, amend, or withdraw licenses
for the recovery and processing of source material or disposal of
by-product material under Subchapter G.
SECTION 32. Section 401.413, Health and Safety Code, is
amended to read as follows:
Sec. 401.413. COMMISSION DISPOSAL LICENSE REQUIRED. A
person required by another section of this chapter to obtain a
license for the disposal of a radioactive substance is required to
obtain the license from the commission and not from the department.
[This section does not apply to a person required to obtain a
license for recovery or processing of source material or for
recovery, processing, or disposal of by-product material as defined
by Section 401.003(3)(B).]
SECTION 33. Section 401.414, Health and Safety Code, is
amended to read as follows:
Sec. 401.414. MEMORANDA [MEMORANDUM] OF UNDERSTANDING. The
Texas [Natural Resource Conservation] Commission on Environmental
Quality, the Health and Human Services Commission, and the Railroad
Commission of Texas [and the board of health] by rule shall adopt
memoranda [a memorandum] of understanding defining their
respective duties under this chapter.
SECTION 34. Section 401.415, Health and Safety Code, is
amended by amending Subsections (a), (d), and (e) and adding
Subsection (f) to read as follows:
(a) Notwithstanding any other provision of this chapter,
the Railroad Commission of Texas:
(1) has sole authority to regulate and issue licenses,
permits, and orders, and establish fees to pay for costs to regulate
the processing, storage, and disposal of oil and gas NORM waste and
the decontamination and maintenance of oil-field equipment; and
(2) may, in order to protect public health and safety
and the environment, require the owner or operator of oil and gas
equipment used in exploration, production, or disposal to:
(A) determine whether the equipment contains or
is contaminated with oil and gas NORM waste; and
(B) identify any equipment determined to contain
or be contaminated with oil and gas NORM.
(d) The Railroad Commission of Texas shall consult with the
department and the commission [Texas Natural Resource Conservation
Commission] as appropriate regarding administration of this
section.
(e) To ensure that the State of Texas retains its Agreement
Status with the U.S. Nuclear Regulatory Commission, and to ensure
that radioactive materials are managed consistently to protect the
public health and safety and the environment, the Railroad
Commission of Texas shall issue rules on the management of oil and
gas NORM waste, including rules governing processing, storage, and
disposal of the waste, decontamination and maintenance of oil-field
equipment, and fees established pursuant to Subsection (a). In
developing those rules, the railroad commission [and in so doing]
shall consult with the commission [Texas Natural Resource
Conservation Commission] and the department [Department of Health]
regarding protection of the public health and the environment. The
rules of the railroad commission shall provide protection for
public health, safety, and the environment equivalent to the
protection provided by rules of the commission applicable to
processing, storage, and disposal of other NORM wastes having
similar properties, quantities, and distribution[, although the
approved methods and sites for disposing of oil and gas NORM wastes
may be different from those approved for other NORM wastes].
(f) In adopting a fee structure, the Railroad Commission of
Texas may consider any factors necessary to provide for the
equitable allocation among NORM operators of the costs of
administering the railroad commission's oil and gas NORM program
under this section. The total amount of fees estimated to be
collected under rules adopted by the railroad commission under this
section may not exceed the estimated costs of administering the
railroad commission's oil and gas NORM program under this section.
SECTION 35. Section 361.015, Health and Safety Code, is
amended to read as follows:
Sec. 361.015. JURISDICTION: RADIOACTIVE WASTE. (a) The
commission is the state agency under Chapter 401 that licenses and
regulates radioactive waste storage, processing, and disposal
activities not preemptively regulated by the federal government.
(b) Except as provided by Subsection (a), the Health and
Human Services Commission, acting through the Department of State
Health Services or other department as designated by the executive
commissioner of the Health and Human Services Commission, [The
Texas Department of Health] is the state agency under Chapter 401
that regulates radioactive waste activities[, excluding disposal,]
not preemptively regulated by the federal government.
(c) The Railroad Commission of Texas is the state agency
that licenses and regulates the possession, storage, processing,
handling, and disposal of oil and gas NORM waste and the
decontamination and maintenance of oil-field equipment.
SECTION 36. Subchapter B, Chapter 27, Water Code, is
amended by adding Section 27.023 to read as follows:
Sec. 27.023. AUTHORIZATION FOR AREA-WIDE IN SITU MINING OF
RADIOACTIVE SUBSTANCES. (a) As a component of an injection well
permit, the commission may issue an authorization for in situ
mining of radioactive substances in a specified production area.
The authorization may not contain a provision that requires any
additional approval of the commission or any additional hearing for
the permit holder to conduct minor in situ mining in the production
area. The commission by rule shall define the difference between
major and minor in situ mining.
(b) On or after the effective date of the Act enacting this
section, a rule or provision of a permit or order of the commission
that requires additional approval of the commission or an
additional hearing for the permit holder to conduct minor in situ
mining in the production area specified in an injection well permit
is not effective. Notwithstanding any provision of this code or of
a commission rule or order, an application for minor in situ
authorization is not subject to a contested case hearing,
regardless of when the application is submitted.
(c) This section does not affect the authority of the
commission to:
(1) revoke, suspend, or amend a permit issued under
this chapter;
(2) investigate a permit holder or an action taken
under or in violation of a permit issued under this chapter; or
(3) enforce a provision of a permit issued under this
chapter.
(d) The change in law made by this section does not affect
any matter that is a subject of litigation on or before November 1,
2005. An administrative law judge presiding over a licensure
proceeding under this section shall expedite the procedures
necessary to complete the hearing in a timely manner.
SECTION 37. (a) On the earlier of the 31st day after the
effective date of this Act or November 1, 2005, the following
rights, powers, duties, obligations, functions, activities,
property, programs, and appropriations are transferred to the Texas
Commission on Environmental Quality:
(1) all rights, powers, duties, obligations,
functions, and activities:
(A) that Chapter 401, Health and Safety Code,
assigns to the Texas Department of Health, the Texas Board of
Health, or their successor agencies or to the governing body,
officers, or employees of that department, that board, or their
successor agencies, including the Health and Human Services
Commission and the Department of State Health Services; and
(B) that are related to licensing and regulation
of:
(i) radioactive substances recovery,
storage, processing, and disposal; or
(ii) long-term care of decommissioned sites
for disposal of by-product material;
(2) all equipment, information, documents,
facilities, and other property of the Health and Human Services
Commission or the Department of State Health Services pertaining to
licensing and regulation of:
(A) radioactive substances recovery, storage,
processing, and disposal under the jurisdiction of the Texas
Commission on Environmental Quality as provided by Subsection (b),
Section 401.011, Health and Safety Code, as amended by this Act; or
(B) long-term care of decommissioned sites for
disposal of by-product material;
(3) all appropriations for the state fiscal biennium
that begins September 1, 2005, made to the Health and Human
Services Commission or the Department of State Health Services for
activities related to licensing and regulation of:
(A) radioactive substances recovery, storage,
processing, and disposal under the jurisdiction of the Texas
Commission on Environmental Quality as provided by Subsection (b),
Section 401.011, Health and Safety Code, as amended by this Act; or
(B) long-term care of decommissioned sites for
disposal of by-product material; and
(4) the unexpended and unobligated portions of the
appropriations for the state fiscal biennium beginning
September 1, 2003, made to the Health and Human Services Commission
or the Department of State Health Services for activities described
by Subdivision (3) of this subsection.
(b) Appropriations transferred under Subdivision (4),
Subsection (a) of this section, are transferred for the remainder
of that state fiscal biennium.
(c) The Texas Commission on Environmental Quality, as of the
date of the transfer prescribed by Subsection (a) of this section,
has full responsibility for the administration and enforcement of
laws related to licensing or regulation of radioactive substances
recovery, storage, processing, and disposal under the jurisdiction
of the commission as provided by Subsection (b), Section 401.011,
Health and Safety Code, as amended by this Act, and licensing or
regulation of long–term care of decommissioned sites for the
disposal of by-product material. The Texas Commission on
Environmental Quality shall carry out all related duties,
responsibilities, functions, and activities as provided by law,
including those assigned by any other Acts of the 79th Legislature,
Regular Session or 1st Called Session, 2005.
(d) The transfer of rights, powers, duties, obligations,
functions, activities, property, and programs of the Health and
Human Services Commission or the Department of State Health
Services to the Texas Commission on Environmental Quality made by
this Act does not affect or impair any act done or obligation,
right, license, permit, requirement, or penalty accrued or existing
under the former law; that law remains in effect for the purposes of
any action concerning such an act done or obligation, right,
license, permit, requirement, or penalty. The Texas Commission on
Environmental Quality shall continue a proceeding of the Health and
Human Services Commission or the Department of State Health
Services that is related to a responsibility, duty, activity,
function, or program transferred by this Act, including processing
an application for a license or other authorization and including
enforcing the requirements of Chapter 401, Health and Safety Code,
or a rule adopted under that chapter. A rule of the Health and Human
Services Commission or the Department of State Health Services
related to a responsibility, duty, activity, function, or program
transferred by this Act is enforceable as a rule of the Texas
Commission on Environmental Quality until the Texas Commission on
Environmental Quality adopts other rules.
(e) Control of and title to all property and material
acquired by this state or an agency of this state under Section
401.267, Health and Safety Code, before the effective date of this
Act shall be transferred to the Texas Commission on Environmental
Quality on this state's behalf as soon as practicable. This section
does not apply to property or material sold by the state under
Subsection (b) of that section before the effective date of this
Act.
(f) The Texas Commission on Environmental Quality shall
provide an opportunity for employees of the Health and Human
Services Commission or the Department of State Health Services who
have performed duties related to a right, power, duty, obligation,
responsibility, function, activity, or program transferred by this
Act to request a transfer to commission employment. In making
employment decisions under this subsection, the Texas Commission on
Environmental Quality shall:
(1) ensure that state and federal requirements are met
by commission employees; and
(2) consider the value of maintaining continuity in
the personnel staffing relevant programs.
(g) The Texas Commission on Environmental Quality, the
Health and Human Services Commission, and the Department of State
Health Services by interagency agreement or contract shall
cooperate in preventing any delay that may be caused by or may occur
in the transfer of property or personnel or a right, power, duty,
obligation, responsibility, function, activity, or program made by
this Act.
(h) The transfers made by this Act do not affect any matter
that is the subject of litigation pending on the effective date of
this Act.
(i) The Texas Commission on Environmental Quality shall
continue any applications review or processing and any hearings
that concern a matter subject to transfer under Subsection (a) of
this section that, on the date of the transfer, is being conducted
by the Health and Human Services Commission or the Department of
State Health Services or their successor agencies. The agencies
shall cooperate and consult with each other to ensure that any delay
necessitated by the transfer is minimized to the greatest extent
possible. The Texas Commission on Environmental Quality shall
utilize progress made on any technical review or environmental
analysis conducted by the department prior to the effective date of
this Act.
(j) An application for the renewal or amendment of a license
to recover or process source material and to dispose of the
associated by-product material that was received prior to January
1, 2005, and is pending with the Department of State Health Services
on August 31, 2005, is considered, based on federal requirements,
approved by the Texas Commission on Environmental Quality on
September 1, 2006, unless the Texas Commission on Environmental
Quality before that date determines that the application should not
be approved because of a health or safety emergency or because the
applicant substantially fails to meet application requirements.
(k) On or before the earlier of the 31st day after the
effective date of this Act or November 30, 2005, the Department of
State Health Services shall:
(1) approve any pending remediation plan that is
subject to the transfer required under this section, according to
federal requirements;
(2) inspect the related remediation sites to ensure
that remedial actions have been completed according to the approved
plan; and
(3) report to the federal Nuclear Regulatory
Commission the department's approval of the plan and the results of
the inspection under Subdivisions (1) and (2) of this subsection.
(l) A remediation plan that is subject to the transfer
required under this section the approval of which is pending with
the Department of State Health Services on the earlier of the 31st
day after the effective date of this Act or November 30, 2005, is
considered, based on federal requirements, approved by the
department on the earlier of the 90th day after the effective date
of this Act or December 31, 2005, unless the department or the Texas
Commission on Environmental Quality before that date determines
that the plan should not be approved because of a health or safety
emergency or because the plan substantially fails to meet
requirements for approval.
(m) Notwithstanding the changes to Chapter 401, Health and
Safety Code, made by this Act, the Department of State Health
Services shall retain jurisdiction over, and render a final
decision on, an application for an amended license to store or
process radioactive substances that was filed with the department
on or before January 1, 2005, and that has been referred to the
State Office of Administrative Hearings by the department before
the effective date of this Act. A license application subject to
this subsection is governed only by the laws of the state and the
rules and regulations of the department effective at the time the
application was filed. Once a final decision is rendered by the
department, jurisdiction over any license issued shall be
transferred to the Texas Commission on Environmental Quality.
(n) An application for a new license to dispose of
by-product material that is filed with the Department of State
Health Services on or before January 1, 2005, and that has not been
referred to the State Office of Administrative Hearings by the
department before the effective date of this Act shall be processed
by the Texas Commission on Environmental Quality following the
effective date of this Act as follows:
(1) a license application subject to this subsection
shall be governed only by the rules and regulations of the
department effective at the time such application was filed;
(2) if this Act takes effect immediately, the
commission shall complete any technical review of a license
application subject to this subsection and issue a draft permit no
later than March 1, 2006. If this Act takes effect on November 1,
2005, the commission shall complete any technical review of a
license application subject to this subsection and issue a draft
permit no later than April 15, 2006. The commission shall utilize
progress made on any technical review or environmental analysis
conducted by the department before the effective date of this Act.
In order to meet the applicable deadline above, the commission may
contract with the department or other entities for completion of
any portion of the technical review that has not been completed upon
the effective date of this Act. The commission may assess and
collect additional fees from the applicant to recover costs the
commission incurs for technical review of a license application
subject to this subsection;
(3) if this Act takes effect immediately, the
commission shall render a final decision on a license application
subject to this subsection no later than March 1, 2007. If this Act
takes effect on November 1, 2005, the commission shall render a
final decision on a license application subject to this subsection
no later than April 15, 2007; and
(4) a contested case hearing held on a license
application subject to this subsection that was filed with the
department on or before January 1, 2005, may not exceed one year in
duration, measured from the date of referral by the commission of
the application to the State Office of Administrative Hearings
until the commission makes a final decision on the application.
Discovery in such a hearing shall be limited to not more than 60
days in order to meet this limitation. Notice of hearing shall be
provided to the applicant, the office of public interest counsel,
the executive director of the commission, and the person who timely
requested a contested case hearing by mail at least 10 days in
advance of the hearing.
SECTION 38. (a) In this section, "license" means a license
that authorizes the license holder to receive, process, store, and
transfer by-product material, as defined by Paragraph (B),
Subdivision (3), Section 401.003, Health and Safety Code.
(b) On the effective date of this Act, a condition of a
license that would subject the license holder to a civil or
administrative penalty for the license holder's failure to transfer
by-product material to certain disposal sites by a certain date is
void.
SECTION 39. (a) This Act does not impair, delay, or affect
the priority established by law for processing and review of the
application for a license to dispose of low-level radioactive waste
that was filed with the Texas Commission on Environmental Quality
before January 1, 2005.
(b) The Texas Commission on Environmental Quality shall
give priority to the processing and review of a license application
described by Subsection (a) of this section over all other
applications that pertain to radioactive substances or radioactive
waste pending before the commission except for those applications
the executive director of the Texas Commission on Environmental
Quality determines are necessarily of a higher priority to avert or
address an emergency concerning the public health or safety.
(c) Subject to the priority given under Subsection (b) of
this section to the application, the Texas Commission on
Environmental Quality shall give priority to the review and
processing of:
(1) an application for the commercial disposal of
by-product material;
(2) an application for termination of a license to
recover or process source material and dispose of associated
by-product material generated in this state; and
(3) a new application for a permit to recover or
process source material and dispose of associated by-product
material generated in this state.
SECTION 40. Notwithstanding other law or any rule on the
subject of timeliness of an applicant providing information
pertaining to an application for a license from the Texas
Commission on Environmental Quality, the applicant for a license
shall assist the commission in meeting any deadlines imposed by
Chapter 401, Health and Safety Code, by submitting to the
commission any information the commission requires regarding the
application in a prompt and timely manner.
SECTION 41. (a) On the earlier of the 31st day after the
effective date of this Act or November 1, 2005:
(1) all money appropriated to the Department of State
Health Services for the regulation of the commercial storage and
processing and the disposal of radioactive waste, except money
related to the regulation of oil and gas naturally occurring
radioactive material waste, is transferred to the Texas Commission
on Environmental Quality, including $447,608 out of the General
Revenue Fund in each fiscal year of the state fiscal biennium
beginning September 1, 2005; and
(2) eight full-time equivalent employees of the
Department of State Health Services working in the regulation of
the commercial storage and processing and the disposal of
radioactive waste, except those employees whose work is related to
the regulation of oil and gas naturally occurring radioactive
material waste, are transferred to the Texas Commission on
Environmental Quality.
(b) Fee revenues deposited to the credit of the General
Revenue Fund (No. 0001), Revenue Code 3589, are appropriated to the
Texas Commission on Environmental Quality in the amounts not to
exceed $1,181,156 for the state fiscal year beginning September 1,
2005, and not to exceed $1,064,656 for the state fiscal year
beginning September 1, 2006.
(c) The Texas Commission on Environmental Quality shall use
the appropriated money to regulate radioactive waste as provided by
Chapter 401, Health and Safety Code.
(d) The number of full-time equivalent employees authorized
for the Texas Commission on Environmental Quality is increased by
eight for each fiscal year of the state fiscal biennium beginning
September 1, 2005.
(e) The governor with the advice of the Legislative Budget
Board may resolve any disputes concerning the transfer of
appropriations and employees from the Department of State Health
Services to the Texas Commission on Environmental Quality under
this Act.
SECTION 42. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect November 1, 2005.
* * * * *