79R5929 JJT-D
By: Duncan S.B. No. 1667
A BILL TO BE ENTITLED
AN ACT
relating to transferring certain responsibilities of the
Department of State Health Services concerning radioactive
materials to the Texas Commission on Environmental Quality;
imposing fees and surcharges.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 401.003(2), (4), (5), and (6), Health
and Safety Code, are amended 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.
SECTION 2. Sections 401.011(a) and (b), 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;
(3) the recovery or processing of source material;
(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 401.104(b), Health and Safety Code, is
amended to read as follows:
(b) Except as provided by Subsection (e), the commission by
rule shall provide for licensing for the disposal of radioactive
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)].
SECTION 4. Section 401.106(a), 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 5. Section 401.108(c), 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 6. Section 401.109(b), 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 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 7. 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 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
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 8. 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 9. Sections 401.113(a) and (b), 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 10. 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 11. 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. [(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 12. 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 13. Section 401.202(a), 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 14. 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 15. 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 16. Sections 401.263(a), (c), (d), (e), and (f),
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 17. Sections 401.264(a), (c), and (d), 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 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 18. 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 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, 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 19. Section 401.266(a), 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 20. 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 21. 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 22. Sections 401.270(a), (b), (e), and (f), 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 23. 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 24. Sections 401.412(a) and (b), 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 25. 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 26. Section 401.414, Health and Safety Code, is
amended to read as follows:
Sec. 401.414. MEMORANDUM OF UNDERSTANDING. The Texas
[Natural Resource Conservation] Commission on Environmental
Quality, the Health and Human Services Commission, the Railroad
Commission of Texas, and the department [and the board of health] by
rule shall adopt a memorandum of understanding defining their
respective duties under this chapter.
SECTION 27. Sections 401.415(d) and (e), Health and Safety
Code, are amended to read as follows:
(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 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
applicable to 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.
SECTION 28. Chapter 401, Health and Safety Code, is amended
by adding Subchapter M to read as follows:
SUBCHAPTER M. FEES AND SURCHARGES
Sec. 401.451. STATE FEE ON RADIOACTIVE SUBSTANCES DELIVERED
FOR STORAGE, PROCESSING, OR DISPOSAL. (a) A holder of a license
issued by the commission under this chapter that authorizes the
storage, processing, or disposal of a radioactive substance shall
transfer to the state general revenue fund each quarter an amount
equal to 10 percent of the license holder's gross receipts received
from operations under the license.
(b) Subsection (a) does not apply to the gross receipts of
the compact waste disposal facility license holder that are subject
to Section 401.2445.
Sec. 401.452. SURCHARGE ON RADIOACTIVE SUBSTANCES
DELIVERED FOR STORAGE, PROCESSING, OR DISPOSAL. (a) A holder of a
license issued by the commission under this chapter that authorizes
the storage, processing, or disposal of a radioactive substance, on
the delivery of the radioactive substance to the license holder,
shall collect a surcharge as provided by this section from the
person who delivers the radioactive substance to the license
holder. The license holder shall transfer to the state general
revenue fund an amount equal to the surcharges collected during
each calendar quarter under this section as provided by commission
rule.
(b) The commission by rule shall establish and shall
periodically revise a schedule of surcharges imposed by Subsection
(a) with multipliers to impose surcharges in varying amounts based
on the types of the radioactive substances, the hazard presented by
the radioactive substances and any materials, chemicals,
biological hazards, or items with which the radioactive substances
are mixed or shipped, and the size of the shipment. The surcharge
does not apply to the delivery of compact waste under Subchapter F.
(c) In considering the hazard presented by radioactive
substances and any materials, chemicals, biological hazards, or
items with which radioactive substances may be mixed or shipped,
the commission shall consider:
(1) the radiation dose rate of the radioactive
substances, measured in roentgens per hour;
(2) the curie content of the radioactive substances,
measured in picocuries per volume of the substances shipped or
measured by millicuries per shipment;
(3) the radioactive half-life of the radioactive
substances;
(4) additional hazards that may be presented by the
shipment, including whether the radioactive substances or an
associated material, chemical, biological hazard, or item requires
special precautions in handling, processing, storage, or disposal;
and
(5) the radioactive, physical, and chemical
properties of each type of radioactive substance.
(d) Rules adopted under this section may include provisions
establishing:
(1) classification of customers and services; and
(2) applicability of fees.
(e) The commission shall consult with the advisory board and
the Legislative Budget Board and consider the recommendations of
those boards before adopting or amending the surcharge rate
schedule required by Subsection (b).
(f) A rule or order adopted by the commission under this
section may not conflict with a ruling of a federal regulatory body.
Sec. 401.453. AUDIT AUTHORITY. The commission may audit a
license holder's financial records to ensure that the fees and
surcharges imposed under this subchapter are accurately paid. The
license holder shall comply with the commission's audit-related
requests for information.
SECTION 29. 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 [The Texas]
Department of State Health Services or other department designated
by the executive commissioner of the Health and Human Services
Commission, is the state agency under Chapter 401 that regulates
radioactive waste activities[, excluding disposal,] not
preemptively regulated by the federal government.
SECTION 30. (a) On the earlier of the 31st day after the
effective date of this Act or September 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 Section
401.011(b), 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 Section
401.011(b), 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 Subsection (a)(4) of
this section are transferred for the remainder of that state fiscal
biennium.
(c) The Texas Commission on Environmental Quality may not
charge a fee for an application that is pending before the Health
and Human Services Commission or the Department of State Health
Services on the date the transfer directed by Subsection (a) of this
section occurs.
(d) 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 Section 401.011(b), 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, 2005.
(e) 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 that commission adopts
other rules.
(f) 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.
(g) 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 federal requirements for engineering
expertise are met by commission employees; and
(2) consider the value of maintaining continuity in
the personnel staffing relevant programs.
(h) 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.
(i) 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.
(j) 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.
SECTION 31. (a) For an amendment of an existing license
that authorizes storage or processing of radioactive substances
from other persons the application for which is pending on the
effective date of this Act:
(1) the Texas Commission on Environmental Quality or
the executive director of the commission may provide for the
amendment, if granted, to take effect immediately;
(2) the Texas Commission on Environmental Quality
shall publish notice of the application once in the Texas Register
and once in a newspaper of general circulation in the county in
which the activity to be licensed would be located; and
(3) the Texas Commission on Environmental Quality
shall hold a hearing to consider the amendment if a person affected
files a written complaint with the commission not later than the
30th day after the date on which the notice described by Subdivision
(2) of this section is published.
(b) The Texas Commission on Environmental Quality shall
give notice to any person who has notified the commission in advance
that the person desires to receive notice of the proposed
amendment.
(c) Notice published under Subsection (a)(2) of this
section and notice under Subsection (b) of this section must
include the identity of the license holder, the identification of
the license, and a short and plain statement of the substance of the
proposed amendment.
(d) If a hearing is held under Subsection (a)(3) of this
section, the Texas Commission on Environmental Quality shall give
notice of the hearing as provided by Section 401.114, Health and
Safety Code, as amended by this Act.
(e) For purposes of Subsection (a)(3) of this section,
"person affected" has the meaning assigned by Section 401.003(15),
Health and Safety Code.
SECTION 32. 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 September 1, 2005.