Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. The
purpose of this Memorandum of Understanding (MOU) between the Department of
State Health Services (DSHS) and the Texas Commission on Environmental Quality
(TCEQ) regarding the regulation of sources of radiation is to acknowledge each
agency's respective jurisdiction and duties under Health and Safety Code (HSC),
Chapter 401. Pursuant to HSC, §401.414, the separate areas of each
agency's jurisdiction are articulated; and the duties and responsibilities of
and between the two agencies are clarified. This MOU is adopted between DSHS
and TCEQ to ensure that regulation of radiation sources is consistent with HSC,
Chapter 401; avoids duplication of effort; and results in a well-coordinated,
consistent regulatory scheme.
(b)
Definitions. The words and terms used in this section shall have the same
meaning as defined in the HSC, §401.003, unless the context clearly
indicates otherwise.
(c)
Jurisdiction.
(1) DSHS is the Texas Radiation
Control Agency. DSHS has jurisdiction over activities and substances regulated
under HSC, Chapter 401, except as provided by HSC, §401.011(b) and
Subchapters E, F, G, and K of Chapter 401.
(2) TCEQ has jurisdiction to regulate and
license:
(A) the disposal of radioactive
substances;
(B) the processing or
storage of low-level radioactive waste or naturally occurring radioactive
material (NORM) waste received from other persons, except oil and gas
NORM;
(C) the recovery or
processing of source material in accordance with HSC, Chapter 401, Subchapter
G;
(D) the processing of by-product
material as defined by HSC, §401.003(3)(B); and
(E) sites for the disposal of:
(i) low-level radioactive waste;
(ii) by-product material; or
(iii) NORM waste.
(d) Responsibility over
specific activities.
(1) The receipt,
storage, or processing of radioactive substances received by a TCEQ licensee
for the activity covered by the TCEQ license shall be regulated by TCEQ. All
other uses of radioactive material (e.g., well logging, industrial radiography,
gauging devices, etc.) at a TCEQ-licensed facility shall be regulated by
DSHS.
(2) Radioactive waste
produced at DSHS-licensed facilities remains under DSHS jurisdiction until it
is transferred to a licensed waste broker, waste processor, or a low-level
radioactive waste disposal site.
(3) DSHS has jurisdiction over the
possession, processing, and/or use of NORM except for its disposal. TCEQ has
jurisdiction over the commercial or third party waste processing and/or
disposal of non-oil and gas NORM waste.
(e) Radioactive materials and water quality.
(1) TCEQ has the responsibility for issuance
of licenses, permits, and for enforcement of the terms and conditions of
licenses, permits, rules, and/or orders that concern the treatment and
discharge of radioactive material within the meaning of pollutant as defined in
the Water Code, Chapter 26.
(2)
TCEQ's jurisdiction regarding discharge of radioactive material is not
exclusive as certain wastes are regulated by the Railroad Commission of Texas
and DSHS regulates radioactive materials discharged to sanitary sewers. No
separate license from TCEQ shall be required to authorize discharge of
radioactive wastewaters into a sanitary sewer by DSHS licensees.
(3) TCEQ and DSHS shall notify each other in
the event that radioactive materials impact water quality, including safe
drinking water standards.
(f) Coordination of regulatory activities.
DSHS and TCEQ shall coordinate with each other in the following activities.
(1) DSHS and TCEQ each agree to work together
to ensure that complete regulation is maintained for sources, uses, and users
of radiation. As appropriate, DSHS and TCEQ each agree to coordinate rulemaking
activities between the two agencies and the Texas Radiation Advisory Board
(TRAB) to ensure consistency of regulation in accordance with HSC,
§401.020. In addition, TCEQ agrees to coordinate with DSHS in the
preparation of the annual evaluation and report to the Legislative Budget Board
as required under the Government Code, §
2110.006
and §
2110.007.
DSHS and TCEQ each agree to seek and consider advice from TRAB on issues that
involve the development, use, or regulation of sources of radiation.
(2) DSHS and TCEQ each agree to coordinate
rulemaking activities that pertain to the requirements of the Agreement between
the State of Texas and the United States Nuclear Regulatory Commission (NRC),
as amended, and to ensure the compatibility of rules and guidelines with
federal regulatory programs. Each agency agrees to coordinate on providing
information on any proposed legislation relating to the regulation of
radioactive substances.
(g) Incident response. Incidents concerning
radioactive material will be investigated as follows.
(1) Response to unidentified radioactive
material discovered at municipal landfills will be investigated by TCEQ. If the
investigation reveals that the waste is not acceptable for the municipal
landfill and is determined to be generated by a DSHS licensee, TCEQ will refer
the matter to DSHS.
(2) Each agency
will investigate incidents and allegations concerning radioactive material
within each agency's jurisdiction and make required notifications to the
NRC.
(h) Emergency
preparedness. Emergency preparedness for response to radiological emergencies
shall be as follows.
(1) The State of Texas
is required by federal laws and regulations to have trained personnel always
available for emergency response training, drills, exercises, and actual
emergency response. DSHS is assigned the lead role for the state response to
radiological emergencies.
(2) DSHS
shall provide training to emergency responders along low-level radioactive
waste shipping routes with funds collected from shippers of low-level
radioactive waste.
(3) DSHS shall
collect an annual fee from the operators of fixed nuclear facilities in the
state for expenses arising from emergency response activities, including
training.
(4) DSHS and TCEQ will
coordinate personnel availability for emergency preparedness and response
activities.
(5) DSHS will inform
TCEQ in a timely manner of all required exercises, drills, and training. All
DSHS and TCEQ technical personnel who work in the radiation program and are
assigned to the emergency response team shall attend appropriate emergency
response training coordinated by DSHS. TCEQ shall notify DSHS of changes in the
employment status of all TCEQ radiation personnel assigned to the emergency
response team. In the event of an emergency, the appropriate DSHS and TCEQ
radiation staff will be available for emergency response under the direction of
DSHS staff and in accordance with Annex D of the State of Texas Emergency
Management Plan.
(i)
Mutual assistance. Each agency may request from the other agency short-term
assistance of personnel or resources when there is need for such assistance,
such as for performing close-out surveys, training, incident/emergency response
and recovery operations, environmental monitoring, technical reviews, financial
security information, and technical support at contested hearings or other
project information. Each agency will provide the requested assistance to the
extent possible without disrupting its own required activities, in accordance
with an approved interagency contract when applicable.
(j) Financial security for decontamination,
decommissioning, reclamation, corrective action, and disposal of radioactive
material.
(1) When required, TCEQ and DSHS
will ensure that financial security is provided for each entity under each
agency's jurisdiction.
(2) For
entities licensed by both agencies:
(A) each
agency will ensure that separate financial security instruments are
maintained;
(B) the agencies shall
coordinate the allocation of financial security provided to each agency and
determine an equitable division of financial assurance to avoid
duplication;
(C) each agency will
review, evaluate, and collect sufficient financial security instruments
required for decontamination, decommissioning, reclamation, and disposal of
radioactive material pursuant to each agency's rules for each entity under
their respective jurisdictions; and
(D) in the event that either agency cannot
determine that decontamination, decommissioning, reclamation, or disposal of
radioactive material activities fall under the exclusive jurisdiction of either
agency, then both agencies will coordinate and share efforts to address the
situation in a prompt manner.
(k) Miscellaneous.
(1) DSHS and TCEQ shall revise their
respective rules and procedures as needed to implement this MOU.
(2) If any provision of this MOU is held to
be invalid, the invalid provision will be severed and the remaining provisions
shall not be affected.
(l) Effective date. This MOU will take effect
after approval by both agencies and 20 days after the date on which it is filed
in the Office of the Secretary of State in accordance with the provisions of
Government Code, §
2001.036.
