Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. The purpose of this Memorandum
of Understanding (MOU) is to delineate areas of respective jurisdiction and to
coordinate the respective responsibilities and duties of the Department of
State Health Services (DSHS) and the Railroad Commission of Texas (RRC) in the
regulation of sources of radiation in accordance with Health and Safety Code,
§
401.414,
in order to provide a consistent approach and to avoid duplication. Nothing in
this MOU shall be construed to reduce the statutory authority of either
agency.
(b) Definitions. The words
and terms used in this section shall have the same meaning as defined in the
Health and Safety Code, §
401.003, unless the
context clearly indicates otherwise. Oil and gas naturally occurring
radioactive material (NORM) waste is defined in the Health and Safety Code,
§
401.003(27),
as solid, liquid, or gaseous material or combination of materials, excluding
source material, special nuclear material, and by-product material, that:
(1) in its natural physical state
spontaneously emits radiation;
(2)
is discarded or unwanted;
(3) is
not exempt by DSHS rule adopted under Health and Safety Code, §
401.106;
and
(4) constitutes, is contained
in, or has contaminated oil and gas waste as that term is defined in the
Natural Resources Code, §
91.1011.
(c) General agency jurisdiction.
The jurisdictional authority for each agency is as follows.
(1) RRC jurisdiction. In accordance with the
Health and Safety Code, §
401.415
(relating to Oil and Gas NORM Waste), the RRC has sole authority to:
(A) regulate and issue licenses, permits and
orders for the disposal of oil and gas NORM waste; and
(B) 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 determine whether the
equipment contains or is contaminated with oil and gas NORM waste and identify
any equipment determined to contain or be contaminated with oil and gas
NORM.
(2) DSHS
jurisdiction. The DSHS has jurisdiction to regulate and license the possession,
receipt, use, handling, transfer, transport, and storage of all radioactive
material in accordance with Health and Safety Code, §
401.003(3)(A).
The DSHS has sole jurisdiction to regulate and register or license the use or
service of electronic products as defined in the Health and Safety Code, §
401.003(9).
The Health and Safety Code, §
401.106,
gives the DSHS the authority, through rulemaking by the Executive Commissioner
of the Texas Health and Human Services Commission, to exempt a source of
radiation or a kind of use or user from licensing or registration
requirements.
(d)
Jurisdiction over specific activities and wastes. Each agency has the following
responsibilities.
(1) Disposal activities.
The RRC has jurisdiction over the disposal of oil and gas NORM waste. For
purposes of this MOU, disposal is defined in 16 TAC §
4.603(3)
(relating to Definitions) as "engaging in the act of discharging, depositing,
injecting, dumping, spilling, leaking, or placing of any oil and gas NORM waste
into or on any land or water, or causing or allowing any such act, so that such
waste, or any constituent thereof, may enter the environment or be emitted into
the air or discharged into any waters, including subsurface waters. For
purposes of this subchapter, disposal of oil and gas NORM waste includes its
management at the site (e.g., lease, unit, or facility) where disposal will
occur when undertaken for the explicit purpose of facilitating disposal at that
site. The term does not include decontamination activities, except for in-place
mixing of oil and gas NORM waste to remedy historical contamination of the land
surface and decontamination of equipment and facilities that become
contaminated solely through disposal operations. In addition, the term does not
include activities, including processing or treatment, that occurs at a
location other than the disposal site."
(2) Decontamination activities. The DSHS has
jurisdiction over decontamination activities, except for in-place mixing of oil
and gas NORM waste to remedy historical contamination of the land surface and
decontamination of equipment and facilities that become contaminated solely
through disposal operations.
(3)
Transportation activities. The DSHS has jurisdiction over the transportation of
oil and gas NORM waste.
(4)
Radioactive logging tools. The DSHS has jurisdiction over radioactive logging
tools used during normal operations by the licensee. The RRC and the DSHS have
jurisdiction over radioactive logging tools that are abandoned down
hole.
(5) Radioactive tracers. The
DSHS has jurisdiction over radioactive tracers used in normal operations by the
licensee. The RRC has jurisdiction over Class II injection wells into which
well logging screen out wastes (well returns) may be disposed in accordance
with §
289.253(u)(3)
of this title (relating to Radiation Safety Requirements for Well Logging
Service Operations and Tracer Studies).
(6) NORM-contaminated equipment. The DSHS has
jurisdiction over NORM-contaminated equipment, except as stated in subsection
(c)(1) of this section, and with respect to the RRC requirements for
identification of equipment contaminated with oil and gas NORM in 16 TAC §
4.605(relating
to Identification of Equipment Contaminated with NORM).
(7) Recycling/Scrap yards. The RRC has
jurisdiction over the disposal of NORM-contaminated scale from oil and gas
equipment that is managed at a pipe yard, scrap yard, or recycling facility.
However, the decontamination of NORM-contaminated pipe and other equipment at
any facility is under the jurisdiction of the DSHS. A DSHS-specific licensee
would be required to perform the removal of NORM-contaminated scale on the
ground at a pipe yard, scrap yard, or recycling facility in accordance with
§
289.259(i)
of this title (relating to Licensing of Naturally Occurring Radioactive
Material (NORM)). The removed NORM waste would require disposal in accordance
with RRC regulations.
(e) Coordination of regulatory activities.
The DSHS and the RRC shall coordinate with each other in the following
activities.
(1) The DSHS and the RRC each
agree to work together to ensure that complete regulation is maintained for
radioactive materials and other sources of radiation associated with oil and
gas exploration, development, and production operations. The DSHS and the RRC
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 the Health and Safety Code, §
401.020.
In addition, the RRC agrees to coordinate with the 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.
The DSHS and the RRC each agree to seek, and consider, advice from the TRAB on
issues that involve management or disposal of NORM waste generated in
connection with oil or gas exploration, development, or production
operations.
(2) The DSHS and the
RRC 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, as amended, and to ensure that rules and
guidelines are compatible with federal regulatory programs. Each agency agrees
to coordinate with the other by providing information on any proposed
legislation relating to the regulation of radioactive substances.
(3) The DSHS and the RRC each agree to meet
as needed to discuss possible changes in this MOU and to encourage increased
communication between the agencies.
(4) The DSHS and the RRC each agree to
coordinate with the other agency with respect to activities involving
radioactive sources that are lodged, abandoned, or lost down hole. Prior to
approving abandonment procedures, tool recovery, well re-entry, and corrective
action when a radioactive source has been breached or radiation otherwise
escapes the source, RRC will assure coordination with DSHS to obtain
concurrence.
(f)
Coordination of enforcement and incident response activities. The DSHS has
responsibility for enforcement of the conditions of its licenses and rules. The
RRC has jurisdiction for enforcement of the conditions of its permits and
rules. Each agency will refer to the other agency any complaints received that
are the responsibility of the other agency. When deemed appropriate by both
agencies, the RRC and the DSHS may jointly enforce permit and license terms and
conditions, make joint inspections and incident investigations, and cooperate
on enforcement actions. Each agency shall retain the authority to undertake
separate enforcement or legal actions.
(g) Mutual assistance. The DSHS and the RRC
may each request from the other agency short-term assistance of personnel or
resources when there is need for such assistance, such as for performing
training, environmental or public health or safety monitoring, or technical
reviews. Each agency will provide the requested assistance to the extent
possible without disrupting its own required activities.
(h) Miscellaneous.
(1) The RRC and the DSHS agree to 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 remaining provisions shall not be affected
thereby.
(i) 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.
This MOU will remain in effect until rescinded by either agency.
