(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.


Source Note: The provisions of this §289.101 adopted to be effective September 7, 2014, 39 TexReg 6860