ACG C.S.H.B. 3462 75(R) BILL ANALYSIS ENVIRONMENTAL REGULATION C.S.H.B. 3462 By: Chisum 4-8-97 Committee Report (Substituted) BACKGROUND In 1991, the Legislature voted to move the radioactive by-product materials program from the Texas Department of Health to the newly created Texas Natural Resource Conservation Commission. Although the by-product material program was moved, many other programs dealing with radioactivity remained at the TDH. As a result, TDH retained most of the staff who work with radioactive issues on a day-in, day-out basis, and therefore the bulk of expertise on radioactive matters. This bill seeks to reverse the transfer of the by-product materials program primarily to take advantage of the expertise in radioactive matters that continues to be lodged at TDH. Additionally, those regulated entities subject to the radioactive by-product materials program are dwindling in number. There are approximately seven companies who currently are regulated by the program, and it is anticipated that in a few years the number will drop to three or four companies at the most. Because of the dwindling number of companies within the program, the fees currently needed to fund TNRCC's program will place a proportionately heavier and heavier burden on the regulated companies. If the program is moved, the radioactivity experts at TDH will be able to share their expertise and the by-product materials regulatory program will be more cost-effective. The TNRCC and TDH agree with the proposed transfer of the program, and agree that it is likely to result in efficiencies in regulation for both agencies. The transfer will NOT apply to the TNRCC's jurisdiction over the Low Level Radioactive Waste Disposal Authority's permit or the U.S. Department of Transportations's jurisdiction over shipping of low specific activity material or uranium. PURPOSE This bill would move the by-product radioactive materials program to the TDH in order to take advantage of the expertise in radioactive matters that continues to be lodged at TDH. RULEMAKING AUTHORITY It is the committee's opinion that this bill grants rulemaking authority to the Texas Department of Health in SECTION 2 of the bill (Sec. 401.104(b), Health & Safety Code). It is the committee's opinion that this bill transfers rulemaking authority from the TNRCC to the Board of Health in SECTION 5 of this bill (Sec. 401.263 (f), Health & Safety Code). It is the committee's opinion that this bill transfers rulemaking authority from the TNRCC to the Board of Health in SECTION 8 of the bill (Sec. 401.266(a), Health & Safety Code). It is the committee's opinion that this bill stipulates which agency rules will be followed until new rules are adopted by the Board of Health and requires the Board of Health to make every effort to consolidate and streamline the applicable rules in SECTION 14(e) of the bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sec. 401.011(a) and (b), Health & Safety Code, to clarify that TDH has jurisdiction over radioactive by-product materials regulated under Subchapter G, Health and Safety Code and removes specific authority for these materials from TNRCC. SECTION 2. Amends Sec. 401.104(b), Health & Safety Code to return jurisdiction over radioactive by-product material to TDH. SECTION 3. Amends Sec. 401.262, Health & Safety Code to change jurisdictional references to TDH from TNRCC and provides that sites must be closed out and by-product material disposed of in compliance with the federal NRC and EPA standards and closure criteria. SECTION 4. Amends Sec. 401.2625, Health & Safety Code, to change jurisdictional references to TDH from TNRCC. SECTION 5. Amends Sec. 401.263(a), (c), (d), (e), and (f), Health & Safety Code, to change jurisdictional references to TDH from TNRCC and includes licensing of disposal. SECTION 6. Amends Sec. 401.264(a), (c), and (d), Health & Safety Code, to change jurisdictional references to TDH from TNRCC. SECTION 7. Amends Sec. 401.265, Health & Safety Code, to change jurisdictional references to TDH from TNRCC and provides that TDH standards much be compatible with federal commission standards rather than equivalent or more stringent than. SECTION 8. Amends Sec. 401.266(a), Health & Safety Code, to change jurisdictional references to TDH from TNRCC. SECTION 9. Amends Sec. 401.267, Health & Safety Code, to change jurisdictional references to TDH from TNRCC. SECTION 10. Amends Sec. 401.269, Health & Safety Code, to change jurisdictional references to TDH from TNRCC. SECTION 11. Amends Sec. 401.270(a), (b), (e), and (f), Health & Safety Code, to clarify jurisdictional references between TDH and TNRCC. SECTION 12. Amends Sec. 401.412(a) and (b), Health & Safety Code, to clarify jurisdictional reference to TNRCC authority. SECTION 13. Amends Sec. 401.413, Health & Safety Code, to clarify jurisdictional reference to TNRCC authority. SECTION 14. Provides for the transfer of programs, rights, duties, documents, appropriations, etc. of radioactive source material recovery and processing, including recovery, processing, and disposal of by-product material and long-term care of decommissioned by-product sites to TDH from TNRCC. SECTION 15. Provides that TNRCC will continue its activities pursuant to a groundwater cleanup cooperative agreement at the Falls City site, and that appropriations for such activities remain with TNRCC. SECTION 16. Provides that the transfer of programs does not affect the TNRCC's jurisdiction over the Low-Level Radioactive Waste Disposal Authority, the U.S. Department of Transportations's jurisdiction over shipping of certain radioactive materials, or any pending litigation. SECTION 17. Directs the TDH, to the extent feasible, to apply standards of the U.S. Nuclear Regulatory Commission until the department adopts its own relevant standards. SECTION 18. Directs the TDH to reevaluate the fees assessed under the program and return, as appropriate, and fees that are in excess of that necessary to fund TDH's activities. SECTION 19. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE 1. Language is added in the substitute not in the filed version which clarifies that sites that are to be closed out are processing and disposal sites, and that decommissioned sites refer to by-product sites; also clarifies that the closure criteria of the federal NRC are met, and clarifies that jurisdiction for NORM waste is not changed. 2. Language is added in the substitute not in the filed version to provide that TDH will assess fees being charged for applications, and if sufficient efficiencies exist to allow the refund of fees paid in the past year, that such refunds should be made. Clarifies that fees cannot be assessed again for applications that are pending. 3. The substitute changes certain references from the Board of Health to the Department of Health, where the department is the appropriate body for the activities provided for in the bill. 4. The substitute includes a provision not in the filed version requiring that TNRCC will keep the cleanup activities at the Falls City UMTRA site. 5. The substitute clarifies that TDH must meet both NRC and EPA standards by adding reference to EPA.