PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 289. RADIATION CONTROL
SUBCHAPTER F. LICENSE REGULATIONS
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Department of State Health Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Executive Commissioner of the Health and Human Services Commission on behalf of the Department of State Health Services (department) proposes the repeal of §289.254, concerning licensing of radioactive waste processing and storage facilities, and §289.260, concerning licensing of uranium recovery and byproduct material disposal facilities.
BACKGROUND AND PURPOSE
The repeal of §289.254 and §289.260 is necessary as the result of Senate Bill 1604, 80th Legislative Session, 2007, that amended Health and Safety Code, §401.011, and transferred the regulatory authority for licensing and inspection of low-level waste processing and uranium recovery and disposal from the department to the Texas Commission on Environmental Quality (TCEQ).
SECTION-BY-SECTION SUMMARY
Section 289.254 and §289.260 are being repealed in their entirety in order to be consistent with legislation, which transferred all regulatory authority from the department to the TCEQ and, therefore, the rules are unnecessary.
FISCAL NOTE
Susan E. Tennyson, Section Director, Environmental and Consumer Safety Section, has determined that there will be no fiscal implications to the state or local governments as a result of repealing the sections as proposed because no requirements resulting in any fiscal implication were added or deleted. The program was transferred from one state agency to another.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Tennyson has also determined that there will be no effect on small businesses, micro-businesses, or other persons required to comply with §289.254 and §289.260 as proposed for repeal. This was determined by interpretation of the rules that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the sections. There is no anticipated negative impact on local employment.
STATEMENT OF NO ADVERSE ECONOMIC IMPACT
Pursuant to the requirement of Government Code, §2006.002(c) (amended by House Bill 3430, 80th Legislative Session, 2007), the department has determined that none of the proposed changes "may have an adverse economic effect on small businesses subject to the proposed rule." This determination is made because there will be no adverse economic impact on any regulated entity as a result of these repeals.
PUBLIC BENEFIT
In addition, Ms. Tennyson has also determined that for each year of the first five years the repeals are in effect, the repeal of these rules will benefit the public by eliminating unnecessary and unenforceable rules. The authority over this industry has been transferred by legislation to the TCEQ, and any rules would be their responsibility. If the department does not repeal these rules, there will appear to be dual regulation.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state.
TAKINGS IMPACT ASSESSMENT
The department has determined that the proposed repeals do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposed repeals may be submitted to Cindy Cardwell, Radiation Group, Policy/Standards/Quality Assurance Unit, Division of Regulatory Services, Environmental and Consumer Safety Section, Department of State Health Services, P.O. Box 149347, MC 1987, Austin, Texas 78714-9347, (512) 834-6770, extension 2239, or by e-mail to Cindy.Cardwell@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
PUBLIC HEARING
A public hearing to receive comments on the proposed repeals will be scheduled after publication in the Texas Register, and will be held at the Department of State Health Services, Exchange Building, 8407 Wall Street, Austin, Texas 78754. The meeting date will be posted on the Radiation Control website (www.dshs.state.tx.us/radiation). Please contact Cindy Cardwell at (512) 834-6770, extension 2239, or Cindy.Cardwell@dshs.state.tx.us if you have questions.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed repeals are authorized by Health and Safety Code, §401.051, which provides the Executive Commissioner of the Health and Human Services Commission with authority to adopt rules and guidelines relating to the control of radiation; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
The proposed repeals affect the Health and Safety Code, Chapters 401 and 1001; and Government Code, Chapter 531.
§289.254.Licensing of Radioactive Waste Processing and Storage Facilities.
§289.260.Licensing of Uranium Recovery and Byproduct Material Disposal Facilities.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 5, 2009.
TRD-200900011
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: February 15, 2009
For further information, please call: (512) 458-7111 x6972