HBA-MPM C.S.H.B. 1171 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1171
By: Chisum
Environmental Regulation
3/19/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

The Texas Radiation Control Act, enacted in 1961 and recodified in 1989,
establishes the regulatory framework and authority for the state agencies
that regulate sources of radiation, encompassing the possession, use, and
disposal of such sources.  H.B. 1171 adds provisions which further
regulatory enforcement.  It provides exemptions, thus giving the regulatory
programs flexibility in licensing new technologies in the radiation field,
and defines "radiation" to include radiation devices that have energy
emissions similar to those that come from lasers but are not "stimulated"
emissions.  This bill also includes administrative penalties, which are to
be deposited in the Radiation and Perpetual Care Fund. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Board of Health in SECTION 2
(Section 401.108, Health and Safety Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 401.003(17), Health and Safety Code, to provide
that emission, rather than "stimulated" emission, of radiation from an
electronic device to energy density levels that could reasonably cause
bodily harm is one of the definitions of "radiation." 

SECTION 2.  Amends Sections 401.106, 401.108, and 401.110, Health and
Safety Code, as follows: 

Sec. 401.106.  New title:  EXEMPTION FROM LICENSING OR REGISTRATION
REQUIREMENTS OR FROM APPLICATION OF RULE.  (a)  Makes no changes. 
 
(b)  Authorizes the Texas Department of Health (department) or Texas
Natural Resource Conservation Commission (commission), as applicable, to
exempt a source of radiation or a kind of use or user from the application
of a rule adopted by the department or commission if it is determined that
the exemption is not prohibited by law and will not result in a significant
risk to public health and safety and the environment. 

Sec. 401.108.  FINANCIAL QUALIFICATIONS.  (a)  Requires the applicant to
demonstrate to the commission, rather than the issuing agency, that the
applicant is financially qualified to conduct the licensed activity,
including any required decontamination, decommissioning, reclamation, and
disposal, before a license is issued or renewed by the commission, rather
than by the department or commission.  Authorizes the Texas Board of Health
(board), by rule, to require an applicant to demonstrate to the department
that the applicant is financially qualified to conduct the licensed
activity, including any required decontamination, decommissioning,
reclamation, and disposal, before the department issues or renews a
license. 

(b)  Requires a license holder to submit to the department or commission,
as appropriate, rather than to the issuing agency, at intervals required by
board or commission rules, rather than the issuing agency rules, or the
license, proof of the holder's financial qualifications. 

(c)  Deletes reference to Subchapter G (Special Provisions Concerning
By-Product Material), Chapter 401 (Radioactive Materials and Other Sources
of Radiation), Health  and Safety Code, as one of those under which the
commission is required to reevaluate every five years the qualifications
and security provided by a license holder.   

Sec. 401.110.  DETERMINATION OF LICENSE.  Includes financial qualifications
as one of the aspects of an applicant's or license holder's background the
department or commission may consider in making a determination whether to
grant, deny, amend, renew, revoke, suspend, or restrict a license or
registration. 

SECTION 3.  Amends Section 401.305(b), Health and Safety Code, to include
an administrative penalty collected by the department under Sections
401.384-401.390 that the department or commission is required to deposit to
the credit of the fund money and security received under this chapter.
Sections 401.384-401.390 refer to the following, respectively:
Administrative Penalty, Preliminary Report of Violation, Notice of
Preliminary Report, Consent to Penalty, Hearing and Decision, Disposition
of Penalty; Judicial Review, and Remitting Penalty Payments; Releasing
Bonds. 

SECTION 4.  Amends Section 401.381(a), Health and Safety Code, to provide
that a person who causes, suffers, allows, or permits a violation of,
rather than violates, this chapter, a department rule or order, or a
license or registration condition is subject to a civil penalty. 

SECTION 5.  Amends Section 401.384(a), Health and Safety Code, to change
the existing reference from a "civil" penalty to an "administrative"
penalty so that the text of this section conforms to its title
(Administrative Penalty).  Specifies that such penalties are provided by
this section and Sections 401.385-401.390, rather than 401.385-401.391
(Section 401.391 (Local Government Access to Records; Penalty), regarding
civil penalties paid by a person who denies a local government access to
records, was repealed by Acts 1997, 75th Legislature) and apply to a person
who causes, suffers, allows, or permits a violation of, rather than
violates, a provision of this chapter.   

SECTION 6.  Amends Section 401.385, Health and Safety Code, to authorize
the department to issue a preliminary report recommending that an
administrative penalty, rather than civil penalty, under Section 401.384
(Administrative Penalty) be imposed if the department, after an
investigation, concludes that a violation relating to an activity under its
jurisdiction has occurred. 

SECTION 7.  Amends Sections 401.388(d) and (f), Health and Safety Code, to
make conforming changes. 

SECTION 8.  Effective date: September 1, 1999.
                       Makes application of this Act prospective.

SECTION 9.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. modifies the original in SECTION 2 by amending Section 401.106 to
authorize the department or the commission, as applicable, to exempt a
source of radiation or kind of use or user from the application of a rule
adopted by the respective entity if it is determined that the exemption is
not prohibited by law and will not result in a significant risk, rather
than an undue hazard, to public health and safety and the environment,
thereby conforming the language in Subsection (b) to that in Subsection
(a).  

The substitute modifies the original bill by amending Section 401.108,
Health and Safety Code to require the applicant to demonstrate to the
commission, rather than the issuing agency, that the applicant is
financially qualified to conduct the licensed activity, including any
required contamination, decommissioning, reclamation, and disposal, before
a license is issued or renewed by the commission, rather than by the
department or commission.  Authorizes the Texas Board of Health, by rule,
to require an applicant to demonstrate to the department that the applicant
is financially qualified to conduct the licensed activity, including any
required decontamination, decommissioning, reclamation, and disposal,
before the department issues or renews a license.  No rulemaking authority
was granted in the original.   

 The substitute modifies the original by amending Section 401.108 to
require a license holder to submit to the department or commission, as
appropriate, rather than to the issuing agency, at intervals required by
board or commission rules, rather than the issuing agency rules, or the
license, proof of the holder's financial qualifications.  Section 401.108
in the substitute also deletes reference to Subchapter G, Chapter 401,
Health and Safety Code, as one of those under which the commission is
required to reevaluate every five years the qualifications and security
provided by a license holder. The substitute amends Section 401.110 by
adding the act of renewing, in addition to other actions, that the
department or commission may do with respect to a license or registration.

The original bill repealed Section 401.108.

The substitute modifies the original in SECTION 3 by amending Section
401.305(b), Health and Safety Code, to specify that the penalty under this
section is collected by the department, clarifying that only the department
may collect these funds.