The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes amendments to §39.1, Applicability; §39.5, General Provisions; §39.11, Text of Public Notice; §39.13, Mailed Notice; §39.17, Notice of Minor Amendment; §39.701, Applicability; §39.703, Notice of License Applications Upon Completion of Technical Review; §39.707, Published Notice; §39.709, Notice of Contested Case Hearing on Application. The TNRCC is also proposing the repeal of Subchapter F, §39.301, Notice of Declaration of Administrative Completeness; §39.302, Applicability; §39.303, Notice of License Applications Upon Completion of Technical Review; §39.305, Mailed Notice for Radioactive Material Licenses; §39.307, Published Notice; §39.309, Notice of Contested Case Hearing on Application; §39.311, Proof and Certification of Notice; and §39.313, Public Notification and Public Participation.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The changes proposed to this chapter are part of a larger proposal to revise the agency's radiation control rules. This rule package has three major goals: (1) implement House Bill (HB) 1172, 76th Legislature, 1999, and its amendments to the Texas Health and Safety Code (THSC); (2) implement the recommendations of the TNRCC's Business Process Review Permit Implementation Team (BPR-PIT) to provide for consistency between the administrative procedures of the radiation control program and the other permitting programs of the agency; and (3) improve readability and understanding by reorganizing 30 TAC Chapter 336 (relating to Radioactive Substance Rules), putting its requirements into plain English and eliminating its redundancies and conflicts.

Changes to implement HB 1172 are: (1) amending the definition of low-level radioactive waste to be compatible with the United States Nuclear Regulatory Commission's (NRC's) definition; (2) incorporating the TNRCC's new authority to exempt from application of a rule; (3) adding an exemption to continue or expand on-site low-level radioactive waste disposal begun before September 9, 1989; and (4) adding exemptions from radioactive material licensing requirements for facilities participating in the Voluntary Cleanup Program or Superfund cleanups.

The BPR-PIT changes are part of an agency-wide effort to make programs consistent where feasible. The agency's management has mandated the consistency effort to make agency processes more efficient and "user friendly." Most of the license application process requirements in Chapter 336 can be modified to be more consistent with the requirements of the other permitting programs within the agency. The TNRCC expects a consistent application process to be especially helpful for persons who have multiple permits/licenses from the TNRCC or to staff during the review of consolidated permit applications. Major proposed changes are as follows: (1) that the radiation control program begins using the agency's definitions for major and minor amendments; and (2) the radiation control program license application process will be moved for the most part from Chapter 336 to Chapter 281 (relating to Applications Processing) and Chapter 305 (relating to Consolidated Permits) and amended to be consistent with agency administrative procedures.

The amendments and repeals in Chapter 39 are to incorporate the HB 1172 newly defined term "low-level radioactive waste" and to propose that only Subchapters H and M of this chapter be applicable to radioactive material licenses in the future because Subchapter F is obsolete.

SECTION BY SECTION DISCUSSION

Subchapter A - Applicability

Section 39.1 is proposed to be amended by replacing reference to Subchapters "B-F" with "B-E," by adding the word "and." Section 39.1 is also proposed to be amended by deleting "and Public Notice for Radioactive Material Licenses" because there were no radioactive material licenses pending on September 1, 1999 (the first part of the sentence states it applies to radioactive material applications that were declared administratively complete before September 1, 1999) and Subchapter F is proposed to be repealed; to state which subchapters are proposed to be applicable to radioactive material licenses; and by deleting paragraph (7) because the whole chapter is no longer proposed to apply to radioactive material licenses; and by renumbering the last paragraph to account for the deletion of the previous paragraph.

Section 39.5 is proposed to be amended. Section 39.5(c) is proposed to be amended by deleting the last sentence that states, "This subsection does not apply to applications for radioactive material licenses under Chapter 336 of this title (relating to Radioactive Substance Rules)." Section 39.5(f), (g), and (h) is proposed to be amended by deleting the last sentence that states "This subsection does not apply to applications for radioactive material licenses under Chapter 336 of this title." This amendment is proposed because it was previously proposed that Subchapter A no longer apply and only Subchapters H and M would apply to radioactive material licenses.

Section 39.11(13) is proposed to be deleted because it was previously proposed that only Subchapters H and M would apply to radioactive material licenses and associated formatting changes made to §39.11(11) and (12).

Section 39.13(b) is proposed to be deleted because it was previously proposed that only Subchapters H and M would apply to radioactive material licenses, with subsection (a) becoming an implied subsection (a).

Section 39.17(b)(2) is proposed to be deleted because it was previously proposed that only Subchapters H and M would apply to radioactive material licenses. Conforming grammatical changes are proposed to §39.17(b)(1).

Subchapter F - Public Notice of Radioactive Material License Applications

Subchapter F is proposed to be repealed because there were no radioactive material license applications pending on September 1, 1999 and Subchapter F formerly applied to applications before September 1, 1999.

Subchapter M - Public Notice for Radioactive Material Licenses

Section 39.701 is proposed to be amended to delete "that is declared administratively complete on or after September 1, 1999" because this date is past, and there were no applications still pending on September 1, 1999. Minor grammatical changes are also proposed to §39.701.

Section 39.703 is proposed to be amended. The section title is proposed to be changed to "Notice of Completion of Technical Review" to simplify it. Section 39.703(a) is proposed to be amended by adding "Low-Level" to conform with this newly defined term in HB 1172.

Section 39.707(b) is proposed to be amended by adding "Low-Level" to conform with this newly defined term in HB 1172.

Section 39.709(b) is proposed to be amended by adding "Low-Level" to conform with this newly defined term in HB 1172.

FISCAL NOTE

Jeff Grymkoski, Director, Strategic Planning and Appropriations, has determined that for the first five-year period the proposed rules are in effect, there will be no fiscal implications for the commission or other units of state and local government as a result of administration or enforcement of the proposed amendments.

The amendments and repeals in this rulemaking are to incorporate the defined term "low-level radioactive waste" in lieu of "radioactive waste" in accordance with HB 1172, 76th Legislature, 1999, (an Act relating to the definition of low-level radioactive waste) and to propose that certain public notice subchapters be applicable to radioactive material license applications in the future because another subchapter is now obsolete and is being proposed for repeal.

PUBLIC BENEFIT

Mr. Grymkoski has also determined that for each year of the first five years the proposed rules are in effect, the anticipated public benefit from enforcement of and compliance with the proposed rules will be enhanced compliance by making notice rules applicable to all the agency's other permitting programs applicable to radioactive materials licensing for consistency for the regulated community and the agency.

There are no additional economic or administrative costs anticipated to any person, business, or facility required to comply with the proposed rules because no new public notice requirements are added that are not already required by current state law.

SMALL AND MICRO-BUSINESS IMPACT ANALYSES

No adverse economic effects are anticipated to any small businesses or micro-businesses as a result of implementing the proposed amendments.

The amendments and repeals in this rulemaking are to incorporate the defined term "low-level radioactive waste" in lieu of "radioactive waste" in accordance with HB 1172, 76th Legislature, 1999 and to propose that certain public notice subchapters be applicable to radioactive material license applications in the future because another subchapter is now obsolete and is being proposed for repeal.

There are no additional economic or administrative costs anticipated to any small or micro- businesses required to comply with the proposed rules because no new public notice requirements are added, not already required by current state law.

DRAFT REGULATORY IMPACT ANALYSIS

The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks 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 the state or a sector of the state. The proposed amendments to Chapter 39 are not anticipated to 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 the state or a sector of the state because there are no new requirements added that are not already required by current state law.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these proposed rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate the HB 1172 defined term "low-level radioactive waste" in lieu of "radioactive waste" and to propose that only Subchapters H and M of this chapter be applicable to radioactive material licenses in the future because Subchapter F is now obsolete and is being proposed for repeal. Promulgation and enforcement of these rules will not burden private real property which is the subject of the rules because there are no new notice requirements added that are not also currently required by state law.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The commission has reviewed the proposed rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC 505.11. Therefore, the proposal is not subject to the CMP.

PUBLIC HEARING

A public hearing on this proposal will be held in Austin on July 6, 2000, at 10:00 a.m. in Building F, Room 2210 at the Texas Natural Resource Conservation Commission Complex, located at 12100 Park 35 Circle. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs, who are planning to attend the hearing, should contact the Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3078 or faxed to (512) 239-4808.

SUBMITTAL OF COMMENTS

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 1999-057-336-WS. Comments must be received by 5:00 p.m., July 17, 2000. For further information or questions concerning this proposal, please contact Hygie Reynolds, Waste Permits Division, at (512) 239-6825.

Subchapter A. APPLICABILITY AND GENERAL PROVISIONS

Subchapter C. ACTION BY THE EXECUTIVE DIRECTOR

Subchapter A. APPLICATIONS PROCESSING

The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes amendments to §305.1, Scope and Applicability; §305.2, Definitions; §305.42, Application Required; §305.45, Contents of Application for Permit; §305.54, Additional Requirements for Radioactive Material Licenses; §305.62, Amendment; §305.65, Renewal; §305.67, Revocation and Suspension upon Request or Consent; §305.121, Applicability; §305.123, Reservation in Granting Permit; §305.125, Standard Permit Conditions; and 305.127, concerning Conditions To Be Determined for Individual Permits.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The changes proposed to Chapter 305 are part of a larger proposal to revise the agency's radiation control rules. This rule package has three major goals: (1) implement House Bill (HB)1172, 76th Legislature, 1999, and its amendments to the Texas Health and Safety Code (THSC); (2) implement the recommendations of the TNRCC's Business Process Review Permit Implementation Team (BPR-PIT) to provide for consistency between the administrative procedures of the radiation control program and the rest of the agency; and (3) improve readability and understanding by reorganizing 30 TAC Chapter 336 (relating to Radioactive Substance Rules), by putting its requirements into plain English and eliminating its redundancies and conflicts.

Changes to implement HB 1172 are: (1) amending the definition of low-level radioactive waste to be compatible with the United States Nuclear Regulatory Commission's (NRC's) definition; (2) incorporating the TNRCC's new authority to exempt from application of a rule; (3) adding an exemption to continue or expand on-site low-level radioactive waste disposal begun before September 9, 1989; and (4) adding exemptions from radioactive material licensing requirements for facilities participating in the Voluntary Cleanup Program or Superfund cleanups.

The BPR-PIT changes are part of an agency-wide effort to make programs consistent where feasible. The agency's management has mandated the consistency effort to make agency processes more efficient and "user friendly." Most of the license application process requirements in Chapter 336 can be modified to be more consistent with the permit application requirements of the rest of the agency. The TNRCC expects a consistent application process to be especially helpful for persons who have multiple permits/licenses from the TNRCC or are seeking consolidated permits. Major proposed changes are: (1) that the radiation control program will begin using the agency's definitions for major and minor amendments; and (2) the radiation control program's license application process will be moved for the most part from Chapter 336 to Chapter 281 (relating to Applications Processing) and Chapter 305 (relating to Consolidated Permits) with technical requirements remaining in Chapter 336 and amended to be consistent with agency administrative procedures.

Chapter 305 is proposed to be amended to make conforming changes per HB 1172, implement recommendations of the agency's BPR-PIT, and to improve the readability and understanding of the agency's radiation control program rules.

As a point of clarification regarding the use of the terms "radioactive substance" and "radioactive material," the agency chooses to use the term "radioactive material" over that of "radioactive substance" wherever possible. The term "radioactive substance" was created to refer collectively to radioactive materials that were under the TNRCC's disposal jurisdiction, excluding materials not within the TNRCC's jurisdiction. The definition under THSC, §401.003(19), which excludes oil and gas NORM, was not changed by the legislature to exclude byproduct material when jurisdiction over disposal of byproduct material was transferred to the TDH. In defining the TNRCC's jurisdiction under THSC, §401.412(a), byproduct material as defined by THSC, §401.003(3)(B) is specifically excluded. Therefore, use of the terms "radioactive material" and "radioactive substance" in this proposal does not include disposal of byproduct material under TDH's disposal jurisdiction, or oil and gas NORM waste under Railroad Commission of Texas jurisdiction. In TNRCC practice, the term "radioactive substance" has been used interchangeably with "radioactive material." Within the bounds of the TNRCC's jurisdiction, the agency interprets "radioactive substance" and "radioactive material" to have the same meaning.

SECTION BY SECTION DISCUSSION

Subchapter A - General Provisions

Section 305.1(a) is proposed to be amended to add "and the Texas Health and Safety Code, Chapters 361 and 401" and to delete "and the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7" to apply Chapter 305's requirements for applications, permits, and actions by the commission to activities regulated under THSC, Chapter 401, Radioactive Materials and Other Sources of Radiation and to update the citation for the Texas Solid Waste Disposal Act, Chapter 361. This proposed amendment will provide for more consistency between the radiation control program and other waste programs regulated by the agency, as recommended by the agency's BPR-PIT without changing the substantive requirements currently in place. The commission invites comment on this change.

Section 305.2 is proposed to be amended to incorporate definitions contained in THSC, §401.003 and §401.004, as part of the proposal to make the radiation control program's license application process consistent with the process used in the other permitting programs within the agency, in accordance with the agency's BPR-PIT recommendations. Amendments are also proposed to correct the citation for the Texas Solid Waste Disposal Act. The definition of "Permit" is proposed to be amended to add "for radioactive material disposal" and "a radioactive materials disposal license," to include radioactive material licenses, which would also be consistent with the definition of "Permit" in the agency's general definitions applicable to more than one regulatory program chapter in Chapter 3. The terms "permit" and "license" may be used interchangeably throughout the agency's rules. The definition of "Radioactive material" is proposed to be amended to add "A naturally occurring or artificially produced solid, liquid, or gas that emits radiation spontaneously" and delete "A material which is identified as a radioactive material under Texas Civil Statutes, Article 4590f, as amended, and the rules adopted by the Texas Board of Health pursuant thereto." This amendment updates the definition and makes it consistent with the definition of this term in THSC, §401.003(18).

Subchapter C - Application for Permit

Section 305.42(c) is proposed to be amended to add "low-level radioactive waste disposal" to clarify that licenses issued under Chapter 336, Subchapter H are low-level radioactive waste disposal licenses, and to implement HB 1172 addition of "low-level" to "radioactive waste." It is also amended to correct the cross reference to Chapter 336, Subchapter H to reflect its concurrently proposed new title.

Section 305.45 is proposed to be amended. Section 305.45(a) is proposed to be amended to delete "Except for applications under Chapter 336 of this title (relating to Radioactive Substance Rules), each" to extend the agency's standard application content requirements to radioactive material license applications. The changes proposed throughout this section are intended to consolidate most of the radioactive material license application program requirements with those of the other permitting programs. Chapter 336 will be concurrently amended to move the application process information to Chapter 305, except most technical requirements will remain in Chapter 336. Section 305.45(a)(8)(B)(ii) is proposed to be amended to delete "and" and add "and radiological" to include radiological properties in the list of properties that must be characterized for applications related to waste or injected fluids. In addition the term "radioactive" has been changed to "radiological" to reflect proper usage. Section 305.45(a)(8)(C) is proposed to be amended to add "§305.54 of this title (relating to Additional Requirements for Radioactive Material Licenses), §336.207 of this title (relating to General Requirements for the Issuance of a License), §336.513 of this title (relating to Technical Requirements for Active Disposal Sites), §336.617 of this title (relating to Technical Requirements for Inactive Disposal Sites), §336.705 of this title (relating to Content of Applications)," to reference all of the technical information required to be submitted in the supplemental technical report for radioactive material license applications. Section 305.45(c) is proposed to be repealed as redundant with proposed preceding amendment.

Section 305.54 is proposed to be amended to be consistent with the effort to improve the application process by moving radioactive material license application requirements to Chapter 305 except most technical requirements will remain in Chapter 336. Section 305.54(b), relating to technical requirements, is proposed to be deleted as redundant with the requirements of §336.513, §336.617 and Chapter 336, Subchapter H. The remaining existing subsections are proposed to be renumbered accordingly. Section 305.54(d) is moved unchanged from §336.201(b), concurrently proposed for repeal, as part of the effort to improve applications processing by consolidating application requirements in Chapter 305. Proposed new §305.54(e) is moved from §336.201(c), which is concurrently proposed for repeal. New subsection (e) is unchanged with the exception of extending the requirement to include amendments, as part of the effort to improve applications processing by consolidating application requirements in Chapter 305. Proposed new §305.54(f) is moved from §336.201(d), which is concurrently proposed for repeal, essentially unchanged with the exception of deleting an obsolete date and a redundancy.

Subchapter D - Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits

Section 305.62 is proposed to be amended. Section 305.62(b) is proposed to be amended to change "§§305.41-305.53 of this title" to "Subchapter C of this chapter" to include radioactive material license application requirements in amendment applications, as part of the effort to improve applications processing by consolidating application requirements in Chapter 305.

The types of amendments specified in proposed to be repealed §336.2(58)(A)(i)-(iii) are incorporated into the proposed §305.62(c)(1). Currently, the radiation control licensing program uses different definitions from the rest of the agency's permitting programs for major and minor amendment. The TNRCC's BPR-PIT, as part of its recommendation to make the permitting process consistent within the agency wherever possible, recommended that the definitions for major and minor amendments in Chapter 336 be repealed and that the radiation control licensing program begin using the major and minor amendment definitions found in Subchapter D of Chapter 305.

According to existing §305.62(c) which is herein proposed to be applicable to radiation control licensing, a major amendment is "an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit." A minor amendment is "an amendment to improve or maintain the permitted quality or method of disposal of waste, or injection of fluid if there is neither a significant increase of the quantity of waste or fluid to be discharged or injected nor a material change in the pattern or place of discharge or injection. A minor amendment includes any other change to a permit issued under this chapter that will not cause, or relax a standard or criterion which may result in, a potential deterioration of quality of water in the state."

Under existing Chapter 336, major amendments to Subchapter F licenses include transfers of a license to another person, enlargement of the disposal area, the addition of another disposal area and substantial changes to the nature of the waste or the method of disposal. All of these types of changes, except for a license transfer, would be considered significant changes to a permit by other agency permitting programs, would be processed as major amendments, and are therefore proposed to be repealed. Transfers do not "cause, or relax a standard or criterion which may result in, a potential deterioration of quality of water in the state." Because the rest of the permitting programs treat transfers separately or as minor amendments, the commission proposes to process transfers for Subchapters F and G licenses under §305.64 (Transfer of Permits). Also, under existing Chapter 336, amendments to licenses for which an environmental analysis is required, are currently classified as major amendments. Since environmental analyses are required in instances where the executive director has determined that there is a significant effect on the human environment, those instances meet the definition of major amendment in §305.62(c)(1) by being "an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit." The commission proposes to add that requirement to §305.62(c)(1)(A).

A major amendment for a low-level radioactive waste disposal facility receiving waste from others, is currently defined as authorizing: changes in the type or concentration limits of wastes to be received; receipt of wastes from other states not authorized in the existing license; changes in the operator of the facility; closure and the final closure plan for the disposal site; or transfers the license to the custodial agency. Because of the uniqueness of regulating a low-level radioactive waste disposal facility licensed to receive waste from others, the commission proposes that current requirements for major amendment be retained and incorporated into the definition of major amendment in §305.62(c)(1) as §305.62(c)(1)(B).

Section 305.62(c)(1) is proposed to be amended to add new subparagraphs (A) and (B). Section 305.62(c)(1)(A) indicates that an amendment for which the executive director prepares or requires a written environmental analysis is a major amendment. Section 305.62(c)(1)(B) specifies certain types of Chapter 336, Subchapter H, near-surface land disposal of radioactive waste license actions that require "major amendment" and is language derived, essentially unchanged, from the proposed deletion of the definition of "Major amendment" in §336.2(58)(B). Section 305.62(i) is proposed to be repealed to remove a requirement to file amendment applications in accordance with Chapter 336 rather than this chapter.

Subsection 305.65 is proposed to be amended. In §305.65, the "(a)" is proposed to be deleted because subsection (b) is proposed to be deleted. Section 305.65(b) is proposed to be deleted to remove a statement that this section does not apply to renewal of radioactive material licenses. Radioactive material license renewals are proposed to be processed like other renewal applications submitted to this agency.

Section 305.67 is proposed to be amended to add a new subsection (c) to clarify that the executive director may, upon request of an applicant, terminate a license if the applicant has complied with all of the applicable decommissioning requirements in Chapter 336, Subchapter G. This proposal will provide for the use of consistent procedures throughout the agency's permitting/licensing programs concerning voluntary termination.

Subchapter F - Permit Characteristics and Conditions

Section 305.121 is proposed to be amended to add "radioactive material disposal" to apply characteristics and conditions for permits issued under other programs to radioactive material licenses. This standardization will provide more consistency between programs, by locating basic conditions in one part of the rules and by standardizing the basic requirements. Standardization should make the application process easier for persons having multiple permits/licenses from the agency and make consolidated permitting easier to implement.

Section 305.123 is proposed to be amended to add "Texas Health and Safety Code, Chapters 361 and 401" and to delete "Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7" to allow the agency to incorporate requirements necessary to implement its responsibilities under THSC, Chapter 401, Radioactive Materials and Other Sources of Radiation into existing permits and to update the citation for the Texas Solid Waste Disposal Act, Chapter 361.

Section 305.125 is proposed to be amended. Section 305.125(9) is proposed to be amended to add a new paragraph (C) to refer to the requirements in Chapter 336 for reporting noncompliances/incidents to the executive director. Section 305.125(10) is proposed to be amended to add "and 401.063" to include the inspection and entry requirements under THSC, §401.063, as a standard permit condition. With the amendments to §305.125, the subject matter is addressed and therefore, §336.215 and §336.742, which are redundant of proposed 305.125, are concurrently proposed to be repealed in other portions of this rulemaking. Section 305.125(11)(B) is proposed to be amended to add "as otherwise required by Chapter 336 of this title or" to refer to Chapter 336 monitoring requirements and to exclude licenses issued under Chapter 336 from this subparagraph's RCRA reporting requirements under 40 CFR §264.73(b)(9). Section 305.125(22) is taken from concurrently repealed §336.219 which requires permittees to notify the executive director, in writing, following the filing of a voluntary or involuntary petition for bankruptcy. This provision will be applicable to all permits subject to Chapter 305. This simple notification requirement will allow the executive director to bring to the bankruptcy court's attention any environmental concerns which need to be addressed to protect health and the environment.

Section 305.127 is proposed to be amended. In the title of the section, the words "To Be" are proposed to be changed to lower case letters. Section 305.127(1) is proposed to be amended to add a new subparagraph (G) that adds fixed term limits for radioactive material licenses. The 20-year term limit a for low-level radioactive waste disposal license under Subchapter H does not constitute a change. The agency proposes a fixed limit, not to exceed ten years, for all other radioactive material licenses. The THSC, Chapter 401 is silent with regards to term limits for licenses not issued under Subchapter H, with the exception that the financial qualifications of the licensee are reviewed once every five years. This provision does not change that financial review requirement. The proposed ten- year limit is consistent with the term limit for RCRA and UIC Class I injection well permits and reflects the current practice of the agency. This consistent approach to ten-year terms will allow permittees to consider the option of consolidating separate permits into one. Section 305.127(4)(A) is proposed to be amended to add "to Chapter 336 of this title (relating to Radioactive Substance Rules) for radioactive material disposal standards," to include the technical requirements of Chapter 336 as conditions to which the commission will refer for determination of requirements to be included in the license. Section 305.127(4)(C) is proposed to be amended to add "Chapter 336 of this title (relating to Radioactive Material Disposal Standards)" to incorporate by reference into the license, the technical requirements of Chapter 336 as license conditions.

FISCAL NOTE

Jeff Grymkoski, Director, Strategic Planning and Appropriations, has determined that for the first five-year period the proposed rules are in effect, there will be no significant fiscal implications for the commission or other units of state and local government as a result of administration or enforcement of the proposed rules.

The proposed rules implement HB 1172 76th Legislature, 1999 (an Act relating to the definition of low-level radioactive waste) by amending the definition of low-level radioactive to be compatible with the NRC. The proposed rules would also make radiation control license application requirements more consistent with those of the rest of the agency.

The proposed rules would also require all permittees to notify the executive director in writing following a filing of a voluntary or involuntary petition for bankruptcy.

PUBLIC BENEFIT

Mr. Grymkoski has also determined that for each year of the first five years the proposed rules are in effect, the anticipated public benefit from enforcement of and compliance with the proposed rules will be enhanced compliance by making the radiation control program's license application requirements more consistent with the other agency application and permit requirements.

The proposed rules implement HB 1172 76th Legislature, 1999 (an Act relating to the definition of low-level radioactive waste) by amending the definition of low-level radioactive waste to be compatible with the NRC. The proposed rules would also make radiation control program's license application requirements more consistent with those of the rest of the agency.

Persons, businesses, or facilities applying for a permit to dispose of radioactive material would now be required to provide the agency a map with their application under proposed Chapter 305 application requirements. The cost of preparing and providing the map should not be a significant cost over the cost of preparing similar information under the former Chapter 336 requirements.

The proposed rules would also require all permittees to notify the executive director in writing following of a voluntary or involuntary petition for bankruptcy and impose a ten-year term limit for certain radioactive material licensees. However, these new requirements are not expected to have a significant fiscal impact on any licensee.

SMALL AND MICRO-BUSINESS IMPACT ANALYSES

No adverse economic effects are anticipated to any small businesses or micro-businesses as a result of implementing the proposed rules. The proposed rules implement HB 1172 76th Legislature, 1999 (an Act relating to the definition of low-level radioactive waste) by amending the definition of low-level radioactive to be compatible with the NRC. The proposed rules would also make radiation control program license application requirements more consistent with those of the rest of the agency. The proposed rules would also require all permittees to notify the executive director in writing following a voluntary or involuntary petition for bankruptcy and impose a ten-year term limit for certain radioactive material licensees. However, these new requirements are not expected to have a significant fiscal impact on any licensee.

DRAFT REGULATORY IMPACT ANALYSIS

The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks 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 the state or a sector of the state. The proposed amendments to Chapter 305 are not anticipated to 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 the state or a sector of the state because the requirement to notify the agency in case of bankruptcy and the ten-year term limit for radioactive material licenses other than those granted under Chapter 336, Subchapter H, and additional application requirements in Chapter 305 are not expected to significantly increase the cost of licensees. The simple notification requirement in case of bankruptcy will allow the executive director to bring to the bankruptcy court's attention any environmental concerns which need to be addressed to protect health and the environment. Similarly, the ten-year term limit will allow permittees to consider the option of consolidating separate permits into one. Currently, the radiation control program uses different definitions from the rest of the agency's permitting programs for major and minor amendment. The TNRCC's BPR-PIT, as part of its recommendation to make the permitting process consistent within the agency wherever possible, recommended that the definitions for major and minor amendment in Chapter 336 be repealed and that the radiation control program begin using the major and minor amendment definitions found in Chapter 305, Subchapter D.

According to §305.62(c), a major amendment is "an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit." A minor amendment is "an amendment to improve or maintain the permitted quality or method of disposal of waste, or injection of fluid if there is neither a significant increase of the quantity of waste or fluid to be discharged or injected nor a material change in the pattern or place of discharge or injection. A minor amendment includes any other change to a permit issued under this chapter that will not cause, or relax a standard or criterion which may result in, a potential deterioration of quality of water in the state."

Currently according to Chapter 336, major amendments to Subchapter F licenses include transfers of a license to another person, enlargement of the disposal area, the addition of another disposal area and substantial changes to the nature of the waste or the method of disposal. All of these types of changes, except for a license transfer, would be considered significant changes to a permit by other agency permitting programs, would be processed as major amendments, and are therefore proposed to be repealed. Since transfers do not "cause, or relax a standard or criterion which may result in, a potential deterioration of quality of water in the state", there are no federal or state laws to the contrary, and the rest of the permitting programs treat transfers separately or as minor amendments, the commission proposes to process transfers for Subchapter F and G licenses under §305.64.

Amendments to Chapter 336 licenses for which an environmental analysis is required, are currently classified as major amendments. Since environmental analyses are required in instances where the executive director has determined that there is a significant effect on the human environment, those instances meet the definition of major amendment in §305.62(c)(1) by being "an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit." The commission proposes to add that requirement to §305.62(c)(1)(A).

A major amendment to a Subchapter H license, under which a low-level radioactive waste disposal facility receiving waste from others would be licensed, is currently defined as authorizing: changes in the type or concentration limits of wastes to be received; receipt of wastes from other states not authorized in the existing license; changes in the operator of the facility; closure and the final closure plan for the disposal site; or transfers the license to the custodial agency. Because of the uniqueness of regulating a low-level radioactive waste disposal facility licensed to receive waste from others, the commission proposes that current requirements for major amendment for Subchapter H licenses be retained and incorporated into the definition of major amendment in §305.62(c)(1) as §305.62(c)(1)(B). Therefore, the proposed changes to the definitions of major and minor amendment are not substantially different from those in the current rules.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the rules is to: (1) implement House Bill (HB)1172, 76th Legislature, 1999, and its amendments to the THSC; (2) implement the recommendations of the TNRCC's BPR-PIT to provide for consistency between the procedures of the radiation control program and the other permitting programs within the agency; and (3) improve readability and understanding by reorganizing Chapter 336 (relating to Radioactive Substance Rules), putting its requirements into plain English and eliminating redundancies and conflicts. The rules will substantially advance these specific purposes by incorporating these changes to implement HB 1172: (1) amending the definition of low-level radioactive waste to be compatible with the NRC's definition; (2) incorporating the TNRCC's new exemption from rule authority; (3) adding an exemption to continue to expand on-site low-level radioactive waste disposal begun before September 9, 1989; and (4) adding exemptions from radioactive material licensing requirements for facilities participating in the Voluntary Cleanup Program or Superfund cleanups; and by beginning to use the agency's definitions for major and minor amendments rather than radiation control program specific definitions; by moving the application process from Chapter 336 to Chapter 281 (relating to Applications Processing) and Chapter 305 (relating to Consolidated Permits) and amending it to be consistent with other agency application procedures; by making Chapter 336 more understandable by partially reorganizing the chapter; and by clarifying wording, eliminating unnecessary or repetitive language, and improving readability. Promulgation and enforcement of these rules will not burden private real property.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The commission has reviewed the proposed rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP) nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC 505.11. Therefore, the proposal is not subject to the CMP.

PUBLIC HEARING

A public hearing on this proposal will be held in Austin on July 6, 2000, at 10:00 a.m. in Building F, Room 2210 at the Texas Natural Resource Conservation Commission Complex, located at 12100 Park 35 Circle. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs, who are planning to attend the hearing, should contact the Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3078 or faxed to (512) 239-4808.

SUBMITTAL OF COMMENTS

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 1999-057-336-WS. Comments must be received by 5:00 p.m., July 17, 2000. For further information or questions concerning this proposal, please contact Hygie Reynolds, Waste Permits Division, at (512) 239-6825.

Subchapter A. GENERAL PROVISIONS

The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes amendments to §336.1, Scope and General Provisions; §336.2, Definitions; §336.5, Exemptions; §336.103, Schedule of Fees for Subchapter H Licenses; §336.105, Schedule of Fees for Subchapter F Licenses; §336.107, Annual License Fee Due Date and Period Covered; §336.301, Purpose and Scope; §336.308, Determination of Internal Exposure; §336.313, Dose Limits for Individual Members of the Public; §336.341, General Requirements for Recordkeeping; §336.352, Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits; §336.355, Reports of Individual Monitoring; §336.405, Notifications and Reports to Individuals; §336.513, Technical Requirements for Active Disposal Sites; §336.601, Definitions; §336.607, Criteria for License Termination under Restricted Conditions; §336.613, Additional Requirements; §336.701, Scope and General Provisions; §336.702, Definitions; §336.705, Content of Application; and §336.718, Application for Renewal or Closure.

The TNRCC also proposes new §336.201, Purpose and Scope; §336.203, License Required; §336.205, Application Requirements; §336.207, General Requirements for Issuance of a License; §336.209, Issuance of License; §336.211, General Requirements for Radioactive Material Disposal; §336.213, Method of Obtaining Approval of Proposed Disposal Procedures; §336.215, Disposal by Release into Sanitary Sewerage; §336.217, Disposal by Burial in Soil; §336.219, Disposal by Release into Septic Tanks; §336.221, Treatment or Disposal by Incineration; §336.223, Disposal in Underground Injection Control (UIC) Class I injection wells; §336.225, Disposal of Specific Wastes; §336.229, Prohibition of Dilution; §336.331, Transfer of Radioactive Material; §336.332, Preparation of Radioactive Material for Transport; §336.335, Reporting Requirements for Incidents; §336.336, Tests; §336.338, General Recordkeeping Requirements for Disposal; §336.339, Form of Records; Applicability; and §336.501, Scope and General Provisions; §336.602, Definitions; §336.615, Inactive Disposal Sites; §336.617, Technical Requirements for Inactive Disposal Sites; §336.619, Financial Assurance for Decommissioning; §336.621, Recordkeeping for Decommissioning; §336.623, Financial Assurance for Control and Maintenance; §336.625, Expiration and Termination of Licenses; and §336.627, Appendix A. Radionuclide Quantities for Use in Determining Financial Assurance for Decommissioning.

The TNRCC also proposes the repeal of §336.201, Purpose and Scope; §336.203, Environmental Analysis; §336.205, Transfer of Radioactive Material for Transport; §336.207, Preparation of radioactive Material for Transport; §336.209, Records and Reports; §336.210, Complaints; §336.211, Reporting Requirements for Incidents; §336.213, Tests; §336.215, Inspections; §336.219, Notice of Bankruptcy; §336.331, General Requirements for Waste Disposal; §336.332, Method of Obtaining Approval of Proposed Disposal Procedures; §336.333, Disposal by Release into Sanitary Sewerage; §336.334, Disposal by Burial in Soil; §336.335, Disposal by Release into Septic Tanks; §336.336, Treatment or Disposal by Incineration; §336.337, Disposal of Specific Wastes; §336.338, Transfer for Disposal at Licensed Land Disposal Facility and Manifests; §336.339, Texas Department of Health Inspection and Regulation of Shipments of Radioactive Waste; §336.340, Compliance with Environmental and health Protection Regulations; §336.348, Records of Waste Disposal; §336.349, Form of Records; §336.351, Notification of Incidents; §336.361, Appendix D. Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Manifests; §336.501, Scope and General Provisions; §336.502, Definitions; §336.503, Filing of Application; §336.504, General Requirements for Issuance of a License; §336.505, Issuance of License; §336.512, Technical Requirements for Inactive Disposal Sites; §336.514, Financial Assurance for Decommissioning; §336.515, Recordkeeping for Decommissioning; §336.517, Financial Assurance for Control and Maintenance; §336.519, Expiration and Termination of Licenses; §336.521, Appendix A. Radionuclide Quantities for Use in Determining Financial Assurance for Decommissioning; and,§336.742, Inspections of Land Disposal Facilities.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

This rule package has three major goals: (1) implement House Bill (HB) 1172, 76th Legislature, 1999, and its amendments to the Texas Health and Safety Code (THSC); (2) implement the recommendations of the TNRCC's Business Process Review Permit Implementation Team (BPR-PIT) to provide for consistency between the administrative procedures of the radiation control program and the other permitting programs of the agency; and (3) improve readability and understanding by reorganizing Chapter 336, putting its requirements into plain English, and eliminating its redundancies and conflicts.

Changes to implement HB 1172 are: (1) amending the definition of low-level radioactive waste to be compatible with the United States Nuclear Regulatory Commission's (NRC's) definition; (2) incorporating the TNRCC's new authority to exempt from application of a rule; (3) adding an exemption to continue or expand on-site low-level radioactive waste disposal begun before September 9, 1989; and (4) adding exemptions from radioactive material licensing requirements for facilities participating in the Voluntary Cleanup Program or Superfund cleanups.

The BPR-PIT changes are part of an agency-wide effort to make programs consistent where feasible. The agency's management has mandated the consistency effort to make agency processes more efficient and "user friendly." Most of the license application process requirements in Chapter 336 can be modified to be more consistent with the permit application requirements of the rest of the agency. The TNRCC expects a consistent application process to be especially helpful for persons who have multiple permits/licenses from the TNRCC or are seeking consolidated permits. Major proposed changes are: (1) that the radiation control program will begin using the agency's definitions for major and minor amendments; and (2) the radiation control program application process will be moved from Chapter 336 to Chapter 281 (relating to Applications Processing) and Chapter 305 (relating to Consolidated Permits) with technical requirements remaining in Chapter 336 and amended to be consistent with agency administrative procedures.

Lastly, the TNRCC proposes that Chapter 336 be made more understandable by partially reorganizing the chapter. Existing Subchapter C is proposed to be repealed, with those sections being moved to more appropriate locations, or eliminated if redundant with other rules. The agency also proposes to correct discrepancies within the chapter. For example, Subchapter C reporting requirements are proposed to be moved to and merged with Subchapter D reporting requirements. Additionally, the application process is proposed to be moved to and merged with the agency's application process requirements in Chapter 305 and Chapter 281. The disposal requirements in Subchapter D are proposed to be moved to form a new Subchapter C, which will be titled "General Disposal Requirements." All of the decommissioning requirements are proposed to be moved to Subchapter G, including inactive disposal site clean-up requirements. The commission also proposes to make distinctions between exemptions and requirements outside TNRCC's jurisdiction (§336.1 and §336.5).

In addition to the reorganization, wording in some areas has been clarified. These changes are as follows: (1) putting requirements into plain English, thereby resolving problems where the intent of the rule may have been unclear; (2) eliminating or simplifying unnecessary or repetitive language; (3) breaking long, complicated sections into shorter subsections; and (4) shortening sentences for readability.

In this package, the commission is not proposing to: (1) make any substantive changes unless a provision clearly conflicted with statutory requirements (e.g., recordkeeping requirements in THSC, §401.057 and §401.058) or a change was needed to implement either HB 1172 or the BPR- PIT recommendations; (2) address whether rule requirements are Texas Department of Health (TDH) or TNRCC jurisdiction; (3) address new NRC compatibility issues, beyond the definition of low-level radioactive waste; or (4) make any changes affecting the regulation of naturally occurring radioactive material (NORM) waste disposal.

The proposal has been reviewed by both the NRC and the Texas Radiation Advisory Board (TRAB). Comments received from TRAB have been incorporated as appropriate.

As a point of clarification regarding the use of the terms "radioactive substance" and "radioactive material," the agency chooses to use the term "radioactive material" over that of "radioactive substance" wherever possible. The term "radioactive substance" was created to refer collectively to radioactive materials that were under the TNRCC's disposal jurisdiction, excluding materials not within the TNRCC's jurisdiction. The definition under THSC, §401.003(19), which excludes oil and gas NORM, was not changed by the legislature to exclude byproduct material when jurisdiction over disposal of byproduct material was transferred to the TDH. In defining the TNRCC's jurisdiction under THSC, §401.412(a), byproduct material as defined by THSC, §401.003(3)(B) is specifically excluded. Therefore, use of the terms "radioactive material" and "radioactive substance" in this proposal does not include disposal of byproduct material under TDH's disposal jurisdiction, or oil and gas NORM waste under Railroad Commission of Texas jurisdiction. In TNRCC practice, the term "radioactive substance" has been used interchangeably with "radioactive material." Within the bounds of the TNRCC's jurisdiction, the agency interprets "radioactive substance" and "radioactive material" to have the same meaning.

SECTION BY SECTION DISCUSSION

Subchapter A - General Provisions

Section 336.1 is proposed to be amended. The reference to the United States Nuclear Regulatory Commission has been abbreviated as "NRC" throughout the section. Section 336.1(a) is proposed to be amended to simplify the reference to Chapter 336 and to break part of it out into paragraphs (1) and (5) so that new paragraphs (2)-(4) can be added to clarify the meaning of the rule. Section 336.1(a)(2) language moved, unchanged from §336.5(c), to spell out exemptions to the agency's rules and jurisdiction early in the subchapter, except the catchline, "United States Department of Energy contractors and United States Nuclear Regulatory Commission contractors" has been deleted. Section 336.1(a)(3) clarifies that radioactive material transferred outside of the possession of the federal government is subject to state jurisdiction. Section 336.1(a)(4) clarifies that transportation issues are outside the TNRCC's jurisdiction, but this does not mean a transporter is exempt from the applicable requirements of other government agencies. Section 336.1(a)(5) is moved, unchanged, from the last sentence in existing §336.1(a). Section 336.1(b) is proposed to be amended to refer interested parties to the agency for a copy of the Articles of Agreement, rather than to a specific internal organization that might change in a future agency reorganization. Section 336.1(d) is proposed to be amended to clarify that persons licensed under the "chapter," rather than the "subchapter," are required to confine "disposal," as well as "possession and use," of licensed radioactive material to the locations and purposes authorized under the license. Section 336.1(f) merges, clarifies, and restates in plain English, existing prohibitions regarding radioactive material waste disposal, derived from existing §336.334 and from existing §336.501(a) and (b), regarding the requirement for a license to dispose of low-level radioactive material or waste on-site; from existing §336.332(e), regarding receiving low-level radioactive waste from other persons; and from existing §336.501(a) and §336.332(a) regarding NORM waste disposal. Section 336.1(g) clarifies that accelerator-produced radioactive material, though not a low-level radioactive waste by definition, is regulated in the same manner as low-level radioactive waste. This provision maintains the status quo regarding the regulation of accelerator-produced radioactive material, yet does not conflict with the new definition of low-level radioactive waste mandated by HB 1172 or with the definition of low-level radioactive waste of the NRC.

Section 336.2 is proposed to be amended. The definition of "Byproduct material" is proposed to be amended to insert "or" in place of "and" to maintain compatibility with the federal definition and Senate Bill (SB) 1857, 74th Legislature, 1997. The definition of "Disposal" is a new definition to implement HB 1172's amendments to THSC, §401.003(8). Definitions are subsequently renumbered throughout this section to account for definition additions and deletions. The definition of "Generally applicable environmental radiation standards" is proposed to be amended to abbreviate United States Environmental Protection Agency as EPA. The definition of "Land disposal facility" is proposed to be amended to conform with HB 1172. The definition of "Low-level radioactive waste" is proposed to be amended to conform with HB 1172's new THSC, §401.004 and the definition of "Waste" in Title 10 Code of Federal Regulations (CFR) §61.2. However, at the request of TRAB, the proposed rule adds "transuranic waste" to §336.2(57)(B)(iii) to exclude transuranic waste from the definition of low-level radioactive waste. The TRAB members stated that they felt this would help eliminate any confusion between low-level radioactive waste and high-level radioactive waste. The definition of "Major amendment" is proposed to be deleted to provide consistency between the permitting programs in the agency, as recommended by the agency's BPR-PIT, and as discussed in proposed changes to §305.62(c) in a concurrent amendment. Subparagraph (c) is derived from HB 1172. The radiation program will use the agency's definitions of major amendment in §305.62(c)(1). The definition of "Minor amendment" is also proposed to be deleted to provide consistency in agency applications processing, as recommended by the agency's BPR-PIT, and is discussed in the preamble to §305.62(c)(2). The radiation control program will use the agency's definition of minor amendment in §305.62(c)(2). The rule proposes to move the definition of "On-site" without change from §336.502(3) because it applies to more than one subchapter. The definition of "Radioactive substance" is proposed to be amended to conform with THSC, §401.003(19). The existing definition of "Radioactive waste" is proposed to be deleted because it is replaced with the new HB 1172 definition of "Low-level radioactive waste." For the purpose of this chapter, a new definition of "Transuranic waste," based upon the waste classification system in 10 CFR §61.55 and §336.362, is proposed to be added to provide a definition for this term that was previously added to the definition of "Low-level radioactive waste."

Section 336.5 is proposed to be amended. Section 336.5(a) is proposed to be amended to delete the subtitle "General provision" and to make its language conform with HB 1172 amendments to THSC, §401.106(b) and (c). Section §336.5(a)(1)-(4) are new provisions providing more detail on the processing of requests for exemption from rule and on the information required to be submitted with the request.

A commission order authorizing or denying a request for an exemption from a rule would be the authorization or denial for that activity. In some cases, the commission order may also specify the requirement to obtain or maintain a license. It should be noted that HB 1172 did not authorize the TNRCC to exempt persons from statutory requirements. Therefore, requests for exemption from the requirement to get a license will not be entertained. Because the process of 30 TAC Chapter 90 will be used, the public participation requirements contained in Chapter 90 will be followed.

New §336.5(b) is proposed to conform with HB 1172's new THSC, §401.104(e) to exempt from licensing requirements, persons participating in the agency's Voluntary Cleanup Program or Superfund cleanups. Former §336.5(b) is proposed to be deleted because transportation is not within the agency's jurisdiction, and therefore is not an exemption. The deleted language has been simplified and moved to §336.1(a)(4). New §336.5(c) clearly delineates that radioactive materials exempted from licensing requirements by TDH under THSC, §401.106(a) are not subject to regulation as radioactive materials by the TNRCC. Former §336.5(c) is proposed to be deleted and moved to §336.1(a)(2) because it pertains to activities outside of the agency's jurisdiction rather than an exemption from rule.

Subchapter B - Radioactive Substance Fees

Section 336.103 is proposed to be amended to add "low-level" to "radioactive waste" wherever it appears in subsections (a)-(c) to conform with HB 1172.

Section 336.105 is proposed to be amended to be consistent with the non-substantive organizational changes made throughout Subchapters F and G to improve readability. Existing fee amounts remain unchanged in this proposal. The section title is proposed to be amended to "Schedule of Fees for Other Licenses." Section 336.105(a) is proposed to be amended to delete the catchline "Application fee" and add "or Subchapter G of this title (relating to Decommissioning Standards);" §336.105(a)(1) is proposed to be amended to delete "facility at which active disposal operations have ceased" and replace that language with "facilities regulated under Subchapter G"; and §336.5(a)(2) is proposed to be amended to delete "proposed facility with active disposal operations" and replace that language with "facilities regulated under Subchapter F of this chapter." Section 336.105(b) is proposed to be amended to delete the catchline "Annual license fees," and add "and Subchapter G"; §336.105(b)(1) is proposed to be amended to delete "licensed facility at which active disposal operations have ceased" and replace that language with "facilities regulated under Subchapter G of this chapter"; and §336.105(b)(2) is proposed to be amended to delete "licensed facility with active disposal operations" and replace that language with "facilities regulated under Subchapter F of this chapter." Section 336.105(c) is proposed to be amended to delete the catchline "fees for certain amendment requests," add "a major" in front of "amendment," add "or Subchapter G," and delete "if the amendment involves expansion of previously authorized disposal facilities or addition of disposal facilities" to make the fee applicable to all major amendments under Subchapter F or G. Section 336.105(d) is proposed to clarify what fees apply when a facility ceases disposal activities and has received approval of the final decommissioning plan since a decommissioning plan is approved as a license amendment and the decommissioning will be carried out under the (now newly amended) license.

Section 336.107(a) is proposed to be amended to correct a cross-reference by reflecting the newly proposed section title for §336.105.

Subchapter C - Additional Application, Operation, and License Requirements

This subchapter is proposed to be repealed entirely and its requirements moved to new, more appropriate locations or completely repealed if those requirements are addressed elsewhere in the agency rules. The first sentence in §336.201(a) is proposed to be moved to proposed 336.205. The requirement that application information be complete and accurate, as stated in existing §336.201(a), is to be repealed because it is redundant with language in §305.44(b). Section 336.201(b)-(d) language is proposed to be moved to §305.54 with minor modifications such as adding the words "low-level" and taking out obsolete dates. Existing §336.203 language is proposed to be moved to §281.21(f) with minor modifications. Existing §336.205 and §336.338 are proposed to be moved to §336.331 with minor modifications. Section 336.207 language is proposed to be moved in part to §336.332. Section 336.209 language is concurrently proposed to be moved to and merged with §336.341 with the exceptions of §336.209(d), which is moved to §336.339, and §336.209(f) to clarify that these recordkeeping requirements are applicable to all licensees. Section 336.210 is repealed because THSC, §401.392, which is the basis for it, was repealed in 1997. Section 336.211 language is concurrently proposed to be moved to §336.335 with additional language from §336.351. Section 336.213 language is concurrently proposed to be moved to §336.336 with modifications. Section 336.215 is repealed, along with §336.742, because both provisions are redundant with §305.125(10). Section 336.219 language is concurrently proposed to be moved to §305.125(22) and amended to apply to all programs as discussed in the concurrent Chapter 305 proposal.

New Subchapter C - General Disposal Requirements

This new subchapter is proposed to provide a central location for all of the general radioactive material disposal requirements and to clarify existing radioactive material disposal requirements. This new subchapter is based on existing disposal requirements in THSC, Chapter 401 and 30 TAC Chapter 336.

New §336.201 states that the new subchapter pertains to the disposal of all radioactive materials, except byproduct material and oil and gas NORM waste.

Section 336.203 sets forth the statutory requirement that all radioactive material disposal must be authorized by either a TNRCC license (THSC, §401.101) or an exemption by the TDH (THSC, §401.106(a)).

New §336.205(a) states that applications are to be submitted under the requirements of Chapter 305 (which also refers to the applicable subchapters under Chapter 336). Section 336.203(b) states that applications are to be accompanied by the appropriate fee from Subchapter B.

Section 336.207 consolidates requirements from existing §336.504(1)-(4), and applies to all radioactive material licensing actions. Existing §336.504(5) is proposed to be deleted because it is redundant with §305.127(4)(c) requirements.

Section 336.209 language is proposed to be moved from existing §336.505 and amended to include compliance with the agency rules relating to radioactive material licensing, as a precondition for license issuance. This proposed change is part of the agency effort to make the radioactive material licensing process consistent with the administrative procedures of other permitting programs of the agency.

Section 336.211 clarifies general requirements for radioactive material disposal. Section 336.211(a) is language moved essentially unchanged from deleted §336.331(a), except to correct cross-references and to modify paragraph (3). Section 336.211(3) is modified to clarify that once a radioactive material has decayed in storage, it shall be subject to other applicable laws, such as the Solid Waste Disposal Act and shall be disposed of as authorized by applicable laws. Proposed new subsection (b), relating to receipt of licensed materials from other persons, is based on 10 CFR §20.2001(b), and addresses a federal Level C compatibility category requirement. For NRC regulations that are assigned a Level C compatibility category, Agreement States are required to adopt the essential objectives of the NRC's program elements in rule but do not have to have a rule requirement identical to the federal regulation. Subsection (c) is language moved from existing §336.331(b) and clarified to reflect the TDH's jurisdiction. Subsection (d) is a proposed clarification of regulatory jurisdiction over the disposal of radioactive materials. Subsection (e) is necessary to conform with HB 1172's new THSC, §401.106(c), which states that on-site disposal of low-level radioactive waste is prohibited in Texas, except that the commission may authorize the continued on-site disposal of low-level radioactive waste at facilities which began low-level radioactive waste disposal operations before September 1, 1989 and to clarify that persons eligible for the on-site disposal authorization are to be licensed under Subchapter F. Subsection (f) is a proposed clarification from §336.701(a).

Section 336.213 is a proposed clarification and major rewrite of existing §336.332, which was based upon 10 CFR §20.2002. The section refers persons applying for a license to Chapter 305 for requirements regarding the application process. Within Chapter 336, there will be three subchapters under which a license may be issued. Decommissioning licenses may be issued under Subchapter G, low-level radioactive waste disposal licenses may be issued under Subchapter H, and other on-site radioactive material disposal licenses for activities not licensed under Subchapters G or H will be issued under Subchapter F. Section 336.213(a), which is language was moved from existing §336.332(c), has been rewritten to clarify that these license applications will be submitted and processed under Chapter 305. Section 336.213(b) language was moved from existing §336.332(b), and has been rewritten to clarify that changes to radioactive material license conditions are to be submitted and processed according to the amendment process in Chapter 305, Subchapter D. Section 336.213(c) language is moved from existing §336.332(a) and (d) and has been rewritten to clarify the purpose of Subchapter F (relating to Licensing of Alternative Methods of Disposal of Radioactive Materials). Under current rules, §336.332(a) addresses activities not clearly regulated elsewhere in the rules. Sections 336.501 and 336.213(c) now serve this function. Subchapter F is intended to be used in instances where an applicant applies for authorization for on-site disposal not covered by any other Chapter 336 subchapter. Subchapter F is not intended to be used to authorize activities regulated under Subchapter G or H or to authorize commercial disposal of radioactive material.

Section 336.215 contains language moved unchanged from existing §336.333 except for minor style and format changes.

Section 336.217 addresses the same requirements as existing §336.334, and has been amended as necessary to correct cross-references, reflect the reorganization of Chapter 336, and to implement the new requirements of HB 1172, relating to exemptions.

Section 336.219 contains those provisions moved from existing §336.335 as amended to correct the cross-reference from existing §336.332 to Subchapter F because of reorganization under proposed §336.213.

Section 336.221 contains language proposed to be deleted from §336.336, with modifications for readability and correction of cross-references.

Section 336.223 is a clarification of the relationship between the radiation control and underground injection control (UIC) programs, based upon the following existing rules and statutes. Title 40 CFR §144.11 prohibits any underground injection unless authorized under the UIC program. Section 331.7(a) of this title requires that all injection wells and activities be authorized by permit. Proposed §336.203, based on THSC, §401.101 and §401.104(b), requires that all disposal of radioactive material be licensed by the TNRCC or exempted by the TDH. Thus, proposed §336.223 requires disposal of "radioactive material by injection" to be authorized under both the UIC and radiation control rules.

Section 336.225 is language proposed to be moved from repealed §336.337. It has been modified to correct cross-references, correct a typographical error in existing §336.337(c) by changing an incorrect reference from subsection (d) to (b), delete general license requirements over which the TNRCC has no jurisdiction, and change "may" to "shall" to make clear that the requirements are mandatory. It also changes "executive director" to "agency" for consistency with rules in other programs.

Section 336.229 is clarification of existing TNRCC policy. Once a waste is classified as a radioactive material, whether low-level radioactive waste, NORM waste, or byproduct material, it maintains that classification for the purposes of determining the appropriate means of disposal under Chapter 336.

Subchapter D - Standards for Protection Against Radiation

Changes to Subchapter D are primarily organizational in nature. The disposal requirements in this subchapter are proposed to be moved to the new Subchapter C - General Disposal Requirements. Transfer, transportation, and reporting and testing requirements from Subchapter C are proposed to be moved to Subchapter D to be merged with similar requirements, or eliminated if redundant.

Section 336.301 is proposed to be amended. Section 336.301(a) is proposed to be amended to add "and establishes minimum standards for all persons who dispose of radioactive materials" to clarify that some provisions within the subchapter apply to all persons and not just licensees. New §336.301(d) contains language moved unchanged from existing §336.340, which stated that compliance with the rules in Chapter 336 does not preclude a licensee from having to comply with other rules.

Section 336.308 is proposed to be amended to correct a cross-reference in §336.308(d) to reflect the new proposed section for incident reporting requirements and to change the numeral "7" to "seven."

Section 336.313 is proposed to be amended. Section 336.313(a)(1) is amended to correct a cross-reference to reflect the new proposed section for disposal into sanitary sewage requirements. Section 336.313 also includes usage changes such as changing the numeral "1" to "one," and using "EPA" rather than spelling out "Environmental Protection Agency."

Section 336.331 is proposed to be repealed as discussed in relation to §336.211. The proposed new §336.331 contains language moved from existing §336.205 with grammatical changes. The language moved from §305.205(b)(4) was edited to remove redundant language by deleting "to any person otherwise authorized to receive this material by the federal government to any agency thereof, the commission, the TDH, or any Agreement State; or." In §336.331(b)(1), the words "executive director" have been changed to "agency" to reflect the authority of the agency to receive transferred radioactive material. Also, "may" has been changed to "shall" to make it clear that such transfers should occur only after agency approval.

The remaining §336.331(g) and (h) consist of language moved from existing §336.338, as amended to remove obsolete manifest requirements in existing §336.338(b)(2).

Existing §336.332 is proposed to be repealed as discussed in relation to §336.213. The proposed new §336.332 is moved from existing §336.207 with grammatical changes.

Section 336.333 is proposed to be repealed and its language moved to §336.215 with grammatical changes.

Section 336.334 is proposed to be repealed and its language moved to §336.217, as discussed in relation to §336.217.

Existing §336.335 is proposed to be repealed. The proposed new §336.335 moves incident reporting requirements from existing §336.211 and §336.351, merges the incident reporting requirements for ease in use, and amends the existing language as needed to clarify the requirements and to conform with the federal requirements in 10 CFR §30.50, §40.60, Part 40 Appendix A, Part 60, and 10 CFR §20.2202. The proposed new §336.335 clarifies that notifications in any form should be submitted to the executive director which by definition includes staff. As such, the redundant reference to "or staff" is deleted in §336.335(a), (b), and (c)(1) and (2). Proposed language for new §336.336 is moved unchanged from existing §336.213 except for a rewording of a citation.

Existing §336.336 is proposed to be repealed as per discussion in relation to §336.221. Proposed language for new §336.336 is moved substantially unchanged from existing §336.213.

Section 336.337 is proposed to be repealed as discussed in relation to proposed §336.225.

Section 336.338 is proposed to be repealed as discussed in relation to proposed new 336.331. New proposed §336.338 contains language moved from existing §336.348 and amended to conform to THSC, §401.057 by eliminating a time limit for record retention, by substituting the term "person" for "licensee," and adding language from §401.057(c) and (d).

Existing Section 336.339 is proposed to be repealed, as the current language is proposed to be moved with modifications to proposed new §336.701(e) because existing §336.339 applies to low-level radioactive waste. Proposed new §336.339 contains language from existing §336.349 and §336.209(d).

Section 336.340 is proposed to be repealed as discussed in relation to proposed §336.301.

Section 336.341 is proposed to be amended. The title is proposed to be amended to "General Recordkeeping Requirements for Licensees" to centrally locate general recordkeeping requirements for licensees (as opposed to general recordkeeping requirements for all disposal of sources of radiation in new §336.338). Section 336.341(b) is proposed to be amended to correct the cross-reference to 336.338. The language in proposed new §336.341(d)-(g) has been moved from repealed §336.209(a)-(c) and (e), respectively.

Section 336.348 is proposed to be repealed as discussed in relation to proposed §336.338.

Section 336.349 is proposed to be repealed as discussed in relation to proposed §336.339.

Section 336.351 is proposed to be repealed as discussed in relation to proposed §336.335.

Section 336.352 is proposed to have its subsection (a) and (a)(1) amended to correct cross- references from §336.351 to §336.335 to reflect the proposed amendments to improve the organization of this chapter.

Section 336.355 is proposed to have subsection (a) amended to add "low-level" in front of "radioactive waste" to conform with HB 1172.

Section 336.361 is proposed to be repealed to delete an obsolete manifesting provision which applies only to low-level radioactive waste received from other persons for disposal at a licensed land disposal facility before March 1, 1998. Because there were no land disposal facilities licensed to receive waste from others in Texas before March 1, 1998, the requirement is obsolete and is proposed to be deleted.

Subchapter E: Notices, Instructions, and Reports to Workers and Inspections

Section 336.405(d) is proposed to be amended to correct a cross-reference to reflect the proposed reorganization.

Subchapter F: Licensing of Alternative Methods of Disposal of Radioactive Material The rules propose a new regulatory scheme that requires decommissioning of a site be considered a separate and distinct action from the act of obtaining a license to dispose of radioactive material. When Subchapter F was originally adopted, owners of facilities with radioactive material contaminated soils and buildings and/or old radioactive material landfills were considered to be in "possession" of radioactive material. After NRC promulgated its "Timeliness in Decommissioning Rules (59 Fed Reg 36026), published July 15, 1994, effective August 15, 1994," and "Radiological Criteria for License Termination, (62 Fed Reg 39058) published July 21, 1995, effective August 20, 1997," it was no longer appropriate to license contaminated areas as possessing radioactive material for extended periods of time. A new concept of timely decommissioning, followed by release for unrestricted or restricted use, needs to be implemented in conformance with the new NRC requirements.

The following subsections related to decommissioning requirements in Subchapter F are proposed to be repealed and moved to Subchapter G: §§336.502-336.505, 336.512, 336.514, 336.515, 336.517, 336.519, and 336.521. These decommissioning provisions will be moved substantially unchanged to Subchapter G to consolidate all decommissioning requirements in one subchapter. This separates by chapter the decommissioning of inactive sites from the disposal of radioactive material at active sites. The remaining requirements in Subchapter F are proposed to be modified to more closely reflect the NRC's methods of licensing (10 CFR §20.2002).

In addition to moving decommissioning requirements from Subchapter F, the remaining requirements have been clarified and put into plain English to aid understanding. No substantive changes have been made other than to comply with federal and state laws and regulations.

This federal provision provides a mechanism to consider for approval, on-site disposal activities that do not fit the licensing criteria in Subchapter H or G. As amended and subject to applicable limitations, Subchapter F will continue to allow the commission to consider requests for on-site disposal of radioactive materials which are not addressed by Subchapters G and H (e.g., diffuse NORM waste having concentrations of radium-226 or radium-228 of less than 2,000 pCi/g).

The receipt and disposal of radioactive materials from off-site (commercial disposal) is not intended to be authorized by Subchapter F. This represents no change from current agency practice.

Subchapter F also allows the commission to consider requests for on-site disposal of low-level radioactive waste on a specific basis at any facility at which low-level radioactive waste disposal operations began before September 1, 1989, in conformance with HB 1172, 76th Legislature, 1999.

Section 336.501 is proposed to be repealed and replaced with new provisions to reflect organizational changes discussed previously where requirements for active disposal of radioactive material and for the decommissioning of inactive facilities are proposed to be separated between Subchapters F and G. Section 336.501(a) states that Subchapter F applies only to on-site disposal of radioactive material generated in the person's activities, and thus, may not be used to authorize commercial disposal of radioactive material or disposal of radioactive material received from other persons. Language from existing §336.501(a) is proposed to be added in part to §336.601(a), to move the decommissioning requirements for inactive disposal sites to Subchapter G; and to 336.615. Section 336.501(b) conforms with HB 1172's new definition of low-level radioactive waste and new THSC, §401.106(c). The language in current §336.501(c) is proposed to be moved unchanged to §336.615. The language in current §336.501(d) is proposed to be deleted to eliminate duplicative language. NRC requires all contaminated facilities, including those previously authorized or closed, to meet the new decommissioning standards for unrestricted or restricted release. Before NRC promulgated its timeliness-in-decommissioning regulations and new decommissioning standards, facilities which had contamination or waste disposed of on their property were licensed for possession of the radioactive material. The NRC's timeliness-in-decommissioning regulations changed that by requiring facilities to be decommissioned within a specific time frame upon cessation of activities. The preamble for the NRC's decommissioning standard also stated that the new standard was to be applied retroactively to all sites that exceeded the standard for release for unrestricted use. Therefore, sites previously authorized by the TNRCC or TDH are subject to current decommissioning standards. Section 336.501(e) is proposed to be relettered to become §336.501(c) and amended to remove "or waste" because the definition of "Radioactive material" includes "Low-level radioactive waste."

Existing §336.502 is proposed to be repealed because §336.502(1) and (2) pertain to decommissioning standards and §336.502(3) applies to all of Chapter 336 and not just Subchapter F. Section 336.502(1) and (2) are moved to proposed §336.602, and §336.502(3) is moved to proposed §336.2.

Existing §336.503 is proposed to be repealed, and its language moved with changes to proposed §336.205 as part of the reorganization of the chapter. These changes require that applicants use the application process in Chapters 281 and 305.

Section 336.504 is proposed to be repealed, and its language moved to proposed §336.207, as part of the reorganization of the chapter. These changes require that applicants use the application process in Chapters 281 and 305.

Section 336.505 is proposed to be repealed, and its language moved to proposed §336.209, as part of the reorganization of the chapter. These changes require that applicants use the application process in Chapters 281 and 305.

Section 336.512 is proposed to be repealed, and its language moved with minor modifications (e.g., eliminate redundant requirements, renumber accordingly, correct cross-references, and adjust one catchline) to proposed §336.617.

Section 336.513 is proposed to be amended. Section 336.513(a) is proposed to be amended to add information required by Chapter 305 and to refer applicants to Chapter 305 for the information required to be submitted for a license to authorize radioactive material disposal. Section 336.513(a)(1) is proposed to be deleted because it is redundant with §305.45. Subsequent paragraphs are renumbered to account for paragraph deletions. Existing §336.513(a)(6) is proposed to be deleted because it is redundant with §305.45(a)(6). Section 336.513(a)(19) is proposed to be amended to correct a cross-reference. Section 336.513(b)(1)(H) is proposed to be amended to correct a cross- reference.

Section 336.514 is proposed to be repealed with the language moved unchanged except to correct cross-references to proposed §336.619.

Existing §336.515 is proposed to be repealed as discussed in related §336.621.

Existing §336.517 is proposed to be repealed as discussed in related §336.623.

Existing §336.519 is proposed to be repealed as discussed in related §336.625.

Existing §336.521 is proposed to be repealed with language moved unchanged to proposed §336.627.

Subchapter G: Decommissioning Standards

Section 336.601 is proposed to be amended. Section 336.601(a) is proposed to be amended to add "the inactive disposal sites regulated under this subchapter" to confirm that the decommissioning of inactive sites previously addressed in Subchapter F is now addressed in this subchapter and to add "low-level" in front of "radioactive waste" in two locations to conform with HB 1172. Section 336.601(b) is proposed to be amended to add, "This subchapter also establishes the criteria under which a facility may be licensed for decommissioning" in place of deleted "Licensees who have submitted a decommissioning plan to the commission and have received commission approval of the plan before the effective date of these criteria may decommission according to the regulations in place at the time of filing of the plan or according to these criteria" to indicate that this subchapter establishes the criteria under which a facility may be "licensed" to be decommissioned.

Section 336.602 is proposed to be added to this subchapter. The definitions of "Control and maintenance" and "Institutional control" are taken from NRC's draft regulatory guidance DG-4006 "Demonstrating Compliance With the Radiological Criteria for License Termination," dated August 1998, and are terms which are also used in Subchapter G and the programs' financial assurance requirements. The definition of "Inactive disposal site" is proposed to be moved from repealed §336.502 with modifications to eliminate redundancies. The definition of "Funding plan" is also proposed to be moved from repealed §336.502 because it applies to decommissioning provisions.

Section 336.607(3) is proposed to be amended to reflect the proposed new titles for Chapter 37, Subchapter S and Subchapter T.

Section 336.613 is proposed to be amended. Section 336.613(a) is proposed to be amended to add "do not apply to licenses issued under Subchapter H of this chapter (relating to Licensing Requirements for Near-surface Land Disposal of Low-Level Radioactive Waste)" in place of deleted "(apply only to licenses issued under Subchapter F of this chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive Material)" to clarify that the section requirements apply to all licenses, except for those issued under Subchapter H. Section 336.613(b) is proposed to be amended to correct two cross-references due to the proposed reorganization of this chapter. Section 336.613(c) is proposed to be amended to correct a cross-reference due to the proposed reorganization of this chapter.

Section 336.615 is a new section proposed with its language moved unchanged from the deleted last sentence of §336.501(a) and from §336.501(c).

Section 336.617 is a new section proposed with its language moved from §336.512 unchanged, except to eliminate redundant requirements and to make minor formatting changes (e.g., deletions of catchlines and changing reference from Subchapter G to "of this chapter"). The proposed new language deletes §336.512(a)(1) and instead requires the applicant to submit information as provided in Chapter 305. Section 336.617(a)(7), (b)(1), and (g) is proposed to be amended to correct cross-references due to proposed reorganization of this chapter.

Section 336.619 is a new section proposed with its language moved from §336.514 unchanged, except for cross-references.

Section 336.621 is a new section proposed with its language moved from §336.515 unchanged, except for cross-references and to amend §336.621(3)(D) to be consistent with NRC's decommissioning standards.

Section 336.623 is a new section proposed with its language moved unchanged from §336.517 except for a cross-reference in §336.623(a).

Section 336.625 is a new section proposed with its language moved from §336.519 unchanged, except for cross-references, clarification of language, and to eliminate redundancies.

Section 336.627 is a new section proposed with its language moved unchanged from §336.521, except for a introductory sentence that this table is to be used for calculating financial assurance for decommissioning.

Subchapter H: Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste

The proposed changes to this subchapter are primarily to reflect the new term "low-level radioactive waste" and to make other conforming changes required by HB 1172. Other changes include clarification of language, correction of citations, elimination of redundancies, and changes to maintain compatibility with the NRC rules.

The title of Subchapter H is proposed to be amended to add "Low-Level" in front of "Radioactive Waste" to incorporate the new HB 1172 term "low-level radioactive waste."

Section 336.701 is proposed to be amended. Throughout §336.701, "low-level" is inserted in front of "radioactive waste" to conform to HB 1172. Section 336.701(a) is proposed to be amended to add "and accelerator-produced radioactive material" in three places. To indicate that accelerator- produced radioactive material continues to be regulated to the same standards as low-level radioactive waste, §336.701(a) is also proposed to be amended to add the following sentence: "For the purpose of this subchapter, the term 'low-level radioactive waste' includes accelerator-produced radioactive material." Section 336.701(b)(2) is proposed to be amended to correct a cross-reference and to delete "except as provided in subsection (c) of this section" which conforms to changes elsewhere in the proposal. Section 336.701(b)(3) is proposed to be deleted because the existing definition of low-level radioactive waste does not include transuranics as defined by §336.2(109). The remaining paragraphs are renumbered accordingly. Section 336.701(b)(4) is proposed to be amended to add back the title of the referenced section, which was previously in the proposed to be deleted §336.701(b)(3). Section 336.701(c) is proposed to be deleted because the TNRCC no longer has jurisdiction over byproduct material as defined in §336.2(13)(B). The subsequent subsections are relettered. Newly renumbered §336.701(c) is proposed to be amended to correct the title of Subchapter C, as proposed. Section 336.701(d) is proposed to be amended to clarify that facilities authorized under §336.501(b) are to be licensed under Subchapter F and are not subject to Subchapter H. Section 336.701(e) contains language, with some change, moved from existing §336.339 (see discussion under §336.339).

Section 336.702 is proposed to be amended to delete the paragraph (6) definition of "Disposal" to conform with the HB 1172 definition of "Disposal," which is located in proposed §336.2(29), and the remaining paragraphs are renumbered accordingly. Because of HB 1172 changes, the renumbered paragraph (21) replaces the definition of "Waste" with the appropriate reference.

Section 336.705 is proposed to be amended to add "Chapter 305 of this title (relating to Consolidated Permits)" as part of the effort to make the radiation control program's application process consistent with that of the other permitting programs of the agency.

Section 336.718(b) is proposed to be amended to add "Chapter 305 of this title (relating to Consolidated Permits)" to indicate that license renewal applications must also be filed in accordance with this chapter to make the radiation control program's application process consistent with that of the other permitting programs of the agency.

Section 336.742 is proposed to be repealed because it would duplicate language in §305.125(10) (relating to Inspections), which under these proposed rules, will apply to Subchapter H.

FISCAL NOTE

Jeff Grymkoski, Director, Strategic Planning and Appropriations, has determined that for the first five-year period the proposed rules are in effect, there will be no significant fiscal implications for the commission or other units of state and local government as a result of administration or enforcement of the proposed rules.

The proposed rules would implement certain provisions of HB 1172, 76th Legislature, 1999 (an Act relating to the definition of low-level radioactive waste) by making radiation control program application requirements consistent with those of the other permitting programs of the agency, reorganizing Chapter 336 for easier use and greater clarity, clarifying wording, eliminating unnecessary or repetitive language, and improving readability.

Changes to implement HB 1172 are: (1) amending the definition of low-level radioactive waste to be compatible with the NRC's definition; (2) incorporating the TNRCC's new authority to exempt from application of a rule; (3) adding an exemption to continue or expand on-site low-level radioactive waste disposal begun before September 9, 1989; and (4) adding exemptions from radioactive material licensing requirements for facilities participating in the Voluntary Cleanup Program or Superfund cleanups.

These rules are not anticipated to impose any new regulatory requirements on the 12 sites which are known to have buried radioactive material and will be affected by the proposed rules.

PUBLIC BENEFIT

Mr. Grymkoski has also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from enforcement and compliance with the proposed rules will be enhanced compliance by revising the definition of low-level radioactive waste to be more consistent with federal rules, by making the radiation control license application rule requirements more consistent with the other agency application requirements, and by making the rules clearer and easier to use.

Implementation of these rules is not anticipated to have an adverse economic affect on any person, business, or facility required to comply with the proposed rules. These rules are not anticipated to impose any new regulatory requirements on the 12 sites which are known to have buried radioactive material because no new requirements are added for disposal facilities that are not already required by current federal and state laws.

SMALL AND MICRO-BUSINESS IMPACT ANALYSES

The TNRCC has identified three small businesses or micro-businesses that could be affected by the proposed rules. These three businesses are: ISO-TEX, Brazoria County; Urban Machine Services, Harris County; and Houston Gamma Ray, Harris County. However, theses rules are not anticipated to pose any new adverse economic impact on these or any other small and micro-businesses because these rules impose no new requirements that do not already exist under current federal and state laws.

DRAFT REGULATORY IMPACT ANALYSIS

The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks 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 the state or a sector of the state. The proposed amendments to Chapter 336 are not anticipated to 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 the state or a sector of the state because there are no significant requirements added to radioactive material disposal facilities. The amendments are either required by state or federal laws, or are part of agency efforts to streamline its permitting process. (Also see discussion in proposed Chapter 305.)

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the rules is to: (1) implement HB 1172, 76th Legislature, 1999, and its amendments to the THSC; (2) implement the recommendations of the TNRCC's BPR-PIT to provide for consistency between the procedures of the radiation control program and the other permitting programs of the agency; and (3) improve readability and understanding by reorganizing Chapter 336, putting its requirements into plain English and eliminating redundancies and conflicts. The rules will substantially advance these specific purposes by incorporating these changes to implement HB 1172: (1) amending the definition of low-level radioactive waste to be compatible with the NRC's definition; (2) incorporating the TNRCC's new exemption from rule authority; (3) adding an exemption to continue or expand on-site low-level radioactive waste disposal licensed before September 9, 1989; and (4) adding exemptions from radioactive material licensing requirements for facilities participating in the Voluntary Cleanup Program or Superfund cleanups. In addition, the rules implement recommendations of BPR- PIT by using the agency's definitions for major and minor amendments rather than radiation control program specific definitions; by moving the application process from Chapter 336 to Chapter 281 and Chapter 305 and amending it to be consistent with other agency application procedures; by making Chapter 336 more understandable by partially reorganizing the chapter; and by clarifying wording, eliminating unnecessary or repetitive language, and improving readability. Promulgation and enforcement of these rules will not burden private real property which is the subject of the rules because there are no significant requirements added to radioactive material disposal facilities. The amendments are either required by state or federal laws, or are part of agency efforts to streamline its permitting process.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The commission has reviewed the proposed rulemaking and found that the rules are neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC 505.11. Therefore, the proposal is not subject to the CMP.

PUBLIC HEARING

A public hearing on this proposal will be held in Austin on July 6, 2000, at 10:00 a.m. in Building F, Room 2210 at the Texas Natural Resource Conservation Commission Complex, located at 12100 Park 35 Circle. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs, who are planning to attend the hearing, should contact the Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3078 or faxed to (512) 239-4808.

SUBMITTAL OF COMMENTS

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 1999-057-336-WS. Comments must be received by 5:00 p.m., July 17, 2000. For further information or questions concerning this proposal, please contact Hygie Reynolds, Waste Permits Division, (512) 239-6825.

Subchapter A. GENERAL PROVISIONS