Subchapter M. PUBLIC NOTICE FOR RADIOACTIVE MATERIAL LICENSES

The Texas Commission on Environmental Quality (commission) proposes amendments to §305.53 and §305.127.

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 commission's radiation control rules. The primary purpose of the proposed rule amendments is to implement House Bill (HB) 1567, 78th Legislature, 2003, and its amendments to Texas Health and Safety Code, Chapter 401. Some additional changes outside the scope of the bill implementation are proposed to correct citations to federal statutes, provide corrections to rule section titles, improve grammar, and reflect the commission's name change.

SECTION BY SECTION DISCUSSION

SUBCHAPTER C: APPLICATION FOR PERMIT

Section 305.53, Application Fee

A proposed amendment to §305.53(a)(7) would reflect the name change from the Texas Natural Resource Conservation Commission to the Texas Commission on Environmental Quality to implement HB 2912, §18.01, 77th Legislature, 2001. The phrase "pursuant to" is proposed to be changed to "in accordance with" to incorporate plain language into the rule.

SUBCHAPTER F: PERMIT CHARACTERISTICS AND CONDITIONS

Section 305.127, Conditions to be Determined for Individual Permits

The proposed amendment to the first sentence of §305.127 would replace the phrase "set forth herein" with "specified in this section" to incorporate plain language into the rule. In addition, proposed amendments to §305.127(4)(A) and (C) would correct the titles of 30 TAC Chapters 309 (Domestic Wastewater Effluent Limitation and Plant Siting) and 30 TAC Chapter 336 (Radioactive Substance Rules).

The proposed amendments to §305.127(1)(G)(i) would require an initial license term of 15 years rather than a fixed licensing period of 20 years, in accordance with new Texas Health and Safety Code, §401.222. A new sentence is also proposed to be added stating: "After the initial 15 years, the commission may renew the license for one or more terms of ten years." This sentence is proposed to be added to implement new Texas Health and Safety Code, §401.222. For consistency with §336.716(h) (Terms and Conditions of License), a final sentence is proposed to be added which states, "The authority to dispose of waste expires on the date stated in the license except as provided in §336.718(a) of this title (relating to Application for Renewal or Closure)."

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeffrey Horvath, Analyst, Strategic Planning and Appropriations Section, has determined that for the first five-year period the proposed rules are in effect, no fiscal implications are anticipated for the agency or other units of state and local government as a result of administration or enforcement of the proposed rules.

The rules are proposed as part of a larger proposal in order to implement HB 1567, which provides requirements for the licensing of a low-level radioactive waste (LLRW) disposal site in Texas. The proposed rules implement a change in the term of an LLRW disposal license from 20 to 15 years. After the initial 15 years, the commission may renew the license for one or more terms of ten years.

Proposed rulemaking by the commission to implement HB 1567 in other parts of this proposal provide requirements for the licensing of an LLRW disposal site in Texas and establish procedures for the commission to accept and evaluate license applications from private entities to dispose of LLRW. Under the legislatively required procedures, the commission does not anticipate that a license will be granted until 2007.

The renewal of a license, if granted, would take place outside of the five-year parameter of this fiscal note and, therefore, no fiscal implications are anticipated for units of state and local government, or businesses and individuals. However, if and when this event takes place, there are anticipated to be similar fiscal implications as there were for the initial license application. Under current commission rules, there is no renewal fee for a license to dispose of LLRW. There are provisions which require that an applicant submit an annual license fee and a fee for the actual costs incurred by the commission for hearings associated with an application for an LLRW disposal site. Therefore, the application for renewal would include a fee (the proposed application fee is $500,000), and the costs for any contested case hearing would be assessed to the applicant by the commission.

Under current requirements, the license holder for an LLRW disposal site is also required to submit an annual license fee to cover the state's actual expenses arising from the regulatory activities associated with the license. This fee shall include reimbursement for the salary and other expenses of resident inspectors.

These costs are also likely to be outside the five-year time frame. However, the commission estimates that two resident inspectors and an administrative assistant would be required on-site, along with any necessary capital equipment (vehicle, office equipment, sampling equipment, etc.). Total costs for resident inspectors are estimated to be between $200,000 and $250,000 per year. The annual license fee is also assumed to include central office administrative costs. The 78th Legislature appropriated the commission five additional full-time equivalent positions in 2004 and 1.5 additional full-time equivalent positions in 2005 to implement HB 1567 and to provide for the licensing of an LLRW disposal facility. This fiscal note assumes that these five full-time equivalent positions will be used to conduct geological, civil engineering, environmental engineering, hydrological, and other studies and regulatory activities associated with the license. Costs are estimated to be $350,000 per year. Total costs for the annual license fee are estimated to be $550,000 to $600,000.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also has determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from enforcement of and compliance with the proposed rules will be compliance with state law and established procedures for the commission to accept and evaluate license applications from private entities to dispose of LLRW to ensure protection of public health and safety and the environment.

No fiscal implications are anticipated to businesses or individuals who wish to meet the proposed requirements necessary to renew a license to dispose of LLRW for each year of the first five years the proposed rules are in effect.

The renewal of a license, if granted, would take place outside of the five-year parameter of this fiscal note, and therefore, no fiscal implications are anticipated for businesses or individuals. However, if a license is renewed, the commission anticipates there would be similar fiscal implications as there were for the initial license application. This fiscal note assumes that the application for renewal would include a fee (the proposed application fee is $500,000) and the costs for any contested case hearing (SOAH's cost alone are estimated to be $250,000; a previous contested case hearing on a license application of similar complexity had estimated commission costs of approximately $775,000 in 1998) which would be assessed to the applicant by the commission.

The holder of a license for an LLRW disposal site is also required to submit an annual license fee for the state to recover the actual expenses arising from the regulatory activities associated with the license. The fee shall include reimbursement for the salary and other expenses of resident inspectors. These costs to any licensee are likely to take place outside of the five-year period covered in this fiscal note. Costs for resident inspectors are estimated to be between $250,000 and $200,000 per year and commission administrative costs are estimated to be $350,000 per year. Total costs for the annual license fee are estimated to be $550,000 to $600,000. These costs would be recovered by the licensee through fees assessed to waste generators for the disposal of LLRW. Fees will be assessed to waste generators in Texas and the other Texas Low-Level Radioactive Waste Disposal Compact party states, and may include electric utilities, hospitals, and others.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse economic effects are anticipated to any small or micro-businesses as a result of implementing the proposed rules because there are no known small or micro-businesses that own or operate, or are likely to own or operate, an LLRW disposal site with a $500,000 application fee.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed these proposed rules and determined that a local employment impact statement is not required, because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the 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 there are no significant requirements added to radioactive material disposal facilities. The proposed rulemaking action implements legislative requirements in HB 1567, including a change in the term of license issued under Chapter 336, Subchapter H (Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste), from 20 to 15 years. The proposed rulemaking also makes nonsubstantive changes to Chapter 305 to reflect the commission's name change to the Texas Commission on Environmental Quality, corrects citations to other laws, and incorporates plain language into the rules.

Furthermore, the proposed rulemaking action does not meet any of the four applicability requirements listed in §2001.0225(a). Section 2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The proposed rulemaking action does not exceed a standard set by federal law, an express requirement of state law, a requirement of a delegation agreement, nor does it adopt a rule solely under the general powers of the agency.

Texas Health and Safety Code, Chapter 401, authorizes the commission to regulate the disposal of most radioactive material in Texas. Sections 401.051, 401.103, 401.104, and 401.412 authorize the commission to adopt rules for the control of sources of radiation and the licensing of the disposal of radioactive materials. In addition, the State of Texas is an "Agreement State" authorized by the United States Nuclear Regulatory Commission (NRC) to administer a radiation control program under the Atomic Energy Act of 1954, as amended (Atomic Energy Act). The proposed rules do not exceed the standards set by federal law.

The proposed rules do not exceed an express requirement of state law. Texas Health and Safety Code, Chapter 401, establishes general requirements for the licensing and disposal of radioactive materials. The purpose of the rulemaking action is to implement statutory requirements consistent with recent amendments to Chapter 401 as provided in HB 1567. The proposed rule amendment to change the term of a license issued under Chapter 336, Subchapter H, to 15 years is consistent with the requirements of HB 1567.

The proposed rules do not exceed a requirement of a delegation agreement or contract between the state and an agency of the federal government. The State of Texas has been designated as an "Agreement State" by the NRC under the authority of the Atomic Energy Act. The Atomic Energy Act requires that the NRC find that the state radiation control program is compatible with the NRC requirements for the regulation of radioactive materials and is adequate to protect health and safety. Under the Agreement Between the United States Nuclear Regulatory Commission and the State of Texas for Discontinuance of Certain Commission Regulatory Authority and Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended , NRC requirements must be implemented to maintain a compatible state program for protection against hazards of radiation. The proposed rule amendments do not exceed the NRC requirements nor exceed the requirements for retaining status as an "Agreement State."

The rules are proposed under specific authority of Texas Health and Safety Code, Chapter 401. Sections 401.051, 401.103, 401.104, and 401.412 authorize the commission to adopt rules for the control of sources of radiation and the licensing of the disposal of radioactive materials. The commission invites public comment of the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The proposed action implements legislative requirements in HB 1567, including a change in the term of license issued under Chapter 336, Subchapter H, from 20 to 15 years. The proposed rulemaking also makes non-substantive changes to Chapter 305 to reflect the commission's name change to the Texas Commission on Environmental Quality, corrects citations to other laws, and incorporates plain language into the rules.

Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. The proposed rules do not affect a landowner's rights in private real property because this rulemaking action does not burden (constitutionally), nor restrict or limit, the owner's right to property and reduce its value by 25% or more beyond which would otherwise exist in the absence of the regulations. The proposed rules primarily implement non-substantive changes to existing rules and reflect the license term of 15 years required by HB 1567. There are no entities that currently have licenses issued under Chapter 336, Subchapter H.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed this rulemaking action for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the amendments are consistent with the CMP goals and policies. The proposed rulemaking action implements legislative requirements in HB 1567, including a change in the term of license issued under Chapter 336, Subchapter H, from 20 to 15 years. The proposed rulemaking action also makes non-substantive changes to Chapter 305 to reflect the commission's name change to the Texas Commission on Environmental Quality, to correct citations to other laws, and to incorporate plain language into the rules. This rulemaking action will not have direct or significant adverse effect on any coastal natural resource areas, because the rule amendments only affect counties outside the CMP area; will not have substantive effect on commission actions subject to the CMP; and promulgation and enforcement of the amendments will not violate or exceed any standards identified in the applicable CMP goals and policies. The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin on September 16, 2003, at 1:30 p.m., at the commission's central office, 12100 Park 35 Circle, Building E, Room 201S. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, a commission staff member will be available to discuss the proposal 30 minutes prior to the hearing, and will be available to answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs, and who are planning to attend a hearing, should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Angela Slupe, 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 2003-037-336-WS. Comments must be received by 5:00 p.m., September 22, 2003. For further information or questions concerning this proposal, please contact Devane Clarke of the Waste Permits Division at (512) 239-5604, or Alan Henderson of the Office of Environmental Policy, Analysis, and Assessment at (512) 239-1510.

Subchapter C. APPLICATION FOR PERMIT

The Texas Commission on Environmental Quality (commission) proposes amendments to §§332.3, 332.8, 332.31, 332.37, 332.41, and 332.47.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

This rulemaking implements the requirements of House Bill 1791, 78th Legislature, 2003, which requires facilities that are composting grease trap waste to be permitted by the commission, where they are currently only required to be authorized by a registration. Existing operating facilities will be required to obtain a permit. Owners and operators for currently pending registration applications will be required to obtain a permit rather than a registration. All proposed sites will be required to apply for a permit. For existing facilities to continue operation, they must receive a permit from the commission on or before June 1, 2004.

SECTION BY SECTION DISCUSSION

Administrative and grammatical changes are proposed throughout the sections to be consistent with Texas Register requirements.

Proposed new §332.3(a)(3), Applicability, adds operations that compost grease trap waste to the list of compost operations that are subject to permit requirements.

Proposed new §332.3(a)(3)(A) adds that proposed operations that compost grease trap waste in any amount are subject to permit requirements.

Proposed new §332.3(a)(3)(B) adds that existing operations already authorized through a registration to compost grease trap waste in any amount are subject to permit requirements. Also added is the time frame for existing operations to comply with permit requirements, and the time limit for existing operations to cease operations if they do not comply with the required permit requirements.

Proposed §332.3(b)(4) is deleted to remove operations that compost grease trap waste from the list of compost operations that are subject to registration requirements and subsequent paragraphs (5) - (7) have been renumbered.

Proposed §332.8(d)(2), Air Quality Requirements, deletes grease trap waste from the list of wastes subject to air quality requirements for facilities that are subject to registration requirements. These air quality requirements for grease trap waste are moved to the amended section for air quality requirements for facilities subject to permits.

Proposed §332.8(e)(2) adds grease trap waste to the list of wastes subject to air quality requirements for facilities that are subject to permit requirements.

Proposed §332.31(a)(4), Definition of and Requirements for Registered Facilities, is deleted to remove operations that compost grease trap waste from the list of operations that are subject to registration requirements and subsequent paragraphs (5) - (7) have been renumbered.

Proposed §332.37(2), Operational Requirements, deletes grease trap waste from the list of wastes subject to groundwater protection requirements for facilities that are subject to registration requirements. These groundwater protection requirements are moved to the amended section for groundwater protection requirements for facilities subject to permits. The paragraph also replaces the word "shall" with the word "must" as appropriate.

Proposed §332.41(a)(3), Definition, Requirements, and Application Processing for a Permit Facility, adds operations that compost grease trap waste to the list of compost operations that are subject to permit requirements.

Proposed §332.47, Permit Application Preparation, replaces the word "shall" with the word "must" or "will" as appropriate.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeffrey Horvath, Analyst, Strategic Planning and Appropriations Section, has determined that, for the first five-year period the proposed rules are in effect, there will not be significant fiscal implications for the agency or other units of state and local government as a result of administration or enforcement of the proposed rules.

The proposed rules implement House Bill 1791, 78th Legislature, 2003, and require that facilities that compost grease trap waste be permitted by the commission. Currently, facilities that compost grease trap waste are authorized by the commission through registration.

Existing agency resources will be used to implement the proposed rules, and no significant fiscal implications are anticipated for the commission for any additional enforcement, inspection, permitting, or guidance activities. Revenue to the agency is not expected to be impacted as there is no permit application fee and solid waste disposal fee revenue is not expected to increase or decrease significantly from current levels.

At this time, there are three registered facilities that compost grease trap waste and two facilities have registration applications pending for composting grease trap waste. None of these facilities or proposed facilities are owned or operated by units of state or local government, and therefore, no fiscal implications are anticipated for units of state or local government to implement the proposed rules.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the enforcement of and compliance with the proposed rules will be compliance with state law and more effective regulation and control of municipal solid waste, particularly grease trap waste.

Fiscal implications are anticipated to businesses or individuals as a result of the implementation or enforcement of the proposed rules.

The proposed rules would require individuals or businesses who compost grease trap waste to obtain a permit rather than a registration from the agency. At this time, there are three registered facilities that compost grease trap waste and two facilities have registration applications pending for composting grease trap waste. Under the proposed rules, existing facilities must receive a permit from the agency on or before June 1, 2004.

Costs to obtain a permit in lieu of a registration are anticipated to be considerably higher for affected facilities. There is a wide range of costs associated with obtaining a permit for this type of facility depending on size and location of the facility. Additional costs for preparing a permit application may be attributed primarily to professional services costs for the development and support of the permit application.

As part of the permit application, a geological report is required detailing characteristics of subsurface soils for the proposed site. This report will require soil samples to be obtained by boring into the area of the facility to determine the characteristics of the subsurface soils. The number and depth of these soil samples will depend on the acreage of a facility. It is estimated that samples will cost between $1,000 - $5,000 each, for every five acres. Larger facilities will require more samples and more time spent at the site and, therefore, have higher costs.

The proposed rules also require that certain documents, reports, and drawings in a permit application be prepared by a licensed engineer. The engineering requirements of the application may require a large number of work hours. Engineering and geological contract costs for a permit are estimated to be as high as $250,000.

Fees for legal proceedings could be the most costly component of the permit application, and would vary widely depending upon the complexity and length of the permit application process. Whether a permit application is contested could have significant fiscal implications for a proposed facility. A contested case for a permit application may increase costs as much as $500,000 over the costs for an uncontested permit application, although the costs could also be significantly less, depending upon the length and complexity of the permit application process. The location of a facility can impact the costs for a permit. If the facility is located where there is local opposition, the costs of a contested application are anticipated to be higher.

Agency program staff have estimated that current costs for a facility to obtain a registration may range from $35,000 to $250,000, depending upon the size and location of the proposed facility. Agency staff further estimate that the conversion to permits may increase costs to affected facilities up to $750,000, depending upon any costs associated with a contested case hearing. Uncontested permit applications would be expected to cost considerably less, and depending upon the location and size of the facility, could be estimated to cost approximately $250,000.

Additional costs to regulated facilities would be expected to be passed on to entities that use their services, generally restaurants or other facilities that have grease trap waste to be disposed of. At this time, there are approximately 20 landfills, 12 Type V grease and grit trap facilities, and 30 transfer stations in the state that are authorized to accept this type of waste. It is not known how the proposed rules and the resulting higher potential costs for facility authorization would affect competition between these entities, if at all.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Adverse fiscal implications are anticipated as a result of implementation of the proposed rules for small or micro-businesses that own or operate grease trap composting facilities.

The proposed rules would require individuals or businesses who compost grease trap waste to obtain a permit rather than a registration from the agency. At this time, there are three registered facilities that compost grease trap waste and two facilities have registration applications pending for composting grease trap waste. Under the proposed rules, existing facilities must receive a permit from the agency on or before June 1, 2004. It is estimated that all five facilities are small or micro-businesses and that there will be significant costs to comply with the proposed rules.

Agency program staff have estimated that current costs for a facility to obtain a registration may range from $35,000 to $250,000, depending upon the size and location of the proposed facility. Agency staff further estimate that the proposed rules may increase costs to affected facilities by as much as $750,000, depending upon any costs associated with a contested case hearing. A contested case for a permit application may increase costs as much as $500,000 over the costs for an uncontested permit application, depending upon the length and complexity of the permit application process. Uncontested permit applications would be expected to cost considerably less, and depending upon the location and size of the facility, could be estimated to be approximately $250,000.

The following is an analysis of the cost per employee for small or micro-businesses affected by the proposed rules. Small and micro-business are defined as having fewer than 100 or 20 employees respectively. Owners of grease trap composting facilities with 100 or fewer employees could incur additional costs for obtaining a permit of up to $750,000 to comply with the proposed rules. Costs for these facilities are estimated to be between $250,000 and $750,000 or between $2,500 and $7,500 per employee. A micro-business with 20 or less employees would incur estimated additional costs of between $12,500 and $37,500 per employee. The projected costs for affected facilities is the same for small businesses as for larger businesses.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed rules are not subject to §2001.0225 because they do not meet the criteria for a "major environmental rule" as defined in that statute.

A "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 specific intent of the proposed rules is to more closely regulate the commercial composting of grease trap waste to improve environmental protection. It is estimated that only three existing and two proposed facilities will be affected by these proposed rules. Therefore, it is not anticipated that the proposed rules will 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 commission concludes that these proposed rules do not meet the definition of a major environmental rule.

Furthermore, even if the proposed rules did meet the definition of a major environmental rule, the proposed rules are not subject to Texas Government Code, §2001.0225, because they do not meet any of the four applicable requirements specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted by an agency, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

In this case, the proposed rules do not meet any of these requirements. First, there are no applicable federal standards that these rules would address. Second, the proposed rules do not exceed an express requirement of state law but instead implement the statutory requirement for permitting grease trap composters. Third, there is no delegation agreement that would be exceeded by these proposed rules because none relates to this subject matter area. Fourth, the commission proposes these rules under the rulemaking direction of House Bill 1791, 78th Legislature, 2003, amending Texas Health and Safety Code, §361.428, and not solely under the commission's general powers. The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment period.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed a preliminary assessment of whether the proposed rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the proposed rules is to more closely regulate the commercial composting of grease trap waste to improve environmental protection. The proposed rules would substantially advance this stated purpose by requiring that grease trap waste can only be composted at a permitted facility instead of a registered facility.

Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property because the proposed rules do not affect real property.

In particular there are no burdens imposed on private real property, and the proposed rules would improve the commission's ability to ensure proper management of grease trap waste composting operations. Because the regulation does not affect real property, it does not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulation. Therefore, these proposed rules will not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found the rules are identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Texas Coastal Management Program (CMP) and will, therefore, require that goals and policies of the CMP be considered during the rulemaking process.

The commission reviewed these proposed rules for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council. The commission determined that the proposed rules concern requirements for a person commercially composting grease trap waste to obtain a permit instead of a registration, which is administrative and procedural in nature; does not impact any CMP goals and policies; will have no substantive effect on commission actions subject to the CMP; and promulgation and enforcement of the proposed rules will not violate (exceed) any standards identified in the applicable CMP goals and policies. Therefore, these proposed rules are consistent with CMP goals and policies. The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period.

SUBMITTAL OF COMMENTS

Comments may be submitted to Angela Slupe, 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 2003-045-332-WS. Comments must be received by 5:00 p.m., September 22, 2003. For further information or questions concerning this proposal, please contact Debi Dyer, Policy and Regulations Division, at (512) 239-3972.

Subchapter A. GENERAL INFORMATION

The Texas Commission on Environmental Quality (commission) proposes amendments to §§336.1, 336.2, 336.11, 336.103, 336.111, 336.113, 336.203, 336.207, 336.209, 336.211, 336.305, 336.363, 336.501, 336.701, 336.702, 336.705, 336.707 - 336.709, 336.711, 336.716, 336.718, 336.720, 336.723, 336.728 - 336.730, 336.733, 336.735 - 336.737, and 336.743. The commission also proposes new §§336.9, 336.703, 336.704, 336.717, 336.738, 336.801, 336.803, 336.805, 336.807 - 336.809, 336.811, 336.813, 336.815, 336.817, 336.819, 336.821, 336.823, 336.825, 336.901, 336.903, 336.905, 336.907, and 336.909 and the repeal of §336.703.

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 commission's radiation control rules. The primary purpose of the proposed rules is to implement House Bill (HB) 1567, 78th Legislature, 2003, and its amendments to Texas Health and Safety Code, Chapter 401 (also known as the Texas Radiation Control Act). The bill provides for the licensing of a low-level radioactive waste (LLRW) disposal facility and establishes procedures for the commission to accept and evaluate license applications from private entities to dispose of LLRW. After a review for comparative merit, the commission may refer one application, after technical review and public comment, to the State Office of Administrative Hearings (SOAH) for a contested case hearing, if requested by applicant or an affected person, or if the commission determines a hearing would be in the public interest. The commission intends to address additional provisions of HB 1567, such as the compact waste disposal fees, in a future rulemaking.

HB 1567 repeals Texas Health and Safety Code, Chapter 402 (the Texas Low-Level Radioactive Waste Disposal Authority Act) in its entirety. This repeal eliminates most of the duties and responsibilities that were transferred from the Texas Low-Level Radioactive Waste Disposal Authority to the Texas Natural Resource Conservation Commission, the predecessor to the Texas Commission on Environmental Quality, effective September 1, 1999. HB 1567 retained authority with the commission for specific support and liaison responsibilities related to LLRW that were part of the duties of the abolished Texas Low-Level Radioactive Waste Disposal Authority. HB 1567 also repealed Texas Health and Safety Code, §401.203 (License Restricted to Public Entity), which provided that an LLRW disposal license be issued only to a public entity specifically authorized for LLRW disposal.

Under federal law, Texas is responsible for managing the LLRW generated within its borders. Texas entered into an agreement designated as the Texas Low-Level Radioactive Waste Disposal Compact with the states of Maine and Vermont where Texas will provide for an LLRW disposal facility. The Texas Low-Level Radioactive Disposal Waste Compact was ratified by the United States Congress and signed by President Clinton in September 1998. The State of Maine passed emergency legislation to withdraw from the Texas Low-Level Radioactive Disposal Waste Compact in April 2002. The withdrawal of Maine is scheduled to take effect in April 2004.

Texas is an "Agreement State" for the regulation of LLRW disposal under the Atomic Energy Act of 1954, as amended. Section 274 of the Atomic Energy Act provides a statutory basis under which the United States Nuclear Regulatory Commission (NRC) relinquishes to Texas portions of its regulatory authority to license and regulate specific radioactive material. The transfer agreement of this federal authority to the state is signed by the Governor and the Chair of the NRC. As part of this agreement, the commission must remain compatible in its rules and policies related to LLRW disposal and is subject to periodic review by the NRC for compatibility.

The commission exercises certain authority ceded to the state by the NRC under the Articles of Agreement Between the United States Nuclear Regulatory Commission and the State of Texas for Discontinuance of Certain Commission and Regulatory Authority and Responsibility within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended . The commission's proposed rules address matters relating to this regulatory authority. The primary purpose of the proposed rulemaking is to revise the commission's application processing and licensing requirements for the disposal of LLRW at the compact waste disposal facility or federal facility waste disposal facility and implement the provisions of two federal NRC rulemakings relating to skin dose and deliberate misconduct. The commission recognizes that issues concerning radioactive materials are very complex and may involve various state and federal agencies. The proposed rulemaking is not intended to address matters that are not within the jurisdiction of the commission, such as matters under the jurisdiction of the Texas Department of Health or the Texas Low-Level Radioactive Waste Disposal Compact Commission, authority retained by the NRC, or matters preempted by federal law.

HB 1567 provides that the commission may license federal facility waste disposal at a separate and distinct facility that is operated exclusively for the disposal of federal facility waste and that is adjacent to the compact waste disposal facility. Before accepting federal facility waste, the license holder must submit to the commission a written statement, signed by an official of the federal government, stating that the federal government will assume all required right, title, and interest in land and buildings acquired for the disposal of federal facility waste in accordance with the Federal Nuclear Policy Act of 1982, Subtitle D (42 United States Code (USC), §§10171 et seq .), as amended. For the first five years after issuance of a license, the overall capacity of the federal facility waste disposal facility is limited to not more than three million cubic yards. The capacity may then be increased to a total volume of six million cubic yards unless the commission makes an affirmative finding that increasing the capacity of the federal facility waste disposal facility would pose a significant risk to human health, public safety, or the environment. A major amendment to the LLRW facility license would be required to increase the volume capacity for federal facility waste, even in the absence of an affirmative finding by the commission. New definitions for "Compact," "Compact waste," "Compact waste disposal facility," "Federal facility waste," "Federal facility waste disposal facility," "Host state," "Mixed waste," "Party state," and "Perpetual care account" are proposed for §336.2 to implement the new statutory requirements. New Chapter 336, Subchapter I and Subchapter J are also proposed to implement the statute.

HB 1567 specifically authorizes that mixed waste may be disposed of at the LLRW disposal facility. "Mixed waste" is a combination of hazardous waste as defined by Texas Health and Safety Code, Chapter 361 (also known as the Solid Waste Disposal Act) and LLRW. "Mixed waste" also includes federal mixed waste as proposed in §336.2. The compact waste disposal facility license holder, in accepting mixed waste at the compact waste disposal facility or a federal facility waste disposal facility, must comply with Chapter 361; Texas Health and Safety Code, Chapter 401; and the Resource Conservation and Recovery Act of 1976 (42 USC, §§6901 et seq .), as amended. Specific license conditions related to mixed waste will be incorporated into an LLRW disposal license issued by the commission.

Discussion of Texas Health and Safety Code, §401.216, Acquisition of property.

Ownership of property in fee, that is, both the surface rights and the mineral rights, must be demonstrated for an administratively complete application. This ownership is directly related to the ability to transfer property to the state or federal government prior to accepting waste that must also be demonstrated for an administratively complete application. Land ownership requirements are provided in federal rules and in existing state rules, as a matter of NRC compatibility. HB 1567 allows for possible deviations from existing land ownership requirements that necessitate an applicant requesting possible exemptions under §336.5. The commission has the ability to grant exemptions under §336.5 if it determines that the exemption is not prohibited by law and will not will result in a significant risk to public health and safety or the environment. Persons requesting an exemption must demonstrate that the proposed alternative approach is as protective to the public and the environment as the existing requirements from which an exemption is being requested. Such requests for exemptions from specific requirements by an applicant must be included in an administratively complete application for LLRW disposal.

HB 1567 specifies an application selection process for a compact waste disposal facility license. Not later than January 1, 2004, the commission shall publish notice in the Texas Register that applications for the siting, construction, and operation of a facility or facilities for disposal of LLRW will be accepted by the commission for a 30-day period, beginning 180 days after the date of the notice. All applications received will be evaluated by the commission for administrative completeness, and applications deemed administratively complete will be evaluated in accordance with statutory criteria for the purposes of comparing the relative merit of the applications. Based on the written evaluations and the application materials, the commission shall select the application that has the highest comparative merit. The statutory criteria are specified in the form of weighted tiers. These tiers and the application selection process are specified in proposed new Subchapter I.

This rulemaking also implements HB 1678. This bill changes the name of the "radiation and perpetual care fund" to "perpetual care account," and provides that the account is an account in the general revenue fund. Conforming changes to rules are given in Subchapter H, §336.720 (Post- Closure Observation and Maintenance) and §337.737 (Funding for Institutional Control); and 30 TAC Chapter 37, Subchapter T (Financial Assurance for Near-Surface Land Disposal of Low-Level Radioactive Waste); §37.9045 (Financial Assurance for Closure, Post Closure, Corrective Action, and Liability Coverage); and §37.9050 (Financial Assurance Mechanisms).

Some additional changes outside the scope of the bill implementation are being proposed as part of this rulemaking. This rulemaking implements federal requirements which are necessary to maintain compatibility between federal and state rules.

The amendments of §336.2 and §336.305 are derived from NRC final rulemaking "Revision of the Skin Dose Limit" (66 FR 16298, April 5, 2002), effective June 4, 2002. The commission must incorporate NRC rulemakings into its rules to preserve the status of the State of Texas as an "Agreement State" authorized to administer a portion of the radiation control program in the state.

The NRC amended its regulations to change the definition and method of calculating "shallow- dose equivalents" by specifying that the assigned shallow-dose equivalents must be the dose averaged over ten square centimeters of skin receiving the highest exposure, rather than one square centimeter as stated in the existing regulation.

This rulemaking makes the skin dose limit less restrictive when small areas of skin are irradiated and to address skin and extremity doses from all source geometries under a single limit. This change requires measuring or calculating shallow-dose equivalents from discrete radioactive particles on or off the skin, from very small areas (1.0 square centimeter) of skin contamination, and from any other source of shallow-dose equivalent, by averaging the measured or calculated dose over the most highly exposed, contiguous ten square centimeters for comparison to the skin dose limit of 50 rem.

The commission concurs with the NRC that previous requirements for skin dose including frequent monitoring of workers to detect small area exposures might permit more frequent, "transient," observable effects such as reddening of the skin. However, the change to a larger averaging area will result in no more than insignificant health implications and in other aspects will reduce hazards and increase protection. When the standard measurement area was one centimeter, workers were required to wear multiple layers of protective clothing that resulted in workers being subjected to non- radiological hazards, such as heat stress. In addition, workers' mobility and dexterity were hampered by the redundant use of protective equipment and clothing which required them to spend more time completing a job in radiation areas. Therefore, the previous redundant use of protective clothing and other equipment to avoid small area skin contamination may in fact expose workers to more significant hazards than are being avoided.

Proposed new §336.9 is derived from NRC final rulemaking "Deliberate Misconduct by Unlicensed Persons" (63 FR 1890, January 13, 1998), effective February 12, 1998. The commission must incorporate NRC rulemakings into its rules to preserve the status of the State of Texas as an "Agreement State" authorized to administer a portion of the radiation control program in the state.

The NRC enacted this rule to be able to take enforcement action against an unlicensed person, such as an employee, contractor, or consultant, or take other administrative action directly against a person, such as issuance of a notice of violation, who deliberately causes a licensee to be in violation of a requirement, provides material inaccurate information to a licensee, or provides material inaccurate information to a regulator. Similarly, by adopting this rule, any person who knowingly violates a state rule or requirement would be subject to enforcement action under Texas Water Code, Chapter 7, and Texas Health and Safety Code, §401.393.

Various sections are proposed to be amended to change the name of this commission from the "Texas Natural Resource Conservation Commission" to the "Texas Commission on Environmental Quality" to implement HB 2912, 77th Legislature, 2001, §18.01. Typographical error corrections and other amendments to improve readability are proposed.

SECTION BY SECTION DISCUSSION

SUBCHAPTER A: GENERAL PROVISIONS

Section 336.1, Scope and General Provisions

Section 336.1(e) is proposed to be amended to change "Texas Natural Resource Conservation Commission" to "Texas Commission on Environmental Quality," implementing HB 2912, §18.01. Subsection (f)(2) is proposed to be amended to delete the requirement that only a public entity may receive LLRW from other persons for the purpose of disposal, reflecting the repeal of Texas Health and Safety Code, §401.203 in HB 1567. Specifically, the word "person" is substituted for "public entity."

Section 336.2, Definitions

Section 336.2 is proposed to be amended to make it compatible with the latest version of Title 10 Code of Federal Regulations (CFR) §20.1003. The definition of "Shallow-dose equivalent (H _s )" is specifically proposed to be amended to add after "skin," the words "of the whole body" and after "or," the words "the skin of" to clarify that the definition applies to the skin of the whole body or to the skin of an extremity. The definition is also proposed to be amended to delete "averaged over an area of one square centimeter" to agree with the amendment proposed to §336.305(c) for averaging over ten square centimeters of skin. Additional definitions for "Compact," "Compact waste," "Compact waste disposal facility," "Federal facility waste," "Federal facility waste disposal facility," "Host state," "Mixed waste," "Party state," and "Perpetual care account" are proposed for §336.2 to implement the new statutory requirements of HB 1567. The definitions are renumbered accordingly. The definition of "Hazardous waste" is proposed to be added to provide a reference to 30 TAC Chapter 335 (Industrial Solid Waste and Municipal Hazardous Waste). The definition of "Radiation and perpetual care fund" is proposed to be amended by changing the term to "Radiation and perpetual care account." This amendment is proposed to provide consistency with HB 1567 and HB 1678. The definition of "Licensee" is proposed to be amended to delete an unnecessary acronym and provide a correct citation to Texas Health and Safety Code, Chapter 401. The definition of "Violation" is proposed to be amended to spell out the acronym TRCA as "Texas Radiation Control Act."

Section 336.9, Deliberate Misconduct

New §336.9 is proposed to implement federal requirements given in 10 CFR §61.9b. The proposed section would subject certain persons specified in rule to enforcement action for deliberate misconduct. Deliberate misconduct may involve providing information that is known to be incomplete or inaccurate in some respect material to the commission, or it may involve conduct that causes or would have caused, if not detected, a licensee or applicant to be in violation of any of the commission's requirements.

Section 336.11, Memorandum of Understanding Between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions

The proposed amendments to §336.11 reflect the commission's name change. The title of the section is amended to delete "Texas Natural Resource Conservation Commission." At the end of the section, the name of the commission is changed to the new name to correct the address from which to request a copy of the memorandum of understanding. These amendments implement the commission name change in HB 2912, §18.01.

SUBCHAPTER B: RADIOACTIVE SUBSTANCE FEES

Section 336.103, Schedule of Fees for Subchapter H Licenses

The proposed amendment to §336.103(a) would implement HB 1567, §401.229, and would change the license application processing fee from $415,000 to $500,000, and would make the fee nonrefundable. The proposed amendment would also provide that if the commission's costs in processing an application under Subchapter H exceed the $500,000 application processing fee, the commission may assess and collect additional fees from the applicant to recover the costs. The proposed amendments to §336.103(c) would implement HB 1567, §401.206, and would provide for the expenses of more than one resident inspector.

Section 336.111, Method of Payment of Fees

The proposed amendment to §336.111 would change "Texas Natural Resource Conservation Commission" to "Texas Commission on Environmental Quality" to implement HB 2912, §18.01.

Section 336.113, Failure to Pay Prescribed Annual Fees

The proposed amendments to §336.113 would provide a reference to 30 TAC Chapter 12 (Payment of Fees) to identify the manner in which penalties and interest are assessed for the late payment of fees.

SUBCHAPTER C: GENERAL DISPOSAL REQUIREMENTS

Section 336.203, License Required

The proposed amendment to §336.203 would change "Texas Natural Resource Conservation Commission" to "Texas Commission on Environmental Quality" to implement HB 2912, §18.01, and delete the acronym "TDH" because it is not used again within the section.

Section 336.207, General Requirements for Issuance of a License

The proposed amendment would add the phrase "of this chapter (relating to Radioactive Substance Rules)" to denote that the "applicable chapter" refers to Chapter 336.

Section 336.209, Issuance of License

The proposed amendments would change the phrase "agency rules" to "commission rules" and would correct the spelling of the term "radioactive."

Section 336.211, General Requirements for Radioactive Material

The proposed amendment to §336.211(f) would replace the term "public entity" with the term "person" because HB 1567 repealed Texas Health and Safety Code, §401.203.

SUBCHAPTER D: STANDARDS FOR PROTECTION AGAINST RADIATION

Section 336.305, Occupational Dose Limits for Adults

The proposed amendments to §336.305 make it compatible with the latest version of NRC's 10 CFR §20.1201. Section 336.305(a)(2) is proposed to be amended to add after "skin" the words "of the whole body" and before "extremities" the words "the skin of" to clarify that the annual limits apply to the skin of the whole body and to the skin of the extremities. Section 336.305(c) is also proposed to be amended to add that the deep-dose equivalent "must be for the part of the body receiving the highest exposure" and that the shallow-dose equivalent must be "averaged over the contiguous ten square centimeters of skin receiving the highest exposure."

Section 336.363, Appendix F, Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests

The proposed amendments delete references to older NRC rule changes in subsections (a)(1)(A); (2)(B), (D), and (E); (3); and (b)(1). The referenced March 27, 1995 NRC rule change had two acceptable versions. In a subsequent November 20, 1998 rule change, the version already incorporated in this rule section was made the final, official version. Unless otherwise specified, an "Agreement State," such as Texas, has three years after the promulgation of an NRC rule change to adopt it in state rules. An NRC rule change is not effective in the "Agreement State" until it is adopted and effective in state rules. When a state adopts NRC rule changes by reference, as in this section, the NRC encourages the state to use its own effective date. The proposed amendments will cite to the appropriate NRC rules, as amended.

SUBCHAPTER F: LICENSING OF ALTERNATIVE METHODS OF DISPOSAL OF RADIOACTIVE MATERIAL

Section 336.501, Scope and General Provisions

The proposed amendment to §336.501(b) would replace the term "public entity" with the term "person" because HB 1567 repealed Texas Health and Safety Code, §401.203.

SUBCHAPTER H: LICENSING REQUIREMENTS FOR NEAR-SURFACE LAND DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE

Section 336.701, Scope and General Provisions

Section 336.701(a) is proposed to be amended by deleting the words "for near-surface land disposal of low-level radioactive waste and accelerator-produced radioactive material." This is done to improve sentence construction and clarity, and to eliminate redundant language. Subsection (b)(1) is proposed to be amended to correct a cross-reference.

Section 336.702, Definitions

The proposed amendments to §336.702 would add a definition for "Containerized Class A waste" and would renumber the paragraphs accordingly. This definition is proposed to implement HB 1567, Texas Health and Safety Code, §401.218(c), which provides that the commission by rule may require a compact waste disposal facility license holder to dispose of certain Class A LLRWs that present a hazard because of their high radiation levels in the manner required for Class B and Class C LLRW. The statutory term "high radiation level" has no equivalent definition in current federal or state rules. The proposed definition is consistent with the existing term "high radiation area," where "high radiation levels" are radiation levels from an unshielded container that could result in an individual receiving a dose equivalent in excess of 0.1 rem in one hour at 30 centimeters from any surface of the container that the radiation penetrates. The definition of "Hazardous waste," is proposed to be deleted because it is redundant with the definition of "Hazardous wastes" given in §336.2.

Section 336.703, License Required - Repeal

Existing §336.703 is proposed to be repealed because it is redundant of the requirement in §336.701(a) that states: "No person shall engage in disposal of low-level radioactive waste received from other persons except as authorized in a specific license issued under this subchapter."

Section 336.703, Concepts

New §336.703 is proposed to incorporate the concepts and requirements of 10 CFR §61.7 (Concepts). These are NRC program elements that have particular health and safety significance. The essential objectives of these program elements are necessary to maintain an adequate program. In addition, this proposed new rule provides many of the concepts that make the rest of the subchapter understandable.

Section 336.704, Applications for License of Compact Waste Disposal Facility

New §336.704 is proposed to provide requirements for applications for licenses to dispose of LLRW at the "Compact" waste disposal facility. New subsection (a) is proposed to provide that only one license to dispose of LLRW from other persons may be issued by the commission, which implements HB 1567, §401.202(b). New subsection (b) is proposed to provide that the compact waste disposal facility licensed under this subchapter is the regional disposal facility established and operated under the compact established under Texas Health and Safety Code, Chapter 403 for purposes of the federal Low-Level Radioactive Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 USC, §2021b-2021j). New subsection (b) implements HB 1567, §401.214.

Section 336.705, Content of Application

Section 336.705 is Section 336.705 is proposed to be amended to include the words "low-level radioactive" in the first sentence and to improve grammar.

Section 336.707, Specific Technical Information

The proposed amendments to §336.707(6) require that an application for disposal of LLRW include a description of any prior disposal containing radioactive material at the site. An accurate accounting of all radionuclides is essential so that the performance objective for the site can be demonstrated.

Section 336.708, Environmental Information

Section 336.708 is proposed to be amended by designating existing rule language as subsection (a). Paragraph (11) is proposed to be amended to add language to specify that the closure plan is also to cover site stabilization, which would be compatible with 10 CFR §61.7(c)(2), and to specify that the intent is to eliminate the need for active maintenance "after closure," and to require an estimated date of site closure for planning purposes. New subsection (b) is proposed for compatibility with 10 CFR §61.10. This NRC rule states: "An environmental report prepared in accordance with subpart A of part 51 of this chapter must accompany this application." Proposed new subsection (b) incorporates the environmental report requirements.

Section 336.709, Technical and Environmental Analyses

Section 336.709 is a list of demonstrations which an applicant must make as part of the technical and environmental portion of the application. Cross-references to existing performance standards are proposed to be added to ensure that the correct demonstrations are submitted to the agency. Implied subsection (a) is proposed to be amended by adding a cross-reference to the performance objectives in §336.723. Paragraph (1) is proposed to be amended by adding language that specifically requires that the potential effects on the general population be evaluated for a minimum period of 1,000 years after closure or the period where peak dose occurs, whichever is longer. Paragraph (2) is proposed to be amended by adding a cross-reference to the performance objective for inadvertent intrusion in §336.725. Paragraph (3) is proposed to be amended by adding a cross-reference to the performance objective for protection of individuals during operations in §336.726. Paragraph (4) is proposed to be amended by adding a cross-reference to the performance objective for stability of the disposal site after closure in §336.727.

Section 336.711, Financial Information

The proposed amendments to §336.711 would add cross references to other rule sections that provide more detailed information on financial qualification and financial assurance requirements.

Section 336.716, Terms and Conditions of License

The proposed amendment to §336.716(c) is intended to provide a citation to Texas Health and Safety Code, Chapter 401. The proposed amendment to §336.716(h) would require an initial license term of 15 years rather than a fixed licensing period of 20 years in accordance with new Texas Health and Safety Code, §401.222. A new sentence is also proposed to be added stating: "After the initial 15 years, the commission may renew the license for one or more terms of ten years." This sentence is proposed to be added to implement new Texas Health and Safety Code, §401.222. Proposed new subsection (i) provides that the compact waste disposal facility license must require the license holder to indemnify the state for any liability imposed on the state under state or federal law for the disposal of federal facility waste. This provision implements HB 1567, §401.211(c).

Section 336.717, Conveyance of Waste

A new §336.717 is proposed to specify criteria by which title to compact waste is conveyed to the state which implements HB 1567, §401.2051. Proposed subsection (a) provides that title to the waste is conveyed to the state at the time the waste is accepted at the disposal site. Proposed subsection (b) provides that title and all related rights and interest in the compact waste are the property of the commission on the state's behalf.

Section 336.718, Application for Renewal or Closure

The proposed amendments to §336.718(a) would change the time requirement on applying for a license renewal from 30 days before license expiration to one year before license expiration.

Section 336.720, Post-closure Observation and Maintenance

The amendment to §336.720 would add new subsection (b) which states "Upon transfer of the license to the custodial agency, the licensee will be released from the requirements of liability coverage under Chapter 37, Subchapter T of this title (relating to Financial Assurance for Near-Surface Land Disposal of Radioactive Waste)."

Section 336.723, General Requirement

The title for the §336.723 is proposed to be changed to "Performance objective" because this is a more descriptive term for the sections which are referred to in this section.

Section 336.728, Disposal Site Suitability Requirements for Near-Surface Land Disposal

Section 336.728(k) is proposed to be amended to add a requirement that "If activities involving radioactive material were previously performed on the site, the applicant shall evaluate the contribution of those activities that may impact the ability of the site to meet performance objectives." New §336.728(m) - (p) are proposed to further delineate areas unsuitable for the disposal site, which implement HB 1567, §401.217.

Section 336.729, Disposal Site Design for Near-Surface Land Disposal

New §336.729(g) is proposed to implement HB 1567, §401.220, with respect to hazards from local meteorological or geologic conditions.

Section 336.730, Near-Surface Land Disposal Facility Operation and Disposal Site Closure

The proposed amendments to §336.730(a) would improve formatting and update a section title. The proposed amendments to §336.730(b) would reorganize the subsection to provide specific requirements for disposal of containerized Class A LLRW, as defined at §336.702(5), as well as Class B and Class C LLRWs. These types of wastes must be disposed of within a reinforced concrete container and within a reinforced concrete barrier. These types of wastes must also be disposed of in such a manner that the waste can be monitored and retrieved. These new requirements implement HB 1567, §401.218.

Section 336.733, Waste Classification, Characteristics, and Labeling

The proposed amendments to §336.733(a) would require that all LLRW and mixed waste received for disposal must be classified in accordance with the NRC waste classification system. This would include any federal facility waste received for disposal. Proposed new §336.733(c) would require that a licensee comply with the requirements of Chapter 335 for the disposal of mixed waste, and would implement HB 1567, §401.221.

Section 336.735, Applicant Qualifications and Assurances

The proposed amendment to §336.735 would require that applicants provide proof of funds sufficient to cover any annual license fee and any agency costs of processing the application that may exceed the $500,000 application processing fee.

Section 336.736, Funding for Disposal Site Closure and Stabilization

The proposed amendments to §336.736 would change the title to Liability Coverage and Funding for Disposal Site Closure and Stabilization. Subsection (c) is proposed to be amended by adding the words "and cost estimates" to specify that cost estimates will also be reviewed annually because it is the cost estimate that provides the basis for any required adjustment in financial assurance. A new subsection (e) is proposed to be added to require that before commencement of operations, the applicant shall provide financial assurance for bodily injury and property damage to third parties caused by sudden and non-sudden accidental occurrences arising from operations of the compact waste disposal facility and/or federal facility waste disposal facility in a manner that meets the requirements of Chapter 37. The new section title and new subsection implement HB 1567, §401.233 and §401.112.

Section 336.737, Funding for Institutional Control

The proposed amendments to §336.737(a) would change the term "Radiation and Perpetual Care Fund" to "perpetual care account" to implement HB 1567, §401.052(d). Language is also proposed to be added to subsection (a) to provide the method of calculation of an amount of funding for "perpetual" institutional control by the state. The language is derived from NRC's Draft Regulatory Guide DG-4006, Demonstrating Compliance with the Radiological Criteria for License Termination , dated August 1998. Section 4.2.3 of the guide (Amount of Financial Assurance) states: "For funds placed into an account segregated from the licensee's assets and outside its administrative control, the financial assurance fund may be assumed to earn a real (i.e., inflation adjusted, after tax) rate of return of 2% per year . . .. Therefore, if perpetual control and maintenance were planned, the financial assurance funding would be 50 times the first year annual cost . . .." Subsection (b) is proposed to be amended by substituting "Prior to the commencement of operations" for "During the term of the license before the institutional control period" to require that financial assurance for the institutional control period must be in place in the same manner as required for disposal site closure and stabilization, liability coverage, and corrective action. Active operation of the facility could end at any time during the term of the license, and decommissioning could be required, triggering the need for funding from financial assurance. Cessation of operations would impact the ability of the license holder to fund financial assurance; therefore, the statutory requirements of Texas Health and Safety Code, §401.109 and §401.241, requiring that financial security to fund closure, corrective action, and institutional control is available at the time of decommissioning are met by ensuring that financial assurance is in place prior to the commencement of facility operations.

Section 336.738, Funding for Corrective Action

This proposed new section requires that the amount of security required of a license holder under this section shall not be less than $20 million at the time the disposal facility site is decommissioned. The proposed amendment conforms with new statutory requirements given in Texas Health and Safety Code, §401.241(b). Proposed new subsection (a) requires that financial assurance for corrective action be in place prior to the commencement of operations for the same reasons as outlined in the preamble discussion of §336.737. Corrective action is proposed to be defined in §37.9035 (Definitions), as the activities to remediate unplanned events that pose a risk to public health and safety and that may occur after the decommissioning and closure of the compact waste disposal facility or a federal facility waste disposal facility. Proposed new subsection (b) states that the payment schedule will be determined by the executive director. The payment schedule will be a condition of the LLRW disposal license. Proposed new subsection (c) provides the cross-reference to Chapter 37, Subchapter T.

Section 336.743, Resident Inspector

The proposed amendments to §336.743 would change the title to "Resident Inspectors" and provide for two or more resident inspectors, which implements HB 1567, §401.206.

NEW SUBCHAPTER I: COMPACT WASTE DISPOSAL FACILITY APPLICATION SELECTION PROCESS

Section 336.801, Applicability

New §336.801 is proposed to provide a statement of general applicability for Subchapter I, which implements HB 1567. This subchapter describes the procedures for submitting and evaluating license applications to receive, possess, and dispose of LLRW from others at the compact waste disposal facility.

Section 336.803, Receipt of License Applications

New §336.803 is proposed to specify the procedures the agency must follow to publish notice to receive applications for the siting, construction, and operation of a facility or facilities for disposal of LLRW. The proposed rule implements HB 1567, §401.228 and §401.230. The statute requires that the commission shall publish notice in the Texas Register not later than January 1, 2004.

Section 336.805, Application Requirements

New §336.805 is proposed to provide general requirements for submittal of applications. Subsection (a)(2) implements HB 1567, §401.229, and provides that the application must include a non-refundable $500,000 application processing fee. Subsection (a)(3) implements HB 1567, §401.219, which requires an applicant to provide evidence relating to the reasonableness of any technique for managing LLRW to be practiced at the proposed disposal facility or facilities.

Section 336.807, Administrative Review

New §336.807 is proposed to specify the procedures the agency must follow in reviewing license applications and determining if those applications are administratively complete. This section implements HB 1567, §401.230 and §401.231.

Section 336.808, Ownership of Land and Buildings

New §336.808 is proposed to require that an application to receive, possess, and dispose of LLRW from others at the compact waste disposal facility may not be considered administratively complete unless the applicant has acquired the title to and any interest in land and buildings on which the facility or facilities are to be located. The requirement for ownership of the land and buildings in "fee simple" is specified in federal and state rules; 10 CFR §61.14 for example, requires ownership in fee by the federal or state government. Similar provisions in existing rules are located at §336.710(2) and §336.734(a). Proposed subsection (b) provides that if an applicant is unsuccessful in acquiring undivided ownership of the mineral estate in fee simple of the land on which the facility or facilities are proposed to be located, the applicant may, to the extent permissible under federal law, request an exemption of the requirement under §336.5. If the requirement of ownership of the mineral estate in fee simple title is exempted under this subsection, the applicant may enter into a surface use agreement that restricts mineral access, including slant drilling and subsurface mining, to the extent necessary to prevent intrusion into the disposal facility site. This provides compatibility with 10 CFR §61.5(a)(4), which provides that the site may not include areas of known mineral resources which if exploited would result in failure of the performance objectives. Proposed subsection (c) provides that if an applicant cannot reach a surface use agreement and cannot otherwise obtain fee simple title to the mineral estate of the land on which the facility or facilities are proposed to be located, the applicant may petition the commission under 30 TAC §1.8 (Initiation of Proceeding) to request the Texas Attorney General to institute condemnation proceedings as provided under Texas Property Code, Chapter 21, to acquire fee simple interest in the mineral rights. These proposed provisions implement HB 1567, §401.204.

Section 336.809, Notice of Declaration of Administrative Completeness

New §336.809 is proposed to provide notice of an administratively complete application in accordance with 30 TAC §39.702 (Notice of Declaration of Administrative Completeness).

Section 336.811, Public Meeting

New §336.811 is proposed to require at least one public meeting in the county or counties where a compact wasted disposal facility or federal facility waste disposal facility is proposed to be located. The purpose of the public meeting is to receive public comments on the administratively complete applications as provided in 30 TAC §55.253 (Public Comment Processing), and implements HB 1567, §401.232(b).

Section 336.813, Evaluation of Applications

New §336.813 is proposed to specify the procedures the agency must follow in reviewing administratively complete license applications and evaluating each application according to the statutory criteria established by Texas Health and Safety Code, §§401.233 - 401.236. The purpose of the evaluation is to compare the relative merit of the applications. This proposed section implements HB 1567, §401.232.

Section 336.815, Tier 1 Criteria

New §336.815 is proposed to specify the Tier 1 criteria for evaluation of administratively complete applications, which are listed in HB 1567, §401.233. HB 1567, §401.232 provides that the commission may also adopt criteria in addition to the statutory criteria specified in proposed §336.815, provided that the criteria are consistent with this section.

Section 336.817, Tier 2 Criteria

New §336.817 is proposed to specify the Tier 2 criteria for evaluation of administratively complete applications, which are listed in HB 1567, §401.234. HB 1567, §401.232 provides that the commission may also adopt criteria in addition to the statutory criteria specified in proposed §336.817, provided that the criteria are consistent with this section.

Section 336.819, Tier 3 Criteria

New §336.819 is proposed to specify the Tier 3 criteria for evaluation of administratively complete applications, which are listed in HB 1567, §401.235. HB 1567, §401.232 provides that the commission may also adopt criteria in addition to the statutory criteria specified in proposed §336.819, provided that the criteria are consistent with this section.

Section 336.821, Tier 4 Criteria

New §336.821 is proposed to specify the Tier 4 criteria for evaluation of administratively complete applications, which are listed in HB 1567, §401.236. HB 1567, §401.232 provides that the commission may also adopt criteria in addition to the statutory criteria specified in proposed §336.821, provided that the criteria are consistent with this section.

Section 336.823, Technical Review

New §336.823 is proposed to specify the procedures the agency must follow in reviewing the selected license application of highest comparative merit, and determining if that application is technically complete. This proposed new section implements HB 1567, §401.237. The statute requires that the technical review shall be completed and a draft license prepared not later than the 15th month after the month in which the technical review begins. The executive director shall give priority to the review of the selected application over all other radioactive materials licensing and registration matters pending before the commission.

Section 336.825, Delegation

New §336.825 is proposed to provide that the commission delegates to the executive director the authority to review and evaluate applications for radioactive materials licenses under this subchapter and to select the one application under §336.813 for further technical review. A decision by the executive director under §336.813 is not appealable to the commission until the commission makes a final decision on the selected license application.

NEW SUBCHAPTER J: FEDERAL FACILITY WASTE DISPOSAL FACILITY

Section 336.901, Applicability

New §336.901 is proposed to provide a statement of general applicability for Subchapter J. This proposed subchapter provides additional licensing requirements to the requirements of Subchapter H and other rules of this title for the disposal of federal facility waste at a separate disposal unit at the compact waste disposal facility. This subchapter implements HB 1567, §401.216.

Section 336.903, Receipt of Waste

New §336.903 is proposed to provide requirements for the receipt of federal facility waste. Proposed subsection (a) requires that the compact waste disposal facility license holder may not accept federal facility waste for disposal unless the compact waste disposal facility license holder is licensed for its disposal under Texas Health and Safety Code, §401.207. Subsection (b) is proposed to require that a licensee may not accept federal facility waste at a federal facility waste disposal facility until the licensee begins accepting compact waste at the compact waste disposal facility. This provision implements HB 1567, §401.216(e).

Section 336.905, Volume Limitation

New §336.905 is proposed to provide statutorily imposed limits on the total volume of federal facility waste which may be disposed of at a federal facility waste disposal facility. Proposed subsection (a) provides that for the first five years after a license is issued under this subchapter, the license shall limit the overall capacity of the federal facility waste disposal facility to not more than three million cubic yards. Of that amount, the total volume of LLRW accepted at the federal facility waste disposal facility that must be disposed of in reinforced concrete containers and within a reinforced concrete barrier, shall be limited to not more than 300,000 cubic yards. Proposed subsection (b) provides that after five years from the date of licensing of the disposal of federal facility waste under this subchapter, the capacity of the federal facility waste disposal facility may be increased by three million cubic yards for a total capacity of six million cubic yards. An application for license amendment under §305.62 will be required to increase the total capacity. Also, there must be a determination by the commission that increasing the capacity of the federal facility waste disposal facility would not pose a significant risk to human health, public safety, or the environment. These proposed provisions implement HB 1567, §401.216(b) and (c).

Section 336.907, Prohibition of Commingling of Waste

New §336.907 is proposed to prohibit the commingling of compact waste and federal facility waste. If licensed to dispose of federal facility waste, the licensee shall maintain separate waste transport, waste acceptance, waste processing, and waste disposal of compact waste and federal facility waste. This proposed provision implements HB 1567, §401.216(d).

Section 336.909, Additional Responsibilities

New §336.909 is proposed to implement additional statutory requirements. Proposed §336.909(1), which implements HB 1567, §401.205(b)(1), requires the licensee to arrange for and pay the costs of management, control, stabilization, and disposal of federal facility waste and the decommissioning of the licensed federal facility waste disposal activity. Proposed §336.909(2), which implements HB 1567, §401.205(B)(4), requires the licensee to submit to the commission a written agreement by an official of the federal government, stating that the federal government will assume all title and interest in land and buildings acquired for the disposal of federal facility waste, together with requisite rights of access to the land and buildings. Proposed §336.909(3), which implements HB 1567, §401.205(b)(3), requires the licensee to formally acknowledge conveyance of the right, title, and interest in LLRW to the federal government prior to termination of the license. Proposed §336.909(4), which implements HB 1567, §401.210, requires the licensee to transfer LLRW and mixed waste and land and buildings to the federal government without cost to the government, other than the government's administrative and legal costs incurred in making the transfer. Proposed §336.909(5), which implements HB 1567 §401.211(a) - (c), requires the licensee to indemnify the state, and its officers and agents, by license condition for any liability imposed on the state under state or federal law, for damages, removal or remedial action with respect to the land, the facility, or the waste accepted, stored or disposed of, because the transfer does not relieve a license holder of liability for any act or omission before or following the transfer. An existing commission requirement in §336.734 provides that disposal of LLRW received from other persons may be permitted only on land owned in fee by the state or federal government. Ordinarily, the transfer of ownership from a license applicant to the state or federal government occurs at license issuance. However, commission rules in §336.5 provide for an exemption process. This exemption process is available to applicants seeking to transfer ownership of a federal facility waste disposal facility at decommissioning.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeffrey Horvath, Analyst, Strategic Planning and Appropriations Section, has determined that for the first five-year period the proposed rules are in effect, there will be fiscal implications for the commission and other units of state and local government as a result of administration or enforcement of the proposed rules.

The rule amendments are proposed as part of a larger proposal in order to implement HB 1567, which provides requirements for the licensing of an LLRW disposal site in Texas and establishes procedures for the commission to accept and evaluate license applications from private entities to dispose of LLRW. A disposal facility may accept "Compact" waste (LLRW generated in Texas, Maine, or Vermont or LLRW that has been approved for importation to this state by the Compact Commission) and may also accept federal facility waste at a separate but adjacent facility. In addition, a disposal facility may accept mixed waste, that is, waste containing both low-level radioactive waste and hazardous waste constituents.

The proposed rules implement legislative requirements in HB 1567, including the repeal of the restriction that an LLRW disposal facility license may only be issued to a public entity. The proposed rules implement procedural requirements for license application submission, review, and selection. The proposed rules also implement federal requirements to maintain compatibility with NRC requirements, and update existing rules by changing references from the Texas Natural Resource Conservation Commission to the Texas Commission on Environmental Quality.

The commission anticipates fiscal implications as a result of the enforcement or administration of the proposed rules. The 78th Legislature appropriated the commission funding (estimated to be $954,018 in Fiscal Year 2004 and $1,049,018 in Fiscal Year 2005 from fees and balances in the Low- Level Radioactive Waste Account), and personnel (five additional full-time equivalent positions in 2004 and 1.5 additional full-time equivalent positions in 2005) to implement HB 1567 and to provide for the licensing of an LLRW disposal facility.

HB 1567 requires a license application fee of $500,000 and would provide the commission the authority to collect any other fees necessary to license and regulate the site. Even though the bill eliminates Texas Health and Safety Code, Chapter 402, the Low-Level Radioactive Waste Fund (Account 088) is reestablished in Texas Health and Safety Code, Chapter 401, and commission funding would come out of Account 088. The bill directs that any funding received from the two "Compact" states ($25 million) be collected by November 1, 2003. The State of Maine passed legislation to withdraw from the Texas Low-Level Radioactive Disposal Waste Compact in April 2002. It will take two years for Maine's withdrawal to take effect.

Under the Texas Low-Level Radioactive Waste Disposal Compact, §4.05(5), the host county is entitled to 10% of any payment made to Texas by the party states. Therefore, the host county, wherever that is determined to be, is entitled to $2.5 million of those payments made to Texas.

The host county of an LLRW disposal facility licensed under the proposed revisions to Chapter 401, Subchapter F would be entitled to 5% (previously 10%) of the gross revenues of all waste receipts to the facility. The bill changed the 10% requirement so that the other 5% of compact waste fee revenue would be deposited to the General Revenue Fund. This fiscal note does not include the fiscal impact of waste disposal fees to any entity, as the commission intends to address the compact waste disposal fees in a future rulemaking.

After a review for comparative merit, the commission may refer one application, after technical review and public comment, to SOAH for a contested case hearing, if requested by the applicant, an affected person, or the commission. The contested case hearing, if required, is anticipated to take place in Fiscal Year 2007 and, SOAH's costs alone are estimated to be $250,000 and a previous contested case hearing on a license application of similar complexity had estimated commission costs of approximately of $775,000 in 1998. These costs will be borne by the applicant.

Rulemaking, policy, and operational changes will be required to implement the proposed rules, including changes to policy and procedures regarding posting of financial security mechanisms. The commission assumes that the following time line would take place and the commission would receive two license applications for a total of $1 million in license application fees.