Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 3.
OIL AND GAS DIVISION
16 TAC §3.94
The Railroad Commission of Texas (Commission) proposes to
amend §3.94, relating to Disposal of Oil and Gas NORM Waste. The Commission
proposes the amendments to: (1) protect public health and safety and the environment
by requiring that oilfield equipment in fields and facilities contaminated
with NORM (naturally occurring radioactive material) be surveyed and tagged
if it contains or is contaminated with NORM prior to the movement, transfer,
or servicing of the equipment; (2) define permitted radiation levels consistent
with standards for worker protection; and (3) update §3.94 to conform
with requirements issued by the Texas Department of Health in 25 Tex. Admin.
Code, Chapter 289, relating to Radiation Control.
Senate Bill 1338, 77th Legislature (2001), amended Texas Health and Safety
Code, §401.415, by adding new subsections (a)(2)(A) and (a)(2)(B) specifically
authorizing the Commission, in order to protect public health and safety and
the environment, to require the owner or operator of oil and gas equipment
used in exploration, production, or disposal to determine whether the equipment
contains or is contaminated with oil and gas NORM waste, and to identify any
equipment determined to contain or be contaminated with oil and gas NORM.
A person who owns or operates NORM contaminated oil and gas equipment must
comply with specific requirements of Texas Department of Health regulations,
including worker protection standards, when the equipment contains or is contaminated
with NORM. The Commission adopted these worker protection standards by reference
when the Commission first adopted §3.94. Under Texas Department of Health
regulations a person is a general licensee when he or she possesses NORM.
Further, each person subject to a general license is required to conduct operations
in compliance with standards for protection of workers and the general population.
In order to comply with the requirements of a general license, the person
must know whether or not he or she possesses equipment contaminated with NORM
above the exemption level of 50 microroentgen per hour (µR/hr). To make
this determination, he or she must perform any surveys necessary under the
circumstances to evaluate radiation levels.
In November 2000, the Commission delivered to the Governor a report entitled
The Commission's website (www.rrc.state.tx.us) lists oilfields containing
equipment that was found to be contaminated with NORM above the exemption
level during the study. The Commission will update the list of contaminated
fields as new information is collected on NORM contamination. The Commission
strongly suggests that operators use this, and any other similar information,
to help determine whether or not their equipment is likely to be contaminated
with NORM above the regulatory exemption level of 50 µR/hr.
The Commission proposes to amend §3.94(a) to add definitions for equipment,
radiation survey, and routine maintenance. "Equipment" is defined as oil and
gas equipment used in exploration, production and disposal in order to be
consistent with Senate Bill 1338. "Radiation survey" is defined in order to
tell the operator how to comply with the intent of the statute. "Routine Maintenance"
is defined to help operators discern which activities are routine maintenance
and which activities constitute decontamination so that operators may have
a clear understanding of when they are required to engage a person specifically
licensed by the Department of Health to perform equipment decontamination.
The Commission proposes to remove from the rule the acronym TRCR (Texas
Radiation Control Regulations) and references to that acronym in order to
conform with the Texas Department of Health's recodification of its radiation
regulations. Instead of referring to "TRCR," the proposed amendment cites
specific Department of Health regulations in the Texas Administrative Code.
The Commission proposes to amend §3.94(b)(1) to include a requirement
for identification of oil and gas equipment that contains or is contaminated
with NORM above a specified radiation level.
The proposed addition of new §3.94(b)(2) represents the most important
change to the existing rule. Proposed new §3.94(b)(2)(A) requires persons
who own or operate oil and gas equipment in the fields shown in Table 1 or
in any other field or facility contaminated with NORM to conduct a radiation
survey of equipment in their control prior to routine maintenance of the equipment
if, during that maintenance activity, workers could be exposed to NORM by
a release from inside the equipment, transfer of equipment to another person,
and/or removal of equipment from any lease, unit, or facility. Proposed new §3.94(b)(2)(B)
specifies that equipment is contaminated by NORM when radiation levels exceed
50 µR/hr. Texas Department of Health regulations apply worker protection
standards and limitations to equipment contaminated with radiation above 50 µR/hr.
Proposed new §3.94(b)(2)(C) requires persons who own or operate oilfield
equipment in fields and facilities where the maximum level of NORM is unknown
or less than 50 µR/hr to conduct a radiation survey at least once every
2 years. Proposed new §3.94(b)(2)(D) requires operators in fields and
facilities to identify NORM-contaminated equipment with tags or legible markings.
Proposed new §3.94(b)(2)(E) requires that the surveys be performed in
accordance with regulations adopted by Texas Department of Health in 25 Tex.
Admin. Code §289.259(e), relating to Licensing of Naturally Occurring
Radioactive Material (NORM).
The Commission proposes to amend §3.94(b)(3) by deleting language
that indicates that the rule applies only to disposal of oil and gas NORM
waste, consistent with the change in the statute as a result of SB 1338 which
gives the Commission authority to require that oil and gas equipment be surveyed
and subsequently identified if it contains or is contaminated with NORM. The
remaining text in §3.94(b)(3) identifies activities that are under the
jurisdiction of the Texas Department of Health.
The Commission proposes to amend §3.94(e)(1)(G)(iii) to require an
operator to include on Form W-3A, Intent to Plug and Abandon, the radioactivity
level of any NORM radionuclides to be disposed of in a well to be plugged,
not just Radium 226 and 228 as the rule currently requires. The Commission
proposes this amendment to conform with 25 Tex. Admin. Code §289.259
(d)(1)(A)(ii), relating to Licensing of Naturally Occurring Radioactive Material
(NORM).
The Commission proposes to amend §3.94(e)(2)(A) to raise the radioactivity
limit of oil and gas NORM waste that has been treated or processed for authorized
on-site disposal by burial from less than five picocuries per gram (pCi/g)to
less than 30 pCi/g Radium 226 and 228 or 150 pCi/g of any other radionuclide.
Similarly, the Commission proposes to amend §3.94(e)(2)(B) to allow disposal
of NORM waste on the same site where it was generated by mixing it with material
on the land surface if the radioactivity concentration of the NORM and soil
waste mixture does not exceed 30 pCi/g Radium 226 and 228 or 150 pCi/g of
any other radionuclide. The new limits on radioactivity levels for burial
and mixing material on the land surface are proposed to conform to 25 Tex.
Admin. Code §289.259(d), which the Texas Department of Health amended
to change the exemption levels for oil and gas NORM waste subsequent to the
Commission's adoption of §3.94.
The Commission proposes to amend §3.94(f)(2)(C) to require that an
application for a permit to dispose oil and gas NORM waste under §3.9
of this title, relating to disposal wells, include information on the maximum
measured radioactivity level of oil and gas NORM waste to be injected in units
of in pCi/g of NORM radionuclides other than Radium 226 and 228 to conform
with 25 Tex. Admin Code §289.259(d)(1)(A)(ii), relating to Licensing
of Naturally Occurring Radioactive Material (NORM). The rule currently requires
information on the maximum measured radioactivity level in pCi/g of Radium
226 and 228 or µR/hr.
The Commission proposes to amend §3.94(g)(1) related to standards
for issuance of a permit for surface disposal under §3.8, related to
Water Protection, to increase the allowed radioactivity of an oil and gas
NORM waste that is to be buried or mixed with the land surface from less than
five pCi/g above the background level to less than 30 pCi/g of Radium 226
and 228 and less than 150 pCi/g for any other radionuclide. The Commission
proposes to amend §3.94(g)(2)(C) to require that the applicant for a
permit to dispose of oil and gas NORM waste by burial or by mixing with the
land surface provide the maximum measured radioactivity level of any other
NORM radionuclide. In addition, the proposed amendment to §3.94(g)(2)(D)
requires that the applicant include the background radioactivity concentration
measured in µR/hr as well as in pCi/g of Radium 226 and 228. The changes
in these sections are necessary to conform with 25 Tex. Admin Code §289.259(d)(1)(A)(i)
and (ii), relating to Licensing of Naturally Occurring Radioactive Material
(NORM).
The Commission proposes to amend §3.94 (h), related to record keeping
and reporting, to require operators to retain records relating to radiations
surveys for at least 3 years and include a minimum of 2 consecutive radiation
surveys. The operator shall report to the Commission equipment that is contaminated
or contains NORM above the exemption level of 50 µR/hr. Proposed amendments
to §3.94(h)(1)(E) would require the owner to maintain records on the
radioactivity level of oil and gas NORM waste for any other NORM radionuclide,
not just Radium 226 and 228, consistent with Texas Department of Health regulations.
Dr. Steven Seni, Assistant Director, Environmental Services, Oil and Gas
Division, has determined that for each year of the first five years the section
as amended will be in effect, there will be fiscal implications for state
government as a result of enforcing or administering the rule. In order to
verify operator compliance with the new rule, the Commission may need to purchase
additional radiation-monitoring equipment in order to perform radiation surveys,
and integrate the task of compliance monitoring to field staffs' ordinary
inspection procedures. The Commission also anticipates it will develop a database
and tracking system for NORM-contaminated equipment and fields and task data
entry personnel in the Oil and Gas Division with maintaining the data base
and tracking system. It is difficult to quantify the time demands of these
additional tasks, but the Commission does not anticipate adding personnel
for this purpose. If the Commission purchases radiation-monitoring equipment,
the expenditure would be made in the first year; the purchase of a radiation
detection instrument, such as a scintillation counter, would cost from approximately
$200 to $2500. There would be no substantial fiscal impact from purchases
in the second through the fifth years. There will be no fiscal impact on local
governments.
David Cooney, Assistant Director, Office of General Counsel, has determined
that for each year of the first five years the proposed amendments to §3.94
are in effect, the anticipated public benefit from adoption of the proposed
amendments will be a more specific understanding of the nature and extent
of NORM contamination in oil and gas equipment in Texas. Compliance with the
rule will enhance prevention of pollution and protection of public health,
particularly that of oil field and service company workers, from NORM-contaminated
oil and gas equipment. The standards set forth in the proposed amendments
to §3.94 provide operators with specific protocol for identifying and
addressing potential NORM contamination, thereby preventing potential disposal
problems. Compliance with the rule will reduce potential health risk to workers
and the public throughout Texas.
The Commission has determined that there will be incremental costs of compliance
for operators that are individuals, small businesses, or micro businesses.
The Commission does not have the data to compare the cost of compliance for
small businesses with the cost of compliance for the largest businesses affected
by the proposed amendments to §3.94, using cost for each employee, cost
for each hour of labor, or cost for each $100 of sales; however, the Commission
has determined that most new expenses would be related to additional requirements
for surveying and identifying oil and gas equipment for NORM contamination.
Individual, small business, or micro business operators of oil and gas equipment
will need to either hire radiation survey contractors or purchase radiation-monitoring
equipment and design and implement a procedure for maintaining records of
radiation surveys. If an operator elects to perform the survey of oil and
gas equipment, the primary expense would be the cost to purchase a radiation
detection instrument such as a scintillation counter. The Commission has determined
that such devices can be purchased at a cost ranging from approximately $200
to $2500, and rented for approximately $12 per day. It is anticipated that
a service company could perform the work at a cost of $20 per hour for a technician's
time, plus machine rental plus a reasonable profit of 20%. Operators and service
companies will have to decide whether to decontaminate or tag contaminated
equipment. Service companies with the capacity to decontaminate and dispose
of waste therefrom may realize a slight increase in business because the Commission
anticipates decontamination will be the preferred alternative. In order to
comply with current regulations for worker protection, operators already are
required to perform any radiation surveys to evaluate potential radiation
levels so they can determine whether or not they are a general licensee under
Texas Department of Health Rules; therefore, the Commission expects the overall
cost of compliance to be relatively low.
The Commission has determined that a local employment impact analysis pursuant
to Texas Government Code, §2001.022, as amended by House Bill 1872, 77th
Legislature (2001), is not necessary because the cost of compliance is not
anticipated to be significant. The Commission cannot identify any specific
geographic area of the state where continued and regular surveying and/or
decontamination would be required at a level that would affect a local economy.
The Commission has not conducted a regulatory analysis of a major environmental
rule under Texas Government Code, §2001.0225(b), for two reasons. First,
the Commission finds that the proposed amendments are not "major environmental
rules" as that term is defined in Texas Government Code, §2001.0225(g)(3);
the Commission finds that the amendments do not 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. Second, the Commission proposes the amendments under the specific
provisions enacted by Section 1, Senate Bill 1338, 77th Legislature (2001),
rather than the general powers of the Commission. Therefore, according to
Texas Government Code, §§2001.0225(a)(4), the proposed amendments
are not subject to the requirements of the section.
The Commission has concurrently filed a notice of intent to review §3.94
as it is proposed to be amended, in accordance with Tex. Gov't Code §2001.039
(
as added by Acts 1999, 76th Leg., ch. 1499, §1.11(a)
).
Comments on the proposed amendments may be submitted to Dr. Steven Seni,
Assistant Director of Environmental Services, Oil and Gas Division, Railroad
Commission of Texas, P. O. Box 12967, Austin, Texas, 78711-2967, or by electronic
mail to steven.seni@rrc.state.tx.us. Comments must be submitted by 5:00 p.m.
on the 90th day after publication in the
Texas Register
. Dr Seni may also be contacted at (512) 463-3296 for more information.
The commission will hold a public hearing on this proposal at the following
location and time: in Austin, Texas, on Tuesday, March 5, 2002, at 1:00 pm
at the Railroad Commission of Texas, Room 1-100, William B. Travis Building,
1701 N. Congress. The hearing will be structured for the receipt of oral or
written comments by interested persons. Registration will begin one hour prior
to the hearing. Individuals may present oral statements when called upon in
order of registration. There will be no open discussion during the hearing;
however, commission staff members will be available to discuss the proposal
one hour before the hearing.
This public comment hearing is open to anyone wishing to attend. Any individual
with a disability who needs auxiliary aids and services in order to have an
equal opportunity to effectively observe and/or participate in the meeting
must request such aids or services by Wednesday, February 27, 2002, by notifying
the Personnel Office of the Commission by mail at P. O. Box 12967, Austin,
Texas 78711-2967 or by telephone at (512) 463- 6981 or TDD No. (512) 463-7284.
The Commission proposes the amendments under Texas Health and
Safety Code, §401.415, which grants the Railroad Commission sole authority
to regulate and issue licenses, permits, and orders for the disposal of oil
and gas NORM, and authority to require the owner or operator of oil and gas
equipment used in exploration, production, or disposal to determine whether
the equipment contains or is contaminated with oil and gas NORM waste and
to identify any equipment determined to contain or be contaminated with oil
and gas NORM in order to protect public health and safety and the environment.
Texas Health and Safety Code, §401.415, is affected by these amendments.
Issued in Austin, Texas, on January 24, 2002.
§3.94.[
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Background radiation--Radiation at the ground surface from:
(A)
cosmic sources;
(B)
non-technologically enhanced naturally occurring radioactive
material, including radon, except as a decay product of source or special
nuclear material; and
(C)
global fallout as it exists in the environment from the
testing of nuclear explosive devices. "Background radiation" does not include
sources of radiation from radioactive materials regulated by the Texas Department
of Health.
(2)
Commission--The Railroad Commission of Texas.
(3)
Disposal--The discharge, deposit, injection, dumping, spilling,
leaking, or placing of any oil and gas NORM waste into or on any land or water
so that such waste, or any constituent thereof, may enter the environment
or be emitted into the air or discharged into any waters, including subsurface
waters. For purposes of this section, disposal of oil and gas NORM waste includes
its management at the site (e.g., lease, unit, or facility) where disposal
will occur when undertaken for the explicit purpose of facilitating disposal
at that site. The term does not include decontamination activities, except
for in-place mixing of oil and gas NORM waste to remedy historical contamination
of the land surface and decontamination of equipment and facilities that become
contaminated solely through disposal operations. In addition, the term does
not include activities, including processing or treatment, that occur at a
location other than the disposal site.
(4)
Equipment--Oil and gas equipment
used for exploration, production, or disposal that is or has been in contact
with produced fluids or waste, including, but not limited to, tubulars, tanks,
vessels, pumps, valves, flow lines, and connectors such as tees and elbows.
(5)
[
(6)
[
(7)
[
(8)
[
(A)
in its natural physical state spontaneously emits radiation;
(B)
is discarded or unwanted;
(C)
constitutes, is contained in, or has contaminated oil and
gas waste; and
(D)
prior to treatment or processing that reduces the radioactivity
concentration, exceeds exemption criteria specified in
25 Tex. Admin.
Code §289.259(d)(1)(2) and (3), relating to Licensing of Naturally Occurring
Radioactive Material (NORM)
[
(9)
[
(10)
[
(11)
Radiation Survey--A systematic
examination of gamma radiation levels using instrumentation.
(12)
Routine Maintenance--The repair
and upkeep of equipment for the purposes of restoring its intended use or
efficiency. Routine maintenance is performed on equipment that is currently
in use and that is not intended for any use other than oil and gas operations.
[
(b)
Purpose,
identification,
exclusions, and exemptions.
(1)
Purpose. This section establishes requirements for the
identification of oil and gas NORM in equipment and the
disposal of
[
(2)
Oil and Gas Equipment Surveys
and Identification.
(A)
Persons who own or operate oil and gas equipment
in the fields shown in Table 1 of this section or in any other field or facility
contaminated with NORM shall conduct a radiation survey of equipment in their
control or possession prior to:
Figure: 16 TAC §3.94(b)(2)(A)
(i)
routine maintenance of equipment where workers
could be exposed to NORM released from inside the equipment;
(ii)
any transfer of equipment to another person;
(iii)
the removal of equipment from any lease, unit,
or facility.
(B)
Equipment contains or is contaminated with NORM
when the survey finds the radiation exposure level is greater than 50 µR/hr,
including background radiation, at any accessible point.
(C)
Persons who own or operate equipment in fields
or facilities where the level of NORM is unknown or less than 50 µR/hr
shall conduct a radiation survey at least once every 2 years.
(D)
Equipment determined to contain or to be contaminated
with NORM shall be identified with the letters NORM and the µR/hr reading
prior to the activities described in subsection (b)(2)(A) of this section
by attaching a clearly visible water-proof tag or marking with a legible water-proof
paint or ink.
(E)
Surveys required by this paragraph shall be
performed pursuant to regulations adopted by the Texas Department of Health
in 25 Texas Administrative Code §289.259(e), relating to Licensing of
Naturally Occurring Radioactive Material (NORM).
(3)
[
(4)
[
(c)
Worker protection standards.
(1)
Requirements. Any employer of persons engaged in activities
involving the disposal of oil and gas NORM waste shall:
(A)
comply with the requirements of
25 Tex. Admin. Code §289.202(e),
relating to Standards for Protection Against Radiation from Radioactive Material,
adopted to be effective October 1, 2000
[
(B)
control the occupational dose to his or her employees as
provided in
25 Tex. Admin. Code §289.202(f)-(m), adopted to be effective
October 1, 2000
[
(C)
comply with the requirements of
25 Tex. Admin. Code §289.202(p)
and (q), adopted to be effective October 1, 2000
[
(D)
comply with the requirements of
25 Tex. Admin. Code §289.202(v)-(x),
adopted to be effective October 1, 2000
[
(E)
comply with the requirements of
25 Tex. Admin. Code §289.202(z)-(dd),
adopted to be effective October 1, 2000
[
(F)
comply with the requirements of
25 Tex. Admin. Code§289.202(ll)-(nn),
(pp)-(rr), and (vv), adopted to be effective October 1, 2000
[
(G)
comply with the requirements of
25 Tex. Admin. Code §289.202(ww)-(zz)
and (aaa), adopted to be effective October 1, 2000
[
(2)
Adoption by reference.
The Commission adopts by reference
the rules of the Texas Department of Health identified in subsection (c)(1)(A)-(G)
of this section.
[
(d)
Prohibited disposal. No person may dispose of oil and gas
NORM waste except as provided in this section. Further, disposal of oil and
gas NORM waste other than produced water by discharge to surface or subsurface
waters, as defined in §3.8 of this title (relating to Water Protection),
is expressly prohibited. Disposal of oil and gas NORM waste by spreading on
public or private roads is also expressly prohibited.
(e)
Authorized disposal methods. The methods for disposing
of oil and gas NORM waste described in this subsection are authorized by this
section. A permit is not required to dispose of oil and gas NORM waste by
the methods identified in this subsection.
(1)
Disposal in plugged and abandoned well. A person may dispose
of oil and gas NORM waste by placing it between plugs in a well that is being
plugged and abandoned, provided that the conditions of this paragraph are
met.
(A)
No person may dispose of oil and gas NORM waste at a lease
or unit other than the lease or unit where the oil and gas NORM waste was
generated unless the surface owner of the lease or unit where the disposal
occurs provides written consent for the disposal. Such written consent shall
be obtained prior to commencement of disposal operations.
(B)
The oil and gas NORM waste shall be placed in the well
at a depth at least 250 feet below the base of usable quality water as determined
in accordance with §3.14 of this title (relating to Plugging).
(C)
If the oil and gas NORM waste is encased in a tubing string,
the tubing shall be:
(i)
placed, not dropped, in the well; and
(ii)
left with an assembly that allows ready retrieval, if
the string is not secured in cement.
(D)
A cement plug shall be set immediately above the oil and
gas NORM waste and the plug shall be either:
(i)
above a cement retainer;
(ii)
above a cast iron bridge plug; or
(iii)
tagged to locate its position.
(E)
The cement of the surface plug shall be color dyed with
red iron oxide.
(F)
A permanent marker that shows the three-bladed radiation
symbol specified in
25 Tex. Admin. Code §289.202(z), adopted to
be effective October 1, 2000,
[
(G)
The
operator shall state on
Form W-3A, Intent
to Plug and Abandon[
(i)
the physical nature (i.e., pipe scale, contaminated soil,
basic sediment, pumps, or valves) of the oil and gas NORM waste;
(ii)
the volume of oil and gas NORM waste;
(iii)
the radioactivity level of the oil and gas NORM waste
(in pCi/g of Radium-226 and 228
and any other NORM radionuclides
,
or in
µR/hr
[
(iv)
the operator(s) of the lease, unit, or facility at which
oil and gas NORM waste was generated; and
(v)
the source(s), if known, of the oil and gas NORM waste
by commission district; field; lease, unit, or facility; and producing formation.
(H)
If the oil and gas NORM waste is encased in tubing, the
operator shall state on
Form W-3A, Intent to Plug and Abandon[
(i)
the size, grade, weight per foot, and outside diameter
of the tubing;
(ii)
the subsurface depth of both the top and bottom of the
tubing;
(iii)
the diameter of the retrieval assembly; and
(iv)
whether the tubing is free in the hole or is secured by
cement, a bridge plug, or a cement retainer.
(I)
The
operator shall submit the
information required
in subparagraphs (A), (B), (G), and (H) of this paragraph [
(2)
On-site disposal.
(A)
Except as otherwise provided in this subparagraph, a person
may dispose of oil and gas NORM waste by burial at the same site where the
oil and gas NORM waste was generated, provided that prior to burial the oil
and gas NORM waste has been treated or processed such that the radioactivity
concentration
does not exceed 30 pCi/g Radium 226 and 228 or 150 pCi/g
of any other NORM radionuclide
[
(B)
A person may dispose of oil and gas NORM waste at the same
site where the oil and gas NORM waste was generated by applying it to and
mixing it with the land surface, provided that after such application and
mixing the radioactivity concentration [
(3)
Disposal at a licensed facility. A person may dispose of
oil and gas NORM waste at a facility that has been licensed by the United
States Nuclear Regulatory Commission, the
State of
Texas [
(4)
Injection. Injection of oil and gas NORM waste that meets
exemption criteria of
25 Tex. Admin. Code §289.259, relating to
Licensing of Naturally Occurring Radioactive Material (NORM),
[
(A)
Prior to injecting treated or processed oil and gas NORM
waste,
the operator of the injection well shall notify
the commission
in writing
[
(B)
Prior to injecting oil and gas NORM waste that has been
treated or processed to meet exemption criteria of
25 Tex. Admin. Code §289.259,
[
(f)
Permit required for injection. With the exceptions of produced
water and oil and gas NORM waste that meets exemption criteria of
25
Tex. Admin. Code §289.259
[
(1)
Standards for permit issuance.
The Commission shall
issue a
[
(2)
NORM information. In addition to the application requirements
of §3.9 of this title (relating to Disposal Wells),
an applicant
for a permit to inject
[
(A)
The
applicant
[
(B)
The
applicant
[
(C)
The
applicant
[
(3)
Notice requirements. An applicant for a permit to inject
oil and gas NORM waste under §3.9 of this title (relating to Disposal
Wells) shall provide notice as required in §3.9 of this title (relating
to Disposal Wells) and shall include in such notice the information required
in paragraph (2) of this subsection.
(g)
Permit required for surface disposal. Except in the case
of on-site disposal that meets the requirements of subsection (e)(2) of this
section, no person may dispose of oil and gas NORM waste by burying it or
by applying it to and mixing it with the land surface without first obtaining
a permit under §3.8 of this title (relating to Water Protection). The
provisions of this subsection apply in the case of permits for such surface
or near- surface disposal methods.
(1)
Standards for permit issuance.
The Commission shall
issue a
[
(2)
NORM information. In addition to the application requirements
of §3.8 of this title (relating to Water Protection), an
applicant
[
(A)
The
applicant
[
(B)
The
applicant
[
(C)
If the oil and gas NORM waste has been treated or processed
to reduce the radioactivity concentration under a specific license issued
by the Texas Department of Health, the
applicant
[
(D)
The
applicant
[
(E)
The
applicant
[
(F)
The
applicant
[
(3)
Notice requirements.
The applicant shall give notice
[
(h)
Recordkeeping.
A person shall retain records
[
(1)
Generation. The operator of the lease, unit, or facility
at which oil and gas NORM waste was generated shall maintain records that
include:
(A)
the identity of the property where the oil and gas NORM
waste was generated, including the commission district; field; lease, unit,
or facility; and producing formation, if known;
(B)
the identity of the facility, site, or well where the oil
and gas NORM waste was disposed of;
(C)
the physical nature (i.e., pipe scale, contaminated soil,
basic sediment, pumps, or valves) of the oil and gas NORM waste;
(D)
the volume of oil and gas NORM waste the person disposed
of at that facility, site, or well; and
(E)
the radioactivity level(s) of the oil and gas NORM waste
(in pCi/g of Radium-226 and 228
and any other NORM radionuclide
,
or in
µR/hr
[
(2)
Disposal. Each person who disposes of oil and gas NORM
waste shall maintain records that include the identity of the operator of
the lease, unit, or facility at which the oil and gas NORM was generated as
well as the information required under paragraph (1) of this subsection.
(3)
Extension during investigation. Any documents or records
that contain information pertinent to the resolution of any pending regulatory
enforcement proceeding shall be retained beyond any three-year period specified
in this subsection until the resolution of the proceeding.
(4)
Examination and reporting. Any person who keeps records
required by this subsection shall make the records available for examination
and copying by the commission, or its designee, during reasonable working
hours. Upon request of the commission, or its designee, the person who keeps
the records shall file such records with the commission.
(i)
Inspection. The commission or its representatives shall
have access to properties subject to the requirements of this section as provided
in Texas Natural Resources Code, Title 3.
(j)
Penalties.
(1)
Penalties.
A person who violates
[
(2)
Certificate of compliance. The
commission may revoke
the
certificate of compliance for any well [
(k)
Alternatives. On a case-by-case basis,
the commission
may approve
alternatives to the provisions of this section [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 25, 2002.
TRD-200200473
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Proposed date of adoption: May 9, 2002
For further information, please call: (512) 463-7033
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter P. TEXAS UNIVERSAL SERVICE FUND
16 TAC §26.403
The Public Utility Commission of Texas (commission) proposes
amendments to §26.403, relating to the Texas High Cost Universal Service
Plan (THCUSP), as it concerns the adjustment for basic local telecommunications
service provided solely and partially through the purchase of unbundled network
elements (UNEs). In 1999, as part of Senate Bill 560 (SB 560), the Legislature
enacted Public Utility Regulatory Act (PURA) §56.026 to ensure that eligible
telecommunications providers (ETPs) receive prompt and efficient disbursement
for provisioning basic local telecommunications services in rural areas from
the universal service fund (USF). Specifically, under PURA §56.026(c)(2),
the Legislature granted the commission the authority to reduce an electing
company's amount of disbursement if its local end user customer switches to
another local service provider that serves the customers solely or partially
through the use of UNEs provided by the electing company. The commission is
required to establish an equitable allocation formula for this disbursement.
Accordingly, the commission initiates this rulemaking proceeding to establish
an equitable formula to ensure that all residents within the state have access
to affordable basic local telecommunications service. The proposed amendments
are comprised of substantive revisions to §26.403(e)(3)(C). Project Number
24526 is assigned to this proceeding.
Substantive changes to rule language
Proposed §26.403(e)(3)(C)(i)-(iv) amends the adjustment for service
provided solely and partially through UNEs. Specifically, the proposed amendments
create a competitively neutral market in rural Texas for provisioning basic
local telecommunications service provided solely or partially through the
purchase of UNEs.
Lori Cobos, Policy Analyst, Policy Development Division, has determined
that for each year of the first five-year period the proposed section is in
effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the section. No reductions in costs
to the state or local governments are estimated as a result of enforcing this
section as proposed. No loss or increase in revenue to the state or local
governments are estimated as a result of enforcing and administering this
section as proposed.
Ms. Cobos has determined that for each year of the first five years the
proposed section is in effect the public benefit anticipated as a result of
enforcing the section will be to provide a sharing mechanism that permits
all residents of the state to obtain affordable basic local telecommunications
service needed to communicate with other residents, businesses, and governmental
entities. There will be no effect on small businesses or micro-businesses
as a result of enforcing this section.
Ms. Cobos has determined that there is minimal anticipated economic cost
to persons who are required to comply with the section as proposed. The anticipated
economic effect on companies will consist of administrative, legal, and miscellaneous
costs associated with implementing the proposed section.
Ms. Cobos has also determined that for each year of the first five years
the proposed section is in effect there should be no effect on a local economy,
and therefore no local employment impact statement is required under Administrative
Procedure Act §2001.022.
The commission staff will conduct a public hearing on this rulemaking,
if requested under Government Code §2001.029, at the commission's offices
located in the William B. Travis Building, 1701 North Congress Avenue, Austin,
Texas 78701, beginning at 10:00 a.m. in the Commissioners' Hearing Room on
Thursday, April 4, 2002. The request for public hearing must be received within
30 days after publication.
Comments on the proposed amendments (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
Reply comments may be submitted within 45 days after publication. Comments
should be organized in a manner consistent with the organization of the proposed
amendments. The commission invites specific comments regarding the costs associated
with, and benefits that will be gained by, implementation of the proposed
section. The commission will consider the costs and benefits in deciding whether
to adopt the proposed amendments. All comments should refer to Project Number
24526.
In addition to the general comments, the commission seeks comment on whether
the proposed amendments to the UNE sharing mechanism in §26.403(e)(3)(C)(i)-(iv)
are equitable. Specifically, are the proposed amendments competitively and
technologically neutral?
These amendments are proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2002) (PURA), which provides the Public Utility Commission with the authority
to make and enforce rules reasonably required in the exercise of its powers
and jurisdiction; specifically, PURA §56.021 which requires the commission
to adopt and enforce rules requiring local exchange companies to establish
a universal service fund; §56.023 which requires the commission to adopt
rules for the administration of the universal service fund; and §56.026
which permits the commission to establish an equitable allocation formula
for the disbursement of universal service funds if a local end user customer
of an electing company switches to another local service provider that provisions
service solely or partially through UNEs.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
56.021- 56.028
§26.403.Texas High Cost Universal Service Plan (THCUSP).
(a) - (d)
(No change.)
(e)
Criteria for determining amount of support under THCUSP.
The TUSF administrator shall disburse monthly support payments to ETPs qualified
to receive support pursuant to this section. The amount of support available
to each ETP shall be calculated using the base support amount available as
provided under paragraph (1) of this subsection and as adjusted by the requirements
of paragraph (3) of this subsection.
(1) - (2)
(No change.)
(3)
Calculating amount of THCUSP support payments to individual
ETPs. After the monthly base support amount is determined, the TUSF administrator
shall make the following adjustments each month in order to determine the
actual support payment that each ETP may receive each month.
(A) - (B)
(No change.)
(C)
Adjustment for service provided solely or partially through
the purchase of unbundled network elements (UNEs). If an ETP provides supported
services over an eligible line solely or partially through the purchase of
UNEs, the THCUSP support for such eligible line may be allocated between the
ETP providing service to the end user and the ETP providing the UNEs according
to the methods outlined below.
(i)
ETP provisioning service solely
[
[(I)
USF cost > (UNE rate + retail cost additive
(R)) >revenue benchmark (RB). USF support should be explicitly shared between
the ETP serving the end user and the ILEC selling the UNEs in the instance
in which the area-specific USF cost/line exceeds the sum of (combined UNE
rate/line + R), and the latter exceeds the RB. Specifically, the ILEC would
receive the difference between USF cost and (UNE rate + R), while the ETP
would receive the difference between (UNE rate + R) and RB. Splitting the
USF support payment in this way allows both the ILEC and the ETP to recover,
on average, the costs of serving the subscriber at rates consistent with the
benchmark. Moreover, this solution is competitively neutral in an additional
respect: the ILEC, as the carrier of last resort (COLR), is indifferent between
directly serving the average end user and indirectly doing so through the
sale of UNEs to a competing ETP. Also, facilities- based competition is encouraged
only if it is economic, i.e., reflective of real cost advantages in serving
the customer; or]
[(II)
USF cost > RB > (UNE rate + R). The
ILEC would receive the difference between USF cost and RB. In this case, where
USF cost > RB > (UNE rate + R), giving (USF cost - RB) to the ILEC is necessary
to diminish the undue incentive for the ETP to provide service through UNE
resale, and to lessen the harm done to the ILEC in such a situation. Allowing
the ILEC to recover (USF cost-RB) would minimize financial harm to the ILEC;
or]
[(III)
(UNE rate + R)> USF cost > RB. The
ETP would receive the difference between USF cost and RB. Where (UNE rate
+ R)> USF cost > RB, giving (USF cost - RB) to the ETP is necessary to diminish
the undue incentive for the ETP not to serve the end user by means of UNE
resale. Allowing the ETP to recover (USF cost -RB) would minimize financial
harm to the ETP.]
(ii)
ETP provisioning service partially through UNEs.
An ETP serving an end user partially through UNEs purchased from another ETP
shall receive the lesser of the available THCUSP support or the amount of
the appropriate retail cost additive, plus a pro rata share of any THCUSP
support in excess of the retail cost additive. THCUSP support in excess of
the retail cost additive shall be apportioned to the ETP serving the end user
based upon the relative percentage of those UNEs that are self-provisioned.
For purposes of this pro ration, the UNE costs for each wire center shall
be based upon the HAI model costs for the following five UNEs: loop, line
port, end-office usage, signaling, and transport.
[
(iii)
ETP providing UNEs. The ETP providing
UNEs to another ETP shall receive the difference, if any, between the total
available THCUSP support amount and the THCUSP support amount allocated to
the ETP serving the end user.
(iv)
ETP retail cost additive. For the purposes
of clauses (i) and (ii) of this subparagraph, the ETP's retail cost additive
shall be derived by multiplying the ILEC-specific wholesale discount percentage
by the appropriate (residential or business) revenue benchmark.
(f) - (g)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 25, 2002.
TRD-200200483
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 10, 2002
For further information, please call: (512) 936-7308
Chapter 103.
GENERAL RULES
Disposal of ] Oil And Gas NORM [ Waste ].
(4)
] Microroentgens per hour
(µR/hr)
[
(microroentgens/hr)
]--A measurement of exposure
from x-ray and gamma ray radiation in air.
(5)
] NORM--Naturally occurring
radioactive material.
(6)
] Oil and gas waste--Oil and
gas waste as defined in §3.8 of this title (relating to Water Protection).
(7)
] Oil and
gas
[
Gas
] NORM waste--Any solid, liquid, or gaseous material or combination
of materials (excluding source material, special nuclear material, and by-
product material) that:
the Texas Department of Health's
Texas Radiation Control Regulations for of (TRCR) Part 46.4(a)(1) and (2)
].
(8)
] Person--A natural person,
corporation, organization, government or governmental subdivision or agency,
business trust, estate, trust, partnership, association, or any other legal
entity.
(9)
] Picocuries per gram (pCi/g)--A
measure of the radioactivity in one gram of a material. One picocurie is that
quantity of radionuclide(s) that decays at the rate of 3.7 x 10-
²
disintegrations per second.
(10)
TRCR--Texas Regulations for
the Control of Radiation, adopted by the Texas Department of Health at 25
Texas Administrative Code Chapter 289.]
radioactive constituents of
] oil and gas NORM waste for the purpose
of protecting public health, safety, and the environment. The provisions of
this section do not supersede other commission regulations relating to oil
and gas waste management, including disposal.
(2)
] Exclusions. [
This section
does not apply to activities involving the recycling of oil and gas NORM waste.
In addition, this section does not apply to the decontamination of equipment
or facilities contaminated with oil and gas NORM waste, unless such equipment
or facilities become contaminated with oil and gas NORM waste solely as a
result of disposal activities. For purposes of this section, in-place mixing
of oil and gas NORM waste to remedy historical contamination of the land surface
is not considered decontamination of equipment or facilities and is regulated
under this section. Further, this section does not apply to activities that
involve the possession, use, transfer, transport, and/or storage of oil and
gas NORM waste, other than such activities when they occur at the site (e.g.,
lease, unit, or facility) where disposal will occur and that are undertaken
for the explicit purpose of facilitating disposal at that site.
] Activities
involving the recycling of oil and gas NORM waste; the decontamination of
equipment and facilities that are contaminated with oil and gas NORM waste
as a result of activities other than disposal of oil and gas NORM waste; and
the possession, use, transfer, transport, and/or storage of oil and gas NORM
waste are under the jurisdiction of the Texas Department of Health.
(3)
] Exemptions. Disposal of produced
water by injection into a well permitted under §3.9 of this title (relating
to Disposal Wells) or §3.46 of this title (relating to Fluid Injection
into Productive Reservoirs) is exempt from the requirements of this section.
Further, disposal of produced water by discharge to surface waters and in
accordance with a discharge permit issued under §3.8 of this title (relating
to Water Protection) is exempt from the requirements of this section. In addition,
disposal of equipment that has been decontaminated in accordance with a license
issued by the Texas Department of Health and that meets the exemption criteria
of
25 Tex. Admin. Code §289.259(d), relating to Licensing of Naturally
Occurring Radioactive Material (NORM),
[
TRCR Part 46
] is
exempt from the requirements under this section.
TRCR 21.101 (regarding
radiation protection programs)
];
TRCR §§21.201-21.208
];
TRCR 21.501 and §21.502
(regarding surveys and monitoring)
];
TRCR 21.701-21.703 (regarding
respiratory protection and controls to restrict internal exposure in restricted
areas)
];
TRCR §§21.901-21.906
(regarding posting requirements and exceptions to posting requirements)
];
TRCR 21.1101-21.1103, 21.1105- 21.1107, and 21.1111 (regarding records of
radiation protection programs and records of special exposures)
]; and
TRCR 21.1201-21.1204
and 21.1207 (regarding reports)
].
The TRCR sections referenced in this subsection
are hereby adopted by reference.
] Words and terms used in the
provisions
[
TRCR sections
] adopted by reference shall have
the meanings given in
25 Tex. Admin. Code §289.202
[
the TRCR sections adopted
], except that the terms "licensee" and "registrant"
shall be interpreted to mean "employer of persons engaged in activities involving
the disposal of oil and gas NORM waste" and the term "agency" shall be interpreted
to mean "commission."
TRCR §21.901,
] without
regard to color, shall be welded to the steel plate at the top of the well
casing.
, shall indicate
]:
microroentgens/hr
]);
, shall indicate
]:
shall be submitted
] to the district office with the Form W-3A.
of both Radium-226 and 228
]
within the treated or processed waste [
does not exceed the background
radioactivity concentration by more than five pCi/g
]. Such treatment
or processing, if it occurs at the disposal site, is considered to fall within
the definition of disposal because it is necessary to facilitate disposal.
This subparagraph does not authorize
any person to dispose
[
disposal
] of equipment contaminated with oil and gas NORM waste.
of Radium-226 and 228
]
in the area where the oil and gas NORM waste was applied and mixed does not
exceed
30pCi/g Radium 226 and 228 or 150 pCi/g of any other radionuclide
[
the background radioactivity concentration by more than five
pCi/g
].
Natural Resource Conservation Commission
], or another state if such
facility is authorized under its license to receive and dispose of such waste.
TRCR Part 46
] as a result of treatment or processing at a facility licensed
by the Texas Department of Health (hereinafter referred to as a "specifically
licensed facility") into a well permitted under §3.9 of this title (relating
to Disposal Wells) is authorized under this section, provided that the requirements
of this paragraph are met.
must be notified, in writing, by the operator of the
injection well
] that
the operator
[
it
] plans to
inject oil and gas NORM waste that meets exemption criteria of
25 Tex.
Admin. Code §289.259
[
TRCR Part 46
] as a result of treatment
or processing at a specifically licensed facility.
The operator
[
Such notification
] shall include a copy of the Texas Health Department
license for each facility where oil and gas NORM waste that will be injected
is treated or processed in order to meet exemption criteria of
25 Tex.
Admin. Code §289.259
[
TRCR Part 46
].
TRCR Part 46,
] the injection well operator
shall
[
must
] verify that the waste meets the exemption criteria of
25 Tex. Admin. Code §289.259
[
TRCR Part 46
] by obtaining
from the specifically licensed facility documentation regarding NORM surveys
or other analyses conducted to ensure that the treated or processed oil and
gas NORM waste meets the exemption criteria of
25 Tex. Admin. Code §289.259
[
TRCR Part 46
].
TRCR Part 46
] as a result
of treatment or processing at a facility licensed by the Texas Department
of Health, no person may dispose of oil and gas NORM waste by injection into
a well without a permit issued under §3.9 of this title (relating to
Disposal Wells) that specifically allows disposal of oil and gas NORM waste.
The provisions of this subsection apply in the case of oil and gas NORM waste
disposal permits issued under §3.9 of this title (relating to Disposal
Wells).
A
] permit to dispose of oil and gas NORM waste under §3.9
of this title (relating to Disposal Wells) [
may be issued
] only
if the commission, or its designee, determines that the subject oil and gas
NORM waste will be disposed of in a manner that protects public health, safety,
and the environment. Any permit to dispose of oil and gas NORM waste issued
pursuant to §3.9 of this title (relating to Disposal Wells) shall contain
construction and operating requirements that are reasonably necessary to protect
public health, safety, and the environment.
an application for injection of
]
oil and gas NORM waste shall include the information specified in this paragraph.
The commission or its designee may require the applicant to provide any such
additional information as may be necessary to show that the proposed disposal
protects
[
is protective of
] public health, safety, and the
environment.
application
] shall
describe the physical nature (i.e., pipe scale, contaminated soil,
or
basic sediment[
, pumps, or valves
]) of the oil and gas NORM
waste to be disposed of.
application
] shall
state the total volume of oil and gas NORM waste to be disposed of or the
proposed rate of oil and gas NORM waste disposal.
application
] shall
state the maximum measured radioactivity level of the oil and gas NORM waste
(in pCi/g of Radium-226 and 228,
and any other NORM radionuclide
[
or in microroentgens/hr
]) that will be disposed of.
A
] permit to dispose of oil and gas NORM waste under §3.8
of this title (relating to Water Protection) [
may be issued
] only
if the commission, or its designee, determines that the subject oil and gas
NORM waste will be disposed of in a manner that
protects
[
is protective of
] public health, safety, and the environment. Any permit
to dispose of oil and gas NORM waste issued pursuant to §3.8 of this
title (relating to Water Protection) shall contain construction and operating
requirements that are reasonably necessary to protect public health, safety,
and the environment. In addition,
the Commission shall issue
a
permit for burial of oil and gas NORM waste [
may be issued
] only
if, prior to burial, the oil and gas NORM waste has been treated or processed
so that the radioactivity concentration [
of Radium-226 and 228
]does
not exceed
30 pCi/g Radium 226 and 228 or 150 pCi/g of any other NORM
radionuclide
[
the background radioactivity concentration by more
than five pCi/g
].
The Commission shall issue a
[
A
]
permit to dispose of oil and gas NORM waste by applying it to and mixing it
with the land surface [
may be issued
] only if, after such application
and mixing, the radioactivity concentration
in
[
of Radium-226
and 228 over
] the area where the oil and gas NORM waste was applied
and mixed will not exceed
30 pCi/g Radium 226 and 228 or 150 pCi/g of
any other NORM radionuclide
[
the background radioactivity concentration
by more than five pCi/g
].
application
] for surface or near-surface disposal of oil
and gas NORM waste shall include the information specified in this paragraph.
The commission or its designee may require the applicant to provide any such
additional information as may be necessary to show that the proposed disposal
will protect public health, safety, and the environment.
application
] shall
describe the physical nature (i.e., pipe scale, contaminated soil, basic sediment,
pumps, or valves) of the oil and gas NORM waste to be disposed of.
application
] shall
state the total volume of oil and gas NORM waste to be disposed of or the
proposed rate of oil and gas NORM waste disposal.
application
] shall state the maximum measured radioactivity level (in pCi/g of
Radium-226 and 228, or in
µR/hr
[
microroentgens/hr
])
of the treated or processed waste. If the oil and gas NORM waste will be treated
or processed at the disposal site to reduce the radioactivity concentration,
the
applicant shall
[
application must
] state the maximum
measured radioactivity level (in pCi/g of Radium-226 and 228,
and any
other NORM radionuclide
, or in
µR/hr
[
microroentgens/hr
]) of the waste prior to treatment or processing.
application
] shall
include the background radioactivity concentration (in pCi/g of Radium-226
and 228)
and activity level in µR/hr
of the disposal area.
application
] shall
describe the method(s) to be used to control dust from the oil and gas NORM
waste during disposal.
application
] shall
include written authorization from the surface owner, if different from the
applicant, for disposal of oil and gas NORM waste on his or her property.
Notice
] of an application for a permit to dispose of oil
and gas NORM waste under this subsection [
shall be provided
] as
required in §3.8 of this title (relating to Water Protection) and such
notice shall include the information required in paragraph (2)(A)-(E) of this
subsection.
Records
] relating to the
radiation survey of equipment and
the
disposal of oil and gas NORM waste [
shall be retained
]
for at least three years after the date of disposal
and include at least
2 consecutive radiation surveys. The operator shall provide a report to the
Commission listing equipment contaminated by NORM above 50 µR/hr.
Such records shall include the information specified in this subsection
and subsection (b)(2) of this section
.
microroentgens/hr
]).
Violations
of
] this section may
be
subject [
the person
] to
the
penalties and remedies specified in the Texas Natural Resources
Code, Title 3.
may be revoked
]
in the manner provided in §3.68 of this title (relating to Pipeline Connection;
Cancellation of Certificate of Compliance; Severance).
may
be approved by the commission
] for good cause if it is demonstrated
to the commission's satisfaction that the alternatives
protect
[
are protective of
] public health, safety, and the environment.
A proposed alternative must be submitted in writing and approved by the commission.
Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Soley
]
through UNEs.
An ETP serving an end user solely through UNEs purchased
from another ETP shall receive the lesser of the available THCUSP support
or the amount of the appropriate retail cost additive.
Partially through
UNEs. For the partial-provision scenario, THCUSP support shall be shared between
the ETP and the ILEC based on the percentage of total per-line cost that is
self-provisioned by the ETP. Cost-category percentages for each wire center
shall be derived by adding a retail cost additive and the HAI model costs
for five UNEs (line, line port, end office usage, signaling, and transport).
The ETP's retail cost additive shall be derived by multiplying the ILEC-specific
wholesale discount percentage by the appropriate (residential or business)
revenue benchmark.
]
Part 6.
TEXAS MOTOR VEHICLE BOARD