Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 37.
FINANCIAL ASSURANCE
Subchapter T. FINANCIAL ASSURANCE FOR NEAR-SURFACE LAND DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE
The Texas Commission on Environmental Quality (commission) adopts
amendments to §§37.9030, 37.9035, 37.9040, 37.9045, and 37.9050.
The commission also adopts new §37.9052 and §37.9059, and the repeal
of §37.9055. The amended, repealed, and new sections are being adopted
in Subchapter T, Financial Assurance for Near-Surface Land Disposal of Low-Level
Radioactive Waste. Sections 37.9035, 37.9040, 37.9045, 37.9050, 37.9052, and
37.9059 are adopted
with changes
as published
in the August 22, 2003 issue of the
Texas Register
(28 TexReg 6711). Section 37.9030 and the repeal of §37.9055
are adopted
without changes
and will not be
republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The changes adopted in this chapter are part of a larger rulemaking action
to revise the commission's radiation control rules. The primary purpose of
the 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. Subchapter T applies to financial assurance
for near-surface land disposal facilities for low-level radioactive waste
(LLRW) regulated by the State of Texas under 30 TAC Chapter 336, Subchapter
H (Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive
Waste). Subchapter T is being amended due to the addition of new financial
assurance requirements and options for demonstrating financial assurance in
accordance with HB 1567.
SECTION BY SECTION DISCUSSION
Section 37.9030, Applicability
The amendments to §37.9030 add financial assurance requirements for
corrective action and liability coverage. The purpose of this amendment is
to add financial assurance requirements for liability coverage and financial
security to address and prevent unplanned events under Texas Health and Safety
Code, §401.233 and §401.241, respectively.
Section 37.9035, Definitions
The amendments to §37.9035 add a definition of "Corrective action"
to identify the new financial assurance requirements added by Texas Health
and Safety Code, §401.241. In response to comment, the definition of
"Corrective action" has been amended to include the risk posed to the environment.
The new definition requires financial security from the licensee to address
unplanned events that pose a risk to public health, safety, and the environment
that may occur after the decommissioning and closure of the compact waste
disposal facility or a federal waste disposal facility. Adding the definition
for "Corrective action" allows the general subchapters in Chapter 37 to remain
unchanged. The definition for "Facility" is amended in response to comment
to be consistent with the definition of "Site" in Chapter 336. The definition
for "Institutional control" is amended to read "Shall have the same meaning
as post closure. . ." to better define the term. The general subchapters of
Chapter 37 use the term "post closure" in identifying activities requiring
financial assurance. In addition, the amendments add a definition for "Licensee"
to §37.9035 stating that for the purposes of this subchapter, the term
"Licensee" shall have the same meaning as owner, operator, or license holder.
This definition conforms this subchapter with the general subchapters in Chapter
37 which use the terms "owner" and "operator," and Texas Health and Safety
Code, §401.241, which uses the term "license holder." The definition
for "Post closure" is amended to read "The activities that are identified
as institutional control as specified in §336.734 of this title (relating
to Institutional Requirements). . ." to expand and improve the definition,
and also in response to comment. Finally, the definitions section is renumbered
because of the additional definitions.
Section 37.9040, Submission of Documents
The amendment to §37.9040 adds "corrective action" and "liability
coverage" to the documentation that must be submitted to the executive director
to demonstrate financial assurance under Texas Health and Safety Code, §401.233
and §401.241, respectively. The timing for financial assurance mechanisms
to be submitted and effective is amended in response to comment to be "60
days prior to the initial receipt of waste."
Section 37.9045, Financial Assurance Requirements
for Closure and Post Closure
The amendments to §37.9045 change the section title from "Financial
Assurance Requirements for Closure and Post Closure" to "Financial Assurance
Requirements for Closure, Post Closure, and Corrective Action" to add the
additional financial assurance requirement for unplanned events under Texas
Health and Safety Code, §401.241. In response to comment, the amended
section title does not include liability coverage within this section. Subsection
(a) is amended to add "corrective action" for the same reason cited for changing
the section title. The payment schedule for financial assurance for corrective
action, required under Texas Health and Safety Code, §401.241, will be
established in the LLRW disposal license. Subsection (a)(5) is amended to
delete the word "an" as a grammatical correction, and to add language to clarify
the intent of the subsection that "proof of forfeiture" is not required to
collect financial assurance. United States Nuclear Regulatory Commission (NRC)
regulations under 10 Code of Federal Regulations (CFR) §61.62(f), relating
to funding for disposal site closure and stabilization, state that proof of
forfeiture must not be necessary to collect financial assurance so that in
the event the licensee could not obtain replacement financial assurance prior
to cancellation, the financial assurance shall be automatically collected
prior to its expiration. The NRC rule also states that the issuer's liability
under the financial assurance mechanism must remain in effect until the closure
and stabilization program is completed and approved by NRC, and the license
transferred. The NRC intent is to ensure that financial assurance cannot be
cancelled, terminated, or allowed to expire without NRC approval of replacement
financial assurance or closure. Subsection (a)(5) is amended to add ". . .
prior to the expiration, cancellation, or termination . . ." and to add that
the financial assurance ". . . provider shall pay the face amount of the financial
assurance into the perpetual care account" to conform with new requirements
in Texas Health and Safety Code, §401.109(a); and to delete the phrase
at the end of the sentence, ". . . mechanism shall be automatically collected
prior to its expiration" as unnecessary language after the rewording of the
subsection. Subsection (a)(6) is added to require that all financial assurance
that is converted to cash by the direction of the executive director shall
be deposited to the credit of the perpetual care account in accordance with
new requirements in Texas Health and Safety Code, §401.109(a).
Section 37.9050, Financial Assurance Mechanisms
The amendment to §37.9050(b) deletes the language allowing the use
of a performance bond as a demonstration of financial assurance. A performance
bond would give a surety the option to perform the required activities of
closure, post closure, and corrective action under the license, which is not
appropriate for LLRW disposal facilities for two reasons. First, by statute
a single, qualified licensee must be put through a rigorous licensing process
based on the qualifications of the licensee. To allow a surety to perform
without the same evaluation and qualification is inconsistent with the licensing
process. Second, the agency assumes control of the facility after closure;
therefore, a funding mechanism rather than a performing mechanism is required.
A payment bond issued by a surety remains an option which meets the requirements
of Texas Health and Safety Code, §401.109, and NRC requirements which
both allow the use of a "surety bond."
A new §37.9050(f) includes insurance as an additional financial assurance
option in accordance with Texas Health and Safety Code, §401.109(d),
which lists among acceptable financial assurance mechanisms, ". . . an insurance
policy, the form and content of which is acceptable to the agency." The requirements
of this new subsection are intended to identify the acceptable form and content
based on current commission rules and practices, address NRC requirements
for security, and address some shortcomings of insurance as a financial assurance
mechanism that have been identified by the United States Environmental Protection
Agency (EPA), Office of the Inspector General, various states, and a work
group of the Association of State and Territorial Solid Waste Management Officials.
The provisions within this subsection are designed to ensure the following:
the diversification and transfer of risk, the long-term viability and strength
of insurers, the performance of the financial mechanism over a long period
of time, and the administration of the mechanism without specialized legal
expertise in insurance. In response to comment, an endorsement to the insurance
policy will be required to demonstrate compliance with the commission's financial
assurance requirements instead of the certificate that was proposed.
New subsection (f)(1) requires that all insurers be authorized to transact
the business of insurance in Texas and have financial strength and size categories
as assigned by A.M. Best Company equivalent to "excellent" and at least $2
billion in capital, surplus, and conditional reserve funds. The six primary
insurers that issue closure insurance for Resource Conservation and Recovery
Act (RCRA) facilities meet these standards. These requirements assure the
financial capacities of the primary insurer on the policy to perform as required.
In response to comment, references to reinsurers were deleted and provisions
to allow coverage by surplus lines insurers were added.
The proposed new subsection (f)(2) has been deleted in response to comment.
Subsequent subsections have been renumbered accordingly.
New subsection (f)(2) requires the policy to designate the agency as an
additional insured, which provides more security by making the agency a party
to the insurance contract.
New subsection (f)(3) requires the owner or operator to maintain the policy
in full force and effect until the executive director consents to termination
of the policy. Failure to pay the insurance premium without substitution of
acceptable, alternate financial assurance constitutes a violation of Chapter
37, warranting such remedy as the executive director deems necessary. If insurance
is used as a financial assurance mechanism, license conditions will also be
placed in the LLRW disposal license related to a licensee's failure to pay
any insurance premium. Failure to maintain viable financial assurance, including
insurance in full force, will result in possible revocation of an LLRW disposal
license. Because financial assurance for this license must be available as
a funding mechanism many years after the license is issued, continuation of
the insurance or the ability to prevent the loss of financial assurance must
be assured in the absence of the executive director's approval of an alternate
mechanism or of release from financial assurance requirements.
New subsection (f)(4) states that the policy may only be cancelled, terminated,
or not renewed for failure to pay the insurance premium, and requires the
insurer to notify both the executive director and the owner or operator by
certified mail of intent to cancel, terminate, or not renew the policy. The
insurer must provide 120 days' notice, which allows the owner or operator
sufficient time to pay the premium or obtain alternate, acceptable financial
assurance. The notice period also allows the executive director to take appropriate
action to ensure there is no loss of financial assurance. In response to comments
from the NRC, subsection (f)(4) is amended to add the following language:
"The policy must also provide that the insurer shall pay the face amount of
the insurance policy into the perpetual care account if the executive director
does not approve acceptable replacement financial assurance within 90 days
of receiving notice by certified mail from the insurer of its election to
cancel, terminate, or not renew the policy."
Proposed new subsection (f)(6) is deleted in response to comment.
New subsection (f)(5) states that the insurance policy may not contain
an exclusion for intentional, willful, knowing, or deliberate noncompliance
with a statute, regulation, order, notice, or government instruction. This
language is meant to address problems identified by other states that have
been presented with similar policy language as a reason for nonpayment of
insurance claims. This language ensures that insurance can be relied on as
a funding mechanism without concern that an insurer can deny funding based
on such exclusionary language in the policy.
In response to comment, new subsection (f)(6) requires that the endorsement
to the insurance policy, rather than the certificate of insurance submitted
to demonstrate financial assurance, must be worded exactly as presented in
new §37.9052. This ensures that all of the requirements of this section
are met.
New subsection (f)(7) states that the insurance must be issued in the amount
of the cost estimates for closure, post closure, and corrective action except
when provided in combination with other approved financial assurance mechanisms.
New subsection (f)(8) requires that the policy must guarantee that funds
will be available to provide for closure, post closure, or corrective action,
and that the issuer of the policy will be responsible for paying out funds
upon direction of the executive director up to the face amount of the policy.
New subsection (f)(9) sets out the framework for the licensee or any other
person authorized to perform closure, post closure, or corrective action to
request reimbursement of expenditures by submitting itemized bills to the
executive director.
New subsection (f)(10) provides that once the insurer becomes liable to
make payments under the policy, the face amount of the policy, less any payments
made, must be increased annually based on an identifiable investment rate.
This provision is an equivalent provision to insurance requirements for RCRA
facilities found in §37.241(k), Insurance. Because operations will have
stopped at the facility by the time the insurer becomes liable to make payments,
the licensee's ability to fund increasing financial assurance amounts would
be in doubt. This provision ensures that most of the investment earnings on
the funds held by the insurer will be available to pay for closure, post closure,
and corrective action activities.
New subsection (f)(11) requires that once the institutional control period
begins, the insurer must pay the remaining face amount of the policy to the
perpetual care account. This provision meets the requirements of §336.734,
Institutional Requirements, which requires the custodial agency to carry out
the institutional control program.
Section 37.9052, Endorsement
In response to comment, new §37.9052 provides the required language
for the endorsement to the insurance policy, rather than the certificate of
insurance to satisfy financial assurance requirements for closure, post closure,
and corrective action specified in §37.9050(f). In addition, the figure
in 30 TAC §37.9052 has been revised accordingly in response to comment.
Section 37.9055, Institutional Control Requirements
The commission repealed §37.9055 because this section did not address
the requirement for financial assurance for institutional control and, therefore,
served no purpose.
Section 37.9059, Financial Assurance Requirements
for Liability
New §37.9059 is added. Section 37.9059(a) was changed to clarify that
liability coverage is a financial assurance requirement. Liability coverage
is a requirement for the licensee under Texas Health and Safety Code, §401.233(d),
in an amount and type acceptable to the commission and adequate to cover potential
injury to any property or person. Absent a statutorily defined amount of coverage
required, the commission adopts the same amounts of coverage required for
a RCRA disposal facility. The licensee must provide financial assurance for
bodily injury and property damage to third parties caused by sudden accidental
occurrences in the amount of at least $1 million per occurrence with an annual
aggregate of at least $2 million, exclusive of legal defense costs. The licensee
must provide financial assurance for bodily injury and property damage to
third parties caused by non-sudden accidental occurrences in the amount of
at least $3 million per occurrence with an annual aggregate of at least $6
million, exclusive of legal defense costs.
New subsection (e) allows the use of any of the financial assurance mechanisms
allowed under Subchapter F, Financial Assurance Mechanisms for Liability,
except for self-insurance through a financial test and a corporate guarantee.
The exceptions are not proposed as acceptable mechanisms for liability coverage
because they are not acceptable for closure, post closure, and corrective
action in accordance with NRC requirements under 10 CFR §61.62(g).
New subsection (f) requires that if a "claims-made" insurance policy is
used, the applicant must place an amount in escrow sufficient to pay for an
additional year of premiums on notice of termination of coverage. This requirement
mirrors the requirement in Texas Health and Safety Code, §361.085(i),
which has been adopted in §37.6031(f), Financial Assurance Requirements
for Liability, for hazardous and nonhazardous industrial solid waste facilities.
This requirement is intended to ensure that a liability insurance policy is
not cancelled for nonpayment of premiums, which might result in nonpayment
of valid third-party claims in situations where the licensee's financial condition
deteriorates rapidly. In response to comment on the timing of escrow account
funding, the escrow accounts must be funded at the same time that the insurance
policy becomes effective.
New subsection (g) specifies that limits of coverage required in this subsection
are distinct from any other liability coverage requirements. The purpose of
this language is to prohibit stacking of coverage limits such that liability
coverage requirements for the operation of the LLRW disposal facilities cannot
be met with liability coverage provided by the licensee to satisfy other program
financial assurance requirements such as RCRA and for petroleum underground
storage tanks.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed this 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 amendments to
Chapter 37 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
they address the financial assurance requirements for an LLRW disposal site.
The rulemaking action implements legislative requirements in HB 1567 for financial
assurance for liability and corrective action and the use of insurance for
licenses issued under Chapter 336, Subchapter H.
Furthermore, the 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 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 NRC to administer a radiation control program under the Atomic Energy
Act of 1954, as amended (Atomic Energy Act). The rules do not exceed the standards
set by federal law.
The 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
Texas Health and Safety Code, Chapter 401, as provided in HB 1567. The rules
address the requirements for financial assurance for liability and corrective
action and the use of insurance as provided by HB 1567.
The 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, which 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
,
the NRC requirements must be implemented to maintain a compatible state program
for protection against hazards of radiation. The rules do not exceed the NRC
requirements nor do they exceed the requirements for retaining status as an
"Agreement State."
The rules are adopted 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.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an assessment
of whether Texas Government Code, Chapter 2007, is applicable. The commission
determined that Chapter 2007 does not apply to these rules because the rules
are administrative in nature and will not affect real property values. The
purpose of this rulemaking action is to implement legislative requirements
in HB 1567 and advances this purpose by establishing financial assurance requirements
for liability and corrective action, and the use of insurance as a financial
assurance mechanism for LLRW disposal for licenses issued under Chapter 336,
Subchapter H.
Promulgation and enforcement of these rules would be neither a statutory
nor a constitutional taking of private real property. The 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 rules implement administrative
changes to the requirements for financial insurance for LLRW disposal licenses
issued under Chapter 336, Subchapter H. The rules address requirements for
liability and corrective action coverage and the use of insurance for financial
assurance.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking action and found that the rules
are neither identified in, nor will their amendment affect, any action/authorization
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11,
relating to Actions and Rules Subject to the Coastal Management Program. Therefore,
this rulemaking action is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
Written and/or oral comments were received from the Advocates for Responsible
Disposal in Texas (ARDT); the American Electric Power (AEP); the League of
Women Voters of Dallas (LWV-Dallas); the League of Women Voters of Texas (LWV-Texas);
the Nuclear Regulatory Commission (NRC); the South Texas Project Nuclear
Operating Company (STP); the Texas Department of Insurance (TDI); the Texas
Radiation Advisory Board (TRAB); Texas Radiation Online (TRO); State Representative
Lon Burnam representing the Texas Radioactive-Waste Defense Fund (TRWDF);
TXU Energy (TXU); US Ecology, Incorporated (US Ecology); Hance Scarborough
Wright Woodward & Weisbart, L.L.P., and BakerBotts, L.L.P., on behalf
of Waste Control Specialists (WCS); and 237 individuals. One individual endorsed
the recommendations submitted by the TRWDF, and TRO agreed with the concerns
voiced by the Sierra Club. The TRWDF includes the Lone Star Chapter of the
Sierra Club, Public Citizen, Sustainable Energy & Economic Development,
the LWV-Texas, and the Nuclear Information and Resource Service.
RESPONSE TO COMMENTS
General Comments
ARDT, AEP, TRAB, and TXU generally supported the proposed rules. One individual
stated opposition to the weak regulations as currently developed. LWV-Dallas,
LWV-Texas, TRO, TRWDF, and 234 individuals urged the commission to establish
regulations that are second to none or rules that are more stringent than
the proposed rules. ARDT, AEP, LWV-Dallas, LWV-Texas, NRC, STP, TDI, TRAB,
TRO, US Ecology, TRWDF, WCS, TXU, and 237 individuals raised issues or suggested
changes to the rules.
Consistent Use of Terminology
WCS stated that defined terms relating to the disposal facility site have
not been used in a clear and consistent manner. The use and definition of
the term "facility" in §37.9035(4) is ambiguous in the context of a license
issued under Chapter 336, Subchapters H and J, of the commission's rules.
The commission amended the definition of "Facility" as used in Subchapter
T of this chapter to be consistent with the use of the term "Site" in §336.2.
Specific Definitions
TRAB commented on the definition of "Post closure" and the use of "which"
versus "that" throughout the document. TRAB stated that the regulatory framework
and language requires a preciseness in word usage and stated that the words
"that" and "which" are not interchangeable. According to
The Elements of Style
, Strunk & White, page 59, "that" is the defining
or restrictive pronoun, while "which" is the non-defining or non-restrictive
pronoun. The definition should properly read "The activities
that
are identified . . .."
The commission appreciates this comment. The term "which" was changed to
"that" in the SECTION BY SECTION DISCUSSION part of the preamble and in §37.9035
and §37.9050(f).
TRAB asked why there was a distinction made between "the" compact waste
disposal facility and "a" federal waste disposal facility" in the "corrective
action" definition.
The commission appreciates this comment. No distinction was intended in
the definition of "Corrective action" found in §37.9035. However, the
definition is taken from the statute in Texas Health and Safety Code, §401.241(a).
The commission made no change in response to the comment.
TRAB stated that the terms "sudden accidental occurrences" and "non-sudden
accidental occurrences" need to be defined, and the difference in liability
coverage for the occurrence types needs to be described.
Sudden and nonsudden accidental occurrences are defined in Chapter 37,
Subchapter E, §37.402. Section 37.9059(a) states that the licensee must
comply with the requirements of Subchapter E. The commission made no changes
in response to this comment.
Adequacy of Financial Assurance Amounts
Several commenters expressed concern about the adequacy of financial assurance
amounts to be provided by a licensee. TRO stated that there should be sufficient
financial assurance from the licensed entity. LWV-Texas and LWV-Dallas commented
that the current amount of $20 million should be reviewed for adequacy. TRAB
commented that the license is for a long duration; therefore, $20 million
now may not be enough in the future. TRAB also asked if there would be coverage
for subsequent events if the first event of corrective action exceeded $20
million.
The commission agrees with the commenters and shares the same concerns
with the adequacy of financial assurance over a long period of time; therefore,
the rules require the commission to conduct an annual review of the cost estimates
for financial assurance. As cost estimates increase, financial assurance must
also increase. The Texas Health and Safety Code specifies that the financial
assurance for corrective action is required to address unplanned events occurring
after decommissioning. Prior to decommissioning, it is the licensee's financial
responsibility to address corrective action irrespective of financial assurance
funding. The commission notes that the financial assurance requirement for
corrective action may exceed $20 million, but it must be at least that amount.
If the first event were to exceed the funding set aside for corrective action,
the licensee would be financially responsible for any additional corrective
action required prior to the transfer of the license. The commission made
no change in response to these comments.
LWV-Texas and LWV-Dallas stated that the rules need to ensure that any
monies in the perpetual care fund are adequate to support monitoring and retrieval
of leaking containers after closure.
Financial assurance funding amounts are determined, as well as revisited
annually, by the commission based on the actual disposal activities occurring
on a licensed LLRW disposal facility. Financial assurance amounts will be
set based on the actual inventory of LLRW received for disposal for the purpose
of monitoring and maintenance during the institutional control period following
closure. Additionally, a corrective action amount for any necessary retrieval
of waste after closure will be set based on the actual inventory of waste
received for disposal that will be on-site. The commission made no change
in response to these comments.
Licensee or Federal Liability
The LWV-Dallas and LWV-Texas commented that the federal government should
provide assurances to pay for cleanup and repackaging of its nuclear waste
disposal at the site in Texas. In a related comment, TRAB asked whether the
federal government assumes the liability for the facility if the government
takes it over.
The commission disagrees with the comment that it is necessary for the
federal government to provide stand-alone financial assurance for federal
facility waste. Cost estimates related to the license include the waste and
activities at both the compact waste disposal facility and the federal facility
waste disposal facility.
On decommissioning of the federal facility waste disposal facility, the
licensee, the owner of the facility, and waste generators, which may include
the federal government and other parties, may be liable.
Protection of the Perpetual Care Fund
The NRC commented that the state is using a perpetual care fund rather
than standby trusts as the ultimate depository for financial assurance. This
raises an issue if the state requires legislative approval each time it seeks
to expend funds from this account which is described as a general revenue
fund. The state may need to consider appropriation authority, such as multi-year
spending authority, to ensure that these funds are available when needed.
NRC also commented that the state should define the process for accessing
the perpetual care account funds.
The commission agrees that any expenditure out of the perpetual care account
requires appropriation authority from the legislature. It would be reasonable
to request an appropriation or a rider appropriation from the perpetual care
account in the 2006 - 2007 biennial Legislative Appropriations Request. As
long as there is an appropriation, expenditures can be made against the account.
However, the legislature can remove appropriation authority any time when
in session. The commission also notes that Texas Health and Safety Code, §401.305,
identifies how the commission and the Texas Department of Health may use the
perpetual care account. The commission made no change in response to these
comments.
Insurance as an Appropriate Financial Assurance
Mechanism
TRWDF and TRAB each commented on whether insurance was an appropriate financial
assurance mechanism for the LLRW disposal facility license. TRWDF stated that
insurance as financial assurance is highly unusual and untested, and that
an insurance company will have the right to dispute any claim made by the
state against the policy. TRAB commented that if there is an event caused
by human error, the insurance company will look for exclusions. TRAB also
stated that if there is a 100% probability that the policy will be paid out
in full at the end of a given period, then it's not really insurance, and
such a policy may not be available. TDI also expressed a general concern regarding
the availability of insurance coverage necessary to comply with the commission's
proposed rules.
The commission agrees that the insurance option of financial assurance
for decommissioning and other activities is not the typical risk transfer
arrangement common to insurance contracts. However, the Texas Health and Safety
Code lists insurance as one of the allowable financial assurance options,
as long as the form and content are acceptable to the commission. The commission
has determined that to be acceptable, the insurance policy must be a funding
arrangement as protective and financially sound as the other financial assurance
options. Whether there is a market for this product will be determined by
the industry; however, other financial assurance options are available.
To address the concern that the insurance company will look for exclusions
to deny a claim, the commission is adopting a recommendation from TDI that
the certificate of insurance be replaced by an endorsement to the insurance
policy. The endorsement binds the insurer to the requirements in §37.9045(a)(5)
and §37.9050(f) and eliminates policy provisions inconsistent with these
subsections.
Financial Liability of Licensee
TRAB and TRWDF commented that the rules should clarify the financial liability
of the licensee for any unplanned event that does not require decommissioning.
TRWDF, in a related comment, also stated that the rules should require specific
proof that a licensee's financial assets are adequate to address remediation
during the operation of the facility which does not result in decommissioning.
LWV and 204 individuals encouraged the commission to write rules that deal
more completely with the issue of liability and financial responsibility.
A related general comment expressed by several individuals was that financial
responsibility provisions are inadequate, and taxpayers should not be left
with financial responsibility for liabilities at the disposal site. Disposal
site operators should be held fully responsible and liable for their activities.
206 individuals stated that there are already examples, including radioactive
waste dumps, in this country of disposal companies eluding their responsibility
to pay for cleanup costs (due to leakage), or even abandoning dumps to avoid
liability.
The Texas Health and Safety Code specifies that the financial assurance
for corrective action is required to address unplanned events occurring after
decommissioning. Prior to decommissioning, it is the licensee's financial
responsibility to address corrective action irrespective of financial assurance
funding. Texas Health and Safety Code, §401.211, clearly states that
the transfer of title to the LLRW disposal facility, land, and buildings to
the state or federal government does not relieve the licensee of liability
for any act or omission performed before the transfer or while the LLRW disposal
facility, land, and buildings are in the possession and control of the licensee.
For the compact waste disposal facility, the disposal fee rate will include
a component for the cost of financial assurance. It is expected that the licensee
will charge a fee for federal facility waste that also includes the cost of
financial assurance. Financial assurance is specifically for the activities
of decommissioning, post closure monitoring and maintenance, and corrective
action. These are defined activities that take place under the control of
the licensee, or in the worst case, under state direction due to a need for
corrective action and the licensee is unable or unwilling to address the needed
activities. Financial assurance is also for institutional control which takes
place after the transfer of the license to the state and to the federal government.
Under §336.711 and §336.735, the applicant's financial qualifications
will be evaluated. However, in the worst case, if a licensee is unable or
unwilling to address an unplanned or unforeseen event (corrective action)
that requires remediation during the operation of the site, the executive
director has the authority to demand closure and begin the decommissioning
process. Additionally, the commission, under authority in Texas Health and
Safety Code, §401.152, may use any security provided by the license holder
to address a situation that threatens public health and safety and the environment.
The commission disagrees with the comments that the rules have not been
written to deal completely with the issues of liability and financial responsibility,
and that the taxpayer will be left with the liability for the disposal site.
The commission notes that financial assurance for decommissioning, post closure
monitoring and maintenance, corrective action, and institutional control is
required to be provided in full before the initial receipt of waste at the
facility. In response to these comments, a requirement for executive director
approval of financial assurance prior to accepting waste for disposal has
been added to §336.716(f). Additionally, cost estimates for these obligations
will be reviewed annually by the commission. For consistency with the review
requirements of other financial assurance, annual review by the commission
of financial assurance for corrective action has been added to §336.738(b).
In response to these comments, a requirement was added to financial assurance
for closure in §336.736(a) to include the disposal of any radioactive
material remaining at the site at the time of closure. The rules also ensure
the soundness and long-term stability of the financial assurance.
Insurance Specific Issues
TRAB and WCS commented on the proposed language for §37.9050(f)(11).
WCS commented that the fourth sentence should be clarified to state that ".
. . if the executive director has
reasonable justification
to believe that the maximum cost of closure, post closure, or corrective
action . . . will be greater than the face amount of the policy, . . . the
executive director may withhold reimbursement . . ." TRAB expressed a concern
that the executive director could withhold payment after approved work had
been completed, in the event that forecasted work costs outstripped available
funds.
The commission disagrees with amending the proposed language recommended
by WCS. The proposed language duplicates language in closure insurance provisions
for hazardous waste facilities in commission and EPA rules. The commission
points out that the executive director must provide a written explanation
if the executive director withholds reimbursement.
The commission also disagrees with the concern expressed by TRAB. The commenter
assumes that work has been approved; however, it is the plan that is approved,
and the work performed may not be in accordance with the approved plan. The
adopted rule makes the licensee responsible for ensuring that work performed
is in accordance with the approved plan and that cost estimates that form
the basis for financial assurance are accurate. In practice, the licensee
and insurer will be working closely with the commission, and the work should
be performed under a task-order type contract with sufficient subdivision
to allow the appropriate monitoring of cost. The commenter also assumes an
orderly and planned decommissioning by the licensee, which may not be the
case in a worst-case or adversarial situation. The commission made no change
in response to these comments.
There were several comments related to provisions to address non-payment
of insurance premiums and failure to renew insurance policies. TRWDF stated
that provisions should be established within the rules to require that an
escrow account of six months' insurance premiums be in place before a license
is issued in the event that the licensee fails to pay insurance premiums.
TRWDF's concern regarding nonpayment of premiums is addressed by new §37.9050(f)(4)
to conform to a compatibility requirement pointed out by the NRC. The new
subsection requires the insurer to pay the face amount of the policy into
the perpetual care account if replacement financial assurance acceptable to
the executive director is not provided prior to cancellation, termination,
or nonrenewal of the policy. Under Texas Health and Safety Code, §401.151,
the commission is required to assure that the management of LLRW is compatible
with applicable NRC standards.
WCS commented that in §37.9050(f)(5) and (6), the phrase "or fail
to renew the policy" should be deleted. The inclusion of this phrase indicates
that an insurer must commit to the policy in perpetuity, and few businesses
would be willing to make such a blanket commitment. As a result, the insurance
policy might not be available as an option.
New §37.9050(f)(4), added to meet NRC compatibility, has rendered
this comment moot, and made proposed §37.9050(f)(6) unnecessary; therefore,
that subsection has been deleted.
TXU commented that §37.9050(f)(4), which requires executive director
consent to terminate the policy, may be an impediment to the use of insurance
as a financial assurance alternative.
The commission agrees that requiring executive director consent before
policy termination could serve as an impediment to the use of insurance. However,
the commission notes that the insurance option of financial assurance, in
order to maintain federal compatibility, must offer protections equivalent
to the other financial assurance options by remaining in effect until replacement,
cash conversion, or release. The commission made no change in response to
this comment.
WCS commented that §37.9045(a)(5) should be revised so that a financial
assurance provider is
not
required to pay
the face amount of the financial assurance into the perpetual care account.
This requirement, as proposed, could discourage insurers from offering insurance
policies to satisfy the financial assurance requirements, since the proposed
language apparently allows the agency to draw on the entire face value of
the policy. Further, the proposed language may result in payments that greatly
exceed the amount of financial assurance that is reasonably required at the
time that a financial assurance mechanism lapses. To address these concerns,
WCS suggested that the rules provide some additional means for resolving this
situation, without requiring a policy to be paid in full.
The commission disagrees with the commenter because this provision is required
for insurance to be compatible with NRC requirements in 10 CFR §61.62(f).
NRC provided the following comment: "§37.9045(a)(5) provides that financial
assurance providers pay the face amount of the financial assurance if the
owner does not obtain replacement assurance within the required time frame.
However, this is not addressed in the context of insurance as part of §37.9050(f).
The certificate of insurance is silent on this issue. The regulations should
require that the insurance company must agree to this term in the insurance
policy to be compatible with 10 CFR §61.62(f) . . .." Conforming changes
have been made as a matter of compatibility to §37.9050(f)(4) and the
endorsement to the insurance policy under §37.9052.
The commission notes that the commission will conduct an annual review
of cost estimates; therefore, the amount that would have to be paid to the
perpetual care account should not greatly exceed the amount of financial assurance
reasonably required.
NRC commented that §37.9045(a)(5) provides that financial assurance
providers pay the face amount of the financial assurance if the owner does
not obtain replacement assurance within the required time frame. However,
this is not addressed in the context of insurance as part of §37.9050(f).
The certificate of insurance is silent on this issue. The NRC commented that
the regulations should require that the insurance company must agree to this
term in the insurance policy to be compatible with 10 CFR §61.62(f).
The NRC stated that the state needs to amend the language in the insurance
certificate to replace the terms prescribed in "§37.9050(f)" with "§37.9045(a)(5)
and §37.9050(f)" in the three places it appears in the certificate.
The commission agrees with the NRC. Conforming changes have been made to §37.9050(f)(4)
and the endorsement to the insurance policy under §37.9052. Under Texas
Health and Safety Code, §401.151, the commission is required to assure
that the management of LLRW is compatible with applicable NRC standards.
TDI commented that requiring insurance to be provided by an "authorized
insurer" may restrict availability of coverage to insurers that submit license
applications to engage in the business of insurance in Texas and are licensed
by TDI. The use of the term "authorized insurer" would not include surplus
lines insurers that may be more inclined to write this type of exposure. TDI
recommended the following language: "
. . . an insurer
authorized to transact insurance in this state or a surplus lines insurer
eligible to engage in the business of insurance in Texas pursuant to Article
1.14-2, Insurance Code
." TDI also commented that if the commission
chooses to use the proposed language, insurers would be required to be authorized
or eligible; therefore, the requirement for reinsurers to be authorized should
be deleted, since TDI does not issue certificates of authority or licenses
to reinsurers.
WCS offered a similar comment that in §37.9050(f)(l) and (2), the
references to "reinsurers" should be deleted.
TRAB commented that §37.9050(f)(2) is close to incomprehensible, recommending
that subsection (f) be broken down into smaller requirements and sub-requirements
that are more readily understood by the public.
The commission agrees with TDI and has made conforming changes to the endorsement
to the insurance policy, which replaces the certificate of insurance. TDI's
recommended language to allow surplus lines carriers to provide this coverage
has been incorporated in §37.9050(f)(1) and in the endorsement in §37.9052.
The commission also agrees with TDI and WCS that the requirement for reinsurers
should be deleted because TDI does not issue certificates of authority or
licenses to reinsurers. Additionally, the financial capacity of the primary
insurer is assured by the requirements under §37.9050(f)(1). Therefore,
references to and requirements related to reinsurers have been removed from §37.9050(f)(1)
and in the endorsement in §37.9052.
Related to these changes and addressing TRAB's concerns with the readability
of §37.9050(f)(2), the commission is deleting proposed §37.9050(f)(2).
The replacement of the certificate of insurance with an endorsement to the
policy addresses the enforceability issues of §37.9050(f)(2), rendering
the requirement for a separate statement from the insurer unnecessary.
The endorsement has been revised to incorporate the covenant that the insurer
will not raise as a defense any provision of the policy that is inconsistent
with the requirements of §37.9050(f) and §37.9045(a)(5).
TRAB stated that when allowing insurance as a mechanism under §37.9050(f),
the writing agent should be asked about his "errors and omissions" insurance
coverage and limits. TRAB added that this is a very important factor if there
is a coverage question.
The commission responds that concerns about errors or omissions on the
part of an agent have been addressed by the revisions recommended by TDI,
replacing the certificate of insurance with an endorsement to the policy.
TDI recommended that the language necessary to comply with the rules be included
in an endorsement that must be attached to the policy, so that all the terms
of coverage are contained within the policy agreement.
WCS commented that proposed language in §37.9050(f)(7) seeks to impose
further restrictions on potential insurers by prohibiting language in the
policy that excludes certain intentional noncompliances with a statute, regulation,
order, notice, or government instruction. Such language is a concern to WCS
for two reasons. First, sound business judgment would suggest that an insurer
would prefer to avoid covering the risk of someone's willful and intentional
misconduct. Second, the language is so broad and far-reaching that it may
discourage insurance companies from considering such a risk. In other words,
if an insurer is asked to cover the far-reaching potential risks associated
with this proposed regulatory language, the insurer may view this as an exposure
that is not insurable. WCS added that subsection (f)(7) should be deleted.
The commission disagrees with the commenter. To meet federal compatibility
requirements, these provisions are necessary for insurance to be equivalent
to the other financial assurance options which do not have exclusions. All
financial assurance must ensure funding regardless of the conduct or compliance
of the licensee. The commission made no change in response to this comment.
TRAB commented that the words "sudden" and "accidental" are key words to
be aware of in evaluating insurance coverage requirements in §37.9050(f).
If an event is not "sudden" and "accidental," then it comes under "maintenance"
and that is where coverage issues will be of concern for exclusions. TRAB
recommended excluding all policies that may include sudden and accidental
clauses, and requiring an "All Risk Policy."
Insurance issued in accordance with §37.9050(f) provides a funding
mechanism for the licensee's financial assurance obligations that is unaffected
by whether an event or activity addressed by the financial assurance was of
a sudden or accidental nature. The commission made no change in response to
this comment.
TRAB asked when allowing insurance as a mechanism under §37.9050(f),
will the insurance company go beyond $20 million if the first event exceeds
that amount? TRAB added that annual aggregates limit the amount for one year.
The commission position is that the insurance will be limited to the face
amount of the policy. Insurance is a funding mechanism for the activities
of decommissioning, post closure observation and maintenance, corrective action,
and institutional control. There are no provisions under this financial mechanism
to limit funding to an annual aggregate. The commission made no change in
response to these comments.
TDI commented that in addition to requiring a certificate of insurance,
the commission may want to consider requiring insurers to include the certificate
of insurance language necessary to comply with the rules in an endorsement
that must be attached to the policy. TDI requires that the terms of coverage
be contained within the policy agreement. In a related comment, TRAB recommended
that the commission ask the company for the opportunity to design the insurance
product with the head underwriter of the company, which would also provide
the opportunity to know the exact coverage and exclusions.
The commission agrees with the TDI recommendation and has made conforming
changes to the rules to make the proposed certificate of insurance an endorsement
to the insurance policy. This change addresses the TRAB recommendation that
the commission should know the coverage and exclusions of the policy, since
the endorsement incorporates the requirements of §37.9045(a)(5) and §37.9050(f).
The insurer covenants in the endorsement that any provision of the policy
inconsistent with such regulations is amended by the endorsement to eliminate
the inconsistency.
TRAB commented that only financially-sound insurance companies with a minimum
of $50 - $80 billion in assets and the highest rating from the insurance rating
institutions such A.M. Best Company should be allowed to provide coverage
under §37.9050(f). Insurers in the "substandard" insurance category should
be excluded, and insurers that are members of the Texas Guarantee Fund should
be included.
In a related comment, TXU stated that requiring an insurer be an A.M. Best
Company, "A" rated company with over $2 billion of surplus may be an impediment
to the use of insurance as a financial assurance alternative.
The commission disagrees that the minimum financial strength and financial
size categories in §37.9050(f)(1) for a qualifying insurer need to be
adjusted. The rules have applied the highest financial strength category given
by A.M. Best Company, XV, which is equivalent to $2 billion in capital, surplus,
and unconditional reserves. The rules require an "A" rating which is "excellent,"
and only one rung below "superior." The commission believes that these standards
provide the necessary assurance of the primary insurer's capacity to perform.
Substandard insurers are excluded by this criteria. Licensed insurers are
members of the Texas Guarantee Fund, and are eligible under these rules to
provide insurance if they meet the ratings and financial strength requirements.
The commission made no change in response to these comments.
TRAB asked for an explanation of what happens to the insurance policy after
decommissioning.
Upon any transfer of the license, the financial assurance, which can include
insurance, is converted to cash and paid into the perpetual care account.
Until that time, financial assurance is available to pay for the costs of
post closure observation and maintenance and corrective action.
Timing of Coverage
WCS commented that §§37.9040, 336.736(e), and 336.737(b) should
be revised to provide more specificity on when the various financial assurance
mechanisms should be "signed" and should be "effective." Although the rules
suggest this should occur for closure, post closure, corrective action, and
liability coverage "60 days prior to commencement of operations," it would
be more appropriate to require these coverages for closure, post closure,
and liability coverage to be in effect
prior to the
initial receipt of waste
. By statute, corrective action coverage is
required at decommissioning.
The commission agrees that the timing of the submission of effective financial
assurance mechanisms could be more exact. The timing of the submission of
financial assurance has been revised from "before commencement of operations"
to "60 days prior to the initial receipt of waste." Sixty days allows the
executive director the time to review and approve the financial assurance
mechanisms, and ensures that financial assurance is in place before waste
is received at the facility. Conforming changes are made in §37.9040
and §§336.736 - 336.738.
Liability Coverage
WCS commented that in §37.9045(a), and in the revised title for this
section, the scope of the section is expanded to include "corrective action"
and "liability coverage," as well as closure and post closure. It appears
that §37.9045(a)(1) and (4) should also recite the applicability for
financial assurance demonstrations for closure, post closure, corrective action,
and liability coverage, if such is the intention of the rule.
In response to a related comment, references to "liability coverage" in
the title and §37.9045(a)(1) have been deleted as unnecessary. Specific
liability coverage requirements are found in §37.9059.
WCS commented that §37.9059 of the proposed rules should be clarified
to explain whether it applies to applicants, owners, or operators. The broad
reference to "liability" in §37.9059(a) and to "liability coverage" in §37.9059(f)
should be more specific as to the expected timing and appropriate requirements.
The assertion in proposed §37.9059(g) that the "required limits of coverage
in this subsection are distinct from any other liability requirements under
this chapter" adds to the confusion. The terminology used in this section
should be more consistent and specific.
The commission agrees with the commenter that while §37.9059 applies
to an owner or operator, §336.736(e) refers to the applicant. A conforming
change is made to §336.736(e) to refer to the licensee, which under Chapter
37 is the same as owner or operator. The timing of the submission and effective
dates for liability coverage is addressed in §37.9040.
The commission agrees that the timing of funding the escrow account under §37.9059(f)
should be addressed; therefore, the subsection has been revised to require
that the escrow account be funded at the same time that the liability insurance
policy becomes effective.
The commission disagrees with the comment that §37.9059(g) is confusing.
As the preamble to the proposed rules stated, the purpose of this subsection
is to prohibit stacking of coverage limits such that liability coverage requirements
for the operation of the LLRW disposal facility cannot be met with liability
coverage provided by the licensee to satisfy other program financial assurance
requirements such as RCRA and for petroleum underground storage tanks.
TXU commented that liability insurance will likely be required by the NRC
and that policies may be available from American Nuclear Insurance, and recommended
contacting American Nuclear Insurance to verify the availability of such insurance.
The commission agrees that the potential applicants and the licensee should
contact American Nuclear Insurance as a potential provider of liability coverage.
WCS commented that in proposed §37.9059(f), owners or operators are
prohibited from using a claims made insurance policy as security for liability
coverage "unless the applicant places in escrow, as provided by the executive
director, an amount sufficient to pay an additional year of premiums for renewal
of the policy by the state . . .." This provision should be deleted as unduly
burdensome. As a practical matter, insurance policies for environmental liability
coverage are claims-made policies. The proposed language would therefore require
an applicant to escrow an additional year of premiums, when there is already
a requirement to maintain insurance coverage in full force and effect until
the executive director consents to its termination. Such a requirement would
cause more money to go into escrow, but it would not further a legitimate
purpose or need.
The commission disagrees with the commenter that this provision should
be deleted. This requirement mirrors the requirement in Texas Health and Safety
Code, §361.085(i), which has been adopted in §37.6031(f), relating
to Financial Assurance Requirements for Liability, for hazardous and nonhazardous
industrial solid waste facilities. This requirement is intended to ensure
that a liability insurance policy is not cancelled for nonpayment of premiums,
which might result in nonpayment of valid third-party claims in situations
where the licensee's financial condition deteriorates rapidly. There is no
requirement in §37.9059 that liability coverage must be maintained in
full force and effect until the executive director consents to its termination.
The commission made no change in response to these comments.
TXU commented that it supports the option of a letter of credit and payment
bond available under the current rules.
The commission appreciates the comment. A surety bond guaranteeing payment
and an irrevocable standby letter of credit may be acceptable financial assurance
mechanisms under §37.9050.
30 TAC §§37.9030, 37.9035, 37.9040, 37.9045, 37.9050, 37.9052, 37.9059
STATUTORY AUTHORITY
The amendments and new sections are adopted under Texas Water Code, §5.103,
concerning Rules, and §5.105, concerning General Policy, which authorize
the commission to adopt rules necessary to carry out its powers and duties
under the Texas Water Code and other laws of the state. The amendments and
new sections are also adopted under Texas Health and Safety Code, Chapter
401, concerning Radioactive Materials and Other Sources of Radiation, also
known as the Texas Radiation Control Act; §401.011, concerning Radiation
Control Agency, which authorizes the commission to regulate and license the
disposal of radioactive substances; §401.051, concerning Adoption of
Rules and Guidelines, which authorizes the commission to adopt rules and guidelines
relating to control of sources of radiation; §401.103, concerning Rules
and Guidelines for Licensing and Registration, which authorizes the commission
to adopt rules and guidelines that provide for licensing and registration
for the control of sources of radiation; §401.104, concerning Licensing
and Registration rules, which requires the commission to provide rules for
licensing for the disposal of radioactive material; §401.201, concerning
Regulation of Low-Level Radioactive Waste Disposal, which authorizes the commission
to regulate the disposal of low-level radioactive waste; and §401.412,
concerning Commission Licensing Authority, which authorizes the commission
to issue licenses for the disposal of radioactive substances.
§37.9035.Definitions.
Definitions for terms that appear throughout this subchapter may be
found in Subchapter A of this chapter (relating to General Financial Assurance
Requirements), §336.2 of this title (relating to Definitions), and §336.702
of this title (relating to Definitions), except the following definitions
shall apply for this subchapter.
(1)
Annual review - Conducted on the anniversary date of the
establishment of the financial assurance mechanism.
(2)
Closure - Any one or combination of the following: closure,
dismantlement, decontamination, decommissioning, reclamation, disposal, groundwater
restoration, stabilization, monitoring, or post closure observation and maintenance.
(3)
Corrective action - The activities to remediate unplanned
events that pose a risk to public health, safety, and the environment and
that may occur after the decommissioning and closure of the compact waste
disposal facility or a federal facility waste disposal facility.
(4)
Facility - All contiguous land, water, buildings, structures,
and equipment which are or were used for activities associated with the disposal
of radioactive material, including disposal, receipt, storage, processing,
or handling of radioactive material, waste, soil, and groundwater contaminated
by radioactive material. The term "Facility" has the same meaning as the term
"Site" as defined in §336.702 of this title.
(5)
Institutional control - Shall have the same meaning as
post closure.
(6)
Licensee - Shall have the same meaning as owner, operator,
or license holder.
(7)
Post closure - The activities that are identified as institutional
control as specified in §336.734 of this title (relating to Institutional
Requirements).
§37.9040.Submission of Documents.
An owner or operator required by this subchapter to provide financial
assurance for closure, post closure, corrective action, and liability coverage
must submit originally signed and effective financial assurance mechanisms
to the executive director 60 days prior to the initial receipt of waste.
§37.9045.Financial Assurance Requirements for Closure, Post Closure, and Corrective Action.
(a)
An owner or operator subject to this subchapter shall establish
financial assurance for the closure, post closure, and corrective action of
the facility that meets the requirements of this section, in addition to the
requirements specified under Subchapters A, B, C, and D of this chapter (relating
to General Financial Assurance Requirements; Financial Assurance Requirements
for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms
for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms
for Closure, Post Closure, and Corrective Action).
(1)
An owner or operator subject to this subchapter may use
any of the mechanisms as specified in §37.9050 of this title (relating
to Financial Assurance Mechanisms) to demonstrate financial assurance for
closure, post closure, and corrective action. On a case-by-case basis, the
executive director may approve other alternative financial assurance mechanisms.
(2)
The executive director will respond within 60 days after
receiving a written request for a financial assurance reduction in accordance
with §37.151 of this title (relating to Decrease in Current Cost Estimate).
(3)
An owner or operator may use multiple financial assurance
mechanisms provided in §37.41 of this title (relating to Use of Multiple
Financial Assurance Mechanisms), but must use only those financial assurance
mechanisms as specified in §37.9050 of this title.
(4)
The executive director may accept financial assurance established
to meet requirements of other federal, state agencies, or local governing
bodies for closure or post closure, provided such mechanism complies with
the requirements of this chapter and the full amount of financial assurance
required for the specific license is clearly identified and committed for
use for the purposes of Chapter 336, Subchapter H of this title (relating
to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive
Waste).
(5)
Proof of forfeiture must not be necessary to collect the
financial assurance, so that in the event that the owner or operator does
not provide acceptable replacement financial assurance within the required
time prior to the expiration, cancellation, or termination of the financial
assurance mechanism, the financial assurance provider shall pay the face amount
of the financial assurance into the perpetual care account.
(6)
All financial assurance required to be converted to cash
by direction of the executive director under §§336.736 - 336.738
and 37.101 of this title (relating to Funding for Disposal Site Closure and
Stabilization; Funding for Institutional Control; Funding for Corrective Action;
and Drawing on the Financial Assurance Mechanisms) and paragraph (5) of this
subsection shall be deposited to the credit of the perpetual care account.
(b)
The owner or operator shall comply with §37.71 of
this title (relating to Incapacity of Owners or Operators, Guarantors, or
Financial Institutions), except financial assurance must be established within
30 days after such an event.
§37.9050.Financial Assurance Mechanisms.
(a)
An owner or operator may satisfy the requirements of a
fully funded trust or standby trust fund as provided in §37.201 of this
title (relating to Trust Fund), except within 60 days following the executive
director's final review and approval of closure or post closure expenditures
for reimbursement, release of funds shall occur.
(b)
An owner or operator may satisfy the requirements of a
surety bond guaranteeing payment as provided in §37.211 of this title
(relating to Surety Bond Guaranteeing Payment) except:
(1)
the surety must also be licensed in the State of Texas;
(2)
cancellation may not occur during the 90 days beginning
on the date of receipt of the notice of cancellation; and
(3)
the bond must guarantee that the owner or operator will
provide alternate financial assurance within 30 days after receipt of a notice
of cancellation of the bond.
(c)
An owner or operator may satisfy the requirements of an
irrevocable standby letter of credit as provided in §37.231 of this title
(relating to Irrevocable Standby Letter of Credit), except:
(1)
the letter of credit shall be automatically extended unless
the issuer provides notice of cancellation at least 90 days before the current
expiration date. Under the terms of the letter of credit, the 90 days shall
begin on the date when both the owner or operator and the executive director
have received the notice, as evidenced by the return receipts; and
(2)
in accordance with §37.231(h) of this title, the executive
director shall draw on the letter of credit within 30 days after receipt of
notice from the issuing institution that the letter of credit will not be
extended, or within 60 days of an extension, if the owner or operator fails
to establish and obtain approval of such alternate financial assurance from
the executive director.
(d)
A statement of intent may be used by a governmental entity
subject to this subchapter. The statement of intent shall be subject to the
executive director's approval and shall include the following:
(1)
a statement that funds will be made immediately available
upon demand by the executive director;
(2)
the signature of an authorized official who has the authority
to bind the governmental entity into a financial obligation, and has the authority
to sign the statement of intent;
(3)
name of facility(ies), license number, and physical and
mailing addresses; and
(4)
corresponding current cost estimates.
(e)
An owner or operator may satisfy the requirements of financial
assurance by establishing an external sinking fund as specified in this subsection.
An external sinking fund has two components: a sinking fund account and a
financial assurance mechanism such that the total of both equals, at all times,
the current cost estimate. A sinking fund account is an account segregated
from the owner's or operator's assets and is outside the owner's or operator's
administrative control. As the value of the sinking fund account increases,
the value of the second financial assurance mechanism decreases. When the
external sinking fund account is equal to the current cost estimate, the second
financial assurance mechanism will no longer be required to be maintained.
(1)
An external sinking fund account shall be approved by the
executive director and administered by a third party that is regulated and
examined by a federal or state agency.
(2)
The external sinking fund is established and maintained
by setting aside funds periodically, at least annually.
(f)
An owner or operator may satisfy the requirements of financial
assurance by obtaining insurance that conforms to the requirements of this
subsection, in addition to the requirements specified in Subchapters A and
B of this chapter (relating to General Financial Assurance Requirements and
Financial Assurance Requirements for Closure, Post Closure, and Corrective
Action), and submitting an originally-signed endorsement to the insurance
policy to the executive director.
(1)
At a minimum, the insurer on the policy must be authorized
to transact or be a surplus lines insurer eligible to engage in the business
of insurance in Texas and have a minimum financial strength rating of "A"
and a financial size category of "XV" as assigned by the A.M. Best Company.
(2)
The insurance policy must designate the commission as an
additional insured.
(3)
The owner or operator must maintain the policy in full
force and effect until the executive director consents to termination of the
policy. Failure to pay the premium, without substitution of alternate financial
assurance as specified in this subchapter, shall constitute a violation of
these regulations, warranting such remedy as the executive director deems
necessary. Such violation shall be deemed to begin upon receipt by the executive
director of a notice of future cancellation, termination, or failure to renew
due to nonpayment of the premium, rather than upon the date of expiration
of the policy.
(4)
The policy must provide that the insurer may not cancel,
terminate, or fail to renew the policy except for failure to pay the premium.
The automatic renewal of the policy shall, at a minimum, provide the insured
with the option of renewal at the face amount of the expiring policy. If there
is a failure to pay the premium, the insurer may elect to cancel, terminate,
or fail to renew the policy by sending notice by certified mail to the owner
or operator and the executive director. Cancellation, termination, or failure
to renew may not occur, however, during 120 days beginning with the date of
receipt of the notice by both the executive director and the owner or operator,
as evidenced by the return receipts. The policy must also provide that the
insurer shall pay the face amount of the insurance policy into the perpetual
care account if the executive director does not approve acceptable replacement
financial assurance within 90 days of receiving notice by certified mail from
the insurer of its election to cancel, terminate, or not renew the policy.
(5)
The insurance policy may not contain an exclusion for intentional,
willful, knowing, or deliberate noncompliance with a statute, regulation,
order, notice, or government instruction.
(6)
The wording of the endorsement to the insurance policy
must be identical to the wording specified in §37.9052 of this title
(relating to Endorsement).
(7)
The insurance policy must be issued for a face amount at
least equal to the current cost estimate for closure, post closure, or corrective
action, except when a combination of mechanisms are used in accordance with §37.41
of this title (relating to Use of Multiple Financial Assurance Mechanisms).
Actual payments by the insurer shall not change the face amount, although
the insurer's future liability shall be lowered by the amount of the payments.
(8)
The insurance policy must guarantee that funds shall be
available to provide for closure, post closure, or corrective action of the
facility. The policy shall also guarantee that once closure, post closure,
or corrective action begins, the issuer shall be responsible for paying out
funds, up to an amount equal to the face amount of the policy, upon the direction
of the executive director, to such party or parties as the executive director
specifies.
(9)
An owner or operator or any other person authorized to
perform closure, post closure, or corrective action may request reimbursement
for closure, post closure, or corrective action expenditures by submitting
itemized bills to the executive director. The request shall include an explanation
of the expenses and all applicable itemized bills. The owner or operator may
request reimbursement for partial closure only if the remaining value of the
policy is sufficient to cover the maximum costs of closing the facility over
its remaining operating life. Within 60 days after receiving bills for closure,
post closure, or corrective action activities, the executive director shall
determine whether the closure, post closure, or corrective action expenditures
are in accordance with the approved closure, post closure, or corrective action
activities or are otherwise justified and, if so, shall instruct the insurer
to make reimbursement in such amounts as the executive director specifies
in writing. If the executive director has reason to believe that the maximum
cost of closure, post closure, or corrective action over the remaining life
of the facility will be greater than the face amount of the policy, the executive
director may withhold reimbursement of such amounts as deemed prudent until
the executive director determines, in accordance with Subchapters A and B
of this chapter, that the owner or operator is no longer required to maintain
financial assurance requirements for closure, post closure, or corrective
action of the facility. If the executive director does not instruct the insurer
to make such reimbursements, the executive director shall provide the owner
or operator with a detailed written statement of reasons.
(10)
Commencing on the date that liability to make payments
pursuant to the policy accrues, the insurer will thereafter annually increase
the face amount of the policy. Such increase must be equivalent to the face
amount of the policy, less any payments made, multiplied by an amount equivalent
to 85% of the most recent investment rate or of the equivalent coupon issue
yield announced by the United States Treasury for 26-week Treasury securities.
(11)
Upon notification by the executive director that the institutional
control period has begun, the insurer will pay the remaining face amount of
the policy to the perpetual care account.
§37.9052.Endorsement.
An endorsement to the insurance policy for closure, post closure, or
corrective action, as specified in §37.9050(f) of this title (relating
to Financial Assurance Mechanisms), must be worded as specified in the Endorsement
in this section, except that the instructions in parenthesis are to be replaced
with the relevant information and the parenthesis deleted.
§37.9059.Financial Assurance Requirements for Liability.
(a)
Owners or operators required to demonstrate financial assurance
for liability must comply with Subchapters A, E, F, and G of this chapter
(relating to General Financial Assurance Requirements; Financial Assurance
Requirements for Liability Coverage; Financial Assurance Mechanisms for Liability;
and Wording of the Mechanisms for Liability).
(b)
An owner or operator subject to this section must demonstrate
financial assurance for bodily injury and property damage to third parties
caused by sudden accidental occurrences arising from operations of the compact
waste disposal facility and/or federal facility waste disposal facility. The
owner or operator must have and maintain liability coverage for sudden accidental
occurrences in the amount of at least $1 million per occurrence with an annual
aggregate of at least $2 million, exclusive of legal defense costs.
(c)
An owner or operator subject to this section must demonstrate
financial assurance for bodily injury and property damage to third parties
caused by non-sudden accidental occurrences arising from operations of the
compact waste disposal facility and/or federal facility waste disposal facility.
An owner or operator must have and maintain liability coverage for non-sudden
accidental occurrences in the amount of at least $3 million per occurrence
with an annual aggregate of at least $6 million, exclusive of legal defense
costs.
(d)
Owners or operators who must meet the requirements of this
section may combine the required per-occurrence coverage levels for sudden
and non-sudden accidental occurrences into a single per-occurrence level,
and combine the required annual aggregate coverage levels for sudden and non-sudden
accidental occurrences into a single annual aggregate level. Owners or operators
who combine coverage levels for sudden and non-sudden accidental occurrences
must maintain liability coverage in the amount of at least $4 million per
occurrence and $8 million annual aggregate.
(e)
Owners or operators subject to this subchapter may use
any of the mechanisms specified in Subchapter F of this chapter except for
the Financial Test for Liability and the Corporate Guarantee for Liability
to demonstrate financial assurance for sudden and for non-sudden liability.
(f)
Owners or operators required to provide liability coverage
may not use a claims-made insurance policy as security unless the applicant
places in escrow, as provided by the executive director, an amount sufficient
to pay an additional year of premiums for renewal of the policy by the state
on notice of termination of coverage. The escrow account must be funded at
the same time the insurance policy becomes effective.
(g)
The required limits of coverage in this subsection are
distinct from any other liability requirements under this chapter.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308729
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
30 TAC §37.9055
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code, §5.103, concerning Rules,
and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The repeal is also adopted under Texas
Health and Safety Code, Chapter 401, concerning Radioactive Materials and
Other Sources of Radiation, also known as the Texas Radiation Control Act; §401.011,
concerning Radiation Control Agency, which authorizes the commission to regulate
and license the disposal of radioactive substances; §401.051, concerning
Adoption of Rules and Guidelines, which authorizes the commission to adopt
rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of low-level radioactive waste; and §401.412,
concerning Commission Licensing Authority, which authorizes the commission
to issue licenses for the disposal of radioactive substances.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308730
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
Subchapter M. PUBLIC NOTICE FOR RADIOACTIVE MATERIAL LICENSES
30 TAC §§39.703, 39.707, 39.709
The Texas Commission on Environmental Quality (commission)
adopts amendments to §§39.703, 39.707, and 39.709. Section 39.707
is adopted
with change
to the proposed text
as published in the August 22, 2003 issue of the
Texas Register
(28 TexReg 6719). Sections 39.703 and 39.709 are adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The changes adopted in this chapter are part of a larger rulemaking action
to revise the commission's radiation control rules. The primary purpose of
the adopted 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). Changes to implement HB 1567, relating
to the licensing of low-level radioactive waste disposal, that are specific
to this chapter include changes in procedures for providing notice of draft
license and opportunity for hearing. Some additional changes outside the scope
of the bill implementation are adopted to provide corrections to rule section
titles, improve grammar, and correct typographical errors.
SECTION BY SECTION DISCUSSION
Section 39.703, Notice of Completion of Technical
Review
The amendment to §39.703(b) corrects the title for 30 TAC Chapter
336, Subchapter F, Licensing of Alternative Methods of Disposal of Radioactive
Material.
Section 39.707, Published Notice
The amendment to §39.707(a) corrects the title for Chapter 336, Subchapter
F. The amendment to §39.707(b) changes the requirements for providing
published notice of the draft license and opportunity for hearing. The amendment
provides that notice shall be published in a newspaper of general circulation
in each county in which the proposed disposal facility site is located. The
amendment also requires that the draft license and application materials be
available for review at the offices of the commission and in a public place
in the county or counties in which the proposed disposal facility site is
located. Public places may include a county courthouse, public library, city
hall, or other public location where members of the public may have access
to the materials for review and photocopying. The amendment conforms with
new statutory requirements given in Texas Health and Safety Code, §401.238.
In response to comment, §39.707(c) was modified to clarify that HB 1567
requires
Texas Register
publication of the
initial notice of draft license and opportunity to comment in addition to
Section 39.709, Notice of Contested Case Hearing
on Application
The amendment to §39.709(a) deletes the acronym "SOAH" and substitutes
"the State Office of Administrative Hearings" because the term is only used
once in the section. The amendment to §39.709(b) corrects the title for
Chapter 336, Subchapter F.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 that statute.
"Major environmental rule" means a rule, the specific intent of which is to
protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The amendments to
Chapter 39 are not anticipated to adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state, because
there are no significant requirements added to the noticing of draft licenses
for radioactive material disposal facilities. The rulemaking action implements
legislative requirements in HB 1567, including a change in the publication
of notice of a draft license issued under Chapter 336, Subchapter H, Licensing
Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste.
The rulemaking also makes non-substantive changes to Chapter 39 to correct
citations to other laws.
Furthermore, the 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 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 rules do not exceed the standards set by federal law.
The 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
Texas Health and Safety Code, Chapter 401, as provided in HB 1567. The rules
amendments change the requirements for newspaper notice in accordance with
the requirements of HB 1567.
The 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, which 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,
the
NRC requirements must be implemented to maintain a compatible state program
for protection against hazards of radiation. The rule amendments do not exceed
the NRC requirements nor do they exceed the requirements for retaining status
as an "Agreement State."
The rules are adopted 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.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an assessment
of whether Texas Government Code, Chapter 2007, is applicable. The rulemaking
action implements legislative requirements in HB 1567, including a change
in the publication of notice of a draft license issued under Chapter 336,
Subchapter H. The amendments to Chapter 39 affect only the procedural requirements
for issuing notices of draft licenses. The rulemaking also makes non-substantive
changes to Chapter 39 to correct citations to other laws.
Promulgation and enforcement of these rules will be neither a statutory
nor a constitutional taking of private real property. The subject regulations
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 rules implement non-substantive
changes to existing rules and reflect a change in the procedural requirements
for the notice of draft licenses provided in HB 1567.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking action and determined that the
rules are neither identified in, nor will their amendment affect, any action/authorization
identified in Coastal Coordination Act Implementation Rules in 31 TAC §505.11,
relating to Actions and Rules Subject to the Coastal Management Program. Therefore,
the rulemaking action is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
Written and/or oral comments were received from the Advocates for Responsible
Disposal in Texas (ARDT); the American Electric Power (AEP); the League of
Women Voters of Dallas (LWV-Dallas); the League of Women Voters of Texas (LWV-Texas);
the Nuclear Regulatory Commission (NRC); the South Texas Project Nuclear
Operating Company (STP); the Texas Department of Insurance (TDI); the Texas
Radiation Advisory Board (TRAB); Texas Radiation Online (TRO); State Representative
Lon Burnam representing the Texas Radioactive-Waste Defense Fund (TRWDF);
TXU Energy (TXU); US Ecology, Incorporated (US Ecology); Hance Scarborough
Wright Woodward & Weisbart, L.L.P., and BakerBotts, L.L.P., on behalf
of Waste Control Specialists (WCS); and 237 individuals. One individual endorsed
the recommendations submitted by the TRWDF, and TRO agreed with the concerns
voiced by the Sierra Club. The TRWDF includes the Lone Star Chapter of the
Sierra Club, Public Citizen, Sustainable Energy & Economic Development,
the LWV-Texas, and the Nuclear Information and Resource Service.
RESPONSE TO COMMENTS
General Comments
ARDT, AEP, TRAB, and TXU generally supported the proposed rules. One individual
stated opposition to the weak regulations as currently developed. LWV-Dallas,
LWV-Texas, TRO, TRWDF, and 234 individuals urged the commission to establish
regulations that are second to none or rules that are more stringent than
the proposed rules. ARDT, AEP, LWV-Dallas, LWV-Texas, NRC, STP, TDI, TRAB,
TRO, US Ecology, TRWDF, WCS, TXU, and 237 individuals raised issues or suggested
changes to the rules.
Access to Information - Application and Staff
Analysis
TRWDF stated that the public's ability to understand and participate in
licensing proceedings turns on meaningful access to the details of the license
and renewal and amendment applications and access to the commission's staff
analyses that support the agency's decisions. All applications for the initial
license and for subsequent amendments and renewals of the license, as well
as the commission staff analyses of those applications, should be made available
on the Internet in a web-browser-accessible format.
LWV stated that the complete permit application and supporting materials
should be posted on the commission's Web site and by a method other than the
web.
211 individuals stated that the public should have access to all documentation
associated with the licensing, building, and operation of a disposal facility.
The commission is committed to ensuring meaningful public participation
in its decision-making processes. The commission strives to provide clear,
concise, and accurate information related to all applicable licensing and
certification procedures via written materials and the official Web site.
In response to these comments, new §336.716(j) has been added to require
that all records maintained by the licensee in accordance with §336.740
are public information, unless otherwise exempt from public disclosure. Section
39.707 requires that upon completion of technical review and preparation of
the draft license, whether for a new license, renewal, or major amendment,
that the draft license be available for review on the commission's Web site
and the draft license and application materials be available for review at
the commission offices and in a public place in the county or counties in
which the proposed facility site is located. At the commission agenda on December
17, 2003, 336.805(4) was added to require complete copies of applications
to be available on a publicly accessible Web site with a Web address link
for application materials provided to the commission. The application and
supporting materials will continue to be made available both at the commission
offices and in a public place in the county or counties in which the proposed
site is located.
Access to Information - Licensee Records
TRWDF stated that by allowing a non-public entity to operate the facility,
facility-related records will be shielded from public view. The proposed regulations
should be modified to specify, as a license-application requisite, the license
applicant's commitment to public information access, generally paralleling
that available from public entities under the Texas Public Information Act,
to facility specific information.
211 individuals stated that the public should have access to all documentation
associated with the licensing, building, and operation of a disposal facility.
208 individuals stated that the facility was originally to be state-owned
and operated, and expressed a belief that the principles of open government
should still apply to a site with such serious implications for the state.
In HB 1567, the Texas Legislature repealed Texas Health and Safety Code, §401.203,
which provided that a low-level radioactive waste (LLRW) disposal license
may only be issued to a public entity. The legislature intended to allow non-public
entities to operate a LLRW disposal facility. While it is possible that not
all of a non-public entity's business records would be considered public information
under the Texas Public Information Act, the commission disagrees that key
facility records of a non-public entity will be inaccessible to the public.
The commission's rules require that a variety of information be maintained
for or submitted to the commission. Any records required to be maintained
for the commission and any records submitted to the commission, not otherwise
exempt from disclosure, would be considered public information. In response
to these comments, new §336.716(j) has been added to require that all
records maintained by the licensee in acordance with §336.740 are public
information, unless otherwise exempt from public disclosure. Specifically,
Texas Government Code, §552.002, provides that "public information" means
information that is collected, assembled, or maintained under a law or ordinance
or in connection with the transaction of official business of a governmental
body or for a governmental body and the governmental body owns the information
or has a right of access to it.
Public Notice/Participation - Proposed Rules
One individual commented that most people in the state were unaware of
the public comment period for this policy. The individual only learned of
the issue before the end of the comment period and was challenged to respond
both in terms of time and available information. One individual stated that
given the impact of these rules, there needs to be much more public review
and discussion.
Texas Government Code, §2001.023, relating to notice of a proposed
rule, provides that a state agency shall give at least a 30-day notice of
its intention to adopt a rule before it adopts the rule, and that the notice
of the proposed rule be published in the
Texas Register
. The commission complied with the requirements in the August 22, 2003
issue of the
Texas Register
(28 TexReg 6719).
Moreover, the commission published notice of the proposed rules in several
newspapers throughout the state: the
Amarillo Globe-News
on August 14, 2003, the
Austin American-Statesman
on August 11, 2003, the
Fort Worth Star-Telegram
on August 10, 2003, the
Houston Chronicle
on August 11, 2003, the
Lubbock Avalanche-Journal
on August 10, 2003, and the
Odessa American
on August 12, 2003.
Public Notice/Participation - Adequacy of Public
Participation In General
TRO stated that the opportunity for public comment is, in some cases, in
conflict with the federal rules at 10 Code of Federal Regulations Part 2,
and is too short, particularly regarding the technical review comment period
of ten days.
TRWDF stated that the current rules only allow the public 30 days in which
to comment on the draft license and on license amendments and renewals. This
time period is so short that it deprives the public of a meaningful role in
decision-making, unless the public has forewarning. TRWDF stated that all
administratively complete applications for licenses, renewals, and amendments
should be noticed by newspaper publication.
TRWDF stated that for nearly all other air, water, solid waste, and hazardous
waste permits and permit amendments, members of the public are given newspaper
notice and an opportunity to comment on preliminary decisions. The proposed
rules should be modified at §39.703 to provide for a notice and comment
process that mirrors the process for other applications.
LWV-Texas and LWV-Dallas stated that there should be the opportunity for
any resident of Texas to request to be on a mailing list that receives notice
and the opportunity to respond is greater than the ten days after mailing
that is currently listed in the rules.
LWV-Texas and LWV-Dallas stated that since mixed waste will be accepted
at the LLRW site, the permitting process should offer the same level of public
involvement as the rules for hazardous waste disposal sites.
211 individuals stated that the rules must establish a large and vigorous
role for public participation in this critical process, and that if Texas
is going to open its borders to vast amounts of dangerous materials, there
should be a citizen oversight committee. One individual urged the commission
to include citizens of West Texas, who will have to live with what the commission
does, in the whole process. One individual stated that public scrutiny is
vital and this issue cannot be rushed through without risking the health of
this and future generations of Texans.
LWV-Texas and LWV-Dallas supported the existence of a citizen oversight
committee and stated that the Keystone education project is a good model (for
community involvement in the permitting process). LWV-Texas and LWV-Dallas
expressed a belief that the rules for licensing an LLRW facility should include,
at a minimum, the level and types of public participation found in rules governing
hazardous waste disposal site permits and air permits. LWV-Texas and LWV-Dallas
implored the commission to promote public participation in decision-making
throughout the process of permitting and subsequent monitoring of any LLRW
facility established in Texas. LWV-Texas and LWV-Dallas requested that the
commission allow citizens to voice their concerns at the beginning of the
permit application process.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission proposed no changes
to §39.403 and §39.405, relating to Applicability and General Notice
Provisions, respectively. Nevertheless, the commission responds as follows.
The Texas Radiation Control Act provides specific time requirements for application
processing and specific public notice requirements. The commission rules were
written in accordance with those statutory requirements.
Section 336.809 provides notice of an administratively complete application.
The executive director shall conduct at least one public meeting in the county
or counties where a facility is proposed to be located to receive public comments
on the administratively complete application(s). The applicant shall publish
notice of the public meeting once each week during the three weeks preceding
the public meeting. Notice of the meeting shall also be mailed to certain
specified entities and persons. The notice shall include, among other things,
the location and availability of the application.
Upon completion of the technical review of an application for a new license,
major amendment, or renewal of a license issued under Chapter 336, or for
a minor amendment issued under Chapter 336, Subchapter H, notice shall be
mailed and published in the
Texas Register
and
in the newspaper of largest circulation in the county in which the facility
is located or proposed to be located. Section 39.707 requires that the published
notice specify the requirements for requesting a contested case hearing and
include that the draft license be available for review on the commission's
Web site and the draft license and application materials be available for
review at the commission offices and in a public place in the county or counties
in which the proposed site is located. The deadline to file public comment,
protests, or hearing requests is 30 days after publication. Section 39.707(c)
has been modified to clarify that HB 1567 requires
Texas Register
publication of the initial notice of draft license and
opportunity to comment in addition to
Texas Register
publication of amendments to an existing license.
Section 39.703(b) provides that for any application for a minor amendment
to a license issued under Chapter 336, Subchapter F or Subchapter G, notice
shall be mailed. The deadline to file public comment, protests, or hearing
requests is ten days after mailing. The ten-day notice requirement does not
apply in the case of the license application for an LLRW disposal facility
under Chapter 336, Subchapter H.
Section 39.407 provides that the commission's Office of the Chief Clerk
shall maintain a mailing list of persons requesting notice. Thus, once on
the mailing list, persons other than adjacent property owners can receive
all of the mailed notices relating to an application.
The rules regarding the processing of public comments for LLRW applications
are subject to 30 Texas Administrative Code (TAC), Chapter 55, Subchapter
G, including responding to public comment. The commission made no change in
response to these comments.
Public Notice/Participation - License Transfer
TRWDF stated that the transfer of a radioactive waste disposal license
should in all cases require full public notice and participation.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission proposed no changes
to §39.15 and §39.403, relating to Public Notice Not Required for
Certain Types of Applications, and Applicability, respectively. Nevertheless,
the commission responds as follows. Texas Health and Safety Code, §401.119,
provides that a license issued by the department or commission may be assigned
only to a person qualified under the rules of the issuing agency. 30 TAC §305.62(c)(1),
provides that changes in the operator of the facility and transfers of the
license to the custodial agency are major amendments.
Section 39.703 provides that upon completion of technical review of a major
amendment, notice shall be mailed and published. The comment period is 30
days. Section 39.707 requires that the published notice specify the requirements
for requesting a contested case hearing and requires that the draft license
be available for review on the commission's Web site and the draft license
and application materials be available for review at the commission offices
and in a public place in the county or counties in which the proposed site
is located.
30 TAC Section 336.721 provides that following closure and the period of
post-closure observation and maintenance, the licensee may apply for a major
amendment to transfer the license to the custodial agency so long as certain
findings are made by the commission. Before a licensee may close a facility,
it must file a license termination plan with the commission. Section 39.713
provides that, upon the receipt of a license termination plan or decommissioning
plan from the licensee, the commission shall notify and solicit comments from
local and state governments in the vicinity of the site; and the United States
Environmental Protection Agency for cases where the licensee proposes to release
a site under §336.609; publish a notice in the
Texas Register
and in a forum, such as local newspapers, letters to
state or local organizations, or other appropriate forum, that is readily
accessible to individuals in the vicinity of the site; and solicit comments
from affected parties.
The commission made no changes in response to these comments.
Public Notice/Participation - Minor Amendment
TRWDF stated that the proposed rules exclude minor amendments from published
notice and the definition of minor is ambiguous. The rules should be amended
to either: 1) eliminate the distinction between minor and non-minor amendments;
or 2) specify a small universe of changes that may be characterized as minor.
TRWDF stated that if the minor amendment category of license amendments
is retained, then a minimum of 45 days in which to comment on preliminary
decisions or minor amendment applications should be allowed.
Changes to the minor amendment notice sections were not proposed as part
of this rulemaking action. The rules remain as follows: 1) for a minor amendment
issued under Chapter 336, Subchapter H, notice shall be mailed and published
and the deadline to file public comment, protests, or hearing requests is
30 days after publication; and 2) for a minor amendment to a license issued
under Chapter 336, Subchapter F or Subchapter G, notice shall be mailed and
the deadline to file public comment, protests, or hearing requests is ten
days after mailing. The commission made no changes in response to these comments.
Public Notice/Participation - Exemptions
TRWDF stated that preliminary decisions on exemptions should be publicly
noticed and subject to a 45-day comment period.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission proposed no changes
to §336.5, relating to Exemptions. Nevertheless, the commission responds
that applications for exemptions are subject to 30 TAC Chapter 90, which provides
that the applicant publish notice at least once in a newspaper of general
circulation in the county in which the facility is located or proposed to
be located and that there is a 30-day comment period. The commission made
no changes in response to this comment.
Public Notice/Participation - Newspaper Notice
LWV-Dallas stated that the proposed rules in Chapter 39, which only require
notice in the county in which the facility would be located, are inadequate.
LWV-Dallas and LWV-Texas stated that rules should include the requirement
that it is the responsibility of the applicant to provide notice statewide.
TRWDF stated that all notices should be published in major newspapers throughout
the state. The notices should be published in newspapers in Dallas, Houston,
San Antonio, Austin, El Paso, Lubbock, Midland-Odessa, and Amarillo. Notices
should also be required in New Mexico, Colorado, and Oklahoma newspapers to
the extent the laws of those states would require newspaper notice of an in-state
hazardous waste facility located along the Texas border.
The rules contain no changes to the location of newspapers for published
notice. The publication requirement in §39.707(b) continues to be the
newspaper of largest general circulation in the county in which the facility
is located or proposed to be located. This requirement is consistent with
Texas Health and Safety Code, §401.114, and Texas Government Code, Chapter
313. The commission made no change in response to these comments.
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendments are also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation (also known as the Texas Radiation Control
Act); §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of low-level radioactive waste; and §401.412,
concerning Commission Licensing Authority, which authorizes the commission
to issue licenses for the disposal of radioactive substances.
§39.707.Published Notice.
(a)
For applications under Chapter 336, Subchapter F of this
title (relating to Licensing of Alternative Methods of Disposal of Radioactive
Material) or Subchapter G of this title (relating to Decommissioning Standards),
when notice is required to be published under this subchapter, the applicant
shall publish notice at least once in a newspaper of largest general circulation
in the county in which the facility is located.
(b)
For applications for a new license, renewal license, or
major amendment to a license issued under Chapter 336, Subchapter H of this
title (relating to Licensing Requirements for Near-Surface Land Disposal of
Low-Level Radioactive Waste), on completion of technical review and preparation
of the draft license, the commission shall publish, at the applicant's expense,
notice of the draft license and specify the requirements for requesting a
contested case hearing by a person affected. The notice shall include a statement
that the draft license is available for review on the commission's Web site
and that the draft license and application materials are available for review
at the offices of the commission and in a public place in the county or counties
in which the proposed disposal facility site is located. Notice shall be published
in a newspaper of general circulation in each county in which the proposed
disposal facility site is located.
(c)
In addition to published notice requirements in subsection
(b) of this section, for an initial notice of draft license and opportunity
to comment and for any subsequent license amendment of a license under Chapter
336, Subchapter H of this title, the chief clerk shall publish notice once
in the
Texas Register
.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308731
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
Subchapter F. EMISSIONS EVENTS AND SCHEDULED MAINTENANCE, STARTUP, AND SHUTDOWN ACTIVITIES
3.
OPERATIONAL REQUIREMENTS, DEMONSTRATIONS, AND ACTIONS TO REDUCE EXCESSIVE EMISSIONS
30 TAC §§101.221 - 101.223
The Texas Commission on Environmental Quality (agency or
commission) adopts the amendments to Subchapter F, Emissions Events and Scheduled
Maintenance, Startup, and Shutdown Activities, Division 3, Operational Requirements,
Demonstrations, and Actions to Reduce Excessive Emissions, §§101.221
- 101.223. Sections 101.221 - 101.223 are adopted
with changes
to the proposed text as published in the July 25, 2003,
issue of the
Texas Register
(28 TexReg 5787).
These amendments are being adopted as revisions to the Texas state implementation
plan (SIP) which will be submitted to the United States Environmental Protection
Agency (EPA).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Sections 101.221 - 101.223 were adopted by the commission on August 21,
2002 for the primary purpose of incorporating the statutory requirements of
House Bill (HB) 2912, §5.01 and §18.14, 77th Legislature, 2001,
into the commission's rules. Sections 101.221 - 101.223 were submitted to
EPA on September 3, 2002 as revisions to the Texas SIP. The EPA promulgated
a notice of deficiency for the Texas Title V Operating Permits Program on
January 7, 2002, and proposed approval in the July 9, 2003, issue of the
In addition to deleting repetitive language, this rulemaking action deletes
the phrase "exempt from compliance with emissions limitations" in these three
sections. The term "exemption" has been used in the commission rules regarding
excess emissions since 1979. In enforcement cases for exceedances of emissions
and opacity limits, the long-standing practice has been to conduct case-by-case
reviews and to use enforcement discretion as appropriate, and beginning in
2000, by using specific criteria incorporated in these rules in §101.11.
Section 101.11 was subsequently repealed and the criteria were revised and
incorporated into §101.222 on August 21, 2002. The rules have been interpreted
by the commission as allowing for the use of enforcement discretion rather
than an automatic exemption from compliance. Although the commission's disposition
of the emissions related to these events is changing in part, this rulemaking
action will not change evaluation of the demonstration criteria to determine
if additional action is required, nor revise any of the demonstration criteria
in §101.222. Rather, the amendments more precisely specify the commission's
enforcement policy regarding excess emissions so the rules can be approved
as a revision to the SIP. The amendments state that certain emissions events
and excess opacity events are subject to an affirmative defense and that emissions
and opacity events resulting from scheduled maintenance, startup, and shutdown
activities are required to be included in certain permits or meet opacity
limits set by commission rule unless the owner or operator proves the applicable
criteria. There is no automatic exemption from compliance with emissions and
opacity limits, and these amendments are adopted to eliminate any confusion
as to whether there is an automatic exemption.
In previous commission rulemakings, EPA expressed concern regarding the
use of the term "exemption" in these rules. Regardless of the use of the term
"exemption," the commission has never considered that applicable emissions
and opacity limits are automatically suspended during emissions events or
scheduled maintenance, startup, and shutdown activities; rather, the commission
has historically exercised discretion in the method of addressing those exceedances
when the regulated entity demonstrated it met the criteria for the event.
The commission's August 21, 2002 adoption of the previous changes to these
rules, found in the September 6, 2002, issue of the
Texas Register
(27 TexReg 8499 and 8524) incorporated the concepts
of "excessive" and "chronic" emissions. The preamble also explained the historical
enforcement practice and how satisfaction of the criteria operates as an affirmative
defense in certain enforcement actions, by stating: "The commission will review
all emissions events against the requirements of §101.222(a) to determine
if the emissions events are excessive, and therefore, not exempt. Facilities
with excessive emissions events must comply with the requirements in §101.223
upon notification by the executive director. Any emissions events which are
not excessive, but do not satisfy all the criteria in §101.222(b) are
not exempt and may be subject to an enforcement action, including penalties
and appropriate requirements to assure compliance with the national ambient
air quality standards and prevention of significant deterioration increments
requirements and to minimize the recurrence of similar events in the future.
The commission's past experience has been that the exemption criteria now
located in §101.222(b) and (c) for emissions events and scheduled maintenance,
startup, and shutdown activities operate much like an affirmative defense
in enforcement actions." Therefore, owners and operators have had, and will
continue to have, an opportunity to mitigate enforcement that may be taken
by proving the criteria.
This rulemaking action will provide how emissions events and scheduled
maintenance, startup, and shutdown activities are treated where an owner or
operator has proved the required demonstration criteria. Further, owners and
operators remain subject to administrative technical orders and injunctive
relief even if they prove the applicable criteria. It also provides that emissions
and opacity events resulting from scheduled maintenance, startup, and shutdown
activities are required to be included in certain permits or meet opacity
limits set by commission rule unless the owner or operator has proved the
demonstration criteria. This rulemaking also retains the requirement that
the burden of proof is on the owner or operator to prove it meets the criteria
in §101.222 when addressing exceedances of emissions or opacity limits.
The enforcement practice stated in these rules specifically applies only to
unauthorized emissions.
The scope of this rulemaking is limited to changes made to obtain federal
approval of the emissions events rules as part of the Texas SIP, and which
more precisely state which emissions events are subject to an affirmative
defense and when emissions and opacity events resulting from scheduled maintenance,
startup, and shutdown activities are required to be included in certain permits
or meet opacity limits set by commission rule. The adopted amendments will
not limit EPA authority to pursue enforcement. Although EPA and citizens are
bound by the demonstration criteria in §101.222, assessments made by
the executive director or commission under §101.222, which are based
on proof provided by the regulated entity and an independent analysis of the
facts, will not bar actions regarding exceedances of emissions limitations
by EPA or citizens under 42 United States Code, §7401,
et seq
. (also known as the Federal Clean Air Act).
SECTION BY SECTION DISCUSSION
The adopted revisions to §§101.221 - 101.223 delete references
to an exemption from compliance and ensure that the rules are not read to
provide an automatic exemption from compliance with emissions limitations.
They also specify that an affirmative defense is available for emissions events
and excess opacity events, with the exception of claims for administrative
technical orders and actions for injunctive relief, if the owner or operator
proves the criteria listed in §101.222(b) and (d). The amendments also
provide that emissions and opacity events resulting from scheduled maintenance,
startup, and shutdown activities are required to be included in certain permits
or meet opacity limits set by commission rule, unless the owner or operator
proves the criteria listed in §101.222(c) and (e). The burden of proof
remains on the regulated entity to prove the criteria. The enforcement practice
stated in these rules specifically applies only to unauthorized emissions.
This rulemaking action reflects current enforcement practice, which already
involves case-by-case reviews of the demonstration criteria. Administrative
changes are also adopted throughout the sections to conform to Texas Register
requirements.
Section 101.221--Operational Requirements
The amendment to §101.221(e) deletes the sentences "The executive
director or any air pollution program with jurisdiction may request documentation
of the criteria in §101.222 of this title at their discretion. Satisfying
the burden of proof is a condition to unauthorized emissions being considered
not excessive and exempt from compliance with authorized emission limitations
under §101.222 of this title." The change to §101.221(e) deletes
repetitive language within this subsection with regard to burden of proof,
and ensures consistency with the change to the rule language adopted in §101.222.
As more fully explained in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS
FOR THE ADOPTED RULES section, this rulemaking action reflects existing commission
practice with regard to enforcement actions regarding excess emissions, and
the requirement that the owner or operator has the burden of proving all the
criteria identified in §101.222.
New subsection (g) provides that this section expires on June 30, 2005.
This will allow the commission time to review the rule and determine whether
to continue it as adopted.
Section 101.222--Demonstrations
The amendment to §101.222(a) deletes the sentence "Emissions events
determined to be excessive are not exempt from compliance with emission limitations."
This amendment is necessary to eliminate any confusion as to whether some
emissions are entitled to an automatic exemption, and is consistent with the
other changes in §101.222.
The amendments to §101.222(b) delete the sentence "Emissions events
determined not to be excessive by the executive director after applying the
criteria in subsection (a) of this section are exempt from compliance with
emissions limitations if the owner or operator satisfies all of the following
criteria." This is replaced with language which provides that an affirmative
defense is available for all claims in enforcement actions for these events,
other than claims for administrative technical orders and actions for injunctive
relief for which the owner or operator proves the criteria listed in the rule.
The affirmative defense applies only to the non-excessive emissions event,
and does not apply to subsequent or independent obligations, such as recordkeeping
or reporting. This is necessary to eliminate any confusion as to whether emissions
events are entitled to an automatic exemption.
The amendments to §101.222(c) delete the sentence "Emissions from
any scheduled maintenance, startup, or shutdown activity are exempt from compliance
with emission limitations, if the owner or operator satisfies all of the following
criteria:". This is replaced with language which provides that these emissions
are required to be included in certain permits unless the owner or operator
proves the criteria in subsection (c)(1) - (9). The commission finds that
if the owners and operators prove the criteria in subsection (c)(1) - (9),
the emissions from the scheduled maintenance, startup, or shutdown activity
are at a level below which certain permits are required as provided by Texas
Health and Safety Code, §382.05101. The criteria in subsection (c)(1)
- (9) set strict requirements for operating the control equipment and sufficiently
provide for the protection of public health and welfare. The commission therefore
finds that permitting these events under the specific authority listed would
not provide greater air quality benefits if all of the criteria are proven.
This is necessary to eliminate any confusion as to whether scheduled maintenance,
startup, or shutdown activities are entitled to an automatic exemption.
The amendments to §101.222(d) delete the sentence "Excess opacity
events that are subject to §101.201(e) of this title, and other opacity
events where the owner or operator did not experience an emissions event,
are exempt from compliance with applicable opacity limitations if the owner
or operator satisfies all of the following criteria:." This is replaced with
language which provides that an affirmative defense is available for all claims
in enforcement actions for excess opacity events if the owner or operator
proves the criteria in subsection (d)(1) - (9). The exception to this is for
administrative actions for technical orders and civil actions for injunctive
relief. This is necessary to eliminate any confusion as to whether excess
opacity events are entitled to an automatic exemption.
The amendments to §101.222(e) delete the sentence "Excess opacity
events or other opacity events where the owner or operator did not experience
an emissions event, that result from any scheduled maintenance, startup, or
shutdown activity are exempt from compliance with applicable opacity limitations
if the owner or operator satisfies all of the following criteria:." This is
replaced with language which provides that excess opacity events are subject
to the opacity requirements of 30 TAC §111.111(a), concerning Requirements
for Specified Sources, unless the owner or operator proves the criteria in
subsection (e)(1) - (9). The criteria in subsection (e)(1) - (9) set strict
requirements for operating the control equipment and sufficiently provide
for adequate visibility. The commission therefore finds that meeting the opacity
requirements in §111.111(a) would not result in improved visibility.
This is necessary to eliminate any confusion as to whether excess opacity
resulting from scheduled maintenance, startup, or shutdown activities is entitled
to an automatic exemption. In addition, the word "was" is changed to the word
"were" in §101.222(e)(8) to show correct subject-verb agreement.
New subsection (f) specifies that subsections (c) and (e) do not remove
any obligations to comply with any other requirements such as permit terms
and commission rules, e.g., the prohibition against causing a nuisance or
reporting requirements which are applicable to a scheduled maintenance, startup,
and shutdown activity, or any federal program requirements.
The amendments to existing §101.222(f) reletter the subsection as §101.222(g)
and delete the wording "When the commission finds a frequent or recurring
pattern of events under this subchapter, the commission may pursue penalties
and corrective actions from an owner or operator of a facility for unauthorized
emissions notwithstanding the exemptions described in subsections (b) - (e)
of this section." This is replaced with "Evidence of any past event subject
to subsections (b) - (e) of this section is admissible and relevant to demonstrate
a frequent or recurring pattern of events, even if all of the criteria in
that subsection are proven." This amendment will ensure consistency with the
changes to the rule language adopted in §101.222(b) - (e). As more fully
explained in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED
RULES section, the amendments to §101.222 reflect existing commission
practice with regard to enforcement actions regarding exceedances of emissions
and opacity limits.
New subsection (h) provides that this section expires on June 30, 2005.
This will allow the commission time to review the rule and determine whether
to continue it as adopted.
Section 101.223--Actions to Reduce Excessive Emissions
The amendment to §101.223(c) deletes ". . . the unauthorized emissions
from the event are not exempt from compliance with emission limitations."
This is replaced with language that specifies that the affirmative defenses
in §101.222 do not apply to recurring emissions events. This amendment
will ensure consistency with the change to the rule language adopted in §101.222.
In addition, as more fully explained in the BACKGROUND AND SUMMARY OF THE
FACTUAL BASIS FOR THE ADOPTED RULES section, this amendment reflects existing
commission practice with regard to enforcement actions for unauthorized emissions.
New subsection (e) provides that this section expires on June 30, 2005.
This will allow the commission time to review the rule and determine whether
to continue it as adopted.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking action in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that this action is not subject to §2001.0225 because it does
not meet the definition of a "major environmental rule" as defined in that
statute. A "major environmental rule" is defined as a rule which is specifically
intended 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 rulemaking action
is intended to obtain approval as a revision to the SIP by eliminating any
confusion as to whether there is an automatic exemption from compliance. The
amendments state that certain emissions events and excess opacity events are
subject to an affirmative defense, and that emissions and opacity events resulting
from scheduled maintenance, startup, and shutdown activities are required
to be included in certain permits or meet opacity limits set by commission
rule unless the owner or operator proves the applicable criteria. The amendments
do not implement additional regulations that are not already required by the
commission and the EPA. This action also retains the requirement that the
burden of proof is on the owner or operator to prove it meets the demonstration
criteria in §101.222 when addressing exceedances of emissions or opacity
limits. The adopted amendments do not limit the commission's authority for
administrative orders for technical orders or civil actions for injunctive
relief. Although the amendments apply to all sources of unauthorized emissions,
the effect of this rulemaking action is not expected to significantly modify
the number and amount of emissions from emissions events and scheduled maintenance,
startup, and shutdown activities. In addition, the commission's enforcement
practice regarding how cases are evaluated and whether additional action is
required is not changing as a result of these rules, nor are the demonstration
criteria which must be proved changed by these amendments. The rulemaking
action will 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. Therefore, this is
not a major environmental rule.
Furthermore, this rulemaking action does not meet any of the four applicability
requirements listed in §2001.0225(a). Texas Government Code, §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 adopted amendments do not exceed a standard set by federal
law or exceed an express requirement of state law. The amendments are being
made in order to obtain EPA approval of the rules as a SIP revision and to
satisfy the notice of deficiency of the Texas Title V Operating Permits Program.
There is no contract or delegation agreement that covers the topic that is
the subject of this rulemaking. Finally, this rulemaking action was not developed
solely under the general powers of the agency, but is authorized by specific
sections of the Texas Health and Safety Code and Texas Water Code which are
cited in the STATUTORY AUTHORITY section of this preamble. Therefore, this
rulemaking action is not subject to the regulatory analysis provisions of
Texas Government Code, §2001.0225(b), because the adopted amendments
do not meet any of the four applicability requirements.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the adopted amendments.
The specific purpose of this rulemaking is to amend the emissions events rules
to obtain federal approval of these rules as part of the Texas SIP by eliminating
any confusion as to whether there is an automatic exemption from compliance
and more precisely stating the commission's enforcement policy with regard
to unauthorized emissions. Promulgation and enforcement of the adopted amendments
will be neither a statutory nor a constitutional taking because they do not
affect private real property. Specifically, the adopted amendments do not
affect private property in a manner which restricts or limits an owner's right
to the property that will otherwise exist in the absence of a governmental
action. Therefore, the adopted amendments do not constitute a takings under
Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.), and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, commission
rules governing air pollutant emissions must be consistent with the applicable
goals and policies of the CMP. The commission reviewed this action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council, and determined that the action is consistent with the
applicable CMP goals and policies. The CMP goal applicable to this rulemaking
action is the goal to protect, preserve, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)).
No new sources of air contaminants will be authorized and the adopted amendments
will maintain the same level of emissions control as the existing rules. The
CMP policy applicable to this rulemaking action is the policy that commission
rules comply with federal regulations in 40 Code of Federal Regulations (CFR),
to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation,
Adoption, and Submittal of Implementation Plans. Therefore, in accordance
with 31 TAC §505.22(e), the commission affirms that this rulemaking action
is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Sections 101.221 - 101.223 are applicable requirements under 30 TAC Chapter
122, Federal Operating Permits. Upon the effective date of this rulemaking,
owners or operators subject to the Federal Operating Permits Program will
be required to certify compliance with amended §§101.221 - 101.223.
PUBLIC COMMENT
A public hearing on this proposal was held in Austin, Texas, on August
12, 2003. No person presented oral comments at the hearing. The following
persons submitted written comments: Blackburn Carter; BP Products North America
Incorporated, BP South Houston (BP); Environmental Defense on behalf of Clean
Water Action, Environmental Defense, the Galveston-Houston Association for
Smog Prevention, Lowerre and Kelly, Neighbors for Neighbors, Public Citizen,
the Sustainable Energy and Economic Development Coalition, Texas Campaign
for the Environment, Texas Environmental Democrats, and the Texas Public Interest
Research Group (Environmental Defense
et al
.);
EPA; ExxonMobil Refining and Supply (ExxonMobil); the League of Women Voters
of Texas (LWV-Texas); Baker Botts, L.L.P. on behalf of Louisiana Pacific Corporation
(LP); Mothers for Clean Air (MFCA); the Texas Association of Business (TAB);
the Texas Chemical Council (TCC); Baker Botts, L.L.P. on behalf of the Texas
Industry Project (TIP); the Texas Oil and Gas Association (TXOGA); Vinson
and Elkins, L.L.P. (V&E); and 381 individuals. As part of their comments,
Blackburn Carter and Environmental Defense submitted a copy of the Environmental
Integrity Project (EIP) report titled
Accidents Will
Happen
(October 17, 2002), and Environmental Defense
et al
. submitted a copy of the EIP report titled
Smoking Guns
(November 2002). BP endorsed the TCC and TIP comments.
TXOGA endorsed the ExxonMobil comments.
RESPONSE TO COMMENTS
EPA, Environmental Defense
et al
., and
MFCA generally supported the proposed amendments to the emissions events rules.
LWV-Texas and 381 individuals expressed strong support for the proposed amendments.
BP, LP, TCC, TIP, and V&E generally opposed the proposed amendments. Blackburn
Carter stated that while the proposed rules are a good start, they do not
go far enough and need to be strengthened. Environmental Defense
et al
. expressed a belief that further additions to the rules are warranted
and suggested changes. BP, Environmental Defense
et al
., LWV-Texas, LP, ExxonMobil, MFCA, TAB, TCC, TIP, V&E, and
379 individuals raised issues or suggested changes.
ExxonMobil, TAB, and TCC stated that the rulemaking has a major impact
on the regulated community and more time should be allowed for comments and
consideration of options. The affected parties should also be given sufficient
time to transition to other options such as permitting if the commission decides
to make this option more available.
RESPONSE
The commission declines to extend the time allotted for this rulemaking.
As stated earlier, the commission is adopting these amendments to obtain SIP
approval in order to satisfy the Texas Title V Operating Permits Program notice
of deficiency. The commission finds that because owners and operators have
been required, since 1972, to meet specified criteria to obtain relief from
enforcement related to unauthorized emissions, and those criteria are not
changing in these amendments, a decision to conduct scheduled maintenance,
startup, and shutdown activities would be made on the same basis if the goal
is to minimize the risk that the owner or operator may be subject to enforcement
for unauthorized emissions. Unless the demonstration criteria are proved,
the amendments specifically provide that emissions from a scheduled maintenance,
startup, or shutdown activity are required to be included in certain permits,
and opacity events resulting from scheduled maintenance, startup, and shutdown
activities are required to meet opacity limits set by commission rule. Meeting
the permitting and rule requirements remains an obligation if the demonstration
criteria are not proved. Owners and operators retain the option of seeking
permit authorization for scheduled maintenance, startup, and shutdown emissions
which are sufficiently frequent, quantifiable, and predictable. The currently
available authorization options are not affected by this rulemaking action.
V&E recommended that the proposed rule changes be pulled down and greater
time be given to this significant change in the regulations governing emission
events related to malfunction, maintenance, startup, or shutdown. Despite
the effort in the preamble to minimize the impact of the proposed rule changes
on the regulated community, there is a significant legal distinction between
the position that an emission event that meets certain criteria is exempt
by law and the position that all emission events are subject to the enforcement
discretion of the executive director and the criteria are merely an affirmative
defense in an enforcement action. In addition, the affirmative defense created
by the rule is not available in administrative technical orders or suits for
injunctive relief. This is a significant change from existing law that may
materially affect the regulated community by discouraging maintenance activity
or requiring the regulated community to seek new air permits that account
for startup, shutdown, maintenance, and malfunction related emission events.
As a result, this rule will have an impact on the productivity of regulated
facilities and is a major environmental rule under the definition found in
Texas Government Code, §2001.0225.
RESPONSE
The commission declines to extend the time allotted for this rulemaking.
As previously stated, the commission is adopting these amendments to obtain
SIP approval in order to satisfy the Texas Title V Operating Permits Program
notice of deficiency. The commission disagrees that the proposed language
will discourage maintenance activities because owners and operators, since
1972, have been required to meet specified criteria to obtain relief from
enforcement related to unauthorized emissions, and those criteria are not
changing in these amendments. In addition, the rules have never restricted
the commission's authority to obtain administrative technical orders or seek
injunctive relief. Therefore, a decision to conduct scheduled maintenance,
startup, and shutdown activities would be made on the same basis if the goal
is to minimize the risk that the owner or operator may be subject to enforcement
for unauthorized emissions. It is the long-standing commission interpretation,
through its practice, that the rule language being amended by this action
exercises enforcement discretion. The commission's position that the rule
did not exempt emissions is now reflected in these amendments. The amendments
provide that emissions from a scheduled maintenance, startup, or shutdown
activity are required to be included in certain permits, and opacity events
resulting from scheduled maintenance, startup, and shutdown activities are
required to meet opacity limits set by commission rule, unless the criteria
are proved. This provides an additional basis for conducting, rather than
discouraging, maintenance activities in a way that is best for air quality.
The emissions from scheduled maintenance, startup, and shutdown activities
remain unauthorized and there is no requirement for those emissions to be
included in certain permits if the criteria are proven. However, those activities
for which the criteria are not proven, the emissions are subject to certain
permitting requirements.
Emissions events are, by definition in §101.1, unplanned or unanticipated
occurrences or excursions of a process or operation that result in unauthorized
emissions. Therefore, no best available control technology analysis or protectiveness
review can be made in advance for non-excessive emissions events. The commission
agrees that the affirmative defense created by the rule is not available in
administrative technical orders or suits for injunctive relief. However, the
commission disagrees that it is a significant change from existing law because,
as discussed earlier, the commission's practice has been that its authority
to seek administrative technical orders or suits for injunctive relief has
not been limited by these rules. The rulemaking action will 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. Therefore, the commission does not find this
rulemaking action to be a major environmental rule.
V&E commented that the rule triggers Texas Government Code, §2001.0225
because the law exceeds federal requirements and is not specifically required
by state law. As proposed, the rules will be retroactively applicable to permits
that were issued under the current commission rules and, as previously noted,
even the EPA guidance does not require changes to permits based on SIP-approved
rules in existence at the time the permit was issued. There is little question
that changes in these rules will significantly alter the premises underlying
commission air permits issued prior to these proposed changes. In addition,
the commission's provisions as to what constitutes an affirmative defense
for an unforeseen emission event exceed the requirements of federal law in
40 CFR §70.6(g), previously referenced in the quote from EPA guidance.
Aside from differences in the specific elements of the affirmative defenses
of federal law compared to the commission's rule proposal, the federal guidance
that purports to require this change in state SIPs is based in the enforcement
of national ambient air quality standards and prevention of significant deterioration
increments. The commission's proposed rules apply to all air contaminant emissions
under state regulation as opposed to the criteria pollutants under the federal
laws that are the basis for the EPA guidance. Therefore, these requirements
exceed federal requirements in that they apply to emission events for all
air contaminants. Thus, the proposed rules exceed the statutory program requirements
that EPA has cited as limiting state programs to enforcement discretion or
affirmative defense provisions in the regulation of startup, shutdown, maintenance,
or malfunction events. The proposed rules exceed federal requirements and
are not specifically required by state law and §2001.0255 is applicable.
RESPONSE
The commission disagrees that the amendments exceed federal requirements
and are not specifically required by state law. Both federal and state law
require protection of public health and welfare for all air contaminants,
not only those which are criteria pollutants designated by EPA, and therefore,
these amendments do not exceed federal requirements. The requirement in 40
CFR §70.6(g) relates to the ability of a permitting authority to provide
for an emergency provision as part of the Title V Federal Operating Permits
Program. 40 CFR §70.6(g)(5) clearly states that the emergency provision
is in addition to any emergency or upset provision contained in any applicable
requirement. The rules in Chapter 101 relating to emissions events, which
include emissions events and scheduled maintenance, startup, and shutdown
activities, are not limited solely to major sources subject to the Texas Operating
Permits Program, but are applicable to all sources in Texas.
Further, the commission disagrees that these rules are not specifically
required by state law. The STATUTORY AUTHORITY section of this preamble lists
the specific state law for these amendments.
The commission also disagrees that the amendments will be retroactively
applicable to permits that were issued under the current commission rules.
These rules are applicable to facilities that are operating outside their
authorized parameters and, so by definition, do not apply to permitted operations
that do not exceed authorized limits for emissions from scheduled maintenance,
startup, and shutdown activities, or excess opacity resulting from such activities.
The proposed language does not retroactively affect issued permits because
it does not change the status of the unauthorized emissions nor any currently
issued permits which include authorization for emissions from scheduled maintenance,
startup, and shutdown activities. Rather, the rule language specifies that
certain emissions events and excess opacity events are subject to an affirmative
defense, and when that emissions and opacity events resulting from scheduled
maintenance, startup, and shutdown activities are required to be included
in certain permits or meet opacity limits set by commission rule unless the
owner or operator proves the applicable criteria. These rules will be applied
to emission events and scheduled maintenance, startup, and shutdown activities
that occur after the effective date of this rulemaking action and are not
retroactive for facilities with unauthorized emissions that have occurred
in the past.
TIP specifically stated that the deficiency related to the definition of
"applicable requirement" is analogous to when a state includes a proposed
rule in a Title V permit. Specifically, if the proposed rule is more stringent
that the existing rule, TIP, citing a 1996 EPA memorandum, stated that EPA
has allowed issuance of the permit. TIP concluded that the EPA staff approach
is a sudden and last minute change reversal that in effect highjacks the Title
V Program in order to secure wholly unrelated changes.
RESPONSE
The commission does not agree with the commenter. The issue is not whether
a Title V permit can be issued by the commission, but whether the Texas Title
V Program meets the requirements of 40 CFR Part 70 and can be approved now
by the EPA. The commission's understanding of the EPA position is that, although
the current definition in §122.10 refers to §101.222, and that the
preamble adopting the most recent change to §122.10 in November 2002
explains that §101.11 was renumbered and revised in 2002, this does not
satisfy the deficiency. In addition, the commission does not include citation
to proposed rules in Title V permits.
LP commented that EPA has already approved language into the SIP, nothing
substantive has changed. EPA has already approved the exemption as part of
the Texas SIP and there is no legitimate connection between the Title V notice
of deficiency and these rules. BP stated that the proposed changes are not
necessary to address EPA concerns in the SIP; neither are they directly related
to the Texas Title V notice of deficiency. V&E expressed a similar concern.
LP and TIP commented that there is no legitimate relationship between the
exemption and the notice of deficiency.
RESPONSE
Concurrent with the revision to the emissions events rules in 2002, the
commission relocated the rules into new Subchapter F and repealed the SIP-approved
version of the rules in §§101.6, 101.7, and 101.11. In 2002, the
commission also revised the definition of applicable requirement to refer
to the sections in Subchapter F. The notice of deficiency specifically refers
to the repealed sections. In EPA's proposed approval of revisions and notice
of resolution of deficiency for the Texas Operating Permits Program, EPA specifically
noted that the applicable requirement definition previously did not include
all the applicable provisions of the Texas SIP that implement relevant requirements
of the Federal Clean Air Act, as required by 40 CFR §70.2. Additionally,
EPA noted that Texas had amended the definition of applicable requirement
to include revised and recodified §§101.201, 101.211, 101.221 -
101.223, and submitted those sections to EPA as a SIP revision. Finally, EPA
noted that it is reviewing the SIP submission and would address the SIP submission
in a separate rulemaking prior to EPA's final approval of Texas' definition
of applicable requirement. In this case, EPA notified the commission that
the 2002 rule amendments to Subchapter F cannot be approved as a SIP revision
nor will that revision satisfy the Title V notice of deficiency.
One individual stated that high air pollution levels which are regularly
seen during the Texas summer can bring on an asthma attack. Therefore, for
the health of Texas citizens, the individual voiced support for the proposed
changes to the emissions events rules.
RESPONSE
The commission appreciates the support.
One individual stated that in southeast Texas, where chemical companies
are the predominant industry, the economy could be directly affected by any
legislation passed that increases the cost of or limits the production of
petrochemicals; however, the Southeast Texas area leads the nation in respiratory
diseases and cancer rates and is the most dangerous location for females to
develop. The individual expressed an opinion that it is time for our values
to be evaluated and requested that we stop polluting our air and water in
the name of economic security. Another individual stated that if the number
of cancer-related deaths and the number of citizens diagnosed with cancer
in Port Arthur (and other areas with similar industrial pollution) were evaluated,
it would be evident that the carcinogens being released into the air, water,
and land are directly causing the deaths of Texans every day. The individual
stated that it is time to stop rewarding companies for killing Texans, time
to stand up for the health of Texans, and time to make everyone follow the
same rules. One individual stated that, according to the American Lung Association,
Gregg County is the sixth most polluted county in the state. The individual
stated that during the last ten years of a 37-year teaching career, there
has been a notable increase in the number of asthmatic students and the severity
of their illness. The individual also stated that during the last five years,
there were several instances of ambulances coming to the school to rush asthmatic
students to the hospital. One individual stated that he was a victim of the
pollution in the Houston air in 2000, and became chemically sensitive and
very sick from breathing such dangerous pollution. Two individuals stated
that excess emissions have a direct negative effect on the health and welfare
of those living in communities adjacent to companies with excess emissions.
The individuals stated that the communities are normally populated with citizens
with low incomes, children, and the elderly. The two individuals also stated
that the pollution can be transported by wind currents and contributes to
the unhealthy air quality in most of Texas' large cities.
RESPONSE
The emissions events rules apply to all owners and operators who have unauthorized
emissions. The commission addressed protection of public health by the inclusion
of the demonstration criteria which requires that the emissions do not cause
or contribute to an exceedance of the national ambient air quality standards,
prevention of significant deterioration increments, or a condition of air
pollution, or there is no relief from enforcement action. In addition, these
amendments do not restrict the commission's ability to obtain corrective action
or injunctive relief. The commission's changes to these rules in 2002, implementing
certain portions of HB 2912, 77th Legislature, 2001, were intended to enhance
the existing rules for these emissions. The statutory notes of HB 2912, §18.14,
state: "The purpose of Sections 382.0215 and 382.0216, Health and Safety Code,
as added by this Act, is to add new or more stringent requirements regarding
upsets, startups, shutdowns, and maintenance. Those sections may not be construed
as limiting the existing authority of the Texas Natural Resource Conservation
Commission under Chapter 382, Health and Safety Code, to require the reporting
or the permitting of the emission of air contaminants or to bring enforcement
action for a violation of Chapter 382." This rulemaking complements the 2002
amendments in that it specifies the commission's enforcement policy and does
not change the criteria which must be proved by an owner or operator of unauthorized
emissions. Further, the commission's authority to obtain corrective action
or injunctive relief is not limited. In implementing all of these rule changes,
the commission implemented incentives for owners and operators to reduce these
types of emissions. In addition, the amendments do not remove any obligation
to comply with any other requirements such as permit terms and commission
rules, e.g., as the prohibition against causing a nuisance or reporting requirements,
which are applicable to a scheduled maintenance, startup, and shutdown activity.
One individual expressed a firm belief that the public has a right to clean
air, and nobody has a right to take that away. Another individual stated that
it is time that Texas took steps toward protecting our air quality for the
future. One individual stated that the proposed changes to the rules to more
strictly enforce and monitor emissions is a step forward in the protection
of Texas citizens. Another individual commented that for too long the old
commission acted as the protector of polluters. The individual expressed a
hope that the commission has changed its policies and regained sight of its
mission to protect the environment and the public interest.
RESPONSE
The commission considers these rules to be a vital part of the state's
plan to control and protect air quality in Texas. The commission disagrees
that these particular amendments will more strictly enforce and monitor emissions,
but notes that the commission's changes to these rules in 2002, implementing
certain portions of HB 2912, were intended to enhance the existing rules for
these emissions. This rulemaking complements the 2002 amendments in that it
specifies the commission's enforcement policy and does not change the criteria
which must be proved by an owner or operator of unauthorized emissions. Further,
the commission's authority to obtain corrective action or injunctive relief
is not limited. In implementing all of these amendments, the commission implemented
incentives for owners and operators to reduce these types of emissions. In
addition, the amendments do not remove any obligation to comply with any other
requirements such as permit terms and commission rules, e.g., as the prohibition
against causing a nuisance or reporting requirements, which are applicable
to a scheduled maintenance, startup, and shutdown activity.
379 individuals stated that the proposed rules should help to reduce the
alarming number of "upset" emissions at Texas facilities. 381 individuals
stated that these excess emissions have a direct negative effect on the health
and welfare of those living in adjacent communities, and contribute to the
unhealthy air quality in most of Texas' large cities. 379 individuals stated
that six facilities in Port Arthur reported 323 excess emissions events in
2002 which released 1,500 tons of sulfur dioxide, 1,700 tons of volatile organic
compounds (including 1,500 tons of carcinogens, benzene, and butadiene), and
350 tons of carbon monoxide in excess of the facilities' permitted limits.
Blackburn Carter stated that the October 2002 EIP report documented that in
only seven months (January - July 2002) the total amounts of excess emissions
generated in Port Arthur by five refineries included almost 725 tons of sulfur
dioxide, nearly ten tons of hydrogen sulfide, 844 tons of volatile organic
compounds, nearly 42 tons of benzene, and over 57 tons of carbon monoxide.
Blackburn Carter stated that these emissions contribute to ozone standard
exceedances and health problems, and therefore the commission has a responsibility
to include adequate rule revisions to protect citizens from the dangerous
effects of chemical pollutants. LWV-Texas stated that the number of excess
"upset" emissions has been unacceptably high and expressed hopes that this
rule change would reduce the number and frequency of such incidents. LWV-Texas
also stated that such a reduction can be expected to very quickly improve
the air quality and quality of life in communities where "upset" emissions
have become a nearly daily occurrence and may also make a difference in larger
Texas cities that struggle to stay within federal air quality standards. MFCA
stated that in 1998 and 1999, 90% and 78.5% of the total upset and maintenance
events that occurred in the Houston area were unplanned and reported as upsets.
These upsets makes it difficult for the Houston-Galveston area to achieve
the one-hour ozone standard, but more importantly, are affecting the health
and quality of life of nearby residents. One individual stated that alleged
"upset" emissions at Texas facilities have been exploited shamelessly, and
that industry has too often risked the health and welfare of those living
in adjacent communities contributing to the unhealthy air quality in most
of Texas' large cities.
RESPONSE
The commission's changes to these rules in 2002, implementing certain portions
of HB 2912, were intended to enhance the existing rules for unauthorized emissions.
The statutory notes of HB 2912, §18.14, state: "The purpose of Sections
382.0215 and 382.0216, Health and Safety Code, as added by this Act, is to
add new or more stringent requirements regarding upsets, startups, shutdowns,
and maintenance. Those sections may not be construed as limiting the existing
authority of the Texas Natural Resource Conservation Commission under Chapter
382, Health and Safety Code, to require the reporting or the permitting of
the emission of air contaminants or to bring enforcement action for a violation
of Chapter 382." This rulemaking complements the 2002 amendments in that it
specifies the commission's enforcement policy and does not change the criteria
which must be proved by an owner or operator of unauthorized emissions. Further,
the commission's authority to obtain corrective action or injunctive relief
is not limited. In implementing all of these rule changes, the commission
implemented incentives for owners and operators to reduce these types of emissions.
In addition, the amendments do not remove any obligation to comply with any
other requirements such as permit terms and commission rules, e.g., as the
prohibition against causing a nuisance or reporting requirements, which are
applicable to a scheduled maintenance, startup, and shutdown activity.
Blackburn Carter stated that the current emissions events rules do not
adequately protect the health and welfare of citizens of the State of Texas.
RESPONSE
The commission disagrees that public health and welfare are not protected.
The rules have not authorized emissions from emissions events or maintenance,
startup, or shutdown activities, and have not limited the commission's ability
to require corrective action or seek injunctive relief. This rulemaking does
not change that position. The commission notes that one of the demonstration
criteria requires that the unauthorized emissions must not have caused or
contributed to an exceedance of the national ambient air quality standards,
prevention of significant deterioration increments, or a condition of air
pollution. In addition, the rules are designed to promote reduction of these
emissions, and the amendments made in 2002 added the additional categories
of "excess" and "chronic" emissions events. Those amendments also enhanced
actions such as corrective action plans and chronic site responses in addition
to enforcement to minimize emissions and events. In addition, the amendments
do not remove any obligation to comply with any other requirements such as
permit terms and commission rules, e.g., as the prohibition against causing
a nuisance or reporting requirements, which are applicable to a scheduled
maintenance, startup, and shutdown activity.
LWV-Texas, MFCA, and 381 individuals supported the rule changes that clarify
that all emissions in excess of permit limits are violations subject to enforcement
by the commission, EPA, and citizens. MFCA stated that the emissions events
rules are necessary to hold violators accountable, and that without these
changes, regulated entities will continue to make life for those who live
downwind absolutely sickening. MFCA also asked if it is reasonable to ask
a family to shelter in place while a company avoids penalties and enforcement
for their actions. Blackburn Carter, Environmental Defense
et al
., LWV-Texas, and 379 individuals urged the commission to step
up its enforcement against facilities that repeatedly exceed their permitted
limits. LWV-Texas and 379 individuals stated that facilities that repeatedly
exceed their permitted limits should face automatic enforcement, should pay
fines that at least recoup the economic benefit they gained through the violation,
and should be required to obtain pollution offsets to reduce the area's pollution
burden by an amount equivalent to their excess emissions. Environmental Defense
RESPONSE
The commission has not limited its authority to obtain corrective action
and seek injunctive relief in this rulemaking. In addition, the amendments
do not change the determinations of excessive emissions under §101.222(a)
or chronic excessive emissions events under §101.223. These rules will
continue to hold the owners and operators responsible for their unauthorized
emissions and require them to come into compliance. The rules apply to all
owners and operators, regardless of size, and if they cannot prove the criteria
in §101.222, they remain subject to penalties, as well as to corrective
action and injunctive relief. The rules do not authorize violations of the
law, but rather specify that an affirmative defense is available for certain
emissions events and excess opacity events and that emissions from or opacity
associated with scheduled maintenance, startup, and shutdown activities are
required to be included in certain permits or meet the requirements of §111.111(a)
unless the applicable criteria are proven by the owner or operator. Certain
unauthorized emissions that would otherwise be a violation of a statute, rule,
or permit within the commission's jurisdiction were caused by an act of God,
war, strike, riot, or other catastrophe, are not violations under Texas Water
Code, §7.251. This is an existing statutory defense that has historically
been available to owners and operators of facilities with unauthorized emissions
and is not limited by these rules. However, the majority of unauthorized emissions
are not covered by this defense and remain unauthorized.
The EPA also agreed with and supported the commission statement that determinations
by the executive director under Subchapter F will not limit or bar enforcement
actions for exceedances of emissions or opacity limitations brought by the
EPA or citizens under authority of the Federal Clean Air Act. MFCA agreed
that some emissions may qualify for a penalty waiver by the commission, but
are still enforceable by the state, the EPA, or citizens. TIP commented that
language limiting the availability of the affirmative defenses to enforcement
actions brought by the state should be deleted. Specifically, TIP does not
disagree that determinations made under §101.222 will not bar certain
actions by the EPA or citizens, but the effect of the proposed language is
to limit the applicability of the affirmative defense to the extent that it
goes farther than what is needed to preserve EPA's and citizens' rights to
bring enforcement actions. TIP commented that this language would bar the
use of an affirmative defense in a federal enforcement action, although the
EPA has never objected to owners and operators being allowed to make the demonstration.
TIP suggests deleting the phrase "brought by the state" in §101.222(b)
- (e).
RESPONSE
The commission agrees that although the demonstration criteria in §101.222
will apply in actions brought by EPA or citizens under the Federal Clean Air
Act, determinations by the executive director or commission under §101.222
in which the owner or operator proves the criteria will not bar those enforcement
actions.
Blackburn Carter stated that specific criteria need to be in the rule which
will trigger further investigation by the commission, and possibly enforcement
action, to alleviate discrepancies in types and numbers of investigations
in Beaumont/Port Arthur and the Houston/Galveston areas.
RESPONSE
The commission declines to add specific criteria to the rules regarding
investigations and enforcement action in these particular areas of the state.
The rule amendments adopted by the commission (September 6, 2002, issue of
the
Texas Register
(27 TexReg 8499)) require
the executive director to determine whether or not each event is excessive.
If an emissions event is not excessive, additional action may be required
of the owner or operator to either further reduce the emissions from the event
or to preclude future events from occurring. The access provided to the public
related to emissions events meets the statutory requirement to make such information
available and there is sufficient data to base an analysis of trends over
and above that provided by the person making the demonstrations under §101.222.
Environmental Defense
et al
. requested
the commission to identify the number of facilities that have been identified
as having excessive emissions events under §101.222(a).
RESPONSE
HB 2912 amended the Texas Clean Air Act to require the commission to develop
the capacity for electronic reporting, including incorporating reported emissions
events into a permanent centralized database for emissions events. The statute
also requires that the commission annually assess the information received,
including actions taken by the commission in response to the emissions events,
and include the assessment in its annual report on enforcement actions which
is provided to the governor, lieutenant governor, and speaker of the house
of representatives, and made available to the public. The information required
by HB 2912 is included in the commission's Annual Enforcement Report for 2002.
Environmental Defense
et al
. stated that
a uniform form would make analysis of emissions events far easier for the
public, and presumably, for the commission, and requested that such a form
require the facility to identify the number of times emissions events have
occurred over the past five years at the unit for which the report is being
filed. This would make it much easier for the public and the agency to determine
if a particular unit is not being properly maintained or operated and needs
attention.
RESPONSE
The commission has not made a change in the rules nor in its reporting
practice as a result of this comment. Specifically, §101.222(b)(9) already
requires the owner or operator to demonstrate that the unauthorized emissions
are not part of a frequent or recurring pattern indicative of inadequate design,
operation, or maintenance. The reporting elements in Subchapter F already
specify the required information to report which includes elements that address
the amount of time of the excess emissions compared with the time of operation
for the unit. Furthermore, as a part of the existing excessive emissions events
criteria, the owner or operator must prove the need for startup, shutdown,
and maintenance events.
Environmental Defense
et al
. stated that
in order to obtain a more accurate estimate of the emissions caused by emissions
events from flares, the Chapter 101 rules should specify that estimates of
flare emissions must identify whether or not the flare was smoking and what
the wind speed was at the time of the event. Environmental Defense
et al
. stated that the commission should require additional monitoring
for excess emissions in its Chapter 101 rules.
RESPONSE
The commission declines to make these specific changes. The commission
has the authority to request such information as part of its evaluation of
whether the owner or operator has proved it has met the applicable criteria.
The commission also has authority to require corrective action, which may
include additional monitoring, and these amendments do not restrict that authority.
In addition, the scope of this rulemaking was not directed at revising the
demonstration criteria.
The EPA stated that it historically has always considered all excess emissions,
scheduled or otherwise, as violations of emission limitations, permitted level,
or regulation. However, the EPA also stated that it has recognized that emission
events may be caused by circumstances entirely beyond the control of the owner
or operator and that the imposition of penalties in these situations may not
be appropriate. The EPA expressed a belief that a regulating agency may exercise
"enforcement discretion" in such cases, and that the permitting agency may
provide in its rules for an affirmative defense to enforcement actions for
civil penalties for emission events if the owner or operator can demonstrate
that certain criteria have been met when evaluated in a judicial or administrative
proceeding.
RESPONSE
The amendments provide for an affirmative defense for emissions events
and excess opacity events, with the burden of proof on the owner or operator
to demonstrate that it meets the specific criteria to be exempt from penalties.
The rule clearly states that the affirmative defense does not apply to claims
for administrative technical orders and actions for injunctive relief.
LWV-Texas and 381 individuals stated that adopting these changes will mean
that Texas regulations will finally comply with federal law. Environmental
Defense
et al
. stated that Texas' existing
emission event rules do not comply with federal law regarding startup, shutdown,
and malfunction, and those rules are similar to those struck down in
RESPONSE
The commission agrees that the amendments will comply with the requirements
in the federal and state Clean Air Acts for protection of air quality, and
they should be approvable as a SIP revision to satisfy the Title V notice
of deficiency. These rules do not restrict the ability of the commission,
or others, to obtain corrective action or seek injunctive relief as specified
in §101.221(f) and §101.222(b) and (d). The commission disagrees
that the existing rules operate to provide the type of exemption that was
the subject of the
Michigan
case. The existing
rules and these amendments both condition enforcement relief on the demonstration
by the owner or operator of many specific criteria and no automatic exemption
is a part of the commission's rules. The amendments continue to include the
requirement that the owner or operator clearly has the burden of proving that
it meets the criteria. These amendments are made to delete the references
to "exempt from compliance" to eliminate any confusion about the commission's
treatment of unauthorized emissions
Environmental Defense
et al
. stated that
the EPA is prohibited from approving a SIP that would interfere with attainment
or any other applicable requirement of the Federal Clean Air Act, citing 42
United States Code, §7410(k)(3) and (l).
RESPONSE
The commission agrees, and these amendments demonstrate that this legal
requirement has been met. One of the demonstration criteria in §101.222(b)
- (e) is that the emissions do not interfere with attainment or any other
applicable requirement of the Federal Clean Air Act.
V&E stated that the commission should evaluate the EPA guidance in
its entirety before action is taken on these proposed rule changes and ensure
that the proposed regulations are consistent with that guidance. LP commented
that the commission should not treat EPA guidance as rule. The rules were
revised in 2000 in part to satisfy EPA's concerns that the exemption was not
"automatic" and that the demonstration criteria were sufficiently rigorous.
The commission noted in the preamble to the final rule that the primary EPA
issue with these rules was the clear assignment of the burden of proof to
the owner or operator to demonstrate that an upset was unavoidable, and the
commission adopted specific language to address that concern. Further, the
commission specifically noted that the adoption of the criteria in §101.11
represents a codification of commission practice.
RESPONSE
The EPA guidance regarding SIPs and excess emissions during malfunctions,
startups, and shutdowns consists of memoranda from Kathleen Bennett, Assistant
EPA Administrator for Air, Noise, and Radiation, dated September 28, 1982
and February 15, 1983, and memorandum from Eric Schaeffer, Director, EPA Office
of Regulatory Enforcement, dated September 20, 1999. EPA has also addressed
this in various
Federal Register
notices since
1977. These amendments are not based on the position that EPA guidance has
the force and effect of federal rule. Rather, these changes are made to obtain
approval as a SIP revision by specifying that certain emissions events and
excess opacity events are subject to an affirmative defense, and that emissions
and opacity events resulting from scheduled maintenance, startup, and shutdown
activities are required to be included in certain permits or meet opacity
limits set by commission rule unless the owner or operator proves the applicable
criteria. These amendments are made to resolve existing conflicting interpretations,
evidenced in these comments, that the rules provided an exemption from compliance
with emissions and opacity limits. The amendments are consistent with the
federal and state Clean Air Act requirements to protect air quality. LP is
correct that EPA expressed concern in the past regarding the demonstration
criteria, but has not expressed concern with the criteria adopted by the commission
in the 2000 and 2002 amendments to these rules.
LP commented that EPA staff have apparently given the State of Texas "marching
orders" with respect to the exemption provided by the emissions event and
scheduled maintenance, startup, and shutdown rules and, as in the
Appalachian Power
case, EPA's authority for those orders consists of
a guidance document that has not been subject to the notice and comment procedures
required for formal agency rulemaking. Notwithstanding the fact that the Texas'
emissions event rules contain demonstration criteria that closely track the
excess emissions guidance, EPA's use of the excess emissions guidance in this
case is improper.
RESPONSE
The commission disagrees that EPA has given it "marching orders" such that
the commission is expected to adopt federal guidance as a state rule. EPA's
guidance regarding enforcement of unauthorized emissions is distinguishable
from the EPA guidance that was the subject of the litigation in
Appalachian Power Co. v. EPA
(208F.3d 1015 (D.C. Cir. 2000). In
TIP commented that the EPA has already approved the exemption as part of
the SIP, stating that the former §101.11, as adopted in 2000, contained
the substantively identical exemption language as in current §101.222.
TIP and LP stated that the commission proposed changes in 2000 in part to
satisfy EPA's concerns that the exemption was not "automatic" and that the
demonstration criteria were sufficiently rigorous, and it was these rules
that were adopted by EPA into the SIP. TIP further commented that the only
changes made in 2002 were to implement the requirements of HB 2912 which only
made the rules more stringent and to reorganize the rules. Neither change
affords the EPA a basis to revisit its earlier SIP approval.
RESPONSE
The commission disagrees that these two events cannot form a basis for
the EPA to reconsider its SIP approval. The EPA has authority to require a
state to revise its plan if the EPA finds that the plan is substantially inadequate
to attain or maintain the relevant national ambient air quality standards,
or meet any other applicable requirement of the Federal Clean Air Act. The
commission adopts these amendments to ensure that its plan meets the requirements
in the Federal Clean Air Act for plan approval, but notes that the current
amendments more precisely state the commission's enforcement practice that
was in effect before and at the time of the SIP approval in 2000.
LP stated that the EPA is being inconsistent in requiring the Texas SIP
to change while not challenging comparable rules in other states. LP and TIP
commented that the EPA has approved far less rigorous rules in other states,
specifically citing to New Mexico and Oklahoma.
RESPONSE
The EPA treatment of whether it has approved or failed to issue a SIP call
to other states in Region 6 is irrelevant as to whether the commission adopts
amendments that will meet the requirements for approval as a revision to the
Texas SIP.
The EPA supported removal of the terms "exempt from" or "exempt from compliance"
with emissions and opacity limitations from §§101.221 - 101.223
of these rules, and supported the proposed changes intended to clarify that
there are no automatic exemptions from compliance with emissions and opacity
limits in Chapter 101. LWV-Texas and 381 individuals stated that the proposed
changes clarify that sources are not exempt from compliance with emission
limits during upsets, startup, shutdown, and maintenance. Environmental Defense
RESPONSE
The commission has deleted the terms "exemptions" and "exempt from compliance"
to ensure that there are no automatic exemptions from emissions and opacity
limits. The commission agrees that permits and rules which grant broad automatic
exemptions from compliance with emission limits cannot assure compliance with
the health-based limits under the Federal Clean Air Act. These amendments
do not grant broad exemptions and ensure that the applicable requirements
for permits issued under Title V are consistent with the Federal Clean Air
Act.
ExxonMobil, TAB, and TCC stated that the commission does not need to make
any changes to §§101.221 - 101.223 to address EPA's concern that
an automatic exemption for emissions occurring during malfunctions, startup,
and shutdown would possibly undermine the control of emissions in the SIP.
They further stated that the EPA may not fully understand the nature of the
existing commission rules on emission events and maintenance, startup, and
shutdown emissions, and that these rules do not violate any principles upon
which EPA guidance is based.
RESPONSE
The EPA concerns are based on its interpretation of the commission's rules,
which, similar to that of the commenters, is that the emissions are exempt
from compliance if the demonstration criteria are proved by the owners and
operators. Although the commission has a long history of interpreting this
language as implementing its enforcement discretion and operating similar
to an affirmative defense, the EPA has interpreted the language to provide
a complete exemption from compliance and thus considers the language as an
impediment to seeking injunctive relief in response to an event that may cause
or contribute to an exceedance of the national ambient air quality standards
or prevention of significant deterioration increments. The commission has
determined that specifying that emissions events and excess opacity events
are subject to an affirmative defense, and that certain emissions and opacity
events resulting from scheduled maintenance, startup, and shutdown activities
are required to be included in certain permits or meet opacity limits set
by commission rule unless applicable criteria are proven, better articulates
its enforcement practice, as well as eliminates any confusion as to whether
these rules authorize emissions or provide an automatic exemption from compliance
with emissions and opacity limits.
ExxonMobil, TAB, and TCC stated that the current rules in Subchapter F
provide the necessary controls over emissions from emission events and scheduled
maintenance, startup, and shutdown activities to assure that these emissions
will not interfere with attainment under the SIP.
RESPONSE
The commission agrees that if owners and operators take appropriate action
to comply with the applicable demonstration criteria, including that the emissions
did not cause or contribute to an exceedance of the national ambient air quality
standards, prevention of significant deterioration increments, or a condition
of air pollution, then interference with attainment under the SIP is less
likely. However, the purpose of this rulemaking is not to revise these criteria,
but rather to specify that certain emissions events and excess opacity events
are subject to an affirmative defense, and that emissions and opacity events
resulting from scheduled maintenance, startup, and shutdown activities are
required to be included in certain permits or meet opacity limits set by commission
rule unless the owner or operator proves the applicable criteria.
ExxonMobil, TAB, and TCC stated that the rules in Subchapter F recognize
that normally applicable emission limits are not appropriate during malfunctions
or maintenance, startup, and shutdown events, and that an exemption is provided
only if stringent criteria are met.
RESPONSE
The commission disagrees that applicable emissions limits are not appropriate
during scheduled maintenance, startup, and shutdown activities. Authorizations,
such as in 30 TAC §106.263 and permits issued under 30 TAC Chapter 116,
are examples of when applicable emissions limits can be established for these
activities. For unauthorized emissions which occur as a result of these types
of events, it is appropriate for the commission to determine when enforcement
should be pursued. Enforcement action may be taken as specified in these rules,
which provide owners and operators the opportunity to avoid enforcement or
permitting for an event by meeting the demonstration criteria. Section 101.222(c)(3)
requires the demonstration that the scheduled maintenance, startup, and shutdown
activity was not part of a recurring pattern. Therefore, many routine scheduled
maintenance, startup, and shutdown activities would not meet this criteria
and are subject to the requirement to obtain authorization for those emissions.
Emissions events are, by definition in §101.1, unplanned or unanticipated
occurrences or excursions of a process or operation that result in unauthorized
emissions. No best available control technology analysis or protectiveness
review can be made in advance for emissions events, and therefore, there are
not normally applicable emissions limits associated with emissions events
or malfunctions. As previously discussed this preamble, the commission has
never interpreted these rules to provide an automatic exemption and an automatic
exemption was not intended by the commission in the rules even if the criteria
are met. These amendments are made to eliminate any interpretation of automatic
exemption.
Blackburn Carter stated that the proposed rule only seeks to eliminate
repetition and does little to correct actual violations of the excess emission
provision. MFCA commented that the commission has been much too lenient with
violations of emissions limits from upsets, and that the upsets are not even
considered violations of the law, therefore, eliminating corrective action
or lawsuits against the pollution. MFCA stated that these proposed changes
will eliminate the "upset loophole" that has permitted industry to report
all excess emissions as exempt upsets and to avoid enforcement action for
unplanned releases.
RESPONSE
The commission agrees that the rule eliminates duplicate language. The
intent of the rule was to clarify the status of these emissions by elimination
of the term "exempt" and specifically stating that certain emissions events
and excess opacity events are subject to an affirmative defense, and that
emissions and opacity events resulting from scheduled maintenance, startup,
and shutdown activities are not required to be included in certain permits
or meet opacity limits set by commission rule unless the owner or operator
proves the applicable criteria. In addition, the amendments do not remove
any obligation to comply with any other requirements such as permit terms
and commission rules, e.g., as the prohibition against causing a nuisance
or reporting requirements, which are applicable to a scheduled maintenance,
startup, and shutdown activity. The commission disagrees that the rules previously
allowed or currently allow reporting of all excess emissions as exempt upsets.
These amendments do not modify any existing reporting requirements.
ExxonMobil, TAB, and TCC stated that the proposed changes make parties
that would have been exempted under the current rules now in violation. TIP
commented that the blanket conversion of lawful scheduled maintenance, startup,
and shutdown activities from protected status to presumptive "violations"
places facilities in an untenable legal position by planning and implementing
law violations, and runs directly counter to long-standing agency practice.
These activities have always been subject to a clear exemption if the rigorous
demonstration criteria are met. LP commented that revised notification requirements
without exemption equals company intent to violate the law, and that scheduled
maintenance, startup, and shutdown activities have always been subject to
a clear exemption if the rigorous demonstration criteria are met. It is disingenuous
for the commission now to suggest that these activities, if they cause unauthorized
emissions, were always "violations" for which the agency has exercised enforcement
discretion. Couching scheduled maintenance as an unlawful activity places
facilities in the untenable position of planning and implementing law violations,
which most corporate compliance policies flatly prohibit.
RESPONSE
Since 1972, maintenance, startup, and shutdown activities have had no protected
status, i.e., authorization, under the rules. As stated previously, the commission's
long-standing interpretation of these rules was that it was exercising its
enforcement discretion and that these rules did not provide authorization
of emissions from scheduled maintenance, startup, and shutdown activities.
These amendments specify when emissions and opacity events resulting from
scheduled maintenance, startup, and shutdown activities are required to be
included in certain permits or meet opacity limits set by commission rule.
The demonstration criteria that must be proved are not changed by these amendments
and there is no significant change in the commission's evaluation of emissions
events. Section 101.222(c) provides that although emissions from these activities
are not authorized by permit, the emissions are required to be included in
certain permits unless the owner or operator proves the criteria in subsection
(c)(1) - (9). The commission finds that if the owners and operators prove
the criteria in subsection (c)(1) - (9), the emissions from the scheduled
maintenance, startup, or shutdown activity are at a level below which inclusion
in certain permits is not required, as provided by Texas Health and Safety
Code, §382.05101. The criteria in subsection (c)(1) - (9) set strict
requirements for operating the control equipment and sufficiently provide
for the protection of public health and welfare. Finally, there are no revised
reporting requirements in these amendments.
EPA supported statements to the effect that an affirmative defense is not
applicable in claims for administrative technical orders and actions for injunctive
relief. TIP and BP stated that much of the proposed language is inconsistent
with affirmative defense, and the limit of the defense in state-only jurisdiction.
RESPONSE
The rules specify that certain emissions events and excess opacity events
are subject to an affirmative defense. The affirmative defense does not apply
to administrative technical orders and actions for injunctive relief for these
events because the commission must retain that authority to comply with the
requirements of the Federal Clean Air Act and Texas Health and Safety Code,
Chapter 382. The commission recognizes that in some case it is not appropriate
to seek penalties for unauthorized emissions. However, the amendments provide
that emissions and opacity events resulting from scheduled maintenance, startup,
and shutdown activities are required to be included in certain permits or
meet opacity limits set by commission rule unless applicable criteria are
proven, rather than provide for an affirmative defense to these unauthorized
emissions. The commission also deleted the reference to state-only enforcement
to ensure that the determinations made by the executive director or commission
under the rules do not interfere with claims brought by the EPA or citizens.
BP stated that the commission indicates in the preamble that if a company
fails to maintain controls, then an affirmative defense does not apply.
RESPONSE
Specifically, the demonstration criteria provide that a bypass of control
equipment which was unavoidable to prevent loss of life, personal injury,
or severe property damage is an exception to the prohibition to bypass the
control equipment. In addition, the demonstration criteria provide that all
emission monitoring systems must be kept in operation, if possible. Therefore,
it is not an automatic failure to proving the criteria if an owner or operator
fails to maintain controls during the event or activity.
Environmental Defense
et al
., citing the
memoranda from Kathleen Bennett, Assistant EPA Administrator for Air, Noise,
and Radiation, dated September 28, 1982, appendix page 2, stated that the
affirmative defense cannot apply to planned startup, shutdown, or maintenance
because these activities which result in excess emissions should not be eligible
for an affirmative defense.
RESPONSE
The EPA position is that maintenance emissions should be included in permits,
and that excess emissions arising from startup and shutdown activities should
be treated as violations. However, the EPA does not limit the use of enforcement
discretion in resolution of those violations. The commission finds that it
is important to encourage adequate maintenance and facility upkeep. The amendments
do not authorize emissions from scheduled maintenance, startup, and shutdown
activities, but rather specify that emissions and opacity events resulting
from these activities are not required to be included in certain permits or
meet opacity limits set by commission rule unless applicable criteria are
proven by the owner or operator. The commission finds that if the owners and
operators prove the criteria in subsection (c)(1) - (9), the emissions from
the scheduled maintenance, startup, or shutdown activity are at a level below
which certain permits are not required, as provided by Texas Health and Safety
Code, §382.05101. The criteria in subsection (c)(1) - (9) set strict
requirements for operating the control equipment and sufficiently provide
for the protection of public health and welfare.
Environmental Defense
et al
. stated that
the affirmative defense cannot apply to exceedances of the federal new source
performance standards or the national emission standards for hazardous air
pollutants. ExxonMobil, TAB, and TCC stated that some new source performance
standards provide for exceptions during malfunction, startup, and shutdown
activities. Blackburn Carter stated that existing rules and exemptions forego
any hope for compliance with Federal Clean Air Act requirements to meet the
national ambient air quality standards and national emission standards for
hazardous air pollutants levels set by the EPA. TIP stated that the EPA's
own new source performance standards provide a blanket exemption and are designed
to control criteria pollutants in order to achieve the national ambient air
quality standards, just like SIPs, yet EPA has exempted excess emissions during
startup, shutdown, and malfunction from compliance with new source performance
standards.
RESPONSE
Environmental Defense
et al
. is correct
in stating that an affirmative defense cannot apply to exceedances of new
source performance standards or national emission standards for hazardous
air pollutants where those rules specifically require the emissions limits
to be met even during startup, shutdown, or malfunction. For example, in 40
CFR §60.49(b), the EPA explicitly states that nitrogen oxide emissions
limits under §60.44(b) apply at all times, but the limits for particulate
matter and opacity apply at all times except during startup, shutdown, or
malfunction. For the particulate matter and opacity limits in these federal
rules, the EPA suspends the emissions limits and standards during these events
and instead requires the owner or operator to comply with the work practice
standard identified in §60.11(d) in order to mitigate emissions during
such activities. Compliance with §60.11(d) is determined after the event
has passed, and is determined on a case-by-case basis using the facts surrounding
the event, a practice that is identical with the commission's approach. The
EPA §60.11(d) workpractice standards, which generally apply during these
types of events, effectively include the demonstration criteria that are contained
in the commission rules in §101.222. The EPA has addressed emissions
during startup, shutdown, and malfunction similarly in the national emission
standards for hazardous air pollutants found in 40 CFR Part 63. In national
emission standards for hazardous air pollutants, each subpart identifies whether
or not emissions limits apply during startup, shutdown, and malfunction events
and requires compliance with a work practice standard during those same events
when the subpart limits do not apply. The EPA has adopted a more formalized
approach to addressing startup, shutdown, and malfunction related emissions
in the national emission standards for hazardous air pollutants, under 40
CFR §63.6(e), by specifically requiring that the owner or operator develop
and operate in accordance with a startup, shutdown, and malfunction plan as
defined in 40 CFR §63.6(e)(3). This alternative work practice standard
to be met is likely the exception referred to by ExxonMobil, TAB, and TCC.
In either new source performance standards or national emission standards
for hazardous air pollutants, where the EPA states that a subpart emissions
limit does not apply during startup, shutdown, or malfunction events, the
standards likewise do not impose a specific emission limit during the event.
Rather, emissions must be minimized and controls operated as best as can be
done to minimize emissions. New §101.222(f) makes clear that the rules
do not exempt startup or shutdown emissions from other applicable requirements.
The EPA supported statements to the effect that the owner or operator has
the burden of proof to demonstrate that certain criteria have been met for
claims of affirmative defense concerning excess emissions.
RESPONSE
The amendments make clear that the owner or operator must prove the criteria
for there to be no enforcement action taken under §101.222(b) and (d),
with the exception of administrative technical orders and injunctive relief.
The burden of proving all demonstration criteria in the rules remains on the
owner or operator. Neither the executive director nor the commission has the
burden to prove that the criteria are not met as part of an enforcement action.
Environmental Defense
et al
. commented
that the affirmative defense cannot apply in areas including Houston/Galveston
and Beaumont/Port Arthur when emissions events from a limited number of sources
can cause exceedances of the national ambient air quality standards, and stated
that the commission should clarify that no releases of volatile organic compounds
in the Houston/Galveston or Beaumont/Port Arthur areas may qualify for an
affirmative defense.
RESPONSE
The commission declines to make this change. The emissions events rules
apply to all releases of unauthorized emissions of air contaminants, regardless
of type or area of the state. The commission's primary controls for volatile
organic compound emissions in these areas are contained in 30 TAC Chapter
115, which are independent requirements that must be complied with by owners
and operators of facilities which emit volatile organic compounds. Successful
demonstration of meeting the criteria in §101.222 does not exempt owners
or operators of compliance with the requirements in Chapter 115. The owner
or operator whose facilities have unauthorized volatile organic compound emissions
must prove the criteria to obtain relief from enforcement for unauthorized
emissions of the rules in Chapter 101, Subchapter F, including that the emissions
did not cause or contribute to an exceedance of the national ambient air quality
standards, prevention significant deterioration increments, or a condition
of air pollution.
TIP commented that the commission should clarify that the term "enforcement
action" in the new affirmative defense language includes notices of violation.
The term should not be construed to mean only administrative or judicial enforcement
actions seeking penalties. The commission has an established procedure for
challenging notices of violation and owners and operators are entitled to
the opportunity to demonstrate the affirmative defense in such challenges.
Such an interpretation would limit the scope of the affirmative defense without
justification.
RESPONSE
The commission declines to make this change. The commission defines "enforcement
action" in 30 TAC §3.2(12) as "{a}n action, initiated by the executive
director, seeking an enforcement order." The commission does not seek penalties
in association with a notice of violation, but rather only in the context
of an enforcement action where an administrative order is deemed the most
appropriate avenue to resolve emissions events and excess opacity events.
The amendments do not affect the procedure for owners or operators challenging
notices of violation.
TIP opposed the deletion of the last sentence in the current §101.221(e)
because the existing provision makes clear that an emission event is not considered
"excessive" if the owner or operator satisfies its burden of proof of demonstrating
that the emissions events are not excessive based on the criteria in §101.222(a).
The effect of this change is to contravene basic due process principles and
gives the executive director absolute discretion to deprive owners and operators
the opportunity to mount the affirmative defense. TIP suggested language to
revise, rather than delete, §101.222(e).
RESPONSE
The commission has not made any change in response to this request. The
deletion of this language does not deprive owners and operators of the ability
to challenge any excessive emissions determinations under §101.222(a).
As stated in the commission's adoption of the Subchapter F rules in the September
6, 2002, issue of the
Texas Register
(27 TexReg
8499 and 8524), if an emissions event is excessive, the owner or operator
will have an opportunity to challenge the executive director's excessive determination
through the enforcement process. HB 2912 did not contemplate a separate appeal
process regarding the executive director's decision on whether each emissions
event is excessive. Rather, the intent of the addition to the statute was
for facilities with excessive emissions events to quickly implement a corrective
action plan, independent of any enforcement action the commission might take.
The excessive emissions event determination is not a final action of the commission
which is appealable to district court, and therefore, owners and operators
who disagree with these determinations can seek review with commission staff.
Therefore, the commission disagrees that due process principles are violated
by these rules.
The EPA supported the exclusion of claims for failure to take action, record,
or report emissions or information about the events or activities required
by law from availability of the affirmative defense. The EPA also stated that
this exclusion makes clear that excess emissions are subject to deviation
reporting under the Title V Operating Permits Program or other requirements
to report violations of permit limits or regulations. TIP commented that the
commission should not promulgate §101.222(f). The demonstration criteria
themselves implicitly acknowledge that emissions for which a demonstration
can be made may involve controls that are not applied as required, such as
specified in §101.222(b)(2) and (6). Along with the other demonstration
criteria, these criteria provide a more than adequate basis for a determination
to be made whether a particular failure to apply controls as required is subject
to an affirmative defense. TIP further commented that owners and operators
are required by regulations and permits to take certain actions, including
maintaining emissions below applicable emission limits. The demonstration
criteria allow for an individualized assessment of whether a failure to do
so is subject to a defense against liability, and that it simply makes no
sense to insert in the rules an ambiguous provision that can be read broadly
to render the defense provisions meaningless for large categories of events.
BP and TIP supported the deletion of the proposed language in §101.222(f)
and allowing the operator to prove that the demonstration criteria in §101.222(a)
or (b) apply.
RESPONSE
The commission revised §101.222(f) to provide that §101.222(c)
and (e) do not exempt the owner or operator from violations which may be part
of the circumstances associated with unauthorized emissions from any scheduled
maintenance, startup, or shutdown activity or excess opacity events resulting
from scheduled maintenance, startup, or shutdown activities. Furthermore,
subsection (f) provides that §101.222(c) and (e) do not exempt the owner
or operator from compliance with any subsequent, independent requirement such
as deviation or emissions inventory reporting. This eliminates any ambiguity
of whether other requirements, such as in other rules and permits, are eligible
for any exemption from penalties. The amendments do not affect the owner or
operator's opportunity to prove the demonstration criteria in §101.222(a)
or (b).
TIP commented that the current provision simply makes clear that the fact
that an event is exempt does not mean it cannot be considered in a future
enforcement action as part of an alleged recurring pattern indicative of inadequate
design, operation, or maintenance. TIP stated that this provision can be revised
without losing this essential point, and recommended revised language in new §101.222(g).
RESPONSE
The commission declines to make the specific change requested by TIP. The
amendment specifies that evidence of any past event subject to §101.222(b)
- (e) is admissible and relevant to demonstrate a frequent or recurring pattern
of events, even if all of the criteria in the applicable subsection are proved.
Therefore, even if the demonstration criteria are proven for a past event,
the event can still be considered when a determination is made with regard
to a frequent or recurring pattern of events.
BP stated that the commission should clarify that the provision concerning
the recurrence of excess emissions events is subject to an affirmative defense.
Specifically, BP stated that the rules should clarify that a recurring event
is one that involves the same equipment and the same cause. Because complex
mechanical equipment can fail for a variety of reasons, BP stated that it
is unreasonable to label failures as "recurring" solely based on the equipment
involved.
RESPONSE
The commission disagrees that such clarification is necessary and thus
declines to make a change in response to this comment. The commission agrees
that events should not be judged as recurring solely on the fact that a given
emission unit has experienced numerous events without regard as to the reasons
why or causes of the individual events. The commission agrees that a fair
assessment must be based on the merits of the individual facts of each case.
Blackburn Carter stated that it is unfair to provide extra emissions which
clearly exceed individual permit allowances when emissions from maintenance,
startup, and shutdown activities can be easily ascertained at the time of
permit issuance. Blackburn Carter also stated that existing rules and exemptions
allow individual sources to exceed permit limits. Maintenance, startup, and
shutdown emissions should not be described as part of the excess emissions
rule, and should be included in permit applications for individual sources.
379 individuals stated that it makes no difference if stringent limits are
included in Texas' air permits if industry is allowed to exceed those limits
with impunity.
RESPONSE
The rules in Subchapter F do not provide authorization for any "extra emissions,"
i.e., those which are in excess of permitted emissions. The commission agrees
that it is preferable that maintenance emissions which are sufficiently frequent,
quantifiable, and predictable, be included in permits for individual facilities
or sources. This rulemaking provides that emissions and opacity events resulting
from scheduled maintenance, startup, and shutdown activities are required
to be included in certain permits or meet opacity limits set by commission
rule unless the owner or operator demonstrates it meets the applicable criteria.
The commission finds that if the owners and operators prove the criteria in §101.222(c)(1)
- (9), the emissions from the scheduled maintenance, startup, or shutdown
activity are at a level below which certain permits are not required, as provided
by Texas Health and Safety Code, §382.05101. The criteria in subsection
(c)(1) - (9) set strict requirements for operating the control equipment and
sufficiently provide for the protection of public health and welfare. However,
because not all scheduled maintenance, startup, and shutdown emissions are
authorized by a permit or permit by rule, and therefore no control technology
or health and property protectiveness review has been performed, the commission
is specifying in these rules the criteria which must be met to protect air
quality as much as possible. The rules encourage minimization of the emissions
such that there will be protection of public health and property. Furthermore,
maintenance, startup, and shutdown activities which are part of a recurring
pattern indicative of inadequate design, operation, or maintenance would not
meet the demonstration criteria in §101.222(c)(3) and (e)(3).
ExxonMobil, TAB, and TCC stated that changes should not be made to parts
of the rules affecting maintenance, startup, and shutdown emissions. Maintenance,
startup, and shutdown emissions that are not authorized by §101.211,
are considered emissions events, and are only exempt if the meet the rigid
demonstration requirements under §101.222(b) and are not determined to
be excessive emissions events under §101.222(a). ExxonMobil, TAB, and
TCC stated that the elimination of the exemption option under Subchapter F
would not provide the necessary options under the remaining alternatives unless/until
greater opportunity is provided under Chapter 116. LP commented that unless
and until the commission establishes an avenue to authorize valid scheduled
maintenance, startup, and shutdown activities under Chapters 106 or 116 or
another means, the commission should not extinguish the important legal protection
now afforded scheduled maintenance, startup, and shutdown activities.
RESPONSE
This purpose of this rulemaking is to obtain federal approval of the emission
events rules as part of the Texas SIP, addressing the issue of whether Texas'
current rules provide an automatic exemption from all enforcement. As stated
in the proposal preamble (July 25, 2003, issue of the
Texas Register
(28 TexReg 5787)), the commission has never considered
that applicable emissions and opacity limits are automatically suspended during
emissions events or maintenance, startup, or shutdown activities. Rather,
the commission historically exercised discretion in the method of addressing
those exceedances when the regulated entity demonstrated it met the criteria
for the event. Therefore, the rules did not provide an authorization mechanism
for those emissions if criteria were met. The amendments specify that emissions
and opacity events resulting from scheduled maintenance, startup, and shutdown
activities are required to be included in certain permits or meet opacity
limits set by commission rule unless the applicable criteria are proven. Authorization
of these emissions from these events and activities is beyond the scope of
this rulemaking, and the emissions authorization options currently available
are not affected by this rulemaking action.
V&E suggested specific language for §101.222(b) - (e), which would
provide that the applicable emissions are "allowable" if the owner or operator
proves to the satisfaction of the executive director that all of the criteria
are met.
RESPONSE
The commission declines to make these changes. Texas Health and Safety
Code, Chapter 382, Subchapter C, requires that the commission find that best
available control technology will be utilized and that public health and property
will be protected before air contaminant emissions are authorized, unless
authorized under a permit by rule as insignificant or are
de minimis
. Emissions events are, by definition in §101.1, unplanned
or unanticipated occurrences or excursions of a process or operation that
result in unauthorized emissions. Therefore, no such best available control
technology analysis or protectiveness review can be made in advance for non-excessive
emissions events. Although this determination can be made for scheduled maintenance,
startup, and shutdown activities, it is beyond the scope of this rulemaking.
The purpose of this rulemaking action is not to prescribe when such emissions
can be authorized, but rather to specify that certain emissions events and
excess opacity events are subject to an affirmative defense and that emissions
and opacity events resulting from scheduled maintenance, startup, and shutdown
activities are required to be included in certain permits or meet opacity
limits set by commission rule unless the owner or operator proves the applicable
criteria. The commission finds that if the owners and operators prove the
criteria in subsection (c)(1) - (9), the emissions from the scheduled maintenance,
startup, or shutdown activity are at a level below which certain permits are
not required, as provided by Texas Health and Safety Code, §382.05101.
The criteria in subsection (c)(1) - (9) set strict requirements for operating
the control equipment and sufficiently provide for the protection of public
health and welfare. The commission therefore finds that permitting activities
which meet all of the demonstration criteria would not provide greater air
quality benefits. Finally, it is not necessary to specify that the executive
director must be satisfied if the criteria are met by the owner or operator,
because it is the responsibility of the regulated entity to prove the demonstration
criteria.
BP expressed concern that the rules will have significant implications
in the commission's evaluation of emissions events. In particular, necessary
and responsible startup, shutdown, and maintenance activities should retain
protective status rather than being converted to presumptive violations. BP
stated that the commission should provide legal alternatives for emissions
from necessary maintenance, startup, and shutdown operations prior to removing
the existing legal protections in the commission's general rules. ExxonMobil,
TAB, and TCC stated that facilities must be able to conduct necessary maintenance,
startup, and shutdown operations with reasonable assurance that they will
not be in violation if they follow specific guidance for emission control.
RESPONSE
As stated earlier, the commission's long-standing practice of using its
enforcement discretion is now specified in the rule. Specifically, the rules
provide that certain emissions events and excess opacity events are subject
to an affirmative defense and that emissions and opacity events resulting
from scheduled maintenance, startup, and shutdown activities are required
to be included in certain permits or meet opacity limits set by commission
rule unless the applicable criteria are proven. The demonstration criteria
that must be proved are not changed by these amendments, and thus there is
no significant change in the commission's evaluation of emissions events.
Since 1972, maintenance, startup, and shutdown activities have had no protected
status, i.e., authorization, under the rules. The commission expects necessary
maintenance, startup, and shutdown activities to meet the criteria in §101.222(c)
and (e) to avoid the requirement for a permit or meet the regulatory opacity
requirements, as applicable. If the criteria are met, the commission is confident
that the emissions were minimized and there are no adverse impacts on public
health and property.
ExxonMobil, TAB, and TCC stated that the commission should not change the
parts of the rules affecting emissions events. All emission events are subject
to being classified as excessive under §101.222(a), and if so classified,
can no longer meet the criteria for exemption. This addresses the EPA concern
that the rule provide an automatic exemption for emission events.
RESPONSE
The commenters have commingled the independent requirements of excessive
determination under §101.222(a), and when the affirmative defense under
subsections (b) and (d) is applicable. If the executive director determines
under §101.222(a) that emission events are excessive, the owner or operator
must take corrective action to reduce the emissions. This is an independent
requirement designed to obtain reductions in emissions as quickly as possible.
Each emission event remains subject to the regular enforcement process, i.e.,
each event may be part of an enforcement action. For emissions which are not
excessive, the owner or operator must meet the criteria for enforcement not
to be pursued as to penalties.
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code, §382.017, concerning
Rules, which authorizes the commission to adopt rules consistent with the
policy and purposes of the Texas Clean Air Act. The amendments are also adopted
under Texas Health and Safety Code, §382.002, concerning Policy and Purpose,
which establishes the commission purpose to safeguard the state air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, concerning General Powers and Duties, which authorizes
the commission to control the quality of the state air; §382.012, concerning
State Air Control Plan, which authorizes the commission to prepare and develop
a general, comprehensive plan for the control of the state air; §382.085,
concerning Unauthorized Emissions Prohibited, which prohibits emissions except
as authorized by commission rule or order; §382.0215, concerning Assessment
of Emissions Due to Emissions Events, which authorizes the commission to collect
and assess unauthorized emissions data due to emissions events; §382.0216,
concerning Regulation of Emissions Events, which authorizes the commission
to establish criteria for determining when emissions events are excessive
and to require facilities to take action to reduce emissions from excessive
emissions events; §382.05101, concerning
De
Minimis
Air Contaminants, which authorizes the commission to develop
by rule the criteria to establish a
de minimis
level
of air contaminants below which certain permits are not required; and §382.085,
concerning Unauthorized Emissions Prohibited, which prohibits emissions of
air contaminants except as authorized by commission by rule or order.
§101.221.Operational Requirements.
(a)
All pollution emission capture equipment and abatement
equipment shall be maintained in good working order and operated properly
during facility operations. Emission capture and abatement equipment shall
be considered to be in good working order and operated properly when operated
in a manner such that each facility is operating within authorized emission
limitations.
(b)
Smoke generators and other devices used for training inspectors
in the evaluation of visible emissions at a training school approved by the
commission are not required to meet the allowable emission levels set by the
rules and regulations, but must be located and operated such that a nuisance
is not created at any time.
(c)
Equipment, machines, devices, flues, and/or contrivances
built or installed to be used at a domestic residence for domestic use are
not required to meet the allowable emission levels set by the rules and regulations
unless specifically required by a particular regulation.
(d)
Sources emitting air contaminants which cannot be controlled
or reduced due to a lack of technological knowledge may be exempt from the
applicable rules and regulations when so determined and ordered by the commission.
The commission may specify limitations and conditions as to the operation
of such exempt sources. The commission will not exempt sources from complying
with any federal requirements.
(e)
The owner or operator of a facility has the burden of proof
to demonstrate that the criteria identified in §101.222(a) and (b) of
this title (relating to Demonstrations) for emissions events, or in §101.222(c)
of this title for scheduled maintenance, startup, or shutdown activities are
satisfied for each occurrence of unauthorized emissions. The owner or operator
of a facility has the burden of proof to demonstrate that the criteria identified
in §101.222(d) of this title for excess opacity events, or in §101.222(e)
of this title for excess opacity events resulting from scheduled maintenance,
startup, or shutdown activities are satisfied for each excess opacity event.
(f)
This section does not limit the commission's power to require
corrective action as necessary to minimize emissions, or to order any action
indicated by the circumstances to control a condition of air pollution.
(g)
This section expires on June 30, 2005.
§101.222.Demonstrations.
(a)
Excessive emissions event determinations. The executive
director shall determine when emissions events are excessive. To determine
whether an emissions event or emissions events are excessive, the executive
director will evaluate emissions events using the following criteria:
(1)
the frequency of the facility's emissions events;
(2)
the cause of the emissions event;
(3)
the quantity and impact on human health or the environment
of the emissions event;
(4)
the duration of the emissions event;
(5)
the percentage of a facility's total annual operating hours
during which emissions events occur; and
(6)
the need for startup, shutdown, and maintenance activities.
(b)
Non-excessive emissions events. Emissions events that are
determined not to be excessive are subject to an affirmative defense to all
claims in enforcement actions brought for these events, other than claims
for administrative technical orders and actions for injunctive relief, and
for which the owner or operator proves all of the following:
(1)
the owner or operator complies with the requirements of §101.201
of this title (relating to Emissions Event Reporting and Recordkeeping Requirements);
(2)
the unauthorized emissions were caused by a sudden breakdown
of equipment or process, beyond the control of the owner or operator;
(3)
the unauthorized emissions did not stem from any activity
or event that could have been foreseen and avoided, and could not have been
avoided by good design, operation, and maintenance practices;
(4)
the air pollution control equipment or processes were maintained
and operated in a manner consistent with good practice for minimizing emissions
and reducing the number of emissions events;
(5)
prompt action was taken to achieve compliance once the
operator knew or should have known that applicable emission limitations were
being exceeded;
(6)
the amount and duration of the unauthorized emissions and
any bypass of pollution control equipment were minimized;
(7)
all emission monitoring systems were kept in operation
if possible;
(8)
the owner or operator actions in response to the unauthorized
emissions were documented by contemporaneous operation logs or other relevant
evidence;
(9)
the unauthorized emissions were not part of a frequent
or recurring pattern indicative of inadequate design, operation, or maintenance;
(10)
the percentage of a facility's total annual operating
hours during which unauthorized emissions occurred was not unreasonably high;
and
(11)
unauthorized emissions did not cause or contribute to
an exceedance of the national ambient air quality standards (NAAQS), prevention
of significant deterioration (PSD) increments, or to a condition of air pollution.
(c)
Scheduled maintenance, startup, or shutdown activity. Emissions
from a scheduled maintenance, startup, or shutdown activity are required to
be included in a permit under Texas Health and Safety Code, §382.0518
or §382.0519, a standard permit under §382.05195, or a permit by
rule under §382.05196 unless the owner or operator proves all of the
following:
(1)
the owner or operator complies with the requirements of §101.211
of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting
and Recordkeeping Requirements);
(2)
the periods of unauthorized emissions from any scheduled
maintenance, startup, or shutdown activity could not have been prevented through
planning and design;
(3)
the unauthorized emissions from any scheduled maintenance,
startup, or shutdown activity were not part of a recurring pattern indicative
of inadequate design, operation, or maintenance;
(4)
if the unauthorized emissions from any scheduled maintenance,
startup, or shutdown activity were caused by a bypass of control equipment,
the bypass was unavoidable to prevent loss of life, personal injury, or severe
property damage;
(5)
the facility and air pollution control equipment were operated
in a manner consistent with good practices for minimizing emissions;
(6)
the frequency and duration of operation in a scheduled
maintenance, startup, or shutdown mode resulting in unauthorized emissions
were minimized;
(7)
all emissions monitoring systems were kept in operation
if possible;
(8)
the owner or operator actions during the period of unauthorized
emissions from any scheduled maintenance, startup, or shutdown activity were
documented by contemporaneous operating logs or other relevant evidence; and
(9)
unauthorized emissions did not cause or contribute to an
exceedance of the NAAQS, PSD increments, or a condition of air pollution.
(d)
Excess opacity events. Excess opacity events that are subject
to §101.201(e) of this title, or for other opacity events where there
was no emissions event, are subject to an affirmative defense to all claims
in enforcement actions for these events, other than claims for administrative
technical orders and actions for injunctive relief, and for which the owner
or operator proves all of the following:
(1)
the owner or operator complies with the requirements of §101.201
of this title;
(2)
the opacity did not stem from any activity or event that
could have been foreseen and avoided, and could not have been avoided by good
design, operation, and maintenance practices;
(3)
the air pollution control equipment or processes were maintained
and operated in a manner consistent with good practice for minimizing opacity;
(4)
prompt action was taken to achieve compliance once the
operator knew or should have known that applicable opacity limitations were
being exceeded;
(5)
the amount and duration of the opacity event and any bypass
of pollution control equipment were minimized;
(6)
all emission monitoring systems were kept in operation
if possible;
(7)
the owner or operator actions in response to the opacity
event were documented by contemporaneous operation logs or other relevant
evidence;
(8)
the opacity event was not part of a frequent or recurring
pattern indicative of inadequate design, operation, or maintenance; and
(9)
the opacity event did not cause or contribute to a condition
of air pollution.
(e)
Opacity events resulting from scheduled maintenance, startup,
or shutdown activity. Excess opacity events, or other opacity events where
there was no emissions event, that result from a scheduled maintenance, startup,
or shutdown activity are subject to the opacity requirements of §111.111(a)
of this title (relating to Requirements for Specified Sources) unless the
owner or operator proves all of the following:
(1)
the owner or operator complies with the requirements of §101.211
of this title;
(2)
the periods of opacity could not have been prevented through
planning and design;
(3)
the opacity was not part of a recurring pattern indicative
of inadequate design, operation, or maintenance;
(4)
if the opacity event was caused by a bypass of control
equipment, the bypass was unavoidable to prevent loss of life, personal injury,
or severe property damage;
(5)
the facility and air pollution control equipment were operated
in a manner consistent with good practices for minimizing opacity;
(6)
the frequency and duration of operation in a scheduled
maintenance, startup, or shutdown mode resulting in opacity were minimized;
(7)
all emissions monitoring systems were kept in operation
if possible;
(8)
the owner or operator actions during the opacity event
were documented by contemporaneous operating logs or other relevant evidence;
and
(9)
the opacity event did not cause or contribute to a condition
of air pollution.
(f)
Subsections (c) and (e) of this section do not remove any
obligations to comply with any other existing permit, rule, or order provisions
that are applicable to a scheduled maintenance, startup, or shutdown activity,
including complying with any federal permitting requirements.
(g)
Frequent or recurring pattern. Evidence of any past event
subject to subsections (b) - (e) of this section is admissible and relevant
to demonstrate a frequent or recurring pattern of events, even if all of the
criteria in that subsection are proven.
(h)
This section expires on June 30, 2005.
§101.223.Actions to Reduce Excessive Emissions.
(a)
The executive director will provide written notification
to an owner or operator of a facility upon determination that a facility has
had one or more excessive emissions events. The written notification shall
contain, at a minimum, a description of the emissions events that were determined
to be excessive and the time period when those excessive emissions events
were evaluated. Upon receipt of this notice, the owner or operator of the
facility must take action to reduce emissions and shall either file a corrective
action plan (CAP) or, if the emissions are sufficiently frequent, quantifiable,
and predictable, in which case the owner or operator may file a letter of
intent to obtain authorization from the commission for emissions from such
events, in lieu of a CAP.
(1)
When a CAP is required, the owner or operator must submit
a CAP to the commission office for the region in which the facility is located
within 60 days after receiving notification from the executive director that
a facility has had one or more excessive emissions events. The 60-day period
may be extended once for up to 15 days by the executive director. The CAP
shall, at a minimum:
(A)
identify the cause or causes of each excessive emissions
event including all contributing factors that led to each emissions event;
(B)
specify the control devices or other measures that are
reasonably designed to prevent or minimize similar emissions events in the
future;
(C)
identify operational changes the owner or operator will
take to prevent or minimize similar emissions events in the future; and
(D)
specify time frames within which the owner or operator
will implement the components of the CAP.
(2)
An owner or operator must obtain commission approval of
a CAP no later than 120 days after the commission receives the first CAP submission
from an owner or operator. If not disapproved within 45 days after initial
filing, the CAP shall be deemed approved. The owner or operator of a facility
must respond completely and adequately, as determined by the executive director,
to all written requests for information concerning its CAP within 15 days
after the date of such requests, or by any other deadline specified in writing.
An owner or operator of a facility may request written approval of a CAP,
in which case the commission shall take final written action to approve or
disapprove the plan within 120 days from the receipt of such request. Once
approved, the owner or operator must implement the CAP in accordance with
the approved schedule. The implementation schedule is enforceable by the commission.
The commission may require the owner or operator to revise a CAP if the commission
finds the plan, after implementation begins, to be inadequate to prevent or
minimize emissions or emissions events. If the CAP is disapproved, or determined
to be inadequate to prevent or minimize excessive emissions events, the executive
director shall identify deficiencies in the CAP and state the reasons for
disapproval of the CAP in a letter to the owner or operator. If the commission
finds a CAP inadequate to prevent or minimize excessive emissions events after
implementation begins, an owner or operator must file an amended CAP within
60 days after written notification by the executive director.
(3)
If the emissions from excessive emissions events are sufficiently
frequent, quantifiable, and predictable, and an owner or operator of a facility
elects to file a letter of intent to obtain authorization from the commission
for the emissions from excessive emissions events, the owner or operator must
file such letter within 30 days of the notification that a facility has had
one or more excessive emissions events. If the commission denies the requested
authorization, the owner or operator of a facility shall file a CAP in accordance
with paragraph (1) of this subsection within 45 days after receiving notice
of the commission denial.
(A)
If the intended authorization is a permit, the owner or
operator must file a permit application with the executive director within
120 days after the filing of the letter of intent. The owner or operator of
a facility must respond completely and adequately, as determined by the executive
director, to all written requests for information concerning its permit application
within 15 days after the date of such requests, or by any other deadline specified
in writing.
(B)
If the intended authorization is a permit by rule or standard
permit, the owner or operator must obtain authorization within 120 days after
filing of the letter of intent.
(b)
The executive director, after a review of the excessive
emissions events determinations made at a site as defined in §101.1 of
this title (relating to Definitions), may forward these determinations to
the commission requesting that it issue an order finding that the site has
chronic excessive emissions events. Orders issued by the commission under
this section shall be part of the entity's compliance history as provided
in Chapter 60 of this title (relating to Compliance History). The commission
may issue an order finding that a site has chronic excessive emissions events
after considering the following factors:
(1)
the size, nature, and complexity of the site operations;
(2)
the frequency of emissions events at the site; and
(3)
the reason or reasons for excessive emissions event determinations
at that site.
(c)
If an emissions event recurs because an owner or operator
fails to take corrective action as required and within the time specified
by a CAP approved by the commission, the emissions event is excessive and
the affirmative defenses in §101.222 of this title (relating to Demonstrations)
do not apply.
(d)
Nothing in this section shall limit the commission's ability
to bring enforcement actions for violations of the Texas Clean Air Act or
rules promulgated thereunder, including enforcement actions to require actions
to reduce emissions from excessive emissions events.
(e)
This section expires on June 30, 2005.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308781
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: July 25, 2003
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) adopts
amendments to §305.53 and §305.127. Section 305.127 is adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The changes adopted in this chapter are part of a larger rulemaking action
to revise the commission's radiation control rules. The primary purpose of
the 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 adopted
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 OR POST-CLOSURE
ORDER
Section 305.53, Application Fee
An amendment to §305.53(a)(7) reflects 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" was 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 amendment to the first sentence of §305.127 replaces the phrase
"set forth herein" with "specified in this section" to incorporate plain language
into the rule. In addition, amendments to §305.127(4)(A) and (C) correct
the titles of 30 TAC Chapter 309, Domestic Wastewater Effluent Limitation
and Plant Siting, and 30 TAC Chapter 336, Radioactive Substance Rules.
The amendments to §305.127(1)(G)(i) 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 added
stating: "After the initial 15 years, the commission may renew the license
for one or more terms of ten years." This sentence implements new Texas Health
and Safety Code, §401.222. For consistency with §336.716(h), Terms
and Conditions of License, a final sentence is 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)."
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 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 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 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.
Furthermore, the 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 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 rules do not exceed the standards set by federal law.
The 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 rule amendment that changes the term
of a license issued under Chapter 336, Subchapter H, to 15 years is consistent
with the requirements of HB 1567.
The 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
,
the NRC requirements must be implemented to maintain a compatible state program
for protection against hazards of radiation. The rule amendments do not exceed
the NRC requirements nor do they exceed the requirements for retaining status
as an "Agreement State."
The rules are adopted 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.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an assessment
of whether Texas Government Code, Chapter 2007, is applicable. The 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 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 would be neither a statutory nor
a constitutional taking of private real property. The 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 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 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 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; they 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.
PUBLIC COMMENT
Written and/or oral comments were received from the Advocates for Responsible
Disposal in Texas (ARDT); the American Electric Power (AEP); the League of
Women Voters of Dallas (LWV-Dallas); the League of Women Voters of Texas (LWV-Texas);
the Nuclear Regulatory Commission (NRC); the South Texas Project Nuclear
Operating Company (STP); the Texas Department of Insurance (TDI); the Texas
Radiation Advisory Board (TRAB); Texas Radiation Online (TRO); State Representative
Lon Burnam representing the Texas Radioactive-Waste Defense Fund (TRWDF);
TXU Energy (TXU); US Ecology, Incorporated (US Ecology); Hance Scarborough
Wright Woodward & Weisbart, L.L.P., and BakerBotts, L.L.P., on behalf
of Waste Control Specialists (WCS); and 237 individuals. One individual endorsed
the recommendations submitted by the TRWDF, and TRO agreed with the concerns
voiced by the Sierra Club. The TRWDF includes the Lone Star Chapter of the
Sierra Club, Public Citizen, Sustainable Energy & Economic Development,
the LWV-Texas, and the Nuclear Information and Resource Service.
RESPONSE TO COMMENTS
General Comments
ARDT, AEP, TRAB, and TXU generally supported the proposed rules. One individual
stated opposition to the weak regulations as currently developed. LWV-Dallas,
LWV-Texas, TRO, TRWDF, and 234 individuals urged the commission to establish
regulations that are second to none or rules that are more stringent than
the proposed rules. ARDT, AEP, LWV-Dallas, LWV-Texas, NRC, STP, TDI, TRAB,
TRO, US Ecology, TRWDF, WCS, TXU, and 237 individuals raised issues or suggested
changes to the rules.
Consistent Use of Terminology
WCS commented that §336.705 should be modified to provide that "An
application for a license to receive, possess, and dispose of LLRW from other
persons by near-surface land disposal shall consist of, but is not limited
to, the information specified in Chapter 305 of this title (relating to Consolidated
Permits) as such information pertains to the disposal facility site." WCS
commented that this modification will provide clarity and address potential
ambiguities about the use of the terms "facility" and "site" that are used
in Chapter 305 of the commission rules.
The commission disagrees with this comment. The commission rules in Chapter
336, Subchapter H, are based on the NRC Rules in 10 Code of Federal Regulations,
Part 61, Licensing Requirements for Land Disposal of Radioactive Waste. Both
the commission and the NRC rules consider and regulate the processing of waste
that is disposed in the near-surface land disposal facility. Neither the commission's
licensing of disposal nor the commission's authority to regulate disposal
are confined to a specific geographic location, such as within the boundaries
of the land disposal facility. The commission's interpretation of the extent
of its authority to regulate the processing of waste for disposal is consistent
with the commission's historical practice in reviewing the licenses for LLRW
disposal from other persons, the commission's rules, and the memorandum of
understanding with the Texas Department of Health. A new definition for "Site"
is added to §336.702 to provide clarity and consistency.
License Issues - Renewal
WCS commented that the requirement to submit a renewal application one
year prior to license expiration is unprecedented and unworkable because the
application would not be reflective of data and site conditions at the time
of license expiration because the data would have to be collected so far in
advance. WCS commented that the 30-day requirement be maintained or, at most,
the timing be no more restrictive than 180 days as required by the Texas Solid
Waste Disposal Act and the Texas Injection Well Act.
The commission disagrees with this comment. Submitting the renewal application
one year in advance of the expiration date is a reasonable requirement given
the complexity of the renewal application and the time required to conduct
a thorough technical review of the application. Furthermore, the extended
length of a low-level radioactive waste disposal license dictates a thorough
technical review prior to renewal. The commission has made no change in response
to this comment.
TXU requested that the license renewal option in §305.127 be maintained
because Texas generators will continue to operate and need a disposal option
beyond the 15-year initial license term. AEP expressed support for §305.127
allowing the facility's license to be renewed for one or more ten-year terms
because nuclear power plants in Texas will operate for more than the 20-year
nonrenewable license term specified in the rules.
The commission agrees with this commenter and notes that the license may
be renewed for one or more terms of ten years. The commission has made no
change in response to this comment.
Subchapter C. APPLICATION FOR PERMIT OR POST-CLOSURE ORDER
30 TAC §305.53
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendment is also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation (also known as the Texas Radiation Control
Act); §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of low-level radioactive waste; and §401.412,
concerning Commission Licensing Authority, which authorizes the commission
to issue licenses for the disposal of radioactive substances.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308733
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
30 TAC §305.127
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendment is also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation (also known as the Texas Radiation Control
Act); §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of low-level radioactive waste; and §401.412,
concerning Commission Licensing Authority, which authorizes the commission
to issue licenses for the disposal of radioactive substances.
§305.127.Conditions to be Determined for Individual Permits.
Conditions to be determined on a case-by-case basis according to the
criteria specified in this section, and when applicable, incorporated into
the permit expressly or by reference, are:
(1)
Duration.
(A)
Injection well permits.
(i)
Permits for Class I and Class V wells shall be for a fixed
term not to exceed ten years.
(ii)
Permits for Class III wells or projects may be for the
life of the well or project, and shall be reviewed at least once every five
years.
(B)
Solid waste permits.
(i)
Hazardous waste permits shall be for a fixed term not to
exceed ten years.
(ii)
Other solid waste permits may be for the life of the project.
(iii)
Each permit for a land disposal facility used to manage
hazardous waste shall be reviewed by the executive director five years from
the date of permit issuance or reissuance and shall be modified as necessary
by the commission, as provided in §305.62(e) of this title (relating
to Amendment).
(C)
Waste discharge permits.
(i)
Texas pollutant discharge elimination system (TPDES) permits,
including sludge permits, shall be for a term not to exceed five years.
(ii)
All other permits shall be as follows:
(I)
Permits which authorize a direct discharge of wastewater
into a surface drainageway shall be for a term not to exceed five years.
(II)
Confined animal feeding operation permits may be for the
life of the project.
(III)
Other wastewater permits, including permits which regulate
land disposal systems, shall be for a term not to exceed ten years.
(D)
Drilled or mined shaft permits. Drilled or mined shaft
permits which authorize operation of a drilled or mined shaft shall be for
a term not to exceed ten years.
(E)
Term of permit. The term of a permit shall not be extended
by amendment beyond the maximum duration specified in this section.
(F)
Duration of permit. The executive director may recommend
that a permit be issued and the commission may issue any permit, for a duration
less than the full allowable term under this section.
(G)
Radioactive material licenses.
(i)
A license issued under Chapter 336, Subchapter H of this
title (relating to Licensing Requirements for Near-Surface Land Disposal of
Low-Level Radioactive Waste) shall be issued for an initial term of 15 years
from the date of issuance. After the initial 15 years, the commission may
renew the license for one or more terms of ten years. 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).
(ii)
Other radioactive material licenses shall be for a fixed
term not to exceed ten years.
(2)
Monitoring, recording, and reporting.
(A)
Requirements concerning the proper use, maintenance, and
installation of monitoring equipment or methods shall be specified by the
commission as appropriate.
(B)
The type, intervals, and frequency of monitoring shall
be set to yield data representative of the monitored activity, at a minimum
as specified in commission rules for monitoring and reporting.
(C)
Other requirements for monitoring and reporting shall be
set at a minimum as specified in commission rules for monitoring and reporting.
(3)
Schedule of compliance.
(A)
A schedule of compliance prescribing a timetable for achieving
compliance with the permit conditions, the appropriate law, and regulations
may be incorporated into a permit. The schedule shall require compliance as
soon as possible and may set interim dates of compliance. For injection wells,
compliance shall be required not later than three years after the effective
date of the permit. For TPDES permits the schedule of compliance shall require
compliance not later than authorized by Chapter 307 of this title (relating
to Texas Surface Water Quality Standards).
(B)
For schedules of compliance exceeding one year, interim
dates of compliance not exceeding one year shall be set, except that in the
case of a schedule for compliance with standards for sewage sludge use and
disposal, the time between interim dates shall not exceed six months.
(C)
Reporting requirements for each schedule of compliance
shall be specified by the commission as appropriate. Reports of progress and
completion shall be submitted to the executive director no later than 14 days
after each schedule date.
(D)
For TPDES permits the following additional conditions apply.
(i)
The first TPDES permit issued to a new source or a new
discharger shall contain a schedule of compliance only when necessary to allow
a reasonable opportunity to attain compliance with requirements issued or
revised after commencement of construction but less than three years before
commencement of the relevant discharge.
(ii)
For recommencing dischargers, a schedule of compliance
shall be available only when necessary to allow a reasonable opportunity to
attain compliance with requirements issued or revised less than three years
before recommencement of discharge.
(iii)
If a permit establishes a schedule of compliance which
exceeds one year from the date of permit issuance, the permit schedule shall
set forth interim requirements and the dates for their achievement.
(E)
For UIC permits, the time for compliance shall require
compliance as soon as possible, and in no case later than three years after
the effective date of the permit. Except as provided in clause (iii)(I)(-b-)
of this subparagraph, if a permit establishes a schedule of compliance which
exceeds one year from the date of permit issuance, the schedule shall set
forth interim requirements and the dates for their achievement.
(i)
The time between interim dates shall not exceed one year.
(ii)
If the time necessary for completion of any interim requirement
is more than one year and is not readily divisible into stages for completion,
the permit shall specify interim dates for the submission of reports of progress
toward completion of the interim requirements and indicate a projected completion
date.
(iii)
A permit applicant or permittee may cease conducting
regulated activities (by plugging and abandonment) rather than continue to
operate and meet permit requirements as follows.
(I)
If the permittee decides to cease conducting regulated
activities at a given time within the term of a permit which has already been
issued:
(-a-)
the permit may be modified to contain a new or additional
schedule leading to timely cessation of activities; or
(-b-)
the permittee shall cease conducting permitted activities
before noncompliance with any interim or final compliance schedule requirement
already specified in the permit.
(II)
If the decision to cease conducting regulated activities
is made before issuance of a permit whose term will include the cessation
date, the permit shall contain a schedule leading to cessation of activities
which will ensure timely compliance with applicable requirements.
(III)
If the permittee is undecided whether to cease conducting
regulated activities, the executive director may issue or modify a permit
to contain two schedules as follows:
(-a-)
both schedules shall contain an identical interim deadline
requiring a final decision on whether to cease conducting regulated activities
no later than a date which ensures sufficient time to comply with applicable
requirements in a timely manner if the decision is to continue conducting
regulated activities;
(-b-)
one schedule shall lead to timely compliance with applicable
requirements;
(-c-)
the second schedule shall lead to cessation of regulated
activities by a date which will ensure timely compliance with applicable requirements;
and
(-d-)
each permit containing two schedules shall include a
requirement that after the permittee has made a final decision under item
(-a-) of this subclause, it shall follow the schedule leading to compliance
if the decision is to continue conducting regulated activities, and follow
the schedule leading to cessation if the decision is to cease conducting regulated
activities.
(IV)
The applicant's or permittee's decision to cease conducting
regulated activities shall be evidenced by a firm public commitment satisfactory
to the executive director, such as a resolution of the board of directors
of a corporation.
(4)
Requirements for individual programs.
(A)
Requirements to provide for and assure compliance with
standards set by the rules of the commission and the laws of Texas shall be
determined and included in permits on a case-by-case basis to reflect the
best method for attaining such compliance. Each permit shall contain terms
and conditions as the commission determines necessary to protect human health
and safety, and the environment. Reference is made to Chapter 330 of this
title (relating to Municipal Solid Waste) for municipal solid waste facility
standards, to Chapter 331 of this title (relating to Underground Injection
Control) for injection well standards, to Chapter 335 of this title (relating
to Industrial Solid Waste and Municipal Hazardous Waste) for solid waste facility
standards, to Chapter 336 of this title (relating to Radioactive Substance
Rules) for radioactive material disposal standards, to Chapter 309 of this
title (relating to Domestic Wastewater Effluent Limitation and Plant Siting)
for waste discharge standards, and to Chapter 329 of this title (relating
to Drilled or Mined Shafts) for drilled or mined shaft standards.
(B)
Any applicable statutory or regulatory requirements which
take effect prior to final administrative disposition of an application for
a permit or prior to the amendment, modification, or suspension and reissuance
of a permit shall be included in the permit.
(C)
New, amended, modified, or renewed permits shall incorporate
any applicable requirements contained in Chapter 331 of this title for injection
well standards, Chapter 335 of this title for solid waste facility standards,
Chapter 336 of this title, Chapter 309 of this title for waste discharge standards,
and Chapter 329 of this title for drilled or mined shaft standards.
(5)
Wastes authorized.
(A)
Injection well permits. Each category of waste to be disposed
of by injection well shall be authorized in the permit.
(B)
Drilled or mined shaft permits. Each category of waste
to be handled, stored, processed, or disposed of in a drilled or mined shaft,
or in associated surface facilities shall be authorized in the permit.
(C)
Unauthorized wastes. Wastes not authorized by permit are
prohibited from being transported to, stored, and processed or disposed of
in a permitted facility.
(6)
Permit conditions. All permit conditions shall be incorporated
either expressly or by reference. If incorporated by reference, a specific
citation to the applicable rules or requirements must be given in the permit.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308732
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts the amendments to §§332.3, 332.8, 332.31, 332.37, 332.41,
and 332.47. Sections 332.3, 332.41, and 332.47 are adopted
with changes
to the proposed text as published in the August 22, 2003,
issue of the
Texas Register
(28 TexReg 6726).
Sections 332.8, 332.31, and 332.37 are adopted
without
changes
and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
This rulemaking implements the requirements of House Bill 1791, 78th Legislature,
2003, and House Bill 7, 78th Legislature, 2003, Third Called Session, which
require 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 pending registration applications will be
required to obtain a permit rather than a registration. All proposed facilities
will be required to apply for a permit. For existing facilities to continue
operating, they must submit a timely application for a permit that is declared
administratively complete by the commission by June 1, 2004.
SECTION BY SECTION DISCUSSION
Administrative and grammatical changes are adopted throughout the sections
to be consistent with Texas Register requirements.
Adopted new §332.3(a)(3), Applicability, adds operations that commercially
compost grease trap waste to the list of compost operations that are subject
to permit requirements, and provides a definition of grease trap waste.
Adopted new §332.3(a)(3)(A) adds that proposed operations that compost
grease trap waste in any amount are subject to permit requirements.
New §332.3(a)(3)(B) is adopted with change to add that existing facilities
that are composting grease trap waste under a current registration may continue
operating if they submit a timely application for a permit that is declared
administratively complete by June 1, 2004.
Adopted §332.3(b) deletes paragraph (4) 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.
Adopted §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 composting grease trap waste are moved to the amended section with air
quality requirements for facilities subject to permits.
Adopted §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.
Adopted §332.31(a), Definition of and Requirements for Registered
Facilities, deletes paragraph (4) 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.
Adopted §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 with groundwater
protection requirements for facilities subject to permits. The paragraph also
replaces the word "shall" with the word "must" as appropriate.
Section 332.41(a)(3), Definition, Requirements, and Application Processing
for a Permit Facility, is adopted with change to add operations that commercially
compost grease trap waste to the list of compost operations that are subject
to permit requirements.
Section 332.41(c) is adopted with change to reflect that all permit applications
are subject to the standards and requirements as set forth in: 30 TAC Chapter
39, Subchapters H and I, concerning Public Notice; 30 TAC Chapter 50, Subchapters
E - G, concerning Action on Applications and Other Authorizations; and 30
TAC Chapter 55, Subchapters D - F, concerning Requests for Reconsideration
and Contested Case Hearings; Public Notice.
Adopted §332.47, Permit Application Preparation, replaces the word
"shall" with the word "must" or "will" as appropriate.
Section 332.47(6)(C)(ii)(II) is adopted with change to require sample collection
within 60 days of permit issuance for existing operations.
Section 332.47(6)(C)(ii)(II)(-c-) is adopted with change to require that
an original and two copies of groundwater monitoring results be submitted
to the executive director.
Section 332.47(6)(C)(ii)(II) is adopted with change to add items (-d-)
and (-e-) to provide for the establishment of an alternative list of groundwater
monitoring constituents.
Section 332.47(9) is adopted with change to require that financial assurance
be provided within 60 days of a permit being issued for facilities operating
under an existing registration.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rules in light of the regulatory analysis requirements
of Texas Government Code, §2001.0225, and determined that the 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 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 rules. Therefore, it is not anticipated that the 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 rules
do not meet the definition of a major environmental rule.
Furthermore, even if the rules did meet the definition of a major environmental
rule, the 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 rules do not meet any of these requirements. First, there
are no applicable federal standards that these rules would address. Second,
the rules do not exceed an express requirement of state law, but instead implement
the statutory requirement for permitting grease trap waste composters. Third,
there is no delegation agreement that would be exceeded by these rules because
none relates to this subject matter area. Fourth, the commission adopts these
rules under the rulemaking direction of: House Bill 1791, 78th Legislature,
2003, amending Texas Health and Safety Code, §361.428; House Bill 7,
Article 8, §8.02, 78th Legislature, 2003, Third Called Session; and not
solely under the commission's general powers. Written comments on the draft
regulatory impact analysis determination were solicited; no comments were
received on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these rules and performed an assessment of whether
the rules constitute a takings under Texas Government Code, Chapter 2007.
The specific purpose of the rules is to more closely regulate the commercial
composting of grease trap waste to improve environmental protection. The 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 rules would be neither a statutory
nor a constitutional takings of private real property because the rules do
not affect real property.
In particular there are no burdens imposed on private real property, and
the 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 rules will not constitute
a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the 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 rules for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council. The commission determined that the 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 rules will not violate (exceed) any standards identified in the applicable
CMP goals and policies. Therefore, these rules are consistent with CMP goals
and policies. Written comments on the consistency of this rulemaking with
the CMP were solicited; no comments were received on the consistency of this
rulemaking with the CMP.
PUBLIC COMMENT
The comment period closed on September 22, 2003. Comments were received
from Aqua-Zyme Services, Inc. (AZS); Darling Restaurant Services (DRS); Fritz,
Byrne, Head & Harrison, L.L.P. (FBHH); J.W. Massey (JWM); Liquid Environmental
Solutions (LES); National Hospitality Services, L.P. dba Quality Vacuum Company
(QVC); Texas Disposal Systems (TDS); Wholearth Organic Composting (WOC);
Representative Eddie Rodriguez; and six individuals. Nine commenters generally
supported the rulemaking, and six commenters opposed the rulemaking.
JWM and QVC requested that a public hearing be held on the proposed rule.
However, the commission did not receive a sufficient number of requests to
mandate the opportunity for a public hearing, as set forth in Texas Government
Code, §2001.029(b), and did not hold a hearing on the proposal.
RESPONSE TO COMMENTS
Comment
Representative Rodriguez, LES, TDS, and six individuals commented that
they supported the adoption of these rules.
Response
The commission appreciates these comments in support of the rulemaking.
Comment
FBHH commented that the statutory requirement that existing registered
grease trap composting facilities submit an application for a permit not later
than 30 days following commission notification, and the requirement that existing
registered facilities receive a permit by June 1, 2004, to continue composting
grease trap waste, place an unreasonable burden on the applicant to meet the
permit application requirements, and on the commission to process an application
and issue a permit by the June 1, 2004 deadline. FBHH stated that the proposed
rules should differentiate between applications submitted by existing registered
facilities and applicants for new facilities, and that provisions for an expedited
permitting process should be provided in the rule for the registered operational
grease trap composting facilities.
Response
In regard to the rule not allowing adequate time for applicants to file
applications and obtain permits, the commission will follow the schedule mandated
by House Bill 7, 78th Legislature, 2003, Third Called Session, which amended
House Bill 1791, 78th Legislature, 2003. The rules have been amended to reflect
changes made in House Bill 7 which authorize existing registered facilities
to continue composting grease trap waste if they submit a timely application
for a permit, and the application is declared administratively complete by
June 1, 2004. These changes provide some relief for the deadline to file an
application, since the deadline for the commission to provide notice triggering
the 30-day period to file an application was changed from November 1, 2003
to December 1, 2003. The commission will process applications in a timely
manner so that existing operations will be able to continue operating.
In regard to the deadline for an existing facility to obtain a permit,
House Bill 7 made a significant change by deleting the deadline for obtaining
a permit and substituting that applications must be administratively complete
by June 1, 2004. This legislative change provides a reasonable amount of time
to have an application declared administratively complete, and the revised
schedule is reflected in §332.3(a)(3)(B). Removing the deadline for existing
facilities to obtain a permit also alleviates the need for the commission
to create an expedited permitting process as requested by the commenter. In
response to the comment regarding the need to distinguish between applications
for new facilities and existing facilities, the commission has made several
changes reflecting different treatment for existing and new facilities by
requiring that financial assurance be provided within 60 days of a permit
being issued for facilities operating under an existing registration.
Comment
FBHH commented that the procedural notice requirements in the proposed
rule, which require notice of administrative completeness and three separate
notices of technical completeness, will prevent the commission from meeting
the statutory requirements that it begin issuing permits under the new rule
by January 1, 2004, and prevent applications received from existing registered
facilities from being processed and a permit issued by June 1, 2004, so those
facilities may remain in operation. FBHH stated that a truncated notice process
should be included in the rule.
Response
As discussed in the preceding Response, House Bill 7, 78th Legislature,
2003, Third Called Session, which amended House Bill 1791, 78th Legislature,
2003, extended the deadline for an existing facility to file an application
for a permit, removed the deadline for obtaining a permit, and substituted
that applications must be administratively complete by June 1, 2004. House
Bill 7 also changed the date for the commission to begin issuing permits from
January 1, 2004 to September 1, 2005. In response to the comment that three
separate notices of technical completeness are required, the commission has
revised the notice procedures in §332.41(c), to conform with the standards
and requirements set forth in Chapters 39, 50, and 55. This will establish
notice requirements for composting permits that are consistent with notice
requirements for other permits issued by the commission. The timing of these
processing and notice procedures will be manageable in light of the changes
made by House Bill 7, including removing the deadline for obtaining a permit.
Comment
AZS and DRS, commented that the term "grease trap waste" is not defined
in existing commission rules or the proposed rule and, with TDS, suggested
that the term be defined.
Response
The commission agrees that a definition should be included in the rule
and has revised §332.3(a)(3) to include a definition of grease trap waste.
Comment
AZS, DRS, JWM, and QVC commented that grease trap waste which has been
de-watered or otherwise processed to remove liquids has been materially altered
and that these materials should be allowed as composting feedstock at registered,
rather than permitted, facilities. DRS commented that after de-watering, the
remaining solids are "Positively-sorted organic material" as defined in §332.2(46).
Response
The commission does not agree that the waste solids resulting from de-watering
meet the definition of positively-sorted organic materials, which are defined
in §332.2(46) as "sorted or pulled . . . from mixed municipal solid waste
prior to the initiation of processing," or that removing liquids from grease
trap waste or mixing grease trap waste with other waste steams justifies excluding
such material from being regulated as grease trap waste. The commission has
revised the rule to provide a definition of grease trap waste in §332.3(a)(3)
that includes "...solids resulting from de-watering process."
Comment
QVC commented that preventing registered composting facilities from accepting
grease trap waste will reduce the number of options available to transporters,
thereby restricting competition and increasing costs. DRS commented that the
inability to utilize registered composters will jeopardize the 10% recycling
option necessary to maintain its liquid waste processor registration, and
that it defeats previous TCEQ's efforts to encourage recycling of reusable
materials and to reduce the volume of recyclable waste going to landfills.
Response
The commission understands there is a potential impact to other segments
of the industry, but the commission is responsible for implementing the requirements
of House Bill 7, 78th Legislature, 2003, Third Called Session, which amended
House Bill 1791, 78th Legislature, 2003. The commission will implement the
legislature's directive to begin requiring permits for these facilities in
an effort to provide more protection to persons who could be affected by these
facilities. The commission also believes that the rules provide a reasonable
process for existing registered facilities to continue operating while seeking
a permit and that there will be little or no reduction in the number of grease
trap waste composting facilities. The commission has not revised the rule
in response to these comments.
Comment
FBHH commented that House Bill 1791, 78th Legislature, 2003, does not require
these permits to be subject to the notice and hearing provisions of Texas
Water Code, Chapter 5, Subchapter M, and that applications under Chapter 332
are specifically excluded from the public notice provisions in Chapter 39;
therefore, the reference to a hearing in §332.41(c)(1)(B) is unnecessary
and should be deleted.
Response
By requiring these facilities to obtain permits under House Bill 1791,
78th Legislature, 2003, the legislature has made these applications subject
to the notice and hearing provisions of Texas Water Code, Chapter 5, Subchapter
M. This change is reflected in revised §332.41(c), which makes these
applications subject to the standards and requirements as set forth in Chapter
39, Subchapters H and I, concerning Public Notice; Chapter 50, Subchapters
E - G, concerning Action on Applications and Other Authorizations; and Chapter
55, Subchapters D - F, concerning Requests for Reconsideration and Contested
Case Hearings; Public Notice. These provisions of Chapters 39, 50, and 55
implement the requirements of Texas Water Code, Chapter 5, Subchapter M. In
expressly making these applications subject to the notice provisions of Chapter
39, Subchapters H and I, the commission intended to make these applications
subject to those provisions regardless of §39.403(c)(3), which provides
that Chapter 39 does not apply to Chapter 332 applications. It may be appropriate
to amend Chapter 39 in the future to reflect this change and to cross-reference
the new notice provisions in Chapter 332.
Comment
FBHH commented that existing registered facilities previously have received
authorization from the commission under existing siting criteria and that
existing registered grease trap waste composting facilities should not be
subject to application requirements in §332.47(4), concerning Land Use.
Response
The commission does not agree that the applicants were required to perform
an evaluation of similar criteria for a registration application, and finds
no basis for a deletion of the requirements relating to land use. Even if
some land use information was provided in an application for a registration
under Chapter 332, Subchapter C, the commission did not have any rules governing
what information was required or provisions for public participation equal
to those provided under Subchapter D. The commission has not revised the rule
based on these comments.
Comment
FBHH commented that existing registered facilities previously have received
authorization from the commission under relevant siting criteria and that
existing registered grease trap waste composting facilities should not be
subject to application requirements in §332.47(5), concerning Access.
Response
The commission agrees that the location standards are similar for registrations
and permits and disagrees that the permit requirements for access (roadway
information) have a comparable requirement for registrations. Regardless of
whether an existing registration provided some or all of the information needed
for a permit application, that information was not subject to a full review
in the permitting process with full public participation. The commission has
not revised the rule based on these comments.
Comment
FBHH and WOC commented that prior approval of the soil boring plan, as
required in §332.47(6)(B)(iv)(I), will place an unnecessary burden on
the registered facilities trying to meet the required deadlines, and that
the requirement for prior approval should be removed from the rule.
Response
Prior approval of a proposed boring plan is required to ensure that the
number and depth of borings meets the regulatory requirements, that the distribution
of borings appears to be appropriate to the proposed site, and to prevent
the commission from having to require that the applicant perform additional
borings at a later date. The commission will perform a timely review of any
boring plan provided by an existing registered compost facility attempting
to submit an application in accordance with the new rule. The commission has
not revised the rule in response to these comments.
Comment
WOC commented that the application of groundwater protection requirements
in §332.47(6)(C) to shallow surface infiltration and the monitoring of
these zones are not justified by the environmental benefits, and that reference
to these zones should be deleted from the rule.
Response
The groundwater protection plan in §332.47(6)(C) relates to both groundwater
monitoring and to liner system requirements. The reference to shallow surface
infiltration does not automatically require the monitoring of these zones,
and is designed to ensure that the applicant evaluates and addresses any conditions
that may provide a potential for off-site contaminant migration. This provision
is also consistent with §330.5, which prohibits the discharge of waste
into "waters in the state" which is defined in §330.2(164) to include
groundwater percolating or otherwise. The commission has made no changes to
the rule in response to these comments.
Comment
WOC commented that analysis of heavy metals as part of the groundwater
sampling program required in §332.47(6)(C)(ii)(II)(-a-) is an inappropriate
set of monitoring constituents for a grease trap waste composting operation,
due to the nature of the waste stream. WOC recommended that this requirement
be deleted.
Response
The groundwater monitoring lists in §332.47(6)(C)(ii)(II) were designed
to monitor for contaminants from a broad range of wastes for any of the facilities
that can be authorized under §332.41(a). The commission agrees that if
the waste stream is restricted, the ability to waive the requirements for
a constituent from the lists or propose an alternative monitoring list that
is no less protective of the environment is appropriate, and has revised §332.47(6)(C)(ii)(II)
to include these options.
Comment
FBHH commented that the groundwater sampling program requirement in §332.47(6)(C)(ii)(II)
that samples be collected from each well prior to the acceptance of materials
for processing should be revised to allow compliance by existing registered
facilities that will be obtaining a permit.
Response
The commission agrees that the rule does not provide for an existing registered
operation that has obtained a permit and has revised the rule to require sample
collection within 60 days of permit issuance for existing operations.
Subchapter A. GENERAL INFORMATION
30 TAC §332.3, §332.8
STATUTORY AUTHORITY
The amendments are adopted under Texas Health and Safety Code, §361.428,
as amended by House Bill 1791, §1, 78th Legislature, 2003, and under
House Bill 7, Article 8, §8.02, 78th Legislature, 2003, Third Called
Session, which prohibit the commercial composting of grease trap waste without
a permit; §361.011, which establishes the commission's jurisdiction over
all aspects of the management of municipal solid waste with all powers necessary
or convenient to carry out the responsibilities of that jurisdiction; §361.061,
which authorizes the commission to issue permits governing the construction,
operation, and maintenance of solid waste facilities used to store, process,
or dispose of solid waste under this chapter; and §361.024, which provides
the commission with rulemaking authority.
§332.3.Applicability.
(a)
Permit required. The following compost operations are subject
to the general requirements found in §332.4 of this title (relating to
General Requirements), and the requirements set forth in Subchapters D - G
of this chapter (relating to Operations Requiring a Permit; Source-Separated
Recycling; Household Hazardous Waste Collection; and End-Product Standards),
and the air quality requirements in §332.8 of this title (relating to
Air Quality Requirements). These operations are required to obtain a permit
from the commission under Chapters 305 and 281 of this title (relating to
Consolidated Permits; and Applications Processing):
(1)
operations that compost mixed municipal solid waste;
(2)
operations that add any amount of mixed municipal solid
waste as a feedstock in the composting process; and
(3)
operations that commercially compost grease trap waste
on or after September 1, 2003. Grease trap waste is material collected in
and from an interceptor in the sanitary sewer service line of a commercial,
institutional, or industrial food service or processing establishment, including
the solids resulting from de-watering processes.
(A)
All proposed operations that compost any amount of grease
trap waste must apply for a permit and must have a permit prior to operating.
(B)
Existing facilities that are composting grease trap waste
under a current registration can continue to operate as authorized by that
registration if:
(i)
the person holding the registration submits an application
for a permit under Subchapter D of this chapter not later than the 30th day
after receiving notice from the commission of the requirement to submit an
application under Texas Health and Safety Code, §361.428(d); and
(ii)
the commission declares the application administratively
complete on or before June 1, 2004.
(b)
Registration required. The following compost operations
are subject to the requirements found in §332.4 of this title, the requirements
set forth in Subchapters C and G of this chapter (relating to Operations Requiring
a Registration; and End-Product Standards), and the air quality requirements
in §332.8 of this title:
(1)
operations that compost municipal sewage sludge, except
those facilities that compost municipal sewage sludge with mixed municipal
solid waste;
(2)
operations that compost positively-sorted organic materials
from the municipal solid waste stream;
(3)
operations that compost source-separated organic materials
not exempted under subsection (d) of this section;
(4)
operations that compost disposable diapers or paper products
soiled by human excreta;
(5)
operations that compost the sludge byproduct generated
from the production of paper if the executive director determines that the
feedstock is appropriate under §332.33 of this title (relating to Required
Forms, Applications, Reports, and Request to Use the Sludge Byproduct of Paper
Production); and
(6)
operations that incorporate any of the materials set forth
in paragraphs (1) - (5) of this subsection with source-separated yard trimmings,
clean wood material, vegetative material, paper, manure, meat, fish, dairy,
oil, grease materials, or dead animal carcasses.
(c)
Operations requiring notification. The following operations
are subject to all requirements set forth in Subchapter B of this chapter
(relating to Operations Requiring a Notification), the general requirements
found in §332.4 of this title, and the air quality requirements in §332.8
of this title:
(1)
operations that compost any source-separated meat, fish,
dead animal carcasses, oils, greases, or dairy materials; and
(2)
operations that incorporate any of the materials set forth
in paragraph (1) of this subsection with source-separated yard trimmings,
clean wood material, vegetative material, paper, or manure.
(d)
Operations exempt from facility notification, registration,
and permit requirements. The following operations are subject to the general
requirements found in §332.4 of this title, the air quality requirements
in §332.8 of this title, and are exempt from notification, registration,
and permit requirements found in Subchapters B - D of this chapter. Operations
under paragraphs (1) and (3) of this subsection are subject to the requirements
of an exempt recycling facility under §328.4 and §328.5 of this
title (relating to Limitations on Storage of Recyclable Materials; and Reporting
and Recordkeeping Requirements):
(1)
operations that compost only materials listed in subparagraphs
(A) and (B) of this paragraph:
(A)
source-separated yard trimmings, clean wood material, vegetative
material, paper, and manure;
(B)
source-separated industrial materials listed in §332.4(10)
of this title excluding those items listed in §332.4(10)(A), (F) - (H),
and (J) of this title;
(2)
agricultural operations that generate and compost agricultural
materials on-site;
(3)
mulching operations;
(4)
land application of yard trimmings, clean wood materials,
vegetative materials, and manure at rates below or equal to agronomic rates
as determined by the Texas Agricultural Extension Service;
(5)
application of paper that is applied to land for use as
an erosion control or a soil amendment; and
(6)
on-site composting of industrial solid waste at a facility
that is in compliance with §335.2 of this title (relating to Permit Required)
and §335.6 of this title (relating to Notification Requirements).
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the
Office of the Secretary of State on December 19, 2003.
TRD-200308749
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
30 TAC §332.31, §332.37
STATUTORY AUTHORITY
The amendments are adopted under Texas Health and Safety Code, §361.428,
as amended by House Bill 1791, §1, 78th Legislature, 2003, and under
House Bill 7, Article 8, §8.02, 78th Legislature, 2003, Third Called
Session, which prohibit the commercial composting of grease trap waste without
a permit; §361.011, which establishes the commission's jurisdiction over
all aspects of the management of municipal solid waste with all powers necessary
or convenient to carry out the responsibilities of that jurisdiction; §361.061,
which authorizes the commission to issue permits governing the construction,
operation, and maintenance of solid waste facilities used to store, process,
or dispose of solid waste under this chapter; and §361.024, which provides
the commission with rulemaking authority.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308750
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
30 TAC §332.41, §332.47
STATUTORY AUTHORITY
The amendments are adopted under Texas Health and Safety Code, §361.428,
as amended by House Bill 1791, §1, 78th Legislature, 2003, and under
House Bill 7, Article 8, §8.02, 78th Legislature, 2003, Third Called
Session, which prohibit the commercial composting of grease trap waste without
a permit; §361.011, which establishes the commission's jurisdiction over
all aspects of the management of municipal solid waste with all powers necessary
or convenient to carry out the responsibilities of that jurisdiction; §361.061,
which authorizes the commission to issue permits governing the construction,
operation, and maintenance of solid waste facilities used to store, process,
or dispose of solid waste under this chapter; and §361.024, which provides
the commission with rulemaking authority.
§332.41.Definition, Requirements, and Application Processing for a Permit Facility.
(a)
Definition of permitted facilities. The following operations
are subject to the requirements of this subchapter:
(1)
operations that compost mixed municipal solid waste not
in accordance with §332.31 of this title (relating to Definition of and
Requirements for Registered Facilities);
(2)
operations that add any amount of mixed municipal solid
waste as a feedstock in the composting process; and
(3)
operations that commercially compost grease trap waste.
(b)
Requirements for permitted facilities. The operations listed
in subsection (a) of this section are subject to the general requirements
found in §332.4 of this title (relating to General Requirements), and
the requirements set forth in this subchapter, the requirements set forth
in Subchapters E - G of this chapter (relating to Source-Separated Recycling;
Household Hazardous Waste Collection; and End-Product Standards), and the
air quality requirements set forth in §332.8 of this title (relating
to Air Quality Requirements).
(c)
Processing of application for a permitted facility. All
permit applications are subject to the standards and requirements as set forth
in Chapter 39, Subchapters H and I of this title (relating to Public Notice);
Chapter 50, Subchapters E - G of this title (relating to Action on Applications
and Other Authorizations); and Chapter 55, Subchapters D - F of this title
(relating to Requests for Reconsideration and Contested Case Hearings; Public
Notice).
§332.47.Permit Application Preparation.
To assist the commission in evaluating the technical merits of a compost
facility, an applicant subject to this chapter shall submit a site development
plan to the commission along with Compost Form Number 3. The site development
plan must be sealed by a registered professional engineer in accordance with
the provisions of 22 TAC §131.166 (relating to Engineers' Seals). If
the site development plan is submitted in a three-ring binder or in a format
that allows the removal or insertion of individual pages, it will not be considered
a bound document. The site development plan must contain all of the following
information.
(1)
Title page. A title page shall show the name of the project,
the county (and city if applicable) in which the proposed project is located,
the name of the applicant, the name of the engineer, the date the application
was prepared, and the latest date the application was revised.
(2)
Table of contents. A table of contents shall be included,
which lists the main sections of the plan, any requested variances, and includes
page numbers.
(3)
Engineer's appointment. The site development plan shall
contain an engineer's appointment, which consists of a letter from the applicant
to the executive director identifying the consulting engineering firm responsible
for the submission of the plan, specifications, and any other technical data
to be evaluated by the commission regarding the project.
(4)
Land use. To assist the executive director in evaluating
the impact of the facility on the surrounding area, the applicant shall provide
the following:
(A)
a description of the zoning at the facility and within
one mile of the facility. If the facility requires approval as a nonconforming
use or a special use permit from the local government having jurisdiction,
a copy of such approval shall be submitted with the application;
(B)
a description of the character of the surrounding land
uses within one mile of the proposed facility;
(C)
proximity to residences and other uses (e.g., schools,
churches, cemeteries, historic structures, historic sites, archaeologically
significant sites, sites having exceptional aesthetic quality, parks, recreational
sites, recreational facilities, licensed day care, etc.). Give the approximate
number of residences and business establishments within one mile of the proposed
facility including the distances and directions to the nearest residences
and businesses;
(D)
a discussion that shows the facility is compatible with
the surrounding land uses; and
(E)
a constructed land use map showing the land use, zoning,
residences, businesses, schools, churches, cemeteries, historic structures,
historic sites, archaeologically significant sites, sites having exceptional
aesthetic quality, licensed day care centers, parks, recreational sites and
recreational facilities within one mile of the facility, and wells within
500 feet of the facility.
(5)
Access. To assist the executive director in evaluating
the impact of the facility on the surrounding roadway system, the applicant
shall provide the following:
(A)
data on the roadways, within one mile of the facility,
used to access the facility. The data shall include dimensions, surfacing,
general condition, capacity and load limits;
(B)
data on the volume of vehicular traffic on access roads
within one mile of the proposed facility. The applicant shall include both
existing and projected traffic during the life of the facility (for projected
include both traffic generated by the facility and anticipated increase without
the facility);
(C)
an analysis of the impact the facility will have on the
area roadway system, including a discussion on any mitigating measures (turning
lanes, roadway improvements, intersection improvements, etc.) proposed with
the project; and
(D)
an access roadway map showing all area roadways within
a mile of the facility. The data and analysis required in subparagraphs (A)
- (C) of this paragraph shall be keyed to this map.
(6)
Facility development. To assist the executive director
in evaluating the impact of the facility on the environment, the applicant
shall provide the following.
(A)
Surface water protection plan. The surface water protection
plan shall be prepared by a registered professional engineer. At a minimum,
the applicant shall provide all of the following:
(i)
a design for a run-on control system capable of preventing
flow onto the facility during the peak discharge from at least a 25-year,
24-hour rainfall event;
(ii)
a design for a run-off management system to collect and
control at least the peak discharge from the facility generated by a 25-year,
24-hour rainfall event;
(iii)
a design for a contaminated water collection system to
collect and contain all leachate. If the design uses leachate for any processing,
the applicant shall clearly demonstrate that such use will not result in contamination
of the final product; and
(iv)
drainage calculations as follows:
(I)
Calculations for areas of 200 acres or less shall follow
the rational method as specified in the Texas Department of Transportation
Bridge Division Hydraulic Manual.
(II)
Calculations for discharges from areas greater than 200
acres shall be computed by using USGS/DHT hydraulic equations compiled by
the United States Geological Survey and the Texas Department of Transportation
Bridge Division Hydraulic Manual, the HEC-1 and HEC-2 computer programs developed
through the Hydrologic Engineering Center of the United States Army Corps
of Engineers, or an equivalent or better method approved by the executive
director.
(III)
Calculations for sizing containment facilities for leachate
shall be determined by a mass balance based on the facilities proposed leachate
disposal method.
(IV)
Temporary and permanent erosion control measures shall
be discussed;
(v)
drainage maps and drainage plans as follows:
(I)
an off-site topographic drainage map showing all areas
which contribute to the facilities run-on. The map shall delineate the drainage
basins and sub-basins, show the direction of flow, time of concentration,
basin area, rainfall intensity, and flow rate. This map shall also show all
creeks, rivers, intermittent streams, lakes, bayous, bays, estuaries, arroyos,
and other surface waters in the state;
(II)
a pre-construction on-site drainage map. The map shall
delineate the drainage basins and sub-basins, show the direction of flow,
time of concentration, basin area, rainfall intensity, and flow rate;
(III)
a post-construction on-site drainage map. The map shall
delineate the drainage basins and sub-basins, show the direction of flow,
time of concentration, basin area, rainfall intensity, and flow rate;
(IV)
a drainage facilities map. The map shall show all proposed
drainage facilities (ditches, ponds, piping, inlets, outfalls, structures,
etc.) and design parameters (velocities, cross-section areas, grades, flowline
elevations, etc.). Complete cross-sections of all ditches and ponds shall
be included;
(V)
a profile drawing. The drawing shall include profiles of
all ditches and pipes. Profiles shall include top of bank, flowline, hydraulic
grade, and existing groundline. Ditches and swells shall have a minimum of
one foot of freeboard;
(VI)
a floodplain and wetlands map. The map shall show the
location and lateral extent of all floodplains and wetlands on the site and
on lands within 500 feet of the site; and
(VII)
an erosion control map which indicates placement of erosion
control features on the site.
(B)
Geologic/hydrogeologic report. The geologic/hydrogeologic
report shall be prepared by an engineer or qualified geologist/hydrogeologist.
The applicant shall include discussion and information on all of the following:
(i)
a description of the regional geology of the area. This
section shall include:
(I)
a geologic map of the region with text describing the stratigraphy
and lithology of the map units. An appropriate section of a published map
series such as the Geologic Atlas of Texas prepared by the Bureau of Economic
Geology is acceptable;
(II)
a description of the generalized stratigraphic column
in the facility area from the base of the lowermost aquifer capable of providing
usable groundwater, or from a depth of 1,000 feet, whichever is less, to the
land surface. The geologic age, lithology, variation in lithology, thickness,
depth geometry, hydraulic conductivity, and depositional history of each geologic
unit should be described based upon available geologic information;
(ii)
a description of the geologic processes active in the
vicinity of the facility. This description shall include an identification
of any faults and/or subsidence in the area of the facility;
(iii)
a description of the regional aquifers in the vicinity
of the facility based upon published and open-file sources. The section shall
provide:
(I)
aquifer names and their association with geologic units
described in clause (i) of this subparagraph;
(II)
a description of the composition of the aquifer(s);
(III)
a description of the hydraulic properties of the aquifer(s);
(IV)
identification of areas of recharge to the aquifers within
five miles of the site; and
(V)
the present use of groundwater withdrawn from aquifers
in the vicinity of the facility;
(iv)
subsurface investigation report. This report shall describe
all borings drilled on-site to test soils and characterize groundwater and
shall include a site map drawn to scale showing the surveyed locations and
elevations of the boring. Boring logs shall include a detailed description
of materials encountered including any discontinuities such as fractures,
fissures, slickensides, lenses, or seams. Each boring shall be presented in
the form of a log that contains, at a minimum, the boring number; surface
elevation and location coordinates; and a columnar section with text showing
the elevation of all contacts between soil and rock layers description of
each layer using the Unified Soil Classification, color, degree of compaction,
and moisture content. A key explaining the symbols used on the boring logs
and the classification terminology for soil type, consistency, and structure
shall be provided.
(I)
A sufficient number of borings shall be performed to establish
subsurface stratigraphy and to determine geotechnical properties of the soils
and rocks beneath the facility. The number of borings necessary can only be
determined after the general characteristics of a site are analyzed and will
vary depending on the heterogeneity of subsurface materials. The minimum number
of borings required for a site shall be three for sites of five acres or less,
and for sites larger than five acres the required number of borings shall
be three borings plus one boring for each additional five acres or fraction
thereof. The boring plan shall be approved by the executive director prior
to performing the bores.
(II)
Borings shall be sufficiently deep to allow identification
of the uppermost aquifer and underlying hydraulically interconnected aquifers.
Boring shall penetrate the uppermost aquifer and all deeper hydraulically
interconnected aquifers and be deep enough to identify the aquiclude at the
lower boundary. All the borings shall be at least 30 feet deeper than the
elevation of the deepest excavation on-site and in no case shall be less than
30 feet below the lowest elevation on-site. If no aquifers exist within 50
feet of the elevation of the deepest excavation, at least one test bore shall
be drilled to the top of the first perennial aquifer beneath the site. In
areas where it can be demonstrated that the uppermost aquifer is more than
300 feet below the deepest excavation, the applicant shall provide the demonstration
to the executive director and the executive director shall have the authority
to waive the requirement for the deep bore.
(III)
All borings shall be conducted in accordance with established
field exploration methods.
(IV)
Installation, abandonment, and plugging of the boring
shall be in accordance with the rules of the commission.
(V)
The applicant shall prepare cross-sections utilizing the
information from the boring and depicting the generalized strata at the facility.
(VI)
The report shall contain a summary of the investigator's
interpretations of the subsurface stratigraphy based upon the field investigation.
(v)
groundwater investigation report. This report shall establish
and present the groundwater flow characteristics at the site which shall include
groundwater elevation, gradient, and direction of flow. The flow characteristics
and most likely pathway(s) for pollutant migration shall be discussed in a
narrative format and shown graphically on a piezometric contour map. The groundwater
data shall be collected from piezometers installed at the site. The minimum
number of piezometers required for the site shall be three for sites of five
acres or less, for sites greater than five acres the total number of piezometer
required shall be three piezometer plus one piezometer for each additional
five acres or fraction thereof.
(C)
Groundwater protection plan. The application shall demonstrate
the facility is designed so as not to contaminate the groundwater and so as
to protect the existing groundwater quality from degradation. For the purposes
of these sections, protection of the groundwater includes the protection of
perched water or shallow surface infiltration. As a minimum, groundwater protection
shall consist of all of the following.
(i)
Liner system. All feedstock receiving, mixing, composting,
post-processing, screening, and storage areas shall be located on a surface
which is adequately lined to control seepage. The lined surface shall be covered
with a material designed to withstand normal traffic from the composting operations.
At a minimum, the lined surface shall consist of soil, synthetic, or an alternative
material that is equivalent to two feet of compacted clay with a hydraulic
conductivity of 1 x 10
-7
centimeters per second
or less.
(I)
Soil liners shall have more than 30% passing a number 200
sieve, have a liquid limit greater than 30%, and a plasticity index greater
than 15.
(II)
Synthetic liners shall be a membrane with a minimum thickness
of 20 mils.
(III)
Alternative designs shall utilize an impermeable liner
(such as concrete).
(ii)
Groundwater monitor system. The groundwater monitoring
system shall be designed and installed such that the system will reasonably
assure detection of any contamination of the groundwater before it migrates
beyond the boundaries of the site. The monitoring system shall be designed
based upon the information obtained in the "Groundwater investigation report"
required by subparagraph (B)(v) of this paragraph.
(I)
Details of monitor well construction and placement of monitor
wells shall be shown on the site plan.
(II)
A groundwater sampling program shall provide four background
groundwater samples of all monitor wells within 24 months from the date of
the issuance of the permit. The background levels shall be established from
samples collected from each well at least once during each of the four calendar
quarters: January - March; April - June; July - September; and October - December.
Samples from any monitor well shall not be collected for at least 45 days
following collection of a previous sample, unless a replacement sample is
necessary. At least one sample per well shall be collected and submitted to
a laboratory for analysis within 60 days of permit issuance for existing or
previously registered operations, or prior to accepting any material for processing
at a new facility. Background samples shall be analyzed for the parameters
as follows:
(-a-)
heavy metals, arsenic, copper, mercury, barium, iron,
selenium, cadmium, lead, chromium, and zinc;
(-b-)
other parameters: calcium, magnesium, sodium, carbonate,
bicarbonate, sulphate, fluoride, nitrate (as N), total dissolved solids, phenolphthalein
alkalinity as CaCo
3
, alkalinity as CaCo
(-c-)
after background values have been determined the following
indicators shall be measured at a minimum of 12-month intervals: TOC (four
replicates), iron, manganese, pH, chloride, groundwater elevation (MSL), and
total dissolved solids. After completion of the analysis, an original and
two copies shall be sent to the executive director and a copy shall be maintained
on-site.
(-d-)
The executive director may waive the requirement to monitor
for any of the constituents listed in items (-a-) - (-c-) of this subclause
in a permit, if it can be documented that these constituents are not reasonably
expected to be in or derived from the bulking or feedstock materials. A change
to the monitoring requirements may be incorporated into a permit when issued
or as a modification under §305.70 of this title (relating to Municipal
Solid Waste Permit and Registration Modifications).
(-e-)
The executive director may establish an alternative list
of constituents for a permit, if the alternative constituents provide a reliable
indication of a release to the groundwater. The executive director may also
add inorganic or organic constituents to those to be tested if they are reasonably
expected to be in or derived from the bulking or feedstock materials. A change
to the monitoring requirements may be incorporated into a permit when issued
or as a modification under §305.70 of this title.
(D)
Facility plan and facility layout. The facility plan and
facility layout must be prepared by a registered professional engineer. All
proposed facilities, structures, and improvements must be clearly shown and
annotated on this drawing. The plan must be drawn to standard engineering
scale. Any necessary details or sections must be included. As a minimum, the
plan must show property boundaries, fencing, internal roadways, tipping area,
processing area, post-processing area, facility office, sanitary facilities,
potable water facilities, storage areas, etc. If phasing is proposed for the
facility, a separate facility plan for each phase is required.
(E)
Process description. The process description shall be composed
of a descriptive narrative along with a process diagram. The process description
shall include all of the following.
(i)
Feedstock identification. The applicant shall prepare a
list of the materials intended for processing along with the anticipated volume
to be processed. This section shall also contain an estimate of the daily
quantity of material to be processed at the facility along with a description
of the proposed process of screening for unauthorized materials.
(ii)
Tipping process. Indicate what happens to the feedstock
material from the point it enters the gate. Indicate how the material is handled
in the tipping area, how long it remains in the tipping area, what equipment
is used, how the material is evacuated from the tipping area, at what interval
the tipping area is cleaned, and the process used to clean the tipping area.
(iii)
Process. Indicate what happens to the material as it
leaves the tipping area. Indicate how the material is incorporated into the
process and what process or processes are used until it goes to the post-processing
area. The narrative shall include water addition, processing rates, equipment,
energy and mass balance calculations, and process monitoring method.
(iv)
Post-processing. Provide a complete narrative on the post-processing,
include post-processing times, identification and segregation of product,
storage of product, quality assurance, and quality control.
(v)
Product distribution. Provide a complete narrative on product
distribution to include items such as: end product quantities, qualities,
intended use, packaging, labeling, loading, and tracking bulk material.
(vi)
Process diagram. Present a process diagram that displays
graphically the narrative generated in response to clauses (i) - (v) of this
subparagraph.
(7)
Site operating plan. This document is to provide guidance
from the design engineer to site management and operating personnel in sufficient
detail to enable them to conduct day-to-day operations in a manner consistent
with the engineer's design. As a minimum, the site operating plan shall include
specific guidance or instructions on all of the following:
(A)
the minimum number of personnel and their functions to
be provided by the site operator in order to have adequate capability to conduct
the operation in conformance with the design and operational standards;
(B)
the minimum number and operational capacity of each type
of equipment to be provided by the site operator in order to have adequate
capability to conduct the operation in conformance with the design and operational
standards;
(C)
security, site access control, traffic control, and safety;
(D)
control of dumping within designated areas, and screening
for unprocessable or unauthorized material;
(E)
fire prevention and control plan that shall comply with
provisions of the local fire code, provision for fire-fighting equipment,
and special training requirements for fire-fighting personnel;
(F)
control of windblown material;
(G)
vector control;
(H)
quality assurance and quality control. As a minimum, the
applicant shall provide testing and assurance in accordance with the provisions
of §332.71 of this title (relating to Sampling and Analysis Requirements
for Final Product);
(I)
control of airborne emissions;
(J)
minimizing odors;
(K)
equipment failures and alternative disposal and storage
plans in the event of equipment failure; and
(L)
a description of the intended final use of materials.
(8)
Legal description of the facility. The applicant shall
submit an official metes and bounds description, and plat of the proposed
facility. The description and plat shall be prepared and sealed by a registered
surveyor.
(9)
Financial assurance. The applicant shall prepare a closure
plan acceptable to the executive director and provide evidence of financial
assurance to the commission for the cost of closure. The closure plan at a
minimum, shall include evacuation of all material on-site (feedstock, in process,
and processed) to an authorized facility and disinfection of all leachate
handling facilities, tipping area, processing area, and post-processing area
and shall be based on the worst case closure scenario for the facility, including
the assumption that all storage and processing areas are filled to capacity.
The financial assurance may be demonstrated by using one or more of the following
mechanisms: trust funds, surety bonds, letters of credit, insurance, financial
test, and corporate guarantee. These mechanisms shall be prepared on forms
approved by the executive director and shall be submitted to the commission
60 days prior to the receiving of any materials for processing, or within
60 days of a permit being issued for facilities operating under an existing
registration. Financial assurance mechanisms prepared are subject to the requirements
of Chapter 37 of this title (relating to Financial Assurance).
(10)
Source-separated recycling and household hazardous waste
collection. The applicant shall submit a plan to comply with the requirements
of Subchapters E and F of this chapter (relating to Source-Separated Recycling;
and Household Hazardous Waste Collection).
(11)
Landowner list. The applicant shall include a list of
landowners, residents, and businesses within one-half mile of the facility
boundaries along with an appropriately scaled map locating property owned
by the landowners.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308751
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) adopts
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 adopts
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. Sections 336.2, 336.103, 336.207, 336.363, 336.701
- 336.703, 336.707, 336.708, 336.716, 336.717, 336.728 - 336.730, 336.733,
336.736, 336.737, 336.738, 336.801, 336.803, 336.805, 336.807 - 336.809, 336.815,
336.817, 336.819, 336.821, 336.823, 336.901, 336.905, and 336.909 are adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The changes adopted in this chapter are part of a larger rulemaking action
to revise the commission's radiation control rules. The primary purpose of
these 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) land 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 an 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 (Atomic Energy Act). 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 rules address matters relating to this regulatory
authority. The primary purpose of this rulemaking action 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. This rulemaking action 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
HB 1567 specifically authorizes that mixed waste may be disposed of at
an LLRW land disposal facility. "Mixed waste" is a combination of hazardous
waste as defined in 30 TAC Chapter 335, Industrial Solid Waste and Municipal
Hazardous Waste, and LLRW. "Mixed waste," as adopted in §336.2, also
includes federal mixed waste. 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.
Or, if the applicant or the state or federal government does not own the mineral
rights, the applicant must include an application for an exemption. This ownership
is directly related to the ability to transfer property to the state or federal
government prior to accepting waste for disposal. 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
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 submit to the Office of the Secretary of State notice for publication
in the
Texas Register
that applications for
the siting, construction, and operation of a compact waste disposal facility
and federal facility waste disposal facility 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 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 §336.737, 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 adopted as part of this rulemaking action. This rulemaking action implements
federal requirements which are necessary to maintain compatibility between
federal and state rules.
The amendments to §336.2 and §336.305 are derived from NRC final
rulemaking "Revision of the Skin Dose Limit" (66 Federal Register (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.
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 amended to change the name of the 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 also adopted.
SECTION BY SECTION DISCUSSION
SUBCHAPTER A: GENERAL PROVISIONS
Section 336.1, Scope and General Provisions
Section 336.1(e) is amended to change "Texas Natural Resource Conservation
Commission" to "Texas Commission on Environmental Quality," implementing HB
2912, §18.01. Subsection (f)(2) is 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 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
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 amended
to delete "averaged over an area of one square centimeter" to agree with the
amendment adopted in §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 adopted in §336.2 to implement the new statutory requirements
of HB 1567. In response to comment, the definition of "Mixed waste" was modified
to refer to the definition of hazardous waste in Chapter 335. The definition
of "Federal facility waste" was modified in response to comment to exclude
greater than Class C LLRW. The definition of "Federal facility waste disposal
facility" was modified in response to comment to provide that such a land
disposal facility must be licensed under Chapters 336, Subchapters H and J.
The definition of "Compact waste disposal facility" was similarly modified
to provide that the compact waste disposal facility is a land disposal facility.
The definitions are renumbered accordingly. The definition of "Hazardous waste"
is added to provide a reference to Chapter 335. The definition of "Radiation
and perpetual care fund" is amended by changing the term to "Radiation and
perpetual care account." This amendment provides consistency with HB 1567
and HB 1678. The definition of "Licensee" is amended to delete an unnecessary
acronym and provide a correct citation to Texas Health and Safety Code, Chapter
401. The definition of "Special nuclear material in quantities not sufficient
to form a critical mass" was changed to reflect the integer "1" instead of
the word "one," and the definition of "Derived air concentration-hour" was
changed to reflect the integer "5" instead of the word "five" in response
to comment. The definition of "Violation" is amended to spell out the acronym
TRCA as "Texas Radiation Control Act."
Section 336.9, Deliberate Misconduct
New §336.9 implements federal requirements given in 10 CFR §61.9(b).
The new section subjects 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 amendments to §336.11 reflect the commission's name change. The
title of the section is amended to replace "between" with "with" and 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 (MOU). 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 amendment to §336.103(a) implements HB 1567, §401.229, changes
the license application processing fee from $415,000 to $500,000, and makes
the fee nonrefundable. The amendment also provides 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 amendments to §336.103(c)
implement HB 1567, §401.206, and provide for the expenses of more than
one resident inspector.
Section 336.111, Method of Payment of Fees
The amendment to §336.111 changes "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 amendments to §336.113 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 amendment to §336.203 changes "Texas Natural Resource Conservation
Commission" to "Texas Commission on Environmental Quality" to implement HB
2912, §18.01, and deletes the acronym "TDH" because it is not used again
within the section.
Section 336.207, General Requirements for Issuance
of a License
The amendment adds the phrase "of this chapter (relating to Radioactive
Substance Rules)" to denote that the "applicable chapter" refers to Chapter
336. Additionally, in response to comment, a new paragraph (4) was added to
emphasize that an application to dispose of LLRW will not be approved unless
an applicant has acquired title to the land and buildings, including the mineral
estate, on which the facility or facilities are to be located. The requirements
of this paragraph can be met by either having fee simple title to everything
or by having acquired fee simple in the surface estate and an approved application
for an exemption to use a surface use agreement in lieu of having fee simple
title to the mineral estate.
Section 336.209, Issuance of License
The amendments change the phrase "agency rules" to "commission rules" and
correct the spelling of the term "radioactive."
Section 336.211, General Requirements for Radioactive
Material
The amendment to §336.211(f) replaces 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 amendments to §336.305 make it compatible with the latest version
of NRC's 10 CFR 20.1201. Section 336.305(a)(2) is 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 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 amendments delete references to older NRC rule changes in subsections
(a)(1)(A); (a)(2)(B), (D), and (E); (a)(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 amendments 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 amendment to §336.501(b) replaces 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 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 amended to correct a
cross-reference. Section 336.701(b) was modified in response to comment to
specify that a licensee authorized to dispose of LLRW shall not accept for
disposal waste that exceeds Class C limitations as provided in §336.362.
Section 336.702, Definitions
The amendments to §336.702 add a definition for "Containerized Class
A waste." This definition implements 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 adopted definition is consistent
with the existing term "high radiation area," in §336.2, where "high
radiation levels" are radiation levels 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 that the radiation penetrates. The definition of "Hazardous
waste" is deleted because it is redundant with the definition of "Hazardous
wastes" given in §336.2. The definition of "Site" was added to §336.702
from the proposal because the term "site" is used extensively in Subchapter
H and was not previously defined. "Site" is defined as the "contiguous land
area where any land disposal facility or activity is physically located or
conducted including adjacent land used in connection with the land disposal
facility or activity and includes soils and groundwater contaminated by radioactive
material." A "land disposal facility" is situated on the "site," and a "disposal
site" is situated within the "land disposal facility." The term "site" is
consistent with the term "disposal facility site" as used in HB 1567. The
definition of "Buffer zone" was modified by replacing the term "site" with
the term "disposal site" to reflect that the buffer zone extends to the boundary
of the disposal site. The definitions are renumbered accordingly.
Section 336.703, License Required - Repeal
Existing §336.703 is 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 incorporates 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 new rule provides many
of the concepts that make the rest of the subchapter understandable. The language
in §336.703 was modified in response to the comment from the NRC to provide
that the concepts and requirements of 10 CFR §61.7 guide the application
of the rules in Chapter 336, Subchapter H.
Section 336.704, Applications for License of Compact
Waste Disposal Facility
New §336.704 provides requirements for applications for licenses to
dispose of LLRW at the "Compact" waste disposal facility. New subsection (a)
provides 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) provides 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 amended to include the words "low-level radioactive"
in the first sentence and to improve grammar.
Section 336.707, Specific Technical Information
The 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. In response
to comment, §336.707(11) was modified to remove the word "facility" because
it is an undefined term in Subchapter H. The applicant must provide a description
of the electronic recordkeeping system as required in §336.740(i).
Section 336.708, Environmental Information
Section 336.708 is amended by designating existing rule language as subsection
(a). Paragraph (11) is 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) provides 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." New subsection (b) incorporates the environmental report requirements.
Changes were made to the proposed language in subsection (a) to avoid the
use of undefined terms. Paragraph (1) changes the undefined term "facility"
to "site," which is defined in 336.702. Paragraph (2) changes "facility" to
"land disposal facility" which is defined in 336.2. Paragraph (4) changes
"disposal site" to "site" because the identification of the known natural
resources that could be exploited resulting in inadvertent intrusion is required
for the entire site and not just the disposal site.
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 added to ensure that the correct demonstrations
are submitted to the agency. Implied subsection (a) is amended by adding a
cross-reference to the performance objectives in §336.723. Paragraph
(1) is 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 amended by adding a cross-reference to the performance objective
for inadvertent intrusion in §336.725. Paragraph (3) is amended by adding
a cross-reference to the performance objective for protection of individuals
during operations in 336.726. Paragraph (4) is 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 amendments to §336.711 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 amendment to §336.716(c) provides a citation to Texas Health and
Safety Code, Chapter 401. The amendment to §336.716(h) requires 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 added stating: "After the initial 15 years, the commission may renew
the license for one or more terms of ten years." This sentence is added to
implement new Texas Health and Safety Code, §401.222. In response to
comment, a new sentence was added to §336.716(f) to require approval
by the executive director of financial assurance prior to receiving waste
for disposal. 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).
Subsection (d) was modified in response to comment to change the undefined
term "facility" to the term "land disposal facility" to avoid the use of an
undefined term. In response to comment, a new subsection (j) was added to
address records maintained by the licensee that are public information.
Section 336.717, Conveyance of Waste
A new §336.717 specifies criteria by which title to compact waste
is conveyed to the state which implements HB 1567, §401.2051. Subsection
(a) provides that title to the waste is conveyed to the state at the time
the waste is accepted at the site. 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. Subsection (a) was modified in response
to comment to change the undefined term "disposal facility" to "compact waste
disposal facility" to avoid the use of an undefined term.
Section 336.718, Application for Renewal or Closure
The amendments to §336.718(a) 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 adds 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 §336.723 is changed to "Performance Objectives" 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 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) further delineate areas unsuitable for the disposal site, which implement
HB 1567, §401.217. Subsection (b) was modified in response to comment
to use the defined term "land disposal facility" instead of the undefined
terms "facility" and "disposal facility." Subsections (m) - (p) have also
been modified to use the term "site," rather than "disposal site." "Site"
is consistent with "disposal facility site" in HB 1567.
Section 336.729, Disposal Site Design for Near-Surface
Land Disposal
New §336.729(g) implements HB 1567, §401.220, with respect to
hazards from local meteorological or geologic conditions. Subsection (g) was
modified in response to comment to use the defined term "land disposal facility"
rather than the undefined term "disposal facility."
Section 336.730, Near-Surface Land Disposal Facility
Operation and Disposal Site Closure
The amendments to §336.730(a) improve formatting and update a section
title. The amendments to §336.730(b) reorganize the subsection to provide
specific requirements for disposal of containerized Class A LLRW, as defined
in §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 336.730(b)(1) has been modified
in response to comment to eliminate any confusion dealing with the separate
requirements for structural stability. Section 336.730(b)(1) as modified now
provides for the statutorily-mandated provisions for concrete containers plus
additional barriers. The statutorily-mandated barrier requirements do not
affect the NRC structural stability requirements.
Section 336.733, Waste Classification, Characteristics,
and Labeling
The amendments to §336.733(a) require that all LLRW and mixed waste
received for disposal must be classified in accordance with the NRC waste
classification system, that includes any federal facility waste received for
disposal. Section 336.733(b) has been modified in response to comment. The
rule now provides that alternatives to the containerization requirement for
wastes consisting of radionuclides with half-lives greater than 35 years and
wastes containing transuranic radionuclides in concentrations of less than
ten nanocuries per gram may be granted by the executive director on a case-by-case
basis. This new requirement provides greater regulatory flexibility when considering
disposal requirements for wastes with very low concentrations of transuranic
radionuclides and other radionuclides with long half-lives. New §336.733(c)
requires that a licensee comply with the requirements of Chapter 335 for the
disposal of mixed waste, and implements HB 1567, §401.221.
Section 336.735, Applicant Qualifications and
Assurances
The amendment to §336.735 requires 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 amendments to §336.736 change the title to "Liability Coverage
and Funding for Disposal Site Closure and Stabilization." Subsection (c) is
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 added to require that prior to the receipt of waste, 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. The timing of financial assurance requirements has been
modified in response to comment in §336.736(a) and (e) to provide that
the financial assurance must be provided 60 days prior to the initial receipt
of waste. Subsection (a) was modified in response to comments to address financial
assurance for closure to include the disposal of any radioactive material
remaining on the site at the time of closure. At the commission agenda on
December 17, 2003, §336.736(c) was amended to include an annual review
of financial assurance for closure by the commission at an open meeting.
Section 336.737, Funding for Institutional Control
The amendments to §336.737(a) change the term "Radiation and Perpetual
Care Fund" to "perpetual care account" to implement HB 1567, §401.052(d).
Language is also 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 amended by
substituting "Sixty days prior to the initial receipt of waste" 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 land disposal
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 acceptance of waste. The timing of financial
assurance requirements has been modified in response to comment in §336.737(b)
to provide that the financial assurance must be provided 60 days prior to
the initial receipt of waste. In response to a comment from the NRC, §336.737(b)
was also modified to provide that any changes to institutional control proposed
by the licensee must be submitted to the commission in an application for
a license amendment. At the commission agenda on December 17, 2003, §336.737(c)
was amended to include an annual review of financial assurance for institutional
control by the commission at an open meeting.
Section 336.738, Funding for Corrective Action
New §336.738 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
land disposal facility site is decommissioned. The new section conforms with
new statutory requirements given in Texas Health and Safety Code, §401.241(b).
New subsection (a) requires that financial assurance for corrective action
be in place prior to the initial receipt of waste for the same reasons as
outlined in the preamble discussion of 336.737. The timing of financial assurance
requirements has been modified in response to comment in §336.738(a)
to provide that the financial assurance must be provided 60 days prior to
the initial receipt of waste. Subsection (a) has been further modified to
include the risk posed to the environment. In response to comment, annual
review by the commission of financial assurance for corrective action has
been added to §336.738(b). Corrective action is defined in §37.9035,
Definitions, as the activities to remediate unplanned events that pose a risk
to public health and safety, and the environment, and that may occur after
the decommissioning and closure of the compact waste disposal facility or
a federal facility waste disposal facility. 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. A typographical
error was corrected in subsection (b) by changing the word "that" to the word
"than." New subsection (c) provides the cross-reference to Chapter 37, Subchapter
T. At the commission agenda on December 17, 2003, §336.738(b) was amended
to include an annual review of financial assurance for corrective action by
the commission at an open meeting.
Section 336.743, Resident Inspector
The amendments to §336.743 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 provides 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. In response to
comment, the term "licenses" has been changed to "license" because only one
license may be issued. Other changes were made to §336.801(a) to specify
that Subchapter I only applies to the initial application process because
the comparative merit review process in Subchapter I applies only to the initial
license application. Additionally, a part of a sentence that was inadvertently
left out at proposal was added to describe the license authorization for the
disposal of federal facility waste.
Section 336.803, Receipt of License Applications
New §336.803 specifies 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 rule implements HB 1567, §401.228
and §401.230. The statute requires that the commission shall submit a
notice for publication in the
Texas Register
not
later than January 1, 2004. Section 336.803 was changed in response to comment
to provide that the notice relates to the applications for the compact waste
disposal facility and a federal facility waste disposal facility, if applicable.
At the commission agenda on December 17, 2003, §336.803(b) was added
to include a requirement that the commission identify all applicants and provide
Web address links to applications filed with the commission.
Section 336.805, Application Requirements
New §336.805 provides general requirements for submittal of applications.
Subsection (a)(2) implements HB 1567, §401.229, and provides that the
application must include a nonrefundable $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 land disposal facility or facilities.
Section 336.805 was modified in response to a general comment to use the term
"land disposal facility" instead of "disposal facility" to avoid the use of
an undefined term. At the commission agenda on December 17, 2003, §336.805(4)
was added to require complete copies of applications to be available on a
publicly accessible Web site with a Web address link for application materials
provided to the commission.
Section 336.807, Administrative Review
New §336.807 specifies 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 336.807 was modified in response to a general comment to use the term
"land disposal facility" instead of "disposal facility" to avoid the use of
an undefined term. This section was also modified in response to a general
comment to use the term "site" instead of the term "disposal facility site"
to avoid the use of an undefined term.
Section 336.808, Ownership of Land and Buildings
New §336.808 requires 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). Subsection (a) was modified in response to comment to
address situations where the ownership of land and buildings is already owned
by the state or federal government and where the applicant will petition the
commission to request the Texas attorney general to initiate condemnation
proceedings. Subsection (a) was also modified to use the defined term "land
disposal facility." 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 use an executed surface use agreement that restricts access
to natural resources, including slant drilling and subsurface mining, to the
extent necessary to prevent intrusion into the disposal facility site. This
provides compatibility with 10 CFR §61.50(a)(4), which provides that
the site may not include areas of known natural resources which if exploited
would result in failure of the performance objectives. Subsection (b) was
modified in response to comment from the NRC to use the term"natural resources"
rather than mineral resources. The provision that the exemption must be obtained
prior to determination of administrative completeness was removed from the
proposed language because an applicant may include the application for exemption
with the application for the license. Subsection (b) was modified in response
to an NRC comment so that the applicant must have entered into a surface use
agreement prior to the request for the exemption. This subsection was modified
from the proposed language to require that an applicant requesting an exemption
submit the exemption application at the same time as the license application.
Subsection (b) was also modified to use the defined term "site." 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 provisions implement HB 1567, 401.204. In response
to comment, subsection (c) was modified to provide that the petitioner to
the commission must demonstrate that the petitioner's license application
was selected as the application with the highest technical merit so that there
will not be multiple condemnation petition requests from various license applicants.
Subsection (c) was also modified to remove the requirement that the applicant
acquire the mineral interests before administrative review because a condemnation
proceeding could not be completed in the time frame established in HB 1567
for the administrative review of applications. Subsection (c) was also modified
to require the petitioner to demonstrate it has made a good faith effort to
acquire the mineral rights interest or to enter into a surface use agreement
as provided in subsection (b) prior to filing its petition application.
Section 336.809, Notice of Declaration of Administrative
Completeness
New §336.809 provides for notice of an administratively complete application
in accordance with 30 TAC §39.702, Notice of Declaration of Administrative
Completeness. At the commission agenda on December 17, 2003, §336.809
was modified to require the executive director to post Web site notice of
applications declared administratively complete.
Section 336.811, Public Meeting
New §336.811 requires at least one public meeting in the county or
counties where a compact waste 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 specifies 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 new section implements HB 1567, §401.232.
Section 336.815, Tier 1 Criteria
New §336.815 specifies 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 336.815 was modified in response to
a general comment to use the term "land disposal facility" instead of "disposal
facility" to avoid the use of an undefined term. This section was also modified
in response to a general comment to use the term "site" instead of the term
"disposal facility site" to avoid the use of an undefined term.
Section 336.817, Tier 2 Criteria
New §336.817 specifies 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 336.817 was modified in response to
a general comment to use the term "land disposal facility" instead of "disposal
facility" to avoid the use of an undefined term.
Section 336.819, Tier 3 Criteria
New §336.819 specifies 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 336.819 was modified in response to
a general comment to use the term "land disposal facility" instead of "disposal
facility" to avoid the use of an undefined term. This section was also modified
in response to a general comment to use the term "site" instead of the term
"disposal facility site" to avoid the use of an undefined term.
Section 336.821, Tier 4 Criteria
New §336.821 specifies 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 336.821 was modified in response to
a general comment to use the term "land disposal facility" instead of "disposal
facility" to avoid the use of an undefined term. This section was also modified
in response to a general comment to use the term "site" instead of the term
"disposal facility site" to avoid the use of an undefined term.
Section 336.823, Technical Review
New §336.823 specifies 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 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.
At the commission agenda on December 17, 2003, §336.823 was modified
to require the executive director to post Web site notice of the application
with the highest comparative merit selected for technical review.
Section 336.825, Delegation
New §336.825 provides 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 provides a statement of general applicability for Subchapter
J. This new 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 land disposal facility at the site. This new
subchapter implements HB 1567, §401.216. In response to comment, §336.901
was modified to provide that the federal facility waste disposal facility
is a separate land disposal facility on the same site as the compact waste
disposal facility.
Section 336.903, Receipt of Waste
New §336.903 provides requirements for the receipt of federal facility
waste. 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
Subchapter J and other commission rules. Subsection (b) requires 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 provides statutorily imposed limits on the total volume
of federal facility waste which may be disposed of at a federal facility waste
disposal facility. 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
3,000,000 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. 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 3,000,000 cubic yards for a total capacity of
6,000,000 cubic yards. An application for license amendment under 30 TAC §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. The commission changed the written numbers to
numerical values in §336.905(a) and (b) in response to comment. These
provisions implement HB 1567, §401.216(b) and (c).
Section 336.907, Prohibition of Commingling of
Waste
New §336.907 prohibits 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 provision
implements HB 1567, §401.216(d).
Section 336.909, Additional Responsibilities
New §336.909 implements additional statutory requirements. New §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. New §336.909(2) has been amended in
response to comment to require the licensee to submit to the commission a
written agreement by the United States secretary of energy, 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. New §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. New §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. New §336.909(5), which implements HB 1567 §401.211(a)
- (c), requires the licensee to indemnify the state, and its officers and
agents, 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.
In response to comment from the NRC, §336.909(3) was modified to provide
that before termination of the license, the licensee must formally convey
to the federal government the right, title, and interest in federal facility
waste located at the federal facility waste disposal facility.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 amendments to
Chapter 336 are not anticipated to adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state, because
there are no significant requirements added to radioactive material land disposal
facilities. The rulemaking action implements legislative requirements in HB
1567, including the repeal of the restriction that an LLRW disposal facility
may only be issued to a public entity specifically authorized by law for LLRW
disposal. The rulemaking action implements procedural requirements for license
application submission, review, and selection. The rulemaking action also
implements federal requirements to maintain consistency with NRC requirements,
and updates existing rules by changing references from the Texas Natural Resource
Conservation Commission to the Texas Commission on Environmental Quality.
There are no existing commercial LLRW land disposal facilities subject to
any of these rule changes.
Furthermore, the 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 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 NRC to administer a radiation control program under the Atomic Energy
Act. The amended rules do not exceed the standards set by federal law. The
rulemaking action implements changes in federal requirements for skin dose
limits and deliberate misconduct.
The amended 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 Texas Health and Safety Code, Chapter 401, as provided in HB 1567.
The amended 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 amended rules
do not exceed the NRC requirements nor exceed the requirements for retaining
status as an "Agreement State."
These rules are adopted 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.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the rulemaking action and performed an assessment
of whether Texas Government Code, Chapter 2007, is applicable. The commission's
preliminary assessment indicates that Texas Government Code, Chapter 2007,
does not apply to these amended rules because the implementation of the NRC
rulemakings on skin dose limits and deliberate misconduct is an action that
is reasonably taken to fulfill an obligation mandated by federal law, which
is exempt under Texas Government Code, §2007.003(b)(4). The State of
Texas has received authorization as an "Agreement State" from the NRC to administer
a radiation control program under the Atomic Energy Act. The Atomic Energy
Act requires the NRC to find that the state's program is compatible with NRC
requirements for the regulation of radioactive materials and is adequate to
protect health and safety. The rulemaking action will provide compatibility
with federal regulations relating to skin dose limits and deliberate misconduct.
Nevertheless, the commission further evaluated these amended rules and
performed an assessment of whether these amended rules constitute a taking
under Texas Government Code, Chapter 2007. The purpose of this rulemaking
action is to implement changes to the Texas Radiation Control Act required
by HB 1567, 78th Legislature, 2003, for the regulation and licensing of the
disposal of LLRW, implement federal requirements relating to skin dose limits
and deliberate misconduct, and make non-substantive amendments to commission
rules, such as amendments to reflect the commission's name change. The rulemaking
action would substantially advance this purpose by amending existing rules
to conform with new statutory requirements, by implementing new federal requirements
for skin dose limits and deliberate misconduct, and by reflecting the new
name of the agency.
Promulgation and enforcement of these amended rules would be neither a
statutory nor a constitutional taking of private real property. The amended
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 amended
rules primarily implement changes to existing rules to reflect statutory requirements
in HB 1567. In addition, the amended rules reduce burdens on licensing by
allowing private entities to submit applications for licensing of an LLRW
land disposal facility.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking action and determined that the
amended rules are neither identified in, nor will they affect, any action/authorization
identified in Coastal Coordination Act Implementation Rules in 31 TAC §505.11,
relating to Actions and Rules Subject to the Coastal Management Program. Therefore,
the rulemaking action is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
Written and/or oral comments were received from the Advocates for Responsible
Disposal in Texas (ARDT); the American Electric Power (AEP); the League of
Women Voters of Dallas (LWV-Dallas); the League of Women Voters of Texas (LWV-Texas);
the Nuclear Regulatory Commission (NRC); the South Texas Project Nuclear
Operating Company (STP); the Texas Department of Insurance (TDI); the Texas
Radiation Advisory Board (TRAB); Texas Radiation Online (TRO); State Representative
Lon Burnam representing the Texas Radioactive-Waste Defense Fund (TRWDF);
TXU Energy (TXU); US Ecology, Incorporated (US Ecology); Hance Scarborough
Wright Woodward & Weisbart, L.L.P., and BakerBotts, L.L.P., on behalf
of Waste Control Specialists (WCS); and 237 individuals. One individual endorsed
the recommendations submitted by the TRWDF, and TRO agreed with the concerns
voiced by the Sierra Club. The TRWDF includes the Lone Star Chapter of the
Sierra Club, Public Citizen, Sustainable Energy & Economic Development,
the LWV-Texas, and the Nuclear Information and Resource Service.
RESPONSE TO COMMENTS
ARDT, AEP, TRAB, and TXU generally supported the proposed rules. One individual
stated opposition to the weak regulations as currently developed. LWV-Dallas,
LWV-Texas, TRO, TRWDF, and 234 individuals urged the commission to establish
regulations that are second to none or rules that are more stringent than
the proposed rules. ARDT, AEP, LWV-Dallas, LWV-Texas, NRC, STP, TDI, TRAB,
TRO, US Ecology, TRWDF, WCS, TXU, and 237 individuals raised issues or suggested
changes to the rules.
General Comments
One individual expressed a belief that there is no such thing as low-level
nuclear waste and that each individual state should keep all of any type of
garbage within its own state.
LLRW is a statutorily defined classification of radioactive waste. The
definition of "Low-level radioactive waste" is provided in Texas Health and
Safety Code, §401.004. The Texas definition is consistent with the federal
definition of LLRW as a matter of compatibility. Under federal law, Texas
is responsible for managing the LLRW generated within its borders. The commission
made no change in response to this comment.
One individual expressed concern about the nuclear waste dump in West Texas
and the storing of waste. The individual was adamant that Texas does not become
a national dumping ground.
Texas entered into an agreement in 1993 designated as the Texas Low-Level
Radioactive Waste Disposal Compact with the States of Maine and Vermont. Under
the terms of the Texas Low-Level Radioactive Waste Disposal Compact, Texas
is the host state in which the disposal facility is to be located. The commission
made no changes in response to this comment.
Two individuals stated that the commission has failed with preserving good
air quality, and cannot fail to protect against nuclear waste. Another individual
asked the commission to take the threats of radiation seriously because it
cannot be seen, it is cancer-causing, and it is a danger to the health of
humans and other animals. One individual was alarmed to read about the proposed
rules for an LLRW disposal facility. One individual was very upset that fellow
Texans may be considering exposing their neighbors to the dangers of radioactive
waste. One individual asked if the commission remembered Love Canal, because
this is a prime example of what happens if we do not take the time and effort
to do the job right the first time and protect our children and the environment.
Two individuals were very concerned about the proposed rules for an LLRW disposal
facility because of the extremely long-term danger posed by radioactive waste.
One individual stated that we as a society cannot keep on disregarding our
environment, and that we must honestly assess whether our actions, with regard
to our environment, are necessary and prudent. The individual stated that
radioactive materials are a proven danger and the utmost care should be taken
with the handling of these materials. One individual expressed concern about
the rape and pillage of our established environmental rules, guidelines, and
laws. The individual stated that Texans have already absorbed enormous costs,
both financial and environmental, related to being a border state as well
as providing a major trucking corridor to the north.
The commission takes seriously its regulatory responsibilities over the
disposal of LLRW, and is committed to the final adoption of disposal rules
that are protective of public health and safety, and the environment. In response
to these comments, §336.738 and §37.9035(3) have been modified to
include risk posed to the environment in determination of appropriate financial
assurance for unplanned events at a site after decommissioning and closure.
One individual was very concerned about the dangers posed by poor oversight
of the storage of nuclear waste in Texas. One individual was adamant about
the establishment and enforcement of tough standards for safety in the storage
of this nuclear waste.
Specific rules and compliance oversight apply to the safe storage of radioactive
waste in Texas. The Texas Department of Health, Bureau of Radiation Control,
has jurisdiction over the storage of radioactive materials and radioactive
waste in Texas, except in cases where the commission has jurisdiction over
disposal activities at the site. The commission made no changes in response
to these comments.
General Comments - Administrative Issues
TRAB stated that the first paragraph in §336.709 and §336.805
appears to be missing an "(a)."
1 TAC §91.33(a)(1)(B), Rule Structure and Terminology, states that
the implied "(a)" will be used in the rule language when there is no other
subsection. The commission made no change in response to this comment.
TRAB commented on consistency in use of numerical values in §336.905(a)
and (b).
The commission changed the written numbers to numerical values in §336.905(a)
and (b) in response to this comment.
General Comments - Legislative
One individual expressed concern that the implementation of HB 1567 does
not pay attention to environmental justice as a problem in site location and
alternative disposal methods such as "assured isolation." One individual was
shocked and amazed concerning HB 1567 and the proposed implementation rules.
One individual stated that the legislature passed a bill that does not protect
the public interest. One individual expressed rage that HB 1567 was passed
and asked what our representatives were thinking when this was done? One individual
was very much against HB 1567 because there is no positive value in having
Texas be a nuclear dump, and was very disturbed that it passed. One individual
stated that when a country produces nuclear waste that it has refused to find
a way to neutralize, then it is the federal government's responsibility to
store it above ground, in high level security, forever monitored, and guarded.
Elected officials must stop looking for easy ways to deal with difficult problems
and accept responsibility for dealing with them responsibly. One individual
asked that with a bill like HB 1567 containing so many loopholes, is it really
safe? The individual requested that the commission fight for the citizens,
because beyond the financial or political aspects, there is the human aspect.
One individual stated that because the legislature has authorized private,
for profit corporations to operate waste deposit sites, the public is exposed
to an economic risk which rivals in seriousness the health and safety risk.
One individual stated that the Texas Legislature passed HB 1567 in order to
please its corporate contributors, and that the media was asleep on the switch,
deliberately or otherwise. The individual also stated that Texans, voters,
and innocents have been harmed. One individual did not want taxes funding
a future state cleanup of a get-rich-quick scheme of bribes to politicians
to allow the dump as well as a "get-rich-quick and run" scheme for the billionaire
who owns it. One individual also stated that they would never vote for any
congressman who approves the legal poisoning of Texas.
House Bill 1567 provides specific direction to the commission for its implementation.
Specific criteria for license application review, statutory time lines for
milestones, and specific siting and design features were included in HB 1567.
The conference committee report for HB 1567 was passed by the House on May
23, 2003 by a vote of 92 Yeas, 42 Nays, 3 present but not voting and by the
Senate on May 26, 2003 by a vote of 24 Yeas and 7 Nays. On June 20, 2003,
Governor Perry signed HB 1567 into law. The commission made no changes in
response to these comments.
Fiscal Note
TRAB questioned the basis for a 3.5 multiplier for contractor fringe and
indirect costs.
Standard state government rates for professional services of scientists
and engineers on engineering service contracts reflect a multiplier of 3.0
to 4.0 times the unburdened salary rates for state employees in comparable
positions; therefore, a multiplier of 3.5 was used to estimate professional
services rates. Fully burdened costs for state employees are near 1.6%. The
higher multipliers estimated for professional services from consulting firms
are due to a combination of their higher salaries and higher overhead costs.
The commission made no change to the fiscal note in response to this comment.
Need for a Disposal Facility
TRAB stated that its duty is to protect Texas residents; however, the process
must be feasible because Texas needs a disposal site. ARDT commented that
on-site storage is not a long-term solution to LLRW management. ARDT commented
that without a Texas LLRW disposal facility various Texas generators must
choose from a few undesirable alternatives for LLRW disposal. One individual
expressed an understanding of the need for hazardous waste storage because
our nation produces tons and tons of the stuff. One individual was not opposed
to the idea of an LLRW site given the greater attention to the potential environmental
consequences. One individual strongly supported the development of suitable
nuclear waste disposal sites, both in Texas and across the United States,
and stated that the continued opposition of uninformed organizations like
the Sierra Club have seriously delayed the resolution of this critical national
need.
Public testimony was received on the need for an LLRW disposal facility
in Texas by both House and Senate committees during the 2003 Regular Session
of the Texas Legislature. The passage of HB 1567 includes a statutory milestone
for the commission to begin accepting applications for an LLRW disposal license
by June 2004, thus accelerating the initial rulemaking process. HB 1567 also
includes milestones to be reached throughout the licensing process in order
to address the need for disposal capacity in a timely manner. The commission
made no change in response to these comments.
ARDT commented that an LLRW disposal facility is needed in Texas in order
to comply with the federal Low-Level Radioactive Waste Policy Act of 1980.
Under the federal Low-Level Radioactive Waste Policy Act and amendments,
Texas is responsible for managing the LLRW generated within its borders. The
commission made no changes in response to this comment.
One individual stated that radioactive waste disposal in Texas was a great
idea; however, the facilities should be in Houston rather than West Texas.
HB 1567 includes specific siting criteria which would exclude the Houston
area from being considered for the potential disposal of LLRW. According to
Texas Health and Safety Code, §401.217(2), the commission could not license
a facility in the Houston area because the average annual rainfall is greater
than 20 inches. The commission made no changes in response to this comment.
Fee rulemaking
ARDT, TXU, and STP commented that once the waste disposal facility is opened,
an appropriate fee structure must be in place that addresses the needs of
the generators and provides for a reasonable rate of return for the operator.
ARDT commented that stakeholder input should be obtained before future rulemaking
on the fee structure begins.
Statutory provisions under Texas Health and Safety Code, §401.245,
grant the commission authority to adopt fees for compact waste disposal. These
fees will be adopted in a later rulemaking closer to the time in which the
disposal facility is scheduled to open. The commission acknowledges the importance
of stakeholder input prior to proposing rules on a fee structure. The commission
made no change in response to this comment.
Access to information - Application and Staff
Analysis
TRWDF stated that the public's ability to understand and participate in
licensing proceedings turns on meaningful access to the details of the license
and renewal and amendment applications and access to the commission's staff
analyses that support the agency's decisions. All applications for the initial
license and for subsequent amendments and renewals of the license, as well
as the commission staff analyses of those applications, should be made available
on the Internet in a Web-browser-accessible format.
LWV-Dallas and LWV-Texas stated that the complete permit application and
supporting materials should be posted on the commission's Web site and by
a method other than the Web.
211 individuals stated that the public should have access to all documentation
associated with the licensing, building, and operation of a disposal facility.
The commission is committed to ensuring meaningful public participation
in its decision-making processes. The commission strives to provide clear,
concise, and accurate information related to all applicable licensing and
certification procedures via written materials and the official Web site.
In response to these comments, new §336.716(j) has been added to require
that all records maintained by the licensee in accordance with §336.740
are public information, unless otherwise exempt from public disclosure. Section
39.707 requires that, upon completion of technical review and preparation
of the draft license, whether for a new license, renewal, or major amendment,
the draft license be available for review on the commission's Web site and
the draft license and application materials be available for review at the
commission's offices and in a public place in the county or counties in which
the proposed facility site is located. At the commission agenda on December
17, 2003, §336.805(4) was added to require complete copies of applications
to be available on a publicly accessible Web site with a Web address link
for application materials provided to the commission. The application and
supporting materials will continue to be made available both at the commission
offices and in a public place in the county or counties in which the proposed
site is located.
Access to information - Licensee Records
TRWDF stated that by allowing a non-public entity to operate the facility,
facility-related records will be shielded from public view. The proposed regulations
should be modified to specify, as a license-application requisite, the license
applicant's commitment to public information access, generally paralleling
that available from public entities under the Texas Public Information Act,
to facility specific information.
211 individuals stated that the public should have access to all documentation
associated with the licensing, building, and operation of a disposal facility.
208 individuals stated that the facility was originally to be state-owned
and operated, and expressed a belief that the principles of open government
should still apply to a site with such serious implications for the state.
In HB 1567, the Texas Legislature repealed Texas Health and Safety Code, §401.203,
which provided that an LLRW disposal license may only be issued to a public
entity. The legislature intended to allow non-public entities to operate an
LLRW disposal facility. While it is possible that not all of a non-public
entity's business records would be considered public information under the
Texas Public Information Act, the commission disagrees that key facility records
of a non-public entity will be inaccessible to the public.
The commission's rules require that a variety of information be maintained
for or submitted to the commission. Any records required to be maintained
for the commission and any records submitted to the commission, not otherwise
exempt from disclosure would be considered public information. In response
to these comments, new §336.716(j) has been added to require that all
records maintained by the licensee in accordance with §336.740 are public
information, unless otherwise exempt from public disclosure. Specifically,
Texas Government Code, §552.002, provides that "public information" means
information that is collected, assembled, or maintained under a law or ordinance
or in connection with the transaction of official business of a governmental
body or for a governmental body, and the governmental body owns the information
or has a right of access to it.
Public Notice/Participation - Proposed Rules
One individual commented that most people in the state were unaware of
the public comment period for this policy. The individual only learned of
the issue before the end of the comment period and was challenged to respond
both in terms of time and available information. One individual stated that
given the impact of these rules, there needs to be much more public review
and discussion.
Texas Government Code, §2001.023, relating to notice of a proposed
rule, provides that a state agency shall give at least a 30-day notice of
its intention to adopt a rule before it adopts the rule, and that the notice
of the proposed rule be published in the
Texas Register
. The commission complied with the requirements in the August 22, 2003
issue of the
Texas Register
(28 TexReg 6735).
Moreover, the commission published notice of the proposed rules in several
newspapers throughout the state: the
Amarillo Globe-News
on August 14, 2003, the
Austin American-Statesman
on August 11, 2003, the
Fort Worth Star-Telegram
on August 10, 2003, the
Houston Chronicle
on August 11, 2003, the
Lubbock Avalanche-Journal
on August 10, 2003, and the
Odessa American
on August 12, 2003.
Public Notice/Participation - Adequacy of Public
Participation In General
TRO stated that the opportunity for public comment is, in some cases, in
conflict with the federal rules in 10 CFR Part 2, and is too short, particularly
regarding the technical review comment period of ten days.
TRWDF stated that the current rules only allow the public 30 days in which
to comment on the draft license and on license amendments and renewals. This
time period is so short that it deprives the public of a meaningful role in
decision-making, unless the public has forewarning. TRWDF stated that all
administratively complete applications for licenses, renewals, and amendments
should be noticed by newspaper publication.
TRWDF stated that for nearly all other air, water, solid waste, and hazardous
waste permits and permit amendments, members of the public are given newspaper
notice and an opportunity to comment on preliminary decisions. The proposed
rules should be modified in §39.703 to provide for a notice and comment
process that mirrors the process for other applications.
LWV-Texas and LWV-Dallas stated that there should be the opportunity for
any resident of Texas to request to be on a mailing list to receive notice
so that the opportunity to respond is greater than the ten days after mailing
currently listed in the rules.
LWV-Texas and LWV-Dallas stated that since mixed waste will be accepted
at the LLRW site, the permitting process should offer the same level of public
involvement as the rules for hazardous waste disposal sites.
211 individuals stated that the rules must establish a large and vigorous
role for public participation in this critical process, and that if Texas
is going to open its borders to vast amounts of dangerous materials, there
should be a citizen oversight committee. One individual urged the commission
to include citizens of West Texas, who will have to live with what the commission
does, in the whole process. One individual stated that public scrutiny is
vital and that this issue cannot be rushed through without risking the health
of this and future generations of Texans.
LWV-Texas and LWV-Dallas supported the existence of a citizen oversight
committee and stated that the Keystone education project is a good model (for
community involvement in the permitting process). LWV-Texas and LWV-Dallas
expressed a belief that the rules for licensing an LLRW facility should include,
at a minimum, the level and types of public participation found in rules governing
hazardous waste disposal site permits and air permits. LWV-Texas and LWV-Dallas
implored the commission to promote public participation in decision-making
throughout the process of permitting and subsequent monitoring of any LLRW
facility established in Texas. LWV-Texas and LWV-Dallas requested that the
commission allow citizens to voice their concerns at the beginning of the
permit application process.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission proposed no changes
to §39.403 and §39.405, relating to Applicability and General Notice
Provisions, respectively. Nevertheless, the commission responds as follows.
The Texas Radiation Control Act provides specific time requirements for application
processing and specific public notice requirements. The commission rules were
written in accordance with those statutory requirements.
Section 336.809 provides notice of an administratively complete application.
The executive director shall conduct at least one public meeting in the county
or counties where a facility is proposed to be located to receive public comments
on the administratively complete application(s). The applicant shall publish
notice of the public meeting once each week during the three weeks preceding
the public meeting. Notice of the meeting shall also be mailed to certain
specified entities and persons. The notice shall include, among other things,
the location and availability of the application.
Upon completion of the technical review of an application for a new license,
major amendment, or renewal of a license issued under Chapter 336, or for
a minor amendment issued under Chapter 336, Subchapter H, notice shall be
mailed and published in the
Texas Register
and
in the newspaper of largest circulation in the county in which the facility
is located or proposed to be located. Section 39.707 requires that the published
notice specify the requirements for requesting a contested case hearing and
include that the draft license be available for review on the commission's
Web site and the draft license and application materials be available for
review at the commission offices and in a public place in the county or counties
in which the proposed site is located. The deadline to file public comment,
protests, or hearing requests is 30 days after publication. Section 39.707(c)
has been modified to clarify that HB 1567 requires
Texas Register
publication of the initial notice of draft license and
opportunity to comment in addition to
Texas Register
publication of amendments to an existing license.
Section 39.703(b) provides that for any application for a minor amendment
to a license issued under Chapter 336, Subchapter F or Subchapter G, notice
shall be mailed. The deadline to file public comment, protests, or hearing
requests is ten days after mailing. The ten-day notice requirement does not
apply in the case of the license application for an LLRW disposal facility
under Chapter 336, Subchapter H.
Section 39.407 provides that the commission's Office of the Chief Clerk
shall maintain a mailing list of persons requesting notice. Thus, once on
the mailing list, persons other than adjacent property owners can receive
all of the mailed notices relating to an application.
The rules regarding the processing of public comments for LLRW applications
are subject to 30 TAC Chapter 55, Subchapter G, including responding to public
comment. The commission made no change in response to these comments.
Public Notice/Participation - License Transfer
TRWDF stated that the transfer of a radioactive waste disposal license
should in all cases require full public notice and participation.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission proposed no changes
to §39.403 and §39.15, relating to Applicability and Public Notice
Not Required for Certain Types of Applications, respectively. Nevertheless,
the commission responds as follows. Texas Health and Safety Code, §401.119,
provides that a license issued by the Texas Department of Health or commission
may be assigned only to a person qualified under rules of the issuing agency.
Section 305.62(c)(1) provides that changes in the operator of the facility
and transfers of the license to the custodial agency are major amendments.
Section 39.703 provides that, upon completion of technical review of a
major amendment, notice shall be mailed and published. The comment period
is 30 days. Section 39.707 requires that the published notice specify the
requirements for requesting a contested case hearing and include that the
draft license be available for review on the commission's Web site, and the
draft license and application materials be available for review at the commission's
offices and in a public place in the county or counties in which the proposed
site is located.
Section 336.721 provides that following closure and the period of post-closure
observation and maintenance, the licensee may apply for a major amendment
to transfer the license to the custodial agency so long as certain findings
are made by the commission. Before a licensee may close a facility, it must
file a license termination plan with the commission. Section 39.713 provides
that, upon the receipt of a license termination plan or decommissioning plan
from the licensee, the commission shall notify and solicit comments from local
and state governments in the vicinity of the site; the United States Environmental
Protection Agency (EPA) for cases where the licensee proposes to release a
site under §336.609; and publish a notice in the
Texas Register
and in a forum, such as local newspapers, letters to
state or local organizations, or other appropriate forum, that is readily
accessible to individuals in the vicinity of the site; and solicit comments
from affected parties.
The commission made no changes in response to these comments.
Public Notice/Participation - Minor Amendment
TRWDF stated that the proposed rule excludes minor amendments from published
notice and the definition of minor is ambiguous. The rules should be amended
to either: 1) eliminate the distinction between minor and non-minor amendments;
or 2) specify a small universe of changes that may be characterized as minor.
TRWDF stated that if the minor amendment category of license amendments
is retained, then a minimum of 45 days in which to comment on preliminary
decisions or minor amendment applications should be allowed.
Changes to the minor amendment notice provisions were not proposed as part
of this rulemaking action. The rules remain as follows: 1) for a minor amendment
issued under Chapter 336, Subchapter H, notice shall be mailed and published
and the deadline to file public comment, protests, or hearing requests is
30 days after publication; and 2) for a minor amendment to a license issued
under Chapter 336, Subchapter F or Subchapter G, notice shall be mailed and
the deadline to file public comment, protests, or hearing requests is ten
days after mailing. The commission made no changes in response to these comments.
Public Notice/Participation - Exemptions
TRWDF stated that preliminary decisions on exemptions should be publicly
noticed and subject to a 45-day comment period.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission proposed no changes
to §336.5, relating to Exemptions. Nevertheless, the commission responds
that applications for exemptions are subject to 30 TAC Chapter 90, which provides
that the applicant publish notice at least once in a newspaper of general
circulation in the county in which the facility is located or proposed to
be located and that there is a 30-day comment period. The commission made
no changes in response to this comment.
Public Notice/Participation - Newspaper Notice
LWV-Dallas stated that the proposed rules in Chapter 39 which only require
notice in the county in which the facility would be located, are inadequate.
LWV-Dallas and LWV-Texas stated that rules should include the requirement
that it is the responsibility of the applicant to provide notice statewide.
TRWDF stated that all notices should be published in major newspapers throughout
the state. The notices should be published in newspapers in Dallas, Houston,
San Antonio, Austin, El Paso, Lubbock, Midland-Odessa, and Amarillo. Notices
should also be required in New Mexico, Colorado, and Oklahoma newspapers to
the extent the laws of those states would require newspaper notice of an in-state
hazardous waste facility located along the Texas border.
The rules contain no changes to the location of newspapers for published
notice. The publication requirement in §39.707(b) continues to be the
newspaper of largest general circulation in the county in which the facility
is located or proposed to be located. This requirement is consistent with
Texas Health and Safety Code, §401.114, and Texas Government Code, §313.
The commission made no change in response to these comments.
Consistent Use of Terminology
WCS commented that defined terms have not been used in a clear and consistent
manner, and that undefined terms were used where a defined term would be more
appropriate.
The commission has made changes from the proposed rules to use defined
terms. The changes replace the undefined terms "facility," "disposal facility,"
and "disposal facility site" with the defined terms "Land disposal facility,"
"Disposal site," and "Site" as appropriate. A new definition, "Site," is added
to §336.702 to provide clarity and consistency.
WCS commented that §336.705 should be modified to provide that "An
application for a license to receive, possess, and dispose of LLRW from other
persons by near-surface land disposal shall consist of, but is not limited
to, the information specified in Chapter 305, Consolidated Permits,
The commission disagrees with this comment. The commission rules in Chapter
336, Subchapter H, are based on the NRC rules in 10 CFR Part 61, Licensing
Requirements for Land Disposal of Radioactive Waste. Both the commission and
the NRC rules consider and regulate the processing of waste that is disposed
in the near-surface land disposal facility. Neither the commission's licensing
of disposal nor the commission's authority to regulate disposal are confined
to a specific geographic location, such as within the boundaries of the disposal
facility site. The commission's interpretation of the extent of its authority
to regulate the processing of waste for disposal is consistent with the commission's
historical practice in reviewing licenses for the disposal of LLRW from other
persons, the commission's rules in §336.211(d) and §336.701(a),
and the MOU with the Texas Department of Health. A new definition "Site" is
added to §336.702 to provide clarity and consistency.
Compact
TRAB requested the status of Maine in the Compact, and questioned whether
Maine was still liable to pay the Compact fee to Texas even though the state
is dropping out of the Compact?
The State of Maine passed emergency legislation in April 2002 to withdraw
from the Texas Low-Level Radioactive Waste Disposal Compact. The withdrawal
of Maine is scheduled to take effect in April 2004. Texas Health and Safety
Code, Chapter 403, §7.05, states that "A party state, other than the
host state, may withdraw from the compact by repealing the enactment of this
compact, but this withdrawal shall not become effective until two years after
the effective date of the repealing legislation. During this two-year period
the party state will continue to have access to the facility. The withdrawing
party shall remain liable for any payments under §4.05(5) and (6) of
Article IV that were due during the two-year period and shall not be entitled
to any refund of payments previously made."
ARDT, TXU, and STP commented that HB 1567 calls for Maine and Vermont to
make initial payments to the State of Texas by November 1, 2003.
HB 1567, §401.250, requires each non-host party state to pay Texas
the initial compact payment of $12.5 million no later than November 1, 2003.
The Texas attorney general sent letters to the governors of Maine and Vermont
on September 10, 2003 requesting that the initial payment of $12.5 million
from each be paid to Texas by November 1, 2003. A payment of $2.5 million
has been received from the State of Vermont. Texas Health and Safety Code,
Chapter 403, §5.01, states that "Each party state, except the host state,
shall contribute a total of $25 million to the host state. Payments shall
be deposited in the host state treasury to the credit of the low-level waste
fund in the following manner except as otherwise provided. Not later than
the 60th day after the date of congressional ratification of this compact,
each non-host party state shall pay to the host state $12.5 million. Not later
than the 60th day after the date of the opening of the compact facility, each
non-host party state shall pay to the host state an additional $12.5 million."
ARDT, TXU, and STP commented that the Texas Low-Level Radioactive Waste
Disposal Compact Commission should be established as soon as possible. AEP
stated that the Compact Commission needs to be established as soon as possible
in order to fully implement HB 1567.
Texas Health and Safety Code, Chapter 403, §3.01, states that "There
is hereby established the Texas Low-Level Radioactive Waste Disposal Compact
Commission. The commission shall consist of one voting member from each party
state except that the host state shall be entitled to six voting members.
Commission members shall be appointed by the party state governors, as provided
by the laws of each party state." Although Maine and Vermont have both appointed
one commissioner to the Texas Compact, Texas has never appointed commissioners
to the Texas Compact.
One individual expressed concern that the rules implementing HB 1567 may
be flawed in several areas relating to the Compact, particularly with regard
to monitoring and cross-contamination of combined Compact and non-Compact
facilities and their interaction with related industries. The individual's
principal concern was with the potential problem that HB 1567 and its implementation
may jeopardize Texas' participation in the Compact by facilitating the creation
of a disposal facility not governed by the Compact commissioners. According
to the commenter, this condition violates Article VI, §6.02 of the Compact,
which clearly prohibits management of "radioactive waste" in Texas outside
the jurisdiction of the Compact. The commenter also asserted that HB 1567
violates the doctrine of federal preemption based on the supremacy clause
of the United States Constitution and may result in recission of the Compact.
This problem has been discussed in a document previously issued by the commission's
Environmental Law Division (
Legal Considerations
Related to Low-Level Radioactive Waste Management Techniques in Texas
,
August 2002, pp. 109-110).
As explained in the proposal preamble, the primary purpose of the rules
is to implement HB 1567 and its amendments to Texas Health and Safety Code,
Chapter 401. The bill provides for the licensing of LLRW disposal and established
procedures for the commission to accept and evaluate license applications
from private entities to dispose of LLRW. The commission's 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 Low-Level Radioactive
Waste Disposal Compact Commission. The commission's jurisdiction to license
the disposal of LLRW is derived from Texas Health and Safety Code, Chapter
401. The commission does not exercise jurisdiction under Texas Health and
Safety Code, Chapter 403, relating to the Texas Low-Level Radioactive Waste
Disposal Compact. Whether the provisions in HB 1567 that would authorize the
disposal of federal facility waste conflict with or are preempted by the terms
of the Texas Compact is not a matter within the jurisdiction of the commission.
Land ownership
TRAB asked that the commission confirm that an exemption must be applied
for from Chapter 336, Subchapter H, regarding fee simple title.
Ownership by the state in fee simple title of the land and buildings of
the compact waste disposal facility is required at license issuance. If requesting
authorization to license the disposal of federal facility waste at a federal
facility waste disposal facility, an applicant may request an exemption from
the requirements of §336.735(a) to transfer ownership of a federal facility
waste disposal facility at decommissioning rather than at license issuance.
An exemption from the requirement of state or federal ownership of the mineral
interests may also be requested to authorize the use of a surface use agreement.
The exemption process in §336.5 is authorized by Texas Health and Safety
Code, §401.106(b), and is similar to the federal exemption process in
10 CFR §61.6. Section 336.5 requires the applicant to submit an application
to the agency using the regulatory flexibility process under Chapter 90 of
the commission's rules. An applicant would have to demonstrate that the exemption
is not prohibited by law, will not result in a significant risk to public
health and safety or the environment, and is at least as protective of the
environment and the public health as the method or standard prescribed by
commission rule that would otherwise apply.
TRAB asked, what if someone does not want to sell the mineral rights?
Applicants who do not own the surface and mineral rights in fee simple
title underlying their proposed land disposal facilities are strongly encouraged
to negotiate with the owners of the outstanding interests to acquire all interests
in the property prior to submitting an application. However, if negotiations
are not successful, HB 1567 amended Texas Health and Safety Code, §401.204(c),
to provide that the Texas attorney general shall, at the request of the commission,
initiate condemnation proceedings to acquire fee simple interest in the mineral
rights, if an applicant cannot reach a surface use agreement with a private
landowner. The commission made no changes in response to this comment.
TRAB asked who will be paying for the mineral rights that are to be taken?
Section 336.808(c) provides that the applicant shall pay for all costs
incurred by the commission in the process of obtaining the mineral interests.
HB 1567 amended Texas Health and Safety Code, §401.210, to provide that
land and buildings transferred to the state or federal government shall be
transferred without cost.
TRAB requested the commission to stipulate that the "federal government
official" have authority to engage in such agreements provided in §336.909(2).
The commission agrees with this comment. The commission agrees that the
government official referred to in §336.909(2) must have authority to
engage in such agreements, and the signed agreement must be acceptable to
the executive director. In response to this comment, §336.909(2) has
been changed to specify the United States secretary of energy as the government
official with the authority to engage in this agreement.
WCS commented that §336.734 should be revised to be consistent with
the Texas Radiation Control Act to authorize the disposal of waste at the
federal facility waste disposal facility on land owned by the licensee provided
that arrangements have been made with the federal government in accordance
with §336.909(2).
The NRC commented that the proposed regulation does not meet the essential
objectives of 10 CFR §61.14, which requires federal or state ownership
of land before issuance of a license. The NRC stated that while §336.734
requires that disposal of waste received from other persons may be permitted
only on land owned in fee by the state or federal government, proposed §336.909(2)
and (3) requires an applicant to provide for a commitment from the federal
government, before the licensee can accept federal facility waste to assume
all right, title, and interest in land and buildings for the disposal of federal
facility waste, and requires the licensee to convey to the federal government
the right, title, and interest in the federal facility waste and associated
land and property before license termination rather than before license issuance.
The NRC also commented that the state needs to provide a mechanism that would
enable the existing regulations to provide for federal or state land ownership
to be in effect for that part of the facility that would be accepting federal
waste before issuance of a license. The NRC questioned the provisions of §336.909(3)
in relation to §336.734 about the timing of the ownership requirements
for the federal facility waste disposal facility.
The commission disagrees with these comments. The commission proposed no
changes to 336.734. The commission's rules harmonize Texas Health and Safety
Code, §401.205, which provides for transfer of ownership of the federal
facility waste disposal facility on decommissioning and the existing requirement
in §336.734(a), which requires disposal of LLRW only on land owned in
fee by the state or federal government by use of the exemption process in §336.5.
The commission notes that the legislature intends for the State of Texas to
maintain a state licensing program that is compatible with federal standards
and regulatory programs as provided in §§401.001(1)(A), 401.059(b),
401.103(c), 401.151, and 401.412(c). Further, HB 1567 provides that the commission
may issue the license for a single compact waste disposal facility only for
a facility that meets the requirements of Texas Health and Safety Code, Subchapter
F, the requirements of commission rules,
and requirements
for disposal adopted by the commission that meet federal requirements for
disposal
. The provision in §336.734(a) is based on the federal
requirement found in 10 CFR §61.59(a) for licensing requirements for
land disposal of radioactive waste. The NRC has identified this provision
as an element that has particular health and safety significance and provides
that an agreement state, such as Texas, should adopt the essential objectives
of such a program element in order to maintain an adequate program. Under
the Articles of Agreement, the State of Texas agreed to use its best efforts
to cooperate with the NRC and other agreement states in the formulation of
standards and regulatory programs of the state and the NRC for protection
against hazards of radiation, and to assure that the state's program will
continue to be compatible with the program for the regulation of like materials.
Existing requirements in §336.10 are based on the requirements in 10
CFR §61.14 and are not changed in this rulemaking.
As explained in the proposal preamble, an exemption process is available
to applicants seeking to obtain an exemption from the requirements of commission
rules. An applicant could pursue an exemption from the requirement in §336.734(a)
to authorize the ownership transfer of a federal facility waste disposal facility
at decommissioning rather than at license issuance. The relevant issue is
not whether there is an exemption process, but rather, whether the granting
of a specific exemption "poses a sufficient safety problem as to require the
NRC to revoke or suspend" agreement state status. Supporting information may
be found in 60 Federal Register 6570 - 6571 (1995).
An application for exemption does not guarantee that an exemption will
be granted, or that the federal government will agree to take all right, title,
and interest in the waste and the land on which it is disposed. The exemption
process in §336.5 is authorized by Texas Health and Safety Code, §401.106(b),
and is similar to the federal exemption process in 10 CFR Part 61. The process
requires the applicant to submit an application to the agency using the regulatory
flexibility process under Chapter 90 of the commission's rules. An application
for an exemption would have to describe the nature of the requested exemption,
demonstrate that the exemption is not prohibited by law, will not result in
a significant risk to public health and safety or the environment, and is
at least as protective of the environment and the public health as the method
or standard prescribed by the commission rule that would otherwise apply.
An exemption that may be granted must provide control of the disposal site
that is equivalent to the control provided in 10 CFR Part 61. Additionally,
any exemption must not affect the commission's enforcement and regulatory
authority over a site or affect the continuing responsibilities of the licensee.
Specific considerations that may be involved in an exemption decision related
to land ownership include, but are not limited to, the following: license
restrictions on the amount of undisposed waste allowed on the site at any
one time; restrictive covenant provisions that are enforceable by the state
or federal custodial agency during the institutional control period; and the
corrective action financial assurance amount that is required to be available
prior to accepting waste on the site. Section 336.909(3) has been modified
in response to the NRC comment to indicate that before termination of the
license formal conveyance to the federal government to the right, title, and
interest in federal waste disposed at the federal facility waste disposal
facility is required.
WCS commented that §336.808 should be modified as follows:
"Section 336.808. Ownership of Land and Buildings
and Mineral Estate (a) Land and Buildings. (1) A license application to receive,
possess, and dispose of LLRW from others at the compact waste disposal facility
may not be considered under Chapter 50 of this title unless the applicant
has acquired the title to and any interest in land and buildings on which
the land disposal facility is to be located as specified in this subsection.
The applicant must demonstrate that an undivided interest in fee simple title
of the land and buildings, including the surface estate but not including
the mineral estate, on which the land disposal facility is to be located is
owned by the applicant or the government prior to a declaration that a license
is administratively complete. (b) Mineral Estate. (1) A license application
to receive, possess, and dispose of LLRW from others at the compact waste
disposal facility may not be considered under Chapter 50 of this title unless
the applicant has acquired control of and the right to exclude parties other
than the government from the mineral estate underlying the proposed land disposal
facility as specified in this subsection. Control of and the right to exclude
parties other than the government from the mineral estate underlying the proposed
land disposal facility shall be demonstrated prior to a declaration of administrative
completeness of a license application in any one of the following means: (A)
ownership of an undivided interest in fee simple title in the mineral estate
by the applicant or the government, as applicable; (B) entry into a surface
use agreement restricting access to the mineral estate as set forth in subsection
(b)(2) below, or (C) the filing of a petition seeking initiation of condemnation
proceedings in compliance with subsection (b)(3) below. (2) An applicant may,
to the extent permissible under federal law, 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 site. The applicant
must demonstrate that the surface use agreement is permissible under federal
law and consistent with the Agreement Between the United States Nuclear Regulatory
Commission And the State of Texas for Discontinuance of Certain Commission
Regulatory Authority and Responsibility with the State Pursuant to Section
274 of the Atomic Energy Act of 1954, as amended. The surface use agreement
shall prohibit the use of the surface in the development and access of the
minerals in perpetuity by the owner of the mineral estate, heirs, and successors
and shall be assigned to and be enforceable by the state or federal government
upon conveyance of the property under §336.710(2) of this title (relating
to Institutional Information). (3) If an applicant cannot reach a surface
use agreement that is consistent with federal law and cannot otherwise obtain
fee simple title to the mineral estate underlying the proposed land disposal
facility, the applicant, when it submits its license application, shall petition
the commission under §1.8 of this title (relating to Initiation of Proceeding)
to request the attorney general to institute condemnation of proceedings as
provided under Texas Property Code, Chapter 21, to acquire fee simple interest
in the mineral rights. The petition to request initiation of condemnation
proceedings shall include a description of the communications between the
applicant and the mineral estate interest owner, an appraisal of the fair
market value of the mineral interest, and a demonstration by the applicant
of the ability to pay for all costs in obtaining the mineral interests in
condemnation proceedings, including legal fees. The applicant shall provide
a copy of the petition under this subsection to the owner of the mineral interest.
If the commission selects the license application as the application having
the highest comparative merit, the commission shall request the attorney general
to initiate condemnation proceedings and the applicant shall pay for all costs
incurred by the commission in the process of obtaining the mineral interests."
The commission modified §336.808(a) to address situations where the
ownership of land and buildings is already owned by the state or federal government.
The commission does not agree with the recommended changes to §336.808(b)
because it does not reconcile the use of the surface use agreements with the
requirements of land ownership in §336.734(a). However, because §336.807(d)(9)
requires an applicant to provide a copy of the warranty deed or other conveyance
showing that right, title, and interest in the land on which the facility
or facilities is proposed to be located is owned in fee by the applicant as
required by Texas Health and Safety Code, §401.204, an applicant may
include an application for an exemption to authorize the use of the surface
use agreement to satisfy the administrative review of this application requirement.
The commission does not agree with the recommended change to §336.808(b)(2)
that provides for the use of the surface use agreement without an exemption
to the requirements in §336.734(a). The commission's rules harmonize
Texas Health and Safety Code, §401.204(b), which provides for the use
of a surface use agreement, to the extent permissible under federal law, and
the existing requirement in §336.734(a), which requires disposal of LLRW
only on land owned in fee by the state or federal government by use of the
exemption process in §336.5. The commission does not agree with the commenter's
suggested language in §336.808(b)(3) because the commission is not required
to request the Texas attorney general to initiate condemnation procedings,
but has modified §336.808(c) to provide that the condemnation proceeding
is only available for an applicant whose application has been selected with
the highest comparative merit under §336.813(d). Texas Health and Safety
Code, §401.204(c), provides discretionary authority to request the Texas
attorney general to initiate condemnation proceedings after consideration
of such factors as the applicant's own efforts to acquire the outstanding
mineral interests, the state's ability to facilitate or negotiate a resolution
outside of a formal legal proceeding, and the complexity of the legal issues
involved.
WCS commented that it is inappropriate to subject an applicant's efforts
to secure a surface use agreement, a right that the legislature has acknowledged
subject only to a determination of consistency with federal law, to the exemption
and regulatory flexibility process under §336.5. WCS also commented that
the commission should confirm in these rules that a surface use agreement
is consistent with federal law.
The commission disagrees with the comment. The legislature directed the
commission to maintain a state licensing program that is compatible with federal
standards and regulatory programs as provided in Texas Health and Safety Code, §§401.001(1)(A),
401.059(b), 401.103(c), 401.151, and 401.412(c). The commission's rules harmonize
Texas Health and Safety Code, §401.204(b), which provides for the use
of a surface use agreement, to the extent permissible under federal law, and
the existing requirement in §336.734(a), based on a federal requirement,
which requires disposal of LLRW only on land owned in fee by the state or
federal government by use of the exemption process in §336.5. Under the
exemption process in §336.5, the applicant has the burden to demonstrate
that the exemption is not prohibited by law, will not result in a significant
risk to public health and safety or the environment, and is at least as protective
of the environment and the public health as the method or standard prescribed
by the commission rule that would otherwise apply. The commission made no
change in response to this comment.
The NRC commented that the phrase, "to the extent permissible under federal
law" in §336.808(b) is unclear.
The commission interprets the statutory phrase "to the extent permissible
under federal law" to mean that a surface use agreement may be used in lieu
of state or federal ownership of the mineral interests underlying the disposal
site in fee simple title if the use of such an agreement is consistent and
compatible with federal law. An applicant would have to apply for an exemption
from the requirement that waste be disposed on land, including the mineral
interests, owned in fee by the state or federal government to use a surface
use agreement. Under the exemption process in §336.5, the applicant has
the burden to demonstrate that the exemption is not prohibited by state or
federal law. The commission made no change in response to the comment.
The NRC commented that §336.808(b) uses the term "mineral" resources
instead of "natural" resources and that the state should clarify that mineral
is intended to be read broadly to encompass "natural resources" as used in
10 CFR §61.50(a)(4).
The commission agrees with the comment. Language in §336.808(b) was
changed to reflect that the surface use agreement must restrict access to
natural resources, including slant drilling and subsurface mining, to the
extent necessary to prevent inadvertent intrusion into the site. The surface
use agreement must prohibit the use of the surface in the development and
access of natural resources in perpetuity by the owner of the mineral estate,
heirs, and successors.
The NRC commented that the rule and preamble should provide that the exemption
for acquiring mineral/natural resources is not effective until after the surface
agreement is entered into.
The commission modified §336.808(b) in response to the NRC comment
to state that the applicant must have entered into a surface use agreement
to prevent intrusion into the site. An exemption under §336.5 is subject
to the process for regulatory flexibility under Chapter 90. Under §90.14(a),
commission action on an application is subject to 30 TAC Chapter 50, Action
on Applications and Other Authorizations. After commission action on the application,
the Office of the Chief Clerk mails notice of the order to the applicant,
the executive director, persons who commented on the application, and to persons
who requested reconsideration or a contested case hearing. If a motion for
rehearing is denied on the application, the commission's decision is final
and appealable to Texas District Court under Texas Water Code, §5.351.
In considering an exemption as described in §336.808(b) to authorize
the use of a surface use agreement rather than outright ownership of the mineral
interests, the commission would consider, among other things, the effective
date and the enforceability of the surface use agreement.
TRAB commented that the requirement allowing condemnation of land should
be deleted.
HB 1567 provides in Texas Health and Safety Code, §401.204(c), that
if an applicant cannot reach a surface use agreement with a private landowner,
the Texas attorney general shall, on request of the commission, institute
condemnation proceedings as provided under Texas Property Code, Chapter 21,
to acquire fee simple interest in the mineral rights. The commission made
no change in response to this comment.
TRAB asked how will assurance be guaranteed that slant drilling is prohibited,
and is a prohibition possible or permissible?
Intrusions into the land disposal facility, including slant drilling, are
addressed by requiring state or federal ownership of the land on which the
disposal site is located as provided in §336.734(a). State or federal
ownership assures adequate control of the disposal site after closure, and
reduces the potential for inadvertent intrusion into the site. Under §336.728,
a site should be selected so that future developments, including oil and gas
exploration and development, are not likely to affect the ability of the land
disposal facility to meet performance objectives. Under §336.728(c),
disposal areas should be avoided that have known natural resources which,
if exploited, would result in failure to meet performance objectives. The
disposal site shall not be located where nearby facilities or activities,
including oil and gas exploration and development, could adversely impact
the ability of the site to meet the performance objectives or significantly
mask the environmental monitoring program. In the executive director's application
selection process, Tier I Criteria include the consideration of the adequacy
of the proposed facility to safely isolate, shield, and contain LLRW from
mankind and mankind's environment. Tier I Criteria also include consideration
of the natural characteristics of the disposal site including the compatibility
of disposal activities with any uses of land near the site, such as oil and
gas exploration and development, that could affect the natural performance
of the site or that could affect monitoring of the disposal facility.
WCS commented that it agrees that it is appropriate for an applicant that
does not own the mineral estate under the land disposal facility to have exhausted
its efforts to acquire the mineral estate or enter into a surface use agreement
prior to a determination of administrative completeness.
The commission appreciates the comment and strongly urges applicants to
acquire ownership of all mineral interests underlying the disposal facility
site in fee simple title.
WCS commented that the proposed rule in §336.808 should be modified
to allow a writ of possession to be a sufficient showing of property interest
for a technically complete application.
The commission partially agrees with the comment. Section 336.808(a) has
been modified to provide that except as provided in subsection (b) or (c)
or for land and buildings owned by the state or federal government, an applicant
must demonstrate ownership of an undivided interest in fee simple title of
the land and buildings, including the surface and mineral estates, on which
the facility or facilities are to be located. Like all matters in the application,
the applicant carries the burden of proof, including proving ownership, and
would carry the burden in demonstrating that a writ of possession satisfies
the requirement that the disposal of waste occurs only on land owned in fee
by the state or federal government and meeting the application requirements
in §336.710(1) and (2).
The NRC commented that §336.909 is based on Texas Health and Safety
Code, §401.205(b), which requires the commitment for future conveyance
and actual conveyance to be pursuant to the Nuclear Waste Policy Act, §151(b).
The NRC interprets the Texas legislation as a direction that the State of
Texas not own right, title, and interest in federal waste or the land and
facility used for disposal of federal waste. The NRC commented and requested
verification, that the proposal preamble provides that an exemption to the
requirement in §336.734 is needed to allow the licensing of a facility
to dispose of federal waste.
The commission agrees with the comment. In accordance with the requirements
of the Texas Radiation Control Act, the State of Texas will not own the federal
facility waste disposal facility or the federal facility waste disposed at
the federal facility waste disposal facility. The exemption process in §336.5
is available to applicants seeking to obtain an exemption from the requirements
of §336.734(a). The commission made no change in response to this comment.
The NRC questioned whether the federal government can accept title of waste
at a facility licensed by Texas under the Nuclear Waste Policy Act, §151(b)
because §151(b) does not appear to provide for conveyance until termination
of the license; §151(b) requires the licensing authority to make a determination
that federal ownership is necessary or desirable to protect public health
and safety; §151(b) contemplates a post-closure determination of federal
ownership and not a pre-operation prediction that license termination requirements
have been met; and §151(b) does not require the secretary of the Department
of Energy to accept title. The NRC commented that a radiation control program
that would rely on §151(b) for land disposition, as part of the initial
licensing process, could raise potential questions on overall program adequacy.
The NRC comment addresses Texas Health and Safety Code, §401.205(b)(4),
which provides that the licensee, if licensed to dispose of federal facility
waste, shall "before accepting federal facility waste, submit to the commission
a written agreement, 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 under commission rules under §401.204
for the disposal of federal facility waste, together with requisite rights
of access to the land and buildings, in accordance with the federal Nuclear
Waste Policy Act of 1982, Subtitle D (42 USC Section 10171 et seq.), as amended."
This provision is implemented in §336.909(2). The commission does not
consider this requirement as a pre-operation prediction that license termination
requirements have been met. Rather, §336.909 provides that if federal
facility waste is to be disposed of within the state, that the federal government
will assume all right, title, and interest in land and buildings and in the
federal facility waste disposed at the federal facility waste disposal facility.
In addition, the federal government must agree in writing to assume all right,
title, and interest in land and buildings and the federal facility waste disposed
at the federal facility waste disposal facility prior to the acceptance of
waste.
By providing an exemption process to request transfer of ownership of a
federal facility waste disposal facility at decommissioning, the Texas LLRW
program is not automatically incompatible with the federal regulations. The
exemption process in §336.5 is authorized by Texas Health and Safety
Code, §401.106(b), and is similar to the federal exemption process in
10 CFR Part 61. Additionally, the Nuclear Waste Policy Act, §151(b),
relating to title and custody, clearly contemplates that not all LLRW disposal
sites will be owned by the federal government at the time of disposal. Thus,
the issue is not the existence of an exemption process, but rather, whether
the "exercise of the exemption provision poses a sufficient safety problem
as to require the NRC to revoke or suspend" a state's program. Supporting
information may be found in 60 Federal Register 6570 - 6571 (1995). Nothing
in the commission rules is a guarantee that the federal government will agree
to accept all right, title, and interest in the waste and the land on which
it is disposed, or that an exemption will be granted.
Land Ownership - Condemnation
TRAB asked who will put a value on the minerals?
Section 336.808(c) requires the applicant petitioning the commission to
request the Texas attorney general to initiate condemnation proceedings under
Texas Property Code, Chapter 21, to provide an appraisal of the fair market
value of the mineral interests. The actual award of damages in a condemnation
proceeding is determined by the special commissioners of the condemnation
proceeding or by order of the district court or county court at law in which
the condemnation proceeding is heard.
TRAB asked if the condemnation proceedings will occur before a license
can be issued?
No license can be issued before ownership issues are resolved. Section
336.715(7) provides that a license may be issued by the commission upon a
finding that the institutional control meets the requirements of §336.734.
Unless otherwise exempted, §336.734(a) requires that LLRW disposal occurs
only on land owned in fee by the state or federal government. Section 336.207
has been modified to emphasize that an application for a license to dispose
of LLRW will not be approved unless an applicant has acquired title to the
land and buildings, including the mineral estate, on which the facility or
facilities are to be located. The requirement can be met by either having
fee simple title to everything (by purchase or condemnation) or by having
acquired fee simple in the surface estate and an approved application for
an exemption to use a surface use agreement in lieu of having fee simple title
to the mineral estate.
TRAB asked if the state will be exercising eminent domain powers, and requested
that the commission explain the details on this.
Whether the state will be exercising eminent domain powers depends on whether
an applicant owns the mineral interests in fee simple title underneath the
property on which a proposed land disposal facility is to be located and whether
the commission decides to request the Texas attorney general to institute
condemnation proceedings. HB 1567 amended Texas Health and Safety Code, §401.204(c),
to provide "if an applicant cannot reach a surface use agreement described
by Subsection (b) with a private landowner, the attorney general shall, on
request of the commission, institute condemnation proceedings as provided
under Chapter 21, Property Code, to acquire fee simple interest in the mineral
right." The process for requesting that the commission initiate a condemnation
proceeding is set out in §336.808(c).
WCS commented that it makes no sense for the commission to request the
Texas attorney general to institute condemnation proceedings simultaneously
for multiple applicants and would require unwarranted duplication of effort
by applicants and the Texas attorney general. WCS commented that the rule
should be modified to require that the commission request that condemnation
proceedings be instituted, if necessary, at the same time as it selects the
application with the highest comparative merit.
The commission partially agrees with the comment. Section 336.808(c) has
been modified to provide that the petition to request initiation of condemnation
proceedings must demonstrate that the applicant's application has been selected
as the application that has the highest comparative merit under §336.813(d).
Texas Health and Safety Code, §401.204(c), provides discretionary authority
to request the Texas attorney general to initiate condemnation proceedings
after consideration of such factors as the applicant's own efforts to acquire
the outstanding mineral interests, the state's ability to facilitate or negotiate
a resolution outside of a formal legal proceeding, and the complexity of the
legal issues involved.
WCS commented that §336.808 should be modified to lengthen the deadline
by which the mineral estate must be acquired or an acceptable surface use
agreement should be in place. WCS commented that the proposed requirement
in §336.808 would not provide an applicant who does not own an undivided
fee interest in the mineral estate enough time to identify outstanding mineral
interest owners, attempt to acquire those interests, fail to do so, seek a
regulatory flexibility order under §336.5 to use a surface use agreement,
attempt to negotiate a surface use agreement, fail to do so, file a petition
pursuant to 30 TAC §1.8, have the petition granted, and have the condemnation
proceedings concluded prior to a determination of administrative completeness.
The commission agrees with the commenter. The sentence "It is the responsibility
of the applicant to apply for and obtain the exemption in a manner that will
allow the timely processing of the application under this subchapter." has
been removed from §336.808(b) and (c). An applicant may apply for an
exemption for the requirement of fee simple interest by use of a surface use
agreement contemporaneously with the application for the license authorizing
disposal. Because §336.807(d)(9) requires an applicant to provide a copy
of the warranty deed or other conveyance showing that right, title, and interest
in the land on which the facility or facilities is proposed to be located
is owned in fee by the applicant as required by Texas Health and Safety Code, §401.204,
an applicant may include an application for an exemption to authorize the
use of the surface use agreement that it has entered into in order to satisfy
the administrative review of this application requirement. The second sentence
of §336.808(a) has also been modified from the proposed language to provide
"Except as provided in subsections (b)
or (c)
of
this section . . .."
Jurisdiction - Annual License Fee
TRAB asked if the "annual license fee" is in conflict with HB 2292, 78th
Legislature, 2003, or does that apply only to Texas Department of Health licenses?
The annual license fee is not in conflict with HB 2292. HB 2292 amended
Texas Health and Safety Code, Chapter 12, Subchapter B, by adding §12.0111,
which applies to each licensing program administered by the Texas Department
of Health or by a regulatory board that is under the jurisdiction of the Texas
Department of Health. HB 2292 only applies to licenses issued by the Texas
Department of Health or that are under its jurisdiction.
Jurisdiction - Disposal
WCS commented that §336.701 is unclear because it uses the undefined
term "licensed site." WCS commented that the commission's jurisdiction over
the licensing of disposal of waste received from other persons under the Texas
Radiation Control Act does not extend to processing activities that may occur
on property owned by an applicant, but that takes place outside of a licensed
land disposal facility. WCS recommended that the last sentence of §336.701(a)
be modified to provide:
"A license under this subchapter
shall conduct any processing of LLRW that may occur within the boundaries
of a land disposal facility, in accordance with provisions of the commission
license which authorizes the disposal. Any storage or processing of LLRW that
may occur within a site boundary but outside of the boundaries of a land disposal
facility is subject to the regulation of the department."
The commission disagrees with these comments. Texas Radiation Control Act, §401.201,
provides the commission with the authority to regulate the disposal of LLRW.
Furthermore, HB 1567 amended the Texas Radiation Control Act to provide in §401.202(b)(2)
that the commission may issue a license only for a facility that meets requirements
for disposal that are compatible with federal requirements for disposal. The
commission's rules in Chapter 336, Subchapter H, are consistent with the NRC
rules in 10 CFR Part 61, Licensing Requirements for Land Disposal of Radioactive
Waste. Both the commission's rules in §336.211(d) and §336.701(a)
and the NRC rules consider and regulate the processing of waste that is disposed
in the near surface land disposal facility. Neither the commission's licensing
of disposal nor the commission's authority to regulate disposal are confined
to a specific geographic location, such as within the boundaries of the land
disposal facility. The extent of the commission's authority to regulate the
processing of waste necessary for disposal is consistent with the commission's
historical practice in reviewing licenses for the disposal of LLRW from other
persons. Texas Radiation Control Act, §401.413, provides that a person
required to obtain a license for the disposal of radioactive substance is
required to obtain the license from the commission and not from the Texas
Department of Health. Section 401.414 requires the commission and the Texas
Department of Health to adopt an MOU defining their respective duties under
the Texas Radiation Control Act. Under the commission's MOU with the Texas
Department of Health and in §336.211(d), the receipt, storage, and/or
processing of radioactive substances received by a commission licensee at
a commercial radioactive substance disposal facility for the explicit purpose
of disposal at that facility shall be regulated by the commission. The MOU
also provides that all other uses of radioactive material such as well logging,
industrial radiography, and gauging devices, at a commission-licensed radioactive
substance disposal facility shall be regulated by the Texas Department of
Health. To be consistent with federal regulations, the MOU, and commission
rules, §336.701(a) is amended as follows: ". . . A licensee under this
subchapter shall conduct processing of low-level radioactive waste received
for disposal at the site, incidental to the disposal of that waste in accordance
with provisions of the commission license which authorizes the disposal."
This delineation assures that wastes that are received, stored, or processed
for disposal will meet the commission's disposal requirements.
Jurisdiction - Protection of the Public and the
Environment/Rule Stringency
TRO stated that the Low-level Waste Policy Act, 42 USC, §2021(o)(2)
permits a state to adopt standards for significantly improved regulation in
regards to statutorily defined disposal and siting criteria. LWV-Dallas and
LWV-Texas urged the commission to develop rules that offer maximum protection
to public health and preservation of ecosystems affected by the development
of LLRW facilities in Texas. TRAB stated that the commission should be careful
in enhancing any federal rules because of compatibility issues. This might
trigger a compatibility review that takes a great deal of time and could delay
the licensing process. 209 individuals stated that there is nothing in the
law that prevents the state from exceeding existing regulations on radioactive
substances and their disposal.
LWV-Dallas and LWV-Texas urged the commission to develop rules that offer
maximum protection to public health and preservation of ecosystems affected
by the development of LLRW facilities in Texas.
207 individuals stated that the potential and extremely long-term danger
posed by radioactive waste requires that the state do its utmost to protect
the public and the environment. One individual stated that the commission
is expected to fulfill its crucial responsibilities to protect Texans and
Texas. Two individuals urged the commission to extend every effort to establish
regulations that require the state to do its utmost to protect the public
and the environment. Two individuals requested that the commission extend
every effort to establish regulations that maximally protect the public. One
individual stated that the proposed rules do not live up to the commission's
duty to ensure public safety and protection of the environment. One individual
stated that the proposed rules do not go far enough to provide a secure future
for Texans, while this stream of radioactive waste is shipped into our state
and stored for thousands of years. The individual stated that the commission
should realize the importance of these regulations and what it can mean to
our children and descendants, and should write rules that could protect future
generations from this dangerous waste and that the commission must do it to
the absolute best of the commission's ability. One individual urged the commission
to do everything within its power to establish strict regulations that will
protect the people of the state. One individual urged the commission to use
public health protection as the most important factor in decision-making for
the rules. Two individuals stated that it is essential that regulations are
there that ensure the protection of the public and the environment. One individual
stated that the commission must protect the state's greatest resources and
people, and that the proposed rules for an LLRW disposal facility need to
be strengthened and reviewed more carefully in order to achieve this goal.
One individual stated that the potential and extremely long-term danger posed
by radioactive waste requires that the commission consider and plan for every
facet and every possible repercussion of locating radioactive waste dumps
in Texas. The individual also expressed confidence that the commission takes
very seriously the role of protectors of the environment and the citizens
of Texas, and stated that it is time for the commission to discharge its responsibilities
using every tool at its disposal. One individual stated that every effort
should be taken to protect Texans and future Texans. One individual stated
that it is a shame that Texas has to be dumped on with radioactive waste and
how tragic that the materials will travel across the state and perhaps many
states, putting more people at risk. The individual also stated that the commission
has been given a job to do and is not the one who decided on this disgraceful
dumping plan for Texas, but the commission must make sure that nothing happens
that hurts people now or in future generations. One individual stated that
the commission's action can literally mean life or death to Texas citizens.
One individual expressed hope that the commission will do right by the people
and the natural resources it was created to protect. One individual expressed
hope that the commission will prove themselves worthy as the guardians of
the public trust, and stated that in establishing these rules the commission
has an awesome responsibility for the future welfare of this state. One individual
asked that the commission look beyond the immediate political climate and
consider the future, and to not mess with our beautiful home.
One individual requested that the state provide the strongest possible
regulations, not only for our protection, but for that of future generations
because some of this stuff has a very long half-life. 203 individuals urged
the commission to extend every effort to establish regulations that are second
to none. One individual expressed worry that the proposed rules are inadequate.
Two individuals stated that the commission must exceed existing regulations
on radioactive substances and their disposal. One individual stated that the
commission must vastly and more stringently exceed existing regulations on
radioactive substances and their disposal in order to have any hope of a decent
outcome. One individual urged the commission to extend every effort to establish
regulations that are hole proof. One individual urged the commission to extend
every effort to establish regulations regarding the proposed rules for an
LLRW disposal facility. One individual stated that the commission needed to
be very careful in developing the strongest regulations possible to offer
some real security. One individual stated that the commission has a huge responsibility
to the living and yet-to-be-born citizens of Texas with regard to the regulations
for the permitted disposal of radioactive and hazardous wastes at the sites
in Andrews County. The individual requested that the commission make the rules
for acceptance of wastes in Texas stringent, so as to avoid future problems
in health, drinking water supply, and economic blight in the communities near
the disposal sites. One individual stated that until governments stop the
destruction of the environment by the generation of radioactive waste, all
of us, especially people in positions such as the commission, must hold the
standards of containment and protection as high as humanly possible. One individual
stated that the commission must extend every effort to establish regulations
that leave as little to the imagination of the licensees as possible. One
individual stated that it is ultimately the citizens at risk and risk must
be minimized as much as possible, if not eliminated, and demanded that the
commission consider more safety and environmental protections. 210 individuals
stated that these proposed rules, while attempting to cover the "letter of
the law," are insufficient to adequately control the stream of radioactive
waste coming into our state, and thus do not live up to the commission's duty
to ensure public safety and protection of our environment. 211 individuals
expressed a belief that the commission can do better with the daunting task
and expected the commission to take the proper time and care to do so. One
individual expressed an expectation that the commission would handle this
serious issue in the interests of common Texas citizens, not for corporations
or political agendas. Two individuals requested that the commission do the
right thing for the citizens of Texas for a change, instead of the polluters.
One individual expressed hope that the commission would act in the true spirit
of the commission's charge to ensure environmental quality for all citizens,
and not give any corporation the right to exploit Texans.
The Texas Legislature has tasked the commission with protecting occupational
and public health and safety and the environment. Texas Health and Safety
Code, §401.151, specifically requires the commission to "assure that
the management of LLRW is compatible with applicable federal commission standards."
The commission takes seriously its regulatory responsibilities over the disposal
of LLRW, and is committed to the final adoption of disposal rules that are
protective of public health and safety, and the environment. The commission
made no changes in response to these comments.
Jurisdiction - Authority for Non-State Operator
LWV-Dallas and LWV-Texas supported a state-owned and -operated LLRW disposal
site.
In HB 1567, the Texas Legislature repealed Texas Health and Safety Code, §401.203,
which provided that an LLRW disposal license may only be issued to a public
entity. HB 1567 allows non-public entities to operate an LLRW disposal facility.
The commission made no change in response to these comments.
License Issues - Renewal
WCS commented that the requirement to submit a renewal application one
year prior to license expiration is unprecedented and unworkable because the
application would not be reflective of data and site conditions at the time
of license expiration because the data would have to be collected so far in
advance. WCS commented that the 30-day requirement be maintained or, at most,
the timing be no more restrictive than 180 days as required by the Texas Solid
Waste Disposal Act and the Texas Injection Well Act.
The commission disagrees with this comment. Submitting the renewal application
one year in advance of the expiration date is a reasonable requirement given
the complexity of the renewal application and the time required to conduct
a thorough, technical review of the application. Furthermore, the extended
length of an LLRW disposal license dictates a thorough, technical review prior
to renewal. The commission made no change in response to this comment.
Compliance Issues
TRO commented that WCS disrespects state and federal regulatory authorities.
This is not a comment regarding these rules. The commission made no change
in response.
Adequacy of Financial Assurance Amounts
Several commenters expressed concern about the adequacy of financial assurance
amounts to be provided by a licensee. TRO stated that there should be sufficient
financial assurance from the licensed entity. LWV-Texas and LWV-Dallas commented
that the current amount of $20 million should be reviewed for adequacy. TRAB
commented that the license is for a long duration; therefore, $20 million
now may not be enough in the future. TRAB also asked if there would be coverage
for subsequent events if the first event of corrective action exceeded $20
million.
The commission agrees with the commenters and shares the same concerns
with the adequacy of financial assurance over a long period of time; therefore,
the rules require the commission to conduct an annual review of the cost estimates
for financial assurance. As cost estimates increase, financial assurance must
also increase. The Texas Health and Safety Code specifies that the financial
assurance for corrective action is required to address unplanned events occurring
after decommissioning. Prior to decommissioning, it is the licensee's financial
responsibility to address corrective action irrespective of financial assurance
funding. The commission notes that the financial assurance requirement for
corrective action may exceed $20 million, but it must be at least that amount.
If the first event were to exceed the funding set aside for corrective action,
the licensee would be financially responsible for any additional corrective
action required prior to the transfer of the license.
LWV-Texas and LWV-Dallas stated that the rules need to ensure that any
monies in the perpetual care fund are adequate to support monitoring and retrieval
of leaking containers after closure.
Financial assurance funding amounts are determined, as well as revisited
annually, by the commission based on the actual disposal activities occurring
on a licensed LLRW land disposal facility. Financial assurance amounts will
be set based on the actual inventory of LLRW received for disposal for the
purpose of monitoring and maintenance during the institutional control period
following closure. Additionally, a corrective action amount for any necessary
retrieval of waste after closure will be set based on the actual inventory
of waste received for disposal that will be on site.
Licensee or Federal Liability
LWV-Dallas and LWV-Texas commented that the federal government should provide
assurances to pay for cleanup and repackaging of their nuclear waste disposal
at the site in Texas. In a related comment, TRAB asked whether the federal
government assumes the liability for the facility if the government takes
it over.
The commission disagrees with the comment that it is necessary for the
federal government to provide stand-alone financial assurance for federal
facility waste. Cost estimates related to the license include the waste and
activities at both the compact waste disposal facility and the federal facility
waste disposal facility.
On decommissioning of the federal facility waste disposal facility, the
licensee, the owner of the facility, waste generators, which may include the
federal government, and other parties, may be liable.
Protection of the Perpetual Care Fund
The NRC commented that the state is using a perpetual care fund rather
than standby trusts as the ultimate depository for financial assurance. This
raises an issue if the state requires legislative approval each time it seeks
to expend funds from this account which is described as a general revenue
fund. The state may need to consider appropriation authority, such as multi-year
spending authority, to ensure that these funds are available when needed.
The NRC also commented that the state should define the process for accessing
the perpetual care account funds.
The commission agrees that any expenditure out of the perpetual care account
requires appropriation authority from the legislature. It would be reasonable
to request an appropriation or a rider appropriation from the perpetual care
account in the 2006 - 2007 biennial Legislative Appropriations Request. As
long as there is an appropriation, expenditures can be made against the account.
However, the legislature can remove appropriation authority any time when
in session. The commission also notes that Texas Health and Safety Code, §401.305,
identifies how the commission and the Texas Department of Health may use the
perpetual care account.
Financial Liability of Licensee
TRAB and TRWDF commented that the rules should clarify the financial liability
of the licensee for any unplanned event that does not require decommissioning.
TRWDF, in a related comment, also stated that the rules should require specific
proof that a licensee's financial assets are adequate to address remediation
during the operation of the facility which does not result in decommissioning.
LWV-Dallas, LWV-Texas, and 204 individuals encouraged the commission to
write rules that deal more completely with the issue of liability and financial
responsibility. A related general comment expressed by several individuals
was that financial responsibility provisions are inadequate, and taxpayers
should not be left with financial responsibility for liabilities at the disposal
site. Disposal site operators should be held fully responsible and liable
for their activities. 206 individuals stated that there are already examples
(including radioactive waste dumps) in this country of disposal companies
eluding their responsibility to pay for clean-up costs (due to leakage), or
even abandoning dumps to avoid liability.
The Texas Health and Safety Code specifies that the financial assurance
for corrective action is required to address unplanned events occurring after
decommissioning. Prior to decommissioning, it is the licensee's financial
responsibility to address corrective action irrespective of financial assurance
funding. Texas Health and Safety Code, §401.211, states that the transfer
of title to the LLRW, land, and buildings to the state or federal government
does not relieve the licensee of liability for any act or omission performed
before the transfer or while the LLRW, land, and buildings are in the possession
and control of the licensee.
For the compact waste disposal facility, the disposal fee rate will include
a component for the cost of financial assurance. It is expected that the licensee
will charge a fee for federal facility waste that also includes the cost of
financial assurance. Financial assurance is specifically for the activities
of decommissioning, post-closure observation and maintenance, and corrective
action. These are defined activities that take place under the control of
the licensee, or in the worst case, under state direction due to a need for
corrective action when the licensee is unable or unwilling to address the
needed activities. Financial assurance is also for institutional control that
takes place after the transfer of the license to the state and to the federal
government.
Under §336.711 and §336.735, the applicant's financial qualifications
will be evaluated. However, in the worst case, if a licensee is unable or
unwilling to address an unplanned or unforeseen event (corrective action)
that requires remediation during the operation of the site, the executive
director has the authority to demand closure and begin the decommissioning
process. Additionally, the commission may use, under authority in Texas Health
and Safety Code, §401.152, any financial security provided by the license
holder to address a situation that threatens public health and safety, and
the environment.
The commission disagrees with the comments that the rules have not been
written to deal with the issues of liability and financial responsibility,
and that the taxpayer will be left with the liability for the disposal site.
The commission notes that financial assurance for decommissioning, post-closure
observation and maintenance, corrective action, and institutional control
is required to be provided in full before the initial receipt of waste at
the facility. In response to these comments, a requirement for executive director
approval of financial assurance prior to accepting waste for disposal has
been added to §336.716(f). Additionally, cost estimates for these obligations
will be reviewed annually by the commission. For consistency with the review
requirements of other financial assurance, annual review by the commission
of financial assurance for corrective action has been added to §336.738(b).
In response to these comments, a requirement was added to financial assurance
for closure in §336.736(a) to include the disposal of any radioactive
material remaining at the site at the time of closure. The rules also ensure
the soundness and long-term stability of the financial assurance.
Timing of Coverage
WCS commented that the commission should clearly specify the expectations
with respect to financial assurance in §336.711 on timing, coverage,
and amounts of coverage required for each type of financial assurance. Each
requirement should conform to the enabling legislation and its directives.
WCS commented that the broad use of the term "financial assurance" should
be minimized or eliminated throughout the rules and specific requirements
should be expressly delineated.
The commission disagrees with the commenter. The proposed financial assurance
requirements conform with HB 1567, Texas Health and Safety Code, Chapter 401,
and NRC compatibility requirements. Financial assurance coverage amounts for
decommissioning, post-closure observation and maintenance, corrective action,
and institutional control are based on a licensee's specific license application.
Proposed financial assurance amounts are reviewed by the executive director
during the licensing process, and may be adjusted during the licensing process.
Additionally, financial assurance amounts are reviewed annually after the
license is issued and may be adjusted. The timing of submitting effective
financial assurance is specified in §37.9040 and §§336.736
- 336.738. The coverage requirements for the particular activities are specified
in §37.9059 and §§336.736 - 336.738. The commission made no
changes in response to this comment.
WCS commented that §§37.9040, 336.736(e), and 336.737(b) should
be revised to provide more specificity on when the various financial assurance
mechanisms should be "signed" and should be "effective." Although the rules
suggest this should occur for closure, post-closure, corrective action, and
liability coverage "60 days prior to commencement of operations," it would
be more appropriate to require these coverages for closure, post-closure,
and liability coverage to be in effect prior to the initial receipt of waste.
The commission agrees that the timing of the submission of effective financial
assurance mechanisms could be more exact. The timing of the submission of
financial assurance has been revised from "before commencement of operations"
to "sixty days prior to the initial receipt of waste." Sixty days allows the
executive director the time to review and approve the financial assurance
mechanisms, and ensures that financial assurance is in place before waste
is received for disposal at the site. Conforming changes are made in §§336.736
- 336.738 and 37.9040.
WCS commented that §336.738 exceeds statutory authority for the rule
with respect to the deadline imposed for providing financial assurance for
corrective action by requiring the financial assurance prior to the commencement
of operations. WCS commented that Texas Radiation Control Act, §401.109
and §401.241, provide for funding that eventually reaches $20 million
at the time the disposal site is decommissioned, and not before.
In contrast, TRWDF commented that it applauds the commission's requirement
of $20 million for corrective action to be available upon licensing and encourage
the agency to maintain this requirement.
The commission disagrees with the WCS comment. Texas Radiation Control
Act, §401.241, does not state that corrective action funding must eventually
reach $20 million at the time the disposal site is decommissioned. Section
401.241(b) states that "The amount of the security required of the license
holder may not be less than $20 million at the time the disposal facility
site is decommissioned." Active operation of the land disposal 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 requirement that financial assurance for
corrective action is available at the time of decommissioning is met by ensuring
that financial assurance is in place prior to the receipt of waste. The commission
made no change in response to this comment.
Liability Coverage
TRAB commented that the terms, "sudden and non-sudden accidental occurrences"
should be defined.
Sudden and nonsudden accidental occurrences are defined in Chapter 37,
Subchapter E, §37.402, Definitions. Section 37.9059(a) states that the
licensee must comply with the requirements of Subchapter E. The commission
made no changes in response to this comment.
Financial Assurance for Institutional Controls
The NRC commented that the state does not require the licensee to submit
to the regulatory body changes made in its arrangements for institutional
control. The state rule is less restrictive than NRC guidelines in this regard,
and needs to be revised to include this requirement.
The commission agrees, and amended §336.737(b) by adding "Any changes
to institutional control proposed by the licensee shall be submitted to the
commission in the form of an application for a license amendment."
Coverage Question
One individual commented that a private business may cease to exist or
may choose not to perform the functions originally spelled out in connection
with the disposal site. The individuals stated that sufficient monies should
be placed in escrow so that a transitional management system will be covered
while another company is found to take on the tasks.
Texas Health and Safety Code, §401.152, provides that the commission
may require any action, including a corrective measure, to remove a threat
to the public health and safety, and the environment. The commission shall
use the financial assurance provided by the licensee to pay the costs of these
actions. In developing the cost estimates used for financial assurance, the
licensee must assume that an independent contractor is hired to perform the
work. The commission made no change in response to this comment.
Exemptions - Extended Storage
One individual expressed concern that a private company may be granted
exemptions and exclusions in their handling of radioactive waste storage.
The individual stated that storage, in and of itself, implies extended care
and diligence and a watchful eye, because these materials will be around much
longer than the company that has contracted to handle them.
Under §336.5(a), the commission may exempt a source of radiation or
a kind of use or user from the application of a rule in Chapter 336 if the
commission determines that the exemption is not prohibited by law and will
not result in a significant risk to public health and safety or the environment.
The application requirements for an exemption are provided in 336.5. The commission
made no change in response to this comment.
Applicability of Financial Assurance to Decommissioning
WCS commented that the commission should clarify whether the financial
assurance requirements of §336.619 are applicable to a land disposal
facility and ancillary surface facilities located within the boundaries of
a land disposal facility.
The financial assurance requirements of Chapter 336, Subchapter G, are
applicable to ancillary surface facilities that support LLRW disposal activities.
Applicants should include cost estimates for closure of any ancillary surface
facilities. The commission made no change in response to this comment.
Administrative Review of Applications
TRAB stated that the administrative review should require the "review of
the design," not a description of the design features."
The language in §336.807(d)(6) is taken verbatim from Texas Health
and Safety Code, §401.231(6). The description must be adequate to allow
the commission to administratively review the technical merits of the application,
including review of the design. In addition, the applicant must provide proposed
designs sufficient to allow review of the application. The commission made
no change in response to this comment.
Regarding an administratively complete application, WCS commented that
the phrase "but not limited to" be deleted in §336.807(d) because consideration
of additional criteria is inconsistent with Texas Radiation Control Act, §401.231.
The commission disagrees with this comment. The criteria for demonstrating
an administratively complete application are not limited to those specified
in Texas Health and Safety Code, §401.231, nor does the statute mandate
limiting the criteria that may be provided in either existing or new commission
rules. An application for a license to receive, possess, and dispose of waste
from other persons by near-surface land disposal shall consist of, but is
not limited to, the information set forth in the TAC including Chapter 305,
relating to Consolidated Permits; §336.706, relating to General Information; §336.707,
relating to Specific Technical Information; §336.708, relating to Environmental
Information; §336.709, relating to Technical and Environmental Analyses; §336.710,
relating to Institutional Information; and §336.711, relating to Financial
Information. The commission made no change in response to this comment.
Application Issues
TRAB expressed a concern that the applicant may be responsible for the
$6 milliion cost if money is not received from Compact partners.
The $500,000 initial application processing fee is intended to recover
costs incurred by the commission for administrative review and comparative
review of each application received. This payment is made by each applicant.
Additional costs must be recovered by the commission that exceed this initial
fee, including any portion of administrative review, technical review, hearings,
and other actual costs associated with the licensing process. As a matter
of comparison, the State of Utah has a $5 million initial fee for "Any application
for a waste transfer, storage, decay in storage, treatment, or disposal facility"
with a statutory requirement to "subsequently pay an additional fee to cover
the costs to the state associated with review of the application, . . ., studies,
and services required to evaluate a proposed facility."
Payments made by non-host party states under Section 5.01 of the Compact
under Texas Health and Safety Code, §403.006, are deposited in the state
treasury to the credit of the low-level waste fund, and have not been designated
to pay for a private company's application processing fee or other administrative
matters. The commission made no change in response to this comment.
TRAB requested that the commission revise §336.708(11) to read "a
decommissioning, site closure and stabilization plan
possessing
those design features that are intended to facilitate disposal
site closure . . .."
The commission disagrees with this comment. The language in §336.708(11)
is taken directly from federal requirements in 10 CFR §61.12(g). The
commission made no change in response to this comment.
WCS commented that §336.805 should be moved to Subchapter H or re-labeled
as establishing notice requirements and not substantive selection process
criteria. WCS commented that application requirements in §336.805 may
be incorrectly considered as substantive grading criteria for the application
selection process for the compact waste disposal facility.
The commission disagrees with this comment. The application requirements
specified in §336.805 are specific to applications for the Compact waste
disposal facility and are in addition to any other application requirements
in Chapter 336. These requirements are specified in Texas Health and Safety
Code, §401.229 and §401.219. Further, these requirements are not
specified in the tier criteria given in §§336.815 - 336.821. The
commission made no changes in response to this comment.
WCS commented that the requirement in §336.805(1) of compliance with
all applicable statutes and rules will only be known during the technical
review of the selected application.
The commission disagrees with this comment. This is an omnibus provision
intended to ensure an applicant's compliance with all applicable statutes
and regulations. It may be known prior to the technical review of an application
that an applicant has not complied with applicable requirements. This would
be a reason to issue a notice of deficiency or to reject an application from
further consideration. The commission made no change in response to this comment.
WCS commented that the application fee requirement in §336.805(2)
is already included in §336.807(d).
The application fee is both a requirement under §336.805, Application
Requirements, and is necessary to demonstrate an administratively complete
application under §336.807, Administrative Review. The commission made
no change in response to this comment.
WCS commented that the application requirements in §336.805(3) to
provide management techniques analysis is not part of administrative completeness
nor Tier 1 - 4 Grading Criteria analysis.
The management techniques analysis is a statutory requirement from Texas
Health and Safety Code, §401.219, and therefore a necessary component
of an administratively complete application. This analysis has no relation
to the tier criteria established in Texas Health and Safety Code, §§401.233
- 401.236. The criteria for demonstrating an administratively complete application
are not limited to those specified in Texas Health and Safety Code, 401.231.
The statute does not mandate limiting the criteria that may be provided in
either existing or new commission rules for the demonstration of administrative
completeness. The commission made no change in response to this comment.
Regarding the application deadline, TRO stated that while the rules, on
their face, indicate that any company may apply for a license to dispose of
LLRW, there is actually only one company, WCS, that will be able to file an
application by the early 2004 deadline.
The commission disagrees with this comment. The legislature provided a
license selection process based on comparative merit with the opportunity
for multiple applications to be filed with the commission. Each administratively
complete application is subject to a written evaluation according to the statutory
criteria established by Texas Health and Safety Code, §§401.233
- 401.236, for the purposes of comparing the relative merit of the applications.
The commission, based on the written evaluations and application materials,
then selects the application that has the highest comparative merit. The commission
made no change in response to this comment.
WCS commented that the provision in §336.735 addressing an applicant's
proof of funds to cover agency costs in processing the application that may
exceed the $500,000 application fee is vague and open-ended. WCS commented
that the rule should provide a dollar estimate of the additional costs.
The commission disagrees with this comment. The actual application fee,
if greater than $500,000, will be determined by the scope, schedule, and direct
costs of processing the application and holding any administrative hearings
on a proposed license. The scope and schedule of application processing are
in turn related to the quality and completeness of applications submitted
for evaluation. Thus, an estimate of additional costs in rule would be premature
and impractical. The commission made no change in response to this comment.
Comparative Merit Review
TRAB stated that the commission should define "unanticipated extraordinary
events" and provide guidance for these criteria.
The term "unanticipated extraordinary events" is taken directly from Texas
Health and Safety Code, §401.233(d)(1)(B). The statute provided no specific
guidance; however, extraordinary events would include site specific evaluation
for such occurrences as tornados, hurricanes, earthquakes, etc. These criteria
will be evaluated on an application-by-application basis as part of the comparative
merit review. The commission made no change in response to this comment.
TRAB requested that the commission define how the tier criteria are used
in scoring the applications.
The legislature provided a license selection process based on comparative
merit. Each administratively complete application is subject to a written
evaluation according to the statutory criteria established by Texas Health
and Safety Code, §§401.233 - 401.236, for the purposes of comparing
the relative merit of the applications. The commission, based on the written
evaluations and application materials, then selects the application that has
the highest comparative merit. The commission made no change in response to
this comment.
WCS commented that delegation of authority to the executive director to
select the application in §336.825 violates Texas Water Code, §5.122(b),
which requires that a delegated decision be either appealable to the commission
or be a final and appealable decision subject to judicial review. WCS commented
that because §336.825 allows appeal to the commission on the application
selection only after a final decision on the application, the delay on appealing
a decision on the selected application frustrates the intent of the mandatory
right of appeal for delegated decisions under Texas Water Code, §5.122(b).
WCS recommended that §336.825 be modified to grant affected persons a
right to appeal the executive director's selection to the commission by modifying
the second sentence in §336.825 as follows: "
A decision by the executive director under §336.813 of this title is
appealable to the commission pursuant to Subchapter G of 30 TAC Chapter 50.
Notwithstanding any other rule, a commission decision under this section is
not subject to judicial review until the commission makes a final decision
on the selected license application
."
The commission disagrees with this comment. Texas Health and Safety Code, §401.240(a),
provides that, notwithstanding any other law, a person affected by an action
under Texas Health and Safety Code, Subchapter F, may file a petition for
judicial review only after the commission takes final action on a license
application. Accordingly, an executive director decision to select the most
meritorious application is not appealable to the commission until a final
decision is made on the application. The process for the selection of one
application for further technical review is unique and significantly different
from the process for final decisions on permit applications established in
Chapter 50. Because a decision to select the most meritorious application
necessitates consideration of many technical issues that would also come up
during the technical review and licensing decisions, it is most appropriate
for the commissioners to consider these issues only when making a final decision.
An appeal to the commissioners on the decision to select a particular application
may expose the commissioners to many technical issues that have not been finalized
in the licensing process and could raise issues of bias or
ex parte
participation, based on this earlier exposure, during later
consideration of a licensing decision. The commission made no change in response
to this comment.
TRAB requested that the commission define the terms "acceptable operational
safety" and "acceptable long-term safety," and provide objective guidance
for these criteria.
The commission appreciates the comment, but respectfully declines to define
the terms "acceptable operational safety" and "acceptable long-term safety."
These qualitative criteria are tied directly to the federal approach of focusing
on performance objectives on a site-specific basis for LLRW disposal. What
is "acceptable" is determined by the commission on a case-by-case and comparative
basis after thorough evaluation of application materials. Thus, no objective
definitions can be offered for these qualitative criteria. The commission
made no change in response to this comment.
Concurrent Acceptance of Waste
AEP stated that concurrent acceptance of Compact and federal LLRW is critical
to beneficial operation of the facility. ARDT and TXU supported the requirement
of concurrent acceptance of compact and federal waste in §336.903(b)
and considered the provision consistent with the intent of HB 1567.
The commission agrees that the timing of the acceptance of federal facility
waste is provided in statute. Texas Health and Safety Code, §401.216(e),
provides that federal facility waste may not be accepted at a licensed facility
until compact waste has been accepted. The commission made no change in response
to this comment.
Separation of Facilities
ARDT and STP commented that the commission should take a closer consideration
of the physical separation between the federal waste disposal facility and
the compact waste disposal facility because of liability concerns from the
potential migration of radionuclides at separate, but adjacent facilities.
The commission agrees that physical separation of the two facilities is
an important consideration in the technical review of the application. Several
disposal scenarios could be proposed as part of a license application under
the rules. Additional considerations are dependent on many potential waste
segregation issues, e.g., radioactive vs. non-radioactive, etc. The commission
made no change in response to this comment.
Monitoring and Retrievability
WCS commented that there is a possible conflict with the provision in §336.730(b)(2)
that requires certain Class A, Class B, and Class C waste be disposed of in
such a manner that the waste can be "monitored and retrieved" and the definition
of disposal as "isolation or removal of LLRW without intent to retrieve that
LLRW later." WCS commented that the program does not envision monitoring in
perpetuity, and recommended that §336.730(b)(2) be modified: "in such
a manner the waste can be monitored
during the operational
period of the land disposal facility and up to and including the active institutional
control period, and retrieved during the operational period of the land disposal
facility and concluding at the time of closure of the land disposal facility
."
The commission disagrees with this comment. The statutory provision in
Texas Health and Safety Code, §401.218(b)(2) requires disposal "in such
a manner that waste can be monitored and retrieved." This statutory provision
does not expressly limit the period of time during which the waste can be
monitored and retrieved. The ability to monitor, locate, and then retrieve
waste beyond the operational period is necessary to protect public health
and safety and the environment. It is especially necessary if the disposal
of federal facility waste and compact waste will occur at adjacent land disposal
facilities. Disposal is defined as the "isolation or removal of LLRW from
mankind and mankind's environment without intent to retrieve that LLRW waste
later." Disposal is intended to be permanent isolation of the LLRW. This definition
is not in conflict with the provisions in the rules that provide for retrieval
of disposed LLRW. Waste that is disposed of may be retrieved if, for example,
the disposal proves to be defective in that it has not effectively isolated
the LLRW. If a scenario necessitates retrieval of previously disposed waste,
the initial intent to dispose is unchanged. The commission made no change
in response to this comment.
LWV-Dallas stated the commission should require Class B and Class C waste
to be disposed of in aboveground, retrievable vaults.
The commission disagrees with this comment. The mandatory use of aboveground,
retrievable vaults for the disposal of Class B and Class C LLRW is not explicitly
provided for by the statute. The statutory provision in Texas Health and Safety
Code, §401.219, does require study and analyses of alternative management
techniques including the use of aboveground isolation facilities. The commission
made no change in response to this comment.
TRWDF stated that the rules suggest the concept of monitoring containers
for leakage and the retrieval of containers before leakage could spread beyond
a disposal vault; however, the rules do not provide detail. TRWDF suggested
that the rules be clarified to specify that leakage be detectible from individual
containers prior to release into the vadose zone and the design of the facility
be such that the leaking containers are readily identifiable and retrievable
without digging up significant portions of the facility, and the monitoring
and retrievability are to work for periods of time not trivial compared to
the hazardous life of the waste.
Existing rules in §336.731, relating to environmental monitoring,
specifically provide for environmental monitoring of the land disposal facility
during site construction, operation, and closure. Further, the licensee is
required to take corrective measures if migration of radionuclides and chemical
constituents would indicate that the performance objectives may not be met.
Moreover, the addition of a specific requirement for monitoring and retrievability
of waste goes beyond the operational period to enable a focused clean-up effort,
if necessary. The commission made no change in response to this comment.
Transportation/Emergency Response
TXU commented that the Texas Department of Health, United States Department
of Transportation, Texas Department of Transportation, and the NRC have regulations
in place to regulate the labeling, packaging, placarding, routing, shipping,
and transportation of radioactive materials as well as equipment safety and
inspection standards.
LWV-Dallas commented that neither Dallas County nor the City of Dallas
has an emergency preparedness team or committee to be the first responders
in the event of a transportation accident. LWV-Dallas stated that the commission
should set rules and ensure adequate security and funding during the transport
of radioactive waste going to the site.
One individual stated that about three million shipments of radioactive
materials are made each year in the United States by highway, railroad, aircraft,
and ship. Some of these are "fresh" material which includes fuel for nuclear
power plants and radioactive sources for use in medical therapy and industry.
Some low-activity fresh radionuclides are sent by express mail, chiefly for
biomedical research and diagnosis. The individual stated that much radioactive
transport involves "waste" material called "radwaste" which is primarily produced
by the nuclear power industry and the remainder comes from other industry,
biomedical research, medical diagnosis, and consumer products. The individual
stated that all of these sources produce "low-level waste" of low radioactivity,
and that "high-level waste" (15% of the volume of all radwaste and 99% of
the radioactivity) is produced almost exclusively by the nuclear power industry
in the form of spent fuel rods.
One individual cited Report Number 3,
Ionizing
Radiation Exposure of the Population of the United States
, (1987) of
the National Council on Radiation Protection and Measurements, which conservatively
estimated that the average annual dose to the maximally exposed individual
member of the public due to transport of radioactive material related to a
large (1,000 megawatt) nuclear power plant is estimated to be 20 mrem, which
is 6% of the annual dose from natural background radiation. The report further
stated that in practice, much lower exposures are usually experienced, and
that it must be recognized that the overall dose to the general public will
be a tiny fraction.
One individual cited a 1990 book,
Medical Management
of Radiation Accidents
, by Fred Mettler, M.D. of the University of
New Mexico, School of Medicine, which stated that in 30 to 40 years during
which we in the United States have been transporting substantial quantities
of radioactive material, there has never been an accident severe enough to
cause a major release of these materials. The book further stated that there
has never been anyone injured radiologically or much less killed as a result
of exposure to radiation or contamination arising as a result of an accident
involving radioactive materials during transportation.
One individual cited a 1995 United States Department of Energy (DOE) fact
sheet,
Environmental Impact Statement for a Proposed
Repository at Yucca Mountain, Nevada - Transportation
, which stated
that various kinds of radioactive materials have been moved around our country
for decades, and that shipments of spent nuclear fuel regularly go to or from
nuclear power plants, government research facilities, industrial complexes,
and other facilities. The DOE report concluded that after more than 25 years
and more than 2,500 shipments of spent nuclear fuel, there has not been a
single death or injury because of the radioactive nature of the cargo.
One individual cited a 1995 National Safety Council report,
Accident Facts
, that stated that during a three-year period from 1990
through 1992, there were 131,232 deaths due to motor vehicle accidents, 658
deaths due to railway accidents, 431 deaths due to electric generating plant
accidents including transmission, 217 deaths due to lightning, 74 deaths due
to gas distributed by pipeline accidents, and no deaths due to radiation accidents.
One individual concluded from the four cited reports that the transport
of radioactive materials in this country has caused no deaths or significant
injury due to radiation exposure, and that this unparalleled safety record
was achieved because of careful attention to packaging, especially of high-level
waste.
One individual stated that nuclear waste must never be transported around
the country on trains and trucks, and asked if we have learned from 9/11.
Two individuals found it very alarming that with the heightened risk of terrorism,
that stringent measures are not in place for the transport of these materials
which place cities and towns on the routes at risk for accidents, abandonment,
or theft. Five individuals expressed extreme concern about the interstate
transportation of potentially lethal radioactive waste, which not only greatly
increases the possibilities for accidents, but also the opportunities for
terrorists to strike.
202 individuals stated that the transportation of massive amounts of potentially
lethal radioactive waste across our state is a disturbing proposition, and
that the increase of frequency of such shipments brings an increased likelihood
of accidents, as well as a higher potential for abandonment (as has already
happened in Texas), theft, or even terrorist attack.
206 individuals stated that cities along the highway routes, much less
smaller towns and rural communities, do not have the plans or resources to
respond to a release of radioactivity, and that preparations for funding for
such an event and regulations covering transporter security must be required.
One individual stated that transportation spill plans must be in place
in advance to avoid delay which could mean more harm to more people as the
radioactive waste spill spreads into the soil, air, or water. One individual
urged the commission to require funding for education and preparation in case
of a spill, as well as regulations covering transporter security measures.
LWV-Dallas and LWV-Texas stated that any committee formed should include
citizens who will be affected by the transportation of the radioactive waste.
TXU commented that Dallas County has several methods of action in place
to respond to an incident involving hazardous material, including radioactive
material. Dallas County firefighters are trained in the use and have access
to instruments to detect and measure radioactive materials. If detected, firefighters
are trained to evacuate the area and contact the Public Safety Hazardous Materials
Response Team (HazMat). TXU commented that Dallas County has four HazMat teams.
HazMat teams are available 24 hours a day, seven days a week and respond to
all incidents involving hazardous materials, including radioactive materials
and have emergency contacts at various state and federal agencies.
LWV-Dallas commented that neither Dallas County nor the City of Dallas
has an emergency preparedness team or committee to be the first responders
in the event of a transportation accident. LWV-Dallas stated that the commission
should set rules and ensure adequate security and funding during the transport
of radioactive waste going to the site.
The transportation and routing of LLRW is governed by federal law and state
statute. Federal requirements govern packaging, labeling, storage during transport,
safety, and security. The United States Department of Transportation and the
NRC share responsibility for ensuring the safe transportation of LLRW. The
United States Department of Transportation requirements for the transportation
of radioactive material and radioactive waste are found in 49 CFR Parts 171
- 177 and 397. NRC requirements related to the packaging and transportation
of radioactive material and radioactive waste are found in 10 CFR Parts 71
and 73.
At the state level, Texas Health and Safety Code, §401.052, requires
the Texas Department of Health to adopt rules that are consistent with federal
requirements. The Texas Department of Health rules must require each shipper
and transporter of radioactive waste to adopt an emergency plan, approved
by the Texas Department of Health, for responding to transportation accidents.
Consistent with these requirements, the Texas Department of Health, Bureau
of Radiation Control, maintains a 24-hour radiological emergency hotline and
has staff to respond to radiological emergencies. The Texas Department of
Transportation along with the Texas Department of Health, Bureau of Radiation
Control, have jurisdiction over the transportation of radioactive materials
and radioactive waste in Texas.
The Texas Department of Health rule, 25 TAC §289.257, sets forth state
requirements for packaging, shipment preparation, and transportation of radioactive
material, including radioactive waste, and provides that the state requirements
are in addition to, not a substitute for, other federal requirements. The
commission's authority does not include general regulation of the transport
of LLRW or emergency response; therefore, the commission made no change in
response to these comments.
Containerization Issues
TRWDF stated that it is unclear whether uncontainerized wastes will be
permitted. This requirement should be clarified to bar uncontainerized wastes.
Disposal of uncontainerized Class A LLRW may be permitted at a licensed
land disposal facility in Texas in some cases. Some Class A LLRW shipments
will be required to be both containerized and placed in an additional containment
barrier due to high external radiation levels, as provided in the definition
of "Containerized Class A waste" in §336.702(5). Additionally, some Class
A LLRW will be required to be containerized, but not placed in an additional
barrier, based on the half-life of the radionuclides in the waste or for greater
protection against inadvertent intruders in the future as required in §336.733(b).
Each of these specific types of waste will require disposal in reinforced
concrete containers. Class B and Class C LLRW require containerization and
placement in an additional containment barrier in all circumstances. The commission
made no change in response to this comment.
One individual stated that the commission should consult all of the scientific
studies conducted on Yucca Mountain by the NRC and the EPA before deciding
container issues.
Yucca Mountain is proposed as a federal disposal facility for high-level
radioactive waste. The site-specific and waste-specific studies that are being
conducted as part of the Yucca Mountain evaluation have little applicability
to a design of a Texas site for the disposal of LLRW. Specific methods of
disposal employed at a repository for high-level radioactive waste would not
be appropriate or necessary for the disposal of LLRW. The commission made
no change in response to this comment.
Two individuals stated that the commission should ensure that containers
will not leak.
Waste emplaced in reinforced concrete containers should not leak during
the design life of the container. Radioactive waste characteristics provided
in §336.362(b)(2) are intended to ensure that the waste meets minimum
requirements for stability to avoid future slumping, collapse, or other failure
of disposal units. Furthermore, §336.362(b)(1) contains specific waste
characteristics that must be met in order for waste to be acceptable for near-surface
land disposal, including restrictions on liquid waste and waste packaging.
The commission made no change in response to this comment.
One individual stated that the commission should require that waste materials
be deposited in long-lasting containers. Another individual stated that the
NRC requires that low-level waste be in solid form and placed in secure containers.
Only certain types of waste are required to be disposed of in reinforced
concrete containers. NRC requirements for stabilization or containerization
are limited to Class B and Class C LLRW. Texas requirements for containerization
extend to some Class A LLRW, as well as all Class B and Class C LLRW. Some
Class A LLRW shipments will be required to be both containerized and placed
in an additional containment barrier due to high external radiation levels,
as provided in the definition of "Containerized Class A waste" in §336.702(5).
Additionally, some Class A LLRW will be required to be containerized, but
not placed in an additional barrier, based on the half-life of the radionuclides
in the waste or for greater protection against inadvertent intruders in the
future as required in §336.733(b). Each of these specific types of waste
will require disposal in reinforced concrete containers. Class B and Class
C LLRW require containerization and placement in an additional containment
barrier in all circumstances. The commission made no change in response to
this comment.
One individual stated that the waste should be put into containers because
relying on the geography of the site for containment is either foolish or
criminal. One individual stated that proper containerization is the key to
ensuring that the goal of no leaks is attained.
An important part of the federally-mandated performance objectives for
disposal of LLRW involves natural site characteristics. Site characteristics,
such as frequency and amount of rainfall, surface drainage patterns, subsurface
geology, and moisture movement in site soils, greatly influence the long-term
performance of an LLRW land disposal facility. Containers can only be relied
upon for the design life of the containers, whereas the natural site characteristics
will necessarily be relied upon for a much longer term. The commission made
no change in response to this comment.
Containerization Issues - Waste Classification
WCS commented that the provision in §336.733(b) should be deleted
because the criteria are related to radiation levels or hazard. WCS commented
that §336.733(b) is a reclassification of radioactive waste from Class
A waste to Class B/C waste and burdens the generator and disposal facility
operator without identifying health and safety benefit by the reclassification.
This existing provision is necessary for long-term protection of human
health and safety, and the environment. There is no reclassification of Class
A LLRW provided in §336.733(b). The classification of LLRW in Texas regulations
are consistent with the federal classification standards. The overpack requirements
of §336.733(b) are part of the existing rule specifying the use of a
container for waste containing radionuclides with half-lives greater than
35 years, including wastes consisting of transuranic radionuclides in concentrations
of less than ten nanocuries per gram. Additional containment requirements
for transuranic radionuclides and radionuclides with long half-lives are essential
and appropriate to ensure that the performance objectives for the land disposal
facility are met. Specifically, the use of overpack containers addresses inadvertent
intruder scenarios for this waste beyond the institutional control period
of a maximum of 100 years and up to the design life of the overpack container.
This protection standard in existing rules allows for further decay of the
specific radionuclides in the waste prior to any scenario for potential dose
to the public. The commission has modified the existing rule to allow greater
regulatory flexibility when considering disposal requirements for wastes with
very low concentrations of transuranic radionuclides or other radionuclides
with long half-lives. The executive director may consider a licensee's request
for an alternative to the containerization requirement on a case-by-case basis.
This consideration will be based on the magnitude of the source term and how
any alternative disposal method proposed by the licensee will impact the performance
objective for the disposal site.
Containerization Issues - Structural Stability
WCS commented that it supports the language added to §336.730(b)(1),
and that the provision should be harmonized with existing §336.362(b)(2)
structural stability requirements. WCS recommended modifying §336.730(b)(1)
to provide: "within a reinforced concrete container and within a reinforced
concrete barrier, or within containment structures made of materials technologically
equivalent or superior to reinforced concrete to provide stability after disposal
in order to meet the performance objectives
in a
manner consistent with the requirements of §336.362(b)(2)
of this
title."
The commission partially agrees with this comment. Requirements related
to structural stability specified in existing §336.362(b)(2) apply to
all wastes disposed of at an LLRW land disposal facility. The requirements
specified in §336.730(b)(1) are separate requirements for the use of
concrete containers and barriers mandated by statute that are in addition
to the waste stability standards specified in §336.362(b)(2). Therefore, §336.730(b)(1)
has been modified to eliminate any confusion dealing with the separate requirements
for structural stability. Section 336.730(b)(1) as modified now provides for
the statutorily-mandated provisions for concrete containers plus additional
barriers. The statutorily-mandated barrier requirements do not affect the
NRC structural stability requirements.
Containerization Issues - Concrete Containers
Insufficient
TRWDF stated that there is no requirement in the rules that any of the
containers be designed to prevent leakage. The proposed rules should be revised
to require the use of the containers designed to prevent leakage, not merely
to maintain their gross physical shape.
The commission disagrees with this comment. Structural stability of the
waste is an essential factor in preventing waste migration beyond the institutional
control period. Radioactive waste characteristics provided in §336.362(b)(2)
are intended to ensure that the waste meets minimum requirements for stability
to avoid future slumping, collapse, or other failure of disposal units. Stability
requirements ensure that waste does not degrade and affect the overall stability
of the site and thereby lead to water infiltration. Furthermore, §336.362(b)(1)
contains specific waste characteristics that must be met in order for waste
to be acceptable for near-surface land disposal, including restrictions on
liquid waste and waste packaging. The commission made no change in response
to this comment.
Peak Dose Modeling
WCS commented that the sentence proposed to be added in §336.709 is
not appropriate to be included in the regulation because it is not in the
federal regulations and is addressed at some length by the NRC in guidance
(NUREG-1573). WCS commented that the following should be used for the last
sentence in §336.709(1): "
The calculated maximum
dose for the period of 10,000 years after closure should be compared to the
performance objective in §336.724 for compliance determination. The calculated
dose and any peaks for the period beyond 10,000 years shall be used to evaluate
the necessity of imposing limits on the inventory received at the land disposal
facility
."
Modeling for maximum or "peak" dose is an appropriate approach to performance
assessment. In order to evaluate the site-specific maximally exposed individual,
the best estimate of maximum dose must be known. Federal requirements place
no upper limit to the time frame in which maximum dose must be evaluated.
Although the maximum dose period of 10,000 years after closure is discussed
in federal guidance documents, federal guidance also discusses any peak dose
that may be observed beyond that time frame. Because calculating dose until
eternity for all pathways is not a prudent use of resources, an alternative
of calculating peak dose time frames is more useful. The commission made no
change in response to this comment.
TRAB stated that the term "peak dose" should be better defined.
"Peak dose" is defined as the highest annual dose projected to be received
by the reasonably maximally exposed individual. The term as used in §336.709(1)
is consistent with federal rules. The commission made no change in response
to this comment.
TRWDF urged the agency to maintain the site performance assessment time
period at 1,000 years or the time to peak exposure, whichever is longer.
The commission agrees with this comment. Section 336.709(1), relating to
technical and environmental analysis, specifically provides for protection
of the general population by analysis for "a minimum period of 1,000 years
after closure or the period where peak dose occurs, whichever is longer, is
required as the period of analysis to capture the peak dose from the more
mobile long-lived radionuclides and to demonstrate the relationship of site
suitability to the performance objective in §336.724, (relating to Protection
of the General Population from Releases of Radioactivity)." Further, modeling
for maximum or "peak" dose is an appropriate approach to performance assessment.
In order to evaluate the site-specific maximally exposed individual, the best
estimate of maximum dose must be a known. The commission made no change in
response to this comment.
Performance Objectives
210 individuals stated that the history of such facilities offers no encouragement
that anything less than extraordinarily high standards can offer real security
to Texans and Texas.
Historically, LLRW disposal facilities in the United States have leaked.
These historical facilities were opened and operated under standards that
were much less protective than today's standards. The siting requirements
and performance objectives that are federally mandated for proposed LLRW land
disposal facilities are the direct result of failed sites and insufficient
environmental protection standards that were used in the past.
Two individuals requested that the commission establish standards in Texas
that are equal to those in California that require storage vessels made to
last 500 years.
HB 1567, §401.218, contains prescriptive and detailed containerization
requirements for LLRW. Specifically, some Class A, all Class B, and all Class
C LLRW disposed of in Texas must be first placed in reinforced concrete containers
and also placed within additional reinforced barriers or structures. The statutorily-mandated
inclusion of an additional reinforced barrier or structure in Texas regulations
goes beyond provisions for disposal in other states or in federal requirements.
The commission made no change in response to this comment.
U.S. Ecology recommended that any license issued include maximum curie
limits based on the assumed source term and performance assessment.
The commission agrees with this comment. In meeting the performance objectives,
the commission may impose curie limits as part of a license condition. The
commission acknowledges the importance of establishing a realistic source
term for the site that includes waste characteristics from Texas Compact generators
as well as from federal facilities, if applicable. A desirable source term
includes curie concentration values that are based on good data and that can
be projected in a conservative fashion. This reliable source term is then
the foundation of developing confidence in a performance assessment that estimates
potential dose to the public over the long term. The commission made no change
in response to this comment.
One individual stated that Texans deserve better than to have this danger
forced upon them without strict guidelines on containment, clean-up responsibility,
security, material quantities, kinds of materials, and where the site is located.
Existing rules in §336.724 specifically provide for protection of
the public by establishing dose limits as a result of any release. The provisions
of §336.724 are federally mandated. Performance assessment of an LLRW
land disposal facility considers the natural conditions of the proposed site,
a detailed waste characterization which includes the projected amounts and
concentrations of radionuclides that are planned to be disposed, and inadvertent
intruder scenarios, as well as unusual event or accident scenarios. These
parameters are then measured against the radiation protection standard of
25 millirem whole body exposure, 75 millirem to the thyroid, or 25 millirem
to any other organ of any member of the public. The commission made no change
in response to this comment.
LWV-Dallas stated the commission should require a mobility study for tritium
and chlorine 36 in the soil moisture below the site.
The commission partially agrees with this comment. Existing rules in §336.708
specifically provide for area and site characteristics including natural radiation
background. The evaluation of the unsaturated zone below the site at arid
locations is an important part of site-specific characterization performed
by an applicant. An administratively complete application for LLRW disposal
would include unsaturated zone evaluations based on data collected on a proposed
site. Further, the rules under §336.707 require evaluation of technical
criteria needed to demonstrate that performance objectives and other applicable
technical requirements of Chapter 336, Subchapter H, are met. These evaluations
shall include potential for mobility of radionuclides. The commission made
no change in response to this comment.
U.S. Ecology commented that requiring information relating to previous
disposal of radioactive material at a proposed site is critical in developing
a suitable source term for performance assessment.
The commission agrees with this comment. A reliable source term that includes
all potentially migrating radionuclides from a site is critical to a defensible
and protective performance assessment. Section 336.707(6) includes the required
description of any prior disposal of radioactive material at the site. Existing
language in §336.708(6) requires consideration of compatibility with
current land uses of a proposed site. This requirement is also in federal
standards. Texas Health and Safety Code, §401.231(7), includes a requirement
for "characterization of the area and disposal facility site . . . for current
land uses." The commission made no change in response to this comment.
LWV-Dallas and LWV-Texas urged the commission to require a site design
with engineered features capable of preventing leakage for 500 years, instead
of the current 100 years.
The commission agrees with this comment. Existing rules in §336.727,
relating to stability of the disposal site after closure, specifically provide
for long-term stability of the disposal site beyond 500 years. In addition,
existing rules in §336.729, relating to disposal site design for near-surface
land disposal, specifically provide for site design features intended to achieve
long-term stability of the site. The 100-year time period only relates to
institutional control and does not apply to the long-term stability of the
site. During the institutional control period, the custodial agency provides
monitoring and minor maintenance. The commission made no change in response
to this comment.
LWV-Dallas and LWV-Texas expressed grave concern about acceptance of mixed
waste, hazardous waste, and LLRW at the same disposal site.
HB 1567 specifically provides in Texas Health and Safety Code, §401.221,
for the acceptance of mixed waste at the Compact waste disposal facility and
the federal facility waste disposal facility. The commission made no change
in response to this comment.
LWV-Dallas and LWV-Texas urged the commission to include wording in the
rules that requires the use of best management practices and most recent technical
information available when designing the site.
The use of relevant, current data and best management practices are keystone
principles to engineering practice under 22 TAC §131.151. All design-related
documents are required to be sealed by a Texas professional engineer, and
accordingly, must adhere to this standard. Application submissions are subject
to both the Texas Engineering Practice Act, Texas Occupations Code, Chapter
1001, and the Texas Geoscience Practice Act, Texas Civil Statutes, Article
3271b, as provided by §305.45(a)(8). The commission made no changes in
response to this comment.
LWV-Dallas and LWV-Texas expressed concern about potential leakage from
a hazardous waste disposal site adjacent to an LLRW disposal site.
Section 336.707(6) includes the required description of any prior disposal
of radioactive material at the site. Existing language in §336.708(6)
requires consideration of compatibility with current land uses of a proposed
site. This requirement is also in federal standards. Texas Health and Safety
Code, §401.231(7), includes a requirement for "characterization of the
area and disposal facility site. . . for current land uses." "Area" is a broad
term that includes nearby facilities that could potentially impact the site.
The current or previous disposal of radioactive material, in any concentration,
is a relevant consideration in evaluating a proposed site location. Further,
potential leakage from an adjacent hazardous waste disposal site is addressed
by commission rules in Chapter 335. The commission made no change in response
to these comments.
Performance Objectives - Source Term
WCS commented that if the commission intends the use of the term "site"
in §336.707(6), the proposed subsection may require a detailed inventory
of all radioactive material that has been previously disposed of at the land
disposal facility and at any nearby facilities with distance and vicinity
undefined. WCS commented that this interpretation is inconsistent with NRC
regulations and places an undue burden on any potential applicant whose property
is located near existing waste management facilities. WCS commented that §336.728(k)
already requires an applicant to evaluate the activities at nearby facilities
to show that the impacts of those activities will not affect the ability of
the disposal site to meet performance objectives. WCS commented that the final
two sentences of §336.707(6) should be modified as: "This description
shall include any prior disposal containing
licensed
radioactive material at the
land disposal
facility
. This description shall include performance criteria for form
and packaging of the waste or radioactive material that has been previously
received and will be received
at the land disposal
facility
."
The commission disagrees with this comment. The use of the term "site"
maintains compatibility with federal regulations for the consideration of
the land uses at and near a proposed site. "Site" is defined in §336.702.
Texas Health and Safety Code, §401.231(7), requires that an applicant
must provide a thorough characterization of the site. This characterization
includes a description of previous disposals containing radioactive materials
at the site, whether or not licensed by the commission. It is important to
have a detailed knowledge of the site, including background radiation and
radiation attributed to previous activities. The commission made no change
in response to this comment.
Performance Objectives - Performance Assessments
TRWDF recommended improvements to the performance assessments, including
issues of background site conditions, waste inventories, potential employee
misfeasance or malfeasance, militant intruder scenarios, and radiation protection
standards.
The commission disagrees with this comment. Section 336.708 specifically
provides for area and site characteristics including natural radiation background.
In addition, §336.723 establishes performance objectives related to protection
of the public, inadvertant intrusion, and long-term site stability. The applicant
must provide a description of the operating plans and physical security systems,
under §336.707. Furthermore, §336.707(6) specifically addresses
requirements for a description of the types, quantities, and specifications
of radioactive material proposed to be received and disposed. Under §336.709,
a performance assessment of an LLRW land disposal facility includes consideration
of the natural conditions of the proposed site, a detailed waste characterization
which includes the projected amounts and concentrations of radionuclides that
are planned to be disposed, and intruder, as well as unusual event or accident
scenarios. An example of a possible unusual event scenario is an intentionally
set fire or explosion of a piece of on-site equipment. All of these parameters
are then measured against the radiation protection standard of 25 millirem
whole body exposure, 75 millirem to the thyroid, or 25 millirem to any other
organ of any member of the public. The commission made no change in response
to this comment.
Performance Objectives - Synergistic Effects
TRWDF stated that the synergistic effects of burying chemical and radioactive
wastes must be considered, particularly the enhanced migration rates caused
by chelating and other complexing agents. TRWDF recommended that the disposal
of wastes that include chelating and other complexing materials be prohibited.
TRWDF further recommended that consideration of such materials and their effects,
should they be inadvertently accepted at a facility, be mandatory components
of a facility's performance assessments.
Assessment of the chemical and radiological nature of LLRW proposed for
disposal is important in evaluating the overall performance of the disposal
site. Section 336.707(6) requires a description of physical, chemical, and
radiological characterization of waste to be received, processed, and disposed
of at a site. Section 336.707(5) requires characterization of wastes containing
chelating agents which may be disposed in an LLRW land disposal facility.
Section 336.362(b)(1)(E) prohibits waste readily capable of detonation or
of explosive decomposition or reaction at normal pressures and temperatures
or of explosive reaction with water. The commission made no change in response
to this comment.
Performance Objectives - Site Testing
TRWDF recommended that prior to licensing, sensitive tests be conducted
for tritium (down to one tritium unit) and chlorine-36 in soil beneath the
prospective site down to the location of the proposed waste emplacement and
below that into the deeper vadose zone.
The commission partially agrees with this comment. Section 336.708 specifically
provides for area and site characteristics including natural radiation background.
The evaluation of vadose (unsaturated) zone at arid sites is an important
part of site-specific characterization performed by a potential applicant.
An administratively complete application for LLRW disposal would include vadose
zone evaluations based on data collected on a proposed site. The commission
made no change in response to this comment.
Performance Objectives - Site Characteristics
TRO stated that it has concerns regarding hydrological criteria and geological
suitability requirements. TRO wants the rules to be more specific and to include
consideration of both major and minor aquifer formations.
The commission disagrees with this comment. The rules under §§336.707,
336.708, and 336.709 require evaluation of technical criteria for site suitability
including hydrology and geology. The evaluation of site-specific geology,
including groundwater formations, is part of the site-specific characterization
performed by an applicant. In order to complete a technical review of an LLRW
disposal application, the commission must have assurance that groundwater
protection can be demonstrated. Furthermore, §336.728 requires that the
hydrogeologic unit used for disposal cannot discharge groundwater to the surface
within the disposal site, and requires that the disposal site provide sufficient
depth to the water table so that groundwater shall not intrude into the waste.
This section also provides that areas that are the recharge areas of sole
source aquifers shall be avoided unless it can be demonstrated that the disposal
site will be designed, constructed, operated, and closed without an unreasonable
risk to an aquifer. The commission made no change in response to this comment.
TRWDF stated that the core issue is that the rules should be modified to
require site features capable of preventing radionuclide migration to the
environment - groundwater, surface water, surface soil, and air. TRWDF recommended
that the site characteristics should independently be sufficient so that if
the facility design fails to prevent leakage, no radioactivity can reach groundwater,
surface water, surface soil, or other aspects of the human environment. One
individual stated that it is much easier to contaminate groundwater with radiation
than to decontaminate it, and that it is essential to the health and welfare
of all Texans who will be drinking and using the groundwater that it not be
contaminated. One individual stated that groundwater is not something we have
enough of to spare for contamination by radioactive waste, especially in West
Texas.
The commission partially agrees with these comments. Site characteristics
preventing the migration of radionuclides to the environment are important
factors in the protection of public health and safety, and the environment.
Section 336.707 requires evaluation of technical criteria needed to demonstrate
that performance objectives and applicable technical requirements of Chapter
336, Subchapter H, are met. Section 336.728 requires that the hydrogeologic
unit used for disposal cannot discharge groundwater to the surface within
the disposal site, and requires that the disposal site provide sufficient
depth to the water table so that groundwater shall not intrude into the waste.
This section also provides that areas that are the recharge areas of sole
source aquifers shall be avoided unless it can be demonstrated that the disposal
site will be designed, constructed, operated, and closed without an unreasonable
risk to an aquifer. Section 336.728(d) precludes waste disposal in a 100-year
flood plain, a coastal high-hazard area, or a wetland. The evaluation of site-specific
geology, including groundwater formations, is part of the site-specific characterization
to be performed by an applicant. In order to complete a technical review of
an LLRW disposal application, the commission must have assurance that groundwater
protection can be demonstrated. Groundwater assessment is specified in §336.708(a)(3),
impact to groundwater is specified in §336.705(5), and health impacts
associated with groundwater consumption are specified in §336.724. Under §336.709,
a performance assessment of an LLRW land disposal facility includes consideration
of the natural conditions of the proposed site, detailed waste characterization
which includes the projected amounts and concentrations of radionuclides that
are planned to be disposed, and an inadvertent intruder scenario, as well
as an unusual event or accident scenarios. These parameters are then measured
against the radiation protection standard of 25 millirem whole body exposure,
75 millirem to the thyroid, or 25 millirem to any other organ of any member
of the public. The commission made no change in response to these comments.
Performance Objectives - Facility Design
TRWDF recommended that the rules be amended to require that prospective
violations of the rules, which have occurred frequently at past LLRW sites,
be considered as part of the site requirements. The site should be robust
enough that even if the rules are violated, no impact on groundwater or the
environment should result.
Section 336.716 requires compliance with statutes, rules, and regulations.
Compliance with license conditions should be sufficient to prevent impacts
to human health and safety, and the environment. The commission may take enforcement
actions to remedy violations of commission rules or the license. The commission
made no change in response to this comment.
TRWDF stated that a review of the history of past radioactive waste facilities
(Farrallon Islands, Maxey Flats, Sheffield, West Valley, Barnwell, Richland,
and Beatty) indicates that every one of them failed to keep radioactive waste
from migrating into the environment. TRWDF recommended that the rules be revised
to require the facility design be based on prevention of leakage and zero
tolerance for leakage.
The commission appreciates this comment. Sections 336.707 - 336.709 require
evaluation of technical criteria for site suitability including hydrology
and geology. Furthermore, these technical criteria are compatible with federal
standards that were adopted to address problems at historical sites. The commission
made no change in response to this comment.
TRWDF stated that, as drafted, the rules allow designs anticipated to leak,
and that leaks occurred far sooner and traveled farther than predicted at
other disposal sites. TRWDF recommended that significant conservatism be built
into the rules to compensate for the tendency of applicants to under-design
and over-predict performance of their facilities. 208 individuals expressed
concern that the basic design of the disposal site, as outlined in the rules,
assumes that leaking of radioactive materials is acceptable.
One individual stated that all plans for containing nuclear waste are only
temporary and that one good rain will spread all the nuclear waste across
the Texas plains where it will seep into the aquifer and make the Texas crops
unsaleable. The individual requested that the commission contain the waste
and monitor the site for leaks. One individual expressed concern that the
proposed rules for an LLRW disposal facility may not protect against long-term
leaks into the groundwater tables. The individual stated that although West
Texas seems desolate at times, one can hardly travel any distance at all without
seeing evidences of agriculture which is dependent upon groundwater supplies
for its existence. The individual also stated that drinking water is also
related, and requested that the commission establish regulations that address
long-term leakage from these dump sites. One individual urged the commission
to establish regulations that would be sufficient to prevent leakage, which
at the very least should require such dangerous materials be stored in a way
that leaks can be detected quickly, not after they contaminate a large area
or an aquifer. Two individuals requested that the commission ensure that the
site is built aboveground for access if and when there is leakage. One individual
expressed a belief that the possibility of leakage is high and urged the commission
to set strict regulations regarding possible leakage of radioactive waste.
One individual expressed concern regarding the safeguarding of deposited wastes,
and stated that the commission should require that waste materials be deposited
in long-lasting containers and that the entire site be contained to the limit
of current engineering capability. 206 individuals stated that the waste is
not required to be containerized in a manner that would prevent leaks, nor
do the rules take into account the fact that previous predictions of how soon
and how fast leaks would occur have all been grossly inaccurate. 206 individuals
stated that Texas should have a facility, if any, that is designed not to
leak. One individual expressed concern that the facilities where waste is
dumped are not required to be leak proof, and asked if any of the waste disposal
company owners would allow this to happen near their home or even in their
state?
Site characteristics preventing the migration of radionuclides to the environment
are important factors in the protection of public health and safety, and the
environment. The applicant is required to incorporate appropriate design features
and factors of safety to protect human health and the environment, including
factors related to leakage. While a leak-free design is most desirable, leakage
is often assumed as a part of a worst-case scenario analysis. The commission
will review all engineering design specifications in order to verify that
the applicant's proposed design will meet the performance objectives as stated
in §336.723. The commission made no change in response to these comments.
One individual expressed concern that the disposal of this type of waste
does not have more stringent regulations. The individual stated that although
there appears to be nothing but sand in the hinterlands, there are pockets
of oil, gas, and other minerals that could cause problems in the storage safety
of this material. In addition, although the land has limited population, there
are people in close proximity to the area and there are already high incidents
of cancer. The individual stated that it does not appear that there will be
any studies planned to monitor the potential of increased cancer rates.
Texas Health and Safety Code, §401.223, requires that the Texas Department
of Health, the commission, and local public health officials develop a health
surveillance survey for the population located in the vicinity of the site.
Therefore, monitoring of potential cancers in the area surrounding an LLRW
site will be conducted by state agencies. Additionally, the licensee is required
to monitor the perimeter surrounding the site with very sensitive radiation
detectors. The licensee is also required to monitor surface water, groundwater,
and air which may be migrating from the facility for any releases above prescribed
levels. This is required to ensure that dose levels to the public are maintained
at levels less than regulatory limits. Maintaining dose levels that are less
than regulatory limits will minimize the likelihood of developing cancer.
Furthermore, the use of natural resources near the LLRW site, such as oil
and gas, and the impact that such use has on human health and the environment
is specifically addressed in 336.728. The commission made no change in response
to this comment.
Performance Objectives - Radiation Protection
Standard
TRWDF stated that the rules would license a facility where doses to the
public would result in one fatal cancer in every 1,000 people exposed. Numerous
studies indicate that the risk figures relied upon underestimate the true
risk by an order of magnitude, resulting in the true risk being 1:50. Most
carcinogens are regulated at a one in a million lifetime risk of cancer incidence.
TRWDF recommended that the standard should be no leakage, or the standard
of permissible exposure and risk should be tightened to be comparable to the
hazardous wastes, aiming at a one in a million permissible risk level.
The commission disagrees with this comment. Section 336.724 specifically
provides for protection of the public by establishing dose limits as a result
of any release. This dose limit is federally-mandated and is a compatibility
issue for maintaining Agreement State status. Texas is an "Agreement State"
for the regulation of LLRW disposal under the Atomic Energy Act. As part of
that agreement, the rules and policies of Texas must remain compatible with
federal standards, subject to federal review. The federal radiation protection
standard of 25 millirem whole body exposure, 75 millirem to the thyroid, or
25 millirem to any other organ of any member of the public is required as
a matter of compatibility for regulation of maximum permissible dose at an
LLRW land disposal facility. The commission made no change in response to
this comment.
Site Security
TRWDF recommended that the performance assessments should explicitly require
consideration of the impacts of terrorists acts. TRWDF stated that inspectors
should have significant duties in assuring that security at the site is adequate
to assure protection against terrorism or theft of radioactive materials that
could be used for "dirty bomb" purposes. 206 individuals stated that site
security ought to be of great importance in these times, especially because
a lack of security at current radioactive waste storage facilities was cited
as a reason for having an LLRW site. 209 individuals expressed a belief that
the LLRW facility ought to have at least the same level of security as a nuclear
power plant, and that we cannot afford to be complacent about guarding such
toxic substances that are an enormous potential threat to public safety. One
individual stated that the physical security at the site must be rigorous.
One individual expressed concern that HB 1567 was flawed in that it failed
to adequately address issues of "homeland security" in radioactive waste rules.
Site-specific operational and emergency plans are reviewed as part of the
comparative review and detailed technical review of the license application.
The licensee is required to provide site security as part of any operations
plan. Related to this issue, the NRC is taking the lead to investigate common
defense and security at all sites that possess radioactive materials, including
those in Texas. Special requirements are being mandated directly by the NRC
to many licensees as a result of post-September 11th efforts focused on common
defense and security. The commission anticipates that tighter security requirements
will be mandated by the NRC for the storage of radioactive material, including
radioactive waste. The licensee will be subject to future changes of the Texas
Radiation Control Act and the rules of the commission. The commission made
no change in response to these comments.
Site Operations - Duties of Resident Inspectors
TRWDF stated that it is important that a strong and effective load check
program be instituted, requiring the resident inspectors to independently
check the waste that is received to assure that it is as labeled and meets
all restrictions.
Duties of the resident inspectors will include checking waste manifesting
and packaging, including the accuracy and correctness of shipment labeling
and placarding. Waste will not be accepted at the site until a commission-employed
resident inspector approves the shipment. The commission made no change in
response to this comment.
Concepts
The NRC commented that the commission needed to clarify §336.703 to
provide that the concepts of 10 CFR §61.7 guide the application of the
rules because "consideration" is not equivalent to adopting by incorporation.
TRAB also commented that the provision should be clarified.
The commission agrees with the comment. Section 336.703 has been modified
to provide that the concepts and requirements provided in 10 CFR §61.7
guide the application of rules in Subchapter H.
Specific Definitions
WCS commented that the term "hazardous waste" is defined in the rules in
two different ways in the definition of "Hazardous waste" and the definition
of "Mixed waste." WCS recommended that the definition of "Mixed waste" be
modified so that hazardous waste reflects the definition in §335.1 of
the commission's rules.
The commission agrees with the comment. The definition of "Mixed waste"
in §336.2 was modified to refer to the definition of hazardous waste
in Chapter 335.
TRAB recommended adding "1 DAC-hour = 2.5mrem" to the definition of "Individual
monitoring" in §336.2.
The commission disagrees with this comment. The definition of "Individual
monitoring" is a matter of compatibility with the federal definition. Furthermore,
the relationship of DAC-hour to millirem is given in the federal definition
of "derived air concentration-hour" in 10 CFR Part 20 and in the state definition
of "Derived air concentration-hour (DAC-hour)" in §336.2. The commission
made no change in response to this comment.
TRAB stated, insert the words "naturally-occurring" between the words "the"
and "background," in the definition of "Distinguishable from background";
otherwise, the definition allows the inclusion of pre-existing man-made radioactivity
in the area of interest.
The commission disagrees with this comment. The definition of "Distinguishable
from background" is a matter of compatibility with the federal definition.
The federal definition of "Distinguishable from background" is provided in
10 CFR Part 20. The commission made no change in response to this comment.
TRAB stated that the definition "Demand respirator" in §336.2(31)
is most commonly referred to as an "air purifying respirator."
The commission disagrees with this comment. Demand respirator and air-purifying
respirator are separately defined terms in federal regulations. "Demand respirator"
is the term used by the NRC in 10 CFR §20.1003. Consistency between state
and federal definitions is required for program compatibility. The commission
made no change in response to this comment.
WCS commented that the statutory definition of "disposal facility site"
should be codified in the definitions in §336.2(36) as
"Disposal facility site The tract of land on which is located the compact
waste disposal facility and the federal facility waste disposal facility,
if applicable. The term includes the immediate area surrounding the facility
or facilities
."
The commission disagrees with this comment. The term "disposal facility
site" may be confused with the existing defined terms "Land disposal facility"
and "Disposal site." The commission has added a new definition of "Site" in §336.702
that is consistent with the term "disposal facility site." References to disposal
facility site have been changed to defined terms as appropriate.
WCS commented that the definition of "Federal facility waste disposal facility"
in §336.2(50) should be revised to clarify that the federal facility
waste disposal facility is licensed under both Subchapters H
and J
of Chapter 336.
The commission agrees with this comment. The commission defines federal
facility waste disposal facility in §336.2 as an LLRW land disposal facility
for the disposal of federal facility waste licensed under Chapter 336, Subchapters
H and J. For consistency, the commission defines "Compact waste disposal facility"
in §336.2 as an LLRW land disposal facility licensed by the commission
under Chapter 336, Subchapter H.
WCS commented that the definition of "Land disposal facility" in §336.2(68)
should be modified by adding at the end of the proposed definition: "
The commission partially disagrees with this comment. Land disposal facility
is an NRC-defined term that has been designated as an element that Agreement
states must maintain as essentially identical; therefore, the definition of
"Land disposal facility" cannot be amended. Other commission rules have been
modified to use defined terms, such as "Site," "Land disposal facility," and
"Disposal site" as appropriate. The commission made no change in response
to this comment.
TRAB recommended that the commission add "and low-level radioactive waste"
to the end of the sentence in the definition for "Mixed waste" in §336.2(80).
The commission disagrees with this recommendation. The terms "compact waste"
and "federal facility waste" are defined to be forms of LLRW. The commission
made no change in response to this comment.
TRAB commented that the commission should delete the words "Radiation and"
from the term "Radiation and Perpetual Care Account." TRAB recommended that
the commission delete "radiation and" for consistency from the term "perpetual
care account." TRAB stated that the definition "Radiation and perpetual care
account" should be deleted.
The commission disagrees with this recommendation. Definitions are retained
for "Perpetual care account" and "Radiation and perpetual care account" in §336.2
because these terms are used interchangeably in HB 1678. HB 1678 states that
the radiation and perpetual care account is the perpetual care account. The
commission made no change in response to this comment.
TRAB stated that in the definition of "Special nuclear material in quantities
not sufficient to form a critical mass" in §336.2, a desired ratio limit
of "1" should not be replaced by the word "one" because it implies no level
of desired precision. TRAB also stated in the definition of "DAC-hour" the
word "five" should be changed to the integer "5."
The commission agrees with these comments and changed the word "one" to
the integer "1" in the definition of "Special nuclear material in quantities
not sufficient to form a critical mass," and changed the word "five" to the
integer "5" in the definition of "Derived air concentration-hour."
WCS commented that the definition of "Containerized Class A waste" in §336.702(5)
should be renamed as "
high activity Class A waste
" to avoid confusion with lower activity Class A waste that may be
received in containers, but is not required to be managed in the same manner
as Class B or Class C waste.
WCS commented that the level specified in the proposed definition of "Containerized
Class A waste" in §336.702(5) could be unnecessarily low because it does
not appear to be related to waste type, radionuclide inventory, or other stated
considerations. WCS commented that the radiation level used to define high
activity waste should be related to and based upon the main principle of disposal,
the isolation of the waste, and that the commission should reconsider the
level specified and provide a basis for the level that is determined to be
appropriate.
The commission disagrees with these comments. High radioactivity waste
does not necessarily correspond to a high external dose rate received from
waste containers. The term "containerized Class A waste" is not intended to
reflect containerization prior to receipt at the site. Rather, "containerized
Class A waste" refers to the use of overpacks and additional barriers that
must be used during disposal operations. The definition of "Containerized
Class A waste" was derived from the definition of "high radiation area" to
afford protection to workers and the public. Containerization for disposal
will be required of all Class A waste that meets the definition of "Containerized
Class A waste." This provision implements Texas Health and Safety Code, §401.218(c),
by requiring containerization and use of an additional barrier for certain
Class A wastes. The commission made no change in response to this comment.
WCS commented that the phrase "disposal facility" in §336.706(a)(1)(D)
and (2)(D) should refer to the defined term "
land
disposal facility
." WCS commented that the word "facilities" in §336.706(a)(3)
should refer to the "
buildings and structures
"
located at the "
land disposal facility
."
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.706 and therefore cannot make changes at adoption. Facilities
as used in §336.706(a)(3) may include, but is not limited to, buildings
and structures. The commission made no change in response to these comments.
WCS commented that the term "on-site" in §336.707(5) should be deleted
because the term is ambiguous as it applies to the "land disposal facility"
and not all contiguous land that may be owned by an applicant.
The commission disagrees with the comment. The term "on-site" is defined
in §336.2 and does not result in any ambiguity. The commission made no
change in response to this comment.
WCS commented that the term "site" in §336.707(6) should be "
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. The commission made no change in response
to this comment.
WCS commented that the term "facility" in §336.707(11) should be "
The commission disagrees with this comment; however, the term "facility"
has been deleted from §336.707(11) to avoid the use of an undefined term.
WCS commented that the term "site" in §336.708(a)(1) should be "
The commission disagrees with the comment; however, the term "facility"
as used in §336.708(a)(1) has been changed to the term "site" to avoid
the use of an undefined term. The term "site" is defined in §336.702.
WCS commented that the term "facility" in §336.708(a)(2) should be
"
land disposal facility
."
The commission agrees with this comment and changed the term "facility"
to the term "land disposal facility" in §336.708(a)(2) to avoid the use
of an undefined term.
WCS commented that the term "site" in §336.708(a)(3) should be "
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. The commission made no change in response
to this comment.
WCS commented that the term "site" in §336.708(a)(6) should be "disposal
facility site."
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. The commission made no change in response
to this comment.
TRAB stated that the commission should define the term "reasonable assurance"
in §336.709(1).
The use of the term "reasonable assurance" in §336.709 is consistent
with the NRC's use of the same term in 10 CFR §61.40, General requirement.
Consistency in language and use of terms between federal and state rules is
important for program compatibility. The applicant has the burden of proof
in demonstrating compliance with the federally-mandated performance objectives.
The commission made no change in response to this comment.
WCS commented that term "facilities" in §336.715 is equivalent to
"buildings and structures."
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.715 and therefore cannot make changes at adoption. The
term "facilities" as used in §336.715 may include, but is not limited
to, buildings and structures. The commission made no change in response to
these comments.
WCS commented that the term "facility" in §336.716(d) should be "
The commission agrees with this comment and changed the term "facility"
to the term "land disposal facility" in §336.716(d) to avoid the use
of an undefined term.
WCS commented that the use of the word "site" in §336.717(a) may be
ambiguous and should refer to the "
compact waste
disposal facility
." WCS suggested that the following sentence be added
to the end of the subsection: "
For purposes of this
subsection, the term site refers to the compact waste disposal facility
."
TRAB commented that the last sentence of §336.717(a) should direct the
reader to the location of the requirements on the federal facility waste facility.
The commission disagrees with these comments. The term "site" is defined
in §336.702; however, the commission changed the term "disposal facility"
to the term "compact waste disposal facility" in §336.717(a) to avoid
the use of undefined terms. Chapter 336, Subchapter J, provides the requirements
for the licensing of the disposal of federal facility waste as set out in §336.901.
WCS commented that the term "site" in §336.718(a) should be "
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. "Disposal site" as defined in §336.702
refers only to that portion of a land disposal facility which is used for
disposal of waste. The commission made no change in response to this comment.
WCS commented that the term "site" in §336.720(a) should be "
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. "Disposal site" as defined in §336.702
refers only to that portion of a land disposal facility which is used for
disposal of waste. The commission made no change in response to this comment.
TRAB commented that the commission should define the term "reasonable assurance"
in 336.723. TRWDF recommended that the criterion for accepting a license application
should be higher than the "reasonable assurance" of the proposed rules. The
standard should be that the agency has high confidence that the facility can
operate without leakage.
The use of the term "reasonable assurance" in §336.723 is consistent
with the NRC use of the same term in 10 CFR §61.40, General requirement.
Consistency in language and use of terms between federal and state rules is
important for program compatibility. The applicant has the burden of proof
in demonstrating compliance with the federally-mandated performance objectives.
The commission made no change in response to this comment.
WCS commented that the term "site" in §336.725 should be "
disposal site
."
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.725 and therefore cannot make changes at adoption. The
term "site" is defined in §336.702. The commission made no change in
response to these comments.
WCS commented that the term "disposal facility" in §336.727 should
be "
land disposal facility
."
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.727 and therefore cannot make changes at adoption. The
commission made no change in response to these comments.
WCS commented that §336.728 should be revised in favor of defined
terms. The use of "facility" in §336.728(b) should be "
land disposal facility
." The use of "site" in §336.728(k) should
be "
disposal site
." The use of "disposal site"
in §336.728(m) - (p) should be "
disposal facility
site
" consistent with Texas Radiation Control Act, §401.217.
The commission partially agrees with this comment. The terms "facility"
and "disposal facility" in §336.728(b) have been changed to the term
"land disposal facility" to avoid the use of undefined terms. The commission
disagrees with the suggested change in §336.728(k). The use of "site"
in §336.728(k) is consistent with that term as defined in §336.702.
The use of the term "disposal site" in §336.728(m) - (p) should be the
term "site" which is consistent with the term "disposal facility site" in
Texas Radiation Control Act, §401.217, and these changes have been made.
WCS commented that the term "site" in §336.729(a) should be "
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. "Disposal site" as defined in §336.702
refers only to that portion of a land disposal facility which is used for
disposal of waste. The commission made no change in response to this comment.
WCS commented that the term "facility" in §336.729(g) should be "
The commission agrees with this comment and changed the term "disposal
facility" to the term "land disposal facility" in §336.729(g) to avoid
the use of an undefined term.
WCS commented that the term "site" in §336.730(f) should be "
The commission disagrees with this comment. The use of the term "site"
as defined in §336.702 is correct. "Disposal site" as defined in §336.702
refers only to that portion of a land disposal facility which is used for
disposal of waste. The commission made no change in response to this comment.
WCS commented that the term "facility" in §336.731(b) should be "
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.731 and therefore cannot make changes at adoption. The
term "facility" in the second sentence of §336.731(b) refers to the land
disposal facility in the first sentence. The commission made no change in
response to these comments.
WCS commented that the term "land disposal facility site" in §336.731(b)
should be "
land disposal facility
."
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.731 and therefore cannot make changes at adoption. The
commission made no change in response to these comments.
WCS commented that the term "unplanned events" is not defined in the Texas
Radiation Control Act or the commission's rules and creates uncertainty in
determining the amount of financial assurance required under the provision.
WCS recommended that the following be added to subsection §336.738(a):
"
For purposes of this section, the term 'unplanned
events' means those processes and events affecting the disposal facility site
that are judged not to be reasonably likely to occur during the period the
intended performance objective must be achieved, but which are nevertheless
sufficiently credible to warrant consideration. Unplanned events may be either
natural processes or events or processes and events initiated by human activities
other than those activities licensed under this chapter. Processes and events
initiated by human activities may only be found to be sufficiently credible
to warrant consideration if it is assumed that: (1) The post closure intruder
barriers provided pursuant to this chapter are sufficiently permanent to serve
their intended purpose; (2) the value to future generations of potential resources
within the land disposal facility can be assessed adequately under the applicable
provisions of this chapter; (3) an understanding of the nature of radioactivity,
and an appreciation of its hazards, have been retained in some functioning
institutions; (4) institutions are able to assess risk and to take remedial
action at a level of social organization and technological competence equivalent
to, or superior to, that which was applied in initiating the processes or
events concerned; and (5) relevant records are preserved, and remain accessible,
for several hundred years after permanent closure
."
The term "unplanned events" is taken directly from Texas Health and Safety
Code, 401.241. The statute provided no specific guidance; however, unplanned
events would include site-specific evaluation for such occurrences as tornados,
hurricanes, earthquakes, etc. These criteria will be evaluated on an application-by-application
basis as part of the comparative merit and technical reviews. The commission
made no change in response to this comment.
WCS commented that the term "site" in §336.740(h)(2)(E) should be
"
disposal site
."
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. The commission did not propose
changes to §336.740 and therefore cannot make changes at adoption. The
term "Site" is defined in §336.702. The commission made no change in
response to these comments.
WCS commented that the term "licenses" in §336.801 is ambiguous and
should be replaced with the term "
compact waste disposal
facility
."
The commission partially agrees with this comment. The term "licenses"
has been changed to "license" because only one license may be issued. The
term "compact waste disposal facility" would not be correct. Other changes
were made to §336.801(a) to specify that Subchapter I only applies to
the initial application process. Additionally, part of a sentence that was
inadvertently left out at proposal was added to describe the license authorization
for the disposal of federal facility waste.
WCS commented that the phrase "facility or facilities for disposal of LLRW"
in §336.803 should be "compact waste disposal facility."
The commission partially agrees with this comment. The term "compact waste
disposal facility" would not be correct. The phrase "facility or facilities"
has been changed to "Compact waste disposal facility and a federal facility
waste disposal facility, if applicable." This change was made to reflect what
operations are applicable to a license application.
TRAB stated that the rules reference "reasonable" and asked for some examples
so that there is an indication of what is considered "reasonable." TRAB also
asked if qualifiers can be given. TRAB stated the term "reasonableness" in §336.805(3)
provides a weak standard and should be modified to provide a more objective
standard.
The language in §336.805(3) is taken verbatim from Texas Health and
Safety Code, 401.219. Further, what constitutes "reasonableness" will be determined
by the commission on a case-by-case basis; thus, no qualifiers can be given
for these site-specific subjective criteria. The commission made no change
in response to this comment.
WCS commented that the term "disposal unit" in §336.901 should be
"land disposal facility." WCS also commented that the phrase "and distinct"
should be added after "separate" in §336.901.
The commission partially agrees with this comment and has changed the wording
in §336.901 to "a separate land disposal facility on the same site."
The change provides consistency with Texas Health and Safety Code, §401.216,
and the definition changes made in response to comment. The compact waste
disposal facility and a federal facility waste disposal facility, if authorized,
would be separate, adjacent land disposal facilities at the same site.
Volume Limitation of Federal Facility Waste
WCS commented that §336.905(b) is inconsistent with the Texas Radiation
Control Act and places an impermissible burden on an applicant that seeks
authorization as part of its original license application for a federal facility
waste disposal facility with an overall capacity of more than 3,000,000 cubic
yards and less than 6,000,000 cubic yards. WCS commented that Texas Radiation
Control Act, §401.216(c), is clear: the capacity of the federal facility
waste disposal facility shall increase unless an affirmative finding to the
contrary is made by the commission. WCS commented that requiring an amendment
application to increase the licensed capacity, even where the disposal of
federal facility waste has been conducted without incident, is burdensome
on an applicant who seeks to authorize as part of its original license application
a federal facility waste disposal capacity of more than 3,000,000 cubic yards
and up to 6,000,000 cubic yards. WCS also commented that the proposed language
is inconsistent with common regulatory approaches which require an applicant
to declare in the initial application the full extent of the authority to
be sought and shields the public from the full intentions of an applicant
wishing to ultimately dispose of the 6,000,000 cubic yards authorized by the
Texas Radiation Control Act. WCS commented that the rule should provide that
the commission must review and offer public comment on, the protectiveness
of the facility assuming the total volume of the waste (up to 6,000,000 cubic
yards) that the applicant anticipates will be accepted at the site. WCS also
commented that the rule should provide that if the agency concludes that the
facility will be protective if the maximum amount of waste authorized by the
statute is accepted, the permit must include a provision that on the fifth
anniversary of the date of issuance will increase the amount authorized to
be accepted at the facility up to 6,000,000 cubic yards.
The commission disagrees with this comment. Texas Health and Safety Code, §401.216(c),
establishes a stair-step approach to volume limitations at a proposed Texas
LLRW land disposal facility. The statute identifies the first step of this
approach as an initial volume limitation of 3,000,000 cubic yards, with further
limitations on containerized waste of 300,0000 cubic yards. The site performance
under this initial step would be closely evaluated during the first five years
of facility operations to determine the impact of a potential increase in
the volume of federal facility waste. One of the unknown parameters that must
be part of this stair-step evaluation of site performance is the impact of
the receipt of Compact waste. Compact waste has no statutory volume limitations
in the first five years of site operations, including no limit on radionuclide
concentrations or the type of LLRW received. Therefore, the actual inventory
of radionuclides from Compact waste may impact the ability of the site to
increase the receipt of certain types of waste from federal facilities. An
initial volume limitation of 6,000,000 cubic yards for an LLRW land disposal
facility in Texas is not the limitation imposed by the statute. Doubling of
the capacity of an LLRW land disposal facility requires a major evaluation
of the most current data available from the operating site. This process requires
the commission to be able to support its finding with a thorough and defensible
technical review.
Waste Classification
LWV-Dallas stated that no waste greater than Class C should be allowed.
TRWDF recommended that no waivers or exemptions from the prohibition of wastes
greater than Class C wastes should be permitted. NRC commented that the definition
of federal facility waste should exclude greater than Class C waste to meet
compatibility requirements because Texas cannot regulate the disposal of this
waste. Moreover, the disposal of greater than Class C waste is the responsibility
of the federal government under the Low-level Radioactive Waste Policy Act.
TRWDF stated that the rules should either eliminate the distinction between
minor and non-minor license amendments, or specify in clear terms the universe
of changes that may be characterized as a minor amendment. The rules should
also state that a minor amendment may never authorize disposal of special
wastes, disposal of greater than Class C wastes, changes in the waste profile
of either facility, or changes in waste packaging requirements.
The commission partially agrees with these comments. Greater than Class
C LLRW is generally unacceptable for near-surface disposal. Furthermore, the
disposal of greater than Class C waste is a federal responsibility. The rules
do not contemplate the acceptance of greater than Class C LLRW for disposal
at a site licensed by the commission. Section 336.1(a)(1) already excludes
application of the state requirements to persons subject to regulation by
the NRC or to radioactive material in the possession of federal agencies.
In response to the NRC comment, the commission changed the definition of "Federal
facility waste" in §336.2 to exclude greater than Class C LLRW for disposal
at a site licensed by the commission. Additionally, the commission changed §336.701(b)
to add a new paragraph (5) to exclude greater than Class C LLRW for disposal
at a site licensed by the commission. The category of "special waste" in the
commission rules does not apply to LLRW.
Under the Texas Administrative Procedure Act, the commission is required
to provide interested persons a reasonable opportunity to comment on a proposed
rule or proposed changes to an existing rule. Minor amendment is defined by
reference in §305.62(c)(2); however, the commission did not propose changes
to §305.62 and therefore cannot make changes at adoption. By definition,
a minor amendment can only be an amendment that improves or maintains the
permitted quality or method of disposal of waste. Whether an amendment may
be classified as minor will be determined by the commission on a case-by-case
basis.
LWV-Dallas stated that waste "averaging" should be prohibited. TRWDF recommended
that concentration averaging to get around the greater than Class C prohibition
should be barred. TRWDF stated that the rules should state that a minor amendment
may never authorize averaging of wastes to reduce activity concentrations.
The commission disagrees with these comments. Existing rules in §336.362(a)(8)
allow for concentration averaging and are consistent with NRC regulations
in 10 CFR §61.55(a)(8). The use of appropriate averaging techniques will
be evaluated by the commission on a case-by-case basis as part of the review
of waste acceptance criteria. The commission made no change in response to
these comments.
LWV-Dallas stated that limits should be placed on the amounts of certain
nuclides. 208 individuals stated that the types and amounts of radioactive
waste are practically unrestricted by these rules, and that they were disturbed
by the idea that Texas is going to be the guinea pig for an unprecedented
combination and concentration of radioactive materials mixed, in some cases,
with hazardous waste. One individual stated an impression that the amount
and radioactivity levels of the wastes allowed exceed any reasonable level
and need to be severely limited. One individual stated that the law does nothing
to cap existing regulations and thus does not regulate how much or how many
types of radioactive substances that can be transported through Texas, past
many homes and businesses, and be disposed near someone's hometown.
There are concentration limitations by radionuclide incorporated into the
classification system required in §336.362(a) in Appendix E for LLRW.
There are concentration limitations above which waste is classified as greater
than Class C LLRW. Greater than Class C LLRW is generally unacceptable for
near-surface disposal. Furthermore, the disposal of greater than Class C waste
is a federal responsibility. The rules do not contemplate the acceptance of
greater than Class C LLRW for disposal at a site licensed by the commission.
In response to an NRC comment, the commission changed the definition of "Federal
facility waste" in §336.2 to exclude greater than Class C LLRW for disposal
at a site licensed by the commission. Additionally, the commission changed §336.701(b)
to add a new paragraph (5) to exclude greater than Class C LLRW for disposal
at a site licensed by the commission.
Texas Health and Safety Code, §401.216(c), establishes a stair-step
approach to volume limitations at a proposed Texas LLRW land disposal facility
for the disposal of federal facility waste. The statute identifies the first
step of this approach as an initial volume limitation of 3,000,000 cubic yards,
with further limitations on containerized waste of 300,000 cubic yards. The
site performance under this initial step would be closely evaluated during
the first five years of facility operations to determine the impact of a potential
increase in the volume of federal facility waste. An increase to 6,000,000
cubic yards of federal facility waste after the first five years is possible
with a major amendment to the license application.
U.S. Ecology recommended that any application projecting significant volumes
of DOE waste describe the procedures, processes, and related quality assurance
program elements proposed at both the generator location and the disposal
site to ensure that DOE waste classification, form, packaging, and disposal
complies with 10 CFR §61.55.
The commission agrees with the comment that a license application for LLRW
disposal should include reliable waste characterization information for federal
facility waste planned for disposal, if applicable. Section 336.733(a) requires
that all waste received for disposal, including DOE waste, comply with equivalent
standards in 10 CFR §61.55.
212 individuals stated that the levels of radioactivity to be allowed in
wastes at this facility are extremely dangerous and remain so for so many
years as to be beyond realistic contemplation, and that there needs to be
much more stringent restrictions on amounts, concentrations, and radioactivity
of the wastes disposed.
Section 336.707(6), relating to specific technical information, requires
a complete description of the types, quantities, and specifications of the
wastes to be received. This provision ensures that the performance objectives
for protection of the public and the environment will be met. In addition,
existing rules impose limits on long-lived radionuclides and require that
the waste be structurally stable or in concrete containers prior to disposal.
The commission made no change in response to this comment.
Waste Classification - No Radionuclide or Concentration
Limitations
TRWDF stated that no radionuclide is barred from disposal no matter how
toxic or long-lived. TRWDF recommended that the regulations be changed to
permit disposal in LLRW facilities of only those radionuclides that are truly
low-level in terms of toxicity and longevity. An appropriate standard would
be that no radionuclide with a hazardous life (20 half-lives) greater than
the institutional control period should be permitted in the facility. TRWDF
stated that the lack of limits on the amounts of individual radionuclides
is of concern in estimating potential impacts on humans because of the vast
difference in toxicity and longevity of various isotopes. TRWDF recommended
that quantity limits be established, limits that would keep the wastes in
an LLRW facility to actual low-level wastes. This would be in keeping with
the low level of design and site requirements proposed, in comparison to those
of a high level repository. TRWDF recommended that the rules include concentration
limits for all radionuclides, limits that would actually restrict the concentrations
to genuinely low-level wastes. TRWDF recommended that the concentration limits
for the radionuclides for which limits are currently contemplated be markedly
reduced so as to reflect genuinely low-level radioactive waste. The levels
for cesium-137, plutonium-239, and other long-lived transuranics and strontium-90
should be reduced by approximately three orders of magnitude.
The commission disagrees with this comment. Concentration limitations are
imposed in §336.362 on long-lived radionuclides. Section 336.733(b),
relating to waste classification, characteristics, and labeling, provides
for additional disposal requirements for certain types of waste such as concrete
canisters or equivalent containment structures. There are concentrations above
which waste is classified as greater than Class C LLRW. Greater than Class
C LLRW is generally unacceptable for near-surface disposal. Furthermore, the
disposal of greater than Class C waste is a federal responsibility. The rules
do not contemplate the acceptance of greater than Class C LLRW for disposal
at a site licensed by the commission. In response to an NRC comment, the commission
changed the definition of "Federal facility waste" in §336.2 to exclude
greater than Class C LLRW for disposal at a site licensed by the commission.
Additionally, the commission changed §336.701(b) to add a new paragraph
(5) to exclude greater than Class C LLRW for disposal at a site licensed by
the commission. Low-level radioactive waste is a statutorily-defined classification
of radioactive waste. The definition of "low-level radioactive waste" is provided
in Texas Health and Safety Code, §401.004. The Texas definition is consistent
with the federal definition of LLRW as a matter of compatibility.
Subchapter A. GENERAL PROVISIONS
30 TAC §§336.1, 336.2, 336.9, 336.11
STATUTORY AUTHORITY
The amendments and new section are adopted under Texas Water Code, §5.103,
concerning Rules, and §5.105, concerning General Policy, which authorize
the commission to adopt rules necessary to carry out its powers and duties
under the Texas Water Code and other laws of the state. The amendments and
new section are also adopted under Texas Health and Safety Code, Chapter 401,
concerning Radioactive Materials and Other Sources of Radiation, also known
as the Texas Radiation Control Act; §401.011, concerning Radiation Control
Agency, which authorizes the commission to regulate and license the disposal
of radioactive substances; §401.051, concerning Adoption of Rules and
Guidelines, which authorizes the commission to adopt rules and guidelines
relating to control of sources of radiation; §401.103, concerning Rules
and Guidelines for Licensing and Registration, which authorizes the commission
to adopt rules and guidelines that provide for licensing and registration
for the control of sources of radiation; §401.104, concerning Licensing
and Registration rules, which requires the commission to provide rules for
licensing for the disposal of radioactive material; §401.201, concerning
Regulation of Low-Level Radioactive Waste Disposal, which authorizes the commission
to regulate the disposal of LLRW; and §401.412, concerning Commission
Licensing Authority, which authorizes the commission to issue licenses for
the disposal of radioactive substances.
§336.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, or as described in Chapter 3 of this title (relating
to Definitions), unless the context clearly indicates otherwise. Additional
definitions used only in a certain subchapter will be found in that subchapter.
(1)
Absorbed dose--The energy imparted by ionizing radiation
per unit mass of irradiated material. The units of absorbed dose are the rad
and the gray (Gy).
(2)
Accelerator-produced radioactive material--Any material
made radioactive by exposing it to the radiation from a particle accelerator.
(3)
Activity--The rate of disintegration (transformation) or
decay of radioactive material. The units of activity are the curie (Ci) and
the becquerel (Bq).
(4)
Adult--An individual 18 or more years of age.
(5)
Agreement state--Any state with which the United States
Nuclear Regulatory Commission (NRC) or the Atomic Energy Commission has entered
into an effective agreement under the Atomic Energy Act of 1954, §274b,
as amended through October 24, 1992 (Public Law 102-486).
(6)
Airborne radioactive material--Any radioactive material
dispersed in the air in the form of dusts, fumes, particulates, mists, vapors,
or gases.
(7)
Airborne radioactivity area--A room, enclosure, or area
in which airborne radioactive materials, composed wholly or partly of licensed
material, exist in concentrations:
(A)
in excess of the derived air concentrations (DACs) specified
in §336.359, Appendix B, Table I, Column 1, of this title (relating to
Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides
for Occupational Exposure; Effluent Concentrations; Concentrations for Release
to Sanitary Sewerage); or
(B)
to a degree that an individual present in the area without
respiratory protective equipment could exceed, during the hours an individual
is present in a week, an intake of 0.6% of the ALI or 12 DAC-hours.
(8)
Air-purifying respirator--A respirator with an air-purifying
filter, cartridge, or canister that removes specific air contaminants by passing
ambient air through the air-purifying element.
(9)
Annual limit on intake (ALI)--The derived limit for the
amount of radioactive material taken into the body of an adult worker by inhalation
or ingestion in a year. ALI is the smaller value of intake of a given radionuclide
in a year by the "reference man" that would result in a committed effective
dose equivalent of 5 rems (0.05 sievert) or a committed dose equivalent of
50 rems (0.5 sievert) to any individual organ or tissue. ALI values for intake
by ingestion and by inhalation of selected radionuclides are given in Table
I, Columns 1 and 2, of §336.359, Appendix B, of this title.
(10)
As low as is reasonably achievable (ALARA)--Making every
reasonable effort to maintain exposures to radiation as far below the dose
limits in this chapter as is practical, consistent with the purpose for which
the licensed activity is undertaken, taking into account the state of technology,
the economics of improvements in relation to the state of technology, the
economics of improvements in relation to benefits to the public health and
safety, and other societal and socioeconomic considerations, and in relation
to utilization of ionizing radiation and licensed radioactive materials in
the public interest.
(11)
Assigned protection factor (APF)--The expected workplace
level of respiratory protection that would be provided by a properly functioning
respirator or a class of respirators to properly fitted and trained users.
Operationally, the inhaled concentration can be estimated by dividing the
ambient airborne concentration by the APF.
(12)
Atmosphere-supplying respirator--A respirator that supplies
the respirator user with breathing air from a source independent of the ambient
atmosphere, and includes supplied-air respirators (SARs) and self-contained
breathing apparatus (SCBA) units.
(13)
Background radiation--Radiation from cosmic sources; non-technologically
enhanced naturally-occurring radioactive material, including radon (except
as a decay product of source or special nuclear material) and global fallout
as it exists in the environment from the testing of nuclear explosive devices
or from past nuclear accidents such as Chernobyl that contribute to background
radiation and are not under the control of the licensee. "Background radiation"
does not include radiation from radioactive materials regulated by the commission,
Texas Department of Health, NRC, or an Agreement State.
(14)
Becquerel (Bq)--See §336.4 of this title (relating
to Units of Radioactivity).
(15)
Bioassay--The determination of kinds, quantities, or concentrations,
and, in some cases, the locations of radioactive material in the human body,
whether by direct measurement (in vivo counting) or by analysis and evaluation
of materials excreted or removed from the human body. For purposes of the
rules in this chapter, "radiobioassay" is an equivalent term.
(16)
Byproduct material--
(A)
A radioactive material, other than special nuclear material,
that is produced in or made radioactive by exposure to radiation incident
to the process of producing or using special nuclear material; or
(B)
The tailings or wastes produced by or resulting from the
extraction or concentration of uranium or thorium from ore processed primarily
for its source material content, including discrete surface wastes resulting
from uranium solution extraction processes, and other tailings having similar
radiological characteristics. Underground ore bodies depleted by these solution
extraction processes do not constitute "byproduct material" within this definition.
(17)
CFR--Code of Federal Regulations.
(18)
Class--A classification scheme for inhaled material according
to its rate of clearance from the pulmonary region of the lung. Materials
are classified as D, W, or Y, which applies to a range of clearance half-times:
for Class D (Days) of less than ten days, for Class W (Weeks) from 10 to 100
days, and for Class Y (Years) of greater than 100 days. For purposes of the
rules in this chapter, "lung class" and "inhalation class" are equivalent
terms.
(19)
Collective dose--The sum of the individual doses received
in a given period of time by a specified population from exposure to a specified
source of radiation.
(20)
Committed dose equivalent (H
T,50
) (CDE)--The dose equivalent to organs or tissues of reference (T)
that will be received from an intake of radioactive material by an individual
during the 50-year period following the intake.
(21)
Committed effective dose equivalent (H
E,50
) (CEDE)--The sum of the products of the weighting factors applicable
to each of the body organs or tissues that are irradiated and the committed
dose equivalent to each of these organs or tissues.
(22)
Compact--The Texas Low-Level Radioactive Waste Disposal
Compact established under Texas Health and Safety Code, §403.006 and
Texas Low-Level Radioactive Waste Disposal Compact Consent Act, Public Law
Number 105 - 236 (1998).
(23)
Compact waste--Low-level radioactive waste that:
(A)
is generated in a host state or a party state; or
(B)
is not generated in a host state or a party state, but
has been approved for importation to this state by the compact commission
under §3.05 of the compact established under Texas Health and Safety
Code, §403.006.
(24)
Compact waste disposal facility--The low-level radioactive
waste land disposal facility licensed by the commission under Subchapter H
of this chapter (relating to Licensing Requirements for Near-Surface Land
Disposal of Low-Level Radioactive Waste) for the disposal of compact waste.
(25)
Constraint (dose constraint)--A value above which specified
licensee actions are required.
(26)
Critical group--The group of individuals reasonably expected
to receive the greatest exposure to residual radioactivity for any applicable
set of circumstances.
(27)
Curie (Ci)--See §336.4 of this title.
(28)
Declared pregnant woman--A woman who has voluntarily informed
the licensee, in writing, of her pregnancy and the estimated date of conception.
The declaration remains in effect until the declared pregnant woman withdraws
the declaration in writing or is no longer pregnant.
(29)
Decommission--To remove (as a facility) safely from service
and reduce residual radioactivity to a level that permits:
(A)
release of the property for unrestricted use and termination
of license; or
(B)
release of the property under restricted conditions and
termination of the license.
(30)
Deep-dose equivalent (H
d
)
(which applies to external whole-body exposure)--The dose equivalent at a
tissue depth of one centimeter (1,000 milligrams/square centimeter).
(31)
Demand respirator--An atmosphere-supplying respirator
that admits breathing air to the facepiece only when a negative pressure is
created inside the facepiece by inhalation.
(32)
Depleted uranium--The source material uranium in which
the isotope uranium-235 is less than 0.711%, by weight, of the total uranium
present. Depleted uranium does not include special nuclear material.
(33)
Derived air concentration (DAC)--The concentration of
a given radionuclide in air which, if breathed by the "reference man" for
a working year of 2,000 hours under conditions of light work (inhalation
rate of 1.2 cubic meters of air/hour), results in an intake of one ALI. DAC
values are given in Table I, Column 3, of §336.359, Appendix B, of this
title.
(34)
Derived air concentration-hour (DAC-hour)--The product
of the concentration of radioactive material in air (expressed as a fraction
or multiple of the derived air concentration for each radionuclide) and the
time of exposure to that radionuclide, in hours. A licensee shall take 2,000
DAC-hours to represent one ALI, equivalent to a committed effective dose equivalent
of 5 rems (0.05 sievert).
(35)
Disposal--With regard to low-level radioactive waste,
the isolation or removal of low-level radioactive waste from mankind and mankind's
environment without intent to retrieve that low-level radioactive waste later.
(36)
Disposable respirator--A respirator for which maintenance
is not intended and that is designed to be discarded after excessive breathing
resistance, sorbent exhaustion, physical damage, or end-of-service-life renders
it unsuitable for use. Examples of this type of respirator are a disposable
half-mask respirator or a disposable escape-only self-contained breathing
apparatus (SCBA).
(37)
Distinguishable from background--The detectable concentration
of a radionuclide is statistically different from the background concentration
of that radionuclide in the vicinity of the site or, in the case of structures,
in similar materials using adequate measurement technology, survey, and statistical
techniques.
(38)
Dose--A generic term that means absorbed dose, dose equivalent,
effective dose equivalent, committed dose equivalent, committed effective
dose equivalent, total organ dose equivalent, or total effective dose equivalent.
For purposes of the rules in this chapter, "radiation dose" is an equivalent
term.
(39)
Dose equivalent (H
T
)--The
product of the absorbed dose in tissue, quality factor, and all other necessary
modifying factors at the location of interest. The units of dose equivalent
are the rem and sievert (Sv).
(40)
Dose limits--The permissible upper bounds of radiation
doses established in accordance with the rules in this chapter. For purposes
of the rules in this chapter, "limits" is an equivalent term.
(41)
Dosimetry processor--An individual or organization that
processes and evaluates individual monitoring devices in order to determine
the radiation dose delivered to the monitoring devices.
(42)
Effective dose equivalent (H
E
)--The
sum of the products of the dose equivalent to each organ or tissue (H
(43)
Embryo/fetus--The developing human organism from conception
until the time of birth.
(44)
Entrance or access point--Any opening through which an
individual or extremity of an individual could gain access to radiation areas
or to licensed radioactive materials. This includes portals of sufficient
size to permit human access, irrespective of their intended use.
(45)
Exposure--Being exposed to ionizing radiation or to radioactive
material.
(46)
Exposure rate--The exposure per unit of time.
(47)
External dose--That portion of the dose equivalent received
from any source of radiation outside the body.
(48)
Extremity--Hand, elbow, arm below the elbow, foot, knee,
and leg below the knee. The arm above the elbow and the leg above the knee
are considered part of the whole body.
(49)
Federal facility waste--Low-level radioactive waste that
is the responsibility of the federal government under the Low-Level Radioactive
Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments
Act of 1985 (42 United States Code, §2021b - 2021j). Excluded from this
definition is low-level radioactive waste that is classified as greater than
Class C in §336.362 of this title (relating to Appendix E. Classification
and Characteristics of Low-Level Radioactive Waste).
(50)
Federal facility waste disposal facility--A low-level
radioactive waste land disposal facility for the disposal of federal facility
waste licensed under Subchapters H and J of this chapter.
(51)
Filtering facepiece (dust mask)--A negative pressure particulate
respirator with a filter as an integral part of the facepiece or with the
entire facepiece composed of the filtering medium, not equipped with elastomeric
sealing surfaces and adjustable straps.
(52)
Fit factor--A quantitative estimate of the fit of a particular
respirator to a specific individual, and typically estimates the ratio of
the concentration of a substance in ambient air to its concentration inside
the respirator when worn.
(53)
Fit test--The use of a protocol to qualitatively or quantitatively
evaluate the fit of a respirator on an individual.
(54)
General license--An authorization granted by an agency
under its rules which is effective without the filing of an application with
that agency or the issuance of a licensing document to the particular person.
(55)
Generally applicable environmental radiation standards--Standards
issued by the EPA under the authority of the Atomic Energy Act of 1954, as
amended through October 4, 1996, that impose limits on radiation exposures
or levels, or concentrations or quantities of radioactive material, in the
general environment outside the boundaries of locations under the control
of persons possessing or using radioactive material.
(56)
Gray (Gy)--See §336.3 of this title (relating to
Units of Radiation Exposure and Dose).
(57)
Hazardous waste--Hazardous waste as defined in §335.1
of this title (relating to Definitions).
(58)
Helmet--A rigid respiratory inlet covering that also provides
head protection against impact and penetration.
(59)
High radiation area--An area, accessible to individuals,
in which radiation levels from radiation sources external to the body could
result in an individual receiving a dose equivalent in excess of 0.1 rem
(1 millisievert) in one hour at 30 centimeters from the radiation source or
30 centimeters from any surface that the radiation penetrates.
(60)
Hood--A respiratory inlet covering that completely covers
the head and neck and may also cover portions of the shoulders and torso.
(61)
Host state--A party state in which a compact facility
is located or is being developed. The State of Texas is the host state under
the Texas Low-Level Radioactive Waste Disposal Compact, §2.01, established
under Texas Health and Safety Code, §403.006.
(62)
Individual--Any human being.
(63)
Individual monitoring--The assessment of:
(A)
dose equivalent by the use of individual monitoring devices;
or
(B)
committed effective dose equivalent by bioassay or by determination
of the time-weighted air concentrations to which an individual has been exposed,
that is, DAC-hours; or
(C)
dose equivalent by the use of survey data.
(64)
Individual monitoring devices--Devices designed to be
worn by a single individual for the assessment of dose equivalent such as
film badges, thermoluminescence dosimeters (TLDs), pocket ionization chambers,
and personal ("lapel") air sampling devices.
(65)
Inhalation class--See "Class."
(66)
Inspection--An official examination and/or observation
including, but not limited to, records, tests, surveys, and monitoring to
determine compliance with the Texas Radiation Control Act (TRCA) and rules,
orders, and license conditions of the commission.
(67)
Internal dose--That portion of the dose equivalent received
from radioactive material taken into the body.
(68)
Land disposal facility--The land, buildings and structures,
and equipment which are intended to be used for the disposal of low-level
radioactive wastes into the subsurface of the land. For purposes of this chapter,
a "geologic repository" as defined in 10 CFR §60.2 as amended through
October 27, 1988 (53 FR 43421) (relating to Definitions - high-level radioactive
wastes in geologic repositories) is not considered a "land disposal facility."
(69)
Lens dose equivalent (LDE)--The external exposure of the
lens of the eye and is taken as the dose equivalent at a tissue depth of 0.3
centimeter (300 mg/cm
2
).
(70)
License--See "Specific license."
(71)
Licensed material--Radioactive material received, possessed,
used, processed, transferred, or disposed of under a license issued by the
commission.
(72)
Licensee--Any person who holds a license issued by the
commission in accordance with the Texas Health and Safety Code, Chapter 401
(Radioactive Materials and Other Sources of Radiation) and the rules in this
chapter. For purposes of the rules in this chapter, "radioactive material
licensee" is an equivalent term. Unless stated otherwise, "licensee" as used
in the rules of this chapter means the holder of a "specific license."
(73)
Licensing state--Any state with rules equivalent to the
Suggested State Regulations for Control of Radiation relating to, and having
an effective program for, the regulatory control of naturally occurring or
accelerator-produced radioactive material (NARM) and which has been designated
as such by the Conference of Radiation Control Program Directors, Inc.
(74)
Loose-fitting facepiece--A respiratory inlet covering
that is designed to form a partial seal with the face.
(75)
Lost or missing licensed radioactive material--Licensed
material whose location is unknown. This definition includes material that
has been shipped but has not reached its planned destination and whose location
cannot be readily traced in the transportation system.
(76)
Low-level radioactive waste--
(A)
Except as provided by subparagraph (B) of this paragraph,
low-level radioactive waste means radioactive material that:
(i)
is discarded or unwanted and is not exempt by a Texas Department
of Health rule adopted under the Texas Health and Safety Code, §401.106;
(ii)
is waste, as that term is defined by 10 CFR §61.2;
and
(iii)
is subject to:
(I)
concentration limits established under this chapter; and
(II)
disposal criteria established under this chapter.
(B)
Low-level radioactive waste does not include:
(i)
high-level radioactive waste defined by 10 CFR §60.2;
(ii)
spent nuclear fuel as defined by 10 CFR §72.3;
(iii)
transuranic waste as defined in this section;
(iv)
byproduct material as defined by paragraph (16)(B) of
this section;
(v)
naturally occurring radioactive material (NORM) waste;
or
(vi)
oil and gas NORM waste.
(C)
When used in this section, the references to 10 CFR sections
mean those CFR sections as they existed on September 1, 1999, as required
by Texas Health and Safety Code, §401.005.
(77)
Lung class--See "Class."
(78)
Member of the public--Any individual except when that
individual is receiving an occupational dose.
(79)
Minor--An individual less than 18 years of age.
(80)
Mixed waste--A combination of hazardous waste, as defined
in 30 TAC §335.1 of this title (relating to Definitions) and low-level
radioactive waste. The term includes compact waste and federal facility waste
containing hazardous waste.
(81)
Monitoring--The measurement of radiation levels, radioactive
material concentrations, surface area activities, or quantities of radioactive
material and the use of the results of these measurements to evaluate potential
exposures and doses. For purposes of the rules in this chapter, "radiation
monitoring" and "radiation protection monitoring" are equivalent terms.
(82)
Naturally occurring or accelerator-produced radioactive
material (NARM)--Any naturally occurring or accelerator-produced radioactive
material except source material or special nuclear material.
(83)
Naturally occurring radioactive material (NORM) waste--Solid,
liquid, or gaseous material or combination of materials, excluding source
material, special nuclear material, and byproduct material, that:
(A)
in its natural physical state spontaneously emits radiation;
(B)
is discarded or unwanted; and
(C)
is not exempt under rules of the Texas Department of Health
adopted under Texas Health and Safety Code, §401.106.
(84)
Near-surface disposal facility--A land disposal facility
in which low-level radioactive waste is disposed of in or within the upper
30 meters of the earth's surface.
(85)
Negative pressure respirator (tight fitting)--A respirator
in which the air pressure inside the facepiece is negative during inhalation
with respect to the ambient air pressure outside the respirator.
(86)
Nonstochastic effect--A health effect, the severity of
which varies with the dose and for which a threshold is believed to exist.
Radiation-induced cataract formation is an example of a nonstochastic effect.
For purposes of the rules in this chapter, "deterministic effect" is an equivalent
term.
(87)
Occupational dose--The dose received by an individual
in the course of employment in which the individual's assigned duties involve
exposure to radiation and/or to radioactive material from licensed and unlicensed
sources of radiation, whether in the possession of the licensee or other person.
Occupational dose does not include dose received from background radiation,
as a patient from medical practices, from voluntary participation in medical
research programs, or as a member of the public.
(88)
Oil and gas naturally occurring radioactive material (NORM)
waste--Naturally occurring radioactive material (NORM) waste that constitutes,
is contained in, or has contaminated oil and gas waste as that term is defined
in the Texas Natural Resources Code, §91.1011.
(89)
On-site--The same or geographically contiguous property
that may be divided by public or private rights-of-way, provided the entrance
and exit between the properties is at a cross-roads intersection, and access
is by crossing, as opposed to going along, the right-of-way. Noncontiguous
properties owned by the same person but connected by a right-of-way that the
property owner controls and to which the public does not have access, is also
considered on-site property.
(90)
Party state--Any state that has become a party to the
compact in accordance with Article VII of the Texas Low-Level Radioactive
Waste Disposal Compact, established under Texas Health and Safety Code, §403.006.
(91)
Perpetual care account--The radiation and perpetual care
account as defined in this section.
(92)
Personnel monitoring equipment--See "Individual monitoring
devices."
(93)
Planned special exposure--An infrequent exposure to radiation,
separate from and in addition to the annual occupational dose limits.
(94)
Positive pressure respirator--A respirator in which the
pressure inside the respiratory inlet covering exceeds the ambient air pressure
outside the respirator.
(95)
Powered air-purifying respirator (PAPR)--An air-purifying
respirator that uses a blower to force the ambient air through air-purifying
elements to the inlet covering.
(96)
Pressure demand respirator--A positive pressure atmosphere-supplying
respirator that admits breathing air to the facepiece when the positive pressure
is reduced inside the facepiece by inhalation.
(97)
Principal activities--Activities authorized by the license
which are essential to achieving the purpose(s) for which the license is issued
or amended. Storage during which no licensed material is accessed for use
or disposal and activities incidental to decontamination or decommissioning
are not principal activities.
(98)
Public dose--The dose received by a member of the public
from exposure to radiation and/or radioactive material released by a licensee,
or to any other source of radiation under the control of the licensee. It
does not include occupational dose or doses received from background radiation,
as a patient from medical practices, or from voluntary participation in medical
research programs.
(99)
Qualitative fit test (QLFT)--A pass/fail test to assess
the adequacy of respirator fit that relies on the individual's response to
the test agent.
(100)
Quality factor (Q)--The modifying factor listed in Table
I or II of §336.3 of this title that is used to derive dose equivalent
from absorbed dose.
(101)
Quantitative fit test (QNFT)--An assessment of the adequacy
of respirator fit by numerically measuring the amount of leakage into the
respirator.
(102)
Quarter (Calendar quarter)--A period of time equal to
one-fourth of the year observed by the licensee (approximately 13 consecutive
weeks), providing that the beginning of the first quarter in a year coincides
with the starting date of the year and that no day is omitted or duplicated
in consecutive quarters.
(103)
Rad--See §336.3 of this title.
(104)
Radiation--Alpha particles, beta particles, gamma rays,
x-rays, neutrons, high-speed electrons, high-speed protons, and other particles
capable of producing ions. For purposes of the rules in this chapter, "ionizing
radiation" is an equivalent term. Radiation, as used in this chapter, does
not include non-ionizing radiation, such as radio- or microwaves or visible,
infrared, or ultraviolet light.
(105)
Radiation and Perpetual Care Account--An account in the
general revenue fund established for the purposes specified in the Texas Health
and Safety Code, §401.305.
(106)
Radiation area--Any area, accessible to individuals,
in which radiation levels could result in an individual receiving a dose equivalent
in excess of 0.005 rem (0.05 millisievert) in one hour at 30 centimeters from
the source of radiation or from any surface that the radiation penetrates.
(107)
Radiation machine--Any device capable of producing ionizing
radiation except those devices with radioactive material as the only source
of radiation.
(108)
Radioactive material--A naturally-occurring or artificially-produced
solid, liquid, or gas that emits radiation spontaneously.
(109)
Radioactive substance--Includes byproduct material, radioactive
material, low-level radioactive waste, source material, special nuclear material,
source of radiation, and NORM waste, excluding oil and gas NORM waste.
(110)
Radioactivity--The disintegration of unstable atomic
nuclei with the emission of radiation.
(111)
Radiobioassay--See "Bioassay."
(112)
Reference man--A hypothetical aggregation of human physical
and physiological characteristics determined by international consensus. These
characteristics shall be used by researchers and public health workers to
standardize results of experiments and to relate biological insult to a common
base. A description of "reference man" is contained in the International Commission
on Radiological Protection report, ICRP Publication 23, "Report of the Task
Group on Reference Man."
(113)
Rem--See §336.3 of this title.
(114)
Residual radioactivity--Radioactivity in structures,
materials, soils, groundwater, and other media at a site resulting from activities
under the licensee's control. This includes radioactivity from all licensed
and unlicensed sources used by the licensee, but excludes background radiation.
It also includes radioactive materials remaining at the site as a result of
routine or accidental releases of radioactive material at the site and previous
burials at the site, even if those burials were made in accordance with the
provisions of 10 CFR Part 20.
(115)
Respiratory protection equipment--An apparatus, such
as a respirator, used to reduce an individual's intake of airborne radioactive
materials. For purposes of the rules in this chapter, "respiratory protective
device" is an equivalent term.
(116)
Restricted area--An area, access to which is limited
by the licensee for the purpose of protecting individuals against undue risks
from exposure to radiation and radioactive materials. Restricted area does
not include areas used as residential quarters, but separate rooms in a residential
building shall be set apart as a restricted area.
(117)
Roentgen (R)--See §336.3 of this title.
(118)
Sanitary sewerage--A system of public sewers for carrying
off waste water and refuse, but excluding sewage treatment facilities, septic
tanks, and leach fields owned or operated by the licensee.
(119)
Sealed source--Radioactive material that is permanently
bonded or fixed in a capsule or matrix designed to prevent release and dispersal
of the radioactive material under the most severe conditions that are likely
to be encountered in normal use and handling.
(120)
Self-contained breathing apparatus (SCBA)--An atmosphere-supplying
respirator for which the breathing air source is designed to be carried by
the user.
(121)
Shallow-dose equivalent (H
s
)
(which applies to the external exposure of the skin of the whole body or the
skin of an extremity)--The dose equivalent at a tissue depth of 0.007 centimeter
(seven milligrams/square centimeter).
(122)
SI--The abbreviation for the International System of
Units.
(123)
Sievert (Sv)--See §336.3 of this title.
(124)
Site boundary--That line beyond which the land or property
is not owned, leased, or otherwise controlled by the licensee.
(125)
Source material--
(A)
Uranium or thorium, or any combination thereof, in any
physical or chemical form; or
(B)
ores that contain, by weight, 0.05% or more of uranium,
thorium, or any combination thereof. Source material does not include special
nuclear material.
(126)
Special form radioactive material--Radioactive material
which is either a single solid piece or is contained in a sealed capsule that
can be opened only by destroying the capsule and which has at least one dimension
not less than five millimeters and which satisfies the test requirements of
10 CFR §71.75 as amended through September 28, 1995 (60 FR 50264) (Transportation
of License Material).
(127)
Special nuclear material--
(A)
Plutonium, uranium-233, uranium enriched in the isotope
233 or in the isotope 235, and any other material that the NRC, under the
provisions of the Atomic Energy Act of 1954, §51, as amended through
November 2, 1994 (Public Law 103 - 437), determines to be special nuclear
material, but does not include source material; or
(B)
any material artificially enriched by any of the foregoing,
but does not include source material.
(128)
Special nuclear material in quantities not sufficient
to form a critical mass--Uranium enriched in the isotope 235 in quantities
not exceeding 350 grams of contained uranium-235; uranium-233 in quantities
not exceeding 200 grams; plutonium in quantities not exceeding 200 grams;
or any combination of these in accordance with the following formula: For
each kind of special nuclear material, determine the ratio between the quantity
of that special nuclear material and the quantity specified above for the
same kind of special nuclear material. The sum of such ratios for all of the
kinds of special nuclear material in combination shall not exceed 1. For example,
the following quantities in combination would not exceed the limitation: (175
grams contained U-235/350 grams) + (50 grams U-233/200 grams) + (50 grams
Pu/200 grams) = 1.
(129)
Specific license--A licensing document issued by an agency
upon an application filed under its rules. For purposes of the rules in this
chapter, "radioactive material license" is an equivalent term. Unless stated
otherwise, "license" as used in this chapter means a "specific license."
(130)
State--The State of Texas.
(131)
Stochastic effect--A health effect that occurs randomly
and for which the probability of the effect occurring, rather than its severity,
is assumed to be a linear function of dose without threshold. Hereditary effects
and cancer incidence are examples of stochastic effects. For purposes of the
rules in this chapter, "probabilistic effect" is an equivalent term.
(132)
Supplied-air respirator (SAR) or airline respirator--An
atmosphere-supplying respirator for which the source of breathing air is not
designed to be carried by the user.
(133)
Survey--An evaluation of the radiological conditions
and potential hazards incident to the production, use, transfer, release,
disposal, and/or presence of radioactive materials or other sources of radiation.
When appropriate, this evaluation includes, but is not limited to, physical
examination of the location of radioactive material and measurements or calculations
of levels of radiation or concentrations or quantities of radioactive material
present.
(134)
Termination--As applied to a license, a release by the
commission of the obligations and authorizations of the licensee under the
terms of the license. It does not relieve a person of duties and responsibilities
imposed by law.
(135)
Tight-fitting facepiece--A respiratory inlet covering
that forms a complete seal with the face.
(136)
Total effective dose equivalent (TEDE)--The sum of the
deep-dose equivalent for external exposures and the committed effective dose
equivalent for internal exposures.
(137)
Total organ dose equivalent (TODE)--The sum of the deep-dose
equivalent and the committed dose equivalent to the organ receiving the highest
dose as described in §336.346(a)(6) of this title (relating to Records
of Individual Monitoring Results).
(138)
Transuranic waste--For the purposes of this chapter,
wastes containing alpha emitting transuranic radionuclides with a half-life
greater than five years at concentrations greater than 100 nanocuries/gram.
(139)
Type A quantity (for packaging)--A quantity of radioactive
material, the aggregate radioactivity of which does not exceed A
1
for special form radioactive material or A
2
for normal form radioactive material, where A
1
and A
2
are given in or shall be determined
by procedures in Appendix A to 10 CFR Part 71 as amended through September
28, 1995 (60 FR 50264) (Packaging and Transportation of Radioactive Material).
(140)
Type B quantity (for packaging)--A quantity of radioactive
material greater than a Type A quantity.
(141)
Unrefined and unprocessed ore--Ore in its natural form
before any processing, such as grinding, roasting, beneficiating, or refining.
(142)
Unrestricted area--Any area that is not a restricted
area.
(143)
User seal check (fit check)--An action conducted by the
respirator user to determine if the respirator is properly seated to the face.
Examples include negative pressure check, positive pressure check, irritant
smoke check, or isoamyl acetate check.
(144)
Very high radiation area--An area, accessible to individuals,
in which radiation levels from radiation sources external to the body could
result in an individual receiving an absorbed dose in excess of 500 rads (five
grays) in one hour at one meter from a source of radiation or one meter from
any surface that the radiation penetrates.
(145)
Violation--An infringement of any provision of the Texas
Radiation Control Act (TRCA) or of any rule, order, or license condition of
the commission issued under the TRCA or this chapter.
(146)
Week--Seven consecutive days starting on Sunday.
(147)
Weighting factor (w
T
) for
an organ or tissue (T)--The proportion of the risk of stochastic effects resulting
from irradiation of that organ or tissue to the total risk of stochastic effects
when the whole body is irradiated uniformly. For calculating the effective
dose equivalent, the values of wT are:
(148) Whole body--For purposes of external exposure, head,
trunk including male gonads, arms above the elbow, or legs above the knee.
(149) Worker--An individual engaged in activities under a license
issued by the commission and controlled by a licensee, but does not include
the licensee.
(150) Working level (WL)--Any combination of short-lived radon
daughters in one liter of air that will result in the ultimate emission of
1.3 x 105 million electron volts (MeV) of potential
alpha particle energy. The short-lived radon daughters are: for radon-222:
polonium-218, lead-214, bismuth-214, and polonium-214; and for radon-220:
polonium-216, lead-212, bismuth-212, and polonium-212.
(151) Working level month (WLM)--An exposure to one working
level for 170 hours (2,000 working hours per year divided by 12 months per
year is approximately equal to 170 hours per month).
(152)
Year--The period of time beginning in January used to
determine compliance with the provisions of the rules in this chapter. The
licensee shall change the starting date of the year used to determine compliance
by the licensee provided that the change is made at the beginning of the year
and that no day is omitted or duplicated in consecutive years.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308734
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
30 TAC §§336.103, 336.111, 336.113
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendments are also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation, also known as the Texas Radiation Control
Act; §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
§336.103.Schedule of Fees for Subchapter H Licenses.
(a)
An application for a low-level radioactive waste disposal
site license under Subchapter H of this chapter (relating to Licensing Requirements
for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall be accompanied
by a nonrefundable application processing fee of $500,000. If the commission's
costs in processing an application under Subchapter H of this chapter (relating
to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive
Waste) exceed the $500,000 application processing fee, the commission may
assess and collect additional fees from the applicant to recover the costs.
Recoverable costs include costs incurred by the commission for administrative
review, technical review, and hearings associated with the application.
(b)
An applicant shall submit an annual fee for the actual
costs incurred by the commission for hearings associated with an application
for a low-level radioactive waste disposal site under Subchapter H of this
chapter. The executive director shall send an invoice for the amount of the
costs incurred during the period September 1 through August 31 of each year.
Payment shall be made within 30 days following the date of the invoice.
(c)
A holder of a license for a low-level radioactive waste
disposal site issued under Subchapter H of this chapter shall submit an annual
license fee for the services received. This fee shall recover for the state
the actual expenses arising from the regulatory activities associated with
the license. This fee shall include reimbursement for the salary and other
expenses of the resident inspectors as provided by §336.743 of this title
(relating to Resident Inspector). The executive director shall send an invoice
for the amount of the costs incurred during the period September 1 through
August 31 of each year. Payment shall be made within 30 days following the
date of the invoice.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308735
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
30 TAC §§336.203, 336.207, 336.209, 336.211
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendments are also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation, also known as the Texas Radiation Control
Act; §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
§336.207.General Requirements for Issuance of a License.
An application may be approved if the commission determines that the
requirements set forth in the applicable subchapter of this chapter and Chapter
305, Subchapter C of this title (relating to Application for Permit) have
been met and that:
(1)
the applicant is qualified by training and experience to
conduct the proposed radioactive material disposal activities in accordance
with the rules in this chapter in such a manner as to protect and minimize
danger to the public health and safety and the environment;
(2)
the applicant's proposed equipment, facilities, and procedures
are adequate to protect and minimize danger to the public health and safety
and the environment;
(3)
the issuance of the license will not be inimical to public
health and safety nor have a long-term detrimental impact on the environment;
(4)
the applicant has acquired the title to and any interest
in land and buildings, including the surface and mineral estates, on which
the facility or facilities are to be located by either having acquired:
(A)
an undivided ownership of the buildings, surface estate,
and mineral estate in fee simple through purchase or completed condemnation;
or
(B)
an undivided ownership of the buildings and surface estate,
along with an exemption, granted by the commission in accordance with federal
law for use of a surface use agreement, in lieu of acquiring fee simple title
to the mineral estate; and
(5)
if applicable, the applicant has demonstrated financial
capability to conduct the proposed activity, including all costs associated
with decommissioning, decontamination, disposal, reclamation, and any long-term
care and surveillance.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308736
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
30 TAC §336.305, §336.363
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendments are also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation, also known as the Texas Radiation Control
Act; §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
§336.363.Appendix F. Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests.
(a)
Manifest requirements for shipments received at licensed
land disposal facilities.
(1)
Manifest forms required.
(A)
The operator of a licensed low-level radioactive waste
land disposal facility shall not receive for disposal any waste which does
not have a completed manifest which reflects the information requested on
applicable United States Nuclear Regulatory Commission (NRC) Forms 540 (Uniform
Low-Level Radioactive Waste Manifest (Shipping Paper)) and 541 (Uniform Low-Level
Radioactive Waste Manifest (Container and Waste Description)) and, if necessary,
on an applicable NRC Form 542 (Uniform Low-Level Radioactive Waste Manifest
(Manifest Index and Regional Compact Tabulation)), as those forms and requirements
are prescribed in 10 Code of Federal Regulations (CFR) §61.80, as amended
(relating to Licensing Requirements for Land Disposal of Radioactive Waste)
and 10 CFR §20.2006, as amended (relating to Standards for Protection
Against Radiation). The NRC Forms 540 and 540A must be completed and must
physically accompany the waste shipment received at the licensed land disposal
facility. Upon agreement between the shipper and the licensed land disposal
facility, NRC Forms 541 and 541A and 542 and 542A may be completed, transmitted,
and stored in electronic media with the capability for producing legible,
accurate, and complete records on the respective forms.
(B)
Copies of manifests required by this appendix may be legible
carbon copies, photocopies, or computer printouts that reproduce the data
in the format of the uniform manifest.
(C)
This appendix includes information requirements of the
United States Department of Transportation (DOT), as codified in 49 CFR Part
172. Specific information on hazardous, medical, or other waste that is required
to meet EPA rules, as codified in 40 CFR Parts 259, 261, or elsewhere, is
not addressed in this appendix and must be provided on the required EPA forms.
However, the required EPA forms must accompany the Uniform Low-Level Radioactive
Waste Manifest required by this appendix.
(2)
Definitions. Terms used in this appendix have the definitions
set forth as follows:
(A)
Computer-readable medium--Means that the regulatory agency's
computer can transfer the information from the medium into its memory.
(B)
NRC Forms 540, 540A, 541, 541A, 542, and 542A--Official
NRC forms referenced in this appendix, as those forms and requirements are
prescribed in 10 CFR §61.80, as amended and 10 CFR §20.2006, as
amended. Forms received by the licensed land disposal facility need not be
the originals of these forms provided that any substitute forms are equivalent
to the original documentation in respect to content, clarity, size, and location
of information. Upon agreement between the shipper and the licensed land disposal
facility, NRC Forms 541 (and 541A) and 542 (and 542A) may be completed, transmitted,
and stored in electronic media. The electronic media must have the capability
for producing legible, accurate, and complete records in the format of the
uniform manifest.
(C)
Shipper--For purposes of the rules in this appendix, the
waste generator, waste collector, or waste processor who offers low-level
radioactive waste for transportation and consigns the waste to a licensed
land disposal facility operator.
(D)
Shipping paper--NRC Form 540 and, if required, NRC Form
540A, as those forms and requirements are prescribed in 10 CFR §61.80,
as amended, which include the information required by DOT in 49 CFR Part 172.
(E)
Uniform Low-Level Radioactive Waste Manifest or uniform
manifest--The combination of NRC Forms 540, 541, and, if necessary, 542, and
their respective continuation sheets (Forms 540A, 541A, and 542A) as needed,
or equivalent, as those forms and requirements are prescribed in 10 CFR §61.80,
as amended.
(3)
Information requirements. The uniform manifest for waste
received for disposal at a licensed land disposal facility shall include all
information required by instructions accompanying the forms and by 10 CFR §61.80,
as amended. This information shall include, as appropriate, general information,
shipment information, disposal container and waste information, uncontainerized
waste information, multi-generator disposal container information, and certifications.
(b)
Control and tracking.
(1)
The licensed land disposal facility operator shall acknowledge
receipt of the waste within one week of receipt by returning, as a minimum,
a signed copy of NRC Form 540 to the shipper, as this form and requirements
are prescribed in 10 CFR §61.80, as amended and 10 CFR §20.2006
as amended through March 27, 1995 (60 FR 15663). The shipper to be notified
is that who last possessed the waste and transferred the waste to the operator.
If a discrepancy exists between materials listed on the uniform manifest and
materials received, copies or electronic transfer of the affected forms must
be returned indicating the discrepancy.
(2)
The land disposal facility operator shall maintain copies
of all completed manifests and electronically store the information required
by §336.740(i) of this title (relating to Maintenance of Records and
Reports) until the commission terminates the license.
(3)
The land disposal facility operator shall notify the shipper,
the Texas Department of Health, and the executive director when any shipment,
or part of a shipment, has not arrived within 60 days after receipt of an
advance manifest, unless notified by the shipper that the shipment has been
canceled.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308737
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
30 TAC §336.501
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The amendment is also adopted under
Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation, also known as the Texas Radiation Control
Act; §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308738
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
30 TAC §§336.701 - 336.705, 336.707 - 336.709, 336.711, 336.716 - 336.718, 336.720, 336.723, 336.728 - 336.730, 336.733, 336.735 - 336.738, 336.743
STATUTORY AUTHORITY
The amendments and new sections are adopted under Texas Water Code, §5.103,
concerning Rules, and §5.105, concerning General Policy, which authorize
the commission to adopt rules necessary to carry out its powers and duties
under the Texas Water Code and other laws of the state. The amendments and
new sections are also adopted under Texas Health and Safety Code, Chapter
401, concerning Radioactive Materials and Other Sources of Radiation, also
known as the Texas Radiation Control Act; §401.011, concerning Radiation
Control Agency, which authorizes the commission to regulate and license the
disposal of radioactive substances; §401.051, concerning Adoption of
Rules and Guidelines, which authorizes the commission to adopt rules and guidelines
relating to control of sources of radiation; §401.103, concerning Rules
and Guidelines for Licensing and Registration, which authorizes the commission
to adopt rules and guidelines that provide for licensing and registration
for the control of sources of radiation; §401.104, concerning Licensing
and Registration rules, which requires the commission to provide rules for
licensing for the disposal of radioactive material; §401.201, concerning
Regulation of Low-Level Radioactive Waste Disposal, which authorizes the commission
to regulate the disposal of LLRW; and §401.412, concerning Commission
Licensing Authority, which authorizes the commission to issue licenses for
the disposal of radioactive substances.
§336.701.Scope and General Provisions.
(a)
This subchapter establishes the procedures, criteria, and
terms and conditions upon which the commission issues a license for the near-surface
land disposal of low-level radioactive wastes and accelerator-produced radioactive
material received from other persons. The rules in this subchapter apply to
disposal of low-level radioactive waste and accelerator-produced radioactive
material as defined in §336.2 of this title (relating to Definitions).
For the purpose of this subchapter, the term "low-level radioactive waste"
includes accelerator-produced radioactive material. If there is a conflict
between the rules of the commission and the rules of this subchapter, the
rules of this subchapter shall prevail. 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. A licensee under this
subchapter shall conduct processing of low-level radioactive waste received
for disposal at the licensed site, incidental to the disposal of that waste,
in accordance with provisions of the commission license which authorizes the
disposal.
(b)
A licensee authorized to dispose of low-level radioactive
waste under the rules in this subchapter shall not accept for disposal:
(1)
high-level radioactive waste as defined in 10 Code of Federal
Regulations (CFR) §60.2 as amended through October 27, 1988 (53 FR 43421)
(Definitions - high-level radioactive wastes in geologic repositories);
(2)
byproduct material as defined in §336.2(13)(B) of
this title;
(3)
spent or irradiated nuclear fuel;
(4)
waste that is not generally acceptable for near-surface
disposal as specified in §336.362 of this title (relating to Appendix
E. Classification and Characteristics of Low-Level Radioactive Waste); or
(5)
waste that exceeds Class C limitations as specified in §336.362
of this title.
(c)
In addition to the requirements of this subchapter, all
licensees, unless otherwise specified, are subject to the requirements of
Subchapters A - E and G of this chapter (relating to General Provisions; Radioactive
Substance Fees; General Disposal Requirements; Standards for Protection Against
Radiation; Notices, Instructions, and Reports to Workers and Inspections;
and Decommissioning Standards). For Subchapter H licensees, the decommissioning
and license termination criteria in Subchapter G of this chapter applies only
to the ancillary surface facilities.
(d)
On-site disposal of low-level radioactive waste at any
site authorized under §336.501(b) of this title (relating to Scope and
General Provisions), is not subject to licensing under this subchapter.
(e)
Shipment and transportation of low-level radioactive waste
to a licensed land disposal facility in Texas is subject to applicable rules
of the Texas Department of Health, United States Department of Transportation,
and United States Nuclear Regulatory Commission. Each shipment of low-level
radioactive waste to a licensed land disposal facility in Texas is subject
to inspection by the Texas Department of Health before shipment.
§336.702.Definitions.
Terms used in this subchapter are defined in §336.2 of this title
(relating to Definitions). Additional terms used in this subchapter have the
following definitions.
(1)
Active maintenance--Any significant remedial activity needed
during the period of institutional control to maintain a reasonable assurance
that the performance objectives in §336.724 of this title (relating
to Protection of the General Population from Releases of Radioactivity) and §336.725
of this title (relating to Protection of Individuals from Inadvertent Intrusion)
are met. Active maintenance includes ongoing activities such as the pumping
and treatment of water from a disposal unit or one-time measures such as replacement
of a disposal unit cover. Active maintenance does not include custodial activities
such as repair of fencing, repair or replacement of monitoring equipment,
revegetation, minor additions to soil cover, minor repair of disposal unit
covers, and general disposal site upkeep such as mowing grass.
(2)
Buffer zone--A portion of the disposal site that is controlled
by the licensee and that lies under the disposal units and between the disposal
units and the boundary of the disposal site.
(3)
Chelating agent--A chemical or complex which causes an
ion, usually a metal, to be joined in the same molecule by relatively stable
bonding, e.g., amine polycarboxylic acids (e.g., EDTA, DTPA), hydroxycarboxylic
acids, and polycarboxylic acids (e.g., citric acid, carbolic acid, and gluconic
acid).
(4)
Commencement of major construction--Any clearing of land,
excavation, or other substantial action that would adversely affect the environment
of a land disposal facility. The term does not mean disposal site exploration,
necessary roads for disposal site exploration, borings to determine foundation
conditions, or other preconstruction monitoring or testing to establish background
information related to the suitability of the disposal site or the protection
of environmental values.
(5)
Containerized Class A waste--Class A low-level radioactive
waste which presents a hazard because of high radiation levels. 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 (1 millisievert)
in one hour at 30 centimeters from any surface of the container that the radiation
penetrates.
(6)
Custodial agency--A government agency designated to act
on behalf of the government owner of the disposal site.
(7)
Disposal site--That portion of a land disposal facility
which is used for disposal of waste. It consists of disposal units and a buffer
zone.
(8)
Disposal unit--A discrete portion of the disposal site
into which waste is placed for disposal. For near-surface disposal, the disposal
unit is usually a trench.
(9)
Engineered barrier--A man-made structure or device that
is intended to improve the land disposal facility's ability to meet the performance
objectives in this subchapter.
(10)
Explosive material--Any chemical compound, mixture, or
device which produces a substantial instantaneous release of gas and heat
spontaneously or by contact with sparks or flame.
(11)
Government agency--Any executive department, commission,
independent establishment, or corporation, wholly or partly owned by the United
States of America or the State of Texas and which is an instrumentality of
the United States or the State of Texas; or any board, bureau, division, service,
office, officer, authority, administration, or other establishment in the
executive branch of the government.
(12)
Hydrogeologic unit--Any soil or rock unit or zone which
by virtue of its porosity or permeability, or lack thereof, has a distinct
influence on the storage or movement of groundwater.
(13)
Inadvertent intruder--A person who might occupy the disposal
site after closure and engage in normal activities, such as agriculture, dwelling
construction, or other pursuits in which the person might be unknowingly exposed
to radiation from the waste.
(14)
Intruder barrier--A sufficient depth of cover over the
waste that inhibits contact with waste and helps to ensure that radiation
exposures to an inadvertent intruder meet the performance objectives set forth
in this subchapter, or engineered structures that provide equivalent protection
to the inadvertent intruder.
(15)
Monitoring--Observing and making measurements to provide
data to evaluate the performance and characteristics of the disposal site.
(16)
Pyrophoric material--
(A)
Any liquid that ignites spontaneously in dry or moist air
at or below 130 degrees Fahrenheit (54.5 degrees Celsius); or
(B)
Any solid material, other than one classed as an explosive,
which under normal conditions is liable to cause fires through friction, retained
heat from manufacturing or processing, or which can be ignited readily and
when ignited burns so vigorously and persistently as to create a serious transportation,
handling, or disposal hazard. Included are spontaneously combustible and water-reactive
materials.
(17)
Reconnaissance-level information--Any information or analysis
that can be retrieved or generated without the performance of new comprehensive
site-specific investigations. Reconnaissance-level information includes, but
is not limited to, relevant published scientific literature; drilling records
required by the commission or other state agencies, such as the Railroad Commission
of Texas and the Texas Natural Resources Information System; and reports of
governmental agencies.
(18)
Site--The contiguous land area where any land disposal
facility or activity is physically located or conducted including adjacent
land used in connection with the land disposal facility or activity, and includes
soils and groundwater contaminated by radioactive material. Activity includes
the receipt, storage, processing, or handling of radioactive material for
purposes of disposal at a land disposal facility.
(19)
Site closure and stabilization--Those actions that are
taken upon completion of operations that prepare the disposal site for custodial
care and that assure that the disposal site remain stable and not need ongoing
active maintenance.
(20)
Stability--Structural stability.
(21)
Surveillance--Observation of the disposal site for purposes
of visual detection of need for maintenance, custodial care, evidence of intrusion,
and compliance with other license and regulatory requirements.
(22)
Waste--See "low-level radioactive waste" as defined in §336.2
of this title.
§336.703.Concepts.
The concepts and requirements provided in 10 Code of Federal Regulations §61.7,
as amended, guide the application of rules in this subchapter.
§336.707.Specific Technical Information.
The specific technical information in the application shall include
the following information needed for demonstration that the performance objectives
and the applicable technical requirements of this subchapter will be met:
(1)
a description of the principal design criteria and their
relationship to the performance objectives;
(2)
a description of the design basis natural events or phenomena
and their relationship to the principal design criteria;
(3)
a description of codes and standards which the applicant
has applied to the design and which will apply to construction of the land
disposal facilities;
(4)
a description of the design features of the land disposal
facility and the disposal units. For near-surface disposal, the description
shall include those design features related to infiltration of water; integrity
of covers for disposal units; structural stability of backfill, wastes, and
covers; contact of wastes with standing water; disposal site drainage; disposal
site closure and stabilization; elimination to the extent practicable of long-term
disposal site maintenance; inadvertent intrusion; occupational exposures;
disposal site monitoring; and adequacy of the size of the buffer zone for
monitoring and potential mitigative measures;
(5)
a description of the construction and operation of the
land disposal facility. The description shall include, as a minimum, the methods
of construction of disposal units; waste emplacement; the procedures for and
areas of waste segregation; accurate drawings and descriptions of on-site
buildings including, but not limited to, construction, foundation details,
ventilation, plumbing and fire suppression systems, and proximity to creeks
or culverts; types of intruder barriers; onsite traffic and drainage systems;
physical security system; survey control program; methods and areas of waste
storage; facilities for and methods of processing waste including improperly
packaged shipments; and methods to control surface water and groundwater access
to the wastes. The description shall also include the methods to be employed
in the handling and disposal of wastes containing chelating agents or other
nonradiological substances that might affect meeting the performance objectives
of this subchapter;
(6)
a description of the types, chemical and physical forms,
quantities, classification, and specifications of the radioactive material
proposed to be received, possessed, processed, and disposed of at the land
disposal facility. This description shall include any prior disposal containing
radioactive material at the site. This description shall include performance
criteria for form and packaging of the waste or radioactive material that
has been previously received and will be received;
(7)
a description of the quality assurance program, tailored
to disposal of low-level radioactive waste, developed and applied by the applicant
for the determination of natural disposal site characteristics and for quality
assurance during the design, construction, operation, and closure of the land
disposal facility and during the receipt, handling, and emplacement of waste;
(8)
a description of the radiation safety program for control
and monitoring of radioactive effluents to ensure compliance with the performance
objective in §336.724 of this title (relating to Protection of the General
Population from Releases of Radioactivity) and occupational radiation exposure
to ensure compliance with the requirements of Subchapter D of this chapter
(relating to Standards for Protection Against Radiation) and to control contamination
of personnel, vehicles, equipment, buildings, and the disposal site. Both
routine operations and accidents shall be addressed. The program description
shall include procedures, instrumentation, facilities, and equipment;
(9)
an Operating and Emergency Procedures Manual that shall
provide detailed procedures for receiving, handling, storing, processing,
and disposal of waste. Emergency procedures shall include a spill detection
and cleanup program for the site and associated transportation of waste;
(10)
a description of the administrative procedures that the
applicant must apply to control activities at the land disposal facility,
including hours of proposed operation; and
(11)
a description of the electronic recordkeeping system as
required in §336.740(i) of this title (relating to Maintenance of Records
and Reports).
§336.708.Environmental Information.
(a)
The application shall include site-specific environmental
information (or reconnaissance-level information when appropriate) which addresses
and quantifies to the extent practicable the following:
(1)
a statement of need and a description of the proposed activities
identifying the location of the proposed site, the character of the proposed
activities, and any plans for use of the site for purposes other than processing
and disposal of waste;
(2)
proposed time schedules for construction, receipt, processing,
and disposal of waste at the proposed land disposal facility;
(3)
area and site characteristics including ecology, geology
(including geotechnical features), seismology, geochemistry, soils, topography,
hydrology, air quality, natural radiation background, meteorology, climatology,
historical and cultural landmarks, archaeology, demography, and current land
uses;
(4)
an identification of the known natural resources at the
site, whose exploitation could result in inadvertent intrusion into the wastes
after removal of active institutional control;
(5)
a flow diagram of waste processing and disposal operations,
a description and accurate drawings of processing equipment, and any special
handling techniques to be employed;
(6)
site selection process, including considerations of the
interrelationships between location of waste generators, transportation costs
and means, site characteristics, and compatibility with current land uses;
(7)
project alternatives, including a discussion of the alternatives
considered by the applicant for processing and disposal of waste;
(8)
radiological and nonradiological impacts of the proposed
action, including:
(A)
surface and groundwater impacts;
(B)
socioeconomic impacts;
(C)
short- and long-term impacts on public health and safety;
and
(D)
impacts resulting from irreversible or irretrievable commitments
of resources;
(9)
environmental effects of postulated operational and transportation
accidents;
(10)
a description of baseline, operational, and long-term
environmental monitoring programs, including radioactive and chemical characteristics,
and the plan for taking corrective measures if migration of radionuclides
or chemical constituents is indicated;
(11)
decommissioning and site closure and stabilization plan,
including those design features which are intended to facilitate disposal
site closure and to eliminate the need for ongoing active maintenance after
closure and an estimated date of site closure, which is to be updated as required;
and
(12)
a list of all governmental permits, licenses, approvals,
and other entitlements obtained in connection with the proposed action.
(b)
The applicant shall provide an environmental report under
the requirements of 10 Code of Federal Regulations, §§51.45, 51.62,
and 61.10, as amended.
§336.716.Terms and Conditions of License.
(a)
At any time before termination of the license, the licensee
shall submit written statements under oath upon request of the commission
or executive director to enable the commission to determine whether or not
the license should be modified, suspended, or revoked.
(b)
The license will be transferred to the custodial agency
only on the full implementation of the final closure plan as approved by the
commission, including post-closure observation and maintenance.
(c)
The licensee shall be subject to the applicable provisions
of Texas Health and Safety Code, Chapter 401, also known as the Texas Radiation
Control Act (TRCA) now or hereafter in effect and to applicable rules and
orders of the commission. The terms and conditions of the license are subject
to amendment, revision, or modification, by reason of amendments to the TRCA
or by reason of rules and orders issued in accordance with terms of the TRCA.
(d)
Any license may be revoked, suspended, or modified, in
whole or in part, for any material false statement in the application or any
statement of fact required under provisions of the TRCA, or because of conditions
revealed by any application or statement of fact or any report, record, or
inspection or other means that would warrant the commission to refuse to grant
a license on the original application, or for failure to operate the land
disposal facility in accordance with the terms of the license, or for any
violation of or failure to observe any of the terms and conditions of the
TRCA or the license or of any rule order of the commission.
(e)
Each person licensed by the commission under this subchapter
shall confine possession and use of radioactive materials to the locations
and purposes authorized in the license.
(f)
No waste may be disposed of until the executive director
has inspected the land disposal facility and has found it to be in conformance
with the description, design, and construction described in the application
for a license. No waste may be received for disposal at the site until the
executive director has approved financial assurance.
(g)
The commission may incorporate in any license at the time
of issuance, or thereafter, by appropriate rule or order, additional requirements
and conditions with respect to the licensee's receipt, possession, and disposal
of waste as it deems appropriate or necessary in order to:
(1)
protect the health and safety of the public and the environment;
and
(2)
require reports and recordkeeping and to provide for inspections
of activities under the license that may be necessary or appropriate to effectuate
the purposes of the TRCA and rules thereunder.
(h)
Each license shall be issued for an initial term of 15
years from the date of issuance. After the initial 15 years, the commission
may renew the license for one or more terms of ten years. 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).
(i)
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, as required by the commission for the disposal
of federal facility waste.
(j)
All records maintained by the licensee in accordance with §336.740
of this title (relating to Maintenance of Records and Reports) are public
information, unless otherwise exempt from public disclosure.
§336.717.Conveyance of Waste.
(a)
The compact waste disposal facility license holder shall
convey, at no cost to the state, the title to the compact waste delivered
to the compact waste disposal facility for disposal at the time the waste
is accepted at the site. Acceptance occurs when the acceptance criteria specified
in the license have been satisfied. This section does not apply to federal
facility waste accepted at a federal facility waste disposal facility.
(b)
The title and all related rights and interest in compact
waste conveyed under this section are the property of the commission on the
state's behalf. The commission may administer the waste as property in the
name of the state.
§336.728.Disposal Site Suitability Requirements for Near-Surface Land Disposal.
(a)
The disposal site shall be capable of being characterized,
modeled, analyzed, and monitored.
(b)
Within the region where the land disposal facility is to
be located, a disposal site should be selected so that projected population
growth and future developments are not likely to affect the ability of the
land disposal facility to meet the performance objectives of this subchapter.
(c)
Areas shall be avoided that have known natural resources
which, if exploited, would result in failure to meet the performance objectives
of this subchapter.
(d)
The disposal site shall be generally well drained and free
of areas of flooding or frequent ponding. Waste disposal shall not take place
in a 100-year flood plain, coastal high-hazard area, or wetland, as defined
in Executive Order 11988, "Floodplain Management Guidelines."
(e)
Upstream drainage areas shall be minimized to decrease
the amount of runoff which could erode or inundate disposal units.
(f)
The disposal site shall provide sufficient depth to the
water table so that groundwater, perennial or otherwise, shall not intrude
into the waste.
(g)
Areas shall be avoided that are the recharge areas of sole
source aquifers unless it can be demonstrated with reasonable assurance that
the disposal site shall be designed, constructed, operated, and closed without
an unreasonable risk to an aquifer.
(h)
The hydrogeologic unit used for disposal shall not discharge
groundwater to the surface within the disposal site.
(i)
Areas shall be avoided where tectonic processes such as
faulting, folding, seismic activity, or vulcanism may occur with such frequency
and extent to significantly affect the ability of the disposal site to meet
the performance objectives of this subchapter or may preclude defensible modeling
and prediction of long-term impacts.
(j)
Areas shall be avoided where surface geologic processes
such as mass wasting, erosion, slumping, landsliding, or weathering occur
with such frequency and extent to significantly affect the ability of the
disposal site to meet the performance objectives of this subchapter or may
preclude defensible modeling and prediction of long-term impacts.
(k)
The disposal site shall not be located where nearby facilities
or activities could adversely impact the ability of the site to meet the performance
objectives of this subchapter or significantly mask the environmental monitoring
program. 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.
(l)
The disposal site shall not be located in areas where soil
conditions are such that spill cleanup would be impracticable.
(m)
The site shall not be located in a county any part of which
is located 62 miles or less from an international boundary.
(n)
The site shall not be located in a county in which the
average annual rainfall is greater than 20 inches.
(o)
The site shall not be located in a county that adjoins
river segment 2309, 2310, or 2311 as identified by the commission in the Texas
Surface Water Quality Standards in §307.10(3) of this title (relating
to Appendices A - E). These river segments are identified as follows:
(1)
river segment 2309 is the Devil's River;
(2)
river segment 2310 is the lower Pecos River; and
(3)
river segment 2311 is the upper Pecos River.
(p)
The site shall not be located less than 20 miles upstream
of or up-drainage from the maximum elevation of the surface of a reservoir
project that:
(1)
has been constructed or is under construction by the United
States Bureau of Reclamation or the United States Army Corps of Engineers;
or
(2)
has been approved for construction by the Texas Water Development
Board as part of the state water plan under Texas Water Code, Subchapter C,
Chapter 16.
§336.729.Disposal Site Design for Near-Surface Land Disposal.
(a)
Site design features shall be directed toward long-term
isolation and avoidance of the need for continuing active maintenance after
site closure.
(b)
The disposal site design and operation shall be compatible
with the disposal site closure plan and lead to disposal site closure that
provides reasonable assurance that the performance objectives of this subchapter
will be met.
(c)
The disposal site shall be designed to complement and improve,
where appropriate, the ability of the disposal site's natural characteristics
to assure that the performance objectives of this subchapter will be met.
(d)
Covers shall be designed to minimize water infiltration,
to direct percolating or surface water away from the disposed waste, and to
resist degradation by surface geologic processes and biotic activity.
(e)
Surface features shall direct surface water drainage away
from disposal units at velocities and gradients which will not result in erosion
that will require ongoing active maintenance.
(f)
The disposal site shall be designed to minimize the contact
of water with waste during storage, the contact of standing water with waste
during disposal, and the contact of percolating or standing water with wastes
after disposal.
(g)
The design of a land disposal facility should incorporate,
to the extent practicable, safeguards against hazards resulting from local
meteorological conditions, including phenomena such as hurricanes, tornados,
violent storms, and susceptibility to flooding, as well as geologic phenomena
such as earthquakes and earth tremors.
§336.730.Near-Surface Land Disposal Facility Operation and Disposal Site Closure.
(a)
Wastes designated as Class A under §336.362(a) of
this title (relating to Appendix E. Classification and Characteristics of
Low-Level Radioactive Waste) shall be segregated from other wastes by placing
the Class A wastes in disposal units which are sufficiently separated from
disposal units for the other waste classes so that any interaction between
Class A wastes and other wastes shall not result in the failure to meet the
performance objectives specified in §336.723 of this title (relating
to Performance Objectives). This segregation is not necessary for Class A
wastes if they meet the stability requirements in §336.362(b)(2) of this
title.
(b)
Wastes designated as containerized Class A, Class B, or
Class C under §336.362(a) of this title or §336.702 of this title
(relating to Definitions) shall be disposed of in the following manner:
(1)
within a reinforced concrete container and within a reinforced
concrete barrier, or within containment structures made of materials technologically
equivalent or superior to reinforced concrete;
(2)
in such a manner that the waste can be monitored and retrieved;
and
(3)
so that the top of the waste is a minimum of five meters
below the top surface of the cover or shall be disposed of with intruder barriers
that are designed to protect against an inadvertent intrusion for at least
500 years.
(c)
Wastes shall be emplaced in a manner that maintains the
package integrity during emplacement, minimizes the void spaces between packages,
and permits the void spaces to be filled.
(d)
Void spaces between waste packages shall be filled with
earth or other material to reduce future subsidence within the fill.
(e)
Waste shall be placed and covered in a manner that limits
the radiation dose rate at the surface of the cover to levels that at a minimum
will permit the licensee to comply with all provisions of §336.313 of
this title (relating to Dose Limits for Individual Members of the Public)
and §336.314 of this title (relating to Compliance with Dose Limits for
Individual Members of the Public) at the time the license is transferred under §336.721
of this title (relating to Transfer of License to Custodial Agency).
(f)
The boundaries and locations of each disposal unit shall
be accurately located and mapped by means of land survey. Disposal units shall
be marked in such a way that the boundaries of each unit can be easily defined.
Three permanent survey marker control points, referenced to United States
Geological Survey (USGS) or National Geodetic Survey (NGS) survey control
stations, shall be established on the site to facilitate surveys. The USGS
or NGS control stations shall provide horizontal and vertical controls as
checked against USGS or NGS record files.
(g)
A buffer zone of land shall be maintained between any buried
waste and the disposal site boundary and beneath the disposed waste. The buffer
zone shall be of adequate dimensions to carry out environmental monitoring
activities specified in §336.731(c) of this title (relating to Environmental
Monitoring) and to take mitigative measures if needed.
(h)
Closure and stabilization measures as set forth in the
approved site closure plan shall be carried out as each disposal unit is filled
and covered.
(i)
Active waste disposal operations shall not have an adverse
effect on completed closure and stabilization measures.
(j)
Only wastes containing or contaminated with radioactive
materials shall be disposed of at the disposal site.
§336.733.Waste Classification, Characteristics, and Labeling.
(a)
All low-level radioactive waste and mixed waste received
for disposal by the licensee shall be classified in accordance with §336.362(a),
of this title (relating to Appendix E. Classification and Characteristics
of Low-Level Radioactive Waste), shall meet the applicable characteristics
of §336.362(b) of this title, and shall be labeled in accordance with §336.362(c)
of this title.
(b)
The special criteria specified in this subsection shall
apply to the disposal of wastes consisting of radionuclides with half-lives
greater than 35 years and wastes consisting of transuranic radionuclides which
are acceptable for disposal under this subchapter, that is, transuranic radionuclides
in concentrations of less than ten nanocuries/gram. All those wastes that
are determined to be Class A shall be placed in reinforced concrete canisters
or equivalent containment structures to provide stability after disposal or
shall meet the stability requirements set forth in §336.362(b)(2) of
this title. These special criteria are in addition to the minimum requirements
for Class A wastes set forth in §336.362(b)(1) of this title. The executive
director may consider a licensee's request for an alternative from this special
criteria on a case-by-case basis.
(c)
In addition to the requirements of this chapter, the licensee
shall comply with the requirements of Chapter 335 of this title (relating
to Industrial Solid Waste and Municipal Hazardous Waste) for the disposal
of mixed waste. The licensee may not dispose of mixed waste unless the licensee
is specifically licensed for the disposal of mixed waste under this chapter
and permitted under Chapter 335 of this title.
§336.736.Liability Coverage and Funding for Disposal Site Closure and Stabilization.
(a)
The applicant shall provide assurance 60 days prior to
the initial receipt of waste that sufficient funds will be available to carry
out disposal site closure and stabilization, including:
(1)
decontamination or dismantlement of land disposal facility
structures;
(2)
disposal of any radioactive material remaining at the site
at closure; and
(3)
closure and stabilization of the disposal site so that,
following transfer of the disposal site to the custodial agency, the need
for ongoing active maintenance is eliminated to the extent practicable and
only minor custodial care, surveillance, and monitoring are required.
(b)
The assurance shall be based on cost estimates approved
by the executive director which reflect the commission-approved plan for disposal
site closure and stabilization. The applicant's cost estimates shall take
into account total costs that would be incurred if an independent contractor
were hired to perform the closure and stabilization work.
(c)
The licensee's financial assurance mechanism and cost estimates
shall be reviewed annually by the commission at an open meeting to assure
that sufficient funds are available for completion of the closure plan, assuming
that the work has to be performed by an independent contractor.
(d)
The amount of financial assurance should change in accordance
with the predicted cost of future closure and stabilization. Factors affecting
cost estimates for closure and stabilization include inflation, increases
in the amount of disturbed land, changes in engineering plans, closure and
stabilization that have already been accomplished, and any other conditions
affecting costs. This shall yield a closure amount that is at least sufficient
at all times to cover the costs of closure of the disposal units that are
expected to be used before the next annual review.
(e)
Sixty days prior to the initial receipt of waste, the licensee
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 of this title (relating to Financial Assurance).
(f)
Financial assurance mechanisms submitted to comply with
this section shall meet the requirements specified in Chapter 37, Subchapter
T of this title (relating to Financial Assurance for Near-Surface Land Disposal
of Radioactive Waste).
§336.737.Funding for Institutional Control.
(a)
The licensee shall pay into the perpetual care account
an amount determined by the executive director to be adequate to provide surveillance,
monitoring, any required maintenance, and other care of the disposal site
on a continuing basis during the institutional control period. Unless otherwise
specified, the amount of funding provided shall be an amount necessary to
provide perpetual surveillance, monitoring, any required maintenance, and
other care of the disposal site and the administration of the fund by the
state. The amount of funds necessary to provide perpetual care during the
institutional control period shall be based upon a real annual rate of interest,
above inflation, of 2% (i.e., the amount required is calculated by expressing
all costs at an annual rate and multiplying the total annual cost by 50 to
calculate an amount that will be self-perpetuating at a real annual interest
rate of 2%).
(b)
Sixty days prior to the initial receipt of waste, the licensee
shall provide the total amount of required funding by means approved by the
executive director, such as a combination of periodic payments into the fund
and financial assurance covering the remainder of the total amount. Any changes
to institutional control proposed by the licensee shall be submitted to the
commission in the form of an application for a license amendment. Financial
assurance mechanisms shall meet the requirements of Chapter 37, Subchapter
T of this title (relating to Financial Assurance for Near-Surface Land Disposal
of Low-Level Radioactive Waste).
(c)
The commission at an open meeting shall review annually
the amount paid into the fund and shall adjust the amount, if necessary, to
ensure the payment schedule is adequate to cover the costs of surveillance,
monitoring, any required maintenance, and other care of the disposal site
during the institutional control period. The amount may be adjusted to reflect
inflation, changes in activities performed, and any other conditions affecting
costs.
§336.738.Funding for Corrective Action.
(a)
Sixty days prior to the initial receipt of waste, the licensee
shall provide financial assurance for corrective action to address unplanned
events that pose a risk to public health, safety, and the environment that
may occur after the decommissioning and closure of the compact waste disposal
facility or federal facility waste disposal facility.
(b)
The payment schedule and amount shall be determined by
the executive director. The amount shall not be less than $20 million at the
time the disposal facility site is decommissioned. The commission at an open
meeting shall review annually the amount for corrective action.
(c)
Financial assurance under this section shall be established
and maintained in accordance with Chapter 37, Subchapter T of this title (relating
to Financial Assurance for Near-Surface Land Disposal of Low-Level Radioactive
Waste).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308739
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
30 TAC §336.703
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code, §5.103, concerning Rules,
and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The repeal is also adopted under Texas
Health and Safety Code, Chapter 401, concerning Radioactive Materials and
Other Sources of Radiation, also known as the Texas Radiation Control Act; §401.011,
concerning Radiation Control Agency, which authorizes the commission to regulate
and license the disposal of radioactive substances; §401.051, concerning
Adoption of Rules and Guidelines, which authorizes the commission to adopt
rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308740
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
30 TAC §§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
STATUTORY AUTHORITY
The new sections are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The new sections are also adopted
under Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation, also known as the Texas Radiation Control
Act; §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
§336.801.Applicability.
(a)
Initial license applications to receive, possess, and dispose
of low-level radioactive waste from others at the compact waste disposal facility
are subject to the application selection process set out in this subchapter.
Applications for a license under this subchapter will be processed as set
forth in this subchapter in addition to any procedural requirements applicable
to radioactive material licensing in this title. In the event of a conflict
between the procedural requirements of this subchapter and other procedural
requirements in this title, the requirements of this subchapter shall prevail.
The radioactive material license authorizing the receipt, possession, and
disposal of low-level radioactive waste at the compact waste disposal facility
must meet all of the requirements provided in Subchapter H of this chapter
(relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level
Radioactive Waste). The license authorizing the disposal of federal facility
waste must meet the requirements of Subchapter J of this chapter (relating
to Federal Facility Waste Disposal Facility) in addition to the requirements
of Subchapter H of this chapter. License applications under Subchapters F
and G of this chapter (relating to Licensing of Alternative Methods of Disposal
of Radioactive Material, and Decommissioning Standards) are not subject to
this subchapter.
(b)
This subchapter addresses the application selection process
for the licensing of the disposal of low-level radioactive waste at the compact
waste disposal facility. Applications for other authorizations and permits
issued by the commission required by the compact waste disposal facility are
not subject to the application selection process provided in this subchapter.
§336.803.Receipt of License Applications.
(a)
License applications subject to this subchapter will be
received by the commission for a 30-day period, beginning 180 days after the
date of the
Texas Register
notice publication
for receipt of applications for the siting, construction, and operation of
a compact waste disposal facility and a federal facility waste disposal facility,
if applicable, for disposal of low-level radioactive waste. The executive
director shall not evaluate applications received after the 30-day application
period.
(b)
The commission shall post on its Web site the identity
of all applicants filing applications and the Web address link required by §336.805
of this title (relating to Application Requirements.)
§336.805.Application Requirements.
In addition to the application requirements provided elsewhere in this
title, an applicant for a license subject to this subchapter must:
(1)
comply with Texas Health and Safety Code, Chapter 401,
the rules under this title, and any other applicable requirement in the executive
director's discretion;
(2)
include a nonrefundable $500,000 application processing
fee as provided in §336.103(a) of this title (relating to Schedule of
Fees for Subchapter H Licenses);
(3)
provide evidence relating to the reasonableness of any
technique for managing low-level radioactive waste to be practiced at the
proposed land disposal facility or facilities including:
(A)
studies of alternate techniques of waste processing and
reduction at the site of waste generation; and
(B)
studies of the use of aboveground isolation facilities;
and
(4)
provide a complete copy of the application, including all
amendments and/or supplements to the application, on a publicly accessible
Web site, and provide the commission with the Web address link for the application
materials.
§336.807.Administrative Review.
(a)
Not later than the 45th day after the date an application
is received under this subchapter, the executive director shall issue an administrative
notice of deficiency to each applicant whose application is timely submitted,
but is determined by the executive director to be administratively incomplete.
(b)
The executive director shall provide an applicant, for
whom an administrative notice of deficiency is issued, not more than three
30-day opportunities to correct the noted deficiencies in the application.
For each 30-day opportunity, the executive director will evaluate the information
received in response to a notice of deficiency within 30 days. If the required
information is not received from the applicant within 30 days of the date
of receipt of the deficiency notice, the executive director shall return the
incomplete application to the applicant.
(c)
The executive director shall reject any application that,
after the period for correcting deficiencies has expired, is not administratively
complete.
(d)
In determining if an application is administratively complete,
the executive director shall consider whether the application contains sufficient
information that will allow the technical review of the application, including,
but not limited to:
(1)
the identity and qualifications of the applicant;
(2)
a description of the proposed land disposal facility or
facilities and site;
(3)
a description of the character of the proposed activities
and the types and quantities of waste to be managed at the disposal facility
or facilities;
(4)
a description of the proposed schedules for construction,
receipt of waste, and closure;
(5)
a description of the financial assurance mechanism to be
used;
(6)
a description of the design features of the facility or
facilities, along with a description of the methods of construction and operation
of the facility or facilities;
(7)
a characterization of the area and site characteristics,
including ecology, geology, soils, hydrology, natural radiation background,
climatology, meteorology, demography, and current land uses;
(8)
a description of the safety programs to be used at the
proposed land disposal facility or facilities;
(9)
a copy of the warranty deed or other conveyance showing
that the right, title, and interest in the land on which the land disposal
facility or facilities are proposed to be located is owned in fee by the applicant
as required by Texas Health and Safety Code, §401.204;
(10)
an application processing fee of $500,000 as provided
in §336.103(a) of this title (relating to Schedule of Fees for Subchapter
H Licenses) and proof of additional funds sufficient to cover any further
costs of processing the application as estimated by the commission; and
(11)
a copy of a resolution of support of the proposed land
disposal facility or facilities from the commissioners court of the county
in which the land disposal facility or facilities are proposed to be located.
§336.808.Ownership of Land and Buildings.
(a)
A license application to receive, possess, and dispose
of low-level radioactive waste 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. Except as provided in subsection (b) or (c)
of this section or for land and buildings already owned in fee by the state
or federal government, the applicant must demonstrate ownership of an undivided
interest in fee simple title of the land and buildings, including the surface
and mineral estates, on which the land disposal facility or facilities are
to be located.
(b)
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
of this title (relating to Exemptions). The application for exemption must
be submitted with the license application in order to satisfy the requirements
of the administrative review of the application. In addition to the requirements
of §336.5 of this title, the applicant must demonstrate that the surface
use agreement is permissible under federal law and consistent with the
(c)
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 §1.8 of this title (relating to Initiation
of Proceeding) to request the attorney general to institute condemnation proceedings
as provided under Texas Property Code, Chapter 21, to acquire fee simple interest
in the mineral rights. The petition to request initiation of condemnation
proceedings shall include a description of the communications between the
applicant and the mineral estate interest owner, a demonstration of the applicant's
good faith effort to acquire the mineral rights or to enter into a surface
use agreement as provided in subsection (b) of this section, an appraisal
of the fair market value of the mineral interest, a demonstration that the
petitioner's application has been selected as the application with the highest
technical merit under §336.813(d) of this title (relating to Evaluation
of Applications), and a demonstration by the applicant of the ability to pay
for all costs in obtaining the mineral interests in condemnation proceedings,
including legal fees. The applicant shall provide a copy of the petition under
this subsection to the owner of the mineral interest. If the petition is granted
and the commission requests the attorney general to initiate condemnation
proceedings, the applicant shall pay for all costs incurred by the commission
in the process of obtaining the mineral interests, whether or not the mineral
interests are successfully condemned.
§336.809.Notice of Declaration of Administrative Completeness.
When an application under this subchapter has been declared administratively
complete, notice shall be provided under §39.702 of this title (relating
to Notice of Declaration of Administrative Completeness). The applicant shall
pay for all costs of issuing notice under this subchapter. The commission
shall post on its Web site notice of the application(s) declared administratively
complete.
§336.815.Tier 1 Criteria.
(a)
The commission shall consider as Tier 1 criteria:
(1)
the natural characteristics of the site for a proposed
land disposal facility or facilities;
(2)
the adequacy of the proposed land disposal facility or
facilities and activities to safely isolate, shield, and contain low-level
radioactive waste from mankind and mankind's environment; and
(3)
the adequacy of financial assurance related to the proposed
activities.
(b)
Natural characteristics of the site include:
(1)
the suitability of the site for the proposed activities,
including the site's:
(A)
geological characteristics;
(B)
topography, including features relating to erosion;
(C)
surface and underground hydrology;
(D)
meteorological factors; and
(E)
natural hazards;
(2)
the compatibility of disposal activities with any uses
of land near the site that could affect the natural performance of the site
or that could affect monitoring of the land disposal facility or facilities
and site;
(3)
the adequacy of plans for the collection of prelicense
monitoring data and background monitoring plans for the site, including analysis
of the ambient conditions of the site and established trends of the site's
natural parameters, including:
(A)
natural background radioactivity levels;
(B)
radon gas levels;
(C)
air particulate levels;
(D)
soil characteristics, including chemical characteristics;
(E)
surface water and groundwater characteristics; and
(F)
flora and fauna at the site;
(4)
the possible effects of disposal activities on flora and
fauna at or near the site; and
(5)
the ease of access to the site.
(c)
Adequacy of the proposed land disposal facility or facilities
and activities includes:
(1)
the capability of the proposed land disposal facility or
facilities and activities to isolate, shield, and contain low-level radioactive
waste in conformity with federal standards;
(2)
acceptable operational safety; and
(3)
acceptable long-term safety as demonstrated by analysis
or study.
(d)
Financial assurance criteria include:
(1)
adequacy of the applicant's financial qualifications to:
(A)
conduct the licensed activities as proposed, including:
(i)
any required decontamination, decommissioning, reclamation,
or disposal; and
(ii)
control and maintenance of the site and land disposal
facility or facilities after the cessation of active operations; and
(B)
address any unanticipated extraordinary events that would
pose a risk to public health and safety and the environment and that may occur
at the site after decommissioning and closure of the land disposal facility
or facilities;
(2)
the adequacy of the applicant's financial assurance in
an amount and type acceptable to the commission and adequate to cover potential
injury to any property or person;
(3)
the adequacy of the applicant's financial security, as
required by commission rules; and
(4)
the degree of certainty that the applicant will be able
to maintain adequate financial security.
§336.817.Tier 2 Criteria.
The commission shall consider as Tier 2 criteria:
(1)
the suitability of land disposal facilities at the site
that are associated with proposed activities and the adequacy of their engineering
and design; and
(2)
the suitability of the proposed land disposal facility
or facilities for the chemical, radiological, and biological characteristics
of the low-level radioactive waste as classified under the system established
under Texas Health and Safety Code, §401.053.
§336.819.Tier 3 Criteria.
The commission shall consider as Tier 3 criteria the applicant's:
(1)
technical qualifications to receive, store, process, and
dispose of low-level radioactive waste;
(2)
experience in management and disposal of low-level radioactive
waste and other radioactive materials;
(3)
previous operating practices in this state and elsewhere,
including the practices of a parent, subsidiary, or affiliated entity of the
applicant, related to radioactive materials;
(4)
record of compliance with environmental statutes, rules,
and licenses in this state and in any other jurisdiction, including the records
of a parent or subsidiary of the applicant, subject to Texas Health and Safety
Code, §401.243;
(5)
training programs proposed for its employees whose duties
relate to the proposed site and activities;
(6)
monitoring, recordkeeping, and reporting plans;
(7)
low-level radioactive waste spill detection and clean-up
plans for the proposed site and activities;
(8)
decommissioning and post-closure plans;
(9)
security plans;
(10)
monitoring and protection plans for workers;
(11)
emergency plans;
(12)
plans for background monitoring during the license period,
including analysis of the ambient conditions of the site and analysis of established
trends of the site's natural parameters, including:
(A)
natural background radioactivity levels;
(B)
radon gas levels;
(C)
air particulate levels;
(D)
soil characteristics, including chemical characteristics;
(E)
surface water and groundwater characteristics; and
(F)
flora and fauna at the site; and
(13)
ability to adequately manage the proposed land disposal
facility or facilities and activities for the term of the license.
§336.821.Tier 4 Criteria.
The commission shall consider as tier 4 criteria:
(1)
the compatibility of uses of land near the proposed site
that could be affected by the construction and operation of the land disposal
facility or facilities; and
(2)
possible socioeconomic effects on communities in the host
county of:
(A)
the proposed land disposal facility or facilities;
(B)
the operation of the proposed land disposal facility or
facilities; and
(C)
related transportation of low-level radioactive waste to
the land disposal facility or facilities.
§336.823.Technical Review.
Upon selection of the application that has the highest comparative
merit in accordance with §336.813 of this title (relating to Evaluation
of Applications), the executive director shall begin the technical review
of the selected application in accordance with §281.19 of this title
(relating to Technical Review). 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. The executive
director shall post on the commission Web site notice of the application selected
for technical review.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308741
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-5017
30 TAC §§336.901, 336.903, 336.905, 336.907, 336.909
STATUTORY AUTHORITY
The new sections are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code and other laws of the state. The new sections are also adopted
under Texas Health and Safety Code, Chapter 401, concerning Radioactive Materials
and Other Sources of Radiation, also known as the Texas Radiation Control
Act; §401.011, concerning Radiation Control Agency, which authorizes
the commission to regulate and license the disposal of radioactive substances; §401.051,
concerning Adoption of Rules and Guidelines, which authorizes the commission
to adopt rules and guidelines relating to control of sources of radiation; §401.103,
concerning Rules and Guidelines for Licensing and Registration, which authorizes
the commission to adopt rules and guidelines that provide for licensing and
registration for the control of sources of radiation; §401.104, concerning
Licensing and Registration rules, which requires the commission to provide
rules for licensing for the disposal of radioactive material; §401.201,
concerning Regulation of Low-Level Radioactive Waste Disposal, which authorizes
the commission to regulate the disposal of LLRW; and §401.412, concerning
Commission Licensing Authority, which authorizes the commission to issue licenses
for the disposal of radioactive substances.
§336.901.Applicability.
This subchapter provides additional licensing requirements to the requirements
of Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface
Land Disposal of Low-Level Radioactive Waste); and other rules of this title
for the disposal of federal facility waste at a separate land disposal facility
on the same site. Applications for the licensing of the disposal of federal
facility waste shall demonstrate compliance with the provisions of this subchapter
in addition to other application requirements of this title. The commission
may license federal facility waste disposal only at a separate and distinct
land disposal facility on the same site that is operated exclusively for the
disposal of federal facility waste and that is adjacent to the compact waste
disposal facility.
§336.905.Volume Limitation.
(a)
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 3,000,000 cubic yards. Of
that amount, the total volume of low-level radioactive waste accepted at the
federal facility waste disposal facility that must be disposed of in accordance
with §336.730 of this title (relating to Near-Surface Land Disposal Facility
Operation and Disposal Site Closure) shall be limited to not more than 300,000
cubic yards.
(b)
Upon application for license amendment under §305.62
of this title (relating to Amendment) and 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 3,000,000 cubic yards for a total capacity of 6,000,000 cubic yards upon
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. Of the increased amount, the volume
of waste that must be disposed of in accordance with §336.730 of this
title may be increased by not more than 300,000 cubic yards for a total volume
of 600,000 cubic yards.
§336.909.Additional Responsibilities.
If licensed to dispose of federal facility waste, the licensee shall:
(1)
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;
(2)
before accepting federal facility waste, submit to the
commission a written agreement, acceptable to the executive director and signed
by the United States secretary of energy, stating that the federal government
will assume all right, title, and interest in land and buildings acquired
under §336.710 of this title (relating to Institutional Information)
for the disposal of federal facility waste, together with requisite rights
of access to the land and buildings;
(3)
before termination of the license, formally convey to the
federal government the right, title, and interest in federal facility waste
located at the federal facility waste disposal facility;
(4)
transfer federal facility waste, land, and buildings to
the federal government without cost to the state or federal government, other
than the administrative and legal costs incurred in making the transfer; and
(5)
indemnify the state, and its officers and agents, 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. This
indemnification does not relieve the license holder of providing financial
assurance for decommissioning, institutional control, and after decommissioning,
corrective action.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308742
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: August 22, 2003
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) adopts
the repeal of Chapter 449, General Provisions, §§449.1 - 449.7,
449.21, 449.22, 449.31 - 449.35, 449.41 - 449.46, 449.71, 449.81 - 449.87,
and 449.91 - 449.93. The repeals are adopted
without
change
as proposed in the September 19, 2003, issue of the
Texas Register
(28 TexReg 8118) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL
Chapter 449 was initially adopted by the Texas Low-Level Radioactive Waste
Disposal Authority ("Authority") to implement provisions of the Texas Low-Level
Radioactive Waste Disposal Authority Act (1989 Texas General Laws, Chapter
678, §1, 71st Legislature), codified in Texas Health and Safety Code,
Chapter 402. House Bill (HB) 2954 (76th Legislature, 1999) created new Texas
Health and Safety Code, §402.004 (1999 Texas General Laws, Chapter 1449, §4.01,
76th Legislature), which abolished the "Authority," and stated that any reference
in Texas Health and Safety Code, Chapter 402, or another law to the "Authority,"
or board of directors of the "Authority," meant the Texas Natural Resource
Conservation Commission (later renamed as the Texas Commission on Environmental
Quality). HB 2954 (1999 Texas General Laws, Chapter 1449, §4.02, 76th
Legislature) also provided that all rules of the "Authority" were to be continued
in effect as the rules of the commission until superseded by a rule of the
commission.
Chapter 449 implemented the powers and duties assigned to the "Authority"
by statute and established policies, procedures, and standards which were
specifically applicable to the "Authority" (and later to the commission) relating
to the management of low-level radioactive waste (LLRW) disposal. The chapter
includes provisions relating to administration of the rules, rulemaking procedures,
site selection hearings, private donors, above and belowground disposal, the
historically underutilized business program, and training and education for
employees.
HB 1567, 78th Legislature, 2003, and its amendments to Texas Health and
Safety Code, Chapter 401 (also known as the Texas Radiation Control Act),
provides for the licensing of an LLRW disposal facility and establishes procedures
for the commission to accept and evaluate license applications from private
entities to dispose of LLRW. HB 1567 also repealed Texas Health and Safety
Code, Chapter 402 in its entirety, which eliminated most of the duties and
responsibilities that were transferred from the "Authority" to the commission
in 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 "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 a separate rulemaking action, Rule Project
Number 2003-037-336-WS, the commission is amending 30 TAC Chapters 37, 39,
305, and 336 to implement HB 1567 and to receive and evaluate license applications
for the disposal of LLRW by a private entity. Therefore, Chapter 449 is being
repealed in its entirety because the reasons for the rules no longer exist
and the rules are being superseded by other rules of the commission.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 rulemaking action
does not meet the definition of "major environmental rule" because the rulemaking
action is not specifically intended to protect the environment or reduce risks
to human health from environmental exposure. Instead, the rulemaking action
is intended to repeal Chapter 449, which consists of obsolete and unused rules
which are superseded by other rules of the commission.
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, which repealed
Texas Health and Safety Code, Chapter 402. The repeal of 30 TAC Chapter 449
implements the repeal of Texas Health and Safety Code, Chapter 402.
The repeal of these rules would be neither a statutory nor a constitutional
taking of private real property. The subject repeal does 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.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking action and determined that the
rules are neither identified in, nor will their repeal affect, any action/authorization
identified in Coastal Coordination Act Implementation Rules in 31 TAC §505.11,
relating to Actions and Rules Subject to the Coastal Management Program. Therefore,
the rulemaking action is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The comment period closed on October 10, 2003. There were no comments received.
Subchapter A. ADMINISTRATIVE
30 TAC §§449.1 - 449.7
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308770
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §449.21, §449.22
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308771
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §§449.31 - 449.35
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308772
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §§449.41 - 449.46
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308773
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §449.71
STATUTORY AUTHORITY
The repeal is adopted under Texas Water Code, §5.102, concerning General
Powers, which provides the commission with the general powers to carry out
its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308774
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §§449.81 - 449.87
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308775
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §§449.91 - 449.93
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308776
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) adopts
the repeal of Chapter 450, Planning and Implementation Fees, §§450.1
- 450.4 and §§450.11 - 450.19. The repeals are adopted
without change
as proposed in the September 19, 2003, issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL
Chapter 450 was initially adopted by the Texas Low-Level Radioactive Waste
Disposal Authority ("Authority") to implement provisions of the Texas Low-Level
Radioactive Waste Disposal Authority Act (1989 Texas General Laws, Chapter
678, §1, 71st Legislature), codified in Texas Health and Safety Code,
Chapter 402. House Bill (HB) 2954 (76th Legislature, 1999) created new Texas
Health and Safety Code, §402.004 (1999 Texas General Laws, Chapter 1449, §4.01,
76th Legislature), which abolished the "Authority," and stated that any reference
in Texas Health and Safety Code, Chapter 402, or another law to the "Authority,"
or board of directors of the "Authority," meant the Texas Natural Resource
Conservation Commission (later renamed as the Texas Commission on Environmental
Quality). HB 2954 (1999 Texas General Laws, Chapter 1449, §4.02, 76th
Legislature) also provided that all rules of the "Authority" were to be continued
in effect as the rules of the commission until superseded by a rule of the
commission.
Chapter 450 provided requirements for the expenditure, by the host county
commissioners court or its contractors, of funds generated by planning and
implementation fee surcharges and waste disposal fees for low-level radioactive
waste (LLRW) disposal. The chapter includes provisions relating to administration
of the rules and expenditures for local public projects.
HB 1567, 78th Legislature, 2003, and its amendments to Texas Health and
Safety Code, Chapter 401 (also known as the Texas Radiation Control Act),
provides for the licensing of an LLRW disposal facility and establishes procedures
for the commission to accept and evaluate license applications from private
entities to dispose of LLRW. HB 1567 also repealed Texas Health and Safety
Code, Chapter 402 in its entirety, which eliminated most of the duties and
responsibilities that were transferred from the "Authority" to the commission
in 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 "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 a separate rulemaking action, Rule Project
Number 2003-037-336-WS, the commission is amending 30 TAC Chapters 37, 39,
305, and 336 to incorporate those specific support and liaison responsibilities
identified in HB 1567 and to receive and evaluate license applications for
the disposal of LLRW by a private entity. Therefore, Chapter 450 is being
repealed in its entirety because the reasons for the rules no longer exist
and the rules are being superseded by other rules of the commission.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 rulemaking action
does not meet the definition of "major environmental rule" because the rulemaking
action is not specifically intended to protect the environment or reduce risks
to human health from environmental exposure. Instead, the rulemaking action
is intended to repeal Chapter 450, which consists of obsolete and unused rules
which are superseded by other rules of the commission.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. The
action implements legislative requirements in HB 1567, which repealed Texas
Health and Safety Code, Chapter 402. The repeal of 30 TAC Chapter 450 implements
the repeal of Texas Health and Safety Code, Chapter 402.
The repeal of these rules would be neither a statutory nor a constitutional
taking of private real property. The subject repeal does 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.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking action and determined that the
rules are neither identified in, nor will their repeal affect, any action/authorization
identified in Coastal Coordination Act Implementation Rules in 31 TAC §505.11,
relating to Actions and Rules Subject to the Coastal Management Program. Therefore,
the rulemaking action is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The comment period closed on October 10, 2003. There were no comments received.
Subchapter A. ASSESSMENT OF FEES
30 TAC §§450.1 - 450.4
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2003.
TRD-200308777
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
30 TAC §§450.11 - 450.19
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code, §5.102, concerning
General Powers, which provides the commission with the general powers to carry
out its duties under the Texas Water Code; and §5.103, concerning Rules,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on December 19, 2003.
TRD-200308778
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: January 8, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (commission) adopts
the repeal of Chapter 451, Disposal Site Management and Operation, §§451.1
- 451.4 and §§451.21 - 451.29. The repeals are adopted
without change
as proposed in the September 19, 2003, issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL
Chapter 451 was initially adopted by the Texas Low-Level Radioactive Waste
Disposal Authority ("Authority") to implement provisions of the Texas Low-Level
Radioactive Waste Disposal Authority Act (1989 Texas General Laws, Chapter
678, §1, 71st Legislature), codified in Texas Health and Safety Code,
Chapter 402. House Bill (HB) 2954 (76th Legislature, 1999) created new Texas
Health and Safety Code, §402.004 (1999 Texas General Laws, Chapter 1449, §4.01,
76th Legislature), which abolished the "Authority," and stated that any reference
in Texas Health and Safety Code, Chapter 402, or another law to the "Authority,"
or board of directors of the "Authority," meant the Texas Natural Resource
Conservation Commission (later renamed as the Texas Commission on Environmental
Quality). HB 2954 (1999 Texas General Laws, Chapter 1449, §4.02, 76th
Legislature) also provided that all rules of the "Authority" were to be continued
in effect as the rules of the commission until superseded by a rule of the
commission.
Chapter 451 established criteria for determining the competence of a person
to supervise the overall operations of a low-level radioactive waste (LLRW)
disposal site and established criteria and procedures for accepting LLRW at
a Texas disposal facility, and excluding certain types of waste that are incompatible
with LLRW disposal operations.
HB 1567, 78th Legislature, 2003, and its amendments to Texas Health and
Safety Code, Chapter 401 (also known as the Texas Radiation Control Act),
provides for the licensing of an LLRW disposal facility and establishes procedures
for the commission to accept and evaluate license applications from private
entities to dispose of LLRW. HB 1567 also repealed Texas Health and Safety
Code, Chapter 402 in its entirety, which eliminated most of the duties and
responsibilities that were transferred from the "Authority" to the commission
in 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 "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 a separate rulemaking action, Rule Project
Number 2003-037-336-WS, the commission is amending 30 TAC Chapters 37, 39,
305, and 336 to implement HB 1567, and to receive and evaluate license applications
for the disposal of LLRW by a private entity. Therefore, Chapter 451 is being
repealed in its entirety because the reasons for the rules no longer exist
and the rules are being superseded by other rules of the commission.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the 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 rulemaking action
does not meet the definition of "major environmental rule" because the rulemaking
action is not specifically intended to protect the environment or reduce risks
to human health from environmental exposure. Instead, the rulemaking action
is intended to repeal Chapter 451, which consists of obsolete and unused rules
which are superseded by other rules of the commission.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an assessment
of whether Texas Government Code, Chapter 2007 is applicable. The action implements
legislative requirements in HB 1567, which repealed Texas Health and Safety
Code, Chapter 402. The repeal of 30 TAC Chapter 451 implements the repeal
of Texas Health and Safety Code, Chapter 402.
The repeal of these rules would be neither a statutory nor a constitutional
taking of private real property. The subject repeal does 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.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking action and determined that the
rules are neither identified in, nor will their repeal affect, any action/authorization
identified in Coastal Coordination Act Implementation Rules in 31 TAC §505.11,
relating to Actions and Rules Subject to the Coastal Management Program. Therefore,
the rulemaking action is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The comment period closed on October 10, 2003. There were no comments received.
Subchapter A. OPERATOR COMPETENCE
Chapter 39.
PUBLIC NOTICE
Chapter 101.
GENERAL AIR QUALITY RULES
Chapter 305.
CONSOLIDATED PERMITS
Subchapter F. PERMIT CHARACTERISTICS AND CONDITIONS
Chapter 332.
COMPOSTING
Subchapter C. OPERATIONS REQUIRING A REGISTRATION
Subchapter D. OPERATIONS REQUIRING A PERMIT
Chapter 336.
RADIOACTIVE SUBSTANCE RULES
Subchapter B. RADIOACTIVE SUBSTANCE FEES
Subchapter C. GENERAL DISPOSAL REQUIREMENTS
Subchapter D. STANDARDS FOR PROTECTION AGAINST RADIATION
Subchapter F. LICENSING OF ALTERNATIVE METHODS OF DISPOSAL OF RADIOACTIVE MATERIAL
Subchapter H. LICENSING REQUIREMENTS FOR NEAR-SURFACE LAND DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE
Subchapter I. COMPACT WASTE DISPOSAL FACILITY APPLICATION SELECTION PROCESS
Subchapter J. FEDERAL FACILITY WASTE DISPOSAL FACILITY
Chapter 449.
GENERAL PROVISIONS
Subchapter B. RULEMAKING PROCEDURES
Subchapter C. SITE SELECTION HEARINGS
Subchapter D. PRIVATE DONORS
Subchapter F. ABOVE AND BELOWGROUND DISPOSAL
Subchapter G. HISTORICALLY UNDERUTILIZED BUSINESSES PROGRAM
Subchapter H. TRAINING AND EDUCATION FOR EMPLOYEES
Chapter 450.
PLANNING AND IMPLEMENTATION FEES
Subchapter B. EXPENDITURES FOR LOCAL PUBLIC PROJECTS
Chapter 451.
DISPOSAL SITE MANAGEMENT AND OPERATION