The Texas Commission on Environmental Quality (commission or TCEQ) adopts amendments to §§336.1, 336.105, 336.211, 336.501, and 336.601. The commission also adopts new Subchapter K consisting of §§336.1001, 336.1003, 336.1005, 336.1007, 336.1009, 336.1011, 336.1013, 336.1015, 336.1017, and 336.1019. Sections 336.1, 336.105, 336.211, 336.1005, 336.1007, 336.1009, 336.1011, 336.1013, and 336.1015 are adopted with changes to the proposed text published in the January 28, 2005, issue of the Texas Register (30 TexReg 363). Sections 336.501, 336.601, 336.1001, 336.1003, 336.1017, and 336.1019 are adopted without changes and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

On September 24, 2003, the commission considered the petition for rulemaking filed by Newpark Resources, Inc. (petitioner) on August 5, 2003. The petitioner requested that the commission initiate rulemaking to allow commercial disposal of naturally occurring radioactive material (NORM) waste in Class I injection wells located at facilities at which the storage and processing of such material is licensed by the Texas Department of Health (TDH), Bureau of Radiation Control. TDH is the predecessor agency of the Department of State Health Services (DSHS). The petitioner also requested amendments to the Memorandum of Understanding (MOU) between TDH and the commission to reflect that TDH is authorized to regulate the storage and processing of NORM waste that will be disposed of at a commercial NORM waste disposal facility.

The commission directed staff to initiate rulemaking for the licensing of commercial disposal of NORM waste streams from public water systems by injection into Class I injection wells. The commission decided that the MOU with TDH should not be amended as requested by the petitioner. The MOU with TDH is codified as 25 TAC §289.101 and adopted by reference in 30 TAC §7.118, Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions. Section 289.101(d)(1) of the MOU provides that the receipt, storage, and/or processing of radioactive substances received by a Texas Natural Resource Conservation Commission (TNRCC) (predecessor agency of the TCEQ) licensee at a commercial radioactive substance disposal facility for the explicit purpose of disposal at that facility shall be regulated by the TNRCC. This requirement is mirrored in existing commission rules in 30 TAC §336.211(d), General Requirements for Radioactive Material Disposal. Thus, the receipt, storage, and/or processing of NORM waste at a commercial disposal facility will be regulated by the TCEQ in accordance with these provisions. This is necessary to ensure that NORM waste is properly conditioned for disposal in Class I injection wells. Also, the TCEQ must ensure that procedures for waste receipt, storage, and processing are protective of human health and safety and the environment.

This rulemaking adopts amendments to Chapter 336 to create a licensing program for the commercial Class I injection well disposal of NORM waste generated by public water systems. A corresponding rulemaking that includes changes to 30 TAC Chapter 39, Public Notice, is published in this issue of the Texas Register .

SECTION BY SECTION DISCUSSION

Administrative and grammatical changes are adopted throughout the sections to bring the existing rule language into agreement with guidance provided in the Texas Legislative Council Drafting Manual , November 2004.

SUBCHAPTER A: GENERAL PROVISIONS

§336.1, Scope and General Provisions

Section 336.1 is adopted to provide authorization for disposal of NORM waste. Specifically, new §336.1(f)(4) provides authorization for disposal of NORM waste from other persons in accordance with Subchapter K, Commercial Disposal of Naturally Occurring Radioactive Material Waste From Public Water Systems.

SUBCHAPTER B: RADIOACTIVE SUBSTANCE FEES

§336.105, Schedule of Fees for Other Licenses

Section 336.105 is adopted to amend the fees for licenses issued under Subchapter K, and to modify fees for licenses issued under Subchapter F, Licensing of Alternative Methods of Disposal of Radioactive Material. Section 336.105(a)(1) increases the license application fee for facilities regulated under Subchapter F from $20,000 to $50,000. The increased fee more accurately reflects the commission's cost in reviewing a Subchapter F license application. Texas Health and Safety Code (THSC), §401.412(d), provides that the commission may assess and collect an annual fee for each license and registration and for each application in an amount sufficient to recover its reasonable costs. The commission's cost for reviewing a new application and issuing a radioactive material license under Subchapter F or Subchapter K is approximately $40,000 to $100,000, depending on the complexity of the application. These estimates do not include fringe and indirect costs. Adopted new subsection (a)(3) requires a license application fee of $50,000 for facilities regulated under Subchapter K. Section 336.105(a) is also adopted to reorganize the list of subchapters in sequential order. Section 336.105(b)(1) decreases the annual license fee for facilities regulated under Subchapter F from $28,900 to $25,000. The decreased annual fee more accurately reflects the commission's cost in reviewing a licensee's annual reports and conducting inspections of licensed facilities. The commission's cost for conducting an annual review of an existing radioactive material license issued under Subchapter F or Subchapter K is approximately $25,000. This estimate includes one compliance inspection of the facility per year. Adopted new subsection (b)(3) requires an annual license fee of $25,000 for facilities regulated under Subchapter K. Section 336.105(b) is also adopted to reorganize the list of subchapters in sequential order. Section 336.105(c) is adopted to require a fee of $10,000 for major amendments of licenses issued under Subchapter K. This adopted fee is consistent with existing fees for a major amendment of licenses issued under Subchapter F and Subchapter G. Adopted new §336.105(d) requires a license application fee of $35,000 for the renewal of licenses issued under Subchapter F or Subchapter K. This amount was decreased from $50,000 in the proposed rules in response to comments received. Existing §336.105(d) is relettered as §336.105(e) and provides a fee schedule for holders of licenses issued under Subchapter K following cessation of disposal activities.

SUBCHAPTER C: GENERAL DISPOSAL REQUIREMENTS

§336.211, General Requirements for Radioactive Material Disposal

Section 336.211(a) adds new subsection (a)(7). This amendment is adopted for consistency with other authorized disposal methods referenced in the section. Existing subsection (a)(7) and (8) are renumbered accordingly. Section 336.211(b) adds new §336.211(b)(5). New subsection (b)(5) requires a person to be specifically licensed to receive waste containing licensed material from other persons for disposal by injection into an underground injection control Class I injection well.

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

§336.501, Scope and General Provisions

Section 336.501 adds a new subsection (d). Adopted new §336.501(d) provides that the commission may license the commercial disposal of NORM waste under Subchapter K.

SUBCHAPTER G: DECOMMISSIONING STANDARDS

§336.601, Applicability

Section 336.601(a) applies the decommissioning criteria in Subchapter G to NORM waste disposal facilities that are licensed under Subchapter K.

NEW SUBCHAPTER K: COMMERCIAL DISPOSAL OF NATURALLY OCCURRING RADIOACTIVE MATERIAL WASTE FROM PUBLIC WATER SYSTEMS

§336.1001, Scope and General Provisions

New §336.1001 is adopted to provide a statement of general applicability for Subchapter K, which establishes requirements for waste disposal facilities that accept NORM waste from public water systems for commercial disposal by injection into Class I injection wells. The requirements of Subchapter K will not preclude a generator from on-site disposal of NORM waste by Class I injection or by other authorized disposal methods under Subchapter F. Subchapter F applies to authorization of non-commercial disposal activities.

§336.1003, Definitions

Adopted new §336.1003(1) adds a definition for "Commercial disposal," that is the disposal of NORM waste received by the licensee from other persons. Adopted new §336.1003(2) adds a definition for "Naturally occurring radioactive material waste disposal facility." Adopted new §336.1003(3) adds a definition for "Public water system." Adopted new §336.1003(4) adds a definition for "Site."

§336.1005, Disposal Method

New §336.1005 is adopted to authorize the commercial disposal of NORM waste from public water systems only by injection into a Class I injection well permitted under 30 TAC Chapter 331, Underground Injection Control, that is specifically permitted for the disposal of NORM waste. The words "from public water systems" were added in response to comments.

§336.1007, License Application for Commercial Disposal of Naturally Occurring Radioactive Material Waste

New §336.1007 is adopted to provide requirements for applications for licenses for the commercial disposal of NORM waste. New subsection (a) is adopted to provide technical requirements to be addressed in the license application that will enable the executive director to evaluate the applicant's proposed siting, design, construction, and operation of the NORM waste disposal facility. The words "specific activity" were added to §336.1007(a)(1) in response to comments. New subsection (b) is a general requirement that the applicant shall submit sufficient information to allow the executive director to assess the potential hazard to public health and safety, and to determine whether the NORM waste disposal facility will have a significant impact on the environment. New subsection (c) requires that the applicant shall provide any other information that may be requested by the executive director.

§336.1009, Standards for Issuance of a License, License Amendment, or License Renewal

New §336.1009 is adopted to specify the standards that the applicant must meet for the commission to issue, amend, or renew a license for commercial disposal of NORM waste. New §336.1009(1) is adopted to ensure that the applicant is qualified by reason of training and experience to carry out the disposal operations in a manner that protects human health and safety and the environment. New §336.1009(2) is adopted to require that the applicant's proposed NORM waste disposal facility's siting, design, construction, operation, and closure are adequate to protect the public health and safety in that it will provide reasonable assurance that the general population will be protected from releases of radioactivity. New §336.1009(3) is adopted to require that the applicant has provided reasonable assurance that applicable technical requirements of this chapter have been met. New §336.1009(4) is adopted to require that the applicant's financial assurance meets the requirements of this chapter. Section 336.1011(g) in the proposal has been moved to §336.1009(5) for consistency. The requirement that the location of the NORM waste disposal facility must be compatible with the uses of surrounding environs is more appropriate as a finding made upon license issuance. New §336.1009(5) is renumbered as §336.1009(6) and adopted as a general requirement that the applicant shall meet all applicable requirements under the rules of the commission.

§336.1011, Performance Objectives

New §336.1011 is adopted to establish radiological criteria for the performance of the NORM waste disposal facility. A performance assessment shall be conducted by the applicant to ensure that these radiological criteria are met. Adopted new §336.1011(a) provides that the performance objectives of this section apply to the NORM waste disposal facility and any underground source of drinking water, as defined in §331.2, Definitions, that may be impacted by activities at the NORM waste disposal facility. The performance objectives do not apply to NORM waste in the injection zone.

Adopted new §336.1011(b) requires that radiation exposure and release of radioactive materials from a NORM waste disposal facility shall be maintained as low as is reasonably achievable. Concentrations of radioactive material that may be released to the general environment in groundwater, surface water, air, soil, plants, or animals shall not result in an annual dose above background exceeding an equivalent of 25 millirems to the whole body, 75 millirems to the thyroid, or 25 millirems to any other organ of any member of the public. These requirements are consistent with the performance objectives for the disposal of low-level radioactive waste given in Subchapter H of this chapter.

Adopted new §336.1011(c) requires that operations at the NORM waste disposal facility shall be conducted in compliance with the standards for radiation protection set out in Subchapter D, Standards for Protection Against Radiation, except for releases of radioactivity in effluents from the NORM waste disposal facility, which shall be governed by §336.1011(b). The licensee is also required to conduct analyses of the protection of individuals during operations, and those analyses shall include assessments of expected doses due to routine operations and potential accidents during handling, storage, processing, and disposal of NORM waste. The word "doses" was substituted for "exposures" and the word "potential" was substituted for "likely" in response to comments. Adopted new §336.1011(d) requires that the location and characteristics of a NORM waste disposal facility must preclude potential off-site migration or transport of radioactive materials or ready access to critical exposure pathways. This requirement is consistent with existing rules for licensing of alternative methods of disposal of radioactive material under §336.513(c)(2). Adopted new §336.1011(e) describes the analyses required to demonstrate protection of the general population from releases of radioactivity. Adopted new §336.1011(f) requires that the NORM waste disposal facility must be located, designed, constructed, operated, and closed so that long-term isolation and custodial care for long-term stability will not be required beyond the time that the licensee occupies the NORM waste disposal facility. Section 336.1011(g) in the proposal has been moved to adopted §336.1009(5) for consistency with other standards for issuance of a license.

§336.1013, Terms and Conditions of License

New §336.1013 is adopted to establish terms and conditions for a NORM waste disposal facility license. Adopted new subsection (a) is a general provision requiring that 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. Adopted new subsection (b) provides that the licensee shall be subject to the applicable provisions of THSC, Chapter 401, also known as the Texas Radiation Control Act. Adopted new subsection (c) provides that any license may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application. Adopted new subsection (d) requires that each person licensed by the commission under this subchapter shall confine possession and use of NORM waste to the locations and purposes authorized in the license.

Adopted new subsection (e) requires that no NORM waste may be disposed of until the executive director has inspected the NORM waste disposal facility and has found it to be in conformance with the description, design, and construction described in the application for a license. Section 336.1013(e)(2) in the proposal has been deleted in response to comments. Adopted new subsection (f) requires that no NORM waste may be received for disposal at the NORM waste disposal facility until the executive director has approved financial assurance in writing. Adopted new subsection (g) provides that the commission may incorporate additional requirements and conditions in any license at the time of issuance, or thereafter, by appropriate rule or order. Adopted new subsection (h) provides that each license shall be issued for an initial term of ten years from the date of issuance. After the initial ten years, the commission may renew the license for one or more terms of ten years. The authority to dispose of radioactive material expires on the date stated in the license.

§336.1015, Maintenance of Records and Reports

New §336.1015 is adopted to provide requirements for recordkeeping and maintenance of records. Adopted new subsection (a) requires that each licensee shall maintain any records and make any reports as may be required by the conditions of the license, by the rules in this chapter, or by orders of the commission. Adopted new subsection (b) provides that records that are required by the rules in this chapter or by license conditions must be maintained for a period specified by the appropriate rules or by license condition. Adopted new subsection (c) provides that each record required by this chapter must be legible throughout the specified retention period. Adopted new subsection (d) provides that if there is a conflict between the commission's rules, license condition, or other written approval or authorization from the executive director pertaining to the retention period for the same type of record, the longest retention period specified takes precedence. Adopted new subsection (e) requires that the licensee shall record the location and the quantity of wastes disposed and shall transfer these records upon license termination to the executive director and to such other government agencies or officials as designated by the commission.

Adopted new subsection (f) describes receipt, acceptance, and manifesting requirements for shipments of NORM waste. Adopted new subsection (g) requires that each licensee authorized to dispose of waste received from other persons shall file a copy of its financial report or a certified financial statement annually with the executive director in order to update the information base for determining financial qualifications. Adopted new subsection (h) provides requirements for the submittal of annual reports by the licensee. Adopted new subsection (i) provides requirements for maintaining an electronic recordkeeping system.

§336.1017, Tests at Naturally Occurring Radioactive Material Waste Disposal Facilities

New §336.1017 is adopted to provide that each licensee shall perform or allow the executive director to perform any tests that the executive director deems appropriate or necessary for the administration of the rules in this chapter.

§336.1019, Liability Coverage and Funding for Naturally Occurring Radioactive Material Waste Disposal Facility Closure and Stabilization

New §336.1019 is adopted to provide financial assurance and liability coverage requirements for NORM waste disposal facilities. Adopted new subsection (a) requires that the applicant shall provide assurance 60 days prior to the initial receipt of waste that sufficient funds will be available to carry out closure and stabilization of the NORM waste disposal facility. Adopted new subsection (b) requires that the assurance must be based on cost estimates approved by the executive director, which reflect the commission-approved plan for closure and stabilization of the NORM waste disposal facility. The applicant's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the closure and stabilization work. Adopted new subsection (c) provides that the licensee's financial assurance mechanism and cost estimates must be reviewed annually 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. Adopted new subsection (d) provides that the amount of financial assurance must change in accordance with the predicted cost of future closure and stabilization. Adopted new subsection (e) requires that 60 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 NORM waste disposal facility in a manner that meets the requirements of 30 TAC Chapter 37, Financial Assurance. Adopted new subsection (e) also requires that financial assurance mechanisms submitted to comply with this section must meet the requirements specified in Chapter 37.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted 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 adopted rules is to allow commercial injection well disposal of NORM waste generated by public water systems. These rules will benefit public water systems by providing an additional disposal option for NORM waste generated from the treatment of public water supplies. It is not anticipated that the adopted 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 because the adopted rules would only apply to commercial Class I injection well disposal of NORM waste generated by public water systems. Therefore, the commission concludes that these adopted rules do not meet the definition of a major environmental rule.

Furthermore, the adopted rulemaking action does not meet any of the four applicability requirements listed in Texas Government Code, §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.

In this case, the adopted rules do not meet any of these applicability requirements. First, there are no applicable federal standards that these rules would address. Disposal of NORM waste is not subject to standards established by the Nuclear Regulatory Commission or the United States Environmental Protection Agency (EPA). Second, the adopted rules do not exceed an express requirement of state law. THSC, Chapter 401, authorizes the commission to regulate the disposal of most radioactive material in Texas. However, there are no specific requirements for the disposal of NORM waste in the Texas Radiation Control Act that are exceeded by these adopted rules. Third, there is no delegation agreement that would be exceeded by these adopted rules because no delegation agreement relates to this subject matter area. Fourth, the commission does not propose these rules solely under the commission's general powers. THSC, Chapter 401, §§401.051, 401.103, 401.104, and 401.412, specifically authorize the commission to adopt rules for the control of sources of radiation and the licensing of the disposal of radioactive materials.

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. No comments were received on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed an assessment of whether the adopted rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rules is to allow commercial injection well disposal of NORM waste generated by public water systems. These adopted rules will only apply to commercial Class I injection well disposal of NORM waste generated by public water systems. EPA has adopted federal standards for radionuclides in drinking water; some public water systems subject to these federal standards will need to manage and dispose of their treatment residuals containing NORM in a manner that is protective of human health and safety and the environment. The adopted rules would substantially advance this stated purpose by allowing commercial injection well disposal of NORM waste streams generated by public water systems.

Promulgation and enforcement of these adopted rules would be neither a statutory nor a constitutional taking of private real property because the adopted rules do not affect real property. In particular, there are no burdens imposed on private real property, and the adopted rules would allow a new option for the commercial disposal of NORM waste for public water systems dealing with NORM waste generated by the treatment of public water supplies. The existing prohibition of commercial disposal of NORM waste is removed to allow commercial Class I injection well disposal of NORM waste generated by public water systems. 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 adopted rules will not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rules are not subject to the Texas Coastal Management Program.

PUBLIC COMMENT

The comment period closed on February 28, 2005. A public hearing on this proposal was held in Austin on February 24, 2005.

Written and/or oral comments were received from Hance Scarborough Wright Woodward & Weisbart (HSWWW), the Office of Public Interest Counsel (OPIC), and EPA, Region 6 Ground Water/Underground Injection Control Section.

Oral comments were also received from the Texas Radiation Advisory Board (TRAB) at its quarterly meeting on February 26, 2005.

RESPONSE TO COMMENTS

TRAB generally supported the proposed rules and recommended the adoption with minor editorial changes. TRAB commented that proposed §336.1005, Disposal Method, should state explicitly that NORM waste from public water systems is authorized for disposal.

The commission agrees with this comment and is amending §336.1005 to add the words "from public water systems" to provide that only NORM waste from public water systems may be disposed.

TRAB commented that proposed §336.1007(a)(1) should include the specific activity of radionuclides to be disposed.

The commission agrees with this comment and is amending §336.1007(a)(1) to require a license applicant to submit a projected inventory of radionuclides in the waste to be disposed and the estimated concentration, specific activity, and total radioactivity by radionuclide.

TRAB commented that the word "doses" should be substituted for "exposures," and that the word "potential" should be substituted for "likely" in §336.1011(c).

The commission agrees with this comment and is amending §336.1011(c) to provide a better description of information required in the analysis of the performance objectives.

EPA stated that it does not believe the proposed rules modify the delegated underground injection control program or the applicable rules and regulations. EPA commented that some NORM waste may tend to be in the form of slurries that may be more difficult to inject, and that federal regulations provided that the maximum allowed operating injection pressure in injection wells must not initiate new fractures or extend existing fractures in the injection zone.

The commission agrees with these comments. The federal regulation pertaining to limitations on maximum injection pressure is reflected in the commission's underground injection control rule in 30 TAC §331.63(b). The commission considers injection pressure at the wellhead as part of the review of Class I injection well permit applications. The maximum injection pressure is limited in each injection well permit to a value that is calculated to assure no new fractures are initiated and no existing fractures are propagated in the injection zone. The commission made no changes in response to these comments.

OPIC stated that it generally supports the adoption of the proposed rules. OPIC recommended deletion of §336.1013(e)(2), which waives the requirement for the TCEQ's executive director's inspection of the NORM waste disposal facility prior to commencement of waste disposal. OPIC contended that inspection by the executive director is imperative to verify that all construction requirements have been met and to ensure protection of human health and the environment.

The commission agrees with this comment. NORM waste may not be disposed of until the executive director has inspected the NORM waste disposal facility and has found it to be in conformance with the description, design, and construction described in the application for a license. Section 336.1013(e)(2) has been deleted in response to this comment.

HSWWW generally supported the proposed rules but stated that the proposed fees were too high. HSWWW represents the petitioner and commented that the fees should be reduced to a reasonable level that their client can deal with.

HSWWW stated that the proposed application fee of $50,000, the proposed annual fee of $25,000, and the proposed license amendment fee of $10,000 are significantly high for commercial NORM waste disposal facilities and should be reduced. HSWWW commented that if the proposed fees remain unchanged, the facilities would be obligated to increase disposal costs charged to public water systems, which would result in high costs for ultimate end use, the consumers.

HSWWW commented that the proposed license application fee of $50,000 is excessive when compared to application fees for similar activities. HSWWW noted the application fee for Class I non-hazardous injection well permit applications is $100 per well, plus a notice fee of $50; Class I hazardous waste injection well permit application fees are $2,000 per well, plus a notice fee of $50; hazardous waste disposal facility permit application fees range from $2,000 to a maximum of $50,000; Railroad Commission of Texas oil and gas waste injection well application fees are $100 per well; and the Texas Department of State Health Services (TDSHS) NORM waste storage and processing license application fee is $9,999.

HSWWW commented that the proposed $25,000 annual fee is excessive when compared to other annual fees. HSWWW noted that the TDSHS has an annual fee of $9,999 for the commercial processing of NORM; the annual fee for Class I nonhazardous injection wells ranges from $500 to $5,000; hazardous waste facilities are subject to an annual fee ranging from $2,500 to $25,000. HSWWW commented that the annual fee for commercial NORM waste disposal facilities should be equivalent to the Class I nonhazardous waste facility annual fee.

HSWWW commented that the $10,000 license amendment fee is excessive when compared to amendment applications for similar activities. HSWWW noted that the amendment application fee for Class I nonhazardous injection well permits is $100 per well; the amendment application fee for a Class I hazardous injection well is $2,000 per well. HSWWW stated that it could not identify any other regulations that require the licensee or permittee to pay a license amendment application fee for commercial waste management activities. Accordingly, HSWWW expressed the belief that it is not necessary to implement a license amendment application fee applicable to commercial NORM waste disposal facilities.

The commission partially agrees with these comments. The commission is a fee-based agency; that is, the commission's costs are covered, in a large part, by the fees from the entities that the commission regulates. Some of the fees referenced by HSWWW, such as the $100 application fee for a Class I nonhazardous injection well, are set by statute and are far below the commission's actual cost for processing an application of this type. Other fees collected by the commission cover the actual cost of processing applications for Class I nonhazardous injection wells. Texas Health and Safety Code, §401.412(d), provides that the commission may assess and collect an annual fee for each license and registration and for each application in an amount sufficient to recover its reasonable costs. The proposed fees are based on estimates of the time required for various categories of employees to conduct activities related to licensing and inspection of regulated facilities. The proposed fees are consistent with the commission's actual cost of processing similar types of applications, and are therefore, not considered to be excessive. The commission's current fee structure for radioactive material licenses ranges from $10,000 per year for inspection and monitoring of an inactive buried waste site to $500,000 for an initial application fee for a low level radioactive waste disposal license. The commission recognizes that licensing and disposal costs incurred by water treatment facilities may be passed on and may result in increased costs to the consumer.

HSWWW stated that the DSHS NORM waste storage and processing license application fee is $9,999. This fee is actually $19,998 for a NORM commercial processing license as prescribed in 25 TAC §289.204(e)(32), and the fee is assessed every two years. A NORM waste commercial processing facility, otherwise known as a decontamination facility, is not directly comparable to a NORM waste disposal facility. A NORM waste decontamination facility is a temporary facility used for decontamination of equipment and the processing and/or storage of NORM waste. A NORM waste disposal facility is a permanent facility where the waste remains in place for perpetuity. Thus, the fees for these two distinct types of facilities are not directly comparable. The fees for a NORM waste disposal facility licensed by the commission would be more directly comparable to fees charged by the DSHS for an 11e.(2) by-product material disposal facility. DSHS charges $292,757 to process a new application for an 11e.(2) disposal facility. This is approximately six times the $50,000 NORM waste disposal application fee proposed by the commission. DSHS charges a biennial fee of $95,202 for an operational 11e.(2) facility. On an annualized basis, this is approximately two times the $25,000 annual fee proposed by the commission.

The commission agrees that the renewal of a license requires a lesser degree of review than that required for processing a new license application; therefore, the fee required for the renewal of a license issued under Subchapters F and K has been reduced from $50,000 to $35,000 in response to this comment.

Subchapter A. GENERAL PROVISIONS