ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART III. Texas Feed and Fertilizer Control Service/Office of the Texas State Chemist CHAPTER 65.Commercial Fertilizer Rules Inspection, Sampling, and Analysis 4 TAC sec.65.51 The Office of the Texas State Chemist, Feed & Fertilizer Control Service, adopts an amendment to sec.65.51 of the Commercial Fertilizer Rules without changes to the proposed text as published in the February 11, 1997 issue of the Texas Register (22 TexReg 1557). This action is taken to reflect changes in the name of the document referred to and to permit the Service to select alternate methods when such selection is scientifically sound. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. 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. Issued in Austin, Texas, on May 14, 1997. TRD-9706368 Dr. George W. Latimer, Jr. State Chemist Texas Feed and Fertilizer Control Service/Office of the State Chemist Effective date: June 3, 1997 Proposal publication date: February 11, 1997 For further information, please call: (409) 845-1121 TITLE 13. CULTURAL RESOURCES PART IV. Records Management Interagency Coordinating Council CHAPTER 51.Authentication of Electronic Information 13 TAC sec.51.1, sec.51.3 The Records Management Interagency Coordinating Council adopts new sec.51.1 and sec.51.3, concerning authentication of governmental electronic records. Sections 51.1 and 51.3 are adopted without changes to the proposed text as published in the January 17, 1997, issue of the Texas Register (22 TexReg 820). The sections establish standards for government bodies to authenticate on-line electronic documents by means of a digital signature or a declaration of an official source. No comments were received following publication of the proposed sections. The sections are adopted under the authority of the Texas Government Code, sec.441.053, which provides the Records Management Interagency Coordinating Council with the authority to adopt rules to improve the state's management of records. 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. Issued in Austin, Texas, on May 15, 1997. TRD-9706377 Robert S. Martin Member Records Management Interagency Coordinating Council Effective date: June 4, 1997 Proposal publication date: January 17, 1997 For further information, please call: (512) 463-5460 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 114, 117, 119, 120, 121, 122, 123, 124, 125, 126. 19 TAC (Editor's note: The following adopted sections submitted by the Texas Education Agency will be serialized beginning in the June 3, 1997, issue of the Texas Register). The effective date of adoption specified is September 1, 1998. Chapter 114. Texas Essential Knowledge and Skills for Languages Other Than English. Subchapter A. Elementary. 19 TAC sec.114.1, sec.114.2 Subchapter B. Middle School. 19 TAC sec.114.11, sec.114.12 Subchapter C. High School. 19 TAC sec.sec.114.21-114.26 Chapter 117. Texas Essential Knowledge and Skills for Fine Arts. Subchapter A. Elementary. 19 TAC sec.sec.117.1-117.19 Subchapter B. Middle School. 19 TAC sec.sec.117.31-117.40 Subchapter C. High School. 19 TAC sec.sec.117.51-117.67 Chapter 119. Texas Essential Knowledge and Skills for Agricultural Science and Technology Education. Subchapter A. Introductory, Middle School. 19 TAC sec.sec.119.1-119.3 Subchapter B. Comprehensive, High School. 19 TAC sec.sec.119.11-119.13 Subchapter C. Exploratory, High School. 19 TAC sec.sec.119.21-119.28 Subchapter D. Technical, High School. 19 TAC sec.sec.119.41-119.69 Subchapter E. Agricultural Industry, High School. 19 TAC sec.sec.119.81-119.88 Subchapter F. Work-based Learning, High School. 19 TAC sec.119.101, sec.119.102 Chapter 120. Texas Essential Knowledge and Skills for Business Education. Subchapter B. Exploratory, High School. 19 TAC sec.sec.120.21-120.27 Subchapter C. Technical, High School. 19 TAC sec.sec.120.41-120.49 Subchapter D. Comprehensive or Work Based, High School. 19 TAC sec.sec.120.61-120.66 Subchapter E. Research Based, High School. 19 TAC sec.120.81, sec.120.82 Chapter 121. Texas Essential Knowledge and Skills for Health Science Technology Education. Subchapter A. Coherent Sequence, High School. 19 TAC sec.sec.121.1-121.5 Subchapter B. Scientific, High School. 19 TAC sec.sec.121.11-121.15 Subchapter C. Integrated Occupational, High School. 19 TAC sec.sec.121.21-121.26 Subchapter D. Research, High School. 19 TAC sec.121.31, sec.121.32 Chapter 122. Texas Essential Knowledge and Skills for Home Economics Education. Subchapter A. Home Economics Foundations, Middle School. 19 TAC sec.122.1, sec.122.2 Subchapter B. Home Economics Foundations, High School. 19 TAC sec.sec.122.11-122.14 Subchapter C. Family Studies and Human Services, High School. 19 TAC sec.sec.122.21-122.24 Subchapter D. Child Development, Education, and Services; High School. 19 TAC sec.sec.122.31-122.34 Subchapter E. Nutrition and Wellness, Food Science and Technology; High School. 19 TAC sec.sec.122.41-122.43 Subchapter F. Hospitality, High School. 19 TAC sec.sec.122.51-122.54 Subchapter G. Consumer and Resource Management, High School. 19 TAC sec.sec.122.61-122.63 Subchapter H. Textiles and Apparel, High School. 19 TAC sec.sec.122.71-122.74 Subchapter I. Environmental Design, High School. 19 TAC sec.sec.122.81-122.84 Subchapter J. Research, High School. 19 TAC sec.122.91, 122.92 Subchapter K. Other Provisions, High School. 19 TAC sec.sec.122.101-122.103 Chapter 123. Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education. Subchapter A. Overview, Middle School. 19 TAC sec.123.1, sec.123.2 Subchapter B. Exploratory, Middle School. 19 TAC sec.sec.123.11-123.16 Subchapter C. Overview, High School. 19 TAC sec.sec.123.31-123.33 Subchapter D. Exploratory, High School. 19 TAC sec.sec.123.41-123.47 Subchapter E. Technical, High School. 19 TAC sec.sec.123.61-123.68 Subchapter F. Scientific, High School. 19 TAC sec.sec.123.81-123.83 Subchapter G. Research, High School. 19 TAC sec.sec.123.91-123.93 Chapter 124. Texas Essential Knowledge and Skills for Marketing Education. Subchapter A. Introductory, High School. 19 TAC sec.124.1, sec.124.2 Subchapter B. Exploratory, High School. 19 TAC sec.sec.124.11-124.14 Subchapter C. Technical, High School. 19 TAC sec.sec.124.21-124.25 Subchapter D. Comprehensive, High School. 19 TAC sec.sec.124.31-124.33 Subchapter E. Specialized, High School. 19 TAC sec.sec.124.41-124.47 Subchapter F. Research, High School. 19 TAC sec.124.61, sec.124.62 Chapter 125. Texas Essential Knowledge and Skills for Trade and Industrial Education. Subchapter A. Transportation Systems, High School. 19 TAC sec.sec.125.1-125.7 Subchapter B. Construction-Maintenance Systems, High School. 19 TAC sec.sec.125.21-125.30 Subchapter C. Electrical-Electronics Systems, High School. 19 TAC sec.sec.125.41-125.47 Subchapter D. Metal Technology Systems, High School. 19 TAC sec.sec.125.61-125.65 Subchapter E. Industrial and Manufacturing Systems, High School. 19 TAC sec.sec.125.71-125.80 Subchapter F. Communication and Media Systems, High School. 19 TAC sec.sec.125.91-125.99 Subchapter G. Personal and Protective Service Systems, High School. 19 TAC sec.sec.125.111-125.115 Subchapter H. Research, High School. 19 TAC sec.125.121, sec.125.122 Chapter 126. Texas Essential Knowledge and Skills for Technology Applications. Subchapter A. Elementary. 19 TAC sec.sec.126.1-126.3 Subchapter B. Middle School. 19 TAC sec.126.11, sec.126.12 Subchapter C. High School. 19 TAC sec.sec.126.21-126.29 Chapter 127. Texas Essential Knowledge and Skills for Career Orientation. Subchapter A. Middle School. 19 TAC sec.127.1, sec.127.2 Subchapter B. High School. 19 TAC sec.127.11, sec.127.12 PART VIII. Texas Racing Commission CHAPTER 303.General Provisions SUBCHAPTER D.Texas Bred Incentive Programs Program for Horses 16 TAC sec.303.93 The Texas Racing Commission adopts an amendment to sec.303.93, concerning the rules for the Texas Bred Incentive Program for quarter horses without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2842). The amendment was presented to the Commission as a petition for rulemaking under 16 Tex. Administrative Code sec.307.303. The petitioner is the Texas Quarter Horse Association, the officially designated breed registry for quarter horses in Texas. The amendment is adopted to create a clearly defined mechanism and set of standards to govern the exercise of duties conferred on the petitioner. The amendment gives detailed guidance for the functioning of the Texas Bred Incentive Program for quarter horses and for the standards and procedures for determining eligibility and conferring awards. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08, which authorizes the commission to adopt rules relating to the accounting, audit, and distribution of all amounts set aside for the Texas-bred program. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706612 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 CHAPTER 305.Licensing for Pari-mutuel Racing SUBCHAPTER B.Individual Licenses 16 TAC sec.305.35 The Texas Racing Commission adopts an amendment to sec.305.35 concerning occupational licensing categories and fees without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2844). The amendment is adopted to ensure the Commission's occupational licensing function will operate efficiently and effectively. The amendment deletes certain licensing categories for employees of racetrack associations, which are being consolidated into one association staff category. In addition, the amendment deletes the "Outrider" licensing category, which will be consolidated in the "Official" category. The amendment also adds a licensing category for "Watchman" and modifies the "Groom" category to include "Hot Walker". No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.5.01, which authorizes the commission to prescribe reasonable license fees for each category of license; and sec.7.02, which requires the commission to adopt categories of licenses for the various occupations involved in pari-mutuel racing. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706609 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 CHAPTER 309.Operation of Racetracks SUBCHAPTER D.Totalisator Operations 16 TAC sec.309.402, sec.309.403 The Texas Racing Commission adopts an amendment to sec.sec.309.402-309.403 concerning the location and activation of the stop betting switch at pari-mutuel racetracks without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2845). The amendments are adopted to ensure pari-mutuel racetracks have some flexibility with respect to the construction of their facilities while the integrity of the racing and wagering is maintained. The amendment changes the requirements with respect to the location of the stop betting switch at pari-mutuel racetracks, but maintains the requirement that the switch be activated only on the order of the stewards or racing judges. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the construction and operation of pari-mutuel racetracks; and sec.11.01, which authorizes the commission to adopt rules relating to the strict regulation of pari-mutuel wagering. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706608 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 CHAPTER 313.Officials and Rules of Horse Racing SUBCHAPTER B.Entries, Declarations, and Allowances 16 TAC sec.313.104 The Texas Racing Commission adopts an amendment to sec.313.104 concerning registration certificates for race horses without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2845). The amendment is adopted to ensure the records of the official breed registries will remain as up-to-date as possible. The amendment was presented as a part of a petition for rulemaking by the Texas Quarter Horse Association. The amendment restricts the racing eligibility of horses that have been transferred until the new owner has registered with the breed registry. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the construction and operation of pari-mutuel racetracks. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706607 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 16 TAC sec.313.106 The Texas Racing Commission adopts an amendment to sec.313.106 concerning the close of entries at pari-mutuel horse racetracks without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2846). The amendment is adopted to ensure the commission's rules will be more easily understood and enforced. The amendment deletes an obsolete provision relating to endorsed races. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the construction and operation of pari-mutuel racetracks. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706606 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 16 TAC sec.313.111 The Texas Racing Commission adopts an amendment to sec.313.111 concerning the maximum age for a horse to participate in a pari-mutuel race in this state without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2846). The amendment is adopted to maximize the pool of horses available to participate in pari-mutuel races without sacrificing the safety of the horses. The amendment permits an older horse to continue to participate, provided the horse continues to win in officially sanctioned pari-mutuel races. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the construction and operation of pari-mutuel racetracks. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706605 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 16 TAC sec.313.450 The Texas Racing Commission adopts an amendment to sec.313.450 concerning time trial qualifiers without changes to the proposed text published in the March 18, 1997 issue of the Texas Register (22 TexReg 2847). The amendment is adopted to maintain the integrity of time trial races while safeguarding the participants in the races. The amendment is part of a petition for rulemaking submitted by the Texas Quarter Horse Association. The amendment permits the starting gate to be moved between the time trial races to renovate the racetrack, at the discretion of the stewards. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the construction and operation of pari-mutuel racetracks. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706604 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: June 15, 1997 Proposal publication date: March 18, 1997 For further information, please call: (512) 833-6699 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 313.Athletic Trainers General Guidelines and Requirements 25 TAC sec.313.5, sec.313.7 The Advisory Board of Athletic Trainers (board) adopts amendments to sec.313.5 and sec.313.7 concerning the licensing and regulation of athletic trainers. Section sec.313.5 is adopted with changes to the proposed text as published in the December 20, 1996, issue of the Texas Register (21 TexReg 12287). Section 313.7 is adopted without changes, and therefore the section will not be republished. The amendments extend the time frame during which an applicant who fails the examination three times must submit completed course work in the area(s) of weakness before reapplying for examination, and delete the requirement that hours of academic credit must be semester hours. The sections assure that the regulation of athletic trainers continues to identify competent practitioners. No comments were received concerning the proposed amendments. However, most of the proposed amendments to sec.313.5(b)(1) concerning curriculum requirements for licensure are not being adopted because the board wants to study curriculum requirements further before taking action. The amendments are adopted under Texas Civil Statutes, Article 4512d, sec.5(a), which provides the Advisory Board of Athletic Trainers with the authority to adopt rules consistent with the Act which are necessary for the performance of its duties. sec.313.5.Qualifications. (a) (No change.) (b) Curriculum requirements. Each applicant must have a baccalaureate or post- baccalaureate degree from a college or university which held accreditation, at the time the degree was conferred, from an accepted regional educational accrediting association reported by the American Association of Collegiate Registrars and Admissions Officers. (1) The curriculum requirements approved by the Advisory Board of Athletic Trainers (board) for applicants qualifying under Texas Civil Statutes, Article 4512d (Act), sec.9(1), are as follows. (A) A person shall have a baccalaureate or post-baccalaureate degree with a major program which focuses its content on athletic training or sports medicine. (B) In place of the requirements of subparagraph (A) of this paragraph, a person shall have: (i) a baccalaureate or post-baccalaureate degree; (ii) at least three hours of academic credit from each of the following course areas: (I) human anatomy; (II) health, disease, nutrition, fitness, wellness, or drug and alcohol education; (III) kinesiology; (IV) human physiology or physiology of exercise; and (V) athletic training; and (iii) an apprenticeship in athletic training meeting the following guidelines. (I) The program shall be under the direct supervision of and on the same campus as a Texas licensed athletic trainer, or if out-of-state, the college or university's certified or state licensed trainer. The athletic trainer must be an employee of the college or university. The athletic trainer shall not be an outside consultant or independent contractor unless the athletic trainer is a temporary supervisor (less than one semester) due to death, medical emergency, or other emergency of the supervising athletic trainer who was an employee of the college or university. (II) The apprenticeship must be a minimum of three years and 1,800 clock hours. Each year must be a minimum of 600 clock hours per any consecutive 12 months. Hours in excess of 600 per year are not cumulative. Hours in the classroom do not count toward apprenticeship hours. (III) The hours must be completed in the college or university training room setting and on the field or in college or university sanctioned intercollegiate sports programs except a maximum of 100 clock hours per year may be accepted from one or a combination of the following settings: (-a-) hours completed in a clinic setting which the college or university's athletic trainer has approved. These hours must be under the direct supervision of a licensed physician, licensed athletic trainer, or licensed physical therapist; or (-b-) hours completed in a secondary school setting arranged by the college or university's athletic trainer. Such hours are limited to sports in grades 7 to 12. These hours must be under the direct supervision of a licensed athletic trainer. (IV) The apprenticeship shall be fulfilled while enrolled as a student at the college or university where he or she is completing the apprenticeship for at least eight months during any consecutive 12 months counted under subclause (II) of this clause. (V) The apprenticeship must offer work experience in a variety of sports. It shall include instruction by the college or university's athletic trainer in prevention of injuries, emergency care, rehabilitation, and modality usage. (2) (No change.) (c) (No change.) (d) General. (1)-(2) (No change.) (3) Documentation of the apprenticeship program must be provided by completion of the proper forms prescribed by the board. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706613 Michael Daniel Saly Chair Texas Department of Health Effective date: June 8, 1997 Proposal publication date: December 20, 1996 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 7.Memoranda of Understanding 30 TAC sec.7.102 The Texas Natural Resource Conservation Commission (commission) adopts new sec.7.102, concerning the Memorandum of Understanding ("MOU") between the Texas State Soil and Water Conservation Board (board) and the Texas Natural Resource Conservation Commission. New sec.7.102 is adopted with changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11435). EXPLANATION OF ADOPTED RULE The MOU will clarify jurisdictional authority, program responsibility and provide procedural mechanisms for point and non-point source (NPS) programs. The agreement provides a more integrated coordination of effort on matters relating to pollution abatement. There was a 30-day comment period in which no comments were received. However, the two agencies have worked to provide greater clarity as to their respective roles in handling compliance inspections and complaint investigations. The MOU, as adopted, also provides more specific detail as to procedural timeframes in addressing possible enforcement actions. The MOU is in fulfillment of requirements and policy directives found in the Agriculture Code, Title 7, Chapter 20, sec.201.026. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to adopt a MOU between the board and the commission. This MOU will define the jurisdictional authority of both agencies for water quality programs and it will provide for procedural mechanisms relating to water quality protection programs. The MOU will not burden private real property as it does not propose any substantive regulations impacting private real property. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM (CMP) The executive director has reviewed the rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11, relating to Actions and Rules Subject to the CMP, nor will affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the adopted rule is not subject to the CMP. HEARINGS AND COMMENTERS The commission did not schedule a public hearing on the proposed rules and none was requested. The commission did not receive any written comments on the proposed rules. ANALYSIS OF TESTIMONY Although no comments were submitted, the commission and board felt the need to further clarify their respective roles in the handling of compliance inspections and compliant investigations. The MOU now provides more specific details in addressing those issues as well giving greater information in terms of procedural time frames. Furthermore the MOU has made some minor stylistic changes to the format and structure in order to provide greater clarity as to the two agencies responsibilities. All of the changes made did not affect any new persons and are intended to provide the regulated community greater descriptive information into how the two agencies will address nonpoint source pollution abatement in protecting water quality. STATEMENT OF STATUTORY AUTHORITY The new section is adopted under the Water Code, sec.5.103, which authorizes the commission to adopt rules as necessary for the performance of its functions, and Agriculture Code, Title 7 Chapter 201, sec.201.026, which provides authorization for a coordination of efforts between the Texas State Soil and Water Conservation Board and the Texas Natural Resource Conservation Commission relating to water quality programs. sec.7.102.Adoption of Memoranda of Understanding between The Texas State Soil and Water Conservation Board and The Texas Natural Resource Conservation Commission. (a) This rule contains the memorandum of understanding ("MOU") between the Texas State Soil and Water Conservation Board and the Texas Natural Resource Conservation Commission, which sets forth the coordination of jurisdictional authority, program responsibility, and procedural mechanisms for point and nonpoint source pollution programs. (1) Whereas, the Texas State Soil and Water Conservation Board, here within called the Board, is the state agency with the primary responsibility for activities relating to agricultural and silvicultural nonpoint source (NPS) pollution abatement; and (2) Whereas, the board shall represent the State before the United States Environmental Protection Agency (EPA), or other federal agencies on matters relating to agricultural and silvicultural nonpoint source pollution abatement; and (3) Whereas, for purposes of this MOU, the board is responsible for NPS pollution abatement activities on all agricultural and silvicultural land as defined by Senate Bill (SB) 503, Texas 73rd State Legislature; and (4) Whereas, the board has established and implemented a water quality management plan certification program, in accordance with SB 503 of the Texas 73rd State Legislature for agricultural and silvicultural lands; and (5) Whereas, the Texas Natural Resource Conservation Commission here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the State related to the quality of water and air; and (6) Whereas, the commission has been designated as the lead agency for the Federal Clean Water Act, sec.319 program administered by the EPA; and (7) Whereas, the commission shall coordinate all its activities related to this MOU with the board; and (8) Whereas, consistent with the intent of Federal Clean Water Act, sec.319, the board and the commission are committed to the development and implementation of a coordinated NPS pollution program for the State; and (9) Whereas, for the purpose of this MOU, the commission is responsible for the enforcement of all point source and NPS pollution regulations, including that on agricultural and silvicultural lands; and (10) Whereas, consistent with Texas law and public policy, the board and commission mutually desire to protect and maintain a high quality environment and the health of the people of the State; and (11) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows: (b) The Texas Natural Resource Conservation Commission agrees to: (1) Administer, for the State, the Federal Clean Water Act, sec.319 grant program for NPS pollution. The commission will be responsible for coordinating the preparation of grant work programs. (2) Execute cooperative agreements and associated amendments, and grant awards and contracts. The commission will be responsible for monitoring implementation of work programs and providing EPA with necessary financial and programmatic reporting information for non-agricultural/silvicultural surface and ground water work program elements. (3) Implement the provisions of the EPA-approved Federal Clean Water Act, sec.319 management programs for non-agricultural/silvicultural surface and ground water NPS pollution. (4) Complete, under current administrative procedures, all projects and programs for which grant funds have been awarded, under Federal Clean Water Act, sec.319. All future projects and programs implementing the EPA-approved Federal Clean Water Act, sec.319 management program for agricultural/silvicultural NPS pollution, and supported by sec.319 federal grants, will be administered by the board via a separate grant with EPA. (5) Develop and maintain state guidance for all NPS pollution abatement projects other than agricultural or silvicultural NPS pollution projects as described by this MOU and SB 503. (6) Coordinate with the board those compliance and enforcement actions relative to agricultural and silvicultural pollution. (7) Provide to the board all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing citizen complaints related to agricultural and silvicultural pollution. (8) Provide the board with access to the commission's electronic database for all current agricultural waste management plans. (9) Investigate and/or monitor compliance of all animal feeding operations (AFO), as defined under Chapter 321, Subchapter K of this title (relating to Concentrated Animal Feeding Operations), other than those covered by subsection (c)(12) of this section. (10) In response to a general complaint, investigate a facility to determine whether a permit or written authorization under Chapter 321 of this title (relating to Control of Certain Activities by Rule) is required of the facility. If problems are documented or conditions exist which have the potential to adversely impact the environment, the facility owner or operator will have the option of being referred to the board for the purpose of obtaining a certified water quality management plan or obtaining authorization under Chapter 321 of this title from the commission. If the owner or operator of a facility requests referral to the board in order to obtain a certified water quality management plan, the commission will send the board all pertinent documentation within five working days of the investigation. (11) Retain the responsibility for pursuing any enforcement action related to a violation of a commission rule or order which occurred prior to the facility operator/owner obtaining a certified water quality management plan. (12) Pursue appropriate enforcement action in accordance with commission rules against any person referred in accordance with subsection (c)(10) of this section. (c) The Texas State Soil and Water Conservation Board agrees to: (1) Serve as the recipient of grants from EPA for agricultural and silvicultural NPS pollution projects as described in this MOU and SB 503 and funded through Federal Clean Water Act, sec.319. (2) Coordinate directly with the EPA on matters relating to programmatic and financial issues of agricultural and silvicultural projects funded by the board through separate grants from EPA under Federal Clean Water Act, sec.319. Notify the commission in writing on any decision made that results in a change in the programmatic or financial status of a project. (3) Provide the EPA with required reports for all agricultural/silvicultural projects funded through the board by the Federal Clean Water Act, sec.319. Reports will be submitted in accordance with EPA requirements. (4) Develop and maintain state guidance for agricultural or silvicultural NPS pollution as described by this MOU and SB 503. (5) Provide to the commission information about agricultural and silvicultural activities required for the annual evaluation of the state's implementation of the NPS Management Plan. (6) Process citizen complaints related to agricultural and silvicultural NPS pollution in a manner that is consistent with the practices and standards of the commission. (7) Schedule and conduct management meetings with the EPA to review the status of agricultural and silvicultural NPS pollution project/program activities as negotiated with EPA. (8) Develop and maintain a current electronic database to track and document the proceedings of all water quality management plans and corrective action plans. Data recorded will include, but not be limited to, the identification of applicant(s), date of application for each plan, and approval date of each plan. (9) Provide the commission with access to the board's electronic database for all water quality management plans. Software and equipment necessary to facilitate electronic transfer of data should be compatible with that of the commission. (10) Refer to the commission for possible enforcement action any complaint or violation related to a certified water quality management plan for an AFO, a law or rule relating to agricultural or silvicultural nonpoint source pollution for which the board has determined that the necessary corrective action has not been taken. The board, upon referral, shall provide the commission documentation, including but not limited to, any original documents or "certified copies" of the original documents and hard copies of all photographs, sample analyses, correspondence, records and other documents relating to the complaint. (11) Provide the commission with documentation (board rules, policies, guidance, etc.) for development, supervision, and monitoring of individual certified water quality management plans. (12) Investigate complaints and monitor compliance of all AFOs operating under a certified water quality management plan or any facility covered by law or board rule relating to agricultural or silvicultural nonpoint source pollution. (13) Investigate any complaint received by the board to determine whether such a facility will need to obtain authorization from the commission. Those facilities which are determined to require authorization from the commission under Chapter 321 of this title (relating to Control of Certain Activities by Rule) will be referred to the commission within five (5) working days from the date of investigation. If it is determined that the potential for a water quality violation exists at a facility that does not need authorization under Chapter 321 of this title, and the facility owner/operator does not implement a corrective action plan or does not file an application for a certified water quality management plan to resolve the complaint within 45 days of notification of the investigation outcome, the board shall automatically refer the facility to the commission for possible enforcement action, written authorization, or a permit. (14) Refer to the Commission for possible enforcement action, complaints which were initially resolved by an agreement to develop a site specific certified water quality management plan for the involved facility and for which the facility owner/operator has not signed such a plan within ninety (90)days of the date their request for planning assistance was approved by the Soil and Water Conservation District. (15) Refer to the Commission for possible enforcement any complaint received for which there has been an immediate impact to aquatic life. Any investigation by the Board of a complaint related to an AFO holding a certified water quality management plan and for which a violation is documented that causes a situation in which exposure of contaminants to the air, water or land is affecting human health and safety, or will cause serious impact to the environment unless immediate actions are taken, shall be automatically referred to the Commission for possible enforcement action. (d ) Both parties agree to: (1) Work together to refine the existing process for screening and prioritization of project proposals to be funded under Federal Clean Water Act, sec.319. (2) Coordinate efforts in the development and submission of an annual work program to EPA for Federal Clean Water Act, sec.319, funding. (3) Maintain each party's existing level of effort required by the EPA for the implementation of sec.319 programs/projects. (4) Communicate and coordinate directly with each other and the EPA on matters relating to program/project planning and implementation of NPS pollution activities/projects funded by Federal Clean Water Act, sec.319. (5) Provide required reports to the EPA on NPS pollution project activities. Reports will include status of project implementation, summary of information/education activities, monitoring activities, and other outputs satisfactory to EPA. (6) Meet semi-annually to review and discuss the state's NPS water quality program and to refine agency coordination mechanisms. (7) Work together to develop criteria for the development of water quality management programs that satisfy the state water quality standards as established by the Commission. (8) Comply with all relevant state and federal statutes and procedures, and grant conditions, including financial audits, data quality assurance and quality control, and progress reports. (9) Cooperate on activities related to the implementation of the "Texas State Management Plan for Agricultural Chemicals in Ground Water". (e) General conditions: (1) Term of MOU. The term of this MOU shall be from the effective date until termination. (2) Notice of Termination. Any party may terminate this MOU upon a 90 day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of the other agency can this MOU be modified. (3) Cooperation of Parties. It is the intention of the board and the commission that the details of providing the services in support of this MOU shall be worked out, in good faith, by both agencies. (4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or handicap be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance. (5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective agency as follows: Texas Natural Resource Conservation Commission, Attn:________________________________, P.O. Box 13087, Austin, TX 78711-3087 and to the Texas State Soil and Water Conservation Board, Attn:________________________________, P.O. Box 658, Temple, TX 76503-0658. (6) Effective Date of MOU. This MOU is effective upon execution by both agencies. By signing this MOU, the signatories acknowledge that they are acting under proper authority from their governing bodies. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706548 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 9, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 239-4640 CHAPTER 39.Public Notice The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.39.1, 39.5, 39.11, 39.13, and 39.17, concerning applicability and general provisions; and adopts new sec.sec.39.301, 39.303, 39.305, 39.307, 39.309, and 39.311, concerning public notice of radioactive material license applications. These sections are adopted without changes to the proposed text as published in the January 31, 1997, issue of the Texas Register (22 TexReg 1060) and will not be republished. EXPLANATION OF ADOPTED RULE These rules are a companion to the commission's radioactive substance rules. The purpose of these rules is to incorporate certain procedural revisions into the commission's rules to adapt the radioactive substance rules to the existing procedural requirements of the commission. The radioactive substance rules are a result of Senate Bill (SB) 2, First Called Session, 72nd Legislature, and SB 1043, 73rd Legislature, and incorporate, with modifications, rules previously adopted by reference from the Texas Department of Health (TDH). The new rules are needed to adapt the previous TDH rules to commission requirements. Further, they incorporate revisions and additions which are needed to maintain compatibility with the rules of the United States Nuclear Regulatory Commission (NRC). Compatibility of the commission's rules with the federal program is necessary to preserve the status of Texas as an Agreement State under Title 10 Code of Federal Regulations Part 150 and the "Articles of Agreement between the United States Atomic Energy 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." A brief description of the changes to each of the subchapters follows. Commission staff has also prepared an issues paper that describes in more detail the radioactive substance rules and the accompanying procedural revisions. The paper also gives a detailed description of provisions to be incorporated based on NRC requirements. Copies of this issues paper may be obtained by contacting Jace A. Houston at (512) 239-4641, or by mail at the commission, Office of Policy and Regulatory Development, MC 203, P.O. Box 13087, Austin, Texas 78711- 3087. The amendments to Subchapter A revise parts of the commission's general public notice provisions to make them compatible with the radioactive substance rules. The amendments make the commission's public notice requirements generally applicable to license applications under Chapter 336, while certain sections are specifically amended so that they are not applicable to Chapter 336 license applications. The amendments also make conforming changes with regard to environmental analyses and applications for minor amendments. New Subchapter F sets forth the public notice requirements for radioactive material license applications. The new sections establish requirements for when notice must be mailed and/or published and list the required recipients of notice for each type of license. The rules also provide for proof and certification of notice. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate rules previously adopted by reference from the TDH following the transfer of jurisdiction over source material recovery and processing and disposal of radioactive substances to the commission. The rules also maintain compatibility of commission rules with the NRC, which is necessary to preserve the status of Texas as an Agreement State. The rules substantially advance this specific purpose by setting standards for protection against radiation, by adopting regulations for the disposal of radioactive materials, by clearly outlining the regulated community's responsibilities, and by more clearly establishing compatibility with NRC requirements. Promulgation and enforcement of these rules could burden private real property that is the subject of the rules. However, the following exceptions to the application of Texas Government Code Chapter 2007 listed in Texas Government Code sec.2007.003(b) apply to these rules: sec.2007.003(b)(4)--an action that is reasonably taken to fulfill an obligation mandated by federal law; and sec.2007.003(b)(13)--an action that is taken in response to a real and substantial threat to public health and safety, that is designed to significantly advance the health and safety purpose, and that does not impose a greater burden than is necessary to achieve the health and safety purpose. SUMMARY OF COMMENTERS The commission received only one set of written comments regarding the proposed amendments and new language in Chapter 39. The firm of Henry, Lowerre, Johnson, Hess, and Frederick (Henry, Lowerre) submitted comments on the proposed rule, but did not express general support for or opposition to the proposal. ANALYSIS OF TESTIMONY Henry, Lowerre indicated support for the requirement that notice is always given before action is taken on an application. The commenter also requested that Chapter 39 be amended to require notice of the availability of a draft environmental analysis and that the notice be equivalent to federal notice requirements under the National Environmental Policy Act (NEPA). The commission disagrees and has not made changes based on this comment. Issuance of a radioactive material license is not a major federal action for the purposes of conducting an environmental impact statement under NEPA. Therefore, the notice requirements under NEPA do not apply. Rather, the notice provisions under the Texas Radiation Control Act (TRCA), Chapter 401 of the Texas Health and Safety Code, apply. Henry, Lowerre also requested that Chapter 39 be amended to allow for public comment on the draft environmental analysis prepared by the executive director. The commission disagrees and has not made changes based on this comment. Neither TRCA sec.401.113 nor sec.401.263 require that the executive director's environmental analysis undergo public comment prior to its issuance. Rather, the TRCA directs, and the implementing rules require, that an environmental analysis be made available for public comment after issuance and at least 31 days before a hearing, if any. The commenter also suggested that the time period for minor amendments under Subchapters F and G in sec.39.303 be extended from 10 days to 14 or 30 days. The commission disagrees and has not incorporated the suggested change. Although there is no statutory distinction between a major and minor amendment, the standard time period for a minor amendment under the rules of this commission has historically been interpreted as 10 days, the minimum notice period required under the Administrative Procedure Act for commission actions. The minor amendment 10-day time period has been recently repromulgated under 30 TAC sec.39.17(a). The commission believes that the time period for minor amendments should be as consistent as possible for all permits or licenses within the commission's jurisdiction. For this reason, the commission believes that the uniformity provided under sec.39.303 is appropriate. Henry, Lowerre also suggested that published notice under sec.39.307 be provided in at least one newspaper of general circulation in the county in which the facility will be located and its adjacent counties. The rationale indicated was that the definition of a person affected under the TRCA anticipates the possibility that persons may be affected in the county in which the radioactive materials will be located and in any adjacent counties. The commission disagrees and has not made changes based on this comment. The sole published notice provision under TRCA sec.401.114 requires that publication be made in the county in which the facility will be located pursuant to the Texas Government Code, Chapter 313. Chapter 313 also requires that notice be published in the county in which the facility is located and in the adjacent counties only when there is no newspaper of general circulation in the county in which the facility will be located. The commission believes that the relevant standard for determining an affected person is the Texas Water Code sec.5.115. Section 5.115 does not address notice of an affected person nor does it mention the terms "county" or "adjacent county." The commission, therefore, believes that only published notice in the county in which the facility is located is required under TRCA sec.401.114, unless otherwise required by Chapter 313. The commenter also stated that the deadline for public comments in sec.39.303 should be a specific date rather than a generic deadline such as "30 days after the date of publication." The commenter indicated that in situations of multiple newspaper publications, it becomes difficult to know which date is the "final date." The commission disagrees and has not incorporated the suggested changes. The commission believes that the requirement of 30 days after the date of publication provides a specific date. The commission generally has little or no control over the exact date of newspaper publication. Therefore, the commission believes that the 30-day requirement allows for specificity in determination of the date by the reader or noticee. In situations of multiple newspaper publications, the last date of publication of all the newspapers generally prevails as the final date of published notice. The commenter also suggested that sec.39.305 be amended to require mailed notice for radioactive material licenses to property owners within 2 miles of the perimeter of the proposed site. The commission disagrees and has not incorporated the suggested changes. Only one relevant section under the TRCA addresses to whom mailed notice should be sent. Section 401.114, which applies only to a near-surface radioactive waste disposal facility, states that notice shall be mailed to all adjacent property owners. However, the TDH, which had jurisdiction over radioactive waste until 1993, also provided notice to landowners within 1,000 feet of the perimeter of a proposed byproduct disposal site. To preserve the continuity in the notice provided by the TDH, the commission has chosen to preserve the additional notice developed by the TDH. The commission notes that persons who wish to be placed on the mailing list regarding a nearby facility may direct their requests to the chief clerk under 30 TAC sec.39.7. The commenter also suggested that mailed public notice for all contested cases referred to the State Office of Administrative Hearings, which is found in sec.39.309, should be no later than 31 days before the hearing date. The commission disagrees and has not incorporated the suggested changes. TRCA sec.401.114 requires the commission to provide at least 31 days public notice prior to a contested case hearing on a license for a near-surface radioactive waste disposal facility. However, the commission is not required to provide 31 days notice for other types of radioactive material licenses. Therefore, the commission has decided not to impose the additional day of notice upon any other contested permits or licenses. Henry, Lowerre also suggested that the notice of technical review and availability of an environmental analysis, required under sec.sec.39.305, 39.307, and 39.311, be published in English and in Spanish in counties that, in the most recent federal census, had majority Hispanic populations. The commission has not incorporated this comment. The TRCA does not compel that notice be published bilingually. However, the commission has published bilingual notice for certain radioactive material licenses in the past and will consider doing so again on a case-by-case basis. The commenter also suggested that notice of application for a new license for a facility to dispose of radioactive waste or byproduct material should be posted at the perimeter of the facility site. The commission disagrees and has not incorporated this comment. The TRCA does not require that notice be posted at the proposed sites. The commission believes its rules are consistent with the language and intent of the TRCA. SUBCHAPTER A.Applicability and General Provisions 30 TAC sec.sec.39.1, 39.5, 39.11, 39.13, 39.17 STATUTORY AUTHORITY These amendments are adopted under the TRCA, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706495 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 31, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER F.Public Notice of Radioactive Material License Applications 30 TAC sec.sec.39.301, 39.303, 39.305, 39.307, 39.309, 39.311 These new sections are adopted under the Texas Radiation Control Act (TRCA), Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706496 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 31, 1997 For further information, please call: (512) 239-1970 CHAPTER 50.Action on Applications SUBCHAPTER B.Action by the Commission 30 TAC sec.50.17 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.50.17, concerning action on applications. This section is adopted without changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 590) and will not be republished. EXPLANATION OF ADOPTED RULE These rules are adopted as a companion to the commission's radioactive substance rules. The purpose of these rules is to incorporate certain procedural revisions into the commission's rules to adapt the radioactive substance rules to the existing procedural requirements of the commission. The radioactive substance rules are a result of Senate Bill (SB) 2, First Called Session, 72nd Legislature, and SB 1043, 73rd Legislature, and incorporate, with modifications, rules previously adopted by reference from the Texas Department of Health (TDH). The new rules are needed to adapt the previous TDH rules to commission requirements. Further, they incorporate revisions and additions which are needed to maintain compatibility with the rules of the United States Nuclear Regulatory Commission (NRC). Compatibility of the commission's rules with the federal program is necessary to preserve the status of Texas as an Agreement State under Title 10 Code of Federal Regulations Part 150 and the "Articles of Agreement between the United States Atomic Energy 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." A brief description of the changes to the adopted section follows. Commission staff has also prepared an issues paper that describes in more detail the radioactive substance rules and the accompanying procedural revisions. The paper also gives a detailed description of provisions to be incorporated based on NRC requirements. Copies of this issues paper may be obtained by contacting Jace A. Houston at (512) 239-4641, or by mail at the commission, Office of Policy and Regulatory Development, MC 203, P.O. Box 13087, Austin, Texas 78711-3087. The amendments to sec.50.17 allow the commission to incorporate in any radioactive material license at the time of issuance, or thereafter by appropriate rule or order, certain additional requirements and conditions that it deems appropriate or necessary. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate rules previously adopted by reference from the TDH following the transfer of jurisdiction over source material recovery and processing and disposal of radioactive substances to the commission. The rules also maintain compatibility of commission rules with the NRC, which is necessary to preserve the status of Texas as an Agreement State. The rules substantially advance this specific purpose by setting standards for protection against radiation, by adopting regulations for the disposal of radioactive materials, by clearly outlining the regulated community's responsibilities, and by more clearly establishing compatibility with NRC requirements. Promulgation and enforcement of these rules could burden private real property that is the subject of the rules. However, the following exceptions to the application of Texas Government Code Chapter 2007 listed in Texas Government Code sec.2007.003(b) apply to these rules: sec.2007.003(b)(4)--an action that is reasonably taken to fulfill an obligation mandated by federal law; and sec.2007.003(b)(13)--an action that is taken in response to a real and substantial threat to public health and safety, that is designed to significantly advance the health and safety purpose, and that does not impose a greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS A public hearing on this rule was held in Austin on January 16, 1997, at 2:00 p.m. at the commission offices, Building F, Room 2210, 12100 Park 35 Circle, Austin, Texas 78753. No commenters appeared to present testimony at the public hearing. No comments were received regarding the proposed amendments in Chapter 50. STATUTORY AUTHORITY These amendments are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706497 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 CHAPTER 281.Applications Processing SUBCHAPTER A.Applications Processing 30 TAC sec.sec.281.2, 281.3, 281.17-281.23 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.281.2, 281.3, and 281.17-281.23, concerning applications processing. Section 281.23 is adopted with changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 593). Sections 281.2, 281.3, and 281.17-281.22 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULE These rules are adopted as a companion to the commission's radioactive substance rules. The purpose of these rules is to incorporate certain procedural revisions into the commission's rules to adapt the radioactive substance rules to the existing procedural requirements of the commission. The radioactive substance rules are a result of Senate Bill (SB) 2, First Called Session, 72nd Legislature, and SB 1043, 73rd Legislature, and incorporate, with modifications, rules previously adopted by reference from the Texas Department of Health (TDH). The new rules are needed to adapt the previous TDH rules to commission requirements. Further, they incorporate revisions and additions which are needed to maintain compatibility with the rules of the United States Nuclear Regulatory Commission (NRC). Compatibility of the commission's rules with the federal program is necessary to preserve the status of Texas as an Agreement State under Title 10 Code of Federal Regulations Part 150 and the "Articles of Agreement between the United States Atomic Energy 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." A brief description of the changes to the adopted sections follows. Commission staff has also prepared an issues paper that describes in more detail the radioactive substance rules and the accompanying procedural revisions. The paper also gives a detailed description of provisions to be incorporated based on NRC requirements. Copies of this issues paper may be obtained by contacting Jace A. Houston at (512) 239-4641, or by mail at the commission, Office of Policy and Regulatory Development, MC 203, P.O. Box 13087, Austin, Texas 78711-3087. The amendments to sec.281.2 make this chapter applicable to applications for new, amended or renewed radioactive material licenses. The amendments to sec.sec.281.3, 281.17 and 281.18 revise the commission's administrative completeness review provisions to take into account specific requirements for radioactive material licenses. The amended language allows 45 days for administrative completeness review of new, renewal, or major amendment applications, and 30 days for minor amendment applications. The amendments to sec.281.19 and sec.281.20 establish the technical review and notice of deficiency provisions for applications for radioactive material licenses. For new, renewal, or major amendment applications, the technical review period will not exceed 255 days, unless the application is technically deficient, in which case the technical review period may be extended to a maximum of 450 days. For minor amendment applications, the technical review period is 90 days, which may be extended to 150 days for technically deficient applications. The amendments to sec.281.21 and sec.281.22(a) revise the commission's application processing requirements to add specific provisions for radioactive material licenses, including provisions for the preparation of a written environmental analysis for certain licenses. The amendments also revise the compliance summary and technical summary provisions. The amendments to sec.281.23 establish specific requirements for amending radioactive material license applications after commencement of technical review. Section 281.23 is adopted with changes to improve the consistency of the language in subsections (a) and (b) and to make the provisions in subsection (b) applicable to notices of deficiency. Section 281.23 is intended to provide that an application amendment submitted after commencement of technical review that constitutes a major amendment or substantial technical change will be treated as a new application, which will include a new application fee, new initial notice requirements, and a renewed technical review period. If the new application conflicts with the original application, the applicant may choose to withdraw all or part of the original application as needed. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate rules previously adopted by reference from the TDH following the transfer of jurisdiction over source material recovery and processing and disposal of radioactive substances to the commission. The rules also maintain compatibility of commission rules with the NRC, which is necessary to preserve the status of Texas as an Agreement State. The rules substantially advance this specific purpose by setting standards for protection against radiation, by adopting regulations for the disposal of radioactive materials, by clearly outlining the regulated community's responsibilities, and by more clearly establishing compatibility with NRC requirements. Promulgation and enforcement of these rules could burden private real property that is the subject of the rules. However, the following exceptions to the application of Texas Government Code Chapter 2007 listed in Texas Government Code, sec.2007.003(b) apply to these rules: sec.2007.003(b)(4)--an action that is reasonably taken to fulfill an obligation mandated by federal law; and sec.2007.003(b)(13)--an action that is taken in response to a real and substantial threat to public health and safety, that is designed to significantly advance the health and safety purpose, and that does not impose a greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS A public hearing on this rule was held in Austin on January 16, 1997, at 2:00 p.m. at the commission offices, Building F, Room 2210, 12100 Park 35 Circle, Austin, Texas 78753. No commenters appeared to present testimony at the public hearing. The commission received only one set of written comments regarding the proposed amendments in Chapter 281. The firm of Lloyd, Gosselink, Fowler, Blevins & Mathews, P.C. (Lloyd, Gosselink) submitted comments on the proposed rules, but did not express general support for or opposition to the proposal. ANALYSIS OF TESTIMONY Lloyd, Gosselink commented that the proposed processing times for new uranium mining applications in sec.281.19 were too long. The commission disagrees and declines to make changes based on this comment. The processing times for applications filed under Chapter 336 establish the maximum time the agency would take to review a license application. Further, the commission notes generally that the overall processing time for a licensing action is determined, in part, by the quality and technical completeness of the application. Therefore, the commission believes that the indicated maximum time frames are reasonable. STATUTORY AUTHORITY The amendments are adopted under the Texas Radiation Control Act, Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.281.23.Application Amendment. (a) No amendments to an application which would constitute a major amendment under the terms of sec.305.62 of this title (relating to Amendment) or Chapter 336 of this title (relating to Radioactive Substance Rules) can be made by the applicant after the chief clerk has issued notice of the application and draft permit, unless new notice is issued which includes a description of the proposed amendments to the application. For purposes of this section, an attempted transfer of an application shall constitute an amendment requiring additional notice. (b) For applications under Chapter 336 of this title (relating to Radioactive Substance Rules), an application amendment received after commencement of technical review, shall be processed as follows: (1) The executive director shall determine whether the application amendment constitutes a major amendment as defined in sec.336.2 of this title (relating to Definitions) or constitutes a substantial technical change to the application. Substantial technical changes may include changes in proposed waste disposal methods, enlargement or relocation of proposed areas to be licensed, transfer of an application to another applicant, significant changes in proposed facilities or operations, or other changes which will require extensive technical review. (2) An application amendment that constitutes a major amendment or a substantial technical change shall be processed as a new and separate application. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706498 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 CHAPTER 305.Consolidated Permits The Texas Natural Resource Conservation Commission (commission) adopts new sec.sec.305.31, 305.32, and 305.54, and amendments to sec.sec.305.41, 305.42, 305.44, 305.45, 305.52, 305.53, 305.62, 305.63, and 305.66, concerning consolidated permits. Section 305.31 is adopted with changes to the proposal as published in the January 10, 1997, issue of the Texas Register (22 TexReg 600). Sections 305.32, 305.41, 305.42, 305.44, 305.45, 305.52-305.54, 305.62, 305.63, and 305.66 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULE These rules are adopted as a companion to the commission's radioactive substance rules. The purpose of these rules is to incorporate certain procedural revisions into the commission's rules to adapt the radioactive substance rules to the existing procedural requirements of the commission. The radioactive substance rules are a result of Senate Bill (SB) 2, First Called Session, 72nd Legislature, and SB 1043, 73rd Legislature, and incorporate, with modifications, rules previously adopted by reference from the Texas Department of Health (TDH). The new rules are needed to adapt the previous TDH rules to commission requirements. Further, they incorporate revisions and additions which are needed to maintain compatibility with the rules of the United States Nuclear Regulatory Commission (NRC). Compatibility of the commission's rules with the federal program is necessary to preserve the status of Texas as an Agreement State under Title 10 Code of Federal Regulations Part 150 and the "Articles of Agreement between the United States Atomic Energy 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." A brief description of the changes to the adopted sections follows. Commission staff has also prepared an issues paper that describes in more detail the radioactive substance rules and the accompanying procedural revisions. The paper also gives a detailed description of provisions to be incorporated based on NRC requirements. Copies of this issues paper may be obtained by contacting Jace A. Houston at (512) 239-4641, or by mail at the commission, Office of Policy and Regulatory Development, MC 203, P.O. Box 13087, Austin, Texas 78711-3087. New sec.305.31 and sec.305.32 incorporate requirements for emergency orders and emergency impoundment relating to radioactive substances. Section 305.31 is revised to correct two cross-references to the definition of byproduct material, and sec.305.31(h), (i), and (j) are revised to replace the term "security" with a more accurate reference to the appropriate financial assurance mechanism. The amendments to sec.sec.305.41, 305.42, 305.44, and 305.45 revise the commission's procedural requirements relating to contents and submittal of applications to make these requirements applicable to applications for radioactive material licenses. The amendments to sec.305.52 update the existing language to reflect the transfer of jurisdiction over source material recovery and processing and disposal of radioactive substances from the TDH to the commission. The amendments also clarify that this section does not apply to applications for radioactive material licenses. The amendments to sec.305.53 clarify that the fees for radioactive material license applications are calculated according to Chapter 336, Subchapter B of this title (relating to Radioactive Substance Fees). New sec.305.54 sets forth additional application requirements for radioactive material licenses including information regarding land ownership, requirements for written specifications, and provisions for pre-operational monitoring. The amendments to sec.sec.305.62(i), 305.63, and 305.66 revise the commission's procedural requirements relating to permit amendment, renewal, suspension, and revocation to account for certain procedural requirements in the radioactive substance rules. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate rules previously adopted by reference from the TDH following the transfer of jurisdiction over source material recovery and processing and disposal of radioactive substances to the commission. The rules also maintain compatibility of commission rules with the NRC, which is necessary to preserve the status of Texas as an Agreement State. The rules substantially advance this specific purpose by setting standards for protection against radiation, by adopting regulations for the disposal of radioactive materials, by clearly outlining the regulated community's responsibilities, and by more clearly establishing compatibility with NRC requirements. Promulgation and enforcement of these rules could burden private real property that is the subject of the rules. However, the following exceptions to the application of Texas Government Code Chapter 2007 listed in Texas Government Code, sec.2007.003(b) apply to these rules: sec.2007.003(b)(4)--an action that is reasonably taken to fulfill an obligation mandated by federal law; and sec.2007.003(b)(13)--an action that is taken in response to a real and substantial threat to public health and safety, that is designed to significantly advance the health and safety purpose, and that does not impose a greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS A public hearing on this rule was held in Austin on January 16, 1997, at 2:00 p.m. at the commission offices, Building F, Room 2210, 12100 Park 35 Circle, Austin, Texas 78753. No commenters appeared to present testimony at the public hearing. No comments were received regarding the proposed amendments and new language in Chapter 305. SUBCHAPTER B.Emergency Orders, Temporary Orders, and Executive Director Authorizations 30 TAC sec.305.31, sec.305.32 STATUTORY AUTHORITY The new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.305.31.Emergency Orders Relating to Radioactive Substances. (a) When an emergency exists as a result of a matter under the commission's jurisdiction that requires immediate action to protect the public health or safety or the environment, the executive director may recommend and the commission may, without notice or hearing, issue an order stating the existence of the emergency and requiring that actions be taken to meet the emergency. (b) The commission may, without notice or hearing, issue an emergency order directing any action or corrective measure needed to correct or remove the threat to public health or safety or the environment: (1) when the executive director determines that byproduct material, as defined in subparagraph (B) of the definition of "byproduct material" in sec.336.2 of this title (relating to Definitions), or the operation generating the byproduct material threatens the public health or safety or the environment; or (2) to a person responsible for an activity, including a past activity, concerning the recovery or processing of source material or the disposal of byproduct material, as defined in subparagraph (B) of the definition of "byproduct material" in sec.336.2 of this title, if it appears that there is an actual or threatened release of source material or byproduct material that presents an imminent and substantial danger to the public health or safety or the environment, regardless of whether the activity was lawful at the time; or (3) when the commission determines that radioactive substances under its jurisdiction threatens the public health or safety or the environment and that the licensee managing the radioactive substances is unable to remove the threat. (c) An emergency order issued under subsection (b)(2) of this section may restrain the person to whom the order is directed from allowing or continuing the release or threatened release and require the person to take any action necessary to provide and implement an environmentally-sound remedial action plan designed to eliminate the release or threatened release. (d) An emergency order issued under this section takes effect immediately. A person to whom an emergency order is directed shall comply immediately with that order. (e) The emergency order shall be delivered to the person to whom the order is directed by hand delivery or by certified mail, return receipt requested. Affidavit of personal service, proof of mailing to the proper address, or the receipt shall be conclusive evidence of service. In the case of an order issued under subsection (b)(2) of this section, if delivery by hand delivery or certified mail fails, the order may be served on the person by publication once in the Texas Register and once in a newspaper of general circulation in each county of the person's last known address. (f) If the commission issues the emergency order without notice or hearing: (1) In the case of an order issued under subsection (a) or (b)(3) of this section, the commission shall provide the person to whom the order is directed an opportunity for a hearing on written request within 30 days of the date of the order. If a hearing is requested, notice of the hearing shall be given to the person to whom the order is directed by hand delivery or certified mail, return receipt requested, at least 10 days before the hearing. A requested hearing shall be held not earlier than the 11th day and not later than the 20th day following the date of receipt of the hearing request. (2) In the case of an order issued under subsection (b)(1) or (2) of this section, the order shall set a time, at least 10 but not more than 30 days following the date of issuance of the order, and a place for a hearing to be held. (g) All provisions of the emergency order shall remain in full force and effect during the pendency of a hearing, unless otherwise altered by the commission. At the conclusion of the hearing and after the proposal for decision is made, the commission shall make a determination to affirm, modify, or revoke the emergency order and may modify, revoke, or suspend the license based on the determination made. (h) The commission shall use the financial assurance mechanism provided by the licensee to pay the costs of actions and corrective measures that are taken or that are to be taken under this section. The commission shall send to the Comptroller of Public Accounts a copy of its order and the necessary documents authorizing the Comptroller of Public Accounts to: (1) enforce the financial assurance mechanism supplied by the licensee; (2) convert the necessary amount of the financial assurance mechanism into cash; and (3) disburse from the Radiation and Perpetual Care Fund the amount necessary to pay the costs of the commission's actions and corrective measures. (i) If the costs of actions and corrective measures require more funds than the financial assurance mechanism has provided, the commission shall request the Attorney General to seek reimbursement from the licensee or person causing the threat. (j) The commission shall seek reimbursement through a commission order or shall request the Attorney General to file suit for reimbursement if the commission uses the Radiation and Perpetual Care Fund to pay for actions or corrective measures to remedy spills or contamination by radioactive material resulting from a violation of the Texas Radiation Control Act (TRCA), the rules of this chapter, or a license or order issued by the commission under the TRCA or 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706499 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER C.Applications for Permits 30 TAC sec.sec.305.41, 305.42, 305.44, 305.45, 305.52-305.54 The amendments and new section are adopted under the Texas Radiation Control Act (TRCA), Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706500 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER D.Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 30 TAC sec.sec.305.62, 305.63, 305.66 The amendments are adopted under the Texas Radiation Control Act (TRCA), Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706501 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 CHAPTER 335. Industrial Solid Waste and Municipal Hazardous Waste SUBCHAPTER A. Industrial Solid Waste and Municipal Hazardous Waste in General 30 TAC sec.335.13 The Texas Natural Resource Conservation Commission (commission) adopts an amendment to sec.335.13, concerning Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste, with changes to the proposed text as published in the February 18, 1997, issue of the Texas Register (22 TexReg 1787). EXPLANATION OF ADOPTED RULE. The adopted changes will streamline the reporting process for Texas registered generators by deleting duplicative reporting. The adopted rule change will delete from sec.335.13 the requirement for registered generators shipping waste out-of-state to report that information via the Waste Shipment Summary. The data will continue to be captured on the Annual Waste Summary. These changes will increase efficiency for processing waste management summary data. These changes will also ensure the submission of more complete and accurate waste management summary data by generators. The adopted amendment to sec.335.13 includes an administrative revision to the rule language correcting class 1 waste to Class 1 waste. The adopted amendment to sec.335.13(a) clarifies that unregistered generators who ship hazardous or Class 1 waste shall prepare a Waste Shipment Summary (S1) from the manifests. The adopted amendment to sec.335.13(b) clarifies that primary exporters who export hazardous waste from or through Texas to a foreign country shall prepare a Waste Shipment Summary (S1) from the manifests. The adopted amendment to sec.335.13(c) clarifies that primary exporters who import hazardous or Class 1 waste into or through Texas shall prepare a Foreign Waste Shipment Summary (F1) from the manifests. The adopted amendment to sec.335.13(d) reorganizes the information from the original subsection (b) and adds the requirement and due date for the Foreign Waste Shipment Summary (F1). The adopted amendment to sec.335.13(e) is a reference table illustrating the report method based on the generator type, waste type, and shipment type. The adopted amendments to sec.335.13(f)-(g) add definitions for "registered generator" and "unregistered generator." The adopted new sec.335.13(h) adds a definition for "primary exporter/importer" to clarify reporting requirements. The adopted new sec.335.13(i)-(k) now contains the information from the original subsections (a), (c), and (d) and further defines generator as registered/unregistered generator according to the definition. This amendment also adds a cross-reference to 30 TAC sec.335.76(c), concerning Additional Requirements Applicable to International Shipments. The adopted new sec.335.13(l) now contains the information from the original subsection (e). The adopted new sec.335.13(m) now contains the information from the original subsection (f) and changes the internal reference of subsections (c) and (d) to subsections (j) and (k). This amendment also corrects a grammatical error and updates the cross-reference to 30 TAC sec.335.78, concerning Conditionally Exempt Small Quantity Generators. The adopted new sec.335.13(n) now contains the information from the original subsection (g) and cross-references 40 Code of Federal Regulations, sec.262.51, defining primary exporters, with regard to annual reporting. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for this rule under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific adoption of the rule amendment is to streamline reporting procedures for Texas registered generators. The rule amendment will substantially advance this specific purpose by deleting the requirement for the Texas registered generators shipping waste out-of-state to report that information via the Waste Shipment Summary, since the data would continue to be captured on the Annual Waste Summary. Adoption and enforcement of this rule amendment will not affect private real property which is the subject of the rule because the change is only streamlining certain reporting requirements. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council, and has determined that the rulemaking will not have direct or significant adverse effect on any Coastal Natural Resource Areas, nor will the rulemaking have a substantive effect on commission actions subject to the CMP, as defined in 31 TAC sec.505.30(b), relating to Agency Consistency Determination. HEARING AND COMMENTERS. A public hearing was not held for this rulemaking. The comment period closed March 21, 1997. The following commenters submitted written comments in general support or with suggested changes: Amoco Corporation, Brazos Electric Power Cooperative, Inc., Elf Atochem North America, Inc., an environmental consultant, Lockheed Martin, Mobil Oil Corporation, and Texas Instruments. Amoco Corporation, Elf Atochem North America, Inc., Lockheed Martin, Mobil Oil Corporation, and Texas Instruments were all in general support of this rule amendment. Concerning sec.335.13(e), Brazos Electric commented that grammatical changes for clarification are needed for this subsection because the current sentence appears to be incomplete. Brazos Electric also suggested to use either the term "Table" or "Figure," but not both for consistency. The commenter thought it would be helpful for the commission to indicate reporting frequency for all report forms in this subsection. The commission partially agrees with this comment. Clarification has been made to the rule language to grammatically correct the reference to Figure 1: 30 TAC sec.335.13(e) and language has been added to this section. The commission has chosen to use the term "Figure" for consistency in this rulemaking. However, the commission disagrees with indicating the report frequency within this section, because report frequency is captured in sec.335.9(a)(2) for the Annual Waste Summary and the report frequency for the Waste Shipment Summary and Foreign Waste Shipment Summary are captured in sec.335.13(d). The commission has made no change in regards to this portion of the comment. Concerning sec.335.13(f)(2), Brazos Electric commented that the use of "twin" is confusing and should be deleted. The commenter also suggested that the commission delete the word "maquiladora," because the term would only be applicable to those foreign countries where Spanish is the national language. Brazos Electric commented that if these rules applied to only wastes imported from Mexico, then "maquiladora" would be appropriate and in which case "foreign country" should be changed to "Mexico." The commenter suggested a definition for "maquiladora." The commission disagrees with this comment, because maquiladora and twin plant are both valid terms for a United States-owned plant located in Mexico or another foreign country that manufactures, processes, assembles, or uses in some other way raw materials or components that are imported into a foreign country for use in its process by its United States parent company. Therefore, the use of "foreign country" is an appropriate term. The commission has made no change is response to this comment. With regard to sec.335.13(g), Brazos Electric suggested the word "that" should be substituted for the word "but" for grammatical reasons. The commission agrees with this comment, and the grammatical change was made to this subsection. With regard to sec.335.13(k), Brazos Electric commented that primary exporters are required to prepare exception reports, but at no point are the conditions that trigger this requirement presented. The commenter suggested that the commission incorporate part of the second sentence into the first so that the issue is addressed. The commission agrees with this comment, and has changed the rule language for clarification of primary exporters' requirements to prepare exception reports. Concerning sec.335.13(e), Figure 1, an environmental consultant commented that the word "maquiladora" was omitted from the column "waste type" on the "out-of- state primary exporter/importer" row of the referenced Figure 1. The commenter wanted to know whether a maquiladora facility with an out-of-state parent company and an out-of-state United States Environmental Protection Agency (EPA) identification number as the importer of record, shipping waste through Texas to another state, is required to report that shipment via the Foreign Waste Shipment Summary. The commission agrees with this comment, and has added the word "maquiladora" to the column "waste type" on the "out-of-state primary exporter/importer (other state EPA #)" row in Figure 1 for clarification that maquiladora facilities who ship waste through Texas using an out-of-state EPA identification number are required to report that shipment via the Foreign Waste Shipment Summary. With respect to sec.335.13(f)(1), an environmental consultant questioned whether a client who has a solid waste registration number and forgets to submit a recycling notification is still considered a registered generator with a valid solid waste registration number. The commenter expressed concerns regarding clarification of a registered generator. The commission disagrees with this comment, because any generator who is assigned a registration number is a registered generator until that number is requested for deactivation by the generator or the commission. The commission has made no change in response to this comment. Regarding sec.335.13(f)(2), an environmental consultant questioned how the commission defines a "twin plant." The commenter also asked whether a sister company not located in Texas can still be considered a registered generator. The commission agrees that the rule language should read "Texas sister company" instead of "sister company" for rule clarification. The commission has revised the rule accordingly. The commission considers that for a facility to be deemed a twin plant or a maquiladora plant, the sister company or parent company must be located in the United States. STATUTORY AUTHORITY. The amendment is adopted under Texas Water Code, sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under the code and other laws of the State of Texas, and to establish and approve all general policy of the commission; and under the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.024, which authorizes the commission to adopt and promulgate rules consistent with the general intent and purposes of the Act and to establish minimum standards of operation for all aspects of the management and control of municipal hazardous waste and industrial solid waste. sec.335.13. Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste. (a) Unregistered generators who ship hazardous waste or Class 1 waste shall prepare a complete and correct Waste Shipment Summary (S1) from the manifests. (b) Unregistered generators or out-of-state primary exporters who export hazardous waste from or through Texas to a foreign country, shall prepare a complete and correct Waste Shipment Summary (S1) from the manifests. (c) Registered generators or out-of-state primary exporters who import hazardous or Class 1 waste from a foreign country through Texas to another state shall prepare a complete and correct Foreign Waste Shipment Summary (F1) from the manifests. (d) The Waste Shipment Summary (S1) and the Foreign Waste Shipment Summary (F1) shall be prepared in a form provided or approved by the executive director and submitted to the executive director on or before the 25th of each month for shipments originating during the previous month. The unregistered generator or in-state/out-of-state primary exporter must keep a copy of each summary for a period of at least three years from the due date of the summary. These generators are required to prepare and submit a Waste Shipment Summary (S1) and/or Foreign Waste Shipment Summary (F1) only for those months in which shipments are actually made. Conditionally exempt small quantity generators shipping municipal hazardous waste are not subject to the requirements of this subsection. (e) The following figure is a graphic representation illustrating generator, waste type, shipment type, and report method. Figure 1: 30 TAC sec.335.13(e) (f) A registered generator is defined as: (1) an in-state generator who has complied with sec.335.6 of this title (relating to Notification Requirements), and is assigned a solid waste registration number; or (2) a Texas parent or a Texas sister company of a twin plant (maquiladora) who imports hazardous waste or Class 1 waste from a foreign country into or through Texas. (g) An unregistered generator is defined as an in-state generator who is not a conditionally exempt small quantity generator, as defined in sec.335.78 of this title (relating to Special Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity Generators), that ships hazardous waste and/or Class 1 waste using a temporary solid waste registration number and a temporary Texas waste code number assigned by the executive director. (h) A primary exporter/importer is defined as: (1) an in-state generator who imports hazardous waste or Class 1 waste from a foreign country into or through Texas to another state and/or exports hazardous waste to a foreign country; or (2) an out-of-state generator/importer of record who imports hazardous waste or Class 1 waste from a foreign country into or through Texas to another state and/or exports hazardous waste through Texas to a foreign country. (i) The registered/unregistered generator or primary exporter shall retain a copy of each manifest required by sec.335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste) for a minimum of three years from the date of shipment by the registered/unregistered generator or primary exporter. (j) A registered/unregistered generator who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 35 days of the date the waste was accepted by the initial transporter must contact the transporter and/or the owner or operator of the designated facility to determine the status of the hazardous waste or Class 1 waste. (k) A registered/unregistered generator or primary exporter of hazardous waste subject to sec.335.76(c) of this title (relating to Additional Requirements Applicable to International Shipments) must submit an exception report to the executive director if he has not received a copy of the manifest with the handwritten signatures of the owner or operator of the designated facility within 45 days of the date that the waste was accepted by the initial transporter. The exception report must be retained by the registered/unregistered generator or primary exporter for at least three years from the date the waste was accepted by the initial transporter and must include: (1) a legible copy of the manifest for which the generator does not have confirmation of delivery; and (2) a copy of a letter signed by the generator or his authorized representative explaining the efforts taken to locate the hazardous waste or Class 1 waste and the results of those efforts. (l) The periods of record retention required by this section are automatically extended during the course of any unresolved enforcement action regarding the regulated activity. (m) The requirements of subsections (j) and (k) of this section do not apply to generators who generate hazardous waste or Class 1 waste in quantities less than 100 kilograms in a calendar month, or acute hazardous waste in quantities specified in sec.335.78 of this title. (n) Primary exporters of hazardous waste as defined in 40 Code of Federal Regulations (CFR), sec.262.51 must submit an annual report in accordance with the requirements set out in the regulations contained in 40 CFR, sec.262.56, which are in effect as of November 8, 1986. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Issued in Austin, Texas, on May 14, 1997. TRD-9706487 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 4, 1997 Proposal publication date: February 18, 1997 For further information, please call: (512) 239-1966 CHAPTER 336.Radation Rules The Texas Natural Resource Conservation Commission (commission) adopts the repeal of sec.sec.336.1-336.8, concerning radiation rules; and adopts new sec.sec.336.1-336.6, 336.11, 336.12, 336.101-336.113, 336.201, 336.203, 336.205, 336.207, 336.209-336.211, 336.213, 336.215, 336.217, 336.219, 336.301-336.368, 336.401-336.410, 336.501-336.505, 336.512-336.514, 336.521, 336.601-336.606, 336.613-336.629, 336.636, 336.701-336.703, 336.705-336.711, 336.715, 336.716, 336.718-336.737, 336.740-336.743, and 336.801-336.807, concerning radioactive substance rules. The following sections are adopted with changes to the proposal as published in multiple volumes of the January 10, 1997, issue of the Texas Register (22 TexReg 606, 22 TexReg 148, and 22 TexReg 306): sec.sec.336.1-336.4, 336.6, 336.104, 336.111, 336.205, 336.217, 336.306, 336.308-336.310, 336.313, 336.314, 336.320, 336.321, 336.329-336.332, 336.336, 336.338, 336.341, 336.344- 336.346, 336.350-336.352, 336.356, 336.358-336.363, 336.367, 336.368, 336.401, 336.403, 336.407-336.410, 336.505, 336.512-336.514, 336.602, 336.606, 336.614, 336.621, 336.622, 336.624, 336.626, 336.636, 336.701, 336.702, 336.707, 336.715, 336.716, 336.740, 336.803, 336.804, and 336.807. The remaining sections are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES These rules are a result of Senate Bill (SB) 2, First Called Session, 72nd Legislature, and SB 1043, 73rd Legislature, and incorporate, with modifications, rules previously adopted by reference from the Texas Department of Health (TDH). The new rules are needed to adapt the previous TDH rules to commission requirements. Further, they incorporate revisions and additions which are needed to maintain compatibility with the rules of the United States Nuclear Regulatory Commission (NRC). Compatibility of the commission's rules with the federal program is necessary to preserve the status of Texas as an Agreement State under Title 10 Code of Federal Regulations (CFR) Part 150 and the "Articles of Agreement between the United States Atomic Energy 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." On March 1, 1992, jurisdiction over disposal of radioactive substances was transferred to the Texas Water Commission (TWC) from the TDH. Following this transfer, on October 23, 1992, the TWC adopted by reference in sec.sec.336.1- 336.4, those portions of the TDH's Texas Regulations for Control of Radiation (TRCR) that related to disposal of radioactive substances. On September 1, 1993, jurisdiction over source material recovery and processing was transferred from the TDH to the Texas Natural Resource Conservation Commission, the TWC's successor agency. Following this transfer, effective December 29, 1993, the commission extended the adoption of the TRCR by reference to include those portions applicable to source material recovery and processing. This rule adoption (sec.sec.336.1-336.6) also contained other amendments, including revisions to certain radiation protection standards. Effective December 27, 1995, the commission adopted sec.336.7, which adopted by reference a Memorandum of Understanding (MOU) between the TDH and the commission relating to jurisdiction over radiation control functions. Effective July 3, 1996, the commission adopted sec.336.8, which contained an MOU between the Railroad Commission of Texas, the TDH, and the commission concerning uranium surface mining, uranium milling, and disposal of uranium mill tailings. These rules (sec.sec.336.1-336.8) are repealed as part of this adoption. These newly adopted rules, which replace the repealed rules, are divided into nine subchapters, A through I. The first eight subchapters generally correspond in sequence to the parts of the TRCR that were previously adopted by reference. Subchapters A through E contain only those sections from the corresponding TRCR that are pertinent to the commission's jurisdiction. Subchapters F through H contain facility-specific sections of the corresponding TRCR rules. Subchapter I contains general requirements for financial assurance, including the wording of each type of acceptable financial assurance instrument. Certain facility- specific requirements for financial assurance are set forth in Subchapters F, G, and H. A brief description of each of the adopted subchapters follows, including how they correspond to the TRCR. In the interest of brevity, the descriptions do not reflect all of the changes being adopted. However, commission staff has prepared an issues paper that describes in more detail the changes being adopted. The paper also gives a detailed description of provisions to be incorporated based on NRC requirements. Copies of this issues paper may be obtained by contacting Jace A. Houston at (512)239-4641, or by mail at the commission, Office of Policy and Regulatory Development, MC 203, P.O. Box 13087, Austin, Texas 78711-3087. Subchapter A (relating to General Provisions) corresponds primarily to TRCR Part 11 and sets forth definitions, general requirements, and MOUs between the commission and other state agencies regarding radiation control activities. Enforcement provisions in the original TRCR will be adopted in a companion guidance document after final adoption of these rules. A number of sections in Subchapter A are being adopted with changes. Section 336.1 is amended to correct one typographical error and one grammatical error. In response to comments, the last sentence of the definition of radioactive waste in sec.336.2 has been deleted to clarify the commission's jurisdiction with regard to naturally occurring radioactive material waste. Also in sec.336.2 several cross-references have been revised to include an effective date for the provisions being referenced or incorporated and, in some cases, to correct the citation for the provision being referenced. The attached figure for sec.336.2 related to weighting factors for an organ or tissue has also been revised to correct the formatting and layout of the table. Finally, a number of corrections have been made in sec.336.2 relating to formatting requirements for the Texas Register, such as spelling-out certain abbreviated terms and correcting the format of several cross-references. Section 336.3 is amended to correct an abbreviated term and to revise the attached figures for subsections (c) and (d) to correct the formatting and layout of the tables. Sections 336.4 and 336.6 are also amended to correct abbreviated terms. Subchapter B (relating to Radioactive Substance Fees) corresponds to TRCR Part 12, as amended by the commission effective December 29, 1993, and sets forth new annual license fees for radioactive material licensees. Also included is an application fee and an annual fee for commercial disposal activities at uranium recovery facilities. There is also a new provision on funding of decommissioning confirmation surveys. Two sections in Subchapter B are being adopted with changes. Section 336.104 is revised to spell-out an abbreviated term, and sec.336.111 is amended to correct the address for delivery of fee payments to the commission. Subchapter C (relating to Additional Application, Operation, and License Requirements) incorporates general provisions applicable to facilities to be regulated under Subchapters F, G, and H. It also incorporates new NRC incident reporting requirements. Two sections in Subchapter C are being adopted with changes. Section 336.205 is amended to spell-out an abbreviated term, and sec.336.217 is revised to correct the formatting of two cross-references. Subchapter D (relating to Standards for Protection Against Radiation) corresponds to TRCR Part 21, as amended by the commission effective December 29, 1993, and incorporates new requirements relating to a uniform waste manifest system that apply to the receipt and acceptance of radioactive material shipments at licensed low-level radioactive waste disposal sites. These requirements are based on new NRC rules and must be implemented by March 1, 1998. Several sections in Subchapter D are being adopted with changes. Section 336.313 is amended to correct a citation to certain federal radiation standards. Sections 336.329, 336.330, 336.352, and 336.361 have been revised to include an effective date for provisions being cross-referenced or incorporated. In response to comments, language has been added in sec.336.332 to clarify the requirements for the transfer of land on which radioactive materials have been disposed. Sections 336.336 and 336.338 have been amended to correct citations to certain rules of the TDH. The attached figures and tables for sec.sec.336.358- 336.360, 336.362, 336.367, and 336.368 have been revised to correct the formatting and layout of the tables, footnotes, and figures. When the attached figures were published at proposal, the documents were double-spaced and the margins were adjusted, which caused the tables to appear misformatted and difficult to read. The figures have been reformatted and revised to improve their readability and to correct misplaced information. In sec.336.363, a number of cross-references related to manifesting requirements have been amended to include the appropriate federal citation and effective date. Finally, the following sections have been amended to make corrections related to formatting requirements for the Texas Register, such as spelling-out certain abbreviated terms, correcting the format of several cross-references, and adding introductory phrases to certain subsections: sec.sec.336.306, 336.308-336.310, 336.313, 336.314, 336.320, 336.321, 336.331, 336.332, 336.341, 336.344-336.346, 336.350-336.352, and 336.356. Also in Subchapter D, the commission has amended sec.336.356 in response to comments. The commission has deleted the concentration-based soil and vegetation contamination limit for natural uranium and has replaced it with a dose-based limit of 25 millirem/year for decommissioning and release for unrestricted use. This standard will not include any dose contribution from radium or its decay products, which will be governed by the existing concentration-based standard for radium in soil. Subchapter E (relating to Notices, Instructions, and Reports to Workers and Inspections) corresponds to TRCR Part 22 and contains several changes relating to licensee reports regarding personnel monitoring. These changes are being made to be consistent with NRC rules. Several sections in Subchapter E are being adopted with changes. The attached figure for sec.336.410 has been revised to correct the formatting and layout of the employee notice form. Also, the following sections have been amended to make corrections related to formatting requirements for the Texas Register: sec.sec.336.401, 336.403, and 336.407-336.409. Subchapter F (relating to Licensing of Alternative Methods of Disposal of Radioactive Material) corresponds to TRCR Part 41 but has been modified to apply specifically to the requirements for licensing of disposal of radioactive material on property owned by the generator of the wastes. The rules provide for continued licensing of disposal sites that are authorized on existing licenses and for bringing under licensure the inactive disposal sites that are not currently licensed. However, the rules prohibit the authorization of new onsite disposal facilities or expansion of existing onsite disposal facilities. This prohibition against licensing of new or expanded onsite disposal facilities is based on Health and Safety Code sec.401.203, which states that a radioactive waste disposal license may be issued only to a public entity specifically authorized by law for radioactive waste disposal. Subchapter F also incorporates NRC's new rules relating to decommissioning funding or financial assurance and timeliness of decommissioning. The rules set January 1, 1998, as the date by which affected licensees under Subchapter F would have to comply with the decommissioning funding requirements. The following sections in Subchapter F are being adopted with changes to correct Texas Register formatting errors related to abbreviations and cross-references: sec.sec.336.505 and 336.512-336.514. Subchapter G (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities) corresponds to TRCR Part 43 and covers the licensing requirements for source material recovery and processing, and uranium mill tailings or byproduct material disposal. This subchapter incorporates the NRC's new requirements for expeditious reclamation of uranium mill tailing impoundments, including reclamation schedules and milestones. This subchapter also incorporates NRC's new rules relating to timeliness of decommissioning of licensed facilities. In addition, the rules clarify the need for the licensee to submit an updated closure plan at the time of decommissioning. Subchapter G also contains new rules that require that separate uranium recovery projects be licensed separately, even when one or more projects are owned or operated by the same entity. The rules specify which facilities may be combined on a single license and set certain requirements for geographical contiguity of those facilities. The rules affect applications for new projects. Several sections in Subchapter G are being adopted with changes. Sections 336.602, 336.621, 336.622, 336.624, and 336.626 have been revised to include an effective date for provisions being cross-referenced or incorporated. Section 336.621 is also amended to correct two typographical errors in the units for release rates in subsections (a) and (c). The attached figure for sec.336.636 has been revised to correct the formatting and layout of the table. Sections 336.602, 336.606, 336.614, and 336.626 have been amended to make corrections related to Texas Register formatting. Subchapter H (relating to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste) corresponds to TRCR Part 45 and incorporates new requirements relating to a uniform waste manifest system that apply to licensed low-level radioactive waste disposal sites. These requirements are based on new NRC rules and must be implemented by March 1, 1998. Section 336.701 of Subchapter H is being adopted with changes made in response to comments. The provision related to the disposal of byproduct material is amended to clarify that acceptance of this material is permissible only if the licensee is specifically authorized to accept such material by license condition. Sections 336.701, 336.702, and 336.740 have been revised to include an effective date for provisions being cross-referenced or incorporated. The amendments to sec.336.702 also correct a typographical error in an internal cross-reference, and the amendments to sec.336.740 add the appropriate federal citation for the provision being referenced. Sections 336.701, 336.707, 336.715, and 336.716 have been amended to make corrections related to Texas Register formatting. Subchapter I (relating to Financial Assurance) corresponds to certain sections of TRCR Parts 43 and 45 and contains the general requirements for financial assurance, including the required wording of each type of acceptable financial assurance instrument for licenses issued under the specific financial assurance provisions of Subchapters F, G, or H. In Subchapter I, sec.336.803 is adopted with changes to correct the formatting of a cross-reference, and sec.336.804 is adopted with changes to correct a number of typographical errors, such as missing commas and semicolons, and also to spell-out "United States." Section 336.807 is also revised to correct a number of minor grammatical and typographical errors, and the attached figures have been single-spaced and amended to correct grammatical and formatting errors. Certain procedural revisions have also been incorporated into the commission's rules in Chapters 39, 50, 281, and 305 to adapt the radioactive substance rules to the existing procedural requirements of the commission. These procedural revisions are described in more detail in the respective preambles for the affected chapters. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate rules previously adopted by reference from the TDH following the transfer of jurisdiction over source material recovery and processing and disposal of radioactive substances to the commission. The rules also maintain compatibility of commission rules with the NRC, which is necessary to preserve the status of Texas as an Agreement State. The rules substantially advance this specific purpose by setting standards for protection against radiation, by adopting regulations for the disposal of radioactive materials, by clearly outlining the regulated community's responsibilities, and by more clearly establishing compatibility with NRC requirements. Promulgation and enforcement of these rules could burden private real property that is the subject of the rules. However, the following exceptions to the application of Texas Government Code Chapter 2007 listed in Texas Government Code, sec.2007.003(b) apply to these rules: Section 2007.003(b)(4)--an action that is reasonably taken to fulfill an obligation mandated by federal law; and sec.2007.003(b)(13)--an action that is taken in response to a real and substantial threat to public health and safety, that is designed to significantly advance the health and safety purpose, and that does not impose a greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS A public hearing on this rule was held in Austin on January 16, 1997, at 2:00 p.m. at the commission offices, Building F, Room 2210, 12100 Park 35 Circle, Austin, Texas 78753. No commenters appeared to present testimony at the public hearing. Seven commenters submitted written comments on the proposed radioactive substance rules. The following commenters did not express general support for or opposition to the proposed rules, but did suggest changes: the firm of Henry, Lowerre, Johnson, Hess & Frederick (Henry, Lowerre); the firm of Henry, Lowerre, on behalf of Clean Water Action, Sierra Club, and Henry, Lowerre (CWA, Sierra Club, and Henry, Lowerre); the firm of Henry, Lowerre, on behalf of the Sierra Blanca Legal Defense Fund (SBLDF); Conoco, Inc. (Conoco); the firm of Lloyd, Gosselink, Fowler, Blevins & Mathews, P.C. (Lloyd, Gosselink); the Railroad Commission of Texas (RRC); and the United States Nuclear Regulatory Commission (NRC). ANALYSIS OF TESTIMONY Henry, Lowerre suggested that the definition for major amendment under sec.336.2 be amended to include amendments to Subchapter G licenses involving approval of closure plans or decommissioning plans. The commission disagrees and has not made changes based on this comment. The rules relating to decommissioning plans are set forth at 30 TAC sec.336.217. A license amendment is required for approval of a closure plan, decommissioning plan, or any change to the decommissioning schedule. However, the commission believes that the public notice provisions for a minor amendment are adequate for approvals related to in-situ uranium recovery operations that leave no residual tailings or wastes on-site following decommissioning and closure. Further, the commission notes that approval of a reclamation plan for a tailings or waste disposal site under proposed 30 TAC sec.336.622 remains a major amendment. The RRC commented that the definition of radioactive waste under proposed sec.336.2 might be interpreted to require disposal of oil and gas naturally occurring radioactive material (NORM) containing radium-226 at a near-surface disposal facility equivalent to that licensed by the commission. The SBLDF also commented that the definition of radioactive waste under sec.336.2 cannot include radium-226 contained in NORM waste because the statutory definition of radioactive waste specifically excludes NORM. The SBLDF requested that reference to radium-226 be deleted, or alternatively, that the definition be amended to mirror the concentration limit of 100 nanocuries per gram established in TRCR Appendix 21-E. The commission agrees that it has no jurisdiction to regulate oil and gas NORM and therefore does not intend for these rules to apply to the disposal of oil and gas NORM waste. The commission also agrees that the statutory definition of radioactive waste under the Texas Radiation Control Act (TRCA) sec.401.003(2) specifically excludes all NORM waste. However, the commission does have jurisdiction to regulate the disposal of non-oil and gas NORM. The reference in proposed sec.336.2 was intended to clarify that discrete sources of NORM that are found in non-oil and gas NORM waste may be disposed at a near-surface radioactive waste facility if that waste otherwise meets commission requirements. In response to the comments, the commission has deleted the last sentence regarding radium-226 from the definition of radioactive waste in sec.336.2. However, the commission clarifies that discrete sources of NORM containing radium-226 in concentrations equal to or greater than 2 nanocuries per gram may be considered generally acceptable for near-surface disposal provided that the waste is in compliance with concentration limits specified in sec.336.362, Appendix E. Therefore, a near-surface disposal facility may accept for disposal items such as radium needles, provided they meet the commission's waste classification and disposal requirements. These requirements include the 100 nanocurie per gram limitation referenced by the SBLDF. Finally, the commission would like to point out that this approach is consistent with the current TRCR adopted by the TDH and previously incorporated by reference by the commission. The SBLDF commented that the definition of radioactive waste under sec.336.2 conflicts with the statutory definitions under the TRCA because the commission lacks the statutory authority to adopt a definition of radioactive waste different from that under TRCA sec.401.003(20). The commission disagrees that an agency lacks statutory authority to adopt rules that are different from its governing statutes. An agency may make a reasonable interpretation of its statutes so long as that interpretation does not contradict the plain language of the statute. The commission believes that 30 TAC sec.336.2 provides a reasonable interpretation of both the federal and state definitions of radioactive waste and low-level waste and that it does not contradict the plain language of TRCA sec.401.003(20). The SBLDF also stated that because the statutory definition of radioactive waste under TRCA sec.401.003(20) does not specifically incorporate by reference federal definitions under 10 CFR Part 61, the commission is prohibited from making similar references within its rules. The commenter suggests that the commission delete the following sentence from sec.336.2: "For purposes of the rules in this chapter, radioactive waste means "low-level radioactive waste" as that term is used in 10 CFR Part 61 (relating to Licensing Requirements for Land Disposal of Radioactive Waste)." The commission disagrees with this comment and has not made the proposed deletions because the state and federal definitions, while not identical, are clearly consistent. Commission jurisdiction over radioactive waste derives from its Agreement with NRC and is executed pursuant to the Atomic Energy Act. Both the terms of that Agreement and the TRCA require compatibility with the federal standards. The commission recognizes that sec.402.003(6) of the Health and Safety Code currently defines "low-level waste" as waste that has fewer than 10 nanocuries per gram of transuranics and that the federal definition establishes a 100 nanocurie limit through its waste categorization tables. Therefore, the current Texas statutory definition of radioactive waste is more stringent than the federal definition. By reference to 10 CFR Part 61, the commission means only to clarify the relationship between the state and federal definitions and does not intend to contravene the 10 nanocurie limit established by sec.402.003(6). The commission realizes that until the legislature amends the statute, the state and federal definitions cannot be equivalent; however, by rule the commission clarifies that the definitions are consistent. The SBLDF also requested that the definition of radioactive waste under sec.336.2 be amended to delete the fifth sentence stating that the definition of radioactive waste includes accelerator-produced radioactive material. The commission disagrees with this comment and has not deleted the reference to accelerator-produced radioactive material. The commission notes that the TRCA does not exclude accelerator-produced radioactive material from the definition of radioactive waste and therefore does not preclude inclusion of these wastes by rule. Conoco commented that the annual license fees for a conventional uranium mill with tailings disposal facility, during reclamation under proposed sec.336.104(b) are inequitable. The commenter suggested that a "sliding-scale" fee regime be established, with fee determinations dependent upon the percentage of actual reclamation costs. The commission disagrees and has not made changes based on this comment. Annual fees have been set to recover 100% of the costs of the regulatory program, in accordance with TRCA sec.401.412(d). The annual fee is set at the same amount for all licenses for uranium recovery facilities and for all phases of operation. The commission believes that this approach is reasonable because, over the duration of the various types of licenses, the regulatory costs will be similar. Conoco also commented that application fees and annual fees for waste disposal sites under sec.336.105(a) and (b) will be inequitable in some cases due to variations in the amount of oversight and actions required to regulate these types of facilities. The commission disagrees and has not made changes based on this comment. The fees are based upon the commission's actual costs to administer the uranium mine and mill program. Henry, Lowerre suggested that proposed sec.336.203 be amended so that its provisions are consistent with provisions for environmental impact statements (EIS) under the National Environmental Policy Act (NEPA). The commission disagrees and has not incorporated changes based on this comment. Issuance of a radioactive material license is not a major federal action for the purposes of conducting an EIS under NEPA. Henry, Lowerre also suggested that sec.336.203 be amended so that its provisions are consistent with TRCA sec.401.113(c). The commission disagrees and has not made changes based on this comment. TRCA sec.401.113(c) specifically applies to preparation of an environmental analysis for a license to dispose of radioactive waste from other persons. Therefore, TRCA sec.401.113 will only apply to an environmental analysis prepared pursuant to 30 TAC sec.336.203(b). Section 401.113 does not apply to the preparation of environmental analyses for other licensing actions under the commission's jurisdiction. Henry, Lowerre also suggested that an environmental analysis be required for any application under Subchapter F of Chapter 336. The commission has not incorporated changes based on this comment. The TRCA does not anticipate that an environmental analysis will be required for a license under Subchapter F. Subchapter F licenses are intended to grandfather existing sites for the purposes of decommissioning; therefore, the preliminary evaluation required for an environmental analysis would be duplicative of the decommissioning requirements. Henry, Lowerre also recommended that sec.336.203 explicitly state minimum contents of an environmental analysis. The commission disagrees and has not made changes based on this comment. TRCA sec.401.113 and sec.401.263 provide minimum content requirements for the environmental analyses required for licenses to dispose of low-level radioactive waste from others and to process and dispose of materials that produce byproduct. Because the statutory provisions specifically address the minimum contents for environmental analyses, the commission disagrees that the rules should reiterate those requirements. Henry, Lowerre also suggested that sec.336.203 be amended to require the executive director to make a specific finding that an activity will not have a significant impact on the human environment in cases where the executive director does not prepare a written environmental analysis. The commission disagrees and has not incorporated the suggested comment. The TRCA mandates preparation of a written environmental analysis when there is a finding of a significant effect or impact on the human environment; however, when a written environmental analysis is not prepared for a specific application, the statutory provisions governing environmental analyses do not require a specific finding by the executive director that no significant impact or effect on the human environment will occur. Because an environmental analysis must be issued when there is a determination of a significant impact, the commission believes that an affirmative finding that no significant impact would occur would be duplicative of the statutory requirements. Finally, Henry, Lowerre requested that sec.336.203 require that an environmental analysis include "an assessment of any disparate impacts to minorities or economically disadvantaged persons from the activity." The commission disagrees and has not made changes based on this comment. The statutory provisions under the TRCA for environmental analyses do not require an assessment of this nature. Environmental analyses are completed by the commission's technical staff and are intended to address technical and environmental requirements related to effects on public health, safety, and the environment. Although the commission recognizes the importance of considering social and economic impacts, the commission does not believe that the environmental analysis is the appropriate venue for consideration of these issues at this time. CWA, Sierra Club, and Henry, Lowerre commented that the language proposed in sec.336.332 relating to transfer to the state or federal government of land on which radioactive materials are disposed should be deleted and that the language under existing 30 TAC sec.336.6 should remain. The commenter suggested that the rule as proposed would remove a key protection for taxpayers. The commission agrees that the omitted language should be restored to clarify the requirements for the transfer of land on which radioactive materials have been disposed. Because transfer and long-term care are mandated by statute, the commission did not intend to remove these requirements in the proposed rule. Therefore, the commission reinserts and clarifies the original language of the rule. The NRC commented that the proposed regulation on concentrations of natural uranium in soils set forth in sec.336.356 was unacceptable. The NRC's reasons were: (1) inconsistency with its branch technical position, "Disposal or On-Site Storage of Thorium or Uranium Wastes From Past Operations," published in 46 FedReg 205 (October 23, 1981); (2) inconsistency with the draft NRC decommissioning rule, including use of a concentration-based standard rather than a dose-based standard, and use of the 100 mrem/year dose limit rather than a fraction of the 100 mrem/year dose limit; and (3) potential NRC/Agreement State compatibility issue with the draft decommissioning rule and with current NRC practice. The NRC also indicated that the 15 mrem/year dose limit in its draft decommissioning rule excluded doses resulting from radium and its decay products. The NRC subsequently indicated that its draft final rule for decommissioning would include a 25 mrem/year limit for radionuclides other than radium, and excluding radon. At proposal, the commission actively sought public comment regarding the proposed soil and vegetation contamination limit for natural uranium, and the commission indicated that it may choose to retain or otherwise modify the original standard based on information received during public comment. The commission proposed a two-tiered limit of 30 pCi/g, averaged over the top 15 cm of soil below the surface, and 150 pCi/g, average concentration at depths greater than 15 cm below the surface. Based on NRC's comments and additional research conducted by staff, the commission is deleting the proposed soil and vegetation contamination limits in sec.336.356 for natural uranium and is adopting a dose limit of 25 mrem/year for decommissioning and release for unrestricted use, excluding any dose contribution from radium and its decay products. The concentration-based standard for radium in soil will remain the same. The commission believes that one-fourth of the 100 mrem/year operational dose limit (i.e., 25 mrem/year) is an acceptable standard because it is protective of human health, safety, and the environment, is consistent with NRC requirements, and provides maximum flexibility in the decommissioning and release for unrestricted use of licensed facilities and land. Since there is an existing concentration limit for radium which is based on radon (a radium decay product) exposure, the dose from radionuclides other than radium and its daughters should be some fraction of the 100 mrem/year operational dose limit. In determining what fraction of the 100 mrem/year dose limit to use, the commission considered the following: (1) consistency with the dose resulting from the uranium concentrations as originally proposed; (2) the excess lifetime cancer risk estimates using the linear non-threshold model for constant exposure over a 30-year time period; and (3)consistency with NRC rules and comments. The dose equivalent of the concentration-based limit originally proposed, based on conservative models, is about 25 mrem/year. A 25 mrem/year dose results in an estimated lifetime risk of fatal cancer of about 4 10-4, which is at the upper end of the acceptable risk suggested by EPA in their comments on the NRC's proposed rule. Lloyd, Gosselink commented that the provision requiring licensing of inactive disposal sites under Subchapter F, sec.336.501(d) would be unreasonably time consuming and expensive. The commission disagrees and has not made changes based on this comment. Subchapter F is proposed in order to meet NRC decommissioning requirements. The commission must evaluate each inactive disposal site to assess potential risks to human health and safety and the environment for the purposes of decommissioning. The commission has set forth fees intended to recover its reasonable costs and believes that Subchapter F provides a reasonable approach to addressing decommissioning of the existing inactive sites. Lloyd, Gosselink also commented that the term of a license should be increased to a period of 10 years and should be set forth by rule in sec.336.606. The commission disagrees and has not incorporated the proposed amendment. The term of a license is not specified in the rules nor in the existing TRCRs. As a past policy, licenses have been issued for five years, consistent with NRC policy. By Staff Requirements Memorandum dated July 2, 1996, the NRC approved increasing the term for qualified uranium recovery licensees from the current five-year period to a ten-year period. The commission believes that these policy guidelines provide the commission with flexibility to determine the appropriateness of issuing ten-year licenses on a case-by-base basis. The commission does not believe that incorporating a ten-year license period by rule is necessary at this time. Lloyd, Gosselink also requested that sec.336.627(a) be amended to require that only draft, rather than final, financial assurance documents be filed 60 days before commencement of operations. The commission disagrees and has not incorporated the recommended change. The purpose of sec.336.627(a) is to allow the executive director sufficient time to review the proposed financial assurance. Past experience supports the need for a 60-day review period to ensure that proper financial assurance will be posted at the commencement of operations. Henry, Lowerre also submitted three identical comments, each applicable to proposed sec.sec.336.514(e), 336.627(c), and 336.736(b) in Subchapters F, G, and H, respectively. The commenter suggested amending each section to require that financial assurance be based upon the maximum cost estimate for decommissioning at any time over the total operating life of a licensed facility. The commission disagrees with the commenter and has not incorporated the proposed language. TRCA sec.401.109(b)(2) requires that the amount and type of financial assurance be determined based on "reasonable" estimates of cost of decontamination, decommissioning, reclamation, and disposal. In order to ensure that the financial assurance is reasonable, the commission performs an annual review of financial assurance. See 30 TAC sec.336.627 and sec.336.736. At that time, adjustments to financial assurance are made to reflect the current status of the facility based on a technical determination. Therefore, the commission disagrees that the additional language suggested by the commenter is necessary. Conoco commented that the requirements of Subchapter F, which assess application fees and additional technical requirements, appear to be excessive. The commission disagrees and has not made changes based on this comment. As indicated previously, the commission has been granted general jurisdiction to regulate low-level radioactive waste disposal in Texas through its Agreement with the NRC. In order to maintain that Agreement status, the commission must engage in the decommissioning of all radioactive waste disposal sites. Subchapter F provides for licensure of existing inactive radioactive waste disposal sites not already licensed for the purposes of decommissioning in accordance with federal requirements. The fees are based upon the estimated costs to the commission to complete proper decommissioning. The SBLDF commented that sec.336.701(b)(3) conflicts with sec.336.2 because it allows for disposal of transuranics, which is prohibited by both 10 CFR sec.61.2 and 30 TAC sec.336.2. Therefore, the commenter suggests that this provision be deleted. For the same reason, the commenter also suggested deleting the second section of the definition of "waste" under sec.336.702 which allows disposal of transuranics as provided for in proposed sec.336.701(b)(3). The commission disagrees and has not deleted these provisions. The commission recognizes that federal rules define high-level radioactive waste to include the broad category of "transuranic wastes" and that state rules, by corollary, define low-level radioactive waste to exclude "transuranic wastes." Under federal law, "transuranic waste" is defined as waste that contains more than 10 nanocuries per gram of transuranics. However, both the federal and state disposal regimes contemplate disposal of transuranic radionuclides that are less than 100 nanocuries as constituents in low-level radioactive waste. By definition, disposal of limited transuranic constituents in waste is therefore not the equivalent of disposal of "transuranic wastes." The commission therefore does not agree that sec.336.701(b)(3) conflicts with either federal or state rules and statutes. For these same reasons, the commission declines to revise the definition of waste under sec.336.702 to prohibit disposal of radioactive waste with less than 10 nanocuries per gram of transuranics. The SBLDF also stated that the authorization allowed in sec.336.701(c) of the disposal of up to 11 tons annually of "subparagraph B" byproduct waste was inappropriate, and further, that the commission is not authorized to delegate to the executive director the discretion to allow shipments of mill tailings wastes for commercial near-surface disposal. The commission disagrees that limited disposal of "subparagraph B" byproduct waste at a radioactive waste disposal facility is inappropriate. Title 10 CFR 61.1(b) anticipates disposal of uranium byproduct in the same quantities and concentrations as sec.336.701(c). See also, United States Nuclear Regulatory Commission, "Final Environmental Impact Statement on 10 CFR Part 61," NUREG-0945 (1982) at B-89. NRC encourages Agreement States to adopt provisions similar to 10 CFR 61.1 in order to maintain a compatible regulatory program. However, the commission has amended the language of this provision to clarify that acceptance of this material in limited quantities is permissible only if the licensee is specifically authorized to accept such material by license condition. The SBLDF also stated that the inclusion of special criteria relating to long- lived radionuclides under sec.336.733(b) conflicts with Texas Health and Safety Code sec.402.003 which prohibits the disposal of wastes with more than a 35-year half-life. The commenter suggested that the special criteria provisions be deleted. The commission disagrees and has not deleted sec.336.733(b). Texas Health and Safety Code sec.402.003 does not preclude disposal of radioactive waste with a half-life of more than 35 years. Rather, sec.402.003 specifically defines low- level waste to include radioactive material with a half-life of more than 35 years "if special criteria for disposal of that waste are established by the commission." TRCA sec.401.208 mandates the commission to adopt those same special criteria; its purpose was not to preclude disposal of radioactive waste with half-lives greater than 35 years. Section 336.733(b) was adopted pursuant to the mandates of TRCA sec.401.208(b). Section 336.733(b) specifies that special criteria Class A waste must meet the stricter requirements of Class B and C wastes regarding structural stability after disposal and intruder protection. Therefore, the commission disagrees that sec.336.733 conflicts with the TRCA or Texas Health and Safety Code, sec.402.003. The SBLDF also stated that sec.336.733 conflicts with TRCA sec.401.208(b) because it does not address special criteria for long-lived Class B and Class C wastes and should therefore be deleted. The commission disagrees with this comment and has not made the suggested deletion. The commission believes that the additional safeguards regarding structural stability after disposal and intruder protection provided for by the federal rules satisfy the requirement for special criteria contemplated under TRCA sec.401.208. Therefore, the commission declines to delete sec.336.733. The RRC commented that the appendices and tables that were published in a set of attached figures were improperly formatted. The commenter noted that double spacing and "wrapping" of the text in a number of the figures made the tables difficult to read. The commission agrees with this comment and has reformatted and reorganized the appendices and tables. The figures with changes are republished with this adoption. 30 TAC sec.sec.336.1-336.8 STATUTORY AUTHORITY The repeals are adopted under the TRCA, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the commission the authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. Chapter 336: Radiation Rules 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706502 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER A.General Provisions 30 TAC sec.sec.336.1-336.6, 336.11, 336.12 The new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.1.Scope and General Provisions. (a) Except as otherwise specifically provided, the rules in Chapter 336 of this title (relating to Radioactive Substance Rules) apply to all persons who engage in source material recovery and processing or the disposal of radioactive substances, as defined in this subchapter, and for that purpose receive, possess, use, process, transfer, or dispose of radioactive substances. However, nothing in these rules shall apply to any person to the extent that person is subject to regulation by the United States Nuclear Regulatory Commission (USNRC) or to radioactive material in the possession of federal agencies. The rules in this chapter do not apply to the disposal of radiation machines as defined in this subchapter or electronic devices which produce non-ionizing radiation. (b) Regulation by the State of Texas of source material, byproduct material, and special nuclear material in quantities not sufficient to form a critical mass is subject to the provisions of the agreement between the State of Texas and the USNRC and to Part 150 of Title 10 Code of Federal Regulations (10 CFR Part 150) (relating to Exemptions and Continued Regulatory Authority in Agreement States and in Offshore Waters Under Section 274). (A copy of the Texas agreement, "Articles of Agreement between the United States Atomic Energy 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" (Agreement), may be obtained from the UIC, Uranium and Radioactive Waste Section, MC 131, Industrial and Hazardous Waste Division, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087.) Under the Agreement and 10 CFR Part 150, the USNRC retains certain regulatory authorities over source material, byproduct material, and special nuclear material in the State of Texas. Persons in the State of Texas are not exempt from the regulatory requirements of the USNRC with respect to these retained authorities. (c) No person may receive, possess, use, transfer, or dispose of radioactive material, which is subject to the rules in this chapter, in such a manner that the standards for protection against radiation prescribed in these rules are exceeded. (d) Each person licensed by the commission under this subchapter shall confine possession and use of licensed radioactive material to the locations and purposes authorized in the license. (e) No person may cause or allow the release of radioactive material, which is subject to the rules in this chapter, to the environment in violation of this chapter or of any rule, license, or order of the Texas Natural Resource Conservation Commission (commission). sec.336.2.Definitions. The following words and terms when used in this chapter shall have the following meanings, or as described in 30 TAC 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. 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). Accelerator-produced radioactive material-Any material made radioactive by exposing it to the radiation from a particle accelerator. Activity-The rate of disintegration (transformation) or decay of radioactive material. The units of activity are the curie (Ci) and the becquerel (Bq). Adult -An individual 18 or more years of age. Agreement state-Any state with which the United States Nuclear Regulatory Commission (USNRC) or the Atomic Energy Commission has entered into an effective agreement under the Atomic Energy Act of 1954, sec.274b, as amended through October 24, 1992 (Public Law 102-486). Airborne radioactive material-Any radioactive material dispersed in the air in the form of dusts, fumes, particulates, mists, vapors, or gases. 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 sec.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. 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 sec.336.359, Appendix B, of this title. 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. 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. "Background radiation" does not include radiation from radioactive materials regulated by the commission, Texas Department of Health, USNRC, or an Agreement State. Becquerel (Bq)-See sec.336.4 of this title (relating to Units of Radioactivity). 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. 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; and (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. CFR-Code of Federal Regulations. 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 10 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. 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. [sub]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. [sub]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. Curie (Ci)-See sec.336.4 of this title. Declared pregnant woman-A woman who has voluntarily informed her employer, in writing, of her pregnancy and the estimated date of conception. Decommission-To remove (as a facility) safely from service and reduce residual radioactivity to a level that permits release of the property for unrestricted use and termination of license. [sub]d) (which applies to external whole-body exposure)-The dose equivalent at a tissue depth of 1 centimeter (1,000 milligrams/square centimeter). 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. 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 sec.336.359, Appendix B, of this title. 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 may take 2,000 DAC-hours to represent one ALI, equivalent to a committed effective dose equivalent of 5 rems (0.05 sievert). 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. [sub]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). 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. 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. [sub]E)-The sum of the products of the dose equivalent to each organ or tissue (H type-name="sub">T[sub] T) applicable to each of the body organs or tissues that are irradiated. Embryo/fetus-The developing human organism from conception until the time of birth. 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. Exposure-Being exposed to ionizing radiation or to radioactive material. Exposure rate-The exposure per unit of time. External dose -That portion of the dose equivalent received from any source of radiation outside the body. 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. Eye dose equivalent-The external dose equivalent to the lens of the eye at a tissue depth of 0.3 centimeter (300 milligrams/square centimeter). 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. Generally applicable environmental radiation standards-Standards issued by the United States Environmental Protection Agency 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. Gray (Gy)-See sec.336.3 of this title (relating to Units of Radiation Exposure and Dose). High radiation area-An area, accessible to individuals, in which radiation levels could result in an individual receiving a dose equivalent in excess of 0.1 rem (1 millisievert) in 1 hour at 30 centimeters from any source of radiation or from any surface that the radiation penetrates. Individual-Any human being. 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. Individual monitoring devices-Devices designed to be worn by a single individual for the assessment of dose equivalent. For purposes of the rules in this chapter, "individual monitoring equipment," "personnel dosimeter," and "dosimeter" are equivalent terms. Examples of individual monitoring devices are film badges, thermoluminescent dosimeters (TLDs), pocket ionization chambers, and personal ("lapel") air sampling devices. Inhalation class-See "Class." 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. Internal dose-That portion of the dose equivalent received from radioactive material taken into the body. Land disposal facility -The land, buildings and structures, and equipment which are intended to be used for the disposal of 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 FedReg 43421) (relating to Definitions - high-level radioactive wastes in geologic repositories) is not considered a "land disposal facility." License -See "Specific license." Licensed material-Radioactive material received, possessed, used, processed, transferred, or disposed of under a license issued by the commission. Licensee-Any person who holds a license issued by the commission in accordance with the TRCA 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." 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. 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. Low-level radioactive waste-See "Radioactive waste." Lung class-See "Class." Major amendment- (A) An amendment to a license issued under Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material) which: (i) authorizes a transfer of a license to another person; (ii) authorizes enlargement of the disposal area beyond that authorized in the existing license or addition of disposal areas; or (iii) authorizes a substantive change in the nature of the wastes to be disposed of or the method of disposal. (B) An amendment to a license issued under Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities) which: (i) authorizes a transfer of the license to another person; (ii) authorizes enlargement of the licensed site beyond that authorized in the existing license; (iii) authorizes a method of disposal of byproduct material, as defined in subparagraph (B) of the definition of "byproduct material" of this section which is different from that specified in the existing license or authorizes a change to substantive provisions concerning an existing disposal method; (iv) grants an exemption from or an alternative to any specific technical requirement of Subchapter G of Chapter 336 of this title, or sec.sec.336.627- 336.629 of this title (relating to Financial Assurance Requirements, Long-Term Care and Surveillance Requirements, and Land Ownership of Tailings or Waste Disposal Sites); (v) authorizes disposal of byproduct material from others or authorizes other commercial activity not proposed in the application for the initial issuance of the license; (vi) authorizes alternate concentration limits under sec.336.615(e) of this title (relating to Secondary Groundwater Protection); (vii) approves a reclamation plan for a tailings or waste disposal site under sec.336.622 of this title (relating to Closure Completion Milestones and Schedule); (viii) approves a change in the date set in the license for completion of the final radon barrier or interim milestones under sec.336.622 of this title; or (ix) authorizes a portion of a uranium mill tailings impoundment to accept materials from others for disposal during the closure process or after the final radon barrier is complete under sec.336.622 of this title. (C) An amendment to a license issued under Subchapter H of Chapter 336 of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste) which: (i) authorizes a change in the type or concentration limits of wastes to be received; (ii) authorizes receipt of wastes from other states not authorized in the existing license; (iii) authorizes a change in the operator of the facility; (iv) authorizes closure and the final closure plan for the disposal site; or (v) transfers the license to the custodial agency. (D) Any other amendment for which the executive director has prepared a written environmental analysis or has determined that an environmental analysis is required. Member of the public-Any individual except when that individual is receiving an occupational dose. Minor-An individual less than 18 years of age. Minor amendment-Any amendment to a license issued under this chapter which is not defined as a major amendment in this section and does not have a significant impact or effect on the human environment. 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. Naturally-occurring or accelerator-produced radioactive material (NARM)-Any naturally-occurring or accelerator-produced radioactive material except source material or special nuclear material. 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 Health and Safety Code, sec.401.106. Near-surface disposal facility-A land disposal facility in which radioactive waste is disposed of in or within the upper 30 meters of the earth's surface. 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. 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. 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 sec.91.1011. Personnel monitoring equipment-See "Individual monitoring devices." Planned special exposure-An infrequent exposure to radiation, separate from and in addition to the annual occupational dose limits. 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. 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. Quality factor (Q)-The modifying factor listed in Table I or II of sec.336.3 of this title that is used to derive dose equivalent from absorbed dose. 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. Rad-See sec.336.3 of this title. 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. Radiation and Perpetual Care Fund-A fund established in the treasury of the State of Texas for the purposes set forth in the TRCA sec.401.305. 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 1 hour at 30 centimeters from the source of radiation or from any surface that the radiation penetrates. Radiation machine-Any device capable of producing ionizing radiation except those devices with radioactive material as the only source of radiation. Radioactive material-A naturally-occurring or artificially-produced solid, liquid, or gas that emits radiation spontaneously. Radioactive substance-Includes byproduct material, radioactive material, radioactive waste, source material, special nuclear material, and NORM waste, excluding oil and gas NORM waste. Radioactive waste-Radioactive material other than byproduct material as defined in subparagraph (B) of the definition of "byproduct material" of this section, uranium ore, NORM waste, or oil and gas NORM waste, that is discarded or unwanted and is not exempt under rules of the Texas Department of Health adopted under Health and Safety Code, sec.401.106, or would require processing before it could have beneficial reuse. For purposes of the rules in this chapter, radioactive waste also excludes waste classified as high-level radioactive waste, transuranic waste, or spent nuclear fuel. For purposes of the rules in this chapter, radioactive waste means "low-level radioactive waste" as that term is used in 10 CFR Part 61 as amended through May 9, 1995 (60 FedReg 24552) (relating to Licensing Requirements for Land Disposal of Radioactive Waste). For purposes of the rules in this chapter, "radioactive waste" and "low-level radioactive waste" are equivalent terms. For purposes of the rules in this chapter, radioactive waste and low-level radioactive waste include accelerator- produced radioactive material. Radioactivity-The disintegration of unstable atomic nuclei with the emission of radiation. Radiobioassay-See "Bioassay." Reference man-A hypothetical aggregation of human physical and physiological characteristics determined by international consensus. These characteristics may 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." Rem-See sec.336.3 of this title. 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. 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 may be set apart as a restricted area. Roentgen (R)-See sec.336.3 of this title. 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. 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. [sub]s) (which applies to the external exposure of the skin or an extremity)-The dose equivalent at a tissue depth of 0.007 centimeter (7 milligrams/square centimeter) averaged over an area of 1 square centimeter. SI-The abbreviation for the International System of Units. Sievert (Sv)-See sec.336.3 of this title. Site boundary-That line beyond which the land or property is not owned, leased, or otherwise controlled by the licensee. 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. Source material recovery -Uranium or thorium recovery as defined in this section. 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 5 millimeters and which satisfies the test requirements of 10 CFR 71.75 as amended through September 28, 1995 (60 FedReg 50264) (relating to Transportation of License Material). Special nuclear material- (A) Plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235, and any other material that the USNRC, under the provisions of the Atomic Energy Act of 1954, sec.51, as amended through November 2, 1994 (Pub.L. 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. 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. 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." State-The State of Texas. 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. 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. 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. Thorium recovery-Any activity that results in the production of byproduct material as defined in subparagraph (B) of the definition of "byproduct material" of this section, excluding other tailings having similar radiological characteristics. As used in this definition, "thorium recovery" has the same meaning as "uranium milling" in 10 CFR 40.4 as amended through July 15, 1994 (59 FedReg 36035) (relating to Definitions). Total effective dose equivalent (TEDE)-The sum of the deep-dose equivalent for external exposures and the committed effective dose equivalent for internal exposures. 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 sec.336.346(a)(6) of this title (relating to Records of Individual Monitoring Results). Type A quantity (for packaging)-A quantity of radioactive material, the aggregate radioactivity of which does not exceed A 1[sub] 2[sub] 1[sub]2 are given in or may be determined by procedures in Appendix A to 10 CFR Part 71 as amended through September 28, 1995 (60 FedReg 50264) (relating to Packaging and Transportation of Radioactive Material). Type B quantity (for packaging)-A quantity of radioactive material greater than a Type A quantity. Unrefined and unprocessed ore-Ore in its natural form before any processing, such as grinding, roasting, beneficiating, or refining. Unrestricted area-Any area that is not a restricted area. Uranium recovery-Any activity that results in the production of byproduct material as defined in subparagraph (B) of the definition of "byproduct material" of this section, excluding other tailings having similar radiological characteristics. As used in this definition, "uranium recovery" has the same meaning as "uranium milling" in 10 CFR 40.4 as amended through July 15, 1994 (59 FedReg 36035) (relating to Definitions). Very high radiation area-An area, accessible to individuals, in which radiation levels could result in an individual receiving an absorbed dose in excess of 500 rads (5 grays) in 1 hour at 1 meter from a source of radiation or from any surface that the radiation penetrates. (At very high doses received at high dose rates, units of absorbed dose (rad and gray) are appropriate, rather than units of dose equivalent (rem and sievert)). Violation-An infringement of any provision of the TRCA or of any rule, order, or license condition of the commission issued under the TRCA or this chapter. Week-Seven consecutive days starting on Sunday. [sub]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: Figure 1: 30 TAC sec.336.2 Whole body-For purposes of external exposure, head, trunk including male gonads, arms above the elbow, or legs above the knee. Worker-An individual engaged in activities under a license issued by the commission and controlled by a licensee, but does not include the licensee. Working level (WL)-Any combination of short-lived radon daughters in 1 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. Working level month (WLM)-An exposure to 1 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). Year-The period of time beginning in January used to determine compliance with the provisions of the rules in this chapter. The licensee may 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. sec.336.3.Units of Radiation Exposure and Dose. (a) As used in the rules in this chapter, the International System of Units (SI) unit of exposure is the coulomb/kilogram (C/kg) of air. The special unit of exposure is the roentgen. One roentgen equals 2.58 x 10-4 coulomb/kilogram of air. (b) As used in the rules in this chapter, the units of radiation dose are as follows: (1) Rad is the special unit of absorbed dose. One rad is equal to an absorbed dose of 100 ergs/gram or 0.01 joule/kilogram (0.01 gray). (2) Gray (Gy) is the SI unit of absorbed dose. One gray is equal to an absorbed dose of 1 joule/kilogram (100 rads). (3) Rem is the special unit of any of the quantities expressed as dose equivalent. The dose equivalent in rem is equal to the absorbed dose in rad multiplied by the quality factor (1 rem = 0.01 sievert). (4) Sievert (Sv) is the SI unit of any of the quantities expressed as dose equivalent. The dose equivalent in sievert is equal to the absorbed dose in gray multiplied by the quality factor (1 sievert = 100 rems). (c) As used in the rules in this chapter, the quality factors for converting absorbed dose to dose equivalent are shown in Table I. Figure 1: 30 TAC sec.336.3(c) (d) If it is more convenient to measure the neutron fluence rate than to determine the neutron dose equivalent rate in rem/hour or sievert/hour, as provided in subsection (c) of this section, 1 rem (0.01 sievert) of neutron radiation of unknown energies may, for purposes of the rules in this chapter, be assumed to result from a total fluence of 25 million neutrons/square centimeter incident upon the body. If sufficient information exists to estimate the approximate energy distribution of the neutrons, the licensee may use the fluence rate per unit dose equivalent or the appropriate Q value from Table II to convert a measured tissue dose in rad (gray) to dose equivalent in rem (sievert). Figure 2: 30 TAC sec.336.3(d) sec.336.4.Units of Radioactivity. For purposes of the rules in this chapter, activity is expressed in the special unit of curie (Ci) or in the International System of Units unit of becquerel (Bq), or its multiples, or disintegrations (transformations) per unit of time, as follows: [sup]10 disintegrations or transformations/second (dps or tps) = 3.7 x 10 10[sup]12 disintegrations or transformations/minute (dpm or tpm). Commonly used submultiples of the curie are as follows. One millicurie (mCi) = 1 x 10- 3[sup]7 dps. One microcurie (microCi) = 1 x 10-6[sup] 4[sup]-9 Ci = 3.7 x 10 dps. One picocurie (pCi) = 1 x 10-12 [sup]-2 dps. (2) One becquerel (Bq) = 1 disintegration or transformation/second (dps or tps). sec.336.6.Additional Requirements. The commission may, by rule, order, or condition of license, impose upon any licensee such requirements in addition to those established in the rules in this chapter as it deems appropriate or necessary under the Texas Radiation Control Act to minimize danger to public health and safety or property or the environment. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706503 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER B.Radioactive Substance Fees 30 TAC sec.sec.336.101-336.113 The new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material and to set and collect appropriate fees to recover its costs to carry out these responsibilities and for emergency response activities at fixed nuclear facilities. sec.336.104.Schedule of Fees for Subchapter G Licenses. (a) Application fees. Each application for a license under Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities) shall be accompanied by an application fee, as follows: (1) conventional uranium mill with tailings disposal facility: $306,780; (2) in situ uranium mining and processing facility: $180,500; (3) heap leach facility: $183,450; (4) facility only for disposal of byproduct material, as defined in sec.336.2, subparagraph (B), of this title (relating to Definitions): $227,335; or (5) disposal facility for naturally-occurring radioactive material (NORM) waste, excluding oil and gas NORM waste: $227,335. (b) Annual license fees. An annual fee of $54,846 shall be paid for each license issued under Subchapter G of Chapter 336 of this title including: (1) conventional uranium mill with tailings disposal facility, in post-closure; (2) conventional uranium mill with tailings disposal facility, during reclamation; (3) in situ uranium mining and processing facility, operational; (4) in situ uranium mining and processing facility, during reclamation; and (5) facility only for disposal of byproduct material, operational. (c) Adjustments to annual license fees. A licensee that is authorized under Subchapter G of Chapter 336 of this title to conduct disposal (including processing, if applicable) of byproduct material, as defined in sec.336.2, subparagraph (B), of this title (relating to Definitions), from others shall pay an additional annual fee of $23,000, along with the fee specified in subsection (b) of this section, except for facilities licensed for disposal only. (d) Fees for certain amendment requests. (1) An application for amendment of a license issued under Subchapter G of Chapter 336 of this title shall be accompanied by an amendment application fee as set forth in this subsection for amendment requests involving: (A) addition of an in situ mining well field or expansion of an existing well field: $25,765; (B) addition of waste fluid disposal by irrigation or surface discharge: $6,175; (C) addition of a satellite recovery system (e.g., lixiviant-stripping ion- exchange unit): $64,415; (D) addition of a non-vacuum dryer (i.e., a dryer operating at or above atmospheric pressure): $45,630; or (E) addition of disposal (including processing, if applicable) of byproduct material, as defined in sec.336.2, subparagraph (B), of this title (relating to Definitions) from others: $64,415. (2) For a facility listed in paragraph (1) of this subsection to be added to a license by means of a license amendment, the facility shall conform to the requirements of sec.336.606(b) of this title (relating to Issuance of License). If a proposed facility does not conform to the requirements of sec.336.606(b) of this title, an application for a separate license may be required. (e) Fees for certain other requests. The fee for a request for release for unrestricted use of a subsite or a portion of a licensed area and a request for agency confirmation of work performed for those areas, shall be the actual costs of confirmatory work performed where the work is to be contracted out to a third party. sec.336.111.Method of Payment of Fees. Fee payments prescribed by this subchapter shall be made in cash or by check or money order made payable to the Texas Natural Resource Conservation Commission. The payments may be made by personal delivery to the Financial Administration Cashier Office, Texas Natural Resource Conservation Commission, in Austin, Texas, or mailed to the Texas Natural Resource Conservation Commission, MC 181, P.O. Box 13088, Austin, Texas 78711-3088. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706504 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER C.Additional Application, Operation, And License Requirements 30 TAC sec.sec.336.201, 336.203, 336.205, 336.207, 336.209 - 336.211, 336.213, 336.215, 336.217, 336.219 The new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.205.Transfer of Radioactive Material. (a) The licensee shall not transfer source material, byproduct material, or other licensed radioactive material except as authorized under the rules in this subchapter. (b) Except as otherwise provided in the license and subject to the provisions of subsections (c) and (d) of this section, a licensee may transfer source material, byproduct material, or other licensed radioactive material: (1) to the executive director (A licensee may transfer material to the executive director only after receiving prior approval from the executive director. If the material to be transferred is special nuclear material, the quantity must not be sufficient to form a critical mass.); (2) to the United States Department of Energy; (3) to any person exempt from the licensing requirements of the Texas Radiation Control Act and the rules in this chapter or exempt from the licensing requirements of the United States Nuclear Regulatory Commission or an Agreement State, to the extent permitted by these exemptions; (4) to any person authorized to receive this material under terms of a specific license or a general license or its equivalent issued by the commission, the Texas Department of Health, the United States Nuclear Regulatory Commission, or any Agreement State or to any person otherwise authorized to receive this material by the federal government or any agency thereof, the commission, the Texas Department of Health, or any Agreement State; or (5) as otherwise authorized by the commission in writing. (c) Before transferring source material, byproduct material, or other radioactive material to a specific licensee of the commission, the Texas Department of Health, the United States Nuclear Regulatory Commission, or an Agreement State or to a general licensee who is required to register with the Texas Department of Health, the United States Nuclear Regulatory Commission, or an Agreement State prior to receipt of the source material, byproduct material, or other radioactive material, the licensee transferring the material shall verify that the transferee's license authorizes the receipt of the type, form, and quantity of radioactive material to be transferred. (d) The following methods for the verification required by subsection (c) of this section are acceptable: (1) The transferor may possess and have read a current copy of the transferee's specific license or certificate of registration; (2) The transferor may possess a written certification by the transferee that the transferee is authorized by the license or certificate of registration to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or certificate of registration number, issuing agency, and expiration date; (3) For emergency shipments, the transferor may accept oral certification by the transferee that the transferee is authorized by license or certificate of registration to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or certificate of registration number, issuing agency, and expiration date, provided that the oral certification is confirmed in writing within 10 days; (4) The transferor may obtain other sources of information compiled by a reporting service from official records of the commission, the Texas Department of Health, the United States Nuclear Regulatory Commission, or an Agreement State as to the identity of licensees and registrants and the scope and expiration dates of licenses and registrations; or (5) When none of the methods of verification described in paragraphs (1)-(4) of this subsection are readily available or when a transferor desires to verify that information received by one of these methods is correct or up-to-date, the transferor may obtain and record confirmation from the commission, the Texas Department of Health, the United States Nuclear Regulatory Commission, or an Agreement State that the transferee is licensed to receive the source material, byproduct material, or other radioactive material. (e) Transportation of radioactive material may also be subject to applicable rules of the United States Department of Transportation, United States Postal Service, United States Nuclear Regulatory Commission, or Texas Department of Health. (f) The licensee shall keep records showing the transfer of any source material, byproduct material, or other radioactive material. sec.336.217.Expiration and Termination of Licenses and Decommissioning of Sites and Separate Buildings or Outdoor Areas. (a) Each license expires at the end of the day on the expiration date stated in the license unless the licensee has filed an application for renewal in accordance with the application requirements specified in the appropriate subchapter of this chapter not less than 30 days before the expiration date stated in the existing license. If an application for renewal in proper form has been filed at least 30 days prior to the expiration date stated in the existing license, the existing license shall not expire until the application has been finally determined by the commission. The existing license expires at the end of the day on which the commission makes a final determination to deny the renewal application or, if the determination states an expiration date, the expiration date stated in the determination. (b) Each license revoked by the commission expires at the end of the day on the date of the commission's final determination to revoke the license, or on the expiration date stated in the determination, or as otherwise provided by commission order. (c) Each license continues in effect, beyond the expiration date if necessary, with respect to possession of source material, byproduct material, or other radioactive material until the commission notifies the licensee in writing that the license is terminated. During this time, the licensee shall: (1) limit actions involving source material, byproduct material, or other radioactive material to those related to decommissioning; and (2) continue to control entry to restricted areas until they are suitable for release in accordance with commission requirements. (d) Within 60 days of the occurrence of any of the following, each licensee shall provide written notification to the executive director: (1) The license has expired under subsection (a) or (b) of this section; or (2) The licensee has decided to permanently cease principal activities at the entire site or in any separate building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for release in accordance with commission requirements; or (3) No principal activities under the license have been conducted for a period of 24 months; or (4) No principal activities have been conducted for a period of 24 months in any separate building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for release in accordance with commission requirements. (e) The licensee shall either: (1) begin, within 60 days of the occurrence for which notification is required by subsection (d) of this section, decommissioning its site, or any separate building or outdoor area that contains residual radioactivity so that the building or outdoor area is suitable for release in accordance with commission requirements; or (2) submit to the executive director, within 12 months of the notification required by subsection (d) of this section, a decommissioning plan, if required by subsection (h)(1) of this section, and begin decommissioning upon approval of that plan by the commission by license amendment. (f) The licensee shall follow a commission-approved closure plan for decontamination, decommissioning, restoration, and reclamation of buildings and the site. (1) For licenses issued under Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), coincident with the notification required by subsection (d) of this section, the licensee shall maintain in effect all decommissioning financial assurances established by the licensee under sec.336.514 of this title (relating to Financial Assurance and Recordkeeping for Decommissioning) in conjunction with a license issuance or renewal or as required by this section. The amount of the financial assurance must be increased, or may be decreased, as appropriate, to cover the detailed cost estimate for decommissioning established under subsection (h)(4)(E) of this section. Any licensee who has not provided financial assurance to cover the detailed cost estimate submitted with the decommissioning plan shall do so on or before January 1, 1998. Following approval of the decommissioning plan, a licensee may reduce the amount of the financial assurance as decommissioning proceeds and radiological contamination is reduced at the site with the approval of the executive director. (2) For licenses under Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities), in addition to the provisions of subsection (e) of this section, each licensee shall submit an updated closure plan to the executive director within 12 months of the notification required by subsection (d) of this section. The updated closure plan shall meet the requirements of sec.336.605(5) of this title (relating to Special Requirements for Issuance of a License) and sec.336.627 of this title (relating to Financial Assurance Requirements). The updated closure plan shall describe the actual conditions of the facilities and site and the proposed closure activities and procedures. (3) For licenses under Subchapter G of Chapter 336 of this title, if a detailed decommissioning plan is required under subsection (h)(1) of this section, it may be included in the closure plan required by paragraph (2) of this subsection. The detailed reclamation plan for tailings and waste disposal sites which is required by sec.336.622 of this title (relating to Closure Completion Milestones and Schedule) may be submitted separately or incorporated into the closure plan required by paragraph (2) of this subsection. The proposed closure plan required by paragraph (2) of this subsection may be approved by the commission by license amendment. (g) The executive director may grant in writing a request to extend the time periods established in subsections (d) and (e) of this section, or to delay or postpone the decommissioning process, if the executive director determines that this relief is not detrimental to the public health and safety and is otherwise in the public interest. The request must be submitted no later than 30 days before notification under subsection (d) of this section. The schedule for decommissioning set forth in subsection (e) of this section may not commence until the executive director has made a determination on the request. (h) Decommissioning planning is required, as applicable. (1) A decommissioning plan must be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the commission and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases: (A) Procedures would involve techniques not applied routinely during cleanup or maintenance operations; (B) Workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation; (C) Procedures could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or (D) Procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation. (2) The executive director may approve an alternate schedule for submittal of a decommissioning plan required under subsection (e)(2) of this section if the executive director determines that the alternative schedule is necessary to the effective conduct of decommissioning operations and presents no undue risk from radiation to the public health and safety and is otherwise in the public interest. (3) The procedures listed in paragraph (1) of this subsection may not be carried out prior to approval of the decommissioning plan by the commission by license amendment. (4) The proposed decommissioning plan for the site or separate building or outdoor area shall include: (A) a description of the conditions of the site or separate building or outdoor area sufficient to evaluate the acceptability of the plan; (B) a description of planned decommissioning activities; (C) a description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning; (D) a description of the planned final radiation survey; (E) an updated detailed cost estimate for decommissioning, comparison of that estimate with present funds set aside for decommissioning, and a plan for assuring the availability of adequate funds for completion of decommissioning; and (F) for decommissioning plans calling for completion of decommissioning later than 24 months after plan approval, a justification for the delay based on the criteria in subsection (j) of this section. (5) The proposed decommissioning plan may be approved by the commission by license amendment if the information demonstrates that the decommissioning will be completed as soon as practicable and that the health and safety of workers and the public will be protected. (i) Decommissioning must be completed in a timely fashion. (1) Except as provided in subsection (j) of this section, the licensee shall complete decommissioning of the site or separate building or outdoor area as soon as practicable but no later than 24 months following the initiation of decommissioning. (2) Except as provided in subsection (j) of this section, when decommissioning involves the entire site, the licensee shall request license termination as the final step in decommissioning, which shall be as soon as practicable but no later than 24 months following the initiation of decommissioning. (j) The commission may approve by license amendment a request for an alternate schedule for completion of decommissioning of the site or separate building or outdoor area, and license termination if appropriate, if the commission determines that the alternative is warranted by consideration of the following: (1) whether it is technically feasible to complete decommissioning within the allotted 24-month period; (2) whether sufficient waste disposal capacity is available to allow completion of decommissioning within the allotted 24-month period; (3) whether a significant volume reduction in wastes requiring disposal will be achieved by allowing short-lived radionuclides to decay; (4) whether a significant reduction in radiation exposure to workers can be achieved by allowing short-lived radionuclides to decay; and (5) other site-specific factors which the commission may consider appropriate on a case-by-case basis, such as the regulatory requirements of other government agencies, lawsuits, groundwater treatment activities, monitored natural groundwater restoration, actions that could result in more environmental harm than deferred cleanup, and other factors beyond the control of the licensee. (k) As the final steps in decommissioning, the licensee shall: (1) certify the disposition of all licensed material, including accumulated wastes; (2) conduct a radiation survey of the premises where the licensed activities were carried out and submit a report of the results of this survey unless the licensee demonstrates that the premises are suitable for release in some other manner. The licensee shall as appropriate: (A) report levels of gamma radiation in units of microroentgens (millisieverts) per hour at 1 meter from surfaces, and report levels of radioactivity (removable and fixed), including alpha and beta, in units of disintegrations per minute or microcuries (megabecquerels) per 100 square centimeters for surfaces, microcuries (megabecquerels) per milliliter for water, and picocuries (becquerels) per gram for solids such as soils or concrete; and (B) specify the survey instrument(s) used and certify that each instrument is properly calibrated and tested; and (3) Submit a request for license termination, which includes, but is not limited to, the information required by paragraphs (1) and (2) of this subsection. (l) Licenses, including expired licenses, will be terminated by the commission by written notice to the licensee when the executive director determines that: (1) Source material, byproduct material, and other radioactive material has been properly disposed; (2) Reasonable effort has been made to eliminate residual radioactive contamination, if present; (3) The site is suitable for release. (A) A radiation survey has been performed which demonstrates that the premises are suitable for release in accordance with commission requirements; or (B) Other information submitted by the licensee is sufficient to demonstrate that the premises are suitable for release in accordance with commission requirements; (4) The licensee has paid any outstanding fees required by Subchapter B of Chapter 336 of this title (relating to Radioactive Substance Fees) and has resolved any outstanding notice(s) of violation issued to the licensee; (5) For licenses under Subchapter G of Chapter 336 of this title, the licensee has met the applicable technical and other requirements for closure and reclamation of a tailings or waste disposal site; and (6) For licenses under Subchapter G of Chapter 336 of this title, the United States Nuclear Regulatory Commission has made a determination that all applicable standards and requirements have been met. (m) For licenses under Subchapter G of Chapter 336 of this title, licenses for uranium or thorium milling are exempt from subsections (d)(4), (h)(4), and (i) of this section with respect to reclamation of tailings impoundments and/or waste disposal areas. Timely reclamation plans for tailings and byproduct material disposal areas must be submitted and approved in accordance with sec.336.622 of this title. (n) The requirements of this section do not apply to licenses issued under Subchapter H of Chapter 336 of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste). (o) A licensee may request that a subsite or a portion of a licensed area be released for unrestricted use before full license termination as long as release of the area of concern will not adversely impact the remaining unaffected areas and will not be recontaminated by ongoing authorized activities. When the licensee is confident that the area of concern will be acceptable to the state for release for unrestricted use, a written request for release for unrestricted use and agency confirmation of close-out work performed must be submitted to the executive director. The request should include a comprehensive report, accompanied by survey and sample results which show contamination is less than the limits specified in sec.336.356 of this title (relating to Soil and Vegetation Contamination Limits), and an explanation of how ongoing authorized activities will not adversely affect the area proposed to be released. Upon confirmation by the executive director that the area of concern is indeed releasable for unrestricted use, the licensee may apply for a license amendment, if required. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706510 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER D. Standards for Protection Against Radiation 30 TAC sec.sec.336.301-336.368 These new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.306. Compliance with Requirements for Summation of External and Internal Doses. (a) If the licensee is required to monitor under both sec.336.316(1) and (2) of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose), the licensee shall demonstrate compliance with the dose limits by summing external and internal doses. If the licensee is required to monitor only under sec.336.316(1) of this title or only under sec.336.316(2) of this title, then summation is not required to demonstrate compliance with the dose limits. The licensee may demonstrate compliance with the requirements for summation of external and internal doses by meeting the conditions specified in subsections (b), (c), and (d) of this section. (The dose equivalents for the lens of the eye, the skin, and the extremities are not included in the summation but are subject to separate limits.) (b) If the only intake of radionuclides is by inhalation, the total effective dose equivalent limit is not exceeded if the sum of the deep-dose equivalent divided by the total effective dose equivalent limit and one of the following does not exceed 1: (1) the sum of the fractions of the inhalation annual limits on intake (ALI) for each radionuclide; or (2) the total number of derived air concentration-hours (DAC-hours) for all radionuclides divided by 2,000; or (3) the sum of the calculated committed effective dose equivalents to all significantly irradiated organs or tissues (T) calculated from bioassay data using appropriate biological models and expressed as a fraction of the annual limit. For purposes of this requirement, an organ or tissue is deemed to be significantly irradiated if, for that organ or tissue, the product of the weighting factor (wT) and the committed dose equivalent (HT,50) per unit intake is greater than 10% of the maximum weighted value of H T,50[sub] T,50) per unit intake for any organ or tissue. (c) If the occupationally-exposed individual also receives an intake of radionuclides by oral ingestion greater than 10% of the applicable oral ALI, the licensee shall account for this intake and include it in demonstrating compliance with the limits. (d) The licensee shall evaluate and, to the extent practical, account for intakes through wounds or skin absorption. (The intake through intact skin has been included in the calculation of DAC for hydrogen-3 and does not need to be further evaluated under this subsection.) sec.336.308. Determination of Internal Exposure. (a) For purposes of assessing dose used to determine compliance with occupational dose equivalent limits, the licensee shall, when required under sec.336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose), take suitable and timely measurements of: (1) concentrations of radioactive materials in air in work areas; or (2) quantities of radionuclides in the body; or (3) quantities of radionuclides excreted from the body; or (4) combinations of these measurements. (b) Unless respiratory protection equipment is used, as provided in sec.336.321 of this title (relating to Use of Individual Respiratory Protection Equipment), or the assessment of intake is based on bioassays, the licensee shall assume that an individual inhales radioactive material at the airborne concentration in which the individual is present. (c) When specific information on the physical and biochemical properties of the radionuclides taken into the body or the behavior of the material in an individual is known, the licensee may: (1) use that information to calculate the committed effective dose equivalent and shall document that information, if used, in the individual's record; and (2) upon prior approval in the license by the commission, adjust the DAC or ALI values to reflect the actual physical and chemical characteristics of airborne radioactive material (e.g., aerosol size distribution or density); and (3) separately assess the contribution of fractional intakes of Class D, W, or Y compounds of a given radionuclide to the committed effective dose equivalent. See sec.336.359, Appendix B, 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). (d) If the licensee chooses to assess intakes of Class Y material using the measurements given in subsection (a)(2) or (3) of this section, the licensee may delay the recording and reporting of the assessments for periods up to 7 months, unless otherwise required by sec.336.351 of this title (relating to Notification of Incidents) or sec.336.352 of this title (relating to Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits). This delay permits the licensee to make additional measurements basic to the assessments. (e) If the identity and concentration of each radionuclide in a mixture are known, the fraction of the DAC applicable to the mixture for use in calculating DAC-hours shall be either: (1) the sum of the ratios of the concentration to the appropriate DAC value (e.g., D, W, or Y) from sec.336.359, Appendix B, of this title for each radionuclide in the mixture; or (2) the ratio of the total concentration for all radionuclides in the mixture to the most restrictive DAC value for any radionuclide in the mixture. (f) If the identity of each radionuclide in a mixture is known, but the concentration of one or more of the radionuclides in the mixture is not known, the DAC for the mixture shall be the most restrictive DAC of any radionuclide in the mixture. (g) When a mixture of radionuclides in air exists, a licensee may disregard certain radionuclides in the mixture if: (1) The licensee uses the total activity of the mixture in demonstrating compliance with the dose limits in sec.336.305 of this title (relating to Occupational Dose Limits for Adults) and in complying with the monitoring requirements in sec.336.316(2) of this title; and (2) The concentration of any radionuclide disregarded is less than 10% of its DAC; and (3) The sum of these percentages for all of the radionuclides disregarded in the mixture does not exceed 30%. (h) When determining the committed effective dose equivalent, the following information may be considered: (1) To calculate the committed effective dose equivalent, the licensee may assume that the inhalation of one ALI, or an exposure of 2,000 DAC-hours, results in a committed effective dose equivalent of 5 rems (0.05 sievert) for radionuclides that have their ALIs or DACs based on the committed effective dose equivalent. (2) When the ALI (and the associated DAC) is determined by the nonstochastic organ dose limit of 50 rems (0.5 sievert), the intake of radionuclides that would result in a committed effective dose equivalent of 5 rems (0.05 sievert) (the stochastic ALI) is listed in parentheses in Table I of sec.336.359, Appendix B, of this title. In this case, the licensee may, as a simplifying assumption, use the stochastic ALI to determine committed effective dose equivalent. However, if the licensee uses the stochastic ALI, the licensee shall also demonstrate that the limit in sec.336.305(a)(1)(B) of this title is met. sec.336.309. Determination of Prior Occupational Dose. (a) For each individual who is likely to receive in a year an occupational dose requiring monitoring under sec.336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose), the licensee shall: (1) determine the occupational radiation dose received during the current year; and (2) attempt to obtain the records of lifetime cumulative occupational radiation dose. (b) Before permitting an individual to participate in a planned special exposure, the licensee shall determine: (1) the internal and external doses from all previous planned special exposures; and (2) all doses in excess of the limits, including doses received during accidents and emergencies, received during the lifetime of the individual. (c) In complying with the requirements of subsection (a) of this section, a licensee may: (1) accept, as a record of the occupational dose that the individual received during the current year, a written signed statement from the individual, or from the individual's most recent employer for work involving radiation exposure, that discloses the nature and the amount of any occupational dose that the individual received during the current year; and (2) accept, as the record of lifetime cumulative radiation dose, an up-to-date form "Cumulative Occupational Exposure History" (see sec.336.367, Appendix J of this title (relating to Cumulative Occupational Exposure History)) or equivalent, signed by the individual and countersigned by an appropriate official of the most recent employer for work involving radiation exposure, or the individual's current employer, if the individual is not employed by the licensee; and (3) obtain reports of the individual's dose equivalent from the most recent employer for work involving radiation exposure, or the individual's current employer, if the individual is not employed by the licensee, by telephone, telegram, electronic media, or letter. The licensee shall request a written verification of the dose data if the authenticity of the transmitted report cannot be established. (d) The licensee shall record individual exposure histories. (1) The licensee shall record the exposure history of each individual, as required by subsection (a) of this section, on form "Cumulative Occupational Exposure History" (see sec.336.367, Appendix J of this title) or other clear and legible record which includes all of the information required on that form. The form or record shall show each period in which the individual received occupational exposure to radiation or radioactive material and shall be signed by the individual who received the exposure. For each period for which the licensee obtains reports, the licensee shall use the dose shown in the report in preparing form "Cumulative Occupational Exposure History" (see sec.336.367, Appendix J of this title) or equivalent. For any period for which the licensee does not obtain a report, the licensee shall place a notation on form "Cumulative Occupational Exposure History" (see sec.336.367, Appendix J of this title) or equivalent indicating the periods of time for which data are not available. (2) Licensees are not required to separate historical dose, obtained and recorded before January 1, 1994, into external dose equivalent(s) and internal committed dose equivalent(s). Further, occupational exposure histories obtained and recorded on form "Cumulative Occupational Exposure History" (see sec.336.367, Appendix J of this title) or equivalent before January 1, 1994, would not have included effective dose equivalent but may be used in the absence of specific information on the intake of radionuclides by the individual. (e) If the licensee is unable to obtain a complete record of an individual's current and previously accumulated occupational dose, the licensee shall assume: (1) in establishing administrative controls under sec.336.305(f) of this title (relating to Occupational Dose Limits for Adults) for the current year, that the allowable dose limit for the individual is reduced by 1.25 rems (12.5 millisieverts) for each quarter for which records are unavailable and that the individual was engaged in activities that could have resulted in occupational radiation exposure; and (2) that the individual is not available for planned special exposures. sec.336.310. Planned Special Exposures. A licensee may authorize an adult worker to receive doses in addition to and accounted for separately from the doses received under the limits specified in sec.336.305 of this title (relating to Occupational Dose Limits for Adults) provided that each of the following conditions is satisfied: (1) The licensee authorizes a planned special exposure only in an exceptional situation when alternatives that might avoid the higher exposure are unavailable or impractical. (2) The licensee, and employer if the employer is not the licensee, specifically authorizes the planned special exposure, in writing, before the exposure occurs. (3) Before a planned special exposure, the licensee ensures that each individual involved is: (A) informed of the purpose of the planned operation; and (B) informed of the estimated doses and associated potential risks and specific radiation levels or other conditions that might be involved in performing the task; and (C) instructed in the measures to be taken to keep the dose as low as is reasonably achievable considering other risks that may be present. (4) Before permitting an individual to participate in a planned special exposure, the licensee ascertains prior doses as required by sec.336.309(b) of this title (relating to Determination of Prior Occupational Dose) during the lifetime of the individual for each individual involved. (5) Subject to sec.336.305(b) of this title, the licensee shall not authorize a planned special exposure that would cause an individual to receive a dose from all planned special exposures and all doses in excess of the limits to exceed: (A) the numerical values of any of the dose limits in sec.336.305(a) of this title in any year; and (B) five times the annual dose limits in sec.336.305(a) of this title during the individual's lifetime. (6) The licensee maintains records of the conduct of a planned special exposure in accordance with sec.336.345 of this title (relating to Records of Planned Special Exposures) and submits a written report to the executive director in accordance with sec.336.353 of this title (relating to Reports of Planned Special Exposures). (7) The licensee records the best estimate of the dose resulting from the planned special exposure in the individual's record and informs the individual, in writing, of the dose within 30 days from the date of the planned special exposure. The dose from planned special exposures shall not be considered in controlling future occupational dose of the individual under sec.336.305(a) of this title but shall be included in evaluations required by paragraphs (4) and (5) of this section. sec.336.313. Dose Limits for Individual Members of the Public. (a) Each licensee shall conduct operations so that: (1) The total effective dose equivalent to individual members of the public from the licensed operation does not exceed 0.1 rem (1 millisievert) in a year, exclusive of the dose contribution from the licensee's disposal of radioactive material into sanitary sewerage in accordance with sec.336.333 of this title (relating to Disposal by Release into Sanitary Sewerage); and (2) The dose in any unrestricted area from external sources does not exceed 0.002 rem (0.02 millisievert) in any 1 hour. (b) If the licensee permits members of the public to have access to restricted areas, the limits for members of the public continue to apply to those individuals. (c) A licensee or an applicant for a license may apply for prior commission authorization to operate up to an annual dose limit for an individual member of the public of 0.5 rem (5 millisieverts). The licensee or applicant shall include the following information in this application: (1) demonstration of the need for and the expected duration of operations in excess of the limit in subsection (a) of this section; (2) the licensee's or applicant's program to assess and control dose within the 0.5 rem (5 millisieverts) annual limit; and (3) the procedures to be followed to maintain the dose as low as is reasonably achievable. (d) In addition to the requirements of this chapter, a licensee may also be subject to the provisions of the United States Environmental Protection Agency's generally applicable environmental radiation standards in 40 CFR Part 190 (relating to Environmental Radiation Protection Standards for Nuclear Power Operations). (e) The commission may impose additional restrictions on radiation levels in unrestricted areas and on the total quantity of radionuclides that a licensee may release in effluents in order to restrict the collective dose. sec.336.314. Compliance with Dose Limits for Individual Members of the Public. (a) The licensee shall make or cause to be made, as appropriate, surveys of radiation levels in unrestricted areas and radioactive materials in effluents released to unrestricted areas to demonstrate compliance with the dose limits for individual members of the public in sec.336.313 of this title (relating to Dose Limits for Individual Members of the Public). (b) A licensee shall show compliance with the annual dose limit in sec.336.313 of this title by: (1) demonstrating by measurement or calculation that the total effective dose equivalent to the individual likely to receive the highest dose from the licensed operation does not exceed the annual dose limit; or (2) demonstrating that: (A) the annual average concentrations of radioactive material released in gaseous and liquid effluents at the boundary of the unrestricted area do not exceed the values specified in Table II of sec.336.359, Appendix B, 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); and (B) if an individual were continually present in an unrestricted area, the dose from external sources would not exceed 0.002 rem (0.02 millisievert) in an hour and 0.05 rem (0.5 millisievert) in a year. (c) Upon approval in the license by the commission, the licensee may adjust the effluent concentration values in sec.336.359, Appendix B, Table II, of this title for members of the public, to take into account the actual physical and chemical characteristics of the effluents (e.g., aerosol size distribution, solubility, density, radioactive decay equilibrium, and chemical form). sec.336.320. Use of Other Controls. When it is not practical to apply process or other engineering controls to control the concentrations of radioactive material in air to values below those that define an airborne radioactivity area, the licensee shall, consistent with maintaining the total effective dose equivalent as low as is reasonably achievable, increase monitoring and limit intakes by one or more of the following means: (1) control of access; (2) limitation of exposure times; (3) use of respiratory protection equipment; or (4) other controls. sec.336.321. Use of Individual Respiratory Protection Equipment. (a) If the licensee uses respiratory protection equipment to limit intakes under sec.336.320 of this title (relating to Use of Other Controls): (1) The licensee shall use only respiratory protection equipment that is tested and certified or had certification extended by the National Institute for Occupational Safety and Health and the Mine Safety and Health Administration (NIOSH/MSHA), except as provided in paragraph (2) of this subsection. (2) If the licensee wishes to use equipment that has not been tested or certified by NIOSH/MSHA, or has not had certification extended by NIOSH/MSHA, or for which there is no schedule for testing or certification, the licensee shall submit an application for authorized use of that equipment, including a demonstration by testing, or a demonstration on the basis of reliable test information, that the material and performance characteristics of the equipment are capable of providing the proposed degree of protection under anticipated conditions of use. (3) The licensee shall implement and maintain a respiratory protection program that includes: (A) air sampling sufficient to identify the potential hazard, permit proper equipment selection, and estimate exposures; (B) surveys and bioassays, as appropriate, to evaluate actual intakes; (C) testing of respirators for operability immediately before each use; (D) written procedures regarding selection, fitting, issuance, maintenance, and testing of respirators, including testing for operability immediately before each use; supervision and training of personnel; monitoring, including air sampling and bioassays; and recordkeeping; and (E) determination by a physician before initial fitting of respirators, and at least every 12 months thereafter or periodically at a frequency determined by a physician, that the individual user is medically fit to use the respiratory protection equipment. (4) The licensee shall issue a written policy statement on respirator usage covering: (A) the use of process or other engineering controls, instead of respirators; (B) the routine, nonroutine, and emergency use of respirators; and (C) the length of periods of respirator use and relief from respirator use. (5) The licensee shall advise each respirator user that the user may leave the area at any time for relief from respirator use in the event of equipment malfunction, physical or psychological distress, procedural or communication failure, significant deterioration of operating conditions, or any other conditions that might require this relief. (6) The licensee shall use respiratory protection equipment within limitations for type and mode of use and shall provide proper visual, communication, and other special capabilities, such as adequate skin protection, when needed. (b) When estimating exposure of individuals to airborne radioactive materials, the licensee may make allowance for respiratory protection equipment used to limit intakes under sec.336.320 of this title, provided that the following conditions, in addition to those in subsection (a) of this section, are satisfied: (1) The licensee selects respiratory protection equipment that provides a protection factor (see sec.336.358, Appendix A, of this title (relating to Protection Factors for Respirators)) greater than the multiple by which peak concentrations of airborne radioactive materials in the working area are expected to exceed the values specified in sec.336.359, Appendix B, Table I, Column 3, 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). However, if the selection of respiratory protection equipment with a protection factor greater than the multiple defined in the preceding sentence is inconsistent with the goal specified in sec.336.320 of this title of keeping the total effective dose equivalent as low as is reasonably achievable (ALARA), the licensee may select respiratory protection equipment with a lower protection factor only if such a selection would result in keeping the total effective dose equivalent ALARA. The concentration of radioactive material in the air that is inhaled when respirators are worn may be initially estimated by dividing the average concentration in air, during each period of uninterrupted use, by the protection factor. If the exposure is later found to be greater than initially estimated, the corrected value shall be used; if the exposure is later found to be less than initially estimated, the corrected value may be used. (2) The licensee shall obtain authorization from the commission by license amendment before assigning respiratory protection factors in excess of those specified in sec.336.358, Appendix A, of this title. The commission may authorize a licensee to use higher protection factors on receipt of an application that: (A) describes the situation for which a need exists for higher protection factors; and (B) demonstrates that the respiratory protection equipment provides these higher protection factors under the proposed conditions of use. (c) In an emergency, the licensee shall use as emergency equipment only respiratory protection equipment that has been specifically certified or had certification extended for emergency use by the NIOSH/MSHA. (d) The licensee shall notify the executive director in writing at least 30 days before the date that respiratory protection equipment is first used under the provisions of either subsection (a) or (b) of this section. sec.336.329. Exemptions to Labeling Requirements. A licensee is not required to label: (1) containers holding licensed material in quantities less than those listed in sec.336.360, Appendix C, of this title (relating to Quantities of Licensed Material Requiring Labeling); (2) containers holding licensed material in concentrations less than those specified in Table III of sec.336.359, Appendix B, 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); (3) containers attended by an individual who takes the precautions necessary to prevent the exposure of individuals in excess of the limits established by this subchapter; (4) containers when they are in transport and packaged and labeled in accordance with the rules of the United States Department of Transportation (labeling of packages containing radioactive material is required by the United States Department of Transportation if the amount and type of radioactive material exceeds the limits for an excepted quantity or article as defined and limited by rules in 49 CFR 173.403(m) and (w) as amended through September 29, 1989, and 49 CFR 172.436-172.440 as amended through December 20, 1991); (5) containers that are accessible only to individuals authorized to handle or use them, or to work in the vicinity of the containers, if the contents are identified to these individuals by a readily available written record. (Examples of containers of this type are containers in locations such as water-filled canals, storage vaults, or hot cells.) The record shall be retained as long as the containers are in use for the purpose indicated on the record; or (6) installed manufacturing or process equipment, such as piping and tanks. sec.336.330. Procedures for Receiving and Opening Packages. (a) Each licensee who expects to receive a package containing quantities of radioactive material in excess of a Type A quantity, as defined in sec.336.2 of this title (relating to Definitions), shall make arrangements to receive: (1) the package when the carrier offers it for delivery; or (2) notification of the arrival of the package at the carrier's terminal and to take possession of the package expeditiously. (b) Each licensee shall monitor the external surfaces of a labeled (labeled with a Radioactive White I, Yellow II, or Yellow III label, as specified in United States Department of Transportation rules in 49 CFR 172.403 as amended through December 21, 1990, and 49 CFR 172.436-172.440 as amended through December 20, 1991) package for radioactive contamination unless the package contains: (1) only radioactive material in the form of gas or in special form, as defined in sec.336.2 of this title; and (2) quantities of radioactive material that are less than or equal to the Type A quantity, as defined in sec.336.2 of this title; and (3) monitor all packages known to contain radioactive material for radioactive contamination and radiation levels if there is evidence of degradation of package integrity, such as packages that are crushed, wet, or damaged. (c) The licensee shall perform the monitoring required by subsection (b) of this section as soon as practical after receipt of the package, but not later than 3 hours after the package is received at the licensee's facility if it is received during the licensee's normal working hours, or not later than 3 hours after the beginning of the next working day if it is received after working hours. (d) The licensee shall immediately notify the final delivery carrier and, by telephone and telegram, mailgram, or facsimile, the executive director and the Texas Department of Health when: (1) Removable radioactive surface contamination exceeds the limits of 10 CFR 71.87(i) as amended through September 28, 1995 (60 FedReg 50264) (relating to Routine Determinations). (2) External radiation levels exceed the limits of 10 CFR 71.47 as amended through September 28, 1995 (60 FedReg 50264) (relating to External Radiation Standards for All Packages). (e) Each licensee shall: (1) establish, maintain, and retain written procedures for safely opening packages in which radioactive material is received; and (2) ensure that the procedures are followed and that due consideration is given to special instructions for the type of package being opened. sec.336.331. General Requirements for Waste Disposal. (a) Unless otherwise exempted, a licensee shall dispose of licensed material, as appropriate to the type of licensed material, only: (1) by transfer to an authorized recipient as provided in sec.336.338 of this title (relating to Transfer for Disposal at Licensed Land Disposal Facility and Manifests) or in Subchapter H of Chapter 336 of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste); (2) by transfer to a recipient authorized by commission license for receipt and disposal of byproduct material, as defined in sec.336.2, subparagraph (B), of this title (relating to Definitions), under Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities); (3) by transfer to a recipient authorized in another state by license issued by the United States Nuclear Regulatory Commission or an Agreement State or to the United States Department of Energy; (4) by decay in storage; (5) by release in effluents within the limits specified in sec.336.313 of this title (relating to Dose Limits for Individual Members of the Public); (6) as authorized under sec.336.332 of this title (relating to Method of Obtaining Approval of Proposed Disposal Procedures), sec.336.333 of this title (relating to Disposal by Release into Sanitary Sewerage), or sec.336.337 of this title (relating to Disposal of Specific Wastes); or (7) as specifically authorized by commission license issued under Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), or Subchapters G or H of Chapter 336 of this title. (b) A person who receives waste containing licensed material from other persons for processing or storage before disposal is subject to applicable rules of the Texas Department of Health, except as provided in subsection (c) of this section. (c) Processing or storage of waste containing licensed material from other persons at a disposal facility by a person licensed for disposal under Subchapters G or H of Chapter 336 of this title shall be regulated in accordance with the provisions of sec.336.11, Appendix A, of this title (relating to Memorandum of Understanding Between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions). sec.336.332. Method of Obtaining Approval of Proposed Disposal Procedures. (a) A person may file an application with the executive director for approval of proposed procedures, not otherwise authorized in this chapter, to dispose of radioactive material generated in the person's activities. Each application shall include: (1) a description of the radioactive material involved, including the quantities and types of radioactive material, the levels of radioactivity, and the physical and chemical properties important to risk evaluation; (2) a description of the proposed manner and conditions of disposal; (3) an analysis and evaluation of pertinent information on the nature of the environment, including topographical, geological, meteorological, and hydrological characteristics and use of groundwater and surface water in the general area; (4) the nature and location of other potentially affected facilities; (5) analyses and procedures to ensure that doses are maintained as low as is reasonable achievable and within the dose limits of this subchapter; and (6) any other information the executive director may require. (b) A person holding a license issued under Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities), or Subchapter H of Chapter 336 of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste) may apply for approval of proposed disposal procedures in accordance with subsection (a) of this section by requesting amendment of the license. (c) A person applying for a license to be issued under Subchapter F, Subchapter G, or Subchapter H of Chapter 336 of this title may request approval of proposed disposal procedures in accordance with subsection (a) of this section as part of the license application. (d) A person not subject to licensing under Subchapter G or Subchapter H of Chapter 336 of this title may request approval of proposed disposal procedures in accordance with subsection (a) of this section either by filing an application for a license under Subchapter F of Chapter 336 of this title or by requesting approval without a license. In some cases, approval of a limited disposal which meets the standards of this subchapter may be granted by the executive director to a person without a license, as authorized by law. Requests for approval without a license must be reviewed by the executive director on a case-by-case basis. (e) Notwithstanding the provisions of this section, the commission shall not approve any application for a license to dispose of byproduct material on land that does not meet the transfer of land requirements under Subchapter G of Chapter 336 of this title. (f) Notwithstanding the provisions of this section, the commission shall not approve any application for a license to receive radioactive waste from other persons for disposal on land not owned by the state or the federal government. The commission shall not issue a license to dispose of radioactive waste received from others except to a public entity specifically authorized by law for radioactive waste disposal. sec.336.336. Treatment or Disposal by Incineration. Treatment of radioactive material by incineration, except in a form and concentration specified by sec.336.337 of this title (relating to Disposal of Specific Wastes), may be subject to applicable rules of the Texas Department of Health. Ash residue waste containing radioactive material shall be disposed of in accordance with sec.336.331 of this title (relating to General Requirements for Waste Disposal). sec.336.338. Transfer for Disposal at Licensed Land Disposal Facility and Manifests. (a) Transfer of low-level radioactive waste by a waste generator, waste collector, or waste processor who ships this waste either directly, or indirectly through a collector or processor, to a licensed land disposal facility may also be subject to applicable rules of the Texas Department of Health. A commission licensee who transfers low-level radioactive waste for disposal at a licensed land disposal facility may also be subject to applicable rules of the Texas Department of Health with respect to transfers. (b) Beginning March 1, 1998, a licensed land disposal facility operator shall use and comply with the requirements of sec.336.363, Appendix F, of this title (relating to Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests). Before March 1, 1998, a land disposal facility operator shall use and comply with the requirements of sec.336.361, Appendix D, of this title (relating to Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Manifests), unless the land disposal facility operator elects to use and comply with the requirements of sec.336.363, Appendix F of this title. Before March 1, 1998, a licensed land disposal facility operator may require that shipments of waste received at the facility have the uniform manifest prescribed in sec.336.363, Appendix F of this title, or the manifest prescribed in sec.336.361, Appendix D of this title. sec.336.341. General Requirements for Recordkeeping. (a) Each licensee shall use the units curie, rad, and rem, including multiples and subdivisions, and shall clearly indicate the units of all quantities on records required by this subchapter. Disintegrations per minute may be indicated on records of surveys performed to determine compliance with sec.336.357 of this title (relating to Surface Contamination Limits for Facilities and Equipment) and sec.336.364, Appendix G, of this title (relating to Acceptable Surface Contamination Levels). (b) Notwithstanding the requirements of subsection (a) of this section, information on shipment manifests for wastes received at a licensed land disposal facility, as required by sec.336.338(b) of this title (relating to Transfer for Disposal at Licensed Land Disposal Facility and Manifests), shall be recorded in International System of Units (SI) units (becquerel, gray, and sievert) or in SI and units as specified in subsection (a) of this section. (c) The licensee shall make a clear distinction among the quantities entered on the records required by this subchapter, such as total effective dose equivalent, shallow-dose equivalent, eye dose equivalent, deep-dose equivalent, and committed effective dose equivalent. sec.336.344. Records of Prior Occupational Dose. The licensee shall retain the records of prior occupational radiation dose and exposure history as specified in sec.336.309 of this title (relating to Determination of Prior Occupational Dose) on form "Cumulative Occupational Exposure History" (sec.336.367, Appendix J of this title (relating to Cumulative Occupational Exposure History)) or equivalent until the commission terminates each pertinent license requiring this record. The licensee shall retain records used in preparing form "Cumulative Occupational Exposure History" (sec.336.367, Appendix J of this title) or equivalent for 3 years after the record is made. This includes records required under the standards for protection against radiation in effect before January 1, 1994. sec.336.345. Records of Planned Special Exposures. (a) For each use of the provisions of sec.336.310 of this title (relating to Planned Special Exposures) for planned special exposures, the licensee shall maintain records that describe: (1) the exceptional circumstances requiring the use of a planned special exposure; (2) the name of the management official who authorized the planned special exposure and a copy of the signed authorization; (3) what actions were necessary; (4) why the actions were necessary; (5) what precautions were taken to assure that doses were maintained as low as is reasonable achievable; (6) what individual and collective doses were expected to result; and (7) the doses actually received in the planned special exposure. (b) The licensee shall retain the records until the commission terminates each pertinent license requiring these records. sec.336.346. Records of Individual Monitoring Results. (a) Recordkeeping requirement. Each licensee shall maintain records of doses received by all individuals for whom monitoring was required under sec.336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose) and records of doses received during planned special exposures, accidents, and emergency conditions. Assessments of dose equivalent and records made using units in effect before January 1, 1994, need not be changed. These records shall include, when applicable: (1) the deep-dose equivalent to the whole body, eye dose equivalent, shallow- dose equivalent to the skin, and shallow-dose equivalent to the extremities; (2) the estimated intake or body burden of radionuclides (see sec.336.306 of this title (relating to Compliance with Requirements for Summation of External and Internal Doses)); (3) the committed effective dose equivalent assigned to the intake or body burden of radionuclides; (4) the specific information used to calculate the committed effective dose equivalent under sec.336.308(c) of this title (relating to Determination of Internal Exposure); (5) the total effective dose equivalent when required by sec.336.306 of this title; and (6) the total of the deep-dose equivalent and the committed dose to the organ receiving the highest total dose. (b) Recordkeeping frequency. The licensee shall make entries of the records specified in subsection (a) of this section at intervals not to exceed 1 year. (c) Recordkeeping format. The licensee shall maintain the records specified in subsection (a) of this section on form "Occupational Exposure Record for a Monitoring Period" (see sec.336.368, Appendix K of this title (relating to Occupational Exposure Record for a Monitoring Period)), in accordance with the instructions for that form, or in clear and legible records containing all the information required by form. (d) Recordkeeping maintenance. The licensee shall maintain the records of dose to an embryo/fetus with the records of dose to the declared pregnant woman. The declaration of pregnancy, including the estimated date of conception, shall also be kept on file but may be maintained separately from the dose records. (e) Recordkeeping retention. The licensee shall retain each required form or record until the commission terminates each pertinent license requiring the form or record. This includes records required under the standards for protection against radiation in effect before January 1, 1994. sec.336.350. Reports of Stolen, Lost, or Missing Licensed Radioactive Material. (a) Telephone reports. Each licensee shall report to the executive director or staff by telephone as follows: (1) immediately after its occurrence becomes known to the licensee, any stolen, lost, or missing licensed radioactive material in an aggregate quantity equal to or greater than 1,000 times the quantity specified in sec.336.360, Appendix C, of this title (relating to Quantities of Licensed Material Requiring Labeling) under those circumstances that it appears to the licensee that an exposure could result to individuals in unrestricted areas; or (2) within 30 days after its occurrence becomes known to the licensee, any stolen, lost, or missing licensed radioactive material in an aggregate quantity greater than 10 times the quantity specified in sec.336.360, Appendix C, of this title that is still missing. (b) Written reports. Each licensee required to make a report under subsection (a) of this section shall, within 30 days after making the telephone report, make a written report to the executive director setting forth the following information: (1) a description of the licensed radioactive material involved, including the kind, quantity, and chemical and physical form; (2) a description of the circumstances under which the loss or theft occurred; (3) a statement of disposition, or probable disposition, of the licensed material involved; (4) exposures of individuals to radiation, circumstances under which the exposures occurred, and the possible total effective dose equivalent to persons in unrestricted areas; (5) actions that have been taken, or will be taken, to recover the licensed material; and (6) procedures or measures that have been, or will be, adopted to ensure against a recurrence of the loss or theft of licensed material. (c) Supplemental reports. Subsequent to filing the written report, the licensee shall also report any additional substantive information on the loss or theft within 30 days after the licensee learns of this information. (d) Exposure reports. The licensee shall prepare any report filed with the executive director under this section so that names of individuals who may have received exposure to radiation or radioactive material are stated in a separate and detachable part of the report. sec.336.351. Notification of Incidents. (a) Immediate notification. Notwithstanding any other requirements for notification, each licensee shall immediately report to the executive director or staff each event involving licensed radioactive material possessed by the licensee that may have caused or threatens to cause any of the following conditions: (1) an individual to receive: (A) a total effective dose equivalent of 25 rems (0.25 sievert) or more; (B) an eye dose equivalent of 75 rems (0.75 sievert) or more; or (C) a shallow-dose equivalent to the skin or extremities or a total organ dose equivalent of 250 rads (2.5 grays) or more; or (2) the release of radioactive material, inside or outside of a restricted area, so that, had an individual been present for 24 hours, the individual could have received an intake 5 times the annual limit on intake (ALI). This provision does not apply to locations where personnel are not normally stationed during routine operations, such as hot-cells or process enclosures. (b) Twenty-four hour notification. Each licensee shall, within 24 hours of discovery of the event, report to the executive director or staff any event involving loss of control of licensed material possessed by the licensee that may have caused, or threatens to cause, any of the following conditions: (1) an individual to receive, in a period of 24 hours: (A) total effective dose equivalent exceeding 5 rems (0.05 sievert); (B) an eye dose equivalent exceeding 15 rems (0.15 sievert); or (C) a shallow-dose equivalent to the skin or extremities or a total organ dose equivalent exceeding 50 rems (0.5 sievert); or (2) the release of radioactive material, inside or outside of a restricted area, so that, had an individual been present for 24 hours, the individual could have received an intake in excess of one ALI. This provision does not apply to locations where personnel are not normally stationed during routine operations, such as hot-cells or process enclosures. (c) Format of notification. The licensee shall prepare any report filed with the executive director or staff under this section so that names of individuals who may have received exposure to radiation or radioactive material are stated in a separate and detachable part of the report. (d) Confirmation of notification. Licensees shall make the reports required by subsections (a) and (b) of this section by telephone and shall confirm the telephone report within 24 hours by telegram, mailgram, or facsimile. (e) Exception to notification. The provisions of this section do not apply to doses that result from planned special exposures, provided those doses are within the limits for planned special exposures and are reported under sec.336.353 of this title (relating to Reports of Planned Special Exposures). sec.336.352. Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits. (a) Reportable events. In addition to the notification required by sec.336.351 of this title (relating to Notification of Incidents), each licensee shall submit a written report to the executive director within 30 days after learning of any of the following occurrences: (1) any incident for which notification is required by sec.336.351 of this title; or (2) doses in excess of any of the following: (A) the occupational dose limits for adults in sec.336.305 of this title (relating to Occupational Dose Limits for Adults); (B) the occupational dose limits for minors in sec.336.311 of this title (relating to Occupational Dose Limits for Minors); (C) the limits for an embryo/fetus of a declared pregnant woman in sec.336.312 of this title (relating to Dose to an Embryo/Fetus); (D) the limits for an individual member of the public in sec.336.313 of this title (relating to Dose Limits for Individual Members of the Public); or (E) any applicable limit in the license; or (3) levels of radiation or concentrations of radioactive material in: (A) a restricted area in excess of applicable limits in the license; or (B) an unrestricted area in excess of 10 times any applicable limit set forth in this subchapter or in the license, whether or not involving exposure of any individual in excess of the limits in sec.336.313 of this title; or (4) for licensees subject to the provisions of the United States Environmental Protection Agency's generally applicable environmental radiation standards in 40 CFR Part 190 as amended through January 13, 1977 (42 FedReg 2860) (relating to Environmental Radiation Protection Standards for Nuclear Power Operations), levels of radiation or releases of radioactive material in excess of those standards or of license conditions related to those standards. (b) Contents of reports. (1) Each report required by subsection (a) of this section shall describe the extent of exposure of individuals to radiation and radioactive material, including, as appropriate: (A) estimates of each individual's dose; (B) the levels of radiation and concentrations of radioactive material involved; (C) the cause of the elevated exposures, dose rates, or concentrations; and (D) corrective steps taken or planned to ensure against a recurrence, including the schedule for achieving conformance with applicable limits, generally applicable environmental standards, and associated license conditions. (2) Each report filed under subsection (a) of this section shall include for each individual exposed the name, social security number, and date of birth. With respect to the limit for the embryo/fetus in sec.336.312 of this title, the identifiers should be those of the declared pregnant woman. The report shall be prepared so that this information is stated in a separate and detachable part of the report. sec.336.356. Soil and Vegetation Contamination Limits. (a) No licensee may possess, receive, use, or transfer licensed radioactive material in such a manner as to cause contamination of soil or vegetation in unrestricted areas to the extent that the contamination exceeds the background level by more than: (1) the concentration limits, based on dry weight, specified in sec.336.366, Appendix I, of this title (relating to Soil and Vegetation Contamination Limits for Selected Radionuclides); (2) the concentration limits, based on dry weight, taken from the concentrations in Table III of sec.336.359, Appendix B, 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) with the units converted from microcuries per milliliter (μCi/ml) to microcuries per gram (μCi/g), for radionuclides not specified in sec.336.366, Appendix I, of this title, except as provided in paragraphs (3) and (4) of this subsection; (3) for radium-226 or radium-228 in soil, the following limits, based on dry weight, averaged over any 100 square meters of area: (A) 5 picocuries/gram (pCi/g), averaged over the first 15 centimeters of soil below the surface; (B) 15 pCi/g, averaged over 15-centimeter thick layers of soil more than 15 centimeters below the surface; and (4) for radium-226 or radium-228 in vegetation, 5 pCi/g, based on dry weight. (b) Where combinations of radionuclides are involved, the sum of the ratios between the concentrations present and the limits specified in subsection (a) of this section shall not exceed 1. (c) Notwithstanding the limits set forth in subsection (a) of this section, each licensee shall make every reasonable effort to maintain any contamination of soil or vegetation as low as is reasonably achievable (ALARA). (d) If contamination caused by the licensee is detected in an unrestricted area, the licensee shall decontaminate any unrestricted area which is contaminated above the limits specified in subsection (a) of this section. (e) Not withstanding the limits set forth in subsection (a) of this section, contamination levels must be maintained in unrestricted areas so that no individual member of the public will receive an effective dose equivalent in excess of 0.1 rem above background (100 mrem/year) in a year. (f) A licensee shall decommission its licensed facilities and land for release for unrestricted use. No licensee shall vacate a facility or land, or release a facility or land for unrestricted use, until the annual total effective dose equivalent to a member of the public resulting from radioactive material remaining from licensed activities (excluding radium and its decay products) does not exceed 0.025 rem/year (25 mrem/year) above background. The concentration for radium in soil shall be equivalent to or below the limits set forth in subsection (a) of this section. Notwithstanding the limits set forth in this subsection, each licensee shall make every reasonable effort to maintain any contamination of soil or vegetation ALARA. The licensee shall conduct all necessary radiation surveys and modelling and shall provide reports and documentation to demonstrate that the requirements for release for unrestricted use have been met. The executive director may require the licensee to provide any other information necessary to demonstrate that the facilities and land are suitable for release for unrestricted use. sec.336.358. Appendix A. Protection Factors for Respirators. Figure 1: 30 TAC sec.336.358, Appendix A sec.336.359. Appendix B Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage. (a) Introduction. For each radionuclide, Table I indicates the chemical form that is to be used for selecting the appropriate ALI or DAC value. The ALIs and DACs for inhalation are given for an aerosol with an activity median aerodynamic diameter (AMAD) of 1 micrometer and for three classes (D,W,Y) of radioactive material, which refer to their retention (approximately days, weeks, or years) in the pulmonary region of the lung. This classification applies to a range of clearance half-times for D of less than 10 days, for W from 10 to 100 days, and for Y greater than 100 days. (1) The class (D, W, or Y) given in the column headed "Class" applies only to the inhalation ALIs and DACs given in Table I, Columns 2 and 3. Table II provides concentration limits for airborne and liquid effluents released to the general environment. Table III provides concentration limits for discharges to sanitary sewerage. (2) The values in Tables I, II, and III are presented in the computer "E" notation. In this notation, a value of 6E-02 represents a value of 6 x 10-2 or 0.06, 6E+2 represents 6 x 102 or 600, and 6E+0 represents 6 x 100 or 6. Values are given in units of microcuries (μCi) or microcuries per milliliter (μCi/ml), as indicated. (b) Table I, "Occupational Values". Note that the columns in Table I of this appendix captioned "Oral Ingestion ALI," "Inhalation ALI," and "DAC," are applicable to occupational exposure to radioactive material. (1) The ALIs in this appendix are the annual intakes of a given radionuclide by "reference man" that would result in either a committed effective dose equivalent of 5 rems (0.05 sievert) (stochastic ALI) or a committed dose equivalent of 50 rems (0.5 sievert) to an organ or tissue (non-stochastic ALI). The stochastic ALIs were derived to result in a risk, due to irradiation of organs and tissues, comparable to the risk associated with deep dose equivalent to the whole body of 5 rems (0.05 sievert). The derivation includes multiplying the committed dose equivalent to an organ or tissue by a weighting factor, wT. This weighting factor is the proportion of the risk of stochastic effects resulting from irradiation of the organ or tissue, T, to the total risk of stochastic effects when the whole body is irradiated uniformly. The values of wT are listed under the definition of "weighting factor" in sec.336.2 of this title (relating to Definitions). The non-stochastic ALIs were derived to avoid non-stochastic effects, such as prompt damage to tissue or reduction in organ function. [sub]T = 0.06 is applicable to each of the five organs or tissues in the "remainder" category receiving the highest dose equivalents, and the dose equivalents of all other remaining tissues may be disregarded. The following parts of the GI tract -- stomach, small intestine, upper large intestine, and lower large intestine -- are to be treated as four separate organs. (3) Note that the dose equivalents for an extremity, skin, and lens of the eye are not considered in computing the committed effective dose equivalent but are subject to limits that must be met separately. When an ALI is defined by the stochastic dose limit, this value alone is given. (4) When an ALI is determined by the non-stochastic dose limit to an organ, the organ or tissue to which the limit applies is shown, and the ALI for the stochastic limit is shown in parentheses. The following abbreviated organ or tissue designations are used: (A) LLI wall = lower large intestine wall; (B) St wall = stomach wall; (C) Blad wall = bladder wall; and (D) Bone surf = bone surface. (5) The use of the ALIs listed first, the more limiting of the stochastic and non-stochastic ALIs, will ensure that non-stochastic effects are avoided and that the risk of stochastic effects is limited to an acceptably low value. If, in a particular situation involving a radionuclide for which the non-stochastic ALI is limiting, use of that non-stochastic ALI is considered unduly conservative, the licensee may use the stochastic ALI to determine the committed effective dose equivalent. However, the licensee shall also ensure that the 50- rem (0.5 sievert) dose equivalent limit for any organ or tissue is not exceeded by the sum of the external deep dose equivalent plus the internal committed dose equivalent to that organ (not the effective dose). For the case where there is no external dose contribution, this would be demonstrated if the sum of the fractions of the nonstochastic ALIs (ALIns) that contribute to the committed dose equivalent to the organ receiving the highest dose does not exceed 1 (i.e., Σ (intake in μCi of each radionuclide/ALI ns) ≤ 1.0). If there is an external deep-dose equivalent contribution of Hd, then this sum must be less than 1 - (H d/50), instead of ≤ 1.0. (6) The DAC values are derived limits intended to control chronic occupational exposures. The relationship between the DAC and the ALI is given by: Figure 1: 30 TAC sec.336.359(b)(6) (7) The DAC values relate to one of two modes of exposure: either external submersion or the internal committed dose equivalents resulting from inhalation of radioactive materials. The DAC values based upon submersion are for immersion in a semi-infinite cloud of uniform concentration and apply to each radionuclide separately. (8) The ALI and DAC values include contributions to exposure by the single radionuclide named and any in-growth of daughter radionuclides produced in the body by decay of the parent. However, intakes that include both the parent and daughter radionuclides shall be treated by the general method appropriate for mixtures. (9) The values of ALI and DAC do not apply directly when the individual both ingests and inhales a radionuclide, when the individual is exposed to a mixture of radionuclides by either inhalation or ingestion or both, or when the individual is exposed to both internal and external irradiation (see sec.336.306 of this title (relating to Compliance with Requirements for Summation of External and Internal Doses)). When an individual is exposed to radioactive materials which fall under several of the translocation classifications of the same radionuclide (i.e., Class D, Class W, or Class Y), the exposure may be evaluated as if it were a mixture of different radionuclides. (10) It shall be noted that the classification of a compound as Class D, W, or Y is based on the chemical form of the compound and does not take into account the radiological half-life of different radionuclides. For this reason, values are given for Class D, W, and Y compounds, even for very short-lived radionuclides. (c) Table II, "Effluent Concentrations". The columns in Table II of this appendix captioned "Effluent Concentrations," "Air," and "Water" are applicable to the assessment and control of dose to the public, particularly in the implementation of the provisions of sec.336.314 of this title (relating to Compliance with Dose Limits for Individual Members of the Public). The concentration values given in Columns 1 and 2 of Table II are equivalent to the radionuclide concentrations which, if inhaled or ingested continuously over the course of a year, would produce a total effective dose equivalent of 0.05 rem (0.5 millisievert). (1) Consideration of non-stochastic limits has not been included in deriving the air and water effluent concentration limits because non-stochastic effects are presumed not to occur at or below the dose levels established for individual members of the public. For radionuclides, where the non-stochastic limit was governing in deriving the occupational DAC, the stochastic ALI was used in deriving the corresponding airborne effluent limit in Table II. For this reason, the DAC and airborne effluent limits are not always proportional. (2) The air concentration values listed in Table II, Column 1, were derived by one of two methods. For those radionuclides for which the stochastic limit is governing, the occupational stochastic inhalation ALI was divided by 2.4 x 109 ml, relating the inhalation ALI to the DAC and then divided by a factor of 300. The factor of 300 is composed of a factor of 50 to relate the 5-rem (0.05 sievert) annual occupational dose limit to the 0.1 rem (1 millisievert) limit for members of the public, a factor of 3 to adjust for the difference in exposure time and the inhalation rate for a worker and that for members of the public; and a factor of 2 to adjust the occupational values (derived for adults) so that they are applicable to other age groups. (3) For those radionuclides for which submersion (external dose) is limiting, the occupational DAC in Table I, Column 3, was divided by 219. The factor of 219 is composed of a factor of 50 and a factor of 4.38 relating occupational exposure for 2,000 hours/year to full-time exposure (8,760 hours/year). Note that an additional factor of 2 for age considerations is not warranted in the submersion case. (4) The water concentrations were derived by taking the most restrictive occupational stochastic oral ingestion ALI and dividing by 7.3 x 107 ml. The factor of 7.3 x 10 7 ml is composed of the factors of 50 and 2 and a factor of 7.3 x 105 ml which is the annual water intake of "reference man." (5) Note 6 of this appendix provides groupings of radionuclides that are applicable to unknown mixtures of radionuclides. These groupings, including occupational inhalation ALIs and DACs, air and water effluent concentrations, and releases to sewerage, require demonstrating that the most limiting radionuclides in successive classes are absent. The limit for the unknown mixture is defined when the presence of one of the listed radionuclides cannot be definitely excluded either from knowledge of the radionuclide composition of the source or from actual measurements. (d) Table III, "releases to sewers". The monthly average concentrations for release to sanitary sewerage are applicable to the provisions in sec.336.333 of this title (relating to Disposal by Release into Sanitary Sewerage). The concentration values were derived by taking the most restrictive occupational stochastic oral ingestion ALI and dividing by 7.3 x 10 6[sup]6 ml is composed of a factor of 7.3 x 105 ml, the annual water intake by "reference man," and a factor of 10, such that the concentrations, if the sewage released by the licensee were the only source of water ingested by a "reference man" during a year, would result in a committed effective dose equivalent of 0.5 rem (5 millisieverts). Figure 2: 30 TAC sec.336.359(d). Figure 3: 30 TAC sec.336.359(d). sec.336.360. Appendix C. Quantities of Licensed Material Requiring Labeling. Figure 1: 30 TAC sec.336.360, Appendix C sec.336.361. Appendix D. Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Manifests. (a) Manifest. 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 shipment manifest which meets the requirements of 10 CFR 61.80 as amended through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663), including all prescribed information and certifications. The manifest required by this subsection may be shipping papers used to meet United States Department of Transportation or United States Environmental Protection Agency regulations or the requirements of the land disposal facility, provided all the required information is included. Copies of manifests required by this subsection may be legible carbon copies or legible photocopies. (b) Control and tracking. (1) The licensed land disposal facility operator shall acknowledge receipt of the waste within 1 week of receipt by returning a signed copy of the manifest or equivalent documentation to the shipper. The shipper to be notified is that who last possessed the waste and transferred the waste to the operator. The returned copy of the manifest or equivalent documentation shall indicate any discrepancies between materials listed on the manifest and materials received. (2) The land disposal facility operator shall maintain copies of all completed manifests or equivalent documentation until the license is terminated. This includes those manifests or equivalent documents required under the standards for protection against radiation in effect before January 1, 1994. (3) The land disposal facility operator shall notify the shipper (i.e., the generator, collector, or processor), the Texas Department of Health, and the executive director when any shipment or part of a shipment has not arrived within 60 days after the advance manifest was received. sec.336.362 Appendix E. Classification and Characteristics of Low-Level Radioactive Waste. (a) Classification of radioactive waste for near-surface disposal. (1) Considerations. Determination of the classification of radioactive waste involves two considerations. First, consideration must be given to the concentration of long-lived radionuclides (and their shorter-lived precursors) whose potential hazards persist long after precautions such as institutional controls, improved waste form, and deeper disposal have ceased to be effective. These precautions delay the time when long-lived radionuclides could cause exposures. In addition, the magnitude of the potential dose is limited by the concentration and availability of the radionuclide at the time of exposure. Second, consideration must be given to the concentration of shorter-lived radionuclides for which requirements on institutional controls, waste form, and disposal methods are effective. (2) Classes of waste. (A) Class A waste is waste that is usually segregated from other waste classes at the disposal site. The physical form and characteristics of Class A waste must meet the minimum requirements set forth in subsection (b)(1) of this appendix. If Class A waste also meets the stability requirements set forth in subsection (b)(2) of this appendix, it is not necessary to segregate the waste for disposal. (B) Class B waste is waste that must meet more rigorous requirements on waste form to ensure stability after disposal. The physical form and characteristics of Class B waste must meet both the minimum and stability requirements set forth in subsection (b) of this appendix. (C) Class C waste is waste that not only must meet more rigorous requirements on waste form to ensure stability but also requires additional measures at the disposal facility to protect against inadvertent intrusion. The physical form and characteristics of Class C waste must meet both the minimum and stability requirements set forth in subsection (b) of this appendix. (D) Waste that is not generally acceptable for near-surface disposal is waste for which form and disposal methods must be different, and in general more stringent, than those specified for Class C waste. Disposal of this waste is regulated by the United States Nuclear Regulatory Commission. (3) Classification determined by long-lived radionuclides. If the radioactive waste contains only radionuclides listed in Table I, classification shall be determined as follows: (A) If the concentration does not exceed 0.1 times the value in Table I, the waste is Class A. (B) If the concentration exceeds 0.1 times the value in Table I but does not exceed the value in Table I, the waste is Class C. (C) If the concentration exceeds the value in Table I, the waste is not generally acceptable for near-surface disposal. (D) For wastes containing mixtures of radionuclides listed in Table I, the total concentration shall be determined by the sum of fractions rule described in paragraph (7) of this subsection. Figure 1: 30 TAC sec.336.362(a)(3)(D), Appendix E (4) Classification determined by short-lived radionuclides. If the radioactive waste does not contain any of the radionuclides listed in Table I, classification shall be determined based on the concentrations shown in Table II. However, as specified in paragraph (6) of this subsection, if radioactive waste does not contain any nuclides listed in either Table I or II, it is Class A. (A) If the concentration does not exceed the value in Column 1, the waste is Class A. (B) If the concentration exceeds the value in Column 1 but does not exceed the value in Column 2, the waste is Class B. (C) If the concentration exceeds the value in Column 2 but does not exceed the value in Column 3, the waste is Class C. (D) If the concentration exceeds the value in Column 3, the waste is not generally acceptable for near-surface disposal. (E) For wastes containing mixtures of the radionuclides listed in Table II, the total concentration shall be determined by the sum of fractions rule described in paragraph (7) of this subsection. Figure 2: 30 TAC sec.336.362(a)(4)(E), Appendix E (5) Classification determined by both long- and short-lived radionuclides. If the radioactive waste contains a mixture of radionuclides, some of which are listed in Table I and some of which are listed in Table II, classification shall be determined as follows: (A) If the concentration of a radionuclide listed in Table I does not exceed 0.1 times the value listed in Table I, the class shall be that determined by the concentration of radionuclides listed in Table II. (B) If the concentration of a radionuclide listed in Table I exceeds 0.1 times the value listed in Table I but does not exceed the value in Table I, the waste shall be Class C, provided the concentration of radionuclides listed in Table II does not exceed the value shown in Column 3 of Table II. (6) Classification of wastes with radionuclides other than those listed in Tables I and II. If the waste does not contain any radionuclides listed in either Table I or II, it is Class A. (7) The sum of the fractions rule for mixtures of radionuclides. For determining classification for waste that contains a mixture of radionuclides, it is necessary to determine the sum of fractions by dividing each radionuclide's concentration by the appropriate limit and adding the resulting values. The appropriate limits must all be taken from the same column of the same table. The sum of the fractions for the column must be less than 1.0 if the waste class is to be determined by that column. For example, if a waste contains strontium-90 in a concentration of 50 curies/cubic meter (Ci/m 3[sup]3) and cesium-137 in a concentration of 22 Ci/m3 (814 gigabecquerels/m3), since the concentrations both exceed the values in Column 1, Table II, they must be compared to the Column 2 values. For the strontium-90 fraction, 50/150 = 0.33, and for the cesium-137 fraction, 22/44 = 0.5; the sum of the fractions = 0.83. Since the sum is less than 1.0, the waste is Class B. (8) Determination of concentrations in wastes. The concentration of a radionuclide may be determined by indirect methods, such as use of scaling factors which relate the inferred concentration of one radionuclide to another that is measured, or radionuclide material accountability, if there is reasonable assurance that the indirect methods can be correlated with actual measurements. The concentration of a radionuclide may be averaged over the volume of the waste, or weight of the waste if the units are expressed as nanocuries per gram. (b) Radioactive waste characteristics. (1) The following are minimum requirements for all classes of waste and are intended to facilitate handling and to provide protection of health and safety of personnel at the disposal site. (A) Waste shall be packaged in conformance with the conditions of the license issued for the disposal site. Where the license conditions for the disposal site are more restrictive than the provisions of this appendix, the license conditions shall govern. (B) Waste shall not be packaged for disposal in cardboard or fiberboard boxes. (C) Liquid waste shall be solidified or packaged in sufficient absorbent material to absorb twice the volume of the liquid. (D) Solid waste containing liquid shall contain as little free-standing and noncorrosive liquid as is reasonably achievable, but in no case shall the liquid exceed 1.0% of the volume. (E) Waste shall not be readily capable of detonation or of explosive decomposition or reaction at normal pressures and temperatures or of explosive reaction with water. (F) Waste shall not contain, or be capable of generating, quantities of toxic gases, vapors, or fumes harmful to persons transporting, handling, or disposing of the waste. This does not apply to radioactive gaseous waste packaged in accordance with paragraph (1)(H) of this subsection. (G) Waste must not be pyrophoric. Pyrophoric materials contained in waste shall be treated, prepared, and packaged to be nonflammable. (H) Waste in a gaseous form shall be packaged at an absolute pressure that does not exceed 1.5 atmospheres at 20 degrees Celsius. Total activity shall not exceed 100 curies (3.7 terabecquerels) per container. (I) Waste containing hazardous, biological, pathogenic, or infectious material shall be treated to reduce to the maximum extent practicable the potential hazard from the nonradiological materials. (2) The following requirements are intended to provide stability of the waste. Stability is intended to ensure that the waste does not degrade and affect overall stability of the site through slumping, collapse, or other failure of the disposal unit and thereby lead to water infiltration. Stability is also a factor in limiting exposure to an inadvertent intruder, since it provides a recognizable and nondispersible waste. (A) Waste shall have structural stability. A structurally stable waste form will generally maintain its physical dimensions and its form, under the expected disposal conditions such as weight of overburden and compaction equipment, the presence of moisture, and microbial activity and internal factors such as radiation effects and chemical changes. Structural stability can be provided by the waste form itself, processing the waste to a stable form, or placing the waste in a disposal container or structure that provides stability after disposal. (B) Notwithstanding the provisions in paragraphs (1)(C) and (D) of this subsection, liquid wastes, or wastes containing liquid, shall be converted into a form that contains as little free-standing and non-corrosive liquid as is reasonably achievable, but in no case shall the liquid exceed 1.0% of the volume of the waste when the waste is in a disposal container designed to ensure stability, or 0.5% of the volume of the waste for waste processed to a stable form. (C) Void spaces within the waste and between the waste and its package shall be reduced to the extent practicable. (c) Labeling. Each package of waste shall be clearly labeled to identify whether it is Class A, Class B, or Class C waste, in accordance with subsection (a) of this appendix. sec.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 CFR 61.80 as amended through December 27, 1982 (47 FedReg 57463) (relating to Licensing Requirements for Land Disposal of Radioactive Waste) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663) (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 United States Environmental Protection Agency (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 through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663). 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 through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663), 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 through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663). (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 through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663). 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 1 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 through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 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 sec.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. sec.336.367. Appendix J. Cumulative Occupational Exposure History. Figure 1: 30 TAC sec.336.367, Appendix J. sec.336.368. Appendix K. Occupational Exposure Record for a Monitoring Period. Figure 1: 30 TAC sec.336.368, Appendix K. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706537 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER E. Notices, Instructions, and Reports to Workers and Inspections 30 TAC sec.sec.336.401-336.410 These new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.401. Purpose and Scope. This subchapter establishes requirements for notices, instructions, and reports by licensees to individuals engaged in work under a license and options available to those individuals in connection with inspections of licensees by the executive director to ascertain compliance with the provisions of the Texas Radiation Control Act and commission rules, orders, and licenses issued thereunder regarding radiological working conditions. The rules in this subchapter apply to all persons licensed by the commission under this chapter. sec.336.403. Posting of Notices to Workers. (a) Each licensee shall post current copies of the following documents: (1) the rules in this subchapter and in Subchapter D of Chapter 336 of this title (relating to Standards for Protection Against Radiation); (2) the license, conditions or documents incorporated into the license by reference, and amendments thereto; (3) the operating procedures applicable to licensed activities; and (4) any notice of violation involving radiological working conditions, any proposed imposition of civil penalty, or any order issued under the Texas Radiation Control Act or the rules in this chapter and any response from the licensee. (b) If posting of a document specified in subsection (a)(1)-(3) of this section is not practicable, the licensee may post a notice which describes the document and states where it may be examined. (c) Commission form "Notice to Employees" (sec.336.410, Appendix A of this title relating to Notice to Employees) shall be posted by each licensee. (d) Documents, notices, or forms posted under this section shall appear in a sufficient number of places to permit individuals engaged in work under the license to observe them on the way to or from any particular work location to which the document applies, shall be conspicuous, and shall be replaced if defaced or altered. (e) Documents posted under subsection (a)(4) of this section shall be posted within two working days after receipt of the documents from the executive director or commission. The licensee's response, if any, shall be posted within two working days after dispatch by the licensee. Those documents shall remain posted for a minimum of five working days or until action correcting the violation has been completed, whichever is later. sec.336.407. Consultation with Workers During Inspections. (a) The executive director or inspectors representing the executive director may consult privately with workers concerning matters of occupational radiation protection and other matters related to applicable provisions of commission rules and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection. (b) During the course of an inspection, any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which that individual has reason to believe may have contributed to or caused any violation of the Texas Radiation Control Act, the rules in this chapter, or license conditions or any unnecessary exposure of an individual to radiation from licensed radioactive material under the licensee's control. Any such notice in writing shall comply with the requirements of sec.336.408(a) of this title (relating to Requests by Workers for Inspections). (c) The provisions of subsection (b) of this section shall not be interpreted as authorization to disregard instructions under sec.336.404 of this title (relating to Instructions to Workers). sec.336.408. Requests by Workers for Inspections. (a) Any worker or representative of workers who believes that a violation of the Texas Radiation Control Act, the rules in this chapter, or license conditions exists or has occurred in work under a license with regard to radiological working conditions in which the worker is engaged may request an inspection by giving notice of the alleged violation to the executive director or to inspectors representing the executive director. Any notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker or representative of workers. A copy shall be provided to the licensee by the executive director or inspector no later than at the time of inspection, except that, upon the request of the worker giving notice, the worker's name and the name(s) of individual(s) referred to shall not appear in that copy or on any record published, released, or made available by the executive director, except for good cause shown. (b) If, upon receipt of such notice, the executive director determines that the request meets the requirements set forth in subsection (a) of this section, an inspection or investigation shall be made as soon as practicable to determine whether the alleged violation exists or has occurred. Inspections made under this section need not be limited to matters referred to in the request. (c) No licensee shall discharge or in any manner discriminate against any worker because that worker has filed any request or instituted or caused to be instituted any proceeding under the rules in this chapter or has testified or is about to testify in any such proceeding or because of the exercise by that worker on behalf of that individual or others of any option afforded by this subchapter. sec.336.409. Inspections Not Warranted. If the executive director determines that an inspection or investigation is not warranted because the requirements of sec.336.408(a) of this title (relating to Requests by Workers for Inspections) have not been met, the executive director shall notify the complainant in writing of the determination. This determination shall be without prejudice to the filing of a new request meeting the requirements of sec.336.408(a) of this title. sec.336.410. Appendix A. Notice to Employees. Figure 1: 30 TAC sec.336.410, Appendix A 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706536 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER F. Licensing of Alternative Methods of Disposal of Radioactive Material 30 TAC sec.sec.336.501-336.505, 336.512-336.514, 336.521 These new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.505. Issuance of License. Upon a determination that an application meets the requirements of the Texas Radiation Control Act and the rules of this chapter, the commission may issue a license authorizing the proposed activity. sec.336.512. Technical Requirements for Inactive Disposal Sites. (a) Content of license application. An applicant for a license to authorize possession of disposed radioactive material in an inactive disposal site which was formerly used shall submit the following: (1) the information required by sec.336.332 of this title (relating to Method of Obtaining Approval of Proposed Disposal Procedures). This information shall include the applicant's evaluation of relevant information which must demonstrate that the disposal site has no undue impact on public health or safety or the environment; (2) information on the concentration and total activity of each radionuclide disposed of, packaging of the wastes, the characteristics of the disposal site (e.g., geological, hydrological, and topographical), as-built disposal trench or landfill construction, final cover construction, and depth of burial of wastes. This information shall be as complete and accurate as possible based on the full extent of information available to the applicant about the previous disposal activities; (3) a description of any radiological monitoring performed at the site and the resulting data; (4) the technical qualifications of personnel responsible for radiation safety functions at the site; (5) a description of the methods of restricting access to the site (e.g., fencing) and any permanent site markers; (6) information on land ownership and any covenants on land use imposed by recorded title documents; and (7) an evaluation of the alternative of decommissioning the site and disposing of the radioactive material at a licensed disposal facility. (b) Content of application for renewal of license. (1) An applicant for renewal of a license authorizing possession of disposed radioactive material in an inactive disposal site which was formerly used shall submit information on: (A) the current conditions of the site (e.g., site stability and any maintenance performed at the site); (B) any radiological monitoring performed at the site by the licensee and the resulting data; (C) the methods of restricting access to the site; and (D) any changes in or additions to the procedures or information contained in previous applications. (2) The executive director may request additional information, such as that required by subsection (a) of this section, if this information was not previously provided for the site. (c) Performance objectives. The applicant's submittal shall include sufficient information to enable the executive director to assess the potential hazard to public health and safety and to determine whether the disposal site will have a significant impact on the environment. The executive director shall evaluate existing inactive disposal sites on a case-by-case basis and may consider the following general criteria and performance objectives in making the evaluation: (1) Radiation exposure and release of radioactive materials from a disposal site shall be maintained as low as is reasonably achievable. Reasonable assurance must be provided that the potential dose to an individual on or near the site will be within acceptable limits. The estimated committed effective dose equivalent resulting from a radiological assessment of a site will usually be the determining factor in the granting of authorization for a disposal site. If the projected dose to a member of the public exceeds a few millirems per year, the executive director may consider other factors in determining whether to grant authorization for the site, including, but not limited to, the use of institutional controls to restrict access for a specified period of time. (2) The location and characteristics of a site shall be such as to preclude potential offsite migration or transport of radioactive materials or ready access to critical exposure pathways. (3) The general topography of the disposal site shall be compatible with its use for waste burial. As an example, surface features shall direct surface water drainage away from the disposal site. Wastes must not be buried in locations which, once covered, would tend to collect surface water. The characteristics of the site shall minimize to the extent practicable the potential for erosion and contact of percolating or standing water with wastes. (4) Water-bearing strata shall be a minimum of 10 feet below the depth at which waste is buried. (5) Waste shall be emplaced in a manner that minimizes the void spaces between packages and permits the void spaces to be filled. (6) Void spaces between waste packages shall be filled with earth or other material to reduce future subsidence within the fill. (7) Cover design shall minimize water infiltration to the extent practicable, direct percolating or surface water away from the disposed waste, and resist degradation by surface geologic processes and biotic activity. (8) In general, a site authorized under this subchapter shall be located, designed, operated, and closed so that long-term isolation and custodial care for long-term stability would not be required beyond the time the licensee can reasonably be expected to occupy the site. If a site does not meet this objective, requirements for long-term care shall be evaluated. (9) The location of a disposal site shall be compatible with the uses of surrounding environs (both the applicant's and adjacent properties). sec.336.513. Technical Requirements for Active Disposal Sites. (a) Content of license application. An applicant for a license to authorize disposal of radioactive material shall submit the following: (1) the information required by sec.336.332 of this title (relating to Method of Obtaining Approval of Proposed Disposal Procedures). This information shall include the applicant's evaluation of relevant information which demonstrates that the disposal site has no undue impact on public health or safety or the environment; (2) an inventory of radionuclides in the wastes to be disposed of and the concentration and total activity of each radionuclide; (3) the estimated frequency of burials and estimated volume of waste in each burial; (4) a description of waste packaging; (5) a description of nonradiological constituents in the waste (e.g., hazardous wastes, heavy metals, absorbents, and chelating agents); (6) a map of the proposed disposal location, which also shows the applicant's property boundaries and locations of nearby residences, water wells, surface water, previous waste burial sites, etc.; (7) site characterization, including: (A) the identification of all soil layers by classification according to American Society for Testing and Materials (ASTM) methods (e.g., sand, gravel, silt, and clay), soil engineering properties, and infiltration and drainage characteristics (e.g., coefficient of permeability according to ASTM D5084); (B) stratigraphy (geological identification) of the near-surface subsoils; (C) geologic hazards, including faulting, seismic activity, sink holes, solution depressions, and flooding, including identification of the 100-year floodplain; (D) hydrological data, including porosity, distribution coefficient, hydraulic conductivity, soils dispersivity, and hydraulic gradient; (E) groundwater, including use, depth to aquifer, fluctuation, discharge location, and saturated thickness; (F) water wells in the vicinity, including location, use, depth, and water level; (G) surface drainages and bodies of water in the vicinity, including locations and use; (H) meteorological data; (I) maps, including United States Geological Survey topographic quadrangle, hydrologic, and geologic; (J) area resources (e.g., local land use, locations of nearby residences, etc.); (K) site performance history, including erosion, flooding, subsidence, etc; and (L) a summary of any past disposals and any observed effects; (8) a description of the proposed design and construction of the waste disposal trench or landfill; (9) a description of the proposed design and construction of the final cover and of proposed closure procedures; (10) information on the depth of waste burial and proposed procedures for emplacement of waste; (11) proposed inspection, maintenance, and stabilization procedures; (12) the applicant's radiological impact assessment consisting of modeling of radionuclide releases to site-specific critical exposure pathways and the projection of potential radiological doses to an individual on site and to a member of the public off site; (13) proposed radiation safety procedures during operations and closure; (14) a description of proposed radiological monitoring of the site; (15) the organizational structure of the applicant, a description of lines of authority and assignment of responsibilities, and technical qualifications of personnel responsible for radiation safety functions; (16) information on the applicant's proposed methods of restricting access to the site (e.g., fencing) and proposed permanent site markers; (17) proposed recordkeeping; (18) information on land ownership and any covenants or restrictions on land use; (19) the applicant's justification for the proposed disposal method; and (20) an evaluation of other disposal alternatives, such as disposal of the radioactive material at a licensed disposal facility. (b) Content of application for renewal of license. (1) An applicant for renewal of a license authorizing disposal of radioactive material shall submit information on: (A) the current status of disposal operations, including the current status of use or closure of disposal trenches or landfills; (B) as-built construction of disposal trenches or landfills and any final covers; (C) volumes of radioactive material disposed of to date; (D) the concentration and total activity of each radionuclide in the waste disposed of; (E) the frequency of burials; (F) the results of any radiological monitoring performed at the site; and (G) any changes in or additions to the procedures or information contained in previous applications. (2) The executive director may request additional information, such as that required by subsection (a) of this section, if that information was not previously provided for the site. (c) Performance objectives. The applicant's submittal shall include sufficient information to enable the executive director to assess the potential hazard to public health and safety and to determine whether the disposal site will have a significant impact on the environment. General criteria and performance objectives which the executive director shall apply in the evaluation of a proposed disposal site include the following: (1) Radiation exposure and release of radioactive materials from a disposal site shall be maintained as low as is reasonably achievable. Reasonable assurance must be provided that the potential dose to an individual on or near the site will be within acceptable limits. The estimated committed effective dose equivalent resulting from a radiological assessment of a site will usually be the determining factor in the granting of authorization for a disposal site. If the projected dose to a member of the public exceeds a few millirems per year, the executive director may consider other factors in determining whether to grant authorization for the site, including, but not limited to, the use of institutional controls to restrict access for a specified period of time. (2) The location and characteristics of a site shall preclude potential offsite migration or transport of radioactive materials or ready access to critical exposure pathways. (3) The general topography of the proposed disposal site must be compatible with the proposed waste burial. As an example, surface features shall direct surface water drainage away from the disposal site. Wastes shall not be buried in locations which, once covered, would tend to collect surface water. The characteristics of the site shall minimize to the extent practicable the potential for erosion and contact of percolating or standing water with wastes. (4) Water-bearing strata shall be a minimum of 10 feet below the depth at which waste will be buried. (5) Waste shall be emplaced in a manner that minimizes the void spaces between packages and permits the void spaces to be filled. (6) Void spaces between waste packages shall be filled with earth or other material to reduce future subsidence within the fill. (7) Covers shall be designed to minimize water infiltration to the extent practicable, to direct percolating or surface water away from the disposed waste, and to resist degradation by surface geologic processes and biotic activity. (8) In general, a disposal site for which authorization is requested under this subchapter shall be located, designed, operated, and closed so that long-term isolation and custodial care for long-term stability would not be required beyond the time the licensee can reasonably be expected to occupy the site. If a proposed site does not meet this objective, requirements for long-term care shall be evaluated. (9) The location of a disposal site shall be such that it is compatible with the uses of surrounding environs (both the applicant's and adjacent properties). sec.336.514. Financial Assurance and Recordkeeping for Decommissioning. (a) The licensee shall submit a decommissioning funding plan. (1) Each applicant for a license authorizing the disposal of unsealed radioactive material with a half-life greater than 120 days and in quantities exceeding 105 times the applicable quantities set forth in sec.336.521, Appendix A, of this title (relating to Radionuclide Quantities for Use in Determining Financial Assurance for Decommissioning) shall submit a decommissioning funding plan as described in subsection (e) of this section. The decommissioning funding plan must also be submitted when a combination of isotopes is involved if R divided by 105 is greater than 1 (unity rule), where R is defined as the sum of the ratios of the quantity of each isotope to the applicable value in sec.336.521, Appendix A of this title. (2) Notwithstanding the requirement of paragraph (1) of this subsection, each applicant for a license authorizing the disposal of more than 100 millicuries of source material in a readily dispersible form, except for activities licensed under Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities), shall submit a decommissioning funding plan as described in subsection (e) of this section. (b) Each applicant shall submit a decommissioning funding plan or a certification that financial assurance for decommissioning has been provided. (1) Each applicant for a license authorizing disposal of radioactive material with a half-life greater than 120 days and in quantities specified in subsection (d) of this section shall either: (A) submit a decommissioning funding plan as described in subsection (e) of this section; or (B) submit a certification that financial assurance for decommissioning has been provided in the amount prescribed by subsection (d) of this section using one of the methods described in Subchapter I of Chapter 336 of this title (relating to Financial Assurance). For an applicant, this certification may state that the appropriate assurance shall be obtained after the application has been approved and the license issued but before the disposal of licensed material. If the applicant defers execution of the financial instrument until after the license has been issued, a signed original of the financial instrument obtained to satisfy the requirements of Subchapter I of Chapter 336 of this title must be submitted to the executive director before disposal of licensed material. If the applicant does not defer execution of the financial instrument, the applicant shall submit to the executive director, as part of the certification, a signed original of the financial instrument obtained to satisfy the requirements of Subchapter I of Chapter 336 of this title. (2) Notwithstanding the requirement of paragraph (1) of this subsection, each applicant for a license authorizing the disposal of quantities of source material greater than 10 millicuries but less than or equal to 100 millicuries in a readily dispersible form, except for activities licensed under Subchapter G of Chapter 336 of this title, shall either: (A) submit a decommissioning funding plan as described in subsection (e) of this section; or (B) submit a certification that financial assurance for decommissioning has been provided in the amount of $150,000 using one of the methods described in Subchapter I of Chapter 336 of this title. For an applicant, this certification may state that the appropriate assurance shall be obtained after the application has been approved and the license issued but before the disposal of licensed material. If the applicant defers execution of the financial instrument until after the license has been issued, a signed original of the financial instrument obtained to satisfy the requirements of Subchapter I of Chapter 336 of this title must be submitted to the executive director before disposal of licensed material. If the applicant does not defer execution of the financial instrument, the applicant shall submit to the executive director as part of the certification, a signed original of the financial instrument obtained to satisfy the requirements of Subchapter I of Chapter 336 of this title. (c) Each holder of a license shall provide financial assurance for decommissioning, a decommissioning funding plan, or a certification of financial assurance. (1) Each holder of a license issued on or after January 1, 1998, which is of a type described in subsection (a) or (b) of this section, shall provide financial assurance for decommissioning in accordance with the criteria set forth in this subchapter and Subchapter I of Chapter 336 of this title. (2) Each holder of a license issued before January 1, 1998, and of a type described in subsection (a) of this section shall submit, on or before January 1, 1998, a decommissioning funding plan, as described in subsection (e) of this section, or a certification of financial assurance for decommissioning in an amount at least equal to $750,000, in accordance with the criteria set forth in this subchapter and Subchapter I of Chapter 336 of this title. If the licensee submits the certification of financial assurance rather than a decommissioning funding plan, the licensee shall include a decommissioning funding plan in any application for license renewal. (3) Each holder of a license issued before January 1, 1998, and of a type described in subsection (b) of this section shall submit, on or before January 1, 1998, a decommissioning funding plan, as described in subsection (e) of this section, or a certification of financial assurance for decommissioning, in accordance with the criteria set forth in this subchapter and Subchapter I of Chapter 336 of this title. (4) Any licensee who has submitted an application before January 1, 1998, for renewal of a license shall provide financial assurance for decommissioning in accordance with subsections (a) and (b) of this section. This assurance must be submitted on or before January 1, 1998. (5) Each licensee shall comply with the requirements of sec.336.217 of this title (relating to Expiration and Termination of Licenses and Decommissioning of Sites and Separate Buildings or Outdoor Areas), as applicable. (d) The amount of financial assurance for decommissioning required under subsection (b)(1) of this section is based on the quantity of material as follows: [sup]4 but less than or equal to 105 times the applicable quantities in sec.336.521, Appendix A, of this title, in unsealed form. (For a combination of isotopes, if R, as defined in subsection (a) of this section, divided by 10type- name="sup">4 is greater than 1 but R divided by 105 is less than or equal to 1.) [sup]3 but less than or equal to 104 times the applicable quantities in sec.336.521, Appendix A, of this title in unsealed form. (For a combination of isotopes, if R, as defined in subsection (a) of this title divided by 103 is greater than 1 but R divided by 104 is less than or equal to 1.) (e) Each decommissioning funding plan must contain a cost estimate for decommissioning and a description of the method of assuring funds for decommissioning from Subchapter I of Chapter 336 of this title, including means for adjusting cost estimates and associated funding levels periodically over the life of the facility. The decommissioning funding plan must also contain a certification by the licensee that financial assurance for decommissioning has been provided in the amount of the cost estimate for decommissioning and a signed original of the financial instrument obtained to satisfy the requirements of Subchapter I of Chapter 336 of this title. (f) Each person licensed under this subchapter shall keep records of information important to the safe and effective decommissioning of the facility in an identified location until the license is terminated by the commission. If records of relevant information are kept for other purposes, reference to these records and their locations may be used. Information important to decommissioning consists of: (1) records of spills or other unusual occurrences involving the spread of contamination in and around the disposal facility, equipment, or site. These records may be limited to instances when contamination remains after any cleanup procedures or when there is reasonable likelihood that contaminants may have spread to inaccessible areas, as in the case of possible seepage into porous materials such as concrete. These records must include any known information on identification of involved nuclides, quantities, forms, and concentrations. (2) as-built drawings and modifications of structures and equipment in restricted areas where radioactive materials are disposed of and of locations of possible inaccessible contamination (e.g., buried pipes) that may be subject to contamination. If required drawings are referenced, each relevant document need not be indexed individually. If drawings are not available, the licensee shall substitute appropriate records of available information concerning these areas and locations. (3) except for areas containing only radioactive materials having half-lives of less than 65 days, a list contained in a single document and updated every two years of the following: (A) all areas designated as restricted areas, as defined in sec.336.2 of this title (relating to Definitions), and all areas formerly designated as restricted areas under rules in effect before January 1, 1994; (B) all areas outside of restricted areas that require documentation under paragraph (1) of this subsection; (C) all areas outside of restricted areas where current and previous wastes have been buried as documented under sec.336.348 of this title (relating to Records of Waste Disposal); and (D) all areas outside of restricted areas which contain material such that, if the license expired, the licensee must be required to either decontaminate the area to unrestricted release levels or apply for approval for disposal under sec.336.332 of this title (relating to Method of Obtaining Approval of Proposed Disposal Procedures). (4) records of the cost estimate performed for the decommissioning funding plan or of the amount certified for decommissioning, and records of the funding method used for assuring funds if either a funding plan or certification is used. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706535 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER G. Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities 30 TAC sec.sec.336.601-336.606, 336.613-336.629, 336.636 These new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.602. Definitions. Terms used in this subchapter are defined in sec.336.2 of this title (relating to Definitions). Additional terms used in this subchapter have the following definitions: Aquifer - A geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs. Any saturated zone created by uranium or thorium recovery operations or tailings or waste disposal would not be considered an aquifer unless the zone is or potentially is: (A) hydraulically interconnected to a natural aquifer; (B) capable of discharge to surface water; or (C) reasonably accessible because of migration beyond the vertical projection of the boundary of the land transferred for long-term government ownership and care in accordance with sec.336.629 of this title (relating to Land Ownership of Tailings or Waste Disposal Sites). As expeditiously as practicable considering technological feasibility - For the purposes of sec.336.622 of this title (relating to Closure Completion Milestones and Schedule), as quickly as possible considering the physical characteristics of the tailings and the site, the limits of "available technology" (as defined in this section), the need for consistency with mandatory requirements of other regulatory programs, and "factors beyond the control of the licensee" (as defined in this section). The phrase permits consideration of the cost of compliance only to the extent specifically provided for by use of the term "available technology." Available technology - Technologies and methods for emplacing a final radon barrier on uranium or thorium mill tailings piles or impoundments. This term shall not be construed to include extraordinary measures or techniques that would impose costs that are grossly excessive as measured by practice within the industry (or one that is reasonably analogous), (e.g., by way of illustration only, unreasonable overtime, staffing, or transportation requirements, etc., considering normal practice in the industry; laser fusion of soils; etc.), provided there is reasonable progress toward emplacement of the final radon barrier. To determine grossly excessive costs, the relevant baseline against which costs shall be compared is the cost estimate for tailings impoundment closure contained in the licensee's approved reclamation plan, but costs beyond these estimates shall not automatically be considered grossly excessive. Capable fault - Has the same meaning as defined in Section III(g) of Appendix A of 10 CFR Part 100 as amended through January 10, 1977 (42 FedReg 2052) (relating to Seismic and Geologic Siting Criteria for Nuclear Power Plants). Closure - The activities following operations to decontaminate and decommission the buildings and site used to produce byproduct materials and reclaim the tailings and/or waste disposal area, including groundwater restoration, if needed. Closure plan - The plan approved by the commission to accomplish closure. Commencement of construction - Any clearing of land, excavation, or other substantial action that would adversely affect the environment of a site, but does not include necessary borings to determine site characteristics or other pre-construction monitoring to establish background information related to the suitability of a site or to the protection of the environment. Compliance period - Begins when the commission sets secondary groundwater protection standards and ends when the license is terminated and the site is transferred to the State or federal government for long-term care, if applicable. Dike - An embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other materials. Disposal area - The area containing byproduct materials to which the requirements of sec.336.621 of this title (relating to Disposal Area Cover and Closure) apply. Existing portion - That land surface area of an existing surface impoundment on which significant quantities of uranium or thorium byproduct materials had been placed prior to September 30, 1983. Factors beyond the control of the licensee - Factors proximately causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the barrier in compliance with sec.336.622(a) of this title. These factors may include but are not limited to: (A) physical conditions at the site; (B) inclement weather or climatic conditions; (C) an act of God; (D) an act of war; (E) a judicial or administrative order or decision, or change to the statutory, regulatory, or other legal requirements applicable to the licensee's facility that would preclude or delay the performance of activities required for compliance; (F) labor disturbances; (G) any modifications, cessation or delay ordered by state, federal, or local agencies; (H) delays beyond the time reasonably required in obtaining necessary government permits, licenses, approvals, or consent for activities described in the reclamation plan proposed by the licensee that result from government agency failure to take final action after the licensee has made a good faith, timely effort to submit legally sufficient applications, responses to requests (including relevant data requested by the agencies), or other information, including approval of the reclamation plan; and (I) an act or omission of any third party over whom the licensee has no control. Final radon barrier - The earthen cover (or approved alternative cover) over tailings or wastes constructed to comply with sec.336.621 of this title (excluding erosion protection features). Groundwater - Water below the land surface in a zone of saturation. For purposes of this subchapter, groundwater is the water contained within an aquifer as defined in this section. Hazardous constituent - Subject to sec.336.615(b) of this title (relating to Secondary Groundwater Protection), a constituent which meets all three of the following tests: (A) The constituent is reasonably expected to be in or derived from the byproduct material in the disposal area; (B) The constituent has been detected in the groundwater in the uppermost aquifer; and (C) The constituent is listed in 10 CFR Part 40, Appendix A as amended through July 15, 1994 (59 FedReg 36035) (relating to Criteria Relating to the Operation of Uranium Mills and Disposition of Tailings or Wastes Produced by the Extraction or Concentration of Source Material from Ores Processed Primarily for Their Source Material Content), Criterion 13. Leachate - Any liquid, including any suspended or dissolved components in the liquid, that has percolated through or drained from the byproduct material. Licensed site - The area contained within the boundary of a location under the control of persons generating, storing, or disposing of byproduct materials under a license. Liner - A continuous layer of natural or man-made materials, beneath or on the sides of a surface impoundment which restricts the downward or lateral escape of byproduct material, hazardous constituents, or leachate. Maximum credible earthquake - An earthquake which would cause the maximum vibratory ground motion based upon an evaluation of earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurface material. Milestone - An action or event that is required to occur by an enforceable date. Operation - The period of time during which a uranium or thorium mill tailings pile or impoundment is being used for the continued placement of byproduct material or is in standby status for such placement. A pile or impoundment is in operation from the day that byproduct material is first placed in the pile or impoundment until the day final closure begins. Point of compliance - The site-specific location in the uppermost aquifer where the groundwater protection standard must be met. The objective in selecting the point of compliance is to provide the earliest practicable warning that an impoundment is releasing hazardous constituents to the groundwater. The point of compliance is selected to provide prompt indication of groundwater contamination on the hydraulically downgradient edge of the disposal area. Processing - Possession, use, storage, extraction of material, transfer, volume reduction, compaction, or other separation incidental to recovery of source material. Reclamation plan - For the purposes of sec.336.622 of this title, the plan detailing activities to accomplish reclamation of the tailings or waste disposal area in accordance with the technical criteria of this subchapter. The reclamation plan must include a schedule for reclamation milestones that are key to the completion of the final radon barrier, including as appropriate, but not limited to, wind blown tailings retrieval and placement on the pile, interim stabilization (including dewatering or the removal of freestanding liquids and recontouring), and final radon barrier construction. Reclamation of tailings or wastes must also be addressed in the closure plan. The detailed reclamation plan may be incorporated into the closure plan. Surface impoundment - A natural topographic depression, man-made excavation, or diked area, which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well. Uppermost aquifer - The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary. Waste - Byproduct material as it is defined in sec.336.2, subparagraph (B), of this title. sec.336.606. Issuance of License. (a) Upon a determination that an application meets the requirements of the Texas Radiation Control Act and the rules of this chapter, the commission may issue a license authorizing the proposed activity. (b) Facilities may be issued a license for in situ uranium recovery as follows: (1) A license may include only one processing plant (e.g., yellow cake precipitation and/or drying) and its associated mining areas and satellites (e.g., lixiviant-stripping ion exchange units). For purposes of this subsection, a processing plant may be active, inactive, in standby status, or in decommissioning. For the purposes of this subsection, the executive director shall determine whether a separate license is required for a facility that contains only mining areas and associated satellite(s). (2) A license issued on or before August 1, 1994, need not conform to the requirements of paragraph (1) of this subsection. These licenses may not be amended to add facilities that do not conform to the requirements of paragraph (1) of this subsection. sec.336.614. Groundwater Protection. The groundwater protection requirements in this section and those in sec.336.615 of this title (relating to Secondary Groundwater Protection), sec.336.616 of this title (relating to Corrective Action Program), and sec.336.636, Appendix A, of this title (relating to Maximum Concentrations for Groundwater Protection) apply during operations and until closure is completed. Groundwater monitoring to comply with these standards is required by sec.336.623 of this title (relating to Monitoring Requirements). (1) The primary groundwater protection standard is a design standard for surface impoundments used to manage uranium and thorium byproduct material. Unless exempted under paragraph (3) of this section, surface impoundments (except for an existing portion) shall have a liner that is designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the impoundment. The liner may be constructed of materials that may allow wastes to migrate into the liner (but not into the adjacent subsurface soil, groundwater, or surface water) during the active life of the facility, provided that impoundment closure shall include removal or decontamination of all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate. For impoundments that will be closed with the liner material left in place, the liner shall be constructed of materials that can prevent wastes from migrating into the liner during the active life of the facility. (2) The liner required by paragraph (1) of this section shall be: (A) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the wastes or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation; (B) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and (C) installed to cover all surrounding earth likely to be in contact with the wastes or leachate. (3) The applicant or licensee will be exempted from the requirements of paragraph (1) of this section if the commission finds, based on a demonstration by the applicant or licensee, that alternate design and operating practices, including the closure plan, together with site characteristics will prevent the migration of any hazardous constituents into groundwater or surface water at any future time. In deciding whether to grant an exemption, the commission will consider: (A) the nature and quantity of the wastes; (B) the proposed alternate design and operation; (C) the hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the impoundment and groundwater or surface water; and (D) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water. (4) A surface impoundment shall be designed, constructed, maintained, and operated to prevent overtopping resulting from normal or abnormal operations, overfilling, wind and wave actions, rainfall, or runoff; from malfunctions of level controllers, alarms, and other equipment; and from human error. (5) When dikes are used to form the surface impoundment, the dikes shall be designed, constructed, and maintained with sufficient structural integrity to prevent massive failure of the dikes. In ensuring structural integrity, it shall not be presumed that the liner system will function without leakage during the active life of the impoundment. sec.336.621. Disposal Area Cover and Closure. (a) In disposing of tailings or wastes, licensees shall place an earthen cover over the tailings or wastes at the end of the uranium or thorium recovery operations and shall close the tailings or waste disposal area in accordance with a design which provides reasonable assurance of control of radiological hazards. In the case of thorium byproduct materials, the standard applies only to design. Monitoring for radon emissions from thorium byproduct materials after installation of an appropriately designed cover is not required. The design must provide reasonable assurance that control of radiological hazards will: (1) be effective for 1,000 years, to the extent reasonably achievable and, in any case, for at least 200 years; and (2) limit releases of radon-222 from uranium byproduct materials and radon-220 from thorium byproduct materials to the atmosphere so as not to exceed an average release rate of 20 picocuries/square meter/second (pCi/m2s) to the extent practicable throughout the effective design life determined pursuant to paragraph (1) of this subsection. This average applies to the entire surface of each disposal area over a period of at least one year, but a period short compared to 100 years. Radon will come from both byproduct materials and cover materials. Radon emissions from cover materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from byproduct materials to the atmosphere. (b) In computing required tailings or waste cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances may not be considered. Direct gamma exposure from the tailings or wastes should be reduced to background levels. The effects of any thin synthetic layer may not be taken into account in determining the calculated radon exhalation level. If non-soil materials are proposed as cover materials, the licensee must demonstrate that these materials will not crack or degrade by differential settlement, weathering, or other mechanisms over long-term intervals. (c) As soon as reasonably achievable after emplacement of the final cover to limit releases of radon-222 from uranium byproduct material and prior to placement of erosion protection barriers or other features necessary for long- term control of the tailings, the licensee shall verify through appropriate testing and analysis that the design and construction of the final radon barrier is effective in limiting releases of radon-222 to a level not exceeding 20 pCi/m2s averaged over the entire pile or impoundment using the procedures described in Appendix B, Method 115 of 40 CFR Part 61 as amended through April 25, 1996 (61 FedReg 18278) (relating to Monitoring for Radon-222 Emissions), or another method of verification approved by the United States Nuclear Regulatory Commission as being at least as effective in demonstrating the effectiveness of the final radon barrier. (d) When phased emplacement of the final radon barrier is included in the applicable reclamation plan, as defined in sec.336.602 of this title (relating to Definitions), the verification of radon-222 release rates required in subsection (c) of this section must be conducted for each portion of the pile or impoundment as the final radon barrier for that portion is emplaced. (e) Within 90 days of the completion of all testing and analysis relevant to the required verification in subsections (c) and (d) of this section, the uranium recovery licensee shall report to the executive director the results detailing the actions taken to verify that levels of release of radon-222 do not exceed 20 pCi/m2s when averaged over the entire pile or impoundment. The licensee shall maintain records documenting the source of input parameters, including the results of all measurements on which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to determine compliance. These records shall be maintained until termination of the license and shall be kept in a form suitable for transfer to the custodial agency at the time of transfer of the site to the State or the United States pursuant to sec.336.629 of this title (relating to Land Ownership of Tailings or Waste Disposal Sites). (f) Near-surface cover materials may not include waste, rock, or other materials that contain elevated levels of radium. Soils used for near-surface cover must be essentially the same, as far as radioactivity is concerned, as surrounding surface soils. This is to ensure that surface radon exhalation is not significantly above background because of the cover material itself. (g) The design requirements in this section for longevity and control of radon releases apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land, averaged over areas of 100 m2, which, as a result of byproduct material, does not exceed the background level by more than: (1) five picocuries per gram (pCi/g) of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over the first 15 centimeters (cm) below the surface; and (2) 15 pCi/g of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers more than 15 cm below the surface. (h) The licensee shall also address the nonradiological hazards associated with the tailings or wastes in planning and implementing closure. The licensee shall ensure that disposal areas are closed in a manner that minimizes the need for further maintenance. To the extent necessary to prevent threats to human health and the environment, the licensee shall control, minimize, or eliminate post-closure escape of nonradiological hazardous constituents, leachate, contaminated rainwater, or waste decomposition products to groundwater, surface waters, or the atmosphere. sec.336.622. Closure Completion Milestones and Schedule. (a) For impoundments containing uranium byproduct materials, the final radon barrier must be completed as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation in accordance with a written reclamation plan, as defined in sec.336.602 of this title (relating to Definitions), approved by the commission by license amendment. (The term "as expeditiously as practicable considering technological feasibility" as specifically defined in sec.336.602 of this title includes "factors beyond the control of the licensee" as defined.) Deadlines for completion of the final radon barrier and applicable interim milestones must be established as license conditions. Applicable interim milestones may include, but are not limited to, the retrieval of windblown tailings and placement on the pile and the interim stabilization of the tailings or wastes (including dewatering or the removal of freestanding liquids and recontouring). The placement of erosion protection barriers or other features necessary for long- term control of the tailings or wastes must also be completed in a timely manner in accordance with a written reclamation plan approved by the commission by license amendment. (b) The commission may approve by license amendment a licensee's request to extend the time for performance of milestones related to emplacement of the final radon barrier if, after providing an opportunity for public participation, the commission finds that the licensee has adequately demonstrated in the manner required in sec.336.621(c) of this title (relating to Disposal Area Cover and Closure) that releases of radon-222 do not exceed an average of 20 pCi/m2s. If the delay is approved on the basis that the radon releases do not exceed 20 pCi/m 2s, a verification of radon levels, as required by sec.336.621(c) of this title, must be made annually during the period of delay. In addition, once the commission has established the date in the reclamation plan for the milestone for completion of the final radon barrier, the commission may by license amendment extend that date based on cost if, after providing an opportunity for public participation, the commission finds that the licensee is making good faith efforts to emplace the final radon barrier, the delay is consistent with the definition of "available technology," as given in sec.336.2 of this title (relating to Definitions) and the radon releases caused by the delay will not result in a significant incremental risk to the public health. (c) The commission may authorize by license amendment, upon licensee request, a portion of the impoundment to accept uranium byproduct material, as defined in 10 CFR Part 40 as amended through July 15, 1994 (59 FedReg 36035) (relating to Domestic Licensing of Source Material), or such materials that are similar in physical, chemical, and radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources during the closure process. No such authorization will be made if it results in a delay or impediment to emplacement of the final radon barrier over the remainder of the impoundment in a manner that will achieve levels of radon- 222 releases not exceeding 20 pCi/m2s averaged over the entire impoundment. The verification required in sec.336.621(c) of this title may be completed with a portion of the impoundment being used for further disposal if the commission makes a final finding that the impoundment will continue to achieve a level of radon-222 releases not exceeding 20 pCi/m2s averaged over the entire impoundment. After the final radon barrier is complete except for the continuing disposal area, only byproduct material as defined in 10 CFR Part 40 as amended through July 15, 1994 (59 FedReg 36035) will be authorized for disposal, and the disposal will be limited to the specified existing disposal area. This authorization by license amendment will only be made after providing opportunity for public participation. Reclamation of the disposal area, as appropriate, must be completed in a timely manner after disposal operations cease in accordance with sec.336.621(a) of this title. These actions are not required to be complete as part of meeting the deadline for final radon barrier construction. sec.336.624. Airborne Emission and Discharge Control Requirements. (a) Facilities shall be designed and operations shall be conducted so that all airborne effluent releases are as low as is reasonably achievable. The primary means of accomplishing this shall be by means of emission controls. Institutional controls, such as extending the site boundary and exclusion area, may be employed to ensure that offsite exposure limits are met, but only after all practicable measures have been taken to control emissions at the source. Notwithstanding the existence of individual dose standards, strict control of emissions is necessary to assure that population exposures are reduced to the maximum extent reasonably achievable and to avoid site contamination. (b) During operations and prior to closure, radiation doses from radon emissions from surface impoundments of uranium or thorium byproduct materials must be kept as low as is reasonably achievable. (c) Checks shall be made and logged hourly of all parameters which determine the efficiency of emission control equipment operation. It shall be determined whether or not conditions are within a range prescribed to ensure that the equipment is operating consistently near peak efficiency. Corrective action shall be taken when performance is outside of prescribed ranges. Effluent control devices shall be operative at all times during drying and packaging operations and whenever air is exhausting from the stack. Drying and packaging operations shall terminate when controls are inoperative. When checks indicate the equipment is not operating within the range prescribed for peak efficiency, actions shall be taken to restore parameters to the prescribed range. When this cannot be done without shutdown and repairs, drying and packaging operations shall cease as soon as practicable. Operations may not be restarted after cessation due to off-normal performance until needed corrective actions have been identified and implemented. All such cessations, corrective actions, and restarts shall be reported to the executive director in writing within 10 days of the subsequent restart. (d) To control dusting from tailings or wastes, that portion not covered by standing liquids shall be wetted or chemically stabilized to prevent or minimize blowing and dusting to the maximum extent reasonably achievable. This requirement may be relaxed if tailings or wastes are effectively sheltered from wind, such as may be the case with below-grade disposal. Consideration shall be given in planning tailings or waste disposal programs to methods which would allow phased covering and reclamation of tailings or waste impoundments. To control dusting from diffuse sources, the applicant or licensee shall develop written operating procedures specifying the methods of control which will be utilized. (e) Milling operations producing or involving thorium byproduct material shall be conducted in such a manner as to provide reasonable assurance that the annual dose equivalent does not exceed 25 millirems to the whole body, 75 millirems to the thyroid, and 25 millirems to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials to the general environment, radon-220 and its daughters excepted. (f) Uranium and thorium byproduct materials must be managed so as to conform to the applicable provisions of 40 CFR Part 440 (relating to Ore Mining and Dressing Point Source Category), as amended through January 1, 1983. sec.336.626. Requirement Alternatives. (a) The licensee or applicant may propose alternatives to the specific technical requirements in this subchapter, sec.sec.336.627-336.629 of this title (relating to Financial Assurance Requirements, Long-Term Care and Surveillance Requirements, and Land Ownership of Tailings or Waste Disposal Sites). The alternative proposals may take into account local or regional conditions, including geology, topography, hydrology, and meteorology. (b) The commission may find that the proposed alternatives meet the commission's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned and a level of protection for the public health and safety and the environment from radiological and nonradiological hazards associated with the sites which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by the technical requirements of this subchapter, sec.sec.336.627-336.629 of this title, and the standards promulgated by the United States Environmental Protection Agency in 40 CFR Part 192, Subpart D (as amended through November 15, 1993 (58 FedReg 60355)) and Subpart E (as amended through January 11, 1995 (60 FedReg 2868)) (relating to Standards for Management of Uranium Byproduct Materials Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended; and Standards for Management of Thorium Byproduct Materials Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended; respectively). (c) All site-specific licensing decisions based on the criteria in the technical requirements of this subchapter, sec.sec.336.627-336-629 of this title, or alternatives proposed by a licensee or applicant shall take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the commission determines to be appropriate. (d) Any proposed alternatives to the specific technical requirements in this subchapter, sec.sec.336.627-336.629 of this title, must be approved by the United States Nuclear Regulatory Commission with notice and opportunity for public hearing as required in 10 CFR 150.31(d) as amended through November 24, 1992 (57 FedReg 55081) (relating to Requirements for Agreement State Regulation of Byproduct Material). sec.336.636. Appendix A. Maximum Concentrations for Groundwater Protection. Figure 1: 30 TAC sec.336.636, Appendix A 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706534 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER H.Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste 30 TAC sec.sec.336.701-336.703, 336.705-336.711, 336.715, 336.716, 336.718- 336.737, 336.740-336.743 The new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code, sec.sec.401.011, 401.051, and 401.412, and Texas Water Code, sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.701.Scope and General Provisions. (a) This subchapter establishes, for near-surface land disposal of radioactive waste, the procedures, criteria, and terms and conditions upon which the commission issues a license for the disposal of radioactive wastes received from other persons. The rules in this subchapter apply to disposal of radioactive waste as defined in sec.336.2 of this title (relating to Definitions). 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 may engage in disposal of radioactive waste received from other persons except as authorized in a specific license issued under this subchapter. A licensee under this subchapter may conduct processing of 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 radioactive waste under the rules in this subchapter shall not accept for disposal: (1) high-level radioactive waste as defined in 10 CFR 60.2 as amended through October 27, 1988 (53 FedReg 43421) (relating to Definitions - high-level radioactive wastes in geologic repositories); (2) byproduct material as defined in sec.336.2, subparagraph (B) of this title, except as provided in subsection (c) of this section; (3) waste containing transuranic radionuclides in concentrations of 10 or more nanocuries per gram. This limit of 10 nanocuries per gram of transuranics shall not be equaled or exceeded in waste disposed of at a land disposal facility licensed under the rules in this subchapter, notwithstanding the concentration limits for transuranics specified in sec.336.362, Appendix E, of this title (relating to Classification and Characteristics of Low-Level Radioactive Waste); (4) spent or irradiated nuclear fuel; or (5) waste that is not generally acceptable for near-surface disposal as specified in sec.336.362, Appendix E, of this title. (c) A licensee authorized to dispose of radioactive waste under the rules in this subchapter may accept in any one calendar year, from January 1 through December 31 of each year, byproduct material as defined in sec.336.2, subparagraph (B) of this title, in a total quantity not exceeding 10,000 kilograms and containing no more than five millicuries of radium-226, provided that the near-surface disposal license specifically authorizes by license condition the acceptance for disposal of such byproduct material in quantitites as provided for in this subsection. (d) In addition to the requirements of this subchapter, all licensees, unless otherwise specified, are subject to the requirements of Subchapters A-E of Chapter 336 of this title (relating to General Provisions; Radioactive Substance Fees; Additional Application, Operation, and License Requirements; Standards for Protection Against Radiation; and Notices, Instructions, and Reports to Workers and Inspections). (e) Requirements for disposal of radioactive waste by an individual waste generator are set forth in Subchapter D of Chapter 336 of this title and Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), and this disposal is not subject to licensing under this subchapter. Requirements for disposal of byproduct material as defined in sec.336.2, subparagraph (B) of this title, are set forth in Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities), and this disposal is not subject to licensing under this subchapter, except as provided in subsection (c) of this section. sec.336.702.Definitions. Terms used in this subchapter are defined in sec.336.2 of this title (relating to Definitions). Additional terms used in this subchapter have the following definitions: Active maintenance-Any significant remedial activity needed during the period of institutional control to maintain a reasonable assurance that the performance objectives in sec.336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity) and sec.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. 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 site. 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). 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. Custodial agency-A government agency designated to act on behalf of the government owner of the disposal site. Disposal-The isolation of radioactive waste from the biosphere inhabited by man and containing his food chains by emplacement in a land disposal facility. 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. 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. 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. 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. 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 Hazardous wastes-Those wastes designated as hazardous by United States Environmental Protection Agency rules in 40 CFR Part 261 as amended through July 1, 1996 (61 FedReg 34278) (relating to Identification and Listing of Hazardous Waste). 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. 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. 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. Monitoring-Observing and making measurements to provide data to evaluate the performance and characteristics of the disposal site. 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. 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. 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. Stability-Structural stability. 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. Waste-Radioactive waste, or low-level radioactive waste, as defined in sec.336.2 of this title (relating to Definitions) which is acceptable for disposal in a land disposal facility. Notwithstanding the definitions in sec.336.2 of this title, the term "waste" as used in this subchapter includes transuranics in concentrations less than 10 nanocuries per gram, as provided in sec.336.701(b)(3) of this title (relating to Scope and General Provisions), and byproduct material which meets the limitations of sec.336.701(c) of this title. sec.336.707.Specific Technical Information. The specific technical information in the application shall include the following information needed for demonstration that the performance objectives of this subchapter 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 performance criteria for form and packaging of the waste to 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 sec.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 Chapter 336 of this title (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 facility electronic recordkeeping system as required in sec.336.740(i) of this title (relating to Maintenance of Records and Reports). sec.336.715.Standards for Issuance of a License, License Amendment, or License Renewal. A license, license amendment, or license renewal for the receipt, possession, and disposal of waste may be issued by the commission upon finding that the issuance of the license must not constitute an unreasonable risk to the health and safety of the public or have a long-term detrimental impact on the environment and that: (1) The applicant is qualified by reason of training and experience to carry out the disposal operations requested in a manner that protects health and minimizes danger to life or the environment; (2) The applicant's proposed disposal site, disposal design, land disposal facility operations (including equipment, facilities, and procedures), disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they provide reasonable assurance that the general population will be protected from releases of radioactivity as specified in the performance objective in sec.336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity); (3) The applicant's proposed disposal site, disposal site design, land disposal facility operations (including equipment, facilities, and procedures), disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they will provide reasonable assurance that individual inadvertent intruders are protected in accordance with the performance objective in sec.336.725 of this title (relating to Protection of Individuals from Inadvertent Intrusion); (4) The applicant's proposed land disposal facility operations (including equipment, facilities, and procedures) are adequate to protect the public health and safety in that they will provide reasonable assurance that the standards for radiation protection set out in Subchapter D of Chapter 336 of this title (relating to Standards for Protection Against Radiation) will be met; (5) The applicant's proposed disposal site, disposal site design, land disposal facility operations, disposal site closure, and post-closure institutional control are adequate to protect the public health and safety and the environment in that they will provide reasonable assurance that long-term stability of the disposed waste and the disposal site will be achieved and will eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following closure; (6) The applicant has provided reasonable assurance that the applicable technical requirements of this subchapter will be met; (7) The applicant's proposal for institutional control provides reasonable assurance that institutional control will be provided for the length of time found necessary to ensure the findings in paragraphs (2)-(5) of this section and that the institutional control meets the requirements of sec.336.734 of this title (relating to Institutional Requirements); (8) The information on financial assurances meets the requirements of this subchapter; and (9) The applicant has met any additional requirements under the rules of the commission. sec.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 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 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. (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 a fixed period of time to be specified in the license but in no case to exceed 20 years from the date of issuance. The authority to dispose of waste expires on the date stated in the license except as provided in sec.336.718(a) of this title (relating to Application for Renewal or Closure). sec.336.740.Maintenance of Records and Reports. (a) 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. Copies of any records or reports required by the license, rules, or orders shall be submitted to the executive director or commission on request. All records and reports required by the license, rules, or orders shall be complete and accurate. (b) Records which are required by the rules in this chapter or by license conditions shall be maintained for a period specified by the appropriate rules or by license condition. If a retention period is not otherwise specified, these records shall be maintained and transferred to the executive director as specified in subsection (e) of this section as a condition of license termination unless the executive director otherwise authorizes their disposition. (c) Each record required by this chapter shall be legible throughout the specified retention period. The record shall be the original or a reproduced copy or a microform, provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records, such as letters, drawings, and specifications, shall include all pertinent information, such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and the loss of records. (d) 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. (e) Notwithstanding subsections (a)-(d) of this section, the licensee shall record the location and the quantity of wastes contained in the disposal site 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. (f) Following receipt and acceptance of a shipment of waste, the licensee shall record the date that the shipment was received at the disposal facility; the date of disposal of the waste; a traceable shipment manifest number; a description of any engineered barrier or structural overpack provided for disposal of the waste; the location of disposal at the disposal site; the containment integrity of the waste disposal containers as received; any discrepancies between materials listed on the manifest and those received; the volume of any pallets, bracing, or other shipping materials, or of materials generated on site, that are contaminated and are disposed of as contaminated or suspect materials; and any evidence of leaking or damaged disposal containers or radiation or contamination levels in excess of limits specified in rules of the United States Department of Transportation or United States Nuclear Regulatory Commission. The licensee shall briefly describe any repackaging operations of any of the disposal containers included in the shipment, plus any other information required by the commission as a license condition. The licensee shall retain these records until the commission transfers or terminates the license that authorizes the activities described in this section. (g) 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. (h) Annual reports shall be submitted. (1) Each licensee authorized to dispose of waste received from other persons under this subchapter shall submit annual reports to the executive director. Reports shall be submitted by the end of the first calendar quarter of each year for the preceding year. (2) The annual reports shall include: (A) specification of the quantity of each of the principal radionuclides released to unrestricted areas in liquid and in airborne effluents during the preceding year; (B) the results of the environmental monitoring program; (C) a summary of licensee disposal unit survey and maintenance activities, including the location of each discrete waste shipment; (D) a summary, by waste class, of activities and quantities of radionuclides disposed of; (E) any instances in which observed site characteristics were significantly different from those described in the application for a license; and (F) any other information the executive director may require. (3) If the quantities of radioactive materials released during the reporting period, monitoring results, or maintenance performed are significantly different from those expected in the documents previously reviewed as part of the licensing action, the annual report shall cover this specifically. (i) An electronic record keeping system shall be maintained. (1) In addition to the other requirements of this section, the licensee shall store, or have stored, manifest and other information pertaining to receipt and disposal of radioactive waste in an electronic recordkeeping system. (2) The manifest information that must be electronically stored is: (A) that prescribed in sec.336.363, Appendix F, of this title (relating to Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests), that is, 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 CFR 61.80 as amended through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663), with the exception of shipper and carrier telephone numbers and shipper and consignee certifications; (B) that information required in subsection (f) of this section; and (C) specification of: (i) the activity of each of the radionuclides hydrogen-3, carbon-14, technetium- 99, and iodine-129 in waste disposed of; (ii) the masses of uranium-233, uranium-235, and plutonium in special nuclear material in waste disposed of; and (iii) the mass of uranium and thorium in source material in waste disposed of. (3) As specified in license conditions, the licensee shall report the stored information, or subsets of this information, on a computer-readable medium, as that term is defined in sec.336.363, Appendix F, of this title. 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706533 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 SUBCHAPTER I.Financial Assurance 30 TAC sec.sec.336.801-336.807 The new sections are adopted under the Texas Radiation Control Act, Texas Health and Safety Code sec.sec.401.011, 401.051, and 401.412, and Texas Water Code sec.5.103, which give the Texas Natural Resource Conservation Commission authority to adopt rules necessary to carry out its responsibilities to regulate the disposal of radioactive substances and the recovery and processing of source material. sec.336.803.Financial Assurance Requirements. (a) This subchapter applies to licensees with closure and, if applicable, long- term care requirements. The licensee must choose from one or more of the mechanisms as specified in sec.336.804 of this title (relating to Financial Assurance Mechanisms). The mechanisms available to licensees under Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material) include cash deposit, certificate of deposit, deposit of government securities, trust fund, surety bond, letter of credit, insurance, financial test and corporate guarantee, or external sinking fund. The mechanisms available to licensees under Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities) include cash deposit, certificate of deposit, deposit of government securities, trust fund, surety bond, letter of credit, financial test and corporate guarantee, or external sinking fund. The mechanisms available to licensees under Subchapter H of Chapter 336 of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Radioactive Waste) include cash deposit, certificate of deposit, deposit of government securities, trust fund, surety bond, letter of credit, or external sinking fund. (1) A licensee required to provide evidence of financial assurance must establish financial assurance based on the cost estimate approved by the executive director. For new applications, the financial assurance must be submitted 60 days prior to commencement of operation, except that new applicants under Subchapter F of Chapter 336 of this title must comply with sec.336.514 of this title (relating to Financial Assurance and Recordkeeping for Decommissioning). Existing licensees must comply with the regulations within 30 days of the effective date of these rules, except that existing licensees under Subchapter F of Chapter 336 of this title must comply with sec.336.514 of this title. (2) A licensee who uses either a surety bond guaranteeing payment or performance, or a letter of credit must establish a standby trust, as specified under sec.336.804(a) of this title. Under the terms of the mechanism, all payments made thereunder will be deposited by the issuer directly into the standby trust fund in accordance with instructions from the executive director. This standby trust fund shall meet the wording specified under sec.336.806(a) of this title (relating to Wording of Financial Assurance Instruments) except that: (A) An originally-signed duplicate of the trust agreement shall be submitted to the executive director with the surety bond or letter of credit; and (B) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations: (i) payments into the trust fund as specified in this section; (ii) updating of Schedule A of the trust agreement to show current cost estimates; (iii) annual valuations as required by the trust agreement; and (iv) notices of nonpayment as required by the trust agreement. (3) The mechanism submitted for compliance with this chapter must be worded exactly as specified in sec.336.806 of this title. The executive director will determine the acceptability of the mechanism(s). (4) The current cost estimate is subject to annual review by the executive director in accordance with sec.336.627 of this title (relating to Financial Assurance Requirements) and sec.336.736 of this title (relating to Funding for Disposal Site Closure and Stabilization). Whenever the required financial assurance amount increases to an amount greater than the amount being provided in the financial assurance mechanism, the licensee must either cause the amount of the mechanism to be increased or obtain additional financial assurance to cover the increase. The licensee shall submit evidence of such increase to the executive director. (5) The licensee may request an annual reduction in financial assurance if the remaining financial assurance amount is sufficient to cover the cost of closing the facility or site. Within 60 days after receiving a request for a financial assurance reduction, the executive director will either allow the amount to be reduced or respond in writing as to why financial assurance cannot be reduced. (6) Multiple financial assurance mechanisms may be used to satisfy the requirements of this subchapter. The mechanisms are limited to trust funds, surety bond guaranteeing payment, letters of credit, insurance and external sinking fund. The mechanisms shall be as specified in sec.336.804 of this title, except that it is the combination of mechanisms, rather than the single mechanism, which shall provide financial assurance for an amount at least equal to the amount required to satisfy the current cost estimate. The executive director may allow any or all of the mechanisms to be used for closure. (7) A financial assurance mechanism for multiple licenses may be used to satisfy the requirements of this subchapter. Evidence of financial assurance submitted to the executive director must include a list showing, for each facility or site, the license number, name, address, and the amount of the current cost estimate for closure and, where applicable, for long-term care. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each licensed facility or site. In directing funds available through the mechanism for closure, or, where applicable long-term care, the executive director may direct only the amount of funds designated for that facility or site. (8) For Subchapters G and H of Chapter 336 of this title, the executive director may accept financial assurance established to meet requirements of other federal or state agencies and/or local governing bodies for closure, and if applicable long-term care, provided such mechanism complies with the requirements of this subchapter and the full amount of financial assurance required for the specific license is clearly identified and committed for use for the purposes of Subchapters G and H of Chapter 336 of this title. (9) The executive director will provide written consent to termination of the financial assurance mechanism when: (A) A licensee substitutes and receives approval for alternate financial assurance as specified in this subchapter; or (B) The commission terminates the license; or (C) The commission transfers the license to the appropriate government agency in accordance with the requirements of this chapter. (10) Following a determination that the licensee has failed to perform closure in accordance with the license and rules, the executive director may draw on the financial assurance to complete these activities on behalf of the licensee. (11) Proof of forfeiture must not be necessary to collect the financial assurance, so that in the event that the licensee could not provide an acceptable replacement financial assurance within the required time, the financial assurance mechanism shall be automatically collected prior to its expiration. (12) Continuous financial assurance coverage shall be provided until all the requirements of this chapter have been completed. (13) Incapacity of licensees, guarantors, or financial institutions. (A) A licensee must notify the executive director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming the licensee as debtor, within 10 business days after the commencement of the proceeding. A guarantor of a corporate guarantee as specified in sec.336.804(f) and (g) of this title (relating to Financial Assurance Mechanisms) shall make such a notification if it is named as debtor, as required under the terms of the guarantee. (B) A licensee who fulfills the requirements of this section or sec.336.804 of this title by obtaining a letter of credit, surety bond, or insurance policy will be deemed to be without the required financial assurance coverage in the event of bankruptcy, insolvency, or a suspension or revocation of the license or charter of the issuing institution. The licensee must establish other acceptable financial assurance within 30 days after such an event. (b) A licensee under Subchapters G or H of Chapter 336 of this title must adjust the current cost estimate for inflation at least 60 days before the anniversary date of the license. The adjustment must be made as specified in paragraphs (1) and (2) of this subsection, using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business. The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year. (1) The first adjustment is made by multiplying the cost estimate by the inflation factor. The result is the adjusted cost estimate. (2) Subsequent adjustments are made by multiplying the latest adjusted cost estimate by the latest inflation factor. (c) A licensee under Subchapter G of Chapter 336 of this title may not use self- insurance, or any arrangement which essentially constitutes self insurance (e.g., a contract with a state or federal agency) will not satisfy the financial assurance requirement as specified in this subchapter since this provides no additional assurance other than that which already exists through license requirements. (d) On a case-by-case basis, the executive director may approve other alternative financial assurance mechanisms. sec.336.804.Financial Assurance Mechanisms. (a) Trust fund or standby trust fund. (1) A licensee may satisfy the requirements of financial assurance by establishing a trust fund which conforms to paragraphs (2)-(8) of this subsection in addition to the requirements specified in sec.336.803 of this title (relating to Financial Assurance Requirements). (2) The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency. (3) The wording of the trust agreement must be identical to the wording specified in sec.336.806(a) of this title (relating to Wording of Financial Assurance Mechanisms), and the trust agreement must be accompanied by a formal certificate of acknowledgment. Schedule A of the trust agreement must be updated within 60 days after an approved change in the amount of the current cost estimate covered by the agreement. (4) The initial payment into the trust fund must be at least equal to the current cost estimate, except when a combination of mechanisms are used in accordance with sec.336.803(a)(6) of this title. A receipt from the trustee for the initial payment must be submitted by the licensee to the executive director with the original signed duplicate of the trust agreement. (5) If the value of the trust fund is greater than the total amount of the current cost estimate, the licensee may submit a written request to the executive director for release of the amount in excess. (6) If a licensee substitutes other financial assurance as specified in this section for all or part of the trust fund, he may submit a written request to the executive director for approval of the release of the amount in excess of the current cost estimate covered by the trust fund. (7) Within 60 days after receiving a request from the licensee for release of funds as specified in paragraph (5) or (6) of this subsection, the executive director may instruct the trustee to release to the licensee such funds as the executive director specifies in writing. (8) After beginning final closure, a licensee or any other person authorized by the executive director to perform closure may request reimbursement for expenditures by submitting itemized bills to the executive director. After receiving bills for closure activities, the executive director will determine whether the expenditures are in accordance with the closure requirements and within 60 days following a final review, will instruct the trustee to make reimbursement in such amounts as the executive director specifies in writing. If the executive director has reason to believe that the cost of closure will be significantly greater than the value of the trust fund, the executive director may withhold reimbursement of such amounts as deemed prudent until it is determined that the licensee is no longer required to maintain financial assurance. (b) Surety bond guaranteeing payment. (1) A licensee may satisfy the requirements of financial assurance by establishing a surety bond which conforms to paragraphs (2)-(8) of this subsection in addition to the requirements specified in sec.336.803 of this title. (2) The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the United States Department of the Treasury, and licensed in the State of Texas. (3) The wording of the surety bond must be identical to the wording specified in sec.336.806(b) of this title. (4) The licensee who uses a surety bond to satisfy financial assurance requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the executive director. This standby trust fund must meet the requirements specified in subsection (a) of this section, except that: (A) An originally-signed duplicate of the trust agreement must be submitted to the executive director with the surety bond; and (B) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations: (i) payments into the trust fund as specified in subsection (a) of this section; (ii) updating of Schedule A of the trust agreement to show current cost estimates; (iii) annual valuations as required by the trust agreement; and (iv) notices of nonpayment as required by the trust agreement. (5) The bond must guarantee that the licensee will: (A) fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure activities; or (B) fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin final closure issued by the executive director becomes final, or within 15 days after an order to begin final closure is issued by a United States district court or other court of competent jurisdiction; or (C) provide alternate financial assurance as specified in this subchapter, and obtain the executive director's written approval of the assurance provided, within 30 days after receipt by both the licensee and the executive director of a notice of cancellation of the bond from the surety. (6) Under the terms of the bond, the surety will become liable on the bond obligation when the licensee fails to perform as guaranteed by the bond. (7) The penal sum of the bond must be in an amount at least equal to the current cost estimate, except as provided in sec.336.803(a)(6) of this title. (8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the licensee and to the executive director. Cancellation may not occur, however, during the 90 days beginning on the date of the receipt of the notice of cancellation by both the licensee and the executive director, as evidenced by the return receipts. If the licensee fails to provide alternate financial assurance within 30 days of the receipt of notice of cancellation, the surety will be required to perform under the terms of the bond. (c) Surety bond guaranteeing performance. (1) A licensee may satisfy the requirements of financial assurance by establishing a surety bond which conforms to paragraphs (2)-(9) of this subsection in addition to the requirements specified in sec.336.803 of this title. (2) The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the United States Department of the Treasury, and licensed in the State of Texas. (3) The wording of the surety bond must be identical to the wording specified in sec.336.806(c) of this title. (4) The licensee who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the executive director. This standby trust must meet the requirements specified in subsection (a) of this section, except that: (A) An originally signed duplicate of the trust agreement must be submitted to the executive director with the surety bond; and (B) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations: (i) payments into the trust fund as specified in subsection (a) of this section; (ii) updating of Schedule A of the trust agreement to show current cost estimates; (iii) annual valuations as required by the trust agreement; and (iv) notices of nonpayment as required by the trust agreement. (5) The bond must guarantee that the licensee will: (A) perform final closure in accordance with the requirements of the license whenever required to do so; or (B) provide alternate financial assurance as specified in this subchapter, and obtain the executive director's written approval of the assurance provided, within 30 days after receipt by both the licensee and the executive director of a notice of cancellation of the bond from the surety. (6) Under the terms of the bond, the surety will become liable on the bond obligation when the licensee fails to perform as guaranteed by the bond. Following a determination that the licensee has failed to perform final closure in accordance with the license, under the terms of the bond the surety will perform such final closure as guaranteed by the bond or will deposit the amount of the penal sum into the standby trust fund. (7) The penal sum of the bond must be in an amount at least equal to the current cost estimate, except as provided in sec.336.803(a)(6) of this title. (8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the licensee and to the executive director. Cancellation may not occur, however, during the 90 days beginning on the date of the receipt of the notice of cancellation by both the licensee and the executive director, as evidenced by the return receipts. If the licensee fails to provide alternate financial assurance within 30 days of the receipt of notice of cancellation, the surety will be required to perform under the terms of the bond. (9) The surety will not be liable for deficiencies in the performance of closure by the licensee after the executive director releases the licensee from the requirements of this subchapter in accordance with sec.336.803(a)(9) of this title. (d) Letter of credit. (1) A licensee may satisfy the requirements of financial assurance by obtaining a letter of credit which conforms to paragraphs (2)-(9) of this subsection in addition to the requirements specified in sec.336.803 of this title. (2) The issuing institution must be an entity which has the authority to issue letters of credit and whose operations are regulated and examined by a federal or state agency. (3) The wording of the letter of credit must be identical to the wording specified in sec.336.806(d) of this title. (4) The licensee who uses a letter of credit to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the executive director will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the executive director. This standby trust fund must meet the requirements of the trust fund specified in subsection (a) of this section, except that: (A) An originally signed duplicate of the trust agreement must be submitted to the executive director with the letter of credit; and (B) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations: (i) payments into the trust fund as specified in subsection (a) of this section; (ii) updating of Schedule A of the trust agreement to show current cost estimates; (iii) annual valuations as required by the trust agreement; and (iv) notices of nonpayment as required by the trust agreement. (5) The letter of credit must be accompanied by a letter from the licensee referring to the letter of credit by number, issuing institution and date, and providing the following information: (A) the license number; (B) name and address of the facility or site; and (C) the amount of funds assured for closure by the letter of credit. (6) The letter of credit must be irrevocable and issued for a period of at least one year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless, at least 90 days before the current expiration date, the issuing institution notifies both the licensee and the executive director by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 90 days will begin on the date when both the licensee and the executive director have received the notice, as evidenced by the return receipts. (7) If the licensee does not establish alternate financial assurance as specified in this subchapter and obtain written approval of such alternate financial assurance from the executive director within 30 days after receipt by both the licensee and the executive director of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the executive director will draw on the letter of credit. The executive director may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 60 days of an extension, the executive director will draw on the letter of credit if the licensee has failed to provide alternate financial assurance as specified in this subchapter and to obtain written approval of such assurance from the executive director. (8) The letter of credit must be issued in an amount at least equal to the current cost estimate, except as provided in sec.336.803(a)(6) of this title. (9) The executive director will return the letter of credit to the issuing institution for termination, in accordance with sec.336.803(a)(9) of this title. (e) Insurance. (1) A licensee may satisfy the requirements of financial assurance by obtaining insurance which conforms to paragraphs (2) - (8) of this subsection in addition to the requirements specified in sec.336.803 of this title, and submitting a certificate of such insurance to the executive director. (2) At a minimum, the insurer must be licensed to transact the business of insurance or eligible to provide insurance as an excess, or surplus lines insurer, in Texas. (3) The wording of the certificate of insurance must be identical to the wording specified in sec.336.806(e) of this title. (4) The insurance policy must be issued for a face amount at least equal to the current financial assurance cost estimate, except as provided in sec.336.803(a)(6) of this title. The term "face amount" means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments. (5) The insurance policy must guarantee that funds will be available whenever closure occurs. The policy shall also guarantee that once final closure begins, the insurer will 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. (6) The licensee must maintain the policy in full force and effect until the executive director consents to termination of the policy by the licensee as specified in sec.336.803(a)(9) of this title. Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a significant violation of these regulations, warranting such remedy as the executive director deems necessary. Such violation will 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. (7) Each policy must contain a provision allowing assignment of the policy to a successor licensee. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused. (8) 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 must, 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 licensee and the executive director. Cancellation, termination, or failure to renew may not occur, however, during the 90 days beginning with the date of receipt of the notice by both the executive director and the licensee, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration: (A) The executive director deems the facility or site abandoned; or (B) The license is terminated, or revoked or a new license is denied; or (C) Closure is ordered by the executive director or a United States district court or other court of competent jurisdiction; or (D) The licensee is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code; or (E) The premium due is paid. (f) Financial test and corporate guarantee for Subchapter F of Chapter 336 of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material). (1) A licensee or parent company of a licensee under Subchapter F of Chapter 336 of this title may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as specified in this subsection, in addition to the requirements specified in sec.336.803 of this title. To pass the test, the parent company must meet the criteria of either paragraph (2) or (3) of this subsection. The licensee must meet the criteria of paragraph (4) of this subsection. (2) The parent company must have: (A) two of the following three ratios: (i) a ratio of total liabilities to net worth less than 2.0; (ii) a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and (iii) a ratio of current assets to current liabilities greater than 1.5; and (B) net working capital and tangible net worth each at least six times the current cost estimate (or prescribed amount if a certification is used); and (C) tangible net worth of at least $10 million; and (D) assets located in the United States amounting to at least 90% of total assets or at least six times the current cost estimates (or prescribed amount if a certification is used). (3) The parent company must have: (A) a current rating for its most recent bond issuance of AAA, AA, A or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and (B) tangible net worth at least six times the sum of the current cost estimates (or prescribed amount if a certification is used); and (C) tangible net worth of at least $10 million; and (D) assets located in United States amounting to at least 90% of total assets or at least six times the current cost estimates (or prescribed amount if a certification is used). (4) The licensee must have: (A) tangible net worth at least 10 times the total current cost estimate (or the current amount required if certification is used) for all closure activities for which the company is responsible as self-guaranteeing licensee and as parent- guarantor; (B) assets located in the United States amounting to at least 90% of total assets or at least 10 times the total current cost estimate (or the current amount required if certification issued) for all closure activities for which the company is responsible as self-guaranteeing licensee and as parent- guarantor; (C) a current rating for its most recent bond issuance of AAA, AA, or A as issued by Standard and Poor's, or Aaa, Aa, A as issued by Moody's; (D) at least one class of equity securities registered under the Security Exchange Act of 1934; and (E) a written guarantee (a written commitment by a corporate officer) which states that the licensee will fund and carry out the required closure activities, or upon issuance of an order by the executive director, the licensee will set up and fund a trust in the amount of the current cost estimates. (5) To demonstrate that it meets the test, the licensee or parent company must submit the following items to the executive director: (A) a letter signed by the parent company's or licensee's chief financial officer and worded identical to the wording specified in sec.336.806(f)(1) or (2), respectively, of this title; and (B) a copy of the independent certified public accountant's report on examination of its financial statements for the latest completed fiscal year; and (C) a special report from its independent certified public accountant stating that: (i) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and (ii) In connection with that procedure, he found such amounts to be in agreement. (6) After the initial submission of items specified in paragraph (5) of this subsection, the licensee or parent company must send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (5) of this subsection. (7) If the licensee or the parent company no longer meets the requirements of paragraph (2), (3) or (4) of this subsection, it must send notice to the executive director of intent to establish alternate financial assurance as specified in this subsection. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the licensee or parent company no longer meets the requirements. The licensee shall provide alternate financial assurance within 120 days after the end of such fiscal year. (8) The executive director may, based on a reasonable belief that the licensee or parent company no longer meets the requirements of paragraph (2), (3) or (4) of this subsection, require reports of financial condition at any time from the licensee or parent company in addition to those specified in paragraph (5) of this subsection. If the executive director finds, on the basis of such reports or other information, that the licensee or parent company no longer meets the requirements of paragraph (2), (3) or (4) of this subsection, the licensee must provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding. (9) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the licensee's or parent company's financial statements. An adverse opinion or disclaimer of opinion will be cause for disallowance. The executive director will evaluate other qualifications on an individual basis. The licensee shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of the disallowance. (10) The licensee may meet the requirements of this section by obtaining a written guarantee, hereafter referred to as "corporate guarantee," from its parent company, hereafter referred to as "guarantor." The guarantor must meet the requirements in paragraphs (1) - (12) of this subsection and must comply with the terms of the corporate guarantee. The wording of the corporate guarantee must be identical to the wording specified in sec.336.806(g) of this title. The corporate guarantee must accompany the items sent to the executive director as specified in paragraph (5) of this subsection. The terms of the corporate guarantee must provide that: (A) If the licensee fails to perform final closure of the facility or site covered by the corporate guarantee in accordance with the license, the guarantor will do so or establish a trust fund as specified in subsection (a) of this section in the name of the licensee. (B) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the licensee and to the executive director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the licensee and the executive director, as evidenced by the return receipts. (C) If the licensee fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the executive director within 90 days after receipt by both the licensee and the executive director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the licensee. (11) Two officers of the licensee and two officers of the guarantor who are authorized to bind the respective entity should sign the corporate guarantee. A copy of such authorization for each persons signing should be attached to the corporate guarantee. The corporate seal should be affixed. (12) The guarantor should certify and demonstrate that it has full authority under the laws of the state of its incorporation, its articles of incorporation and bylaws to enter into this corporate guarantee; and, that the guarantor has full approval from its board of directors to enter into this guarantee. (g) Financial test and corporate guarantee for Subchapter G of Chapter 336 of this title (relating to Licensing Requirements for Source Material (Uranium or Thorium) Recovery and Processing Facilities). (1) A parent company of a licensee under Subchapter G of Chapter 336 of this title may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as specified in this subsection, in addition to the requirements specified in sec.336.803 of this title. To pass the test the parent company must meet the criteria of either paragraph (2) or (3) of this subsection. (2) The parent company must have: (A) two of the following three ratios: (i) a ratio of total liabilities to net worth less than 2.0; (ii) a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and (iii) a ratio of current assets to current liabilities greater than 1.5; and (B) net working capital and tangible net worth each at least six times the current cost estimate; and (C) tangible net worth of at least $20 million; and (D) assets located in the United States amounting to at least 90% of total assets or at least six times the current cost estimates. (3) The parent company must have: (A) a current rating for its most recent bond issuance of AAA, AA, A or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and (B) tangible net worth at least six times the sum of the current cost estimates; and (C) tangible net worth of at least $20 million; and (D) assets located in the United States amounting to at least 90% of total assets or at least six times the current cost estimates. (4) To demonstrate that it meets the test, the parent company must submit the following items to the executive director: (A) a letter signed by the parent company's chief financial officer and worded identical to the wording specified in sec.336.806(h) of this title; and (B) a copy of the independent certified public accountant's report on examination of its financial statements for the latest completed fiscal year; and (C) a special report from its independent certified public accountant stating that: (i) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and (ii) In connection with that procedure, he found such amounts to be in agreement. (5) After the initial submission of items specified in paragraph (4) of this subsection, the licensee or parent company must send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (4) of this subsection. (6) If the parent company no longer meets the requirements of paragraph (2) or (3) of this subsection, he must send notice to the executive director of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the parent company no longer meets the requirements. The licensee shall provide the alternate financial assurance within 120 days after the end of such fiscal year. (7) The executive director may, based on a reasonable belief that the parent company may no longer meet the requirements of paragraph (2) or (3) of this subsection, require reports of financial condition at any time from the parent company in addition to those specified in paragraph (4) of this subsection. If the executive director finds, on the basis of such reports or other information, that the parent company no longer meets the requirements of paragraph (2) or (3) of this subsection, the licensee must provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding. (8) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the parent company's financial statements. An adverse opinion or disclaimer of opinion will be cause for disallowance. The executive director will evaluate other qualifications on an individual basis. The licensee shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of the disallowance. (9) The licensee must obtain a written guarantee, hereafter referred to as "corporate guarantee," from its parent company, hereafter referred to as "guarantor." The guarantor must meet the requirements in paragraphs (1)-(11) of this subsection and must comply with the terms of the corporate guarantee. The wording of the corporate guarantee must be identical to the wording specified in sec.336.806(i) of this title. The corporate guarantee must accompany the items sent to the executive director as specified in paragraph (4) of this subsection. The terms of the corporate guarantee must provide that: (A) If the licensee fails to perform final closure of the facility or site covered by the corporate guarantee in accordance with the license, the guarantor will do so or establish a trust fund as specified in subsection (a) of this section in the name of the licensee. (B) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the licensee and to the executive director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the licensee and the executive director, as evidenced by the return receipts. (C) If the licensee fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the executive director within 90 days after receipt by both the licensee and the executive director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the licensee. (10) Two officers of the licensee and two officers of the guarantor who are authorized to bind the respective entity should sign the corporate guarantee. A copy of such authorization for each persons signing should be attached to the corporate guarantee. The corporate seal should be affixed. (11) The guarantor should certify and demonstrate that it has full authority under the laws of the state of its incorporation, its articles of incorporation and bylaws to enter into this corporate guarantee; and, that the guarantor has full approval from its board of directors to enter into this guarantee. (h) External sinking fund. (1) The licensee may satisfy the requirements of financial assurance by establishing an external sinking fund. (2) An external sinking fund is an account segregated from the licensee's assets and outside the licensee's administrative control. (3) An external sinking fund, such as a trust, is combined with a financial assurance mechanism as specified in subsections (b)-(e) of this section. (4) The external sinking fund is established and maintained by setting aside funds periodically. Deposits are made at least annually. (5) The value of the external sinking fund and the combined financial assurance mechanism, is equal to the current cost estimate. (6) As the value of the sinking fund increases, the value of the combined financial assurance mechanism decreases. When the external sinking fund is equal to the current cost estimate, the combined financial assurance mechanism will no longer be required to be maintained. sec.336.807.Appendix A. Wording of Financial Assurance Instruments. (a) Trusts. (1) Trust agreement. Figure 1: 30 TAC sec.336.807(a)(1) (2) Certification of acknowledgment. The following is an example of the certification of acknowledgment that must accompany the trust agreement. Figure 2: 30 TAC sec.336.807(a)(2) (b) Financial guarantee bond. Figure 3: 30 TAC sec.336.807(b) (c) Performance guarantee bond. Figure 4: sec.336.807(c) (d) Irrevocable standby letter of credit. Figure 5: 30 TAC sec.336.807(d) (e) Certificate of insurance for closure. Figure 6: 30 TAC sec.336.807(e) (f) Letter from chief financial officer. (1) Parent company. Figure 7: 30 TAC sec.336.807(f)(1) (2) Owner or operator. Figure 8: 30 TAC sec.336.807(f)(2) (g) Corporate guarantee. Figure 9: 30 TAC sec.336.807(g) (h) Letter from chief financial officer. Figure 10: 30 TAC sec.336.807(h) (i) Corporate guarantee. Figure 11: 30 TAC sec.336.807(i) 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. Issued in Austin, Texas, on May 16, 1997. TRD-9706532 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: June 5, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1970 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART X. Texas Water Development Board CHAPTER 371.Drinking Water State Revolving Fund Introductory Provisions 31 TAC sec.371.5 The Texas Water Development Board adopts new sec.371.5, Memorandum of Understanding between the Texas Water Development Board and the Texas Natural Resource Conservation Commission, without changes to the proposed text as published in the April 4, 1997 Texas Register (22 TexReg 3285) and will not be republished. The new section sets out the respective duties and responsibilities of the Board and the Commission in administering the Drinking Water State Resolving Fund (DWSRF) program. No comments were received regarding adoption of the new section. The new section is adopted under Texas Water Code, sec.sec.6.101, 6.104, and 15.605 which authorizes the Board to adopt rules to carry out the powers and duties of the Board, under the Texas Water Code, including Chapter 15, 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. Issued in Austin, Texas, on May 15, 1997. TRD-9706395 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: June 4, 1997 Proposal publication date: April 4, 1997 For further information, please call: (512) 463-7981 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART XIX. Texas Department of Protective and Regulatory Services CHAPTER 700.Child Protective Services SUBCHAPTER O.Foster and Adoptive Home Development 40 TAC sec.sec.700.1501, 700.502, 700.1505 The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.700.1501, 700.1502, and 700.1505 in its Child Protective Services chapter. The amendments to sec.700.1501 and sec.700.1502 are adopted with changes to the proposed text as published in the March 14, 1997, issue of the Texas Register (22 TexReg 2733). The amendment to sec.700.1505 is adopted without changes to the proposed text and will not be republished. The Board of TDPRS determined not to adopt proposed paragraph (4) in sec.700.1502 and also the proposal in paragraph sec.700.1502(15) concerning criminal history checks for persons who have child care responsibilities. These items may be reproposed at a later date. As a result of not adopting proposed paragraph (4), paragraphs (5)-(15) in sec.700.1502 have been renumbered (4)-(14). As a result of the renumbering, the reference in sec.700.1501(a) to sec.700.1502(14) is changed to sec.700.1502(13). The justification for the amendments is to update and clarify policy, update best practice standards, and update the philosophy of mutual assessment with foster and adoptive families. The amendments will function by providing public access to correct information regarding foster and adoptive home development. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Family Code, Title 5, Chapters 261 and 264, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. In addition, the amendments are adopted under Public Law Number 96-272, Title I, which authorizes the department to administer foster-care and adoption assistance programs provided for under the Social Security Act, Title IV-E. The amendments are also adopted under the Human Resources Code (HRC), Chapter 40, which describes the services authorized to be provided by the Texas Department of Protective and Regulatory Services; and authorizes the department to enter into agreements with federal, state, or other public or private agencies or individuals to accomplish the purposes of the programs authorized by the HRC; and grants authority to contract to that Department. The amendments implement the HRC, Chapter 40, which authorizes the department to enter into agreements with federal, state, or other public or private agencies or individuals to accomplish the purposes of the programs authorized by the HRC and which authorizes the department to enter into contracts as necessary to perform any of its powers or duties. sec.700.1501.Decision on Foster Home Applications. (a) To be accepted as a foster home, the home must meet the department's minimum standards, and the Texas Department of Protective and Regulatory Services must have determined, through the foster-home screening and study, that the parents can provide adequate care for foster children in the department's managing conservatorship and that they will follow the department's policies for discipline of these children as specified in sec.700.1502(13) of this title (relating to Adoptive Home Screening). (b) Foster parents and foster parent recruits and applicants have a right to an administrative review of the decision to not approve their application to be foster parents or to close the foster home. sec. 700.1502.Adoptive Home Screening. The Texas Department of Protective and Regulatory Services' (TDPRS') policies for screening and approval of adoptive homes are as follows: (1) Age. All applicants must be at least 21 years of age or older. Age is evaluated in relation to life expectancy and maturity. The applicants' life expectancy must be long enough for the applicants to be able to raise the child to adulthood. Applicants who are nearing retirement age usually are only considered and approved for adolescent children. (2) Marriage. If married, both spouses must apply and their license or declaration of marriage must be recorded. If separated and not divorced, adoptive applicants must finalize the divorce prior to being approved as an adoptive parent. (3) Length of marriage. Couples must be married at least two years before TDPRS accepts an adoption application, unless the following exception is made. Exception: If the couple cohabitated for two years prior to the marriage or obtained a civil registration of common law marriage for the length of time required, the worker should assess the impact of the marriage on the stability of the couple's relationship to determine the appropriateness of making an exception. (4) Single parents. Single parents are evaluated in terms of their ability to nurture and provide for a child without the assistance of a spouse. Placement with a single parent is considered the best plan for some children. (5) Fertility. Fertility assessments are required only if TDPRS believes the couple needs to know more about their fertility before they adopt a child. The couple's fertility is important only in relation to resolution of their feelings about their infertility and their ability to accept and parent a child not born to them. (6) Disabilities. Disabilities are evaluated in relation to the applicants' adjustment to the disability and the limits, if any, the disability imposes on the applicants' ability to care for a child. (7) Residence. Adoptive home studies are started only if the applicants will live in the community long enough for PRS to complete a study and make a placement. Exceptions are made in unusual situations which involve a child with special needs if another licensed child placing agency in the new community agrees to complete the adoption services. (8) Adoption by foster families. Foster families are evaluated using the same criteria applied to any other adoptive applicants. The home study must be updated to meet the minimum standards for adoptive homes. The evaluation focuses on the family's demon- strated skill and ability to parent the children TDPRS has placed in the family's care and determines the attachment the family and the child have to each other. (9) Family's ability to help the child. Applicants are evaluated based on their ability to: (A) help the child: (i) develop a sense of identity consistent with the child's racial and ethnic background; and (ii) learn to cope with difficulties that may arise from racial or ethnic differences, both within and outside the adoptive family; and (B) develop a plan for helping the child manage the issues described above as the child reaches developmental milestones. (10) Finances. Although there are no specific income requirements, the applicants must have enough income, and be able to manage it well enough, to meet the child's basic material needs. Income is also evaluated in terms of past and present management. (11) Health. The applicants' physical and mental health must be sufficient to assume parenting responsibilities. Physical and mental conditions are considered to protect the child against another loss of parenting through death, incapacity, or repetition of abuse or neglect. (12) Religion. There are no specific religious requirements. Applicants are evaluated based on: (A) Their willingness to respect and encourage a child's religious affiliation. (B) Their willingness to provide a child opportunity for religious, spiritual, and ethical development. (C) The health protection they plan to give a child if their religious beliefs prohibit certain medical treatment. (13) Discipline. Physical discipline may not be used on a child in any TDPRS foster or adoptive home prior to consummation. TDPRS evaluates applicants based on their willingness and ability to: (A) recognize and respect differences in children, especially children who have been abused or neglected; (B) employ methods of discipline that suit the particular needs and circumstances of each child; and (C) employ methods of discipline that conform to the policies specified in sec.700.1340(c) of this title (relating to Special Issues). (14) Criminal History. (A) Criminal history checks are required for all persons 18 years old and older who live in the applicant's home. Criminal history is evaluated in terms of the potential danger it presents to placement, rearing, and protection of children. Persons who have been convicted of offenses against the person, offenses against the family, public indecency, or a felony violation of the Texas Controlled Substances Act must submit proof of rehabil- itation to TDPRS for their application to be considered further. (B) TDPRS staff may provide a copy of the criminal records check received from the Texas Department of Public Safety or local law enforcement to the court when the court will accept the material in lieu of ordering adoptive parents to provide their own criminal records check to the court. 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. Issued in Austin, Texas, on May 19, 1997. TRD-9706597 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: June 15, 1997 Proposal publication date: March 14, 1997 For further information, please call: (512) 438-3765