1

 Section 401.205(b)(2) of the State statute requires that the conveyance of the land to the

Federal government occur at decommissioning pursuant to Subtitle D of the NWPA. Section

401.205(b)(4) of the State statute also requires that the licensee, before accepting Federal waste,

submit an agreement signed by an official of the Federal government, stating that the Federal

government will assume all title and interest in land and buildings together with requisite rights of access

to the land and buildings pursuant to Subtitle D of the NWPA

October 2, 2003

Susan Jablonski, Technical Advisor

Office of Permitting, Remediation and Registration 

Texas Commission on Environmental Quality

 Resource Conservation

MC122

P.O. Box 13087

Austin, TX 78711-3087

Dear Ms. Jablonski

We have reviewed the proposed revisions and additions to the Texas Low-Level Radioactive

Waste Disposal Rules in chapters of Title 30, Texas Administrative Code (TAC), received by

our office electronically on August 8, 2003. These regulations were reviewed by comparison to

the equivalent Nuclear Regulatory Commission (NRC) Regulations in 10 CFR 20 and 61. 

As a result of our review, we have enclosed nine comments and one editorial suggestion. The

most significant of these comments involves the proposed regulation as it relates to Federal

facility waste and governmental ownership of disposed Federal facility waste and the

associated land and buildings. The proposed regulation does not meet the essential objectives

of 10 CFR 61.14 which requires Federal or State ownership of land before issuance of a

license. Section 336.734 provides that disposal of waste received from other persons may be

permitted only on land owned in fee by the State or Federal government. 30 TAC 336.909(2)

provides for a commitment from the Federal government, before the licensee can accept

Federal facility waste, to assume all right, title, and interest in land and buildings for the disposal

of Federal facility waste, together with the rights of access to the land and buildings. However,

30 TAC 336.909(3) provides the licensee convey to the Federal government the right, title, and

interest in the Federal facility waste and associated land and property before license

termination rather than before license issuance. 

In addition, this regulation is based on the recent Texas statute (Section 401.205(b) of Texas’s

Health and Safety Code) that requires the commitment for future conveyance and actual

conveyance to be pursuant to Subtitle D of the Nuclear Waste Policy Act (NWPA) which is

Section 151(b) of the NWPA.1

 We read the Texas legislation as a direction that the State of

Texas not own right, title and interest in Federal waste or the land and facility used for disposal

of Federal waste. Thus, as indicated in the preamble to the proposed regulations, an

exemption from the requirement in 30 TAC 336.734 is needed to allow the licensing of a facility

to dispose of Federal waste. (Please comment if our understanding is not correct.) In our view,

there is a substantial question as to whether the Federal Government can accept title of waste

 at a facility licensed by Texas, under Section 151(b) of the NWPA. Our view is based on a 
Ms. Jablonski -2- October 2, 2003

number of reasons including: a) Section 151(b) does not appear to provide for the conveyance

 to the Secretary of Energy until termination of an NRC license (for the instant case, Texas

would be the licensing authority, not the NRC); b) Section 151(b) requires that the NRC, after

finding that its license termination requirements were met, make a finding that Federal

ownership is necessary or desirable to protect the public health and safety and the

environment, a finding NRC would not make for a Texas facility since NRC has discontinued its

regulatory authority in Texas under the State Agreement, pursuant to Section 274 of the Atomic

Energy Act; c) even if Section 151(b) were applicable in this case, the provision contemplates a

post-closure determination, not a pre-operation prediction that license termination requirements

have been met and that Federal ownership and management of the site is necessary or

desirable, in order to protect the public health and safety and the environment; and d) Section

151(b) does not obligate the Secretary to accept title even if NRC makes the required findings. 

We also believe, a radiation control program that would rely on Section 151 (b) for land

disposition, as a part of the initial licensing process, could raise potential questions on overall

program adequacy given the determinations required by Section 151 (b) (i.e. that transfer to the

Federal government is necessary to protect public health and safety and the environment.) 

We would appreciate a final amended version of your rules showing the location of any

changes made in response to our comments. If there are any comments which the State

believes are in error, the State should identify the section of their regulations that addresses the

comment or meets the designated compatibility category. Please note that we have limited our

review to regulations required for compatibility or health and safety.

If you have any questions regarding the comments, the compatibility and health and safety

categories, or any of the NRC regulations used in the review, please contact me, or John Zabko

of my staff at (301)415-2308 or JGZ@NRC.GOV.

 Sincerely,

 

\RA By P.H. Lohaus\

 Paul H. Lohaus, Director

Office of State and Tribal Programs

Enclosures:

As stated
Ms. Jablonski -2- October 2, 2003

number of reasons including: a) Section 151(b) does not appear to provide for the conveyance

to the Secretary of Energy until termination of an NRC license (for the instant case, Texas

would be the licensing authority, not the NRC); b) Section 151(b) requires that the NRC, after

finding that its license termination requirements were met, make a finding that Federal

ownership is necessary or desirable to protect the public health and safety and the

environment, a finding NRC would not make for a Texas facility since NRC has discontinued its

regulatory authority in Texas under the State Agreement, pursuant to Section 274 of the Atomic

Energy Act; c) even if Section 151(b) were applicable in this case, the provision contemplates a

post-closure determination, not a pre-operation prediction that license termination requirements

have been met and that Federal ownership and management of the site is necessary or

desirable, in order to protect the public health and safety and the environment; and d) Section

151(b) does not obligate the Secretary to accept title even if NRC makes the required findings. 

We also believe, a radiation control program that would rely on Section 151 (b) for land

disposition, as a part of the initial licensing process, could raise potential questions on overall

program adequacy given the determinations required by Section 151 (b) (i.e. that transfer to the

Federal government is necessary to protect public health and safety and the environment.) 

We would appreciate a final amended version of your rules showing the location of any

changes made in response to our comments. If there are any comments which the State

believes are in error, the State should identify the section of their regulations that addresses the

comment or meets the designated compatibility category. Please note that we have limited our

review to regulations required for compatibility or health and safety.

If you have any questions regarding the comments, the compatibility and health and safety

categories, or any of the NRC regulations used in the review, please contact me, or John Zabko

of my staff at (301)415-2308 or JGZ@NRC.GOV.

 Sincerely,

 

\RA By PH Lohaus\

 Paul H. Lohaus, Director

Office of State and Tribal Programs

Enclosures: As stated

Distribution:

DIR RF [3-190] DCD (SP08) PLohaus

PDR (YES_) BUsilton JMyers, ASPO

Texas File Response to Incoming Document: ML030220130

DOCUMENT NAME: C:\ORPCheckout\FileNET\ML032760041.wpd

To receive a copy of this document, indicate in the box:"C" = Copy without attachment/enclosure "E" = Copy with attachment/enclosure"N" = No copy

OFFICE RSAO/STP STP OGC NMSS STP

NAME PLarkins PMcGrady-Finneran for JZabko STreby LKokajko PLohaus

DATE 10/01/ 03* 10/02/03* 10/02/03* 10/02/03* 10/02/03*

ML032760041 OFFICIAL RECORD COPY
3

COMMENTS ON PROPOSED TEXAS LOW LEVEL WASTE REGULATIONS

AGAINST COMPATIBILITY AND HEALTH AND SAFETY CATEGORIES

STATE

 SECTION

NRC SECTION CATEGORY SUBJECT and COMMENTS

1 Section

401.205(b) of

Texas’s Health

and Safety

Code and 

336.734

61.14 H&S Institutional Information

The proposed regulation does not meet the

essential objectives of 10 CFR 61.14 which

requires Federal or State ownership of land before

issuance of a license. In addition, this regulation is

based on the recent Texas statute (section

401.205(b) of Texas’s Health and Safety Code) that

requires the commitment for future conveyance

and actual conveyance to be pursuant to Subtitle D

of the Nuclear waste Policy Act (NWPA) which is

section 151(b) of the NWPA. It does not appear

that the Federal government can commit in

advance to accept title of waste at a facility

licensed by Texas under section 151(b) of the

NWPA, for reasons described in the cover letter.

The State needs to provide a mechanism that

would enable the existing regulations to provide for

Federal or State land ownership to be in effect for

that part of the facility that would be accepting

Federal waste before issuance of a license.

2 37.9045 (a)(5),

37.9050 (a)

61.62(e), (f), and 

(g)

H&S Funding For Disposal Site Closure and

Stabilization

The Texas regulation at 37.9045(a)(5) provides for

the financial assurance provider to pay the face

amount of the financial assurance if the owner

does not obtain replacement assurance within the

required time frame. However, this is not

addressed in the context of insurance as part of

section 37.9050(f). The certificate of insurance

requirements in 37.9052 are silent on this issue.

The regulations should require that the insurance

company must agree to this term in the insurance

policy to be compatible with 10 CFR 61.62(f)

The State needs to amend the language in the

certificate of insurance to replace the terms

prescribed in section “37.9050(f)” with

“37.9045(a)(5) and 37.9050(f)” in the three places it

appears in the certificate.
STATE

 SECTION

NRC SECTION CATEGORY SUBJECT and COMMENTS

4

3 3336.703 61.7 H&S Concepts

Section 336.703 states that the State proposes to

incorporate 10 CFR 61.7 into its regulations. 

However, the actual wording of the proposed

regulation only provides that the applicant consider

the provisions of section 61.7. Section 61.7 is a

Compatibility Category H&S. “Consideration” is not

equivalent to adopting it by incorporation. 

The State needs to clarify this section by stating in

section 336.703 that “the concepts and

requirements of 10 FR 61.7 guide the application of

the regulations in Part 336.”

4 37.9045 (a) (5)

& (6)

61.62 H&S Funding For Disposal Site Closure and

Stabilization

The State is using a perpetual care fund rather than

stand by trusts. This raises an issue if the state

requires legislative approval each time it seeks to

expend funds from this account which is described

as a general revenue fund. The State may need to

consider appropriation authority, such as multi-year

spending authority, to ensure that these funds are

available when needed. 

The State should define the process for accessing

these funds. 

5 37.737 61.63 (b) H&S Financial Assurance for Institutional Controls

The State does not require the licensee to submit

to the regulatory body changes made in its

arrangements for institutional control. The State

rule is less restrictive than NRC regulations in this

regard. 

The State rule needs to be revised to include this

requirement.
STATE

 SECTION

NRC SECTION CATEGORY SUBJECT and COMMENTS

5

6 336.808 61.50 (a) (4) H&S Disposal site suitability requirements for land

disposal

Section 336.808 allows an owner to submit an

application if the applicant does not have fee

simple title to both surface and subsurface estates. 

Specifically, the proposed regulation provides that

if an applicant cannot acquire mineral rights the

applicant to the “extent permissible under federal

law” may request an exemption if there is a surface

use agreement that restricts mineral rights

including slant drilling and subsurface mining to the

extent necessary to prevent intrusion into the

disposal facility. It is not clear what the phrase

“extent permissible under Federal law means.”

The State needs to more specifically define the

phrase “extent permissible under Federal law” to

ensure its use is clear in the regulation.

7 336.808 61.50 (a) (4) H&S Disposal site suitability requirements for land

disposal

The State uses the term “natural resources” not

“mineral resources.” It is not clear that the State

intends to have a common meaning for these

terms.

The State should clarify in its preamble that mineral

resources is intended to be read broadly to

encompass “natural resources” the term used

in.10 CFR 61.50 (a)(4).

8 336.808 61.50 H&S Disposal Site Suitability Requirements for Land

Disposal

The exemption for the requirements under 336.5

does not state when the exemption is effective.

The wording of the rule and preamble should

provide that the exemption for acquiring

mineral/natural resources is not effective until after

the surface agreement is entered into. 
STATE

 SECTION

NRC SECTION CATEGORY SUBJECT and COMMENTS

6

9 Texas Statute

HB1567

401.205 and

Section

336.2 (49)

Section 3 (b)(2) of

the Low Level

Waste Policy Act

(LLWPA)

B Definitions

Section 336.2(49) defines “Federal Facility Waste”

as Low Level Waste (LLW) which is the

responsibility of the Federal government under the

LLWPA. This means that it includes Greater than

Class C Waste (GTCC) waste under section

3(b)(1) (D) of the LLWPA. Thus, Texas is providing

that Texas will regulate the disposal of GTCC

waste. Section 3(b)(2) of the LLWPA provides that

GTCC that results from activities licensed by the

NRC shall be disposed of in a facility licensed by

the NRC. Texas cannot regulate the disposal of

such GTCC waste.

The State needs to alter its definition to exclude

GTCC that results from activities of NRC licensees

to meet compatibility.
7

EDITORIAL SUGGESTIONS

1. In 336.808 the reference to “61.5(a)(4)” should be to” 61.50(a)(4)”.