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RULE §675.23Importation of Waste from a Nonparty Generator for Disposal

(a) It is the policy of the Commission that any financial savings and other benefits generated by importation accrue to the benefit of the party states. It is also the policy of the Commission that it will not accept the importation of low-level radioactive waste of international origin.

(b) Vermont's disposal capacity reserve is 20% of the Compact Facility maximum volume stated in the Radioactive Materials License dated September 10, 2009, as well as 20% of any additional maximum volume approved in a later license, and this capacity shall not be reduced by nonparty waste. The Compact Facility's disposal capacity shall be established at least every 5 years by a report of the Commission. The Commission's report shall be based on relevant information including without limitation the annual report by the host State on the status of the facility, including projections of the facility's anticipated future capacity, and remaining radionuclide-specific radioactivity to comply with the Compact Facility Radioactive Materials License. In view of the requirements of Texas Health and Safety Code (THSC), §401.207, as amended by Senate Bill 1504, 82nd Texas Legislature, 2011, the Commission shall revisit the terms of this subsection no later than one year from the effective date of the first amendments to this rule adopted in calendar year 2012. In the meantime, the Commission will utilize the volumetric and curie limits set out in THSC, §401.207(b), (e), (e-1) (if applicable) and (f), as guidelines with respect to authorizing the import of waste.

(c) If a state or states in addition to Texas and Vermont becomes a member of the Compact, the waste from that state or states shall be deposited in space reserved for nonparty compact waste, to the extent such space is available at the time the waste is to be deposited; in no event shall waste from that state be deposited in space reserved for waste generated in Texas or Vermont.

(d) No application for an agreement to import low-level radioactive waste for disposal shall be granted by the Commission unless:

  (1) The Compact Facility operator has provided to the Commission a recommended total annual volume to be imported for disposal to the Compact Facility and certified pursuant to THSC, §401.207(b) that the disposal of imported Class A, Class B, or Class C low-level radioactive waste will not reduce capacity for Party State-generated waste, based on the currently licensed volume and activity. Any operator of a low-level radioactive waste disposal compact facility, as defined in §2.01 of THSC, §403.006, must in good faith and with commercially reasonable efforts apply for all necessary permits and licenses to maintain the facility in continual operation; and

  (2) The agreement contains a provision acknowledging the right of the Commission to audit or cause to be audited compliance with the agreement.

(e) Agreement Required. No person shall import any low-level radioactive waste for disposal that was generated in a non-party state unless the Commission has entered into an agreement for the importation of that waste pursuant to this rule. No radioactive waste of international origin shall be imported into the Compact Facility for disposal. Violations of this subsection may result in prohibiting the violator from disposing of low-level radioactive waste in the Compact Facility, or in the imposition of penalty surcharges on shipments to the facility, as determined by the Commission.

(f) Form of Import Application and Import Agreement. When an applicant submits the application form prescribed by Annex A in paragraph (1) of this subsection, the applicant shall also submit a proposed agreement that addresses all of the terms set forth in the Term Sheet which is Annex B in paragraph (2) of this subsection.

  (1) Annex A.

Attached Graphic

  (2) Annex B.

Attached Graphic

(g) Fee for Proposed Importation Agreements. The Commission shall consider no later than one year from the effective date of the first amendments to this rule adopted in calendar year 2012 whether to impose fees with respect to applications and/ or agreements to import waste.

(h) Notice and Timing of Agreement. A person who is a generator, a broker acting on behalf of one or more small generators, or an authorized representative of the Department of Defense shall file an application and a proposed import agreement with the Commission by electronic and certified mail and must receive approval by the Commission prior to the shipment date, and:

  (1) The proposed import agreement shall be accompanied by a certification by the applicant that the waste acceptance criteria promulgated by the Texas Commission on Environmental Quality (TCEQ) will be met for the proposed waste importation;

  (2) The applicant shall deliver to the Commission, Compact Facility operator and TCEQ a copy of the application and the proposed import agreement (and any supplements or amendments thereto) by electronic mail at the time of filing with the Commission, and a copy shall also be delivered to the Compact facility and the TCEQ by certified mail;

  (3) Proposed import agreements received by the Commission during any calendar month may be processed in aggregate at the beginning of the following calendar month. The date of receipt of proposed import agreements shall be deemed the first business day of the following calendar month. Within seven days of the date of receipt, the Commission shall transmit notice of the receipt of the application and the proposed import agreement to the Texas Register for publication according to the schedule of the Texas Register and shall publish the application and proposed import agreement on the Commission's Web site; and

  (4) Comments on the proposed import application may be submitted to the Commission by any person by electronic or certified mail during the 25-day period following the earlier of the date of posting and the date of transmittal as specified in paragraph (3) of this subsection.

(i) Review of Proposed Import Agreement. The Commission, a committee of the commission, or other persons employed or retained by the Commission shall promptly, but not sooner than 25 days or more than 60 days after the earlier of the dates the application and proposed import agreement were posted on the Commission's Web site and the date of transmittal to the Texas Register, review the application and proposed import agreement utilizing the following factors:

  (1) The characteristics of the waste proposed for importation including (but not limited to) volume, type, physical form, total radioactivity and certain radionuclide-specific activities subject to subsection (d)(1) of this section;

  (2) The policy and purpose of the Compact as set out in Public Law 105-236, a federal law known as the "The Texas Low-Level Radioactive Waste Disposal Compact Consent Act";

  (3) The economic impact, including both potential benefits and liabilities, on the Host County, the Host State, other party states, the in-compact generators, and the Compact Facility operator of entering into the import agreement;

  (4) Whether the Compact Facility Operator has obtained authorization from TCEQ to dispose of the proposed waste;

  (5) The effect of the Commission's approval of the proposed import agreement on the Compact Facility's total annual volume and radionuclide-specific activity;

  (6) The existence of unresolved violations pending against the applicant with any other regulatory agency with jurisdiction to regulate radioactive material, and any comments by the regulatory agency with which the petitioner has unresolved violations;

  (7) Any unresolved violation, complaint, unpaid fees, or past due report that the applicant has with the Commission;

  (8) Any relevant comments received from the Compact Facility operator, in-compact generators, the applicant, the Host County, the Host State, other party states, interested state or federal regulatory agencies, or the public;

  (9) The authorization of an applicant to export (if applicable);

  (10) The projected effect on the rates to be charged for disposal of party state compact waste;

  (11) Whether by acceptance of the waste for disposal, the Compact Facility will remain below the applicable annual and total volume and curie capacity disposal limits set forth in THSC, §401.207 (b), (e), (e-1) (if applicable), and (f);

  (12) To the extent applicable, compliance with the rules related to commingling adopted by TCEQ in coordination with the Commission pursuant to THSC, §401.207(k); and

  (13) Any other factor the Commission deems relevant to carry out the policy and purpose of the Compact.

(j) Decision by the Commission. Within 120 days of receipt, the Commission shall take one of the following actions on the application for a proposed importation agreement, in whole or in part: approve the proposed agreement; deny the proposed agreement; approve the proposed agreement subject to terms and conditions as determined by the Commission; or request additional information needed for a decision. The Commission's decision to approve, approve in whole or in part, deny, or approve subject to terms and conditions is final and unappealable. However, after the Commission has acted on an applicant's proposed importation agreement, an applicant immediately may file another application. The Commission may deny the application for any of the reasons set out as follows:

  (1) Lack of current or anticipated capacity beyond that required by party state generators;

  (2) The waste destined for the facility is not in accord with the license issued by TCEQ to the Compact Facility;

  (3) The shipment contains waste of international origin as defined in THSC, §401.2005(9); or

  (4) Any other relevant issue.

(k) Terms and Conditions. The Commission may impose any terms or conditions on the import agreement reasonably related to furthering the policy and purpose of the Compact including, but not limited to, the policies referenced in subsection (a) of this section.

(l) Importation Agreement Duration, Amendment, Revocation, Indemnification, Reporting, Assignment and Fees.

  (1) An importation agreement shall remain in effect for the term specified in the agreement and shall remain in effect for that term unless amended by agreement of the Commission and the applicant, or revoked by the Commission prior to importation. A condition of every importation agreement shall be that any generator of low-level radioactive waste must agree to comply with §8.03 of the Compact. In addition, every importation agreement approved by the Commission shall include a condition requiring the Compact Facility operator to receive written certification from the TCEQ that the waste is authorized for disposal under the license prior to the acceptance of waste under the importation agreement.

  (2) The Commission may revoke or amend an agreement, on its own motion or in response to an application by the agreement holder. The Commission may provide a reasonable time to allow the agreement holder and the Compact Facility operator to make the changes necessary to comply with any additional requirements imposed by the Commission. No imports shall be allowed until the appropriate changes, based on additional requirements imposed by the Commission, are implemented.

  (3) An import agreement is not assignable or transferable to any other person.

  (4) The Commission continues to consider the policy issues related to assessment of fees for the importation of low-level radioactive waste based on volume or activity of the waste. Upon conclusion of consideration of this issue, the Commission may provide for such fees in this section.

(m) The Compact Facility operator shall file with the Commission a Quarterly Import Report, no later than 30 days after the end of each calendar quarter, describing the imported waste that was disposed and stored under the import agreement during the quarter by the Compact Facility, including the physical, radiological and chemical properties of the waste consistent with the identification required by the Compact Waste Facility license. Each Quarterly Import Report will provide the identity of the generator, the manifested volume and activity of each imported class of waste (A, B, and C, or in the case of waste imported for management or processing, greater than Class C), the state or United States Territory of origin, and the date(s) of waste disposal, if applicable. The Quarterly Report shall provide this information for the imported waste disposed of during the most recent quarter, as well as the cumulative information for imported waste disposed of in prior quarters under this Agreement. The Quarterly Import Reports shall be posted on the Commission's Web site.

(n) Small Generators. A Small Generator may use a broker to file import applications and proposed agreements with the Commission on its behalf. Such applications and proposed agreements shall comply in all respects with this section.

(o) Definitions.

  (1) Terms used in this subchapter shall have the meaning ascribed to them in the Compact and in THSC, §401.2005.

  (2) Where time requirements are specified in "days," that shall be in calendar days unless otherwise specified.

  (3) "Small Generator" means a generator of low-level radioactive waste who generates no more than 100 cubic feet of such waste per year, provided that the curie level of such waste is minimal as compared to the Compact Facility's license.

  (4) "Commission" means the Texas Low-Level Radioactive Waste Disposal Compact Commission.

  (5) "TCEQ" means the Texas Commission on Environmental Quality.

Source Note: The provisions of this §675.23 adopted to be effective February 8, 2011, 36 TexReg 571; amended to be effective May 2, 2012, 37 TexReg 3177

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