SECTION 675.23. Importation of Waste from a Non-Party Generator for Disposal

(a) It is the policy of the Commission to:

(1) promote the health, safety, and welfare of the citizens and the environment of Texas and Vermont;

(2) limit the number of facilities needed to effectively, efficiently, and economically manage low-level radioactive waste;

(3) distribute the costs, benefits, and obligations among the party states; and

(4) refuse to allow the importation of low-level radioactive waste of international origin for disposal at the Compact Facility.

(b) Vermont's disposal capacity reserve is 20% of the Compact Facility maximum volume as stated in the Compact, and this capacity shall not be reduced by non-party waste. The Commission will utilize the volumetric and curie limits set out in Texas Health and Safety Code (THSC), §401.207, as guidelines with respect to authorizing the importation of waste.

(c) If any state other than Texas or Vermont becomes a member of the Compact in accordance with Article VII of the Compact, the waste from that state or states shall be deposited in space reserved for non-party 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) 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 section. 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.

(e) Form of Import Application and Terms of Import Agreement. Annex A in paragraph (1) of this subsection sets out the form that must be completed by an applicant to import low-level radioactive waste. The form will also be posted on the Commission's website and may contain minor modifications. The act of submitting an application means that the applicant is willing to enter into an agreement with the Commission containing at a minimum the terms set forth in the Term Sheet which is Annex B in paragraph (2) of this subsection.

(1) Annex A.

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(2) Annex B.

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(f) Submission of an Application for an Import Agreement. A person who is a generator, a broker acting on behalf of one or more small quantity generators, or an authorized representative of the Department of Defense shall submit an application to the Commission by electronic mail; an additional copy of the application must also be sent to the Commission through the United Parcel Service (UPS) or FedEx delivery service. The applicant may not ship any waste for disposal under the importation agreement sought until the Commission has formally elected to enter into an agreement with the applicant and both parties have executed the agreement. In addition, the applicant shall:

(1) certify that the waste acceptance criteria promulgated by the Texas Commission on Environmental Quality (TCEQ) will be met for the proposed waste importation; and

(2) deliver to the Compact Facility Operator and TCEQ a copy of the application (and any supplements or amendments thereto) by electronic mail at the same time the applicant submits the application to the Commission. The applicant must also send a hard copy of the application to the Compact Facility Operator and TCEQ through the UPS or FedEx delivery service.

(g) Notice of Applications for Import Agreements. All applications for import agreements will be posted to the Commission's website within five business days of their submission.

(h) Comments on Applications for Import Agreements. Any person may submit comments on an application for an import agreement by electronic mail or by use of the UPS or FedEx delivery service after the application is posted on the Commission's website. The Commission will consider all comments received at least one week before the meeting at which it considers action on the application. The Commission may, but shall not be bound to, consider comments submitted less than one week before such a meeting.

(i) Review of Applications for Import Agreements. The Commission, a committee of the Commission, or other persons employed or retained by the Commission shall, after the posting of the application for an import agreement on the Commission's website, review the application for an import agreement utilizing the following factors:

(1) The volume, type, physical form, and total radioactivity of the waste proposed for importation;

(2) The policy and purpose of the Compact, as set out in Public Law 105-236, a federal law known as the "Texas Low-Level Radioactive Waste Disposal Compact Consent Act"; in THSC, §403.006, the Texas Low-Level Radioactive Waste Disposal Compact; and 10 V.S.A. §7069, the Texas Low-Level Radioactive Waste Disposal Compact;

(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;

(6) The existence of unresolved violations associated with radioactive waste receipt, storage, handling, management, processing, or transportation 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 applicant 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 any person;

(9) The generator of the waste and any necessary authorization of an applicant to export;

(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;

(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. No earlier than 35 days after an application is posted and no later than 100 days after it is received, 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 in whole or in part, deny, or approve subject to terms and conditions is final without the filing of a motion for rehearing. However, after the Commission has acted on an applicant's proposed importation agreement, an applicant immediately may file another application. The Commission may deny an application for any of the following reasons:

(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 potentially 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 include any terms or conditions in 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, and Assignment.

(1) An importation agreement shall remain in effect for the term specified in the agreement, which term shall end on August 31 of the fiscal year for which the agreement is approved. The importation agreement shall remain in effect as approved 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. When the Commission amends an importation agreement on its own motion, it 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 under any amended agreement for the importation of waste until:

(A) the amendment to the importation agreement has been executed by both the Commission and the agreement holder; and

(B) the agreement holder has made any changes necessary to comply with additional requirements imposed by the Commission.

(3) The Commission's Chair or his or her delegate may review applications for minor amendments and, in consultation with a committee of the Commission or other persons employed by or retained by the Commission for the purpose, may approve them without a vote of the entire Commission, although the Chair or his or her delegate has the discretion to refer the application for the amendment to the full Commission for a decision. The following changes are considered to be minor amendments: inclusion of additional compacts or unaffiliated states, territories, possessions, or districts of the United States from which waste will be shipped; inclusion of an additional waste stream; a change in waste form; and inclusion of an additional type of generator. If the holder of an importation agreement seeks to add points of origin of the waste to be disposed of in the Compact Facility, the agreement holder must also provide export authorization, as necessary, from a compact to which the state being added is a party. The Commission will not treat an application for amendment as a request for a minor amendment simply because the applicant has described the amendment as "minor." If the Chair or his or her delegate, in consultation with a committee of the Commission or other persons employed by or retained by the Commission for the purpose, decides that an application purporting to be an application for a minor amendment is actually an application for a major amendment, the Commission will return the application to the applicant who may resubmit the application as an application for a major amendment.

(4) Notice of Applications for Amendments to Import Agreements. All applications for amendments to import agreements, including applications for minor amendments, shall be posted to the Commission's website within five business days of their submission.

(5) Commission Decisions on Applications for Amendments to Import Agreements. If an application is for a minor amendment, neither the Chair nor his or her delegate will act on the application before the 15th calendar day after the posting of the application for amendment. The Commission will act on applications for major amendments in the same manner that it acts on original applications for import agreements and within the same time period. An import agreement is not assignable or transferable to any other person. The Commission's action, or that of the Chair or his or her delegate, on an application for amendment to an import agreement is final without the filing of a motion for rehearing.

(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. 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), the state or United States Territory of origin, and the date(s) of waste disposal. 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 Commission shall publish quarterly on its website a report derived from the information provided to it by the Compact Facility Operator as well as from the TCEQ.

(n) Small Quantity Generators. A small quantity 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.

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; amended to be effective September 9, 2015, 40 TexReg 5793