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RULE §336.1125Financial Assurance Requirements

(a) Financial assurance for decontamination, decommissioning, reclamation, restoration, disposal, and any other requirements of the agency shall be established by each licensee 60 days prior to the initial receipt, production, or possession of radioactive substances, or injection operations in a production area to assure that sufficient funds will be available to carry out the decontamination and decommissioning of buildings and the site and for the reclamation of any by-product material disposal areas. The amount of funds to be ensured by such financial assurance mechanism shall be based on agency-approved cost estimates in an agency-approved closure plan for:

  (1) decontamination and decommissioning of buildings and the site to levels that allow unrestricted use of these areas upon decommissioning; and

  (2) the reclamation of by-product material disposal areas in accordance with technical criteria delineated in §336.1129 of this title (relating to Technical Requirements); or

  (3) the aquifer restoration which is based on the physical characteristics of the mining aquifer; the costs of equipment, labor, and administration; and any other data required under Chapter 331 of this title (relating to Underground Injection Control) for a production area authorization application.

(b) The licensee shall submit this closure plan in conjunction with an environmental report that addresses the expected environmental impacts of the licensee's operation, decommissioning and reclamation, and evaluates alternatives for mitigating these impacts.

(c) The financial assurance shall also cover the payment of the charge for long-term surveillance and control for by-product material disposal areas required by §336.1127(c) of this title (relating to Long-Term Care and Maintenance Requirements).

(d) The licensee's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the decommissioning and reclamation work in establishing specific financial assurance mechanisms. The agency may accept financial assurance mechanisms that have been consolidated with financial or security arrangements established to meet requirements of other federal or state agencies and/or local governing bodies for such decommissioning, decontamination, reclamation, and long-term site surveillance and control, provided such arrangements are considered adequate to satisfy these requirements and that the portion of the security that covers the decommissioning and reclamation of the buildings, site, and by-product material disposal areas, and the long-term funding charge is clearly identified and committed for use in accomplishing these activities.

(e) The financial assurance mechanism shall be continuous for the term of the license and shall be payable to the State of Texas and deposited to the credit of the perpetual care account.

(f) The licensee's financial assurance mechanism and the underlying cost estimates will be reviewed annually by the agency to assure that sufficient funds are available for completion of the decommissioning and reclamation plan if the work had to be performed by an independent contractor. The amount of financial assurance must be adjusted to recognize any increases resulting from inflation, changes in engineering plans, activities performed, and any other conditions affecting costs. A licensee must submit a cost estimate report annually for decommissioning and reclamation of the facility in accordance with the decommissioning and reclamation plans by no later than an anniversary date as determined by the executive director. The licensee must provide any increase in the amount of financial assurance within 60 days of a determination of the cost estimate by the executive director.

(g) Except as provided in subsection (i) of this section, financial assurance required under this subchapter must meet the requirements specified in Chapter 37, Subchapter T of this title (relating to Financial Assurance for Radioactive Substances and Aquifer Restoration) by June 1, 2009. Regardless of whether reclamation is phased through the life of the operation or takes place at the end of operations, an appropriate portion of financial assurance amount as determined by the executive director shall be retained until final compliance with the reclamation plan is determined. This will yield a financial assurance mechanism that is at least sufficient at all times to cover the costs of decommissioning and reclamation of the areas that are expected to be disturbed before the next license renewal.

(h) Self-insurance, or any arrangement that essentially constitutes self-insurance (for example, a contract with a state or federal agency), will not satisfy the financial assurance requirement since this provides no additional assurance other than that which already exists through license requirements.

(i) A licensee with a performance bond mechanism(s) issued in favor of Texas Department of State Health Services and submitted to Texas Department of State Health Services or its predecessor with an original effective date prior to June 15, 2007 that does not provide a new mechanism(s) under subsection (g) of this section must:

  (1) amend the performance bond by June 1, 2009 to:

    (A) reflect Texas Commission on Environmental Quality as the beneficiary;

    (B) reflect the current total penal sum; and

    (C) correct regulatory citations and Texas Commission on Environmental Quality license number.

  (2) provide replacement financial assurance mechanism(s) that meets the requirements specified in Chapter 37, Subchapter T of this title by March 31, 2010.

Source Note: The provisions of this §336.1125 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688

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