Section 336.1105 - DefinitionsThe following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) 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 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 § 336.1131 of this title (relating to Land Ownership of By-Product Material Disposal Sites).(2) As expeditiously as practicable considering technological feasibility--As quickly as possible considering the physical characteristics of the by-product material 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."(3) Available technology--Technologies and methods for emplacing a final radon barrier on by-product material piles or impoundments. This term must 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), (for example, 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 must 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.(4) By-product material--Tailings or wastes produced by or resulting from the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "by-product material" within this definition.(5) By-product material disposal cell--A man-made excavation and/or construction designed, sited, and built in accordance with the requirements of § 336.1129 of this title (relating to Technical Requirements) for the purpose of disposal of by-product material.(6) By-product material pond--A man-made excavation designed, constructed, and sited in accordance with the requirements of § 336.1129 of this title (relating to Technical Requirements).(7) Capable fault--As used in this section, "Capable fault" has the same meaning as defined in Section III(g) of Appendix A of Title 10 Code of Federal Regulations (CFR) Part 100.(8) Closure--The post-operational activities to decontaminate and decommission the buildings and site used to produce by-product materials and/or reclaim the tailings or disposal area, including groundwater restoration, if needed.(9) Closure plan--The plan approved by the agency to accomplish closure. The closure plan consists of a decommissioning plan and may also include a reclamation plan.(10) Commencement of construction--Initiating activity defined as "construction" or any other activity at the site of a facility subject to regulations in this subchapter that has a reasonable nexus to radiological health and safety.(11) Compliance period--The period of time that begins when the agency sets secondary groundwater protection standards and ends when the owner or operator's license is terminated and the site is transferred to the state or federal government for long-term care, if applicable.(12) Construction--The installation of wells associated with radiological operations (e.g., production, injection, or monitoring well networks associated with in-situ recovery or other facilities), the installation of foundations, or in place assembly, erection, fabrication, or testing for any structure, system, or component of a facility or activity subject to the regulations in this part that are related to radiological safety or security. The term "construction" does not include: (A) changes for the temporary use of the land for public recreational purposes; (B) site exploration, including necessary borings to determine foundation conditions or other preconstruction monitoring to establish background information related to the suitability of a site, the environmental impacts of construction or operation, or the protection of environmental values; (C) preparation of the site for construction of the facility, including clearing of the site, grading, installation of drainage, erosion and other environmental mitigation measures, and construction of temporary roads and borrow areas; (D) erection of fences and other access control measures that are not related to the safe use of, or security of, radiological materials subject to this part; (F) erection of support buildings (e.g., construction equipment storage sheds, warehouse and shop facilities, utilities, concrete mixing plants, docking and unloading facilities, and office buildings) for use in connection with the construction of the facility; (G) building of service facilities (e.g., paved roads, parking lots, railroad spurs, exterior utility and lighting systems, potable water systems, sanitary sewerage treatment facilities, and transmission lines); (H) procurement or fabrication of components or portions of the proposed facility occurring at other than the final, in-place location at the facility; or (I) initiating activity that has no reasonable nexus to radiological health and safety.(13) Decommissioning plan--The plan approved by the agency to accomplish decommissioning. Decommission is defined in § 336.2(29) of this title (relating to Definitions).(14) Dike--An embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other materials.(15) Disposal area--The area containing by-product materials to which the requirements of §336.1129(p) - (aa) of this title (relating to Technical Requirements) apply.(16) Existing portion--As used in § 336.1129(i)(1) of this title (relating to Technical Requirements), "existing portion" is that land surface area of an existing surface impoundment on which significant quantities of uranium or thorium by-product materials had been placed prior to September 30, 1983.(17) 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 § 336.1129(x) of this title (relating to Technical Requirements). These factors may include, but are not limited to: (A) physical conditions at the site;(B) inclement weather or climatic conditions;(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;(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.(18) Final radon barrier--The earthen cover (or approved alternative cover) over by-product material constructed to comply with §336.1129(p) - (aa) of this title (relating to Technical Requirements) (excluding erosion protection features).(19) 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.(20) Hazardous constituent--Subject to § 336.1129(j)(5) of this title (relating to Technical Requirements), "hazardous constituent" is a constituent that meets all three of the following tests: (A) the constituent is reasonably expected to be in or derived from the by-product 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 Code of Federal Regulations Part 40, Appendix A, Criterion 13.(21) In situ leach--Refers to the actual oxidation and dissolution of uranium in an underground formation.(22) In situ recovery--Refers to the process of stripping, precipitating, de-watering, and drying uranium in a surface processing plant.(23) Leachate--Any liquid, including any suspended or dissolved components in the liquid, that has percolated through or drained from the by-product material.(24) Licensed site--The area contained within the boundary of a location under the control of persons generating or storing by-product materials under a license.(25) Liner--A continuous layer of natural or man-made materials, beneath or on the sides of a surface impoundment that restricts the downward or lateral escape of by-product material, hazardous constituents, or leachate.(26) Maximum credible earthquake--That earthquake that 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.(27) Milestone--An action or event that is required to occur by an enforceable date.(28) Operation-- (A) the period of time during which a by-product material disposal area is being used for the continued placement of by-product material or is in standby status for such placement. A disposal area is in operation from the day that by-product material is first placed in it until the day final closure begins; and(B) the period of time during which an in situ leach uranium recovery operation is actively leaching or recovering uranium.(29) Point of compliance--The site-specific location in the uppermost aquifer where the groundwater protection standard shall 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.(30) Principal activities--Activities authorized by the license that 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.(31) Reclamation--Those activities at a uranium recovery licensed facility that work towards achieving the criteria under this subchapter for release of equipment, facilities and/or the site (including land) to unrestricted use or termination of the license.(32) Reclamation plan-- (A) for the purposes of paragraph (22) of this section and § 336.1115 of this title (relating to In situ recovery and Expiration and Termination of Licenses; Decommissioning of Sites; Separate Buildings or Outdoor Areas, respectively), "reclamation plan" is the plan detailing activities to accomplish reclamation of the licensed site (land surface) where in situ recovery and related activities are licensed to occur. The reclamation plan shall include a schedule for reclamation milestones that are key to the clean-up of the in situ recovery plant location, well fields, and any by-product waste storage location; or(B) for the purposes of §336.1129(p) - (aa) of this title (relating to Technical Requirements), "reclamation plan" is the plan detailing activities to accomplish reclamation of the by-product material disposal area in accordance with the technical criteria of this section. The reclamation plan shall include a schedule for reclamation milestones that are key to the completion of the final radon barrier, including as appropriate, but not limited to, windblown 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 by-product material shall also be addressed in the closure plan. The detailed reclamation plan may be incorporated into the closure plan.(33) Restoration--Those activities that seek to return the groundwater at an underground injection control permitted site to restoration levels established by permit.(34) Security--This term has the same meaning as financial assurance.(35) Surface impoundment--A natural topographic depression, man-made excavation, or diked area at a conventional uranium mill, which is designed to receive waste from the milling process which may contain liquid wastes or wastes containing free liquids, solid wastes, mill site demolition materials and debris, and other by-product materials from the milling site.(36) Unrefined and unprocessed ore--Ore in its natural form before any processing, such as grinding, roasting, beneficiating, or refining. Processing does not include sieving or encapsulation of ore or preparation of samples for laboratory analysis.(37) 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.(38) Uranium recovery--Any uranium extraction or concentration activity that results in the production of "by-product material" as it is defined in this chapter and as it pertains to uranium ore only. As used in this definition, "Uranium recovery" has the same meaning as "uranium milling" in 10 Code of Federal Regulations §40.4.30 Tex. Admin. Code § 336.1105
The provisions of this §336.1105 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688; Amended by Texas Register, Volume 41, Number 49, December 2, 2016, TexReg 9585, eff. 12/8/2016