(a) A license application to receive, possess, and dispose of low-level radioactive waste from others at the compact waste disposal facility may not be considered administratively complete unless the applicant has acquired the title to and any interest in land and buildings on which the facility or facilities are to be located. Except as provided in subsection (b) or (c) of this section or for land and buildings already owned in fee by the state or federal government, the applicant must demonstrate ownership of an undivided interest in fee simple title of the land and buildings, including the surface and mineral estates, on which the land disposal facility or facilities are to be located.
(b) If an applicant is unsuccessful in acquiring undivided ownership of the mineral estate in fee simple of the land on which the facility or facilities are proposed to be located, the applicant may, to the extent permissible under federal law, request an exemption of the requirement under §336.5 of this title (relating to Exemptions). The application for exemption must be submitted with the license application in order to satisfy the requirements of the administrative review of the application. In addition to the requirements of §336.5 of this title, the applicant must demonstrate that the surface use agreement is permissible under federal law and consistent with the Agreement Between the United States Nuclear Regulatory Commission And the State of Texas for Discontinuance of Certain Commission Regulatory Authority and Responsibility within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as amended. If the requirement of ownership of the mineral estate in fee simple title is exempted under this subsection, the applicant must have entered into a surface use agreement that restricts access to natural resources, including slant drilling and subsurface mining, to the extent necessary to prevent intrusion into the site. The surface use agreement shall prohibit the use of the surface in the development and access of the natural resources in perpetuity by the owner of the mineral estate, heirs, and successors and shall be assigned to and be enforceable by the state or federal government upon conveyance of the property under §336.710(2) of this title (relating to Institutional Information).
(c) If an applicant cannot reach a surface use agreement and cannot otherwise obtain fee simple title to the mineral estate of the land on which the facility or facilities are proposed to be located, the applicant may petition the commission under §1.8 of this title (relating to Initiation of Proceeding) to request the attorney general to institute condemnation proceedings as provided under Texas Property Code, Chapter 21, to acquire fee simple interest in the mineral rights. The petition to request initiation of condemnation proceedings shall include a description of the communications between the applicant and the mineral estate interest owner, a demonstration of the applicant's good faith effort to acquire the mineral rights or to enter into a surface use agreement as provided in subsection (b) of this section, an appraisal of the fair market value of the mineral interest, a demonstration that the petitioner's application has been selected as the application with the highest technical merit under §336.813(d) of this title (relating to Evaluation of Applications), and a demonstration by the applicant of the ability to pay for all costs in obtaining the mineral interests in condemnation proceedings, including legal fees. The applicant shall provide a copy of the petition under this subsection to the owner of the mineral interest. If the petition is granted and the commission requests the attorney general to initiate condemnation proceedings, the applicant shall pay for all costs incurred by the commission in the process of obtaining the mineral interests, whether or not the mineral interests are successfully condemned.

Source Note: The provisions of this §336.808 adopted to be effective January 8, 2004, 29 TexReg 150