SECTION 330.413. Selection of Remedy

(a) Based on the results of the corrective measures assessment conducted under §330.411 of this title (relating to Assessment of Corrective Measures), the owner or operator shall select a remedy that, at a minimum, meets the standards listed in subsection (b) of this section and is in accordance with rules of the commission. Within 30 days of completing the assessment of corrective measures described in §330.411 of this title, the owner or operator shall submit a report to the executive director for review and approval and place it in the operating record. The report shall describe the remedy or remedies proposed for selection and the way it or they meet the standards in subsection (b) of this section.

(b) Remedies shall:

(1) be protective of human health and the environment;

(2) attain the groundwater protection standard as specified in accordance with §330.409(h), (i), or (j) of this title (relating to Assessment Monitoring Program);

(3) control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of 40 Code of Federal Regulations Part 258, Appendix II constituents into the environment that may pose a threat to human health or the environment; and

(4) comply with standards for management of wastes as specified in §330.415(d) of this title (relating to Implementation of the Corrective Action Program).

(c) In selecting a remedy that meets the standards of subsection (b) of this section, the owner or operator shall consider the following evaluation factors:

(1) long- and short-term effectiveness and protectiveness of the potential remedy, along with the degree of certainty that the remedy will prove successful based on consideration of:

(A) magnitude of reduction of existing risks;

(B) magnitude of residual risks in terms of likelihood of further releases due to waste remaining following implementation of a remedy;

(C) type and degree of long-term management required, including monitoring, operation, and maintenance;

(D) short-term risks that might be posed to the community, workers, or the environment during implementation of such a remedy, including potential threats to human health and the environment associated with excavation, transportation, redisposal, or containment;

(E) time until full protection is achieved;

(F) potential for exposure of humans and environmental receptors to remaining wastes, considering potential threats to human health and the environment associated with excavation, transportation, redisposal, or containment;

(G) long-term reliability of the engineering and institutional controls; and

(H) potential need for replacement of the remedy;

(2) effectiveness of the remedy in controlling the source to reduce further releases based on the extent to which containment practices will reduce further releases and the extent to which treatment technologies may be used;

(3) ease or difficulty of implementing a potential remedy based on consideration of:

(A) degree of difficulty associated with constructing the technology;

(B) expected operational reliability of the technologies;

(C) need to coordinate with and obtain necessary approvals and permits from other agencies and regulatory bodies;

(D) availability of necessary equipment and specialists; and

(E) available capacity and location of needed treatment, storage, and disposal services;

(4) practicable capability of the owner or operator, including a consideration of the technical and economic capability; and

(5) degree to which community concerns are addressed by a potential remedy.

(d) The owner or operator shall specify as part of the selected remedy a schedule for initiating and completing remedial activities. The schedule shall require the initiation of remedial activities within a reasonable time approved by the executive director, taking into consideration the following factors:

(1) extent and nature of contamination;

(2) practical capabilities of remedial technologies in achieving compliance with groundwater protection standards established under §330.409(h), (i), or (j) of this title and other objectives of the remedy;

(3) availability of treatment or disposal capacity for wastes managed during implementation of the remedy;

(4) desirability of utilizing technologies that are not currently available but that may offer significant advantages over available technologies in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives;

(5) potential risks to human health and the environment from exposure to contamination prior to completion of the remedy;

(6) resource value of the aquifer, including current and future uses; proximity and withdrawal rate of users; groundwater quantity and quality; potential damage to wildlife, crops, vegetation, and physical structures from exposure to waste constituents; hydrogeologic characteristics of the facility and adjacent land; groundwater removal and treatment costs; and cost and availability of alternative water supplies;

(7) practicable capability of the owner or operator; and

(8) other relevant factors.

(e) The executive director may determine that remediation of a release of a 40 Code of Federal Regulations Part 258, Appendix II constituent from a solid waste management unit is not necessary if the owner or operator demonstrates to the satisfaction of the executive director that:

(1) the groundwater is additionally contaminated by substances that have originated from a source other than a solid waste management unit and those substances are present in concentrations such that cleanup of the release from the solid waste management unit would provide no significant reduction in risk to actual or potential receptors; or

(2) the constituent is present in groundwater that is not currently or reasonably expected to be a source of drinking water and is not hydraulically connected with waters to which the constituent is migrating or is likely to migrate in a concentration that would exceed the groundwater protection standards established under §330.409(h), (i), or (j) of this title; or

(3) remediation of the release is technically impracticable; or

(4) remediation of the release results in unacceptable cross-media impacts.

(f) A determination by the executive director in accordance with subsection (e) of this section shall not affect the authority of the state to require the owner or operator to undertake source-control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, to prevent exposure to the groundwater, or to remediate the groundwater to concentrations that are technically practicable and that significantly reduce threats to human health or the environment.

Source Note: The provisions of this §330.413 adopted to be effective March 27, 2006, 31 TexReg 2502