SECTION 350.2. Applicability

(a) General applicability. On May 1, 2000, persons shall comply with the requirements of this chapter to the extent not modified by the provisions of this section. Before May 1, 2000, the person may use this chapter upon the effective date of the chapter. The rules in this chapter specify objectives for response actions for affected properties and further specify the mechanism to evaluate such response actions once an obligation is established to take a response action via other applicable rules, orders, permits or statutes. All actions undertaken and demonstrations required by this chapter must be performed and documented to the reasonable satisfaction of the executive director. Additionally, no person shall submit information to the executive director or to parties who are required to be provided information under this chapter which they know or reasonably should have known to be false or intentionally misleading, or fail to submit available information which is critical to the understanding of the matter at hand or to the basis of critical decisions which reasonably would have been influenced by that information. This chapter does not establish requirements for reporting releases to program areas. The regulations in this chapter address releases of chemicals of concern (COCs) as defined by various programs subject to this chapter as specified in subsections (b) - (m) of this section. However, the regulations in this chapter do not eliminate the need for the person to meet any more stringent or additional requirements found in the particular rules for the covered program areas or applicable federal requirements.

(b) Property where a release of COCs occurs that is regulated under Chapter 327 of this title (relating to Spill Prevention and Control), as amended. The person shall first complete notification for releases under §327.3 of this title (relating to Notification Requirements), as amended, and then conduct response actions under §327.5 of this title (relating to Actions Required), as amended. The person shall utilize this chapter to conduct response actions when either the conditions of paragraphs (1) or (2) of this subsection apply.

(1) The person chooses to respond under this chapter to a release of COCs within the first six months after the release is reported to the executive director.

(2) The person determines that the response action to the release of COCs cannot be completed to the satisfaction of the executive director within the first six months following notification to the executive director.

(c) Property regulated under Chapter 330 of this title (relating to Municipal Solid Waste). Persons shall comply with the requirements of this chapter for those municipal solid waste properties except when subject to the requirements of 40 Code of Federal Regulations Parts 257 and/or 258, as amended. However, for those municipal solid waste properties subject to the requirements of 40 Code of Federal Regulations Parts 257 and/or 258, as amended, the executive director may establish an alternative health-based groundwater protection standard for a COC in accordance with §330.409 of this title (relating to Assessment Monitoring Program), as amended. Determination of such an alternative standard shall be made using the procedures of Subchapter D of this chapter (relating to Development of Protective Concentration Levels).

(d) Property regulated under Chapter 331 of this title (relating to Underground Injection Control). The person shall address unauthorized releases of COCs from associated tankage and equipment utilizing the procedures of this chapter. Excursions of injected mining solutions at in-situ mining properties or injection of waste which is confined below all underground sources of drinking water as defined in §331.2 of this title (relating to Definitions), as amended, are not subject to the requirements of this chapter.

(e) Property regulated under Chapter 332 of this title (relating to Composting). The person shall comply with the requirements of this chapter to conduct assessments, response actions, and post-response action care for releases of COCs in environmental media at a compost facility, mulching facility or land application property authorized under Chapter 332 of this title, as amended.

(f) Property regulated under Chapter 333 of this title (relating to Brownfields Initiatives). The person entering the Voluntary Cleanup Program (VCP) shall comply with all requirements found in the Texas Health and Safety Code, Chapter 361, Subchapter S, as amended, concerning the Voluntary Cleanup Program; Subchapter A of Chapter 333 of this title (relating to Voluntary Cleanup Program Section), as amended; and the requirements of this chapter. Where there is a conflict between the requirements of this chapter and the requirements in the Texas Health and Safety Code, Chapter 361, Subchapter S, as amended, and Chapter 333, Subchapter A of this title, as amended, the requirements of the Texas Health and Safety Code, Chapter 361, Subchapter S, as amended, and Chapter 333, Subchapter A of this title, as amended, shall apply.

(g) Property regulated under Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks). The person shall comply with the requirements of Chapter 334 of this title and not this chapter for the assessment, response actions, and post-response action care for releases of regulated substances from underground storage tanks (USTs) and aboveground storage tanks (ASTs).

(h) Property regulated under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). The person shall comply with the requirements of this chapter when undertaking the remediation of affected property at facilities used for the storage, processing or disposal of industrial solid waste or municipal hazardous waste, or for the remediation of environmental media containing COCs resulting from releases from waste management facility components (e.g., tank, container storage area, surface impoundment, etc.), either as part of closure or at any time before or after closure. The person shall close a waste management facility component in a manner that minimizes or eliminates the need for further maintenance and controls. The manner of closure shall also minimize or eliminate, to the extent necessary to protect human health and the environment, the post-closure escape of waste, contaminants, leachate, run-off, or decomposition products to the surrounding environmental media. Waste management facility components undergoing closure for which the person can demonstrate that no release of COCs to surrounding environmental media has occurred are subject to this chapter only with regard to this closure performance standard and the removal, decontamination or control requirements for waste as specified in Subchapter B of this chapter (relating to Remedy Standards). In the event a release of COCs to surrounding environmental media has occurred, then the person shall comply with this chapter for response to the release. The person shall comply with §335.118(b) of this title (relating to Closure Plan; Submission and Approval of Plan), as amended, or applicable permit provisions regarding requirements for public participation in the corrective action process for permitted hazardous waste facilities. The person shall also comply with the requirements of paragraphs (1) - (3) of this subsection, as applicable.

(1) Any person who stores, processes, or disposes of industrial solid waste or municipal hazardous waste at a facility permitted under §335.2(a) of this title (relating to Permit Required), as amended, shall, unless specifically modified by other order of the commission, close the facility in accordance with the closing provisions of the permit.

(2) Any person who stores, processes, or disposes of hazardous waste is also subject to the applicable provisions relating to closure and post-closure in Chapter 335, Subchapters E and F of this title (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities, respectively), as amended.

(3) The person may utilize this chapter to determine if COCs, specifically listed hazardous waste or hazardous constituents, exceed concentrations protective of human health and the environment when making "contained-in" determinations for environmental media being managed as wastes (e.g., excavated soils, investigation derived wastes such as monitor well purge water, etc.) for purposes of treatment or disposal in a different location. In such cases, the person must still perform a waste classification in response to Chapter 335, Subchapters A and R of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General; and Waste Classification, respectively), as amended.

(4) The person may propose a facility operations area (FOA) to address multiple sources of COCs within an active facility that is required to perform corrective action for releases pursuant to a permit or commission corrective action order. The requirements for establishing a FOA are specified in Subchapter G of this chapter (relating to Establishing a Facility Operations Area).

(i) Affected property regulated under Chapter 335, Subchapter K of this title (relating to Hazardous Substance Facilities Assessment and Remediation). The person shall comply with all requirements found in the Texas Health and Safety Code, Chapter 361, Subchapter F, as amended; Chapter 335, Subchapter K of this title, as amended; and the requirements of this chapter for any release or threatened release of hazardous substances into the environment that may constitute an imminent and substantial endangerment to public health and safety or the environment. Where there is a conflict between the requirements in this chapter and the requirements of Texas Health and Safety Code, Chapter 361, Subchapter F, as amended, and Chapter 335, Subchapter K of this title, as amended, the requirements of Texas Health and Safety Code, Chapter 361, Subchapter F and Chapter 335, Subchapter K of this title shall apply.

(j) Property regulated under Chapter 336 of this title (relating to Radioactive Substance Rules). The person shall comply with the requirements of Chapter 336 of this title, as amended, regarding contamination limits for radioactive material in environmental media. In instances involving remediation of releases in media containing both radioactive material and other COCs, the person shall use the contamination limits determined in accordance with Chapter 336 of this title, as amended, for radioactive material and PCLs determined by the procedures of this chapter for other COCs.

(k) Property regulated under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation). The executive director may reference this chapter in permits subject to Chapter 312 of this title, as amended, when specifying closure provisions to address releases of COCs from facility components at municipal wastewater treatment plants.

(l) Other releases. The executive director may require the use of this chapter to address other releases of COCs subject to Texas Water Code, Chapter 26, as amended.

(m) Use of this chapter on or after May 1, 2000. The person who started a response action under Chapter 335, Subchapters A and S of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste in General; Risk Reduction Standards, respectively), as amended, may qualify to continue under those previous commission rules subject to the limitations specified in paragraphs (1) - (4) of this subsection. Any person desiring to remain under Chapter 335 of this title may not use any of the provisions of this chapter. If a person elects to proceed under this chapter, then they shall not be allowed to return to Chapter 335 of this title. Also, the person shall respond as described in §350.35 of this title (relating to Substantial Change in Circumstances) in the event a substantial change in circumstance occurs which results in an unacceptable threat to human health or the environment.

(1) The person who has submitted an initial notification of intent to conduct a Risk Reduction Standard 1 or 2 response action (i.e., §335.8(c)(1) and (2) of this title (relating to Closure and Remediation), as amended) prior to May 1, 2000, and has submitted a final report within five years after that date may request that the response action be reviewed according to the regulations in effect at the time of initial notification. Persons will automatically qualify for this grandfathering provision if they have previously received a letter from the agency acknowledging receipt of the initial notification, or submit other forms of documentation by May 1, 2001, that proper and timely notification had been made.

(2) The person who has submitted a remedial investigation report that fully complies with §335.553(b)(1) of this title (relating to Required Information), as amended, prior to May 1, 2001, may elect to either continue under those rules or to proceed under this chapter.

(3) Any closure plans approved as part of a permit issued prior to May 1, 2000, but not implemented at the time of permit renewal are subject to review for compliance with this chapter as part of the permit renewal process.

(4) The person may resubmit plans or reports that the person has revised voluntarily to conform with the requirements of this chapter, unless such resubmittal would result in noncompliance with a previously approved or imposed schedule of compliance.

Source Note: The provisions of this §350.2 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective March 19, 2009, 34 TexReg 1866