SECTION 350.31. General Requirements for Remedy Standards

(a) The person shall ensure the affected property is rendered protective of human health and the environment and shall use Remedy Standard A or B to satisfy cleanup responsibilities at affected properties subject to these rules as specified in §350.2 of this title (relating to Applicability) unless an alternative approach is required by another commission regulation, permit, or order.

(b) For Remedy Standards A and B, in order for a treatment process, including monitored natural attenuation, to achieve decontamination rather than being a physical control measure, the person must demonstrate that the treatment process permanently and irreversibly destroys or extracts COCs in a waste or environmental medium to concentration levels below the critical PCLs and must further demonstrate that any residue remaining after treatment will not pose a threat of a future release of COCs into environmental media at concentration levels greater than the critical PCLs. The executive director shall initially presume that stabilization, solidification, and fixation processes are physical control measures rather than decontamination. The person may rebut this initial presumption by demonstrating that a stabilization, solidification, or fixation process can achieve the performance requirements for a decontamination action.

(c) The person shall sufficiently address affected properties such that surface and subsurface structures do not contain explosive atmospheres originating from the released COCs, and areas of routine construction are adequately protected. The person should consider the proximity of volatile NAPLs and high concentrations of volatile COCs to utility conduits, basements, storm or sanitary sewers, and other surface and subsurface structures which may be subject to vapor accumulations. The person shall conduct monitoring as appropriate and take appropriate actions based on those findings.

(d) The person shall notify the executive director and the agency's office in the region where the affected property is located in writing at least 10 days in advance of performing confirmation sampling to demonstrate that a response action is complete and a remedy standard has been attained.

(e) Unless a response action completion report (RACR) has been approved or is pending review by the executive director, the person shall submit a response action effectiveness report (RAER) to the executive director every three years following submittal of the self-implementation notice (SIN) for Remedy Standard A or the date of approval of the response action plan (RAP) for Remedy Standard B by the executive director to document that sufficient progress is being made to achieve the remedy. The RAER shall be accompanied by an affected property assessment report (APAR) unless an APAR has previously been submitted. The executive director may require a more frequent reporting period. If insufficient progress is being made, the executive director may require the person to evaluate an alternative response action and/or to perform an alternative response action.

(f) Within 90 days of completing a Remedy Standard A response action, the person shall submit a RACR for review and approval by the executive director. The RACR shall be accompanied by an APAR unless an APAR has been previously submitted.

(g) The person attaining Remedy Standard A for commercial/industrial land use or Remedy Standard B for residential or commercial/industrial land use shall provide proof of compliance with the institutional control requirements in §350.111(b),(b)(2), (3), (5), or (6) of this title (relating to Use of Institutional Controls), as applicable, within 90 days of the approval of the RACR by the executive director.

(h) To inform others of ongoing long-term response actions, the executive director may require the person to provide proof of compliance with the institutional control requirements in §350.111(b),(b)(1) of this title (relating to Use of Institutional Controls) within 90 days of a determination made under paragraphs (1) or (2) of this subsection.

(1) The response action is predicted in the SIN, RAP, or RAER to take in excess of 15 years from the date of submittal of the SIN or the date of executive director approval of the RAP to achieve the requirements of subsection (a) of this section at the affected property, or

(2) The response action has not been completed within 15 years of submittal of the SIN or the date of executive director approval of the RAP, and the executive director determines that:

(A) the progress of the response action is unsatisfactory; or

(B) performance monitoring data indicates that the concentrations of COCs will not be reduced to the critical residential PCLs within an additional time frame, which is reasonable given the particular circumstances of an affected property.

(i) Until such time as an institutional control is filed within the real property records of the county for an affected property as required in subsection (g) of this section, or until the executive director approves the RACR for affected property which is not subject to subsection (g) of this section, the on- site and/or off-site owner(s) of affected property shall, with regards to the current environmental conditions of the property and prior to transfer of the property or signing of lease agreements, inform any prospective purchaser or tenant of the property of the existing or planned response actions and of any current or future potential limitations on the use of the property.

(j) The person shall also perform any more stringent or additional response actions which are required by the statute or regulations governing the program areas covered by this chapter as specified in §350.2 of this title (relating to Applicability).

Source Note: The provisions of this §350.31 adopted to be effective September 23, 1999, 24 TexReg 7436