SECTION 350.33. Remedy Standard B

(a) To attain Remedy Standard B, the person shall:

(1) Remove, decontaminate, and/or control the surface soil, subsurface soil, and groundwater human health PCLE zones, other environmental media, and hazardous and non-hazardous waste in accordance with the provisions of this section such that humans will not be exposed to concentrations of COCs in the exposure media in excess of the residential or commercial/industrial critical human health PCLs, as applicable, at the prescribed, or any approved alternate POEs established for environmental media in accordance with §350.37 of this title (relating to Human Health Points of Exposure);

(2) Ensure that leachate from the surface and subsurface soil PCLE zones does not increase the concentration of COCs in class 2 groundwater above the measured concentration at the time of RAP submittal in circumstances when an alternate POE to class 2 groundwater is authorized in response to subsection (f)(4) of this section; and

(3) Use either subparagraph (A) or (B) of this paragraph to respond to an affected property when either the initial concentrations of COCs within environmental media exceed only the ecological PCLs (i.e., there is no exceedence of human health PCLs) or when there will be residual concentrations of COCs above the ecological PCLs following completion of a human health response action. When human health PCLs are exceeded within environmental media at an affected property, a person must perform a response action pursuant to paragraph (1) of this subsection to address these risks to human health unless the person adequately demonstrates that the threats to human health are minimal and that a human health-based response action would have a significant and highly disproportionate effect on ecological receptors.

(A) The person shall remove, decontaminate, and/or control the environmental media, and hazardous and non-hazardous waste in accordance with the provisions of this section such that ecological receptors will not be exposed to concentrations of COCs in the exposure medium in excess of the ecological PCLs at the POEs determined in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels).

(B) When, after consultation with the Natural Resource Trustees, it is determined appropriate by the executive director, the person may use the results of a Tier 2 or 3 ecological risk assessment performed in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels) and other appropriate information or data to conduct an ecological services analysis of the affected property. However, an ecological services analysis must be conducted whenever concentrations of COCs which exceed ecological PCLs are proposed to be left in place with the potential for continuing exposure. The ecological services analysis must, at a minimum, include an evaluation of the effects of reasonable and feasible remediation alternatives, including complete removal/decontamination to PCLs and a control measure to prevent ecological exposure to COCs in excess of ecological PCLs, with respect to present and predicted losses of ecological services; and clear justification for leaving COCs in place above ecological PCLs. Furthermore, the person shall also ensure, where appropriate, that the ecological services analysis includes a plan to provide compensatory ecological restoration which may also be combined with some type of active response action (e.g., hot spot removal) or passive response action (e.g., natural attenuation) for the affected property. The ecological services produced by the restoration activity must exceed the future ecological service decreases potentially associated with the continued exposure to COCs and/or any selected response action at the affected property. The person must conduct the compensatory ecological restoration and other activities associated with the ecological services analysis with the approval of and in cooperation with the Natural Resource Trustees. The executive director may develop guidance which further describes the ecological services analysis process.

(b) As defined further by the surface and subsurface soil response objectives in subsection (e) of this section and the groundwater response objectives in subsection (f) of this section, the person performing a response action to attain Remedy Standard B may use removal and/or decontamination, removal and/or decontamination with controls, or controls only, with the exception of response actions for Class 1 groundwater PCLE zones which must be removed and/or decontaminated to the critical groundwater PCL for each COC.

(1) The person may use both physical and institutional controls.

(2) For all actions to attain Remedy Standard B, the person shall demonstrate that the response actions which they propose to use will attain the requirements of subsection (a) of this section within a reasonable time frame given the particular circumstances of an affected property. Remedial alternatives, including the use of monitored natural attenuation as a decontamination or control remedy, must be appropriate considering the hydrogeologic characteristics of the affected property, COC characteristics, and the potential for unprotective exposure conditions to continue or result during the remedial period.

(c) PCLs for Remedy Standard B are determined through consideration of on-site and off-site POEs, or alternate POEs.

(d) Remedy Standard B is not a self-implementing standard. The person must receive the executive director's written approval of a RAP and an APAR, either submitted at the same time as the RAP or previously, before commencing response actions to attain the standard, but this does not preclude the person from taking interim measures.

(e) The following are the Remedy Standard B surface and subsurface soil response objectives and associated requirements for response actions performed in accordance with subsections (a)(1) - (2), and (a)(3)(A) of this section to address human health and/or ecological risks at an affected property. A person may choose to attain the surface and subsurface soil response objectives for an affected property either by conducting a response action which makes use of removal and/or decontamination or by conducting a response action which makes use of removal and/or decontamination with controls or controls only.

(1) When all surface and subsurface soil response objectives specified in subsection (a) of this section are met through removal and/or decontamination, then the person shall fulfill any post-response action care obligations described in the approved RAP, but shall not be required to provide financial assurance for the soils.

(2) When a person chooses to attain the surface and subsurface soil response objectives specified in subsection (a) of this section for an affected property by conducting a response action which uses removal and/or decontamination with controls or controls only, then the person must also comply with the requirements of this paragraph.

(A) The person shall demonstrate that any physical control or combination of measures proposed to be used (e.g., waste control unit, cap, slurry wall, treatment that does not attain decontamination; or a landfill) will reliably contain COCs within and/or derived from the surface and subsurface soil PCLE zone materials over time.

(B) The person shall fulfill the post-response action care obligations described in the approved RAP.

(C) The person shall provide financial assurance in accordance with subsections (l) and (m) of this section.

(f) The following are the Remedy Standard B groundwater response objectives and associated requirements for response actions performed in accordance with subsections (a)(1) - (2), and (a)(3)(A) of this section to address human health or environmental risk at an affected property. The person shall achieve the Remedy Standard B groundwater PCLE zone response objectives stated in paragraph (1) of this subsection, unless the person demonstrates that an affected property meets the qualifying criteria for one, or a combination, of the modified groundwater response approaches described in paragraphs (2) - (4) of this subsection. A person who satisfactorily demonstrates technical impracticability as described in paragraph (3) of this subsection, may use technical impracticability to establish a plume management zone as described in paragraph (4) of this subsection for instances when a plume management zone would not otherwise be authorized by the executive director, except that the person shall not allow the groundwater plume management zone to expand beyond the existing boundary of the groundwater PCLE zone. A person who uses one, or a combination, of the modified groundwater response approaches shall fulfill the post-response action care obligations described in the approved RAP. A person who uses one, or a combination, of the modified groundwater response approaches which utilizes a physical control(s) shall provide financial assurance as specified in subsections (l) and (m) of this section.

(1) General groundwater response objectives. For all groundwater classes, the person must:

(A) use either an active restoration approach or monitored natural attenuation (if appropriate considering the hydrogeologic characteristics of the affected property, chemical-specific data for the COCs, and whether the anticipated time frame to achieve the critical groundwater PCLs is reasonable) to reduce the concentration of COCs to the critical groundwater PCLs throughout the groundwater PCLE zone;

(B) while achieving subparagraph (A) of this paragraph, prevent COCs at concentrations above the critical groundwater PCLs from migrating beyond the existing boundary of the groundwater PCLE zone;

(C) prevent COCs from migrating to air at concentration levels above the PCLs for air (i.e., ^Air Air _Inh );

(D) prevent COCs from migrating to surface water at concentration levels above the PCLs for groundwater discharges to surface water (i.e., ^SW GW); and

(E) prevent human and ecological receptor exposure to the groundwater PCLE zone.

(2) Waste control unit. When the approved RAP includes an existing or planned waste control unit which overlies an existing groundwater PCLE zone, the person may, with the executive director's approval, exclude the groundwater throughout that portion of the groundwater PCLE zone directly underlying the waste control unit from the requirement to meet the groundwater response objectives provided in paragraph (1) of this subsection. To use this approach, the person shall comply with the institutional control requirements in §350.31(g) of this title (relating to General Requirements for Remedy Standards), with the exception that proof of compliance with the institutional control requirements must be submitted to the executive director within 120 days of approval of the RAP, which provides notice of the existence and location of the groundwater PCLE zone beneath the waste control unit and which prevents usage of and exposure to this groundwater until such time as the COCs may reduce to the critical groundwater PCLs. Beyond the perimeter of the waste control unit, the groundwater response objectives must be met.

(3) Technical impracticability. A technical impracticability demonstration can be used for all three classes of groundwater under Remedy Standard B. To use this approach, the person must:

(A) demonstrate in accordance with the United States Environmental Protection Agency (EPA) "Guidance for Evaluating the Technical Impracticability of Ground-Water Restoration" (Office of Solid Waste and Emergency Response Directive 9234.2-25 or subsequent version), as amended, or other method approved by the executive director, that it is not feasible from a physical perspective using currently available remediation technologies due either to hydrogeologic or chemical-specific factors to reduce the concentration of COCs throughout all or a portion of the groundwater PCLE zone to the applicable critical groundwater PCLs within a reasonable time frame;

(B) use removal or decontamination actions to reduce the concentrations of COCs to the critical groundwater PCLs for any portion of the groundwater PCLE zone for which it is technically practicable;

(C) prevent migration of COCs from that portion of the groundwater PCLE zone which satisfies the technical impracticability demonstration in subparagraph (A) of this paragraph;

(D) achieve the performance criteria in subsection (f)(4)(E) of this section for NAPLs;

(E) establish a plume management zone for the area where COCs cannot be removed so as to attain the critical PCLs, and prevent COCs at concentrations above the critical groundwater PCLs from spreading beyond the existing boundary of the groundwater PCLE zone; and

(F) comply with the institutional control requirements in §350.31(g) of this title (relating to General Requirements for Remedy Standards), with the exception that proof of compliance with the institutional control requirements must be submitted to the executive director within 120 days of the approval of the RAP, which provides notice of the existence and location of the groundwater PCLE zone and which prevents usage of and exposure to groundwater from this zone until such time as the COCs may reduce to the critical groundwater PCLs.

(4) Plume management zones. With the approval of the executive director, the person may use a plume management zone under Remedy Standard B for class 2 and 3 groundwater-bearing units which presently contain a groundwater PCLE zone.

(A) To use a plume management zone, the person must demonstrate that the COCs will not pose a substantial present or potential hazard to human health or the environment as long as the attenuation action levels are not exceeded at the respective attenuation monitoring points based upon a consideration of the following factors:

(i) potentially adverse effects on groundwater quality, considering:

(I) the physical and chemical characteristics of the COC, including its potential for migration;

(II) the hydrogeological characteristics of the affected property and surrounding land;

(III) the quantity of groundwater and the direction of groundwater flow;

(IV) the proximity and withdrawal rates of groundwater users;

(V) the current and future uses of groundwater in the area;

(VI) the existing quality of groundwater, including other sources of COCs and their cumulative impact on the groundwater quality;

(VII) the potential for health risks caused by human exposure to COCs;

(VIII) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to COCs;

(IX) the persistence and permanence of the potentially adverse effects; and

(ii) potentially adverse effects on hydraulically-connected surface water quality, considering:

(I) the volume and physical and chemical characteristics of the COCs present at the affected property;

(II) the hydrogeological characteristics of the affected property and surrounding land;

(III) the quantity and quality of groundwater, and the direction of groundwater flow;

(IV) the patterns of rainfall in the region;

(V) the proximity of the source area to surface water;

(VI) the current and future uses of surface waters in the area and any water quality standards established for these surface waters;

(VII) the existing quality of surface water, including other sources of COCs and their cumulative impact on surface-water quality;

(VIII) the potential for health risks caused by human exposure to COCs;

(IX) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to COCs; and

(X) the persistence and permanence of the potentially adverse effects.

(B) Provided the person demonstrates that the establishment of a plume management zone is appropriate, the POE to groundwater may be changed from throughout the groundwater PCLE zone to an alternate location established in accordance with §350.37(l) or (m) of this title (relating to Human Health Points of Exposure) as applicable, or at the POE for ecological receptors determined in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), where that location is more restrictive.

(C) In order to establish a plume management zone, the person must:

(i) comply with the institutional control requirements in §350.31(g) of this title, with the exception that proof of compliance with the institutional control requirements shall be submitted to the executive director within 120 days of the approval of the RAP, which provides notice of the existence and location of the plume management zone and which prevents exposure to groundwater from this zone until such time as COCs may reduce to the critical groundwater PCLs;

(ii) demonstrate through an appropriate technical presentation that COCs will not migrate beyond the downgradient boundary of the plume management zone at concentrations above the critical groundwater PCLs; and

(iii) demonstrate through the performance of a field survey in the plume management zone that there are no artificial penetrations (e.g., abandoned wells or wells with open-hole completions) which can allow COCs at concentrations which exceed the critical groundwater PCLs to migrate from the groundwater PCLE zone to currently unaffected groundwater-bearing units.

(D) The person shall establish groundwater attenuation monitoring points beginning at an appropriate hydraulically upgradient location within the groundwater PCLE zone and continuing down the approximate central flow path of the COCs to the downgradient extent of the plume management zone.

(i) The number and location of attenuation monitoring points shall be demonstrated to be adequate to reliably verify over time the current and future conformance with the plume management zone response objectives. The number and location of attenuation monitoring points shall depend upon a site-specific evaluation of the hydrogeologic conditions of an affected property, the fate and transport characteristics of the COCs, and the length and configuration of the plume management zone.

(ii) The person shall calculate attenuation action levels for each COC at each attenuation monitoring point that cannot be exceeded in order for the critical groundwater PCLs to not be exceeded at the POE. The person shall periodically evaluate the adequacy of the attenuation action levels using any newly acquired empirical monitoring data and reestablish them as necessary to ensure the critical groundwater PCLs are not exceeded at the groundwater POE.

(iii) The person shall monitor concentrations of COCs in groundwater at the attenuation monitoring points and the POE in accordance with a schedule approved by the executive director which is adequate to reliably demonstrate conformance with the applicable groundwater response objectives. If an attenuation action level is exceeded at its respective attenuation monitoring point, or a critical groundwater PCL is exceeded at the groundwater POE, then the person shall take an active response action to meet the response objectives presented in subparagraph (F) of this paragraph. The executive director may authorize the person to implement an accelerated monitoring program prior to initiating an active response action in order to verify that a response action is warranted.

(E) The person is required to reduce NAPLs which contain COCs in excess of PCLs within a plume management zone to the extent practicable. In the determination of adequate NAPL reduction, the executive director may consider conformance with the following criteria and other relevant factors:

(i) readily recoverable NAPLs have been recovered;

(ii) the NAPLs will not generate explosive conditions as defined in §350.31(c) of this title (relating to General Requirements for Remedy Standards);

(iii) the NAPLs will not discharge to the ground surface, to surface waters, to structures, or to other groundwater-bearing units;

(iv) the vertical and lateral extent of NAPLs will not increase under natural conditions, or sufficient NAPLs have been recovered such that an active recovery system can be demonstrated to effectively control or contain migration of NAPLs (i.e., no increased NAPL extent); and

(v) the NAPLs will not result in the critical groundwater PCLs being exceeded at the downgradient boundary of the plume management zone or in the critical PCLs for other environmental media being exceeded at the applicable POE.

(F) The person shall have the continuing obligation to assess whether changes to local hydraulic gradients would increase the likelihood that COCs can migrate beyond the plume management zone at concentrations above the critical groundwater PCLs. If such changed conditions occur, the person must take any necessary corrective action to ensure that concentrations of COCs exceeding the critical groundwater PCLs do not migrate beyond the boundary of the plume management zone and report the changed condition to the executive director in a timely manner. The person may demonstrate that the hydrogeologic characteristics of a property are such that off-site activities cannot influence an on-site plume management zone and, thus, not be required to monitor changes in the hydraulic gradient.

(i) A person may choose to attain the groundwater response objectives for a plume management zone at an affected property either by conducting a response action, if necessary, which makes use of removal and/or decontamination, or with use of removal and/or decontamination with controls or controls only. For both of these approaches, in situations where the PCLE zone extends beyond the limits of an institutional control and the POE to groundwater is thus located within the existing limits of the groundwater PCLE zone, a person may use monitored natural attenuation as a decontamination process provided the person shall demonstrate that the groundwater PCLE zone is not expanding and that the critical groundwater PCL will be met at the POE within a reasonable time frame given the particular circumstances of an affected property. In the situation where the groundwater PCLE zone has not reached steady-state conditions and is migrating downgradient within the plume management zone, the person must use a response action other than monitored natural attenuation, unless it can be demonstrated that the critical groundwater PCL and any other critical PCLs will not be exceeded at the respective POEs.

(ii) When a person chooses to attain the groundwater response objectives for a plume management zone at an affected property by conducting a removal and/or decontamination response action, the person must comply with the requirements of this clause.

(I) The person must remove and/or decontaminate the groundwater PCLE zone to the extent necessary so that the critical groundwater PCLs will not be exceeded at the POE and the attenuation action levels are not exceeded at their respective attenuation monitoring points, and so that the critical PCLs for other environmental media will not be exceeded at their applicable POEs.

(II) The person shall fulfill the post-response action care obligations described in the approved RAP.

(III) Provided the person adequately documents attainment of the groundwater plume management zone response objectives provided in subclause (I) of this clause, there are no financial assurance requirements.

(iii) When a person chooses to attain the groundwater response objectives for a plume management zone at an affected property by conducting a response action which uses removal and/or decontamination with controls or controls only, the person must comply with the requirements of this clause.

(I) The person must remove, decontaminate, and/or control the groundwater PCLE zone to the extent necessary so that the critical groundwater PCLs will not be exceeded at the POE and so that the critical PCLs for other environmental media will not be exceeded at their applicable POEs.

(II) The person may use physical controls (e.g., slurry walls, sheet piling, interceptor trenches, or hydraulic control wells) which are capable of reliably containing and preventing the expansion over time of the groundwater source area.

(III) For any portion of a groundwater PCLE zone within class 2 or 3 groundwater which is outside of any physical control constructed in accordance with subclause (II) of this clause, the person must reduce the concentration of COCs such that the remaining COCs will satisfy the conditions specified in clause (ii)(I) of this subparagraph.

(IV) The person shall fulfill the post-response action care obligations described in the approved RAP.

(V) The person shall provide financial assurance for post-response action care in accordance with subsections (l) and (m) of this section.

(g) The type, method and extent of post-response action care will be defined on a site-specific basis in the approved RAP and shall be a function of the long-term effectiveness of the response action used to address the soil and/or groundwater PCLE zones or other environmental media containing COCs, the nature and design of any physical controls, the physical and chemical characteristics of the COCs, the geology and hydrogeology of the affected property, and the adjacent land use. The person shall conduct post-response action care as appropriate which includes, but is not limited to:

(1) monitoring of environmental media to verify response action effectiveness over time;

(2) inspection, operation, and maintenance of physical controls to ensure the effectiveness and integrity of the controls over time; and

(3) any other actions after the initial completion of the response action at an affected property which are necessary to protect human health or the environment.

(h) The post-response action care period begins upon approval of the RACR by the executive director. The person shall perform post-response action care for 30 years unless the person demonstrates that a shorter post-response action care period would be appropriate due to:

(1) the nature of the response action;

(2) the persistence, migration potential, and toxicity of the COCs; and

(3) the physical characteristics and location of the affected property.

(i) The post-response action care activities shall continue throughout the initial post-response action care period in response to subsection (h) of this section and during any continued post-response action care period in response to subsection (j) of this section until a demonstration is made that there is no longer a threat to human health or the environment from the presence of COCs in any environmental media or physical controls. If the person submits a demonstration which documents that post-response action care is no longer necessary then, upon written approval by the executive director, the remainder of the initial or any continued post-response action care period will be canceled and the person will be released from the requirement to maintain financial assurance, and the financial assurance will be returned. The demonstration of no threat to human health or the environment shall be made by adequately documenting one of the following conditions:

(1) the concentrations of COCs in soils are less than or equal to the critical surface and subsurface soil PCLs, as applicable, and the concentrations of COCs in groundwater are less than or equal to the critical groundwater PCLs as documented with three consecutive years of groundwater monitoring data, unless an alternate monitoring period is approved by the executive director;

(2) the post-response action care activity consists entirely of monitoring the effectiveness of a physical control, and the physical control has been proven successful and secure (i.e., the physical control is permanent and does not require any inspections or maintenance);

(3) an affected property contains only a groundwater PCLE zone and such groundwater PCLE zone has been demonstrated to be reducing in size and to have boundaries which are sufficiently smaller than the boundaries of an institutional control so as to preclude any potential for the groundwater PCLE zone to migrate beyond the boundaries of the institutional control considering both natural hydrogeologic conditions and changes to hydraulic gradients by off-site activities; or

(4) the COC concentrations in surface and subsurface soils exceed only ^GW Soil, but the groundwater PCLE zone has been demonstrated to be reducing in size and to have boundaries which are sufficiently smaller than the boundaries of an institutional control so as to preclude any potential for the groundwater PCLE zone to migrate beyond the boundaries of the institutional control considering both natural hydrogeologic conditions and potential changes to hydraulic gradients by off-site activities.

(j) If the person cannot make one of the demonstrations specified in subsection (i) of this section by the end of the initial post-response action care period specified in subsection (h) of this section, then the person shall be required to continue post-response action care for additional 30-year periods or until a demonstration of no threat to human health or the environment can be made under subsection (i) of this section. A shorter continued post-response action care period can be used provided the person demonstrates that such period would be appropriate due to:

(1) the nature of the response action;

(2) the persistence, migration potential, and toxicity of the COCs; and

(3) the physical characteristics and location of the affected property.

(k) The person shall perform the following record keeping and reporting requirements during the initial and any continued post-response action care period:

(1) keep a copy of the approved RAP at the property, or specified alternative location;

(2) keep records of all monitoring data, inspection and maintenance reports, and unexpected occurrences affecting any waste control unit or post-response action care systems;

(3) submit Post-Response Action Care Reports (PRACRs) in accordance with the schedule in the approved RAP; and

(4) notify the executive director in writing within 30 days after an unexpected event occurs, or a condition is detected, during the post-response action care period which indicates that additional response actions will be required at an affected property.

(l) For properties using physical control measures in response to subsections (e)(2) and/or (f) of this section, financial assurance shall be established and maintained for the post-response action care period specified in subsection (h) of this section. The person shall prepare and include in the RAP a written cost estimate in current dollars of the total cost of the post-response action care activities for the post-response action care period specified in subsection (h) of this section. The cost estimate shall be based on the costs of hiring a third party to conduct the post-response action care activities. Within 90 days after the executive director's approval of the RAP and before commencing work indicated in the RAP, an acceptable financial assurance mechanism must be submitted to the commission for post-response action care in the amount specified in the approved RAP. If the total post-response action care cost estimate is $100,000 or less, the executive director may choose to exempt the person from providing a financial assurance demonstration. For persons meeting the requirements of subsection (n) of this section, the amount of financial assurance demonstrated may be less than the total post-response action care cost estimate. Financial assurance for post-response action care shall be demonstrated in compliance with Chapter 37, Subchapter N of this title (relating to Financial Assurance Requirements for the Texas Risk Reduction Program Rules). The executive director may perform the post-response action care activities at an affected property using the funds provided for this purpose when the executive director determines that a person has failed to provide the post-response action care described in an approved RAP.

(m) For properties using physical control measures in response to subsections (e)(2) and/or (f) of this section that require post-response action care beyond the initial post-response action care period, financial assurance shall continue to be demonstrated for the post-response action care period specified in subsection (j) of this section. At least 180 days before the end of the preceding post-response action care period, a written cost estimate in current dollars shall be prepared and submitted for the cost of continuing the post-response action care activities specified in the approved RAP for the additional post-response action care period specified in subsection (j) of this section. The cost estimate shall be based on the costs of hiring a third party to conduct the post-response action care activities. At least 90 days before the end of the preceding post-response action care period, an acceptable financial assurance mechanism shall be submitted for the continued post-response action care period in an amount approved by the executive director. If the total post-response action care cost estimate is $100,000 or less, the executive director may choose to exempt the person from providing a financial assurance demonstration. For persons meeting the requirements of subsection (n) of this section, the amount of financial assurance demonstrated may be less than the total post-response action care estimate. Financial assurance for post-response action care shall be demonstrated in compliance with Chapter 37, Subchapter N of this title (relating to Financial Assurance Requirements for the Texas Risk Reduction Program Rule). The executive director may perform the continued post-response action care activities at an affected property using the funds provided for this purpose when the executive director determines that a person has failed to provide the post-response action care described in an approved RAP.

(n) The owner or an authorized officer of a small business, as defined in this subsection, may seek to reduce the amount of financial assurance demonstrated under this subsection if the initial post-response action care period or subsequent post-response action care periods specified in subsections (h) - (j) of this section are greater than ten years. If the executive director determines a person meets the definition as specified in paragraph (2) of this subsection, the person shall submit the affidavit required by paragraph (1) of this subsection and establish and maintain financial assurance for the post-response action care period in an amount based on the following equation: ((total cost estimate)/(number of years in total response action care period)) X 10. The owner shall continue demonstrating subsequent post-response action care in ten year periods or as directed by the executive director. The owner or an authorized officer is required to notify the executive director when the definition specified in paragraph (2) of this subsection is no longer met. A small business must comply with subsections (l) and (m) of this section relating to financial assurance.

(1) An affidavit signed by the owner or an authorized officer stating the business meets the definition of a small business as defined in paragraph (2) of this section shall be submitted to the executive director.

(2) Definition of small business.

(A) For purposes of financial assurance, a small business shall be defined as any person, firm, or business which employs, by direct payroll and/or through contract, fewer than 100 full-time employees and has net annual receipts of less than $3 million. Net annual receipts are defined as annual gross receipts less returns, discounts, and adjustments. The period used to determine net annual receipts shall be the preceding 12-month accounting year and can be either a calendar or fiscal-based period.

(B) A business that is a wholly-owned subsidiary of a corporation shall not qualify as a small business under this section if the parent organization does not qualify as a small business under this section.

Source Note: The provisions of this §350.33 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526