SECTION 350.55. Notification Requirements

(a) If in the course of the affected property assessment conducted pursuant to §350.51 of this title (relating to Affected Property Assessment) or in the course of complying with this chapter, a person collects any samples from property they do not own (i.e., leased lands and off-site properties), then the analytical results for those samples and any samples subsequently collected from that property that will be provided to the executive director, shall be made available to the owner of that property. The analytical results of any samples collected at any depth from within an easement/franchise area (e.g., municipal or private utility, right-of-way, etc.) exceeding Tier 1 human health PCLs, which will be provided to the executive director, shall be provided to those current easement holders/franchisees. The information made available shall include at a minimum, all analytical results from the sample analyses along with the critical PCL values for the applicable land use classification. The person shall initially provide a notice of availability no later than at the time of submission of a plan and/or report for executive director review which contains this information. Notices of availability shall be delivered to the chief clerk or city secretary for municipal entities. If an ecological exposure pathway is complete, but final ecological PCLs have not yet been established in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), then the person shall at a minimum provide the critical human health PCLs. Within 30 days of commission approval of the Ecological Risk Assessment (i.e., Tier 2 or 3) which contains the final ecological PCLs that shall be used under Remedy Standards A or B, the person shall make the ecological PCLs available to leaseholders to the extent they are known or obvious, and to the owner of the property where that ecological PCL is the critical PCL.

(b) If the person submits other information (i.e., evidence other than samples of environmental media collected from a particular property, such as but not limited to, COC distribution maps) to the executive director which indicates that a COC originating from on-site activities more likely than not exceeds a residential assessment level on property they do not own, then the person shall at a minimum make this information and the critical PCLs for the applicable land use classification available to the owner of the property. The required information shall also be provided to current easement holders/franchisees when there is other information that suggests Tier 1 human health PCLs are exceeded at any depth within an easement/franchise area (e.g., municipal or private utility, right-of-way, etc.). The person shall provide a notice of availability no later than at the time of submission of a plan and/or report for executive director review which contains this information. Notices of availability shall be delivered to the chief clerk or city secretary for municipal entities. If an ecological exposure pathway is complete, but final ecological PCLs have not yet been established in accordance with §350.77 of this title, then the person shall at a minimum provide the critical human health PCLs. Within 30 days of commission approval of the Ecological Risk Assessment (i.e., Tier 2 or 3) which contains the final ecological PCLs that shall be used under Remedy Standard A or B, the person shall make the ecological PCLs available to leaseholders to the extent they are known or obvious, and to the owner of the property where that ecological PCL becomes the critical PCL.

(c) The person shall provide notice of the availability of historical information (i.e., actual sampling and analysis data collected on the property described in subsections (a) and (b) of this section prior to these rules being applicable to that property) to the parties listed in subsections (a) and (b) of this section, as applicable, at the time of submission of the first plan and/or report which includes this same historical information to the executive director for review under this rule.

(d) When subsections (a), (b), or (c) of this section require information to be made available, the notice of availability shall indicate that information is available regarding environmental sample analysis results for the specific property, what information is available, and how to obtain that information (e.g., submit written request to identified contact point). Persons may use legible signs located in readily visible locations to provide notice when the use of signs provides effective notice of the availability of information. If signs are used, the person shall post and maintain the sign for a minimum of 180 consecutive days. To document that all required notices have been completed, the person shall provide a notarized statement of such fact including the names and addresses of persons receiving direct notice such as mail, personal contact, public meeting, fliers, etc., if any, to the executive director which is signed by the person or their appropriate authorized agent certifying that the required notifications have been completed. The notarized statement is to be provided to the executive director within 60 calendar days of the date the notices are due, and may be included within any report submitted under this chapter that is to be submitted within this same time period. The person shall keep on file information which documents that notice was completed for a minimum of five years following the issuance of a no further action letter in accordance with §350.34(1) or (3) of this title (relating to No Further Action) for the affected property. The person shall provide the information which documents notice was completed when requested by the executive director. If the executive director determines that the notice was not sufficient (e.g., it is not factual or clear, or not all appropriate parties were notified) then the person shall complete the notice in a sufficient manner.

(e) When there is an actual or probable human exposure to a COC at a concentration which exceeds the Tier 1 human health PCL (e.g., not GWSoil in this instance) established in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels) for the applicable land use and exposure pathways (e.g, direct contact to soils with concentrations of COCs exceeding the TotSoilComb PCL, or ingestion of groundwater with concentrations of COCs exceeding the GWGWIng PCL, but not including GW Soil), the person shall:

(1) provide notice, as soon as possible, but no later than 60 calendar days from receipt of the laboratory analysis from the performing laboratory, to those actually or probably exposed, the property owner, and the executive director. The determination of those who could be exposed shall consider at a minimum tenants and leaseholders; human activity patterns at the affected property; presence of any areas of congregation or recreation such as but not limited to playgrounds, natural areas, or green belts, or break areas; the distribution and concentration of COCs; conditions of any structures which may allow or prevent exposure to COC in soils, water or vapors; and the source of drinking water. As new information becomes available which indicates that additional parties could be exposed, then those additional parties and the executive director shall be notified as soon as possible, but not later than 14 days of the date actual or probable exposure is determined; unless the actual or probable exposure was determined by additional sampling results in which case notice must occur no later than 60 days from the date of receipt of the laboratory analyses from the performing laboratory.

(2) ensure that the notice indicates that information is available regarding environmental sample analysis results for the specific property, that exposure to COCs is possible given existing conditions, the critical human health PCLs (Tier 1, 2, or 3), how the exposure could be occurring, that more information is available upon request, what that additional information is, and how to obtain the additional information (e.g., submit written request to contact point).

(3) use and maintain legible signs to provide public notice in instances where potential exposure for publically accessible areas such as playgrounds or other similar situations may occur. The person shall maintain the sign so long as the actual or probable exposure conditions exist.

(4) document that all required notices have been completed by providing a notarized statement of such fact including the names and addresses of persons receiving direct notice such as mail, personal contact, public meeting, fliers, etc., if any, and to the executive director which is signed by the person or their appropriate authorized agent certifying that the required notifications have been completed. The certification is to be provided to the executive director within 30 calendar days of the date the notices are due, or within a report to be submitted under this chapter within this same time period. The persons shall keep on file information which documents that notice was completed for a minimum of five years following the issuance of a no further action letter in accordance with §350.34(1) or (3) of this title for the affected property. The person shall provide the information which documents notice was completed when requested by the executive director. If the executive director determines that the notice was not sufficient (e.g., it is not factual or clear, or not all appropriate parties were notified), then the person shall complete the notice in a sufficient manner.

(f) Once a party identified in subsections (a), (b), or (c) of this section provides a written request for the information required to be made available in subsections (a), (b), or (c) of this section from the person providing the notice and at the address provided in the notice, the person must deliver the information to the requestor within 14 calendar days of the date of receipt of the request.

Source Note: The provisions of this §350.55 adopted to be effective September 23, 1999, 24 TexReg 7436