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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER A
GFCNERAL INFORMATION
RULE §350.1
Purpose
This chapter specifies the information and procedures necessary to demonstrate compliance with the
Texas Risk Reduction Program. This program provides a consistent corrective action process directed
toward protection of human health and the environment balanced with the economic welfare of the
citizens of this state. This program uses a tiered approach incorporating risk assessment techniques to
help focus investigations, to determine appropriate protective concentration levels for human health,
and when necessary, for ecological receptors. The program also sets reasonable response objectives that
will protect human health and the environment and preserve the active and productive use of land.
(1) The provisions of this chapter in no way prohibit actions which should be taken by the person to
mitigate emergency situations, to abate an ongoing release, or to stabilize or abate the spread of
released chemicals of concern.
(2) All engineering, geoscientific, and surveying information submitted to the agency shall be
prepared by, or under the supervision of, a licensed professional engineer, licensed professional
geoscientist, or licensed professional surveyor and shall be signed, sealed, and dated by qualified
professionals as required by the Texas Engineering Practice Act, the Texas Geoscience Practice Act,
the Texas Professional Land Surveying Practices Act and the licensing and registration boards under
these acts.
Source Note: The provisions of this §350.1 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective September 1, 2003, 28 TexReg 6935
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER A GENERAL INFORMATION
RULE §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
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of Protective Concentration Levels).
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(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 this chapter for the assessment,
response actions, and post- response action care for releases of regulated substances from underground
storage tanks (USTs) as specified in Chapter 334, Subchapter A of this title (relating to General
Provisions), as amended, and for releases of petroleum products from aboveground storage tanks
(ASTs) as specified in Chapter 334, Subchapter F of this title (relating to Aboveground Storage Tanks),
as amended, which are reported to the executive director in accordance with Chapter 334, Subchapter D
of this title (relating to Release Reporting and Corrective Action), as amended, on or after September 1,
2003, unless a variance is granted in accordance with the requirements in paragraphs (1) - (7) of this
subsection. Additional corrective action requirements for these facilities are found in Chapter 334,
Subchapters D, J, and K of this title (relating to Release Reporting and Corrective Action; Leaking
Petroleum Storage Tank Corrective Action Specialist Registration and Project Manager Licensing; and
Storage, Treatment, and Reuse Procedures for Petroleum - Substance Contaminated Soil, respectively),
as amended. For releases discovered and reported to the executive director before September 1, 2003,
the person shall continue to comply with Chapter 334, Subchapters D, G, H, J, K, and M of this title
(relating to Release Reporting and Corrective Action; Target Concentration Criteria; Reimbursement
Program; Leaking Petroleum Storage Tank Corrective Action Specialist Registration and Project
Manager Licensing; Storage, Treatment, and Reuse Procedures for Petroleum - Substance Contaminated
Soil; and Reimbursable Cost Specifications for the Petroleum Storage Tank Reimbursement Program,
respectively), as amended, which were in effect prior to the effective date of this chapter, not to
preclude compliance with a subsequent amendment of Chapter 334 of this title.
(1) The executive director may consider requests for a variance to applicability of this chapter, as
amended, upon submission of a written request for a variance from applicability of this chapter that
includes the following documentation in a form prescribed or allowed by the executive director:
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(A) documents, either submitted in accordance with the requirements of Chapter 334, Subchapters A,
C, D, and F of this title, as amended and as applicable, or otherwise credible and appropriate
documented evidence as determined by the executive director demonstrating that, before September 1,
2003, the UST system at the property for which the variance is sought was permanently removed from
service and the AST at the property for which the variance is sought was removed from the property;
(B) a draft restrictive covenant to be filed in the property records of the county where the property is
located upon granting of the variance by the executive director that:
(i) prohibits use of ASTs or USTs at the property or at any subsequent subdivision of the property;
(ii) is written in favor of the TCEQ and the State of Texas; and
(iii) runs with the land;
(C) documents identifying UST or AST release sites addressed under Chapter 334, Subchapters D
and G of this title, as amended, that are within 1/4 mile from the property for which the variance is
sought, with an accompanying description comparing the release, site, and receptor conditions at the
release sites located within 1/4 mile and any other relevant factors that demonstrate any regulatory
inequity that may occur as the result of compliance with this chapter; and
(D) any other information requested by the executive director that is reasonably necessary for
appropriate consideration of the request.
(2) The executive director may grant a variance requested in accordance with paragraph (1) of this
subsection if-.
(A) before September 1, 2003, the UST system at the site for which the variance is sought was
permanently removed from service and the AST at the site for which the variance is sought was
removed from the property;
(B) a UST or AST release site addressed under Chapter 334, Subchapters D and G of this title, as
amended, is within 1/4 mile from the site for which a variance is sought;
(C) within 45 calendar days of a request for additional information by the executive director, or
within a time period directed or agreed upon by the executive director in writing, the person seeking a
variance submitted the requested information; and
(D) the variance request documents an unjustifiable degree of regulatory inequity between the site
for which a variance is sought and a UST or AST release site addressed under Chapter 334,
Subchapters D and G of this title, based on a comparison of the release, site, and receptor conditions
and any other relevant factors at the release sites located within 1/4 mile.
(3) The executive director must provide written notice to the person seeking the variance that the
variance is granted, denied, or repealed. The executive director may direct the person seeking the
variance to make changes to the draft restrictive covenant described in paragraph (1)(B) of this
subsection if necessary to ensure; that the restrictive covenant conforms with the intent of this
subsection. If the executive director denies the request or repeals the variance, the notice required by
this paragraph must include the ireason(s) the variance has been denied or repealed.
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(4) Within 45 calendar days of issuance of the written notice described in paragraph (3) of this
subsection that grants the variance, the person who sought the variance shall provide:
(A) proof that the restrictive covenant, with any changes directed by the executive director, described
in paragraph (1)(B) of this subsection was filed in the property records of the county where the property
is located; and
(B) a copy of the restrictive covenant filed in the property records of the county where the property is
located.
(5) Upon the effective date indicated in the notice granting a variance, the person who sought the
variance shall comply with Chapter 334, Subchapters D and G of this title, as amended, in lieu of this
chapter.
(6) The executive director shall. repeal a variance if the person who sought the variance fails to comply
with paragraph (4) of this subsection unless the person who sought the variance provides compelling
evidence that uncontrollable circumstances, including, but not limited to, an act of God, an act of war,
severe meteorological conditions, or other similar occurrences beyond the reasonable control of the
person seeking the variance, led to their inability to comply within the time frame provided in
paragraph (4) of this subsection.
(7) Regardless of whether the release has been fully addressed and closed under Chapter 334,
Subchapters D and G of this title, a variance granted under this subsection is automatically repealed,
and this chapter becomes immediately applicable to the release, if the property or subdivision of the
property is used for UST or AST purposes as regulated under Chapter 334 of this title.
(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 Cont'd...
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TITLE 30
ENVIRONMENTAL QUALITY
PART_1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 3.50
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER A
GENERAL INFORMATION
RULE §350.3
Process
Once a release of COCs as defined by various programs has been identified and reported pursuant to
rules or procedures established by one of the program areas identified in §350.2 of this title (relating to
Applicability), this chapter controls the assessment and any action taken in response to that release.
Upon initial notification to the appropriate program, the person will follow the general process as stated
in paragraphs (1) - (5) of this section to demonstrate compliance with this chapter.
(1) The person shall conduct an affected property assessment, classify groundwater, determine land
use, and notify affected property owners in accordance with this subchapter and Subchapter C of this
chapter (relating to Affected Property Assessment).
(2) The person shall determine critical protective concentration levels in accordance with Subchapter
D of this chapter (relating to Development of Protective Concentration Levels) for the appropriate
environmental media.
(3) The person shall develop a response action capable of attaining the response objectives under
Remedy Standard A or B in accordance with Subchapter B of this chapter (relating to Remedy
Standards).
(4) The person shall develop and submit the reports required in Subchapter B of this chapter (relating
to Remedy Standards) which contain the information specified for each report in Subchapter E of this
chapter (relating to Reports). The sequencing of report submission is illustrated in the following figure.
Attached Graphic
(5) The person shall implement the response action, document conformance with the response
objectives, and if required, file institutional controls, perform post- response action care, and establish
financial assurance in accordance with Subchapter B of this chapter (relating to Remedy Standards).
Source Note: The provisions of this §350.3 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30
PART 1
CHAPTER 350
SUBCHAPTER A
RULE §350.4
(a) Definitions.
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ENVIRONMENTAL QUALITY
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
TEXAS RISK REDUCTION PROGRAM
GENERAL INFORMATION
Definitions and Acronyms
(1) Affected property - -The entire area (i.e., on -site and off -site; including all environmental media)
which contains releases of chemicals of concern at concentrations equal to or greater than the
assessment level applicable for residential land use and groundwater classification.
(2) Alternate point of exposure - -A location other than the prescribed point of exposure where an
individual human or population will be assumed to have a reasonable potential to come into contact
with chemicals of concern based on property - specific considerations.
(3) Assessment level - -A critical protective concentration level for a chemical of concern used for
affected property assessments where the human health protective concentration level is established
under a Tier 1 evaluation as described in §350.75(b) of this title (relating to Tiered Human Health
Protective Concentration Level Evaluation), except for the protective concentration level for the soil -to-
groundwater exposure pathway which may be established under Tier 1, 2, or 3 as described in §350.75
(i)(7) of this title, and ecological protective concentration levels which are developed, when necessary,
under Tier 2 and/or 3 in accordance with §350.77(c) and/or (d), respectively, of this title (relating to
Ecological Risk Assessment and Development of Ecological Protective Concentration Levels).
(4) Attenuation action level - -The maximum concentration of a chemical of concern which can be
present at an attenuation monitoring point and not exceed the applicable critical protective
concentration level at the points of exposure over time.
(5) Attenuation monitoring point - -A location within the migration pathway of a chemical of concern
which is used to verify that the critical PCL will not be exceeded at the points of exposure.
(6) Background - -A population of concentrations characterized from samples in an environmental
medium containing a chemical of concern that is naturally occurring (i.e., the concentration is not due
to a release of chemicals of concern from human activities) or anthropogenic (i.e., the presence of a
chemical of concern in the environment which is due to human activities, but is not the result of site -
specific use or release of waste or products, or industrial activity). Examples of anthropogenic sources
include non -site specific sources such as lead from automobile emissions, arsenic from use of
defoliants, and polynuclear aromatic hydrocarbons resulting from combustion of hydrocarbons. There
are some commonalities regardless of the activity; specifically, the chemicals of concern have resulted
from the use of a product in its intended manner and may be present at generally low levels over large
areas (tens of square miles up to hundreds of square miles). Background is required for use in a
statistical model appropriate for testing the hypothesis that the background area characterized by these
kinds of models has the same concentrations of the chemical of concern as the affected property. The
background area characterized is as "close" as possible to the affected property, in either space or time,
as required.
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(7) Bedrock - -The solid rock (i.e., consolidated, coherent, and relatively hard naturally formed material
that cannot normally be excavated by manual methods alone) that underlies gravel, soil or other
surficial material.
(8) Bioaccumulative chemical of concern- -A chemical of concern which has the tendency to
accumulate in the tissues of an organism as a result of food consumption or dietary exposure and/or
direct exposure (e.g., gills and epithelial tissue) to an environmental medium.
(9) Carcinogen - -A chemical of concern which causes an increased incidence of benign or malignant
neoplasms, or substantially decreases the time to develop neoplasms, in animals or humans (a chemical
of concern can act as both a carcinogen and a noncarcinogen).
(10) Carcinogenic risk level - -The probability of development of a neoplasm due to continuous
lifetime exposure to a single carcinogen acting through an individual or combined exposure pathway.
(11) Chemical of concern - -Any chemical that has the potential to adversely affect ecological or human
receptors due to its concentration, distribution, and mode of toxicity. Depending on the program area,
chemicals of concern may include the following: solid waste, industrial solid waste, municipal solid
waste, and hazardous waste as defined in the Texas Health and Safety Code, §361.003, as amended;
hazardous constituents as listed in 40 Code of Federal Regulations Part 261, Appendix VIII, as
amended; constituents on the groundwater monitoring list in 40 Code of Federal Regulations Part 264,
Appendix IX, as amended; constituents as listed in 40 Code of Federal Regulations Part 258
Appendices I and II, as amended.; pollutant as defined in Texas Water Code, §26.001, as amended;
hazardous substance as defined in the Texas Health and Safety Code, §361.003, as amended, and Texas
Water Code, §26.263, as amended; regulated substance as defined in Texas Water Code, §26.342, as
amended, and §334.2 of this title; (relating to Definitions), as amended; petroleum product as defined in
Texas Water Code, §26.342, as amended, and §334.122(b)(12) of this title (relating to Definitions for
ASTs), as amended; other substances as defined in Texas Water Code, §26.039(a), as amended; and
daughter products of the aforementioned constituents.
(12) Closure - -The act of permanently taking a waste management unit or facility out of service.
(13) Commercial/industrial land use - -Any real property or portions of a property not used for human
habitation or for other purposes with a similar potential for human exposure as defined for residential
land. Examples of commercial/industrial land use include manufacturing; industrial research and
development; utilities; commercial warehouse operations; lumber yards; retail gas stations; auto service
stations; auto dealerships; equipment repair and service stations; professional offices (lawyers,
architects, engineers, real estate, insurance, etc.); medical /dental offices and clinics (not including
hospitals); financial institutions; office buildings; any retail business whose principal activity is the sale
of food or merchandise; personal'. service establishments (health clubs, barber/beauty salons, mortuaries,
photographic studios, etc.); churches (not including churches providing day care or school services
other than during normal worship services); motels/hotels (not including those which allow residence);
agricultural lands; and portions of government -owned land (local, state, or federal) that have
commercial /industrial activities occurring. Land use activities consistent with this classification have
the North American Industrial Classification System code numbers 11 - 21 inclusive; 22 except 22131;
23 - 56 inclusive; 61 except 6111.1, 61121, and 61131; 62 except 62211, 62221, 62231, 62311, 62322,
623311, 623312, 62399, and 62441; 71 except 71219; 72 except 721211 and 72131; 81 except 814; and
92 excluding 92214.
(14) Community - -An assemblage of plant and animal populations occupying the same habitat in
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which the various species interact via spatial and trophic relationships (e.g., a desert community or a
pond community).
(15) Compensatory ecological restoration- -The creation of ecological services by or through
restoration or the setting aside of, preferably, a comparable type of habitat as that which is impacted to
offset residual ecological risk at an affected property. A net environmental benefits analysis or similar
evaluation of ecological services may be used in the determination of the appropriate level of
compensation.
(16) Complete exposure pathway - -An exposure pathway where a human or ecological receptor is
exposed to a chemical of concern via an exposure route (e.g., incidental soil ingestion, inhalation of
volatiles and particulates, consumption of prey, etc.).
(17) Construction zone - -The typical depth of construction within soil for an affected property
considering the planned or historical installation of subsurface utilities, foundations, basements, or
other such subsurface structures within the vicinity of the affected property not to extend below the top
of bedrock.
(18) Control - -To apply physical or institutional controls to prevent exposure to chemicals of concern.
Control measures must be combined with appropriate maintenance, monitoring, and any necessary
further response action to be protective of human health and the environment.
v 19) Critical protective concentration level - -The lowest protective concentration level for a chemical
Q(�f concern within a source medium determined from all of the applicable human health exposure
athways as described in §350.71 of this title (relating to General Requirements), and when necessary,
protective concentration levels for applicable ecological exposure pathways as required in §350.77 of
this title (relating to Ecological Risk Assessment and Development of Ecological Protective
Concentration Levels).
(20) Cumulative carcinogenic risk - -The aggregate risk due to exposure of an individual human
receptor to multiple carcinogens originating from a single affected property and acting through an
individual or combined exposure; pathway.
(2 1) Decontaminate -- Application or occurrence of a permanent and irreversible treatment process to a
waste or environmental medium so that the threat of release of chemicals of concern at concentrations
above the critical protective concentration levels is eliminated.
(22) Deed notice - -An instrument filed in the real property records of the county where the affected
property is located that is intended to provide to owners, prospective buyers and others notice and
information regarding, but which does not, by itself, restrict use of the affected property.
(23) De minimus - -The description of an area of affected property comprised of one acre or less where
the ecological risk is considered to be insignificant because of the small extent of contamination, the
absence of protected species, the availability of similar unimpacted habitat nearby, and the lack of
adjacent sensitive environmental areas.
(24) Ecological benchmark - -A state standard, federal guideline, or other exposure level for a chemical
of concern in water, sediment, or soil that represents a protective threshold from adverse ecological
effects. An ecological benchmark may also be a toxicity reference value that is established by the
person based on scientific studies in the literature.
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(25) Ecological hazard index - -The sum of individual ecological hazard quotients of COCs within a
class of compounds that exert ecological effects which have the same toxicological mechanism or
endpoint (e.g., PAHs, PCBs).
(26) Ecological hazard quotient- -The ratio of an exposure level to a chemical of concern to a toxicity
value selected for the risk assessment for that chemical of concern (e.g., a no observed adverse effects
level).
(27) Ecological protective concentration level - -The concentration of a chemical of concern at the
point of exposure within an exposure medium (e.g., soil, sediment, groundwater, or surface water)
which is determined in accordance with §350.77(c) or (d) of this title (relating to Ecological Risk
Assessment and Development of Ecological Protective Concentration Levels) to be protective for
ecological receptors. These concentration levels are primarily intended to be protective for more mobile
or wide - ranging ecological receptors and, where appropriate, benthic invertebrate communities within
the waters in the state. These concentration levels are not intended to be directly protective of receptors
with limited mobility or range (e.g., plants, soil invertebrates, and small rodents), particularly those
residing within active areas of a facility, unless these receptors are threatened/endangered species or
unless impacts to these receptors result in disruption of the ecosystem or other unacceptable
consequences for the more mobile or wide - ranging receptors (e.g., impacts to an off -site grassland
habitat eliminate rodents which causes a desirable owl population to leave the area).
(28) Ecological risk assessment--The process that evaluates the likelihood that adverse ecological
effects may occur or are occurring as a result of exposure to one or more stressors; however, as used in
this context, only chemical stressors (i.e., COCs) are evaluated.
(29) Ecological services- -The physical, chemical, or biological functions of natural resources that one
natural resource provides for another or to the public. Examples include provision of food, protection
from predation, and nesting habitat, among others.
(30) Ecological services analysis - -A measurement of the potential change in ecological services based
on considerations which may include, but are not limited to: the percent change in ecological services
at the affected property that are attributable to COCs and/or potential response actions; the spatial
extent of the affected property; and the recovery period.
(3 1) Environmental medium - -A material found in the natural environment such as soil (including non-
waste fill materials), groundwater, air, surface water, and sediments, or a mixture of such materials with
liquids, sludges, gases, or solids, including hazardous waste which is inseparable by simple mechanical
removal processes, and is made up primarily of natural environmental material.
(32) Exclusion criteria - -Those conditions at an affected property which preclude the need to establish
a protective concentration level J.br an ecological exposure pathway because the exposure pathway
between the chemical of concern and the ecological receptors is not complete or is insignificant.
(33) Exposure area- -The smallest property surface area within which it is believed that exposure to
chemicals of concern in soil or air by a receptor would be limited under reasonably anticipated current
or future use scenarios.
Cont'd.
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER A
GENERAL INFORMATION
RULE §350.5
Se,verability
The provisions of this chapter are intended to be severable and are deemed severable and, should any
provision of this chapter be rendered unenforceable by a court of competent jurisdiction or other
appropriate authority, the remaining provisions shall remain valid and enforceable.
Source Note: The provisions of this §350.5 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER B REMEDY STANDARDS
RULE §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.
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(g) The person attaining Remedy Standard A for commercial /industrial land use or Remedy Standard B
for residential or commercial / incustrial 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.
0) 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
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TE:KAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER B REMEDY STANDARDS
RULE §350.32 Remedy Standard A
(a) To attain Remedy Standard Q4.,, the person shall within a reasonable time frame given the particular
circumstances of an affected property:
(1) Remove any listed hazardous waste as defined in 40 Code of Federal Regulations Part 261,
Subpart D, as amended, which is contained within a waste management facility component (e.g., tank,
surface impoundment, etc.) or which is separable from environmental media using simple mechanical
removal processes;
(2) Remove and/or decontaminate any waste or environmental media which is characteristically
hazardous due to ignitability, cOrTOsivity, reactivity, or toxicity characteristic as defined in 40 Code of
Federal Regulations Part 261, Subpart C, as amended;
(3) Remove and/or decontaminate the surface soil, subsurface soil, and groundwater PCLE zones,
other environmental media, and non- hazardous waste to achieve COC concentration levels below the
residential or commercial/industrial critical PCLs, as applicable; and
(4) Demonstrate the affected property is protective for ecological receptors.
(b) Response actions under Remedy Standard A must result in permanent risk reduction at an affected
property.
(1) The person shall not use physical controls under Remedy Standard A.
(2) The person shall remediate the affected property such that the concentration of COCs in surface
soil, subsurface soil, groundwater, and other environmental media do not exceed the applicable critical
PCLs.
(3) Remedial alternatives, including the use of monitored natural attenuation as a decontamination
remedy, must be capable of achieving the Remedy Standard A objectives within a reasonable time
frame, given the particular circumstances at the affected property; and 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. The executive
director may require a demonstration of the appropriateness of a remedy in the context of the above -
mentioned criteria for any remedy, regardless of the status of self - implementation as allowed in
subsection (d) of this section. If the executive director requires such a demonstration, the person is not
required to await executive director approval to proceed with self - implementation; however, if the
executive director determines that the self - implementing response action is inappropriate based on
these criteria, then the executive director shall require appropriate response actions to be taken.
(c) The person shall determine the PCLs for Remedy Standard A using exposure pathways where the
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human or ecological receptor comes into contact with the COCs directly within, above, or below a
source medium. Lateral transport considerations which place the POE at a location outside of the
source area cannot be used to determine PCLs for Remedy Standard A, with the exception that, when
necessary, the person shall perform lateral transport calculations to determine whether PCLs calculated
based upon on -site commercial/industrial workers are protective of off -site residents.
(d) Remedy Standard A is a self'-implementing standard unless the person desires to modify exposure
factors under §350.740) of this title (relating to Development of Risk -Based Exposure Limits) which
requires prior executive director approval, or unless the person chooses not to self - implement. The
person shall submit a SIN to the executive director and the agency's office in the region where the
affected property is located at least 10 days prior to conducting a response action under this remedy
standard. The person may then perform the response action without receiving the executive director's
approval, unless such prior approval is required by another agency rule, order, or permit. If the person
chooses not to self - implement, then the person shall submit a RAP for review and approval by the
executive director. The person shall include an APAR with the RAP unless an APAR has previously
been submitted.
(e) The person cannot use a demonstration of technical impracticability when responding to soil and/or
groundwater PCLE zones, or other affected environmental media under Remedy Standard A.
(f) The person shall prevent COCs at concentrations above the critical groundwater PCLs from
migrating beyond the existing boundary of the groundwater PCLE zone.
(g) There are no post- response action care or financial assurance requirements for Remedy Standard A
response actions, provided the person adequately documents attainment of the response objectives
provided in subsection (a) of this section. When considered warranted, the executive director may
require the person to monitor environmental media to verify that the models used to determine PCLs
established under Tiers 2 or 3 as provided in §350.75 of this title (relating to Tiered Human Health
Protective Concentration Level Evaluation) yield protective PCLs.
Source Note: The provisions of this §350.32 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER B REMEDY STANDARDS
RULE §350.33 Remedy Standard B
(a) To attain Remedy Standard 13, 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;
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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 El 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
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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 CO�Cs 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 (1) 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 (1) 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
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(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 COC's 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.
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TEXAS RISK REDUCTION PROGRAM
REMEDY STANDARDS
1STo Further Action
Particular agency program areas covered by this rule will confirm that a person has completed all necessary
response actions at an affected property and that no further action is required. The program areas may issue
other letters acknowledging conditional or partial completion of response actions, as appropriate.
(1) For Remedy Standard A, such confirmation will be issued subsequent to approval of the RACR by the
executive director and, when applicable, receipt by the agency of proof that any required institutional control
noting commercial/industrial land use is in effect for the affected property in accordance with §350.3l(g) of
this title (relating to General Requirements for Remedy Standards), or noting the use of a non - default exposure
area is in effect in accordance with §350.51(1)(3) or 4 of this title (relating to Affected Property Assessment), or
noting the use of occupational inhalation criteria as RBELs is in effect in accordance with §350.74(b)(1) or
noting the use of non - default RBEL exposure factors is in effect in accordance with §350.740)(2) of this title
(relating to Development of Risk -Based Exposure Limits).
(2) For Remedy Standard B, a conditional no further action letter will be issued subsequent to approval of the
RACR by the executive director and, when applicable, receipt by the agency of proof that any required
institutional control noting commercial /industrial land use is in effect for the affected property in accordance
with §350.3l (g) of this title (relating to General Requirements for Remedy Standards), or noting the use of a
non - default exposure area is in effect in accordance with §350.51(1)(3) or 4 of this title, or noting the use of
occupational inhalation criteria as RBELs is in effect in accordance with §350.74(b)(1) or noting the use of
non - default RBEL exposure factors is in effect in accordance with §350.746)(2) of this title. The letter will
indicate that the person has conditionally completed response actions at the affected property but must perform
post- response action care obligations as described in the approved RAP throughout the initial and any
continued post- response action care period in response to §350.33(h) - 0) of this title (relating to Remedy
Standard B). The letter will also indicate whether the person must establish and maintain financial assurance in
response to §350.33(1) and /or (m) of this title for post- response action care for affected properties which use
physical controls.
(3) For Remedy Standard B, a final no further action letter will be issued subsequent to termination of the
post- response action care period by the executive director as described in §350.33(1) of this title.
Source Note: The provisions of this §350.34 adopted to be effective September 23, 1999, 24 TexReg 7436;
amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART i
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 3.50 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER B REMEDY STANDARDS
RULE §350.35 Substantial Change in Circumstances
(a) Upon receipt of approval by the executive director of the RACR, performance of applicable post -
response action care, maintenance of any applicable financial assurance, and termination of any
applicable post- response action care period by the executive director, the person will have completed
the obligations of this chapter unless a substantial change in circumstances results in an unacceptable
risk to human health or the environment.
(b) No person shall cause, suffer, allow, or permit a threat to human health or the environment by
changing a land use specified in an approved RACR from commercial/industrial to residential or by
removing, altering or failing to maintain a physical or institutional control that applies to an affected
property that underwent an approved response action.
(c) If a person plans to change the land use from commercial /industrial to residential, or to eliminate or
modify the use of a physical control or institutional control, then that person shall take any actions
necessary to make the property protective for such changed conditions. The person making the change
shall notify the executive director in writing at least 60 days prior to changing the land use or the use of
the approved physical or institutional controls. The person may self - implement actions to satisfy the
requirements of paragraph (1) or (2) of this subsection but must obtain prior approval of the executive
director to undertake actions for paragraph (3) of this subsection. The person making the change shall
then provide a reevaluation of the property at least 30 days prior to the date of the planned change such
that the person is able to demonstrate:
(1) that levels of COCs have degraded to concentration levels below the applicable critical PCLs for
the planned land use or property condition change;
(2) that the COC removal or decontamination will meet the applicable critical PCLs for the planned
land use or property condition change; or
(3) that the application of a proposed physical and/or institutional control will ensure adequate
protection of human health and the environment. Any proposed institutional control shall conform with
all requirements of §350.111 of this title (relating to Use of Institutional Controls).
(d) A substantial change in circumstances shall include, but is not limited to, the situations described in
paragraphs (1) -(5) of this subsection. In response to these substantial changes in circumstances, the
person shall use the rule in effect: at the time of the substantial change to protect human health or the
environment. This subsection will only apply to affected properties regulated under §350.2(g) of this
title (relating to Applicability) which have completed response actions under this chapter.
(1) An institutional or physical control fails to prevent exposure at the approved performance level.
(2) An actual exposure condition is determined to be occurring at levels not protective of human
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health or the environment (e.g, unprotective ecological exposure is occurring).
(3) New information indicates that the presence of COCs at the affected property was not sufficiently
characterized such that an unacceptable threat to human health or the environment continues to exist.
(4) The exposure area upon which representative concentrations are based in accordance with §350.51
of this title (relating to Affected Property Assessment) changes, and as a result of the changed exposure
area, there is an unacceptable threat to human health or the environment.
(5) A health and safety plan to ensure compliance with occupational inhalation criteria as RBELs as
provided for in §350.74(b)(1) of this title (relating to Development of Risk -Based Exposure Limits)
will no longer be maintained.
(e) For purposes of this section, changes made to this chapter in response to periodic reviews of the
general procedures specified to generate PCLs, or in response to revisions to reflect new toxicity data,
do not constitute a substantial change in circumstances, unless these changes are of such magnitude to
present an unacceptable threat to human health or the environment when evaluated for future exposure
conditions based on property - specific considerations. This subsection will only apply to affected
properties regulated under §350.2(g) of this title (relating to Applicability) which have completed
response actions under this chapter.
(f) If the person determines that the conditions specified in subsection (c)(1) or (2) of this section are
met such that a deed notice, VCP certificate of completion, or restrictive covenant is no longer needed
to protect human health and the environment, then the person may request that the executive director
approve a superseding deed notice in accordance with §350.111(b)(4) of this title (relating to Use of
Institutional Controls) or a restrictive covenant release in accordance with §350.11 l(b)(7) of this title
(relating to Use of Institutional Controls) if a deed notice or restrictive covenant was the form of
institutional control. The person shall provide the necessary information to document that the
conditions of subsection (c)(1) or (2) of this section are met.
Source Note: The provisions of this §350.35 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART" 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER B REMEDY STANDARDS
RULE §350.36 Relocation of Soils Containing Chemicals of Concern for
Reuse Purposes
(a) A person must comply with this section when relocating soils for reuse purposes from an affected
property (on -site or off -site) which is undergoing or has completed a response action under Remedy
Standard A or B and the soils contain COCs in excess of naturally occurring background
concentrations. Relocation of soils which contain COCs may be subject to additional requirements or
limitations (e.g., land disposal restrictions) within each program area identified in §350.2 of this title
(relating to Applicability). The person must treat excavated soils containing non - aqueous phase liquids
to applicable levels prior to relocation or else manage the soils as wastes. The excavation of soils
containing COCs during construction activities (e.g., installation, repair, removal of telephone lines or
other utilities, but not closures, remediations, or PST tank removal actions, for example) and the
subsequent replacement of those soils into that same excavation shall not be considered to constitute
relocation or reuse and shall not be subject to the provisions of this section.
(b) The person may relocate soils for reuse in response to Remedy Standard A when COCs meet the
critical soil PCLs and the following requirements for the new location.
(1) Soils to be reused must meet the residential or commercial/industrial critical surface or subsurface
soil PCLs as applicable for the new location, depending upon depth of placement, established in
accordance with Subchapter D of this chapter (relating to Development of Protective Concentration
Levels).
(2) The soil reuse shall be protective of ecological receptors at the new location.
(3) The soil reuse activity must allow the requirements for Remedy Standard A response actions set
forth in §350.32(a) of this title (relating to Remedy Standard A) to be met at the new location.
(4) The person shall comply with the institutional control requirement for commercial /industrial land
use as specified in §350.31(g) of this title (relating to General Requirements for Remedy Standards).
Proof of compliance with the institutional control requirement shall be submitted within 90 days of
completing the relocation action.
(5) The reuse of soils with concentrations of COCs which do not exceed the critical soil PCLs for the
new location does not require the prior approval of the executive director, when that new location is
within the boundary of on -site or off -site property which contains the affected property (i.e., not just
within the affected property limits).
(c) The person must meet the following requirements in response to Remedy Standard B when soils
that are to be relocated for reuse purposes contain concentrations of COCs that exceed the critical soil
PCLs for the new location.
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(1) The person shall determine the critical surface and, if applicable, subsurface soil PCLs in
accordance with Subchapter D of this chapter (relating to Development of Protective Concentration
Levels) for the new location.
(2) The soil reuse must be protective of ecological receptors at the new location.
(3) The person shall demonstrate that the soil reuse activity will allow the requirements for Remedy
Standard B response actions set forth in §350.33(a) of this title (relating to Remedy Standard B) to be
met for the new location.
(4) The person shall comply with the institutional control requirements specified in §350.31(g) of this
title (relating to General Requirements for Remedy Standards). Proof of compliance with the
institutional control shall be submitted within 90 days of completing the relocation action.
(5) The reuse of soil under Remedy Standard B requires prior executive director approval.
(6) The executive director may, require the person to conduct post- response action care and submit
PRACRs.
(7) The executive director may require the person to provide financial assurance for post- response
action care in response to §350.33(e)(2)(C) of this title (relating to Remedy Standard B).
(d) If soils which contain concentrations of COCs above naturally- occurring levels resulting from a
release are to be relocated for reuse on property not owned by the person, then the person shall obtain
the written consent of the landowner prior to relocation of the soils.
(e) Within 90 days of completing a soil relocation action under this section, the person shall complete
the applicable portions of a RACR as described in §350.95 of this title (relating to Response Action
Completion Report) and make it available for inspection or submittal upon request of the executive
director.
Source Note: The provisions of this §350.36 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER _B REMEDY STANDARDS
RULE §350.37 Human Health Points of Exposure
(a) General. The person shall use the prescribed on -site and off -site POEs for humans to environmental
media to determine PCLs under Remedy Standard A in response to §350.32 of this title (relating to
Remedy Standard A) and under Remedy Standard B in response to §350.33 of this title (relating to
Remedy Standard B). In order to establish on -site or off -site POEs for commercial /industrial land use,
or alternate POEs for on -site or off -site properties, the person must comply with §350.111 of this title
(relating to Use of Institutional Controls). Consideration of competent, existing physical controls during
the pathway analysis described in §350.71(d) of this title (relating to General Requirements) does not
negate or otherwise supercede the POE locations specified in this section. Subsections (b) - (k) of this
section identify the media - specific prescribed, on -site and off -site POEs while subsections (1) and (m)
of this section establish alternate POEs for class 2 and 3 groundwater under Remedy Standard B. When
establishing on -site and off -site POEs for residential or commercial/industrial land use, persons shall
use the appropriate receptor as required in §350.71(b) of this title (relating to General Requirements)
for the designated land use.
(b) Air human health POEs.
(1) On -site POEs. The prescribed on -site POE to air is within the breathing zone (2 meter height)
directly over the soil or groundwater COCs.
(2) Off -site POEs. The prescribed off -site POE to air is within the breathing zone (2 meter height)
starting at the nearest boundary with and continuing throughout neighboring off -site properties.
(c) Soil human health POEs.
(1) On -site POEs. The prescribed on -site POE to soil is throughout the surface soil.
(2) Off -site POEs. The prescribed off -site POE to soil is throughout the surface soil starting at the
nearest boundary with and continuing throughout neighboring off -site properties.
(d) Human health POEs for class 1, 2, and 3 groundwaters which do not contain any COCs in excess of
the critical groundwater PCLs.
(1) On -site POE. The prescribed on -site POE is throughout the upper -most groundwater- bearing unit.
(2) Off -site POE. The prescribed off -site POE is throughout the upper -most groundwater- bearing unit
on the nearest boundary with the closest hydraulically downgradient off -site property.
(e) General provisions for human health POEs for class 1, 2, or 3 groundwater.
(1) Whenever there is an existing class 1, 2, or 3 groundwater PCLE zone beneath an existing waste
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control unit or a waste control unit planned as part of an approved RAP, under Remedy Standard B the
person may, with the executive director's approval, exclude the area underlying the waste control unit
as a POE to class 1, 2, or 3 groundwater.
(2) Groundwater travel time setback distances for class 1, 2, and 3 groundwater shall be determined
based on groundwater seepage velocity which is dependent upon prevailing hydraulic gradient,
hydraulic conductivity, and effective porosity.
(f) Human health POEs for class 1 groundwater.
(1) On -site POEs. The prescribed on -site POE to class 1 groundwater is a well which may be
completed at all locations throughout the on -site groundwater PCLE zone. For on -site
commercial /industrial land use, the person shall establish an additional on -site POE for class 1
groundwater for residents unless the residential -based groundwater PCLE zone already extends off -site.
The residential POE shall be set at a distance of two -year groundwater travel time upgradient of the
nearest boundary with the closest hydraulically downgradient off -site property. If the residential -based
groundwater PCLE zone already extends beyond the two -year groundwater travel time setback distance
but not off -site, then the residential POE shall be set at the existing limit of the residential -based
groundwater PCLE zone.
(2) Off -site POEs. The prescribed off -site POE to class 1 groundwater is a well which may be
completed at all locations throughout an off -site groundwater PCLE zone. For off -site
commercial /industrial land use, the person shall establish an additional POE for class 1 groundwater for
residents at, and all locations beyond, the existing limit of the off -site residential -based groundwater
PCLE zone.
(g) Human health POEs for class, 2 groundwater.
(1) On -site POEs. The prescribed on -site POE to class 2 groundwater is a well which may be
completed at all locations throughout the on -site groundwater PCLE zone. For on -site
commercial /industrial land use, the person shall establish an additional on -site POE for class 2
groundwater for residents unless the residential -based groundwater PCLE zone already extends off -site.
The residential POE shall be set at a distance of two years groundwater travel time upgradient of the
nearest boundary with the closest hydraulically downgradient off -site property. If the residential -based
groundwater PCLE zone already extends beyond the two -year groundwater travel time setback distance
but not off -site, then the residential POE shall be set at the existing limit of the residential -based
groundwater PCLE zone.
(2) Off -site POEs. The prescribed off -site POE to class 2 groundwater is a well which may be
completed at all locations throughout an off -site groundwater PCLE zone. For off -site
commercial /industrial land use, the person shall establish an additional POE for class 2 groundwater for
residents at, and all locations beyond, the existing limit of the off -site residential -based groundwater
PCLE zone.
(h) POEs for class 3 groundwater.
(1) On -site POEs. The prescribed on -site POE to class 3 groundwater is at all locations throughout an
on -site groundwater PCLE zone defined by concentrations greater than Gw GW ClasO for the applicable
on -site land use.
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(2) Off -site POEs. The prescribed off -site POE to class 3 groundwater is at all locations throughout an
off -site groundwater PCLE zone; defined by concentrations greater than GW GW Class 3 for the
applicable off -site land use which is sourced from an on -site release of COCs. If commercial /industrial
land use is assumed for the off -site property, then the person shall establish an additional POE for class
3 groundwater for residents at, and all locations beyond, the existing limit of the off -site residential -
based groundwater PCLE zone.
(i) POEs for surface water runoff or groundwater discharges to surface water. The prescribed POE to
surface water will be at the point of surface water runoff or groundwater discharge (i.e., within the
groundwater) into and throughout the extent of any on -site or off -site surface water body meeting the
definition of surface water in the state as defined in §307.4 of this title (relating to General Criteria), as
amended. This includes the surface water body at the initial point of entry and other water bodies that
may be impacted by COCs.
0) POEs for releases of COCs directly to surface water. The prescribed POE for releases directly to
surface water is at the point of entry of COCs into and throughout the extent of any surface water body
meeting the definition of surface water in the state as defined in §307.4 of this title, as amended.
(k) POEs for sediment. The prescribed POE to sediment is within the upper one -foot of sediment
beneath any surface water body :meeting the definition of surface water in the state as defined in §307.4
of this title, as amended. For intermittent water bodies, both sediment and surface soil POEs may apply.
(1) Alternate POEs to class 2 groundwater under Remedy Standard B. Provided the person is authorized
by the executive director to establish a plume management zone in response to §350.33(f)(4) of this
title (relating to Remedy Standard B), the person may establish an alternate on -site POE or off -site POE
to class 2 groundwater in accordance with paragraph (1), (2), or (3) of this subsection as dictated by the
particular circumstances at the affected property. The current length of the residential -based
groundwater PCLE zone shall be determined as of the submittal date of the RAP.
(1) On -site POEs.
(A) The on -site POE to class 2 groundwater may be modified to be a well for residents completed at
the on -site downgradient boundary of a plume management zone which includes the current length of
the residential -based groundwater PCLE zone plus an additional length determined in accordance with
paragraph (4) of this subsection.
(B) In the situation where multiple on -site plume management zones exist, and have commingled, or
are within 500 feet of one another such that the management as a combined plume management zone is
more feasible and appropriate, with site - specific approval from the executive director, the person may
combine the separate plume management zones into a single, combined plume management zone
provided the alternate POE for the combined plume management zone satisfies paragraph (4) of this
subsection.
(2) Off -site POEs for off -site properties with class 2 groundwater which currently contains the
residential -based groundwater POLE zone. The person may establish an alternate off -site POE to class
2 groundwater as a well for residents completed at the off -site downgradient boundary of a plume
management zone which includes the current length of the groundwater PCLE zone plus an additional
length determined in accordance with paragraph (4) of this subsection.
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(3) Off -site POEs for off -site properties with class 2 groundwater which currently do not contain the
residential -based groundwater I'CLE zone.
(A) If the person can demonstrate that the subject groundwater - bearing unit has no reasonably
anticipated future beneficial use, then the person may allow a plume management zone to extend onto
an off -site property. The person shall establish an alternate off -site POE to class 2 groundwater as a
well for residents completed at the off -site boundary of a plume management zone which includes the
current length of the groundwater PCLE zone plus an additional length determined in accordance with
paragraph (4) of this subsection.
(B) Unless the demonstration discussed in subparagraph (A) of this paragraph is made, the person
shall not allow a plume management zone within class 2 groundwater to extend onto any off -site
property which does not currently contain a residential -based groundwater PCLE zone.
(C) The determination of future beneficial use under subparagraph (A) of this paragraph shall be
based upon the existing quality of groundwater, considering nonpoint sources of COCs and their
cumulative impact on the groundwater quality, the lack of use of the groundwater based on the
presence of superior water supplies, proximity and withdrawal rates of groundwater users, or the
property is subject to a zoning or governmental ordinance which is equivalent to the deed notice, VCP
certificate of completion or restrictive covenant that otherwise would have been required. The
executive director may require the collection of groundwater samples to document the presence of the
COCs originating from nonpoint sources.
(4) The maximum additional length of the plume management zone for the situations described in
paragraphs (1), (2), and (3) of this subsection shall be established as the smallest of the following
applicable distances, unless the affected property is subject to zoning or a governmental ordinance
which is equivalent to the deed notice, VCP certificate of completion or restrictive covenant that
otherwise would have been required, in which case subparagraphs (C) and (D) of this paragraph do not
apply:
(A) up to 500 feet beyond the current length of the residential -based groundwater PCLE zone;
(B) a length of up to 0.25 times the current length of the residential -based groundwater PCLE zone
(i.e., up to 25% additional plume length);
(C) to within two years groundwater travel time of the closest hydraulically downgradient off -site
property:
(i) for which the owner has not provided written concurrence to allow the recording of an
institutional control; or
(ii) which does not contain the residential -based PCLE zone and the groundwater has a reasonably
anticipated future beneficial use;
(D) at the current downgradient extent of the residential -based PCLE zone when the residential -
based groundwater PCLE zone is already within the two -year travel time setback distance for POEs
under subparagraph (C) of this paragraph; or
(E) the distance to a surface water POE as described in subsection (i) of this section.
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(m) Alternate POEs to class 3 groundwater under Remedy Standard B. Provided the person is
authorized by the executive director to establish a plume management zone in response to §350.33(f)(4)
of this title (relating to Remedy Standard B), the person may establish an alternate on -site or off -site
POE to class 3 groundwater. The GW GW Class 3 PCL to be applied at this alternate POE shall be based
upon residential land use. The boundary of the plume management zone may be established up to the
lesser of:
(1) To within two years groundwater travel time upgradient of:
(A) The closest hydraulically downgradient off -site property for which the landowner has not
provided written concurrence to allow the recording of an institutional control for situations where
zoning or a governmental ordinance does not serve as the institutional control; or
(B) The downgradient limit of a zoning or governmental ordinance that serves as the institutional
control; or
(2) The distance to a surface water POE as described in subsection (i) of this section.
Source Note: The provisions of this §350.37 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30
ENVIRONMENTAL QUALITY
PART i
TE"US COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TE,US RISK REDUCTION PROGRAM
SUBCHAPTER C
AFFECTED PROPERTY ASSESSMENT
RULE §350.51
Affected Property Assessment
(a) The person shall conduct an affected property assessment in a manner appropriate for the affected
property considering the hydrogeology, physical and chemical properties of the COCs, location of
human and ecological receptors, and the complete or reasonably anticipated to be completed exposure
pathways identified in §350.71 of this title (relating to General Requirements). The assessment shall be
designed to collect information necessary to support notification of affected landowners and remedy
selection, determine whether or not water resources have been affected or are threatened, and may also
evaluate the effectiveness of existing physical controls. Additionally, when existing physical controls
will be used as part of the response action in accordance with Remedy Standard B, then the assessment
may be conducted such that the primary focus is placed beyond the limits of the existing physical
control in order to reduce the degree of assessment within the limits of the physical control. The
assessment shall be conducted in a manner most likely to detect the presence and distribution of COCs
above the concentration levels defined in subsections (b) - (e) of this section considering the nature of
the release and subsequent modifications to the affected property (e.g., judgmental samples in hot spots,
stratified random sampling, systematic grid, etc.), and shall use appropriate quality assurance /quality
control. The geology and hydrogeology of the affected property shall be adequately characterized, such
that COC fate and transport can be reliably predicted in order to confidently locate existing
environmental media containing COCs above the concentration levels defined in subsections (b) - (e) of
this section and an appropriate response action can be designed. The person shall use sample collection
techniques that meet the data quality needs and are acceptable to the executive director. The results of
the assessment shall be documented in an Affected Property Assessment Report in accordance with
§350.91 of this title (relating to Affected Property Assessment Report). The person shall conduct an
assessment in a manner which is timely considering the size and complexity of the situation, and shall
comply with an assessment schedule established in any commission rule, order, or permit, or any
assessment schedule approved by the executive director.
(b) The person shall perform an affected property assessment through the collection and analysis of a
sufficient number of samples from environmental media to reliably characterize the nature and degree
of COCs in the source area(s), as well as the horizontal and vertical extent of COCs in soil and
groundwater, which equals or exceeds the applicable concentration of COCs as specified in subsections
(c), (d) and (e) of this section, unless the executive director determines on a site - specific basis that
additional assessment of the extent of COCs is necessary to evaluate a potential threat to human health
and the environment. Information obtained from attempts to attain Remedy Standard A may be
submitted for this purpose. The person shall characterize the nature, degree and extent of COCs in other
environmental media as required by the executive director in consideration of property- specific factors.
The executive director may require the person to determine the concentrations of COCs in outdoor or
indoor air on a property - specific basis.
(c) The person shall demonstrate that all COCs in environmental media (except for on -site soils as
noted below) which exceed the residential assessment level have been characterized horizontally in all
directions. If the assessment level is based upon background concentrations, then the assessment shall
only extend to the background concentration level. For soils only, the person can focus the horizontal
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on -site assessment to define the area exceeding the applicable critical PCL (i.e., residential or
commercial /industrial). However, the person shall investigate environmental media, including soils,
using adequate on -site or off -site data to determine whether off -site properties have been affected with
concentrations of COCs which exceed the residential assessment levels. The requirement to use an
assessment level based upon a residential receptor (i.e., residential assessment level) pertains to all off -
site properties (i.e., both residential and commercial /industrial land use).
(d) For the vertical soil assessment to adequately determine if groundwater has been or will be affected,
the person shall complete the requirements of paragraph (1), (2), (3) or (4) of this subsection.
(1) The person shall demonstrate that the vertical limit of COCs in soil which exceed the higher of the
method quantitation limit or background concentrations has been characterized. If the person
satisfactorily demonstrates that all reasonably available analytical technology has been used to show
that the COC cannot be measured to the method quantitation limit due to sample specific interferences,
then the sample detection limit may be used in lieu of the method quantitation limit.
(2) If an adequate groundwater assessment has been conducted (i.e., COC concentrations in
groundwater have been measured from appropriate locations), then the person shall characterize the
vertical limits of COCs in soil which exceed the residential assessment level. The GW Soil PCL may
not be applicable in the determination of the residential assessment level if the person has conducted an
adequate groundwater assessment and can meet the requirements of §350.75(i)(7)(C) of this title
(relating to Tiered Human Health Protective Concentration Level Evaluation). The executive director
may omit or modify the requirement for a groundwater assessment under this paragraph for use of
§350.75(i)(7)(C) of this title on a site- specific determination based upon a combination of supporting
evidence including, but not necessarily limited to, probable depth to groundwater, presence of soils or
bedrock that prohibit or impede vertical migration of COCs, and physical and chemical properties of
the COCs.
(3) If the uppermost groundwater - bearing unit is encountered before the vertical limit of COCs is
determined to the higher of the method quantitation limit or background concentrations, then
representative groundwater samples (i.e., a groundwater sample does not have to be collected from
each boring) must be collected to evaluate potential groundwater impacts. The vertical extent of the soil
assessment shall continue beyond the uppermost groundwater - bearing unit as appropriate based on the
likelihood that COCs have migrated deeper considering the chemical and physical properties of the
COCs (e.g., dense non - aqueous phase liquids) and the hydrogeology of the affected property. The
executive director may omit or modify this requirement on a site - specific basis if the vertical
assessment would exacerbate the vertical migration of COCs.
(4) If a person has already determined that the groundwater is impacted, then they may satisfy the
requirements of this subsection by declaring the entire soil column to the top of the lowest impacted
groundwater bearing unit as a soil PCLE zone.
(e) The person shall define the vertical extent of COCs in groundwater to below the residential
assessment level by collecting a representative sample from a deeper groundwater- bearing unit with
concentrations less than the residential assessment levels, unless the person demonstrates that vertical
migration to a lower groundwater - bearing unit is not possible. The person shall base such
demonstration on the hydrogeology and the chemical and physical properties of the COCs. The person
shall take proper precautions to prevent cross - contamination when collecting a sample from a deeper
groundwater - bearing unit. The executive director may omit or modify this requirement on a site-
specific basis if the vertical assessment would exacerbate the vertical migration of COCs.
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(f) The person shall use concentrations measured in groundwater at or immediately upgradient of the
zone of groundwater discharge to surface water to determine if COCs in groundwater have discharged
to surface waters.
(g) For affected properties with response actions which are designed and approved under Remedy
Standard B for the use of a plume; management zone, the person shall characterize the geology and
hydrogeology throughout all areas of the plume management zone (i.e., including those areas of the
plume management zone which are currently beyond the limits of the groundwater which contains
COCs in excess of the assessment level).
(h) The person shall attempt to identify all surface and subsurface structures at the affected property
which may influence COC migration, including subsurface utilities.
(i) The person shall conduct a field survey to locate potential receptors, including water wells and
surface waters to at least 500 feet beyond the boundary of the affected property; and conduct a records
survey to identify all water wells and surface water bodies within 1/2 mile of the limits of groundwater
which contains COCs in excess of the residential assessment level. The person shall also attempt to
identify any off -site properties within 1/4 mile of the affected property that have environmental
information (e.g., soil boring logs, analytical results from samples of environmental media, etc.)
collected for submission to the agency which may be useful in fulfilling the requirements of this
section, although collection and submittal of this information by the person is not required.
0) When determining concentrations of COCs in an environmental medium, the person shall collect
and handle samples in accordance with sampling methodologies which will yield representative
concentrations of COCs present in the sampled medium.
(k) When determining concentrations of COCs in surface water and sediment, the person shall collect
and handle samples in accordance with the requirements in the agency's Surface Water Quality
Monitoring Procedures, Volume I, as amended, or shall use an alternative methodology approved by
the executive director.
(1) The person shall determine concentrations of COCs within the environmental media at the affected
property. The executive director may approve the use of statistical or geostatistical methods to
determine representative concentrations of COCs at the affected property or within areas representative
of site - specific background conditions as long as the following conditions are satisfied.
(1) The person shall ensure that all assumptions for the selected statistical or geostatistical method are
met or critically examined and explained if the assumptions cannot be met (e.g., random sampling
design, normal or log - normal distribution, etc.). Judgmental samples may be used, as long as it can be
demonstrated that the resulting estimated representative concentration is not biased low.
(2) An appropriate number of samples for the statistical method shall be used. If site - specific
background is determined using the upper confidence limit or similar statistical method, then a
minimum of eight samples shall be used. If the person uses an arithmetic average to determine the
background concentration, then a minimum of five samples shall be used.
(3) The soil exposure area for existing residential yards or platted residential properties shall not
exceed 1 /8th acre or the size of the front or back yard of the affected residential lot, unless it is
demonstrated that a larger area, not to exceed 1/2 acre, is appropriate based upon the activity patterns of
residents at a specific affected property. For other properties classified as residential (e.g., parks,
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hospitals), the executive director may approve a larger exposure area if justified based on site - specific
conditions. If an area larger than 1 /8th acre or the size of the front or back yard of the existing affected
residential lot is approved by the executive director, then the person shall comply with the applicable
institutional control in requirements §350.111(b), (b)(8) or (10) of this title (relating to Use of
Institutional Controls). If COCs are relatively homogeneous over an area larger than the residential
default size, the executive director may allow concentrations to be averaged over this larger area, in
which case the institutional control would not be required.
(4) The soil exposure area for commercial/industrial properties shall not exceed 1/2 acre, unless it is
demonstrated that a larger area is appropriate based upon documented activity patterns for
commercial /industrial workers at an active commercial/industrial facility (the assumed exposure area
should represent the smallest area over which an individual can be expected to move randomly). In
approving an exposure area for an active commercial/industrial facility, the executive director may
consider any appropriate site - specific information which documents typical worker activity patterns. If
an area larger than 1/2 acre is approved by the executive director, then the person shall comply with the
institutional control requirements in §350.111(b), (b)(9) or (11) of this title (relating to Use of
Institutional Controls), as applicable. If COCs are relatively homogeneous over an area larger than 1/2
acre, the executive director may allow concentrations to be averaged over this larger area, in which case
the institutional control provision would not be required.
(5) The executive director may, require a separate assessment of smaller but notable areas of soil
contamination (i.e., "hot spots ") at sites where site - specific features are present such that there is likely
to be preferential exposure to this smaller area (e.g., worker exposures around the physical
infrastructure of a work space, soils within a child's play area). The presence of hot spots with respect
to ecological risk shall be determined on a site - specific basis.
Cont'd.
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER C
AFFECTED PROPERTY ASSESSMENT
RULE §350.52
Groundwater Resource Classification
The person shall use the following groundwater resource classification system to classify each
groundwater- bearing unit which contains COCs at concentrations equal to or greater than the
residential groundwater assessment level. The person shall submit data which support the groundwater
resource classification in an affected property assessment report. If a groundwater - bearing unit meets
the criteria for more than one of the following classifications, then the person shall assign the higher of
the classifications (e.g., if a groundwater - bearing unit falls in class 1 and class 3, it will be classified as
class 1), unless otherwise approved by the executive director.
(1) Class 1 groundwater resource. To be considered a class 1 groundwater resource, the groundwater -
bearing unit must meet at least one of the following conditions:
(A) any groundwater- bearing unit within 1/2 mile of an existing well used to supply drinking water
to a public water system as defined in §290.38 of this title (relating to Definitions), as amended, which
can contribute COCs to the groundwater production zone of such public water supply well based on the
chemical properties of the COCs, the hydrogeology, and the construction of the well;
(B) a groundwater - bearing unit which is the only reliable source of water (i.e., a connection to a
public water system is not currently available and will not be provided to the affected property as part
of the RAP) not more than 800 feet below the land surface that is capable of producing groundwater
with a naturally occurring total dissolved solids content of less than 1,000 milligrams per liter (mg /1)
and at a sustainable rate greater than 5,000 gallons per day to a well with a four inch diameter casing or
an equivalent sustainable rate in ;gallons per day to a well with a smaller or larger diameter casing; or
(C) groundwater - bearing unit capable of yielding groundwater with less than or equal to a naturally
occurring total dissolved solids content of 3,000 mg /l and at a sustainable rate greater than or equal to
144,000 gallons per day to a well. with a 12 inch diameter casing or an equivalent sustainable rate in
gallons per day to a well with a smaller or larger diameter casing, and the natural quality of that
groundwater meets all primary drinking water standards as defined in 40 Code of Federal Regulations
Part 141, as amended.
(2) Class 2 groundwater resource. Class 2 groundwater resources include:
(A) any groundwater - bearing unit which is a groundwater production zone for an existing well
located within 1/2 mile of the affected property and which is used to supply groundwater for human
consumption, agricultural purposes or any purpose which could result in exposure to human or
ecological receptors; or
(B) any groundwater - bearing unit which is capable of producing waters with a naturally occurring
total dissolved solids content of less than 10,000 mg /l and at a sustainable rate greater than 150 gallons
per day to a well with a four inch diameter casing or an equivalent sustainable rate in gallons per day to
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a well with a smaller or larger diameter casing.
Page 2 of 2
(3) Class 3 groundwater resource. Class 3 groundwater resources include any groundwater- bearing
unit which produces water with a naturally occurring total dissolved solids content of greater than
10,000 mg /l or at a sustainable rate less than 150 gallons per day to a well with a four inch diameter
casing or an equivalent sustainable rate in gallons per day to a well with a smaller or larger diameter
casing.
Source Note: The provisions of this §350.52 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 3.50 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER C AFFECTED PROPERTY ASSESSMENT
RULE §350.53 Land Use Classification
The person shall determine the current land use of all properties affected with concentrations of COCs
which exceed the residential human health assessment levels. Land use shall be determined by
comparison of existing land use to the definitions for residential and commercial/industrial land use as
specified in §350.4 of this title (relating to Definitions and Acronyms). In the event the land use
changes prior to the executive director's approval of the RACR, the PCLs must be protective of that
final land use. If off -site property or leased affected property is determined to be commercial /industrial,
the person must provide written :landowner concurrence for the associated institutional control in
accordance with §350.111 of this title (relating to Use of Institutional Controls), unless the property is
subject to zoning or governmental ordinance that is equivalent to the deed notice, VCP certificate of
completion or restrictive covenant that otherwise would have been required.
Source Note: The provisions of this §350.53 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER C AFFECTED PROPERTY ASSESSMENT
RULE §350.54 Data Acquisition and Reporting Requirements
(a) The person submitting data to the agency is responsible for the quality of the data.
(b) The person shall provide data that are of sufficient and documented quality to meet the program and
project objectives. The data package, including the supporting quality control data generated by the
laboratory, shall be available upon a reasonable request by the agency within and up to three years after
submittal of the report. The project data quality objectives should be included in the APAR, unless a
response action is self - implemented in which case the project data quality objectives should be included
in the RACR. These data quality objectives should include, but are not limited to:
(1) the rationale for the sampling design, including the number, type, location and intended use of
samples;
(2) the levels of required performance (e.g., assessment level, critical PCL, attenuation action level)
and the applicable method quantitation limit in accordance with subsection (e)(3) of this section for
each COC; and
(3) the precision, accuracy, representativeness, comparability, and data completeness objectives for
the project.
(c) The report shall indicate the type of sample (e.g., composite or discrete sample) that was collected
and the method or standard operating procedure by which it was collected. Samples shall represent the
environmental media of the affected property being monitored or assessed. Field quality control shall
be adequate to demonstrate that the COC is present or absent from the environmental media.
(d) The person shall ensure that the laboratory selected to perform the analyses of samples has in place
an adequate and documented quality assurance program and the capability to meet the project and
measurement objectives. The laboratory's quality assurance program must be compliant with the
requirements in Chapter 25 of this title (relating to Environmental Testing Laboratory Accreditation
and Certification), as amended, by July 1, 2008. For data generated on or before July 1, 2008, the
person shall ensure the laboratory's quality assurance program is consistent with:
(1) the International Organization for Standardization (Guide 25: General Requirements for the
Competence of Calibration and Testing Laboratories (ISO 25, 3rd edition, 1990)(, as amended, or
(2) the quality standards outlined in the National Environmental Laboratory Accreditation Program, as
amended.
(e) The person shall ensure the data are generated by a laboratory performing the analytical methods
that meet the intralaboratory performance standards for the method and that those performance
standards are sufficient to meet the bias, precision, sensitivity, representativeness, comparability, and
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completeness, as specified in the project data quality objectives.
(1) The bias of the method may be demonstrated through the use of reference materials, comparison to
alternative methods, or spiked samples.
(2) The precision of the method may be determined by evaluation of relative standard deviation or the
relative percent difference through the use of replicate analyses.
(3) In order to address sensitivity requirements, the person shall select a standard available analytical
method that provides a method quantitation limit below the necessary level of required performance for
purposes of assessment as well as demonstration of conformance with critical PCLs. If it is not possible
to achieve a method quantitation limit below the necessary level of required performance, and the COC
does not meet the conditions of §350.71(k) of this title (relating to General Requirements), then the
person shall select the standard available analytical method that provides the lowest possible method
quantitation limit for that COC. The executive director may require that the person demonstrate that a
lower method quantitation limit is not achievable or is not practicable, using standard available
analytical methods.
(4) The method detection limit shall be verified after major instrument maintenance or major changes
in instrumentation or instrument conditions. The person shall ensure that the laboratory has performed
and has documented an initial demonstration of proficiency for the analysis of each COC and each
method used, and has also demonstrated, in a scientifically valid manner, and has documented the
method detection limit the laboratory can achieve. This demonstration and documentation shall be
preparatory and method specific and include any cleanup method used. The method detection limit
should be routinely checked for reasonableness.
(5) The representativeness of the method may be demonstrated by the laboratory through the use of
proper storage, preparation, and subsampling techniques.
(6) The standard available method may either be a documented method from the U. S. EPA, American
Society for Testing and Materials, other organizations nationally recognized as having scientifically
acceptable methods, or the executive director, or a laboratory method that is completely documented in
an appropriate Standard Operating Procedure. All methods derived by a laboratory must meet the
quality control criteria recommended in U.S. EPA Test Methods for Evaluation of Solid Waste, Update
III, as amended, unless the project and/or samples require less stringent quality control requirements
than those recommended in U.S. EPA Test Methods for Evaluation of Solid Waste, Update III, as
amended. Such projects or samples which require less stringent quality control shall be clearly
identified and the rationale for lower levels of quality control shall be documented.
(A) Application of the method shall include the use of instrument calibration that brackets the value
reported or includes a low standard that is below the necessary level of required performance, unless
the method quantitation limit has been determined to be the necessary level of required performance in
accordance with §350.78(c) of this title (relating to Determination of Critical Protective Concentration
Levels). The calibration range shall yield results which demonstrate that the sample reporting level has
not exceeded the necessary level of required performance after correction for sample weight or volume.
(B) Laboratory control samples must be used to demonstrate that the method can produce results for
the COCs that meet the bias and precision requirements at or below the necessary level of required
performance or at the method quantitation limit in a clean laboratory matrix. The matrix must be
similar to the medium of the environmental samples. Results for a sample spike may be substituted for
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the laboratory control samples, if the bias and precision criteria have been met.
(f) The person shall identify an.y data that may be affected by laboratory deviations from the analytical
method or by the laboratory's performance not meeting the project- required and/or method - required
quality control acceptance criteria. The person shall also identify any data that may be affected by
improper field procedures.
(g) The person shall be responsible for having all documentation readily available to demonstrate that
the sample integrity has not been compromised and that an appropriate analytical method has been
used, and shall provide all reasonable information requested by the executive director.
(h) The person shall:
(1) report all results (corrected for sample weight or volume, sample preparations, and/or laboratory
adjustments) greater than the method detection limit that meet the qualitative identification criteria
recommended in the analytical method used, and shall use a qualifier flag on all those results reported
as greater than the method detection limit and less than the method quantitation limit; and
(2) report all non - detected results as less than the value of the sample detection limit; or
(3) report as otherwise requested by the executive director when such reporting as specified in
paragraphs (1) and (2) of this subsection is not warranted.
(i) When reasonably appropriate, the executive director shall require persons to perform confirmation
analysis for tentatively identified compounds.
Source Note: The provisions of this §350.54 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective 1\/[arch 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER C AFFECTED PROPERTY ASSESSMENT
RULE §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
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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 clue, 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., riot 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).
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(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
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TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
TE-NAS RISK REDUCTION PROGRAM
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
General Requirements
(a) This subchapter describes separate tiered processes for establishing protective concentration levels
of COCs that can remain in the source medium and be protective of human and ecological receptors at
the point of exposure within the exposure medium. The tiered process for the calculation of human
health protective concentration levels (PCLs) is set forth in §350.75 of this title (relating to Tiered
Human Health Protective Concentration Level Evaluation) and is structured conceptually in terms of
Tiers 1, 2, and 3. Each tier sets forth conditions to calculate PCLs and each successive tier
incrementally provides for more consideration of site - specificity and sophistication in the PCL
calculation process. The person can move through the tiered process or start at any tier, but must
conduct the cumulative check in accordance with §350.72(b) of this title (relating to Carcinogenic Risk
Levels and Hazard Indices for Human Health Exposure Pathways). The human health PCLs under
Tiers 1, 2 and 3 are set based on the receptors and exposure pathways as specified in subsections (b)
and (c) of this section in consideration of the land use classification of the affected property, the
classification of groundwater, the distribution of COCs in environmental media, and the presence of
receptors. The tiered process for ecological evaluations is different. Tier 1 is an exclusion criteria
checklist that is used to exclude sites which do not pose potential ecological risk from further
evaluation. If a site is not excluded from Tier 1, then the person must further evaluate the site for
ecological risk, and possibly establish ecological PCLs are under Tiers 2 or 3. The lowest of the human
health and any applicable ecological PCLs determined for each COC for the soil, groundwater, surface
water, sediment, or air as required, and are then respectively compared with representative
concentrations of COCs in the soil, groundwater, surface water, sediment, or air as appropriate to
determine if the PCLs are exceeded or not. If PCLs are exceeded for certain COCs, then PCLs may be
further evaluated under the respective tiered process and compared again to representative site
concentrations to determine if further action is needed; otherwise a response action must be initiated.
No further action is required for those COCs which do not exceed the PCLs, and the cumulative criteria
of §350.72(b) of this title.
(b) The person shall:
(1) ensure PCLs are protective of human health and the environment;
(2) determine human health PCLs based on residential or commercial /industrial exposure as
appropriate for the land use of each affected on -site and off -site property;
(3) assume the human receptor is a resident for residential property; and
(4) assume the human receptor is a commercial /industrial worker for commercial /industrial property.
(c) The person shall develop PCLs for each of the following human health exposure pathways which
are complete or reasonably anticipated to be completed based on the provided criteria.
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(1) Ingestion of COCs in class 1 or 2 groundwater. The person shall consider the ingestion of COCs in
class 1 or 2 groundwater to be a complete or reasonably anticipated to be completed exposure pathway
when class 1 or 2 groundwater is affected.
(2) COCs in class 3 groundwater. The person shall establish PCLs for class 3 groundwater as
necessary to protect human health and safety, and the environment, and to comply with the
groundwater response objectives in accordance with Subchapter B of this chapter (relating to Remedy
Standards).
(3) Inhalation of volatile emissions in outdoor air from COCs in groundwater - bearing units. The
person shall at a minimum consider this to be a complete or reasonably anticipated to be completed
exposure pathway when a plume management zone is established in accordance with §350.33(f) of this
title (relating to Remedy Standard B) unless the person:
(A) demonstrates with representative and appropriate vapor monitoring data or other technically
appropriate method that volatile emissions from groundwater are protective; or
(B) otherwise demonstrates that the pathway is incomplete at the affected property. A competent,
existing physical control which prevents the release of COCs from groundwater into air above the
PCLs may be considered in accordance with subsection (d) of this section.
(4) Combined inhalation of volatile emissions and particulates from COCs in surface soil, dermal
contact with COCs in surface soil, ingestion of COCs in surface soil, and for affected residential
properties, ingestion of above and below - ground vegetables grown in surface soils containing COCs.
Other than within a waste control unit, the person shall consider this combined exposure pathway to be
a complete or reasonably anticipated to be completed exposure pathway; however, competent existing
physical controls may be considered in accordance with subsection (d) of this section.
(5) Leaching of COCs in surface and subsurface soils to groundwater. The person shall consider this
to be a complete or reasonably anticipated to be completed exposure pathway; however, a competent
existing physical control which prevents the release of COCs from soils to groundwater above the
PCLs may be considered in accordance with subsection (d) of this section.
(6) Inhalation of volatile emissions from COCs in subsurface soils. Other than below a waste control
unit, the person shall consider this to be a complete or reasonably anticipated to be completed exposure
pathway unless the person demonstrates with representative and appropriate vapor monitoring data, or
other technically appropriate method that the exposure pathway is incomplete. A competent existing
physical control which prevents the release of COCs from subsurface soils to air above the PCLs may
be considered in accordance with subsection (d) of this section.
(7) Contact with surface water or sediment containing COCs originating from the source area. The
person shall evaluate this exposure pathway to determine if it is a complete or reasonably anticipated to
be completed exposure pathway when a COC has been discharged or will discharge to a surface water
body or sediment.
(8) Other complete or reasonably anticipated to be completed exposure pathways. The person shall
reasonably evaluate other potentially applicable exposure pathways and identify the ones which are
complete or are reasonably anticipated to be completed.
(d) In accordance with subsection (c)(3) - (6) of this section, and §350.77 of this title (relating to
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Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), the
presence of a competent existing physical control which prevents the exposure of receptors to COCs
may be considered as sufficient proof that the exposure pathway is incomplete for the geographic area
covered by the control when the person is able and willing to incorporate that physical control as a
Remedy Standard B response action meeting all associated performance, institutional control, and post -
response action care requirements, including financial assurance, for that physical control. The existing
physical control shall not be considered to be a remedy for or remove the exposure pathway from
consideration for the geographic area which extends beyond the existing limits of the competent
existing physical control. Consideration of physical controls during the exposure pathway analysis does
not negate or otherwise supercede the soil or groundwater response objectives as set forth in
Subchapter B of this chapter (relating to Remedy Standards).
(e) The person shall establish the human health POE(s) for each environmental media in accordance
with §350.37 of this title (relating to Human Health Points of Exposure). Consideration of physical
controls during the exposure pathway analysis does not negate or otherwise supercede the POE criteria
of §350.37 of this title.
(f) The person shall establish the risk -based exposure limits in accordance with §350.74 of this title
(relating to Development of Risk -Based Exposure Limits) when establishing PCLs.
(g) For COCs which have both carcinogenic and noncarcinogenic effects for an exposure pathway, the
person shall establish separate PCLs for both carcinogenic and noncarcinogenic effects for the
individual and combined exposure pathways. The person shall then use the lower of the carcinogenic or
noncarcinogenic PCL for that COC and exposure pathway.
(h) The person shall ensure that PCLs developed are protective for both on -site and off -site human
receptors at the carcinogenic risk levels and hazard quotient and index as specified in §350.72 of this
title (relating to Carcinogenic Risk Levels and Hazard Indices for Human Health Exposure Pathways),
as well as for applicable ecological receptors.
(i) The person shall establish critical PCLs in accordance with §350.78 of this title (relating to
Determination of Critical Protective Concentration Levels).
0) The person is not required to combine exposure pathways across source media (e.g., soil exposure
pathways combined with groundwater exposure pathways) unless the executive director determines
such combination is necessary to address actual situations where receptors are simultaneously exposed
to COCs present in multiple source media.
(k) For Tiers 1, 2, and 3 as explained in §350.75 of this title (relating to Tiered Human Health
Protective Concentration Level Evaluation) and §350.77 of this title (relating to Ecological Risk
Assessment and Development of Ecological Protective Concentration Levels), the person shall
establish PCLs for each individual COC within each environmental medium unless the conditions of
paragraphs (1), (2), (3), or (4) of this subsection are met or unless the use of paragraphs (1), (2), (3), or
(4) of this subsection is prohibited by the individual program area listed in §350.2 of this title (relating
to Applicability). For the purposes of determining whether a COC meets the conditions of paragraphs
(1), (2), (3), or (4) of this subsection, a COC should be considered detected in a particular
environmental medium if the analytical measurement is greater than the method detection limit and the
analytical response meets the qualitative identification criteria recommended in the analytical method.
(1) The COC is detected in at least one sample, but all detected COC concentrations and sample
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detection limits for the COC are less than the residential assessment level in the environmental medium
being evaluated under this paragraph, as well as in all other environmental media from which samples
were collected.
(2) The COC is detected in at ]least one sample in the environmental medium, but the conditions
described in one of subparagraphs (A) - (E) of this paragraph are met and all nondetected results for the
COC are less than the residential assessment level in the environmental medium being evaluated under
this paragraph.
(A) The COC meets all of the conditions in the following clauses (i) - (iii) of this subparagraph:
(i) twenty or more representative samples analyzed for that COC have been collected from the
environmental medium evaluated under this subparagraph;
(ii) the COC is detected in less than 5% of the twenty or more samples required in clause (i) of this
subparagraph; and
(iii) the executive director determines that a PCL is not warranted for the COC in order to protect
human health and the environment in consideration of, but not limited to, the concentration and
distribution of the COC in environmental media, source area information, knowledge of on -site
historical operations, characteristics of the COC and the affected property, and companion and daughter
product relationships to the COC.
(B) The COC is a common laboratory contaminant (i.e., methylene chloride, acetone, toluene, 2-
butanone (methyl ethyl ketone), dimethyl phthalate, diethyl phthalate, di -n -butyl phthalate, butylbenzyl
phthalate, bis (2- ethylhexyl) phthalate, and di- n -octyl phthalate), and the concentration of the COC
detected in each sample for that environmental medium does not exceed 10 times the maximum amount
detected in any associated blank, and the COC is not anticipated to be present based on knowledge of
on -site historical operations including consideration of companion and daughter products.
(C) The COC is not a common laboratory contaminant, as defined in subparagraph (B) of this
paragraph, and the concentration of the COC detected in each sample for that environmental medium
does not exceed five times the miaximum amount detected in any associated blank, and the COC is not
anticipated to be present based on knowledge of on -site historical operations including consideration of
companion and daughter products.
(D) The maximum concentration of the COC detected at the affected property does not exceed the
property - specific or Texas - specific background concentration as specified in Figure: 30 TAC §350.51
(m). For the purpose of determining whether the COC meets the conditions of this paragraph, the
person shall consider the maximum concentration of the COC to be the higher of the maximum
detected concentration or the appropriate proxy value as determined in accordance with §350.51(n) of
this title (relating to Affected Property Assessment).
(E) The person sufficiently demonstrates that the release of COCs did not result from activity at the
on -site property based on appropriate evidence, including, but not limited to, the concentration and
distribution of the COC in environmental media, source area information, consideration of companion
and daughter products, and knowledge of on -site historical operations.
(3) The COC is known or is reasonably anticipated to be associated with historical or current activities
conducted at the on -site property, but the COC is not detected in any sample in the environmental
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medium, and all sample detection limits for the COC are less than the residential assessment level for
the environmental medium.
(4) The COC is not known or is not reasonably anticipated to be associated with historical or current
activities conducted at the on -site property, and is not detected in any sample in the environmental
medium.
Source Note: The provisions of this §350.71 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TExAS COMMISSION ON ENVIRONMENTAL QUALITY
TEXAS RISK REDUCTION PROGRAM
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
Carcinogenic Risk Levels and Hazard Indices for Human
Health Exposure Pathways
(a) The person shall base the RBELs developed in accordance with §350.74 of this title (relating to
Development of Risk -Based Exposure Limits) and the PCLs developed in accordance with §350.75 of
this title (relating to Tiered Human Health Protective Concentration Level Evaluation) on the following
carcinogenic risk level and hazard quotient.
(1) Carcinogenic COCs. The RBEL and PCL for each carcinogenic COC, including those PCLs based
on combined exposure pathways, shall be based on a carcinogenic risk level of 1 x 10 -5 (1 in 100,000)
except when other standards shall be used as RBELs as discussed in §350.74 of this title (relating to
Development of Risk -Based Exposure Limits).
(2) Noncarcinogenic COCs. The RBEL and PCL for each noncarcinogenic COC, including those
PCLs based on combined exposure pathways, shall be based on a hazard quotient of 1 except when
other standards shall be used as RBELs as discussed in §350.74 of this title (relating to Development of
Risk -Based Exposure Limits).
(b) The person shall evaluate whether the PCLs for a human health exposure pathway need to be
adjusted to lower concentrations to meet the cumulative carcinogenic risk level and hazard index
criteria in subsection (c) of this section when there are more than 10 carcinogenic COCs and/or more
than 10 noncarcinogenic COCs within a source medium. The person shall conduct this evaluation
separately for each individual and combined human health exposure pathway for which PCLs must be
developed in accordance with §350.71(c) of this title (relating to General Requirements). This
cumulative evaluation shall include all COCs across all tiers for which the person is required to
establish PCLs in accordance with §350.71(k) of this title. In cases where 10 or more carcinogenic
COCs and 10 or more noncarcinogenic COCs are present in the source medium, the cumulative
evaluation shall be conducted for both carcinogenic COCs and noncarcinogenic COCs by separately
addressing the cumulative effects of multiple carcinogenic COCs and multiple noncarcinogenic COCs.
The COCs which exhibit both carcinogenic and noncarcinogenic characteristics shall be counted as
both a carcinogenic COC and a noncarcinogenic COC and evaluated as required by this subsection.
This evaluation shall be modified as specified in paragraphs (1) -(5) of this subsection.
(1) For the groundwater ingestion exposure pathway, the person shall not include COCs with a
primary maximum contaminant level (MCL) as provided in 40 Code of Federal Regulations Part 141,
as amended, or the most currently available federal action level for drinking water (e.g., lead and
copper) in the cumulative carcinogenic risk level or hazard index evaluation when that MCL or action
level is the groundwater ingestion PCL. The person is also not required to include COCs with a
secondary MCL as provided in 40 Code of Federal Regulations Part 143, as amended, in the cumulative
carcinogenic risk level or hazard index evaluation when the secondary MCL is used as the groundwater
PCL and is based on a RBEL established in accordance with §350.74(f)(3) of this title (relating to
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Development of Risk- Based Exposure Limits) for that COC.
(2) The person is not required to comply with subsection (c) of this section for the class 3 groundwater
PCL GW GWClass 3
(3) The person is not required to conduct an additional cumulative check in accordance with
subsection (c) of this section for the soil -to- groundwater PCL GW Soil. The cumulative check is already
addressed when establishing GVV Soil to meet the groundwater PCLs which have been adjusted to
comply with the criteria specified in subsection (c) of this section.
(4) The person is not required to comply with subsection (c) of this section for the groundwater -to-
surface water PCL SW GW.
(5) The person shall not include the PCL established in §350.76 of this title (relating to Approaches
for Specific Chemicals of Concern to Determine Human Health Protective Concentration Levels) for
lead, dioxins, or polychlorinated biphenyls (only exclude polychlorinated biphdnyls when the soil PCL
is based on requirements of the "Toxic Substances Control Act as specified in §350.76(d)(4) of this title)
in soil in the cumulative carcinogenic and hazard index evaluation.
(c) The person shall use the following criteria for the cumulative carcinogenic risk level and hazard
index when determining if the evaluation in subsection (b) of this section requires PCLs for individual
COCs to be adjusted to a lower concentration.
(1) Carcinogenic COCs. The cumulative carcinogenic risk level for multiple carcinogenic COCs shall
not exceed 1 x 10 -4.
(2) Noncarcinogenic COCs. The hazard index for multiple noncarcinogenic COCs shall not exceed
10.
(d) The person shall use the equation in the following figure to adjust PCLs to a lower concentration as
required in subsection (b) of this section to achieve the cumulative carcinogenic risk level or hazard
index established in subsection (c) of this section. The person shall adjust the PCL for one or more
COCs to a lower concentration (carcinogens and noncarcinogens are treated separately) such that the
conditions of the equation are met. The person shall choose which PCLs are adjusted downward and
the magnitude of the reduction. The PCLi shall remain constant in the denominator. The PCL- adji ,
which is the final human health PCL for a particular COC and exposure pathway, shall be less than or
equal to PCLi .
Attached Graphic
Source Note: The provisions of this §350.72 adopted to be effective September 23, 1999, 24 TexReg
7436
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1 j
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TEXAS RISK REDUCTION PROGRAM
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
Determination and Use of Human Toxicity Factors and
Chemical Properties
(a) In all cases, the toxicity factors used must be protective of human health and the environment. The
person shall use the chronic human toxicity factors taken from the following hierarchy of sources
(unless otherwise specified in §350.76 of this title (relating to Approaches for Specific Chemicals of
Concern to Determine Human Health Protective Concentration Levels)) unless the specific provision
contained in subsection (b) of this section applies. The person shall use the source in paragraph (1) of
this subsection and only if the relevant chronic human toxicity factor is not available in that source,
proceed to the source in paragraph (2) of this section and, only if the toxicity factor is not available in
that source, proceed in the same fashion through sources in paragraphs (3) - (7) of this subsection. The
chronic human toxicity factors, in order of hierarchy of sources in paragraphs (1) - (7) of this
subsection, which are most current as of the submittal date of the SIN or the RAP are presumed to be
protective of human health and the environment, unless a person rebuts this presumption by published
credible authority. In addition, the executive director may determine during review of the RACR that a
change in a toxicity factor since: the submittal of the SIN or RAP has been of such a magnitude that the
PCLs previously developed for a COC would clearly not be protective of human health and the
environment, then the adequacy, of the response action must be reevaluated. Likewise, if the executive
director determines at any time that a subsequent change in a toxicity factor is of such a magnitude such
that the proposed response action is no longer warranted to protect human health and the environment,
then a response action based on that previous chronic toxicity factor consideration shall no longer be
required.
(1) United States Environmental Protection Agency (EPA) Integrated Risk Information System
(IRIS);
(2) EPA Provisional Peer Reviewed Toxicity Values (i.e., Superfund Health Risk Technical Support
Center;
(3) EPA Health Effects Assessment Summary Tables;
(4) EPA National Center for Environmental Assessment (i.e., Superfund Technical Support Center);
(5) the TCEQ Chronic Remediation- Specific Effects Screening Levels;
(6) Agency for Toxic Substances and Disease Registry; and
(7) other scientifically valid sources as approved by the executive director.
(b) The executive director may direct a person to use a chronic human toxicity factor from a source
other than that selected in accordance with the source hierarchy list provided in subsection (a) of this
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section in cases where the executive director has determined it to be necessary to use a more
scientifically valid chronic human toxicity factor than that from the source identified in accordance
with subsection (a) of this section.
(c) If the executive director determines that it is necessary to evaluate COCs which do not have any
human chronic toxicity factors provided in the sources listed in subsection (a) of this section, then the
executive director will provide chronic toxicity factors. The person may provide toxicological
information to the executive director for consideration in the derivation of the chronic toxicity factors.
The person shall provide all toxicological data from any toxicological studies conducted for the person
when such information is requested by the executive director. The person shall use the TCEQ Chronic
Remediation - Specific Effects Screening Level value as the reference concentration in evaluating the
inhalation pathway for both residential and commercial /industrial land use in accordance with §350.75
(i)(3), (6) and (8) of this title (relating to Tiered Human Health Protective Concentration Level
Evaluation), and all chronic inhalation exposure pathways for which PCLs are established in
accordance with §350.75(i)(5) and (11) of this title, but only in cases where neither an EPA unit risk
factor nor an EPA reference concentration is available for that COC from the hierarchy list provided in
subsection (a) of this section, and the executive director has not directed the person to use a toxicity
factor in accordance with subsection (b) of this section.
(d) Unless prior approval is provided by the executive director in accordance with §350.740)(2) of this
title (relating to Development of'Risk -Based Exposure Limits) to use a subchronic exposure duration
(i.e., (e) In the situation where different reference doses have been established for a COC based on
water ingestion and food consumption, the person shall use the reference dose for water ingestion for
the water ingestion exposure pathway and the reference dose for food consumption for all soil exposure
pathways.
(f) The person shall use the COC chemical/physical parameter values for COCs provided in the
following figure to calculate PCLs, unless the executive director approves the use of a more
representative alternative value in accordance with paragraphs (1) and (2) of this subsection. For those
COCs not included in the figure in this subsection, the person may provide chemical /physical
information to the executive director for consideration in developing appropriate chemical/physical
parameters.
Attached Graphic
(1) For Tiers 2 and 3, the person may determine property - specific soil pH in order to account for the
high pH dependence of the soil -water partition coefficient (Kd) of inorganic compounds and the
organic carbon -water partition coefficient (Kos ) of ionizing organic compounds. Once the property -
specific pH is determined, the person shall apply subparagraphs (A) - (C) of this paragraph as
applicable to determine pH- dependent Kd and K oc values unless another appropriate method is
approved by the executive director. The executive director may also approve the use of data from
appropriately- conducted tests in determining a site - specific Kd or Koc
(A) For aluminum and lead, the person shall select a Kd from the following figure in accordance with
the pH range and the total weight percent of clay, organic matter, iron, and aluminum oxyhydroxide
representative of the affected property soils.
Attached Graphic
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(B) The person shall use the following figure to determine the pH- dependent Kos value for the
ionizing organic COCs listed.
Attached Graphic
(C) The person shall use the following figure to determine the pH- dependent Kd value for the
inorganic COCs listed.
Attached Graphic
(2) For Tiers 2 and 3, the person may establish alternate soil -to -plant biotransfer factors (Brabg and Br
bg ) by establishing the pH of the soil and the soil type, and then identifying a biotransfer factor in the
published literature appropriate :for those soil conditions. Alternatively, the person can measure the
biotransfer factor in accordance with procedures acceptable to the executive director.
Source Note: The provisions of this §350.73 adopted to be effective September 23, 1999, 24 TexReg
7436 ; amended to be effective TAarch 19, 2007, 32 TexReg 1526
List of Titles
MIME I TEXAS REGISTER I TEXAS ADMII IISTIRATIVE CODE I OPEN MEETINGS I BEEP I
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LEVELS
Approaches for Specific Chemicals of Concern to Determine
Human Health Protective Concentration Levels
(1) Due to the unique nature of the toxicity and/or exposure, the person shall use the COC- specific
approaches described in this section for the following COCs:
(A) cadmium;
(B) lead;
(C) polychlorinated biphenyls;
(D) polychlorinated dibenzodioxins and dibenzofurans;
(E) polycyclic aromatic hydrocarbons; and
(F) total petroleum hydrocarbons.
(2) Except for the specific provisions contained in this section, the person shall establish RBELs and
PCLs in accordance with the standard procedures outlined in the previous sections of this subchapter.
(3) This section addresses only, those exposure pathways for which PCL equations are provided in this
subchapter. When dealing with other exposure pathways as required in §350.71(c) of this title (relating
to General Requirements), the executive director will specify how those pathways should be addressed
for these COCs using the best available science.
(4) The person shall use the figures as required in subsections (b) - (g) of this section.
(b) Cadmium.
(1) In calculating residential soil PCLs that are protective for noncarcinogenic effects for all tiers, the
person shall incorporate age - adjusted exposure assumptions for the soil ingestion, vegetable ingestion,
and dermal soil exposure pathways. Accordingly, 30 years of cadmium exposure shall be partitioned
into three specific exposure periods: <1 - 6 years, 6 - 18 years, and 18 - 30 years. Cadmium intake shall
be calculated for each of these periods, based on the period - specific exposure assumptions. The soil
PCL for cadmium shall be a function of the final integrated intake estimate, which shall be determined
by time - weighting intake from each of the three exposure periods. The age - adjusted RBEL equations
and default parameters to be used for cadmium are provided in the following figure. The soil PCL for
cadmium shall be calculated by combining the pathway - specific PCLs as outlined in §350.75(i)(6) of
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this title (relating to Tiered Human Health Protective Concentration Level Evaluation).
Attached Graphic
(2) In calculating residential and commercial/industrial soil PCLs for all tiers, the person shall use the
reference dose values for cadmium in food in evaluating exposures to cadmium through the soil
ingestion, vegetable ingestion, and dermal soil exposure pathways.
(c) Lead.
(1) The Tier 1 residential soil PCL ( Tot Soil Comb) for lead is 500 mg/kg.
(2) Subject to prior approval by the executive director, the person may use property - specific data in
conjunction with a lead model approved by the executive director (e.g., EPA Integrated Exposure
Uptake Biokinetic model for lead in children (version 1.0 from 2005)) to calculate a Tier 3 residential
soil PCL (Tot Soil Comb ) for lead. The person shall submit information to the executive director which
demonstrates that variance from default model inputs is supported by property - specific information
(e.g., data from a scientifically valid bioavailability study using property - specific soils). Property -
specific model input values must be approved by the executive director. Consistent with the
development of residential RBELs for COCs without chemical - specific approaches in accordance with
§350.74 of this title (Development of Risk -Based Exposure Limits), variance from certain model
default exposure factors such as soil /dust ingestion rates and exposure frequency to less conservative
(i.e., lower) numerical values shall not be allowed.
(3) The commercial/industrial soil PCL ( Tot Soil Comb ) is based only on the soil ingestion pathway
Soil
( Soil Ing ). The person shall use the exposure algorithm and default exposure factors in the
following figure for calculating the Tier 1 commercial /industrial soil RBELIng value.
Attached Gra hic
(4) The person may use a different exposure algorithm as presented in the following figure that
considers soil and dust separately for calculating the Tier 2 and 3 commercial /industrial Soil RBELIng
value in cases where the person has adequate direct measurement data on the concentrations of lead in
both soil and dust at the affected property. In addition, in calculating Tier 2 or 3 Soil RBELIng values,
the person may deviate from the default exposure factors as shown in the figure in paragraph (3) of this
subsection and the following figure if property - specific or defensible alternative data (e.g., from open
literature or privately funded studies) adequately support such an approach. The specific exposure
factors for which the person may use property - specific or scientifically defensible alternative values are
the following:
Attached Graphic
(A) individual geometric standard deviation (GSD i );
(B) baseline blood lead (PbBO);
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: Texas Administrative Code
(C) absolute absorption fraction of lead in soil/dust (Afsd);
(D) absolute absorption fraction of lead in soil (AFs); and
(E) absolute absorption fraction of lead in dust (AM).
(d) Polychlorinated Biphenyls.
Page 3 of 6
(1) In calculating Tier 1 residential and commercial /industrial soil and groundwater PCLs, the person
shall use the upper- reference point of the upper -bound slope factors (2 ( mg/kg- day) -1) for the soil
ingestion, dermal contact with soil, vegetable ingestion, and inhalation (both vapor and particulate
phases) exposure pathways.
(2) For Tiers 2 and 3, the person may use alternative slope factors when the following conditions are
met:
(A) The person may use the lower reference point of the upper bound slope factors (0.4 (mg/kg -day)-
1) to calculate an inhalation unit risk factor when evaluating inhalation exposures to volatilized
polychlorinated biphenyls. The person must still use the upper reference point of the upper bound slope
factors (2 (mg /kg- day) -1 ) to evaluate inhalation exposures to particulate phase polychlorinated
biphenyls.
(B) The person may conduct congener or isomer analyses. The person may use the lowest reference
point of the upper -bound slope factors (0.07 (mg/kg- day)-1) for the soil ingestion, dermal contact with
soil, and inhalation exposure pathways if congener or isomer analyses verify that congeners with more
than four chlorines comprise less than one -half percent of total polychlorinated biphenyls in a given
exposure medium. The upper reference point of the upper -bound slope factors (2 ( mg/kg- day) -1 ) shall
be used for all other exposure pathways regardless of the results of the congener- or isomer - specific
analyses. If congener or isomer analyses indicate that congeners with more than four chlorines
comprise greater than one -half percent of total polychlorinated biphenyls in a given exposure medium,
then the person shall use the upper- reference point of the upper -bound slope factors (2 (mg/kg - day) -1 )
for all pathways for that specific exposure medium. Further, when congener concentrations are
available, the contribution of dioxin -like polychlorinated biphenyls to total dioxin equivalents shall be
considered. The person shall apply the toxicity equivalency factors specified in the following figure to
the measured concentrations for each of the dioxin -like polychlorinated biphenyls. These values shall
then be summed to obtain a 2,3,7,8 -TODD toxicity equivalency quotient. Toxicity equivalency
quotients for dioxin -like polychlorinated biphenyls shall then be added to those for other dioxin -like
compounds as specified in subsection (e) of this section to yield a total toxicity equivalency quotient
concentration. This total toxicity equivalency quotients concentration shall then be compared with the
critical PCL for TODD, 2,3,7,8 - (dioxin). When addressing dioxin -like polychlorinated biphenyls in this
manner, the person shall subtract the concentration of dioxin -like polychlorinated biphenyls from the
total polychlorinated biphenyls concentration to avoid overestimating dioxin -like polychlorinated
biphenyls by evaluating them twice.
Attached Graphic
(3) In evaluating inhalation exposures under Tiers 2 or 3, the person shall convert the appropriate
slope factor to an inhalation unit risk factor, based on the following equation: Inhalation Unit Risk
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Factor (risk per µg /m3 )= oral slope factor x 20 m3 /day divided by 70 kg x 10 -3 mg /µg.
(4) In Tiers 2 and 3, and only when applicable for a specific site, the person may set soil PCLs based
on the requirements of the Toxic Substances Control Act, 40 Code of Federal Regulations Parts 750
and 761, as amended. Sites must comply fully with all applicable Toxic Substances Control Act, as
amended, requirements when establishing the soil PCL for polychlorinated biphenyls in this manner.
(e) Polychlorinated Dibenzo -p- Dioxins and Dibenzofurans.
(1) In demonstrating attainment of the critical PCL for TODD, 2,3,7,8- (dioxin), the person shall apply
the toxicity equivalency factor as shown in the figure in subsection (d)(2)(B) of this section to the
measured concentrations in accordance with the following procedures.
(A) When analytical data are only available for total dioxins /furans, the person shall assume that the
mixture consists solely of 2,3,7,8 -TODD, and a toxicity equivalency factor value of 1.0 shall be applied
to the measured concentration to yield the 2,3,7,8 -TODD toxicity equivalency quotient concentration
for the sample.
(B) When homologue - specific analytical data are available (e.g., tetrachlorodibenzodioxins), the
person shall assume that each homologue class is comprised solely of 2,3,7,8- substituted congeners,
and the toxicity equivalency factor specified for the 2, 3, 7, 8- substituted congeners in the homologue
class shall be applied to the measured concentrations for that homologue class. A toxicity equivalency
factor value of 0.5 should be used for the pentachlorodibenzofuran homologue class. The toxicity
equivalency quotient concentrations for each homologue class shall be summed to obtain a total
toxicity equivalency quotient concentration for the sample.
(C) When congener - specific analytical data are available (e.g., 1, 2, 3, 4, 7, 8-
hexachlorodibenzofuran), the person shall apply the toxicity equivalency factor for the 2, 3, 7, 8-
substituted congeners to the measured concentrations. The toxicity equivalency quotient concentrations
for each 2, 3, 7, 8- substituted congener shall then be summed to obtain a total toxicity equivalency
quotient concentration for the sample.
(2) The person shall then compare the total toxicity equivalency quotient concentration established in
paragraph (1) of this subsection to the critical PCL for TODD, 2, 3, 7, 8- (dioxins).
(3) The critical soil PCL for residential properties for all three tiers is 1 part per billion (ppb) and for
commercial /industrial properties for all three tiers is 5 ppb.
(f) Polycyclic Aromatic Hydrocarbons.
(1) In calculating residential and commercial /industrial PCLs for all tiers, the person shall evaluate the
following seven polycyclic aromatic hydrocarbons as carcinogens:
(A) benzo {a} anthracene;
(B) benzo {b} fluoranthene;
(C) benzo {k} fluoranthene;
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(D) benzo {a} pyrene (B {a) P);
(E) chrysene;
(F) dibenzo {a, h} anthracene; and
(G) indeno {1, 2, 3 -c, d) pyrene.
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(2) The person shall use the relative potency factors outlined in the following figure to estimate cancer
slope factors and unit risk estimates for each of the polycyclic aromatic hydrocarbons identified in
paragraph (1) of this subsection for all exposure pathways (e.g., the soil ingestion, vegetable ingestion,
inhalation, dermal contact with soil, and groundwater ingestion (in the absence of a primary MCL)
exposure pathways):
Attached Graphic
(3) The cancer slope factors and inhalation unit risk factors for the seven carcinogenic polycyclic
aromatic hydrocarbons, shall be: calculated according to the equations set forth in the following figure:
Attached Graphic
(4) The person shall not apply the relative potency factor for any pathways when evaluating
noncarcinogenic endpoints.
(5) For class 1 or 2 groundwater, the person shall establish PCLs according to the procedures in
subparagraphs (A) and (B) of this paragraph.
(A) In evaluating residential and commercial/industrial exposures to class 1 and 2 groundwater for
all tiers, the person shall use the most currently available primary MCL for benzo {a}pyrene as GW
GWIng for benzo{a}pyrene.
(B) In establishing GW GWIng, for class 1 and 2 groundwater for the six remaining carcinogenic
polycyclic aromatic hydrocarbons, the person shall use the higher of the calculated GW RBEL Ing or the
primary MCL for B {a }P as GW (GWIng for that specific polycyclic aromatic hydrocarbon. In the event
that primary MCLs for the other carcinogenic polycyclic aromatic hydrocarbons become available,
those MCLs would serve as GW GWIng for these compounds.
(g) Total Petroleum Hydrocarbons.
(1) The person shall follow the methodology prescribed by this subsection to establish PCLs for total
petroleum hydrocarbons, unless the executive director approves the use of an alternate method.
Cont'd.
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<<Prev Rule
TITLE 30
PART 1
C.14APTER 350
SUBCHAPTER D
RULE §350.75
(a) General.
Texas Administrative Code
ENVIRONMENTAL QUALITY
Page 1 of 5
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TE)►AS COMMISSION ON ENVIRONMENTAL QUALITY
TE_-N:AS RISK REDUCTION PROGRAM
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
Tiered Human Health Protective Concentration Level
Evaluation
(1) The person shall decide whether to use Tier 1, 2, and /or 3 to determine the PCLs for an affected
property, except as provided in paragraph (2) of this subsection and unless required by subsection (b),
(c), or (d) of this section.
(2) The executive director may require the person to establish PCLs in accordance with Tier 1, 2,
and/or 3 for state - funded response actions at affected properties.
(b) Tier 1 PCLs.
(1) Tier 1 is a risk -based analysis to derive non - site - specific PCLs for complete or reasonably
anticipated to be completed exposure pathways. Tier 1 is based on default exposure factors and affected
property parameters in the appliicable PCL equations provided in the following figure and assumes
exposure occurs at, above or below the source area (i.e., no lateral transport).
Attached Graphic
(2) No lateral transport equations may be used for a Tier 1 evaluation other than to ensure that
receptors at off -site POEs are protected when on -site commercial/industrial land use is assumed. The
person shall assume a 0.5 acre source area for an affected property with a 0.5 acre or less source area
and a 30 acre source area for an affected property with a source area in excess of 0.5 acres. The size of
the source area in soil and groundwater shall be determined using the soil or groundwater assessment
level calculated for a 0.5 acre source area. The executive director may require that the source area
include all areas of the affected property which exceed the assessment level and not just contiguous
areas when such assumption is appropriate considering the distribution of the COCs.
(3) The person shall establish PCLs using parameters which are specific to the affected property when
use of the Tier 1 default affected. property parameters would not be protective or when requested by the
executive director. The person shall then establish PCLs in accordance with subsections (c) or (d) of
this section.
(4) The person shall establish PCLs in accordance with subsections (c) or (d) of this section for any
groundwater, soil, surface water, air, or sediment human health exposure pathway which is complete or
reasonably anticipated to be completed at an affected property and for which an equation is not
referenced in this subsection.
(c) Tier 2 PCLs.
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(1) Tier 2 is a risk -based analysis to derive site - specific PCLs for complete or reasonably anticipated
to be completed exposure pathways utilizing site - specific exposure factors, as allowable, and/or
affected property parameters and Tier 1 equations. Tier 2 PCLs may also include lateral transport
considerations.
(2) The person shall use:
(A) the relevant RBELs appropriate for the type of COC, exposure pathway, receptor, and land use
provided in §350.74 of this title; (relating to Development of Risk -Based Exposure Limits);
(B) PCL equations provided by the executive director in guidance, in addition to the PCL equations
as shown in the figure in subsection (b)(1) of this section;
(C) the Tier 1 default affected property parameters or appropriately collected and representative site -
specific affected property parameters in the PCL equations, unless an entry of "No" in the column titled
"Change To Tier 1 Default Allowed ?" in the figure as shown in subsection (b)(1) of this section
indicates that a particular Tier 1 affected property parameter value shall not be modified under a Tier 2
evaluation; and
(D) PCLs established in accordance with subsection (d) of this section for any groundwater, soil,
surface water, air, or sediment exposure pathway which is complete or reasonably anticipated to be
completed at an affected property and for which an equation is not referenced either in this subsection
or in subsection (b)(1) of this section.
(d) Tier 3 PCLs.
(1) Tier 3 is a risk -based analysis to derive site - specific PCLs for complete or reasonably anticipated
to be completed exposure pathways. Tier 3 PCLs are based on measured natural attenuation factors
and/or natural attenuation factor models /equations other than those provided for Tier 1 or 2; and may
also include site - specific exposure factors, as allowable, and/or affected property parameters.
(2) The person shall use:
(A) field measured natural attenuation factors and /or appropriate natural attenuation factor
equations /models other than the Tier 1 and 2 PCL equations;
(B) appropriate equations /models for any remaining surface water, air, or sediment human exposure
pathway which is complete or reasonably anticipated to be completed at an affected property and for
which an equation is not referenced in subsection (b) or (c) of this section; and
(C) the Tier 1 default affected property parameters or appropriately collected and representative site -
specific affected property parameters in the PCL equations, unless an entry of "No" in the column titled
"Change To Tier 1 Default Allowed ?" in the figure as shown in subsection (b)(1) of this section
indicates that a particular Tier 1 affected property parameter value shall not be modified under a Tier 3
evaluation.
(e) Natural attenuation factor documentation. The person must document the use of all natural
attenuation factor equations /models other than the natural attenuation factor equations /models provided
in this subchapter or agency guidance, such that the derivation of the model and its site - specific
application can be understood, and the results of the model reproduced by the executive director. The
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executive director may require the person to obtain prior approval for the use of alternative natural
attenuation factor equations /models in a Tier 3 evaluation.
(f) Decay factors. When the person uses decay factors in any cross -media or lateral transport natural
attenuation factor equation in either Tier 2 or 3, the person shall use sufficient monitoring data (i.e.,
vapor, soils and groundwater samples for COCs or other degradation indicators) to verify the COC is
degrading.
(g) Verification. When natural attenuation factor modeling outputs are inconsistent with monitoring
data for environmental media at an affected property, the person and the executive director shall
generally place more weight on the monitoring data. The executive director may require the person to
provide sufficient monitoring data to verify that PCLs established under any tier are based on an
appropriate understanding of conditions at the affected property.
(h) Data adequacy. The person shall collect any additional data necessary to support the development of
PCLs under any of the tiers.
(i) Pathway specific PCL Considerations.
(1) PCLs for ingestion of COC "s in class 1 or 2 groundwater (GW GWIng ). The person shall establish
this PCL using the applicable equation shown in the figure in subsection (b)(1) of this section.
(2) PCLs for COCs in class 3 groundwater ( GW GWClass 3 )• The person shall establish this PCL using
the applicable equation in the figure in subsection (b)(1) of this section.
(3) PCLs for inhalation of volatile emissions in outdoor air from COCs in groundwater - bearing units
(Air GWInh -v )• The person shall. establish this PCL using the applicable equations as shown in the
figure in subsection (b)(1) of this section for Tier 1.
(4) PCLs for COCs in groundwater discharge to surface water (SW GW). The person shall set SW GW
equal to SW SW divided by the surface water dilution factor. The SW SW is the lesser of the SW RBEL
established in accordance with §350.74(h) of this title and the SWEco established in accordance with
§350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective
Concentration Levels). The surface water dilution factor shall be determined in accordance with
subparagraph (A) or (B) of this paragraph. The person shall use the PCL equation as shown in the
figure in subsection (b)(1) of this section to establish Sw GW. In the case that different surface water
dilution factors may be applicable to the SW RBEL and the SW Eco f the person shall first divide the SW
RBEL and the SWEco by their respective surface water dilution factors and set SW GW equal to the
lowest resulting quotient.
(A) The person shall assume a surface water dilution factor of one when the concentration of all
COCs in groundwater at the zone of discharge to surface water is less than or equal to the SW SW for
those COCs at the time the affected property assessment required in §350.51 of this title (relating to
Affected Property Assessment) is conducted. The person shall also assume a surface water dilution
factor of one for those specific COCs which are listed as impairing the nearest classified segment at or
downstream of the affected property. Impaired water bodies are provided in the current Clean Water
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Act, §303(d) list, as amended.
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(B) When the concentration of a COC in groundwater at the zone of discharge to surface water
exceeds the SW SW for that COC at the time the affected property assessment required in §350.51 of
this title is conducted, the person may establish a surface water dilution factor in accordance with
subparagraph (C), (D), or (E) of this paragraph.
(C) The person may use a surface water dilution factor of 0.15 for non - flowing surface waters such
as lakes, estuaries, tidal rivers; and fresh water streams and rivers (where the groundwater discharge is
clearly less than 15% of the 7Q2 stream flow as defined in §307.3(a)(34) of this title (relating to
Definitions and Abbreviations)), as amended. The person shall use the 7Q2 flows as listed in §307.10
(2) of this title (relating to Appendices A - E), as amended, for groundwater discharges directly to a
classified segment as listed in §307.10(3) of this title, as amended. For groundwater discharges which
are not directly to a classified segment, site - specific 7Q2 values must be determined for the water body
directly receiving the groundwater discharge.
(D) For freshwater streams and rivers where the groundwater discharge is clearly greater than 15%
of the 7Q2 flow, the person shall estimate property - specific surface water dilution factors based on 7Q2
flows for chronic aquatic -life criteria, 25% of 7Q2 flows for acute aquatic -life criteria, and harmonic
mean flows as defined in §307.3(a)(19) of this title, as amended, for human health criteria in
accordance with the procedures contained in the Implementation Procedures, as amended. The person
shall divide the SW SW by the estimated property - specific dilution factor. The person shall use the 7Q2
flows listed in §307.10(2) of this title, as amended, for groundwater discharges directly to a classified
segment as listed in §307.10(3) of this title, as amended. For groundwater discharges which are not
directly to a classified segment, site - specific 7Q2 values must be determined for the water body directly
receiving the groundwater discharge.
(E) As an alternative to using the dilution factor of 0.15 as specified in subparagraph (C) of this
paragraph, the person may measure and/or estimate the groundwater dilution in surface water from
appropriate models of groundwater plume dispersion, tracer studies, receiving water and sediment
sample analyses, analytical calculations, or other techniques upon the executive director's approval
using site - specific base flow conditions for groundwater, 7Q2 conditions for receiving streams, and
critical mixing conditions for lakes, estuaries, and tidal streams. The executive director may require a
receiving water study to ensure that benthic communities in the sediment are not adversely impacted. In
cases where groundwater COCs include bioaccumulative COCs, the executive director may require a
receiving water study or empirical analysis to ensure that the release of that particular COC is not
causing, or will not result in harmful levels in the tissue of aquatic and terrestrial organisms that feed in
the water body.
(F) The person may be required by the executive director to take appropriate action to ensure that
discharging groundwater plumes do not result in exceedances of surface water quality standards in
significant areas of the potentially affected surface water body.
(5) PCLs for other complete or reasonably anticipated to be completed groundwater exposure
pathways. The person shall establish PCLs for exposure pathways other than those listed in paragraphs
(1) - (4) of this subsection when, in the executive director's determination, those other exposure
pathways are complete or reasonably anticipated to be completed.
(6) PCLs for the combined exposure pathways of inhalation of volatile emissions and particulates
from COCs in surface soil, dermal contact with COCs in surface soil, ingestion of COCs in surface soil,
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and for affected residential properties, ingestion of aboveground and below - ground vegetables grown in
surface soil containing COCs (Tot Soilcomb )• The person shall establish this PCL using the applicable
equation as shown in the figure; in subsection (b)(1) of this section for Tier 1.
(7) PCLs for groundwater protection from leachate containing COCs from surface and subsurface soil
(GW Soil).
(A) The person shall establish GW Soil for each COC present in the surface and subsurface soil such
that soil leachate is protective fbr:
(i) the critical groundwater PCL established in §350.78 of this title (relating to Determination of
Critical Protective Concentration Levels) when the use of a plume management zone is not authorized
in §350.33(0(4) of this title (relating to Remedy Standard B);
Cont'd...
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<<Prev Rule
TITLE 30
PART 1
CHAPTER 350
SUBCHAPTER D
RULE §350.74
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ENVIRONMENTAL QUALITY
Page 1 of 5
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TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
TEXAS RISK REDUCTION PROGRAM
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
Development of Risk -Based Exposure Limits
(a) General requirement. The person shall use the criteria provided in subsections (b) - 0) of this section
and the RBEL equations provided in the following figures, as applicable, to establish RBELs
appropriate for the type of COC, the complete and reasonably anticipated to be completed exposure
pathways, receptors, and land uses. The person shall establish RBELs for carcinogenic COCs and
noncarcinogenic COCs using the default exposure factors provided in the following figure for residents
and commercial /industrial workers, unless the executive director approves the use of alternate exposure
factors in accordance with subsection 0) of this section.
Attached Graphic
(b) Air inhalation RBEL. The air inhalation RBEL ( Air RBELInh ) is the protective concentration of a
COC in air at the POE for human inhalation.
(1) Under Tiers 2 and 3 as described in §350.75 of this title (relating to Tiered Human Health
Protective Concentration Level Evaluation), the person may use the lower of available eight hour time -
weighted average occupational inhalation criteria; (i.e., Occupational Safety and Health Administration
Permissible Exposure Limits, or American Conference of Governmental Industrial Hygienists
Threshold Limit Values), as Air RBELInh for inhalation pathways for commercial /industrial workers
within the limits of affected commercial/industrial properties which have a health and safety plan in
place. The health and safety plan shall be designed to ensure compliance with the applicable
occupational inhalation criteria and require the monitoring of COC levels in the working air
environment, and specify actions that will be taken in the event of exceedance of the occupational
inhalation criteria. When occupational inhalation criteria are used, the person shall provide
documentation of the health and safety plan, certify that the plan is followed, and demonstrate that the
off -site receptors are protected as required by §350.71(h) of this title (relating to General
Requirements). The use of occupational inhalation criteria as RBELs shall require the person to comply
with the institutional control requirements in §350.11 l(b) and (b)(14) of this title (relating to Use of
Institutional Controls).
(2) The air RBELs may not exceed any other applicable federal or state air quality standards.
(c) Soil dermal contact RBEL. The soil dermal contact RBEL (soil RBELDerm ) is the protective
concentration of a COC at the POE in soil based upon direct dermal contact to soil by humans. The soil
dermal contact RBEL shall also be based on COC- specific values for dermal absorption fraction
(ABS.d) and gastrointestinal absorption fraction (ABSGI) provided in the following figure, unless the
executive director approves the use of alternate ABS.d and ABSGI values in accordance with
subsection 0)(1)(A) and (B) of this section. It is not necessary to calculate a soil dermal contact RBEL
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for COCs with vapor pressure in mm of Hg greater than or equal to 1.
Attached Graphic
(d) Soil ingestion RBEL. The soil ingestion RBEL ( soil RBEL Ing ) is protective concentration of a
COC at the POE in soil based upon human ingestion.
(e) Vegetable ingestion RBELs. The vegetable RBELs (Abgveg RBELIng and Bgveg RBEL'Ing ) are the
protective concentration of a COC in aboveground vegetables and below - ground vegetables,
respectively, for ingestion by re- sidents. The person shall establish RBELs for ingestion of aboveground
vegetables for all carcinogenic and. noncarcinogenic COCs which are metals. In addition, the person
shall establish RBELs for ingestion of below - ground vegetables for all carcinogenic and
noncarcinogenic COCs with a dimensionless Henry's Law Constant less than 0.03, as shown in the
figure in §350.73(f) of this title (relating to Determination and Use of Human Toxicity Factors and
Chemical Properties), when either of the following criteria are met:
(1) the COC is a metal; or
(2) the COC has a logarithmic octanol -water partition coefficient (Log Kow ) greater than four as
shown in the figure in §350.73(1) of this title (relating to Determination and Use of Human Toxicity
Factors and Chemical Properties); or
M Groundwater ingestion RBEL.
(1) The groundwater ingestion RBEL ( Gw RBELIng) is the protective concentration of a COC at the
POE in groundwater based upon human ingestion of groundwater. However, if available, the person
shall use the lower of the two values established under paragraphs (2) and (3) of this subsection instead.
(2) The person shall use the primary MCL as provided in 40 Code of Federal Regulations Part 141, as
amended, or the most currently available federal action level for drinking water (e.g., lead and copper)
as the RBEL when available for the COC.
(3) The person shall use the secondary MCLs established for individual COCs as provided in 40 Code
of Federal Regulations Part 143, as amended, as RBELs, or other scientifically valid published criteria
in cases where COCs are present at concentrations which present objectionable characteristics such as
taste or odor (e.g., methyl tertiary butyl ether) under the following circumstances:
(A) when the COCs are present in class 1 groundwater;
(B) when the COCs are present in class 2 groundwater that is within 1/2 mile of a well used to supply
drinking water and is also within or is likely to migrate, based upon the chemical properties of the
COCs and the hydrogeology, to the groundwater production zone of such drinking water supply well;
or
(C) when the COCs are present: in class 2 groundwater and there are no alternative water supplies
available.
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(g) Class 3 groundwater RBEL. The class 3 groundwater RBEL (Gw RBELCIass 3 ) is the acceptable
concentration of a COC at the ]POE in class 3 groundwater.
(h) Surface water RBEL. The surface water RBEL ( SW RBEL) is the protective concentration of a
COC at the POE in surface water. To establish Sw RBEL for a COC, the person shall determine the
lowest value from paragraphs (1) - (5) of this subsection for each COC, unless the person has sufficient
surface water quality information specific to the particular surface water body to support an adjustment
to the RBEL in accordance with paragraph (6) of this subsection. The SW RBEL value determined
pursuant to paragraphs (1) - (6) of this subsection may require modification in response to the
requirements of paragraphs (7) and (8) of this subsection. The Sw RBEL value for a given COC shall
be protective of relevant downgradient water bodies in consideration of the water body use (e.g.,
designated drinking water supply or sustainable fishery), the water body type (e.g., estuary or perennial
freshwater stream), the standards applicable to the type of water body /use, and the fate and transport
characteristics of the COC in question at the particular affected property.
(1) The person shall apply the lower of the acute or chronic criteria for fresh or marine waters as
applicable, based on the classification of the surface water, to protect aquatic life as provided in §307.6,
Table 1 of this title (relating to Toxic Materials), as amended. The person shall determine the
applicability of aquatic life criteria related to the water body aquatic life use and flow conditions in
accordance with the procedures contained in §307.3, §307.4, and §307.6 of this title (relating to
Definitions and Abbreviations, General Criteria, and Toxic Materials, respectively), and the agency's
Implementation Procedures, as amended, as defined in §350.4 of this title (relating to Definitions and
Acronyms), as amended. For fresh waters, the person shall calculate aquatic life criteria for metals with
hardness- dependent criteria using the hardness value for the nearest downstream classified segment, as
listed in the agency's Implementation Procedures, as amended. Where no value is provided in the
Implementation Procedures, a hardness value of 50 mg /l CaCO3 shall be used. When applicable, the
person shall convert total metal concentrations in surface water or groundwater to dissolved
concentrations as described in the agency's Implementation Procedures, as amended. The person may
use the basin - specific pH values provided in §307.6, Table 2 of this title, as amended, relevant to the
particular affected property for purposes of determining the appropriate values for the pH dependent
criteria. The person shall use the total suspended solids concentration for the nearest classified segment,
as listed in the agency's Implementation Procedures, as amended.
(2) The person shall apply the human health criteria to protect drinking water and fisheries as provided
in Table 3 of §307.6 of this title, as amended. When applicable, the person shall convert total metal
concentrations in surface water or groundwater to dissolved concentrations as described in the agency's
Implementation Procedures, as amended. The person shall determine the applicability of human health
criteria according to the water body uses (e.g., public water supply, sustainable fishery, incidental
fishery, and contact recreation) in accordance with the procedures contained in §307.3 and §307.6 of
this title, as amended, and the Implementation Procedures, as amended. When a water body is not
being evaluated as a drinking water source, the person must determine the necessity to evaluate
exposure pathways associated with contact recreation such as incidental ingestion of surface water and
dermal contact with surface water. The person shall use the total suspended solids concentration for the
nearest classified segment, as listed in the agency's Implementation Procedures, as amended.
(3) The person shall apply the effluent limitations specified in Texas Pollutant Discharge Elimination
System (TPDES) General Permit Number TXG830000, as amended, for any release of groundwater or
storm water that has been impacted by petroleum fuel (as defined in the general permit).
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(4) The person shall apply United States EPA guidelines or alternate provisions in accordance with
§307.6(c)(7) of this title, as amended, when criteria for aquatic life protection are not provided for a
COC in §307.6 of this title, Table 1, as amended. In addition, the person shall apply federal guidance
criteria (i.e., lower of a federal numerical criterion, MCL, or equivalent state drinking water guideline)
or alternate provisions in accordance with §307.6(d)(8) of this title, as amended, when human health
criteria for a COC are not provided in Table 3 of §307.6 of this title, as amended.
(5) The person shall apply the numerical criteria, as appropriate, for chlorides, sulfates, total dissolved
solids, and pH for classified segments as specified in §307.10(1) of this title (relating to Appendices A -
E), as amended.
(6) The person may apply additional provisions where data on surface water quality for a specific
surface water body at the affected property is available or can be reasonably obtained.
(A) The person may determine property- specific hardness, based on sampling data, for calculating
metals criteria in accordance with the procedures contained in the agency's Implementation Procedures,
as amended.
(B) The person may determine property - specific total suspended solids, based on sampling data, for
estimating "dissolved" metals in accordance with the Implementation Procedures, as amended.
(C) The person may determine the actual pH of the particular surface water body at the affected
property.
(7) The additional numeric and. narrative criteria listed in subparagraphs (A) and (B) of this paragraph
may require development of a surface water RBEL (e.g., where a nutrient is a COC) or modification to
the surface water RBEL (e.g., lower a RBEL value to minimize foaming on the water's surface)
determined pursuant to paragraphs (1) - (5) of this subsection.
(A) General criteria related to aesthetic parameters, nutrient parameters, and salinity in accordance
with §307.4(b), (e), and (g) of this title (relating to General Criteria), as amended.
(B) General provisions related. to the preclusion of adverse toxic effects on aquatic and terrestrial life,
livestock, or domestic animals in accordance with §307.6(b) of this title, as amended.
(8) If the executive director determines that the release has the potential to lower the surface water
dissolved oxygen, then the executive director may require the person to apply the dissolved oxygen
criteria for classified segments specified in §307.10(1) of this title, as amended, or the dissolved oxygen
criteria for unclassified waters specified in §307.10(4) of this title, as amended, §307.4(h) of this title,
as amended, and §307.7(b)(3)(A) of this title (relating to Site Specific Uses and Criteria), as amended.
(i) Aesthetics. For COCs for which a RBEL cannot be calculated by the procedures of this section, or
the RBEL concentration for the COC otherwise adversely impacts environmental quality or public
welfare and safety, presents objectionable characteristics (e.g., taste, odor), or makes a natural resource
unfit for use, the person shall comply with paragraphs (1) - (3) of this subsection as appropriate. For
response actions which are triggered for an area solely for purposes of this subsection (i.e., there is no
other human health or ecological hazard remaining), the executive director will evaluate the
seriousness, probable longevity of the matter, and suitability of the proposed remedy with the
landowner in order to site - specifically determine whether or not institutional controls and financial
assurance are warranted. The person shall provide all information reasonably necessary to support such
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TE)US COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TE3 AS RISK REDUCTION PROGRAM
SUBCHAPTER D
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
RULE §350.77
Ecological Risk Assessment and Development of Ecological
Protective Concentration Levels
(a) General. The person shall evaluate the affected property by conducting an ecological risk
assessment in a manner appropriate and consistent with subsections (b), (c), or (d) of this section. The
process is discussed in the agency's ecological risk assessment guidance. The purpose of the ecological
risk assessment will be to characterize the ecological setting of the affected property, identify complete
or reasonably anticipated to be completed exposure pathways and representative ecological receptors,
scientifically eliminate COCs that pose no unacceptable risk, and develop PCLs for selected ecological
receptors where warranted. The POEs for the selected ecological receptors shall be established on a
property - specific basis. However, if the person can show that no unacceptable ecological risk exists due
to incomplete or insignificant exposure pathways as specified in subsection (b) of this section, or if all
COCs can be eliminated as specified in subsection (c)(1), (6), (7), or (8) of this section, or if, after
incorporation of site - specific information, it can be shown that there is either no ecological risk or that
it is not apparent as specified in subsection (d) of this section, then the ecological risk assessment
process will terminate at that point. Also, if after the ecological risk assessment process specified in
subsection (b) of this section, or if at anytime during the ecological risk assessment process specified in
subsections (c) or (d) of this section, the person can demonstrate to the satisfaction of the executive
director that the implementation of a response action will eliminate the ecological exposure pathway or
render it insignificant, or that human health PCLs will be protective of ecological receptors, then no
further ecological risk assessment evaluation will be required. In addition, if after the ecological risk
assessment process specified in subsection (b) of this section, the person can demonstrate to the
satisfaction of the executive director that an expedited stream evaluation can determine that the
completed surface water and sediment pathways are insignificant, then no further ecological risk
assessment evaluation will be required. If no further ecological risk assessment evaluation is required,
then the person shall provide, as appropriate, a reasoned justification and/or an expedited stream
evaluation for terminating the ecological risk assessment and place this information in the affected
property assessment report as described in §350.91 of this title (relating to Affected Property
Assessment Report). Furthermore, after ecological PCLs have been established, the person shall have
the option, where determined appropriate, of conducting an ecological services analysis as a means of
managing ecological risk at the affected property, in accordance with subsection (f) of this section and
§350.33(a)(3)(B) of this title (relating to Remedy Standard B). Subsections (b), (c), and (d) of this
section describe a three- tiered approach to conducting an ecological risk assessment, and although there
is a logical progression from one tier to the next, the person may begin the ecological evaluation of the
affected property at any tier.
(b) Tier 1: exclusion criteria checklist. The person shall conduct a Tier 1 assessment at all affected
properties to which this rule is applicable as presented in §350.2 of this title (relating to Applicability),
unless the person elects to begin the ecological evaluation at Tier 2 or Tier 3. The person shall use the
Tier 1 Exclusion Criteria Checklist provided in the following figure. The person will have fulfilled the
ecological risk assessment requirements if the affected property meets the exclusion criteria. However,
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the person shall re -enter the ecological risk assessment process if changing circumstances result in the
affected property not meeting the Tier 1 exclusion criteria. The person is required to continue the
ecological risk assessment process as described in subsection (c) or (d) of this section if the affected
property fails the exclusion criteria, unless the reasoned justification and/or expedited stream evaluation
processes described in subsection (a) of this section are used to demonstrate that no unacceptable
ecological risk exists.
Attached Graphic
(c) Tier 2: screening -level ecological risk assessment. The person shall conduct a screening -level
ecological risk assessment to scientifically eliminate COCs that do not pose an ecological risk and to
develop PCLs for those COCs that do pose an unacceptable risk to selected ecological receptors. Effect
levels and exposure factors from the literature are used as early input, but Tier 2 PCLs are not
developed without consideration of realistic assumptions and available site - specific information. The
screening -level ecological risk assessment should contain the three following widely - acknowledged
phases of an ecological risk assessment: problem formulation, which establishes the goals, breadth, and
focus of the assessment; analysis, which consists of the technical evaluation of data on both the
exposure of the ecological receptor to a chemical stressor and the potential adverse effects; and risk
characterization, where the likelihood of adverse effects occurring as a result of exposure to a chemical
stressor is evaluated. In order to develop a screening -level ecological risk assessment which
appropriately evaluates ecological risk, the person shall meet the minimum requirements listed in
paragraphs (1) - (10) of this subsection. Additional information on these requirements, as well as case
examples, are provided in the agency's ecological assessment guidance. The person shall:
(1) use affected property concentrations of non - bioaccumulative COCs to compare to established
ecological benchmarks and/or use approved methodologies to develop benchmarks to determine
potential effects and to eliminate COCs that do not pose unacceptable ecological risk (if all COCs are
eliminated at this point, the ecological risk assessment process ends and the items listed in paragraphs
(2) - (9) of this subsection are not required);
(2) identify communities (e.g., soil invertebrates, benthic invertebrates) and major feeding guilds ( e.
omnivorous mammals, piscivorous birds) and their representative species which are supported by g
habitats on the affected property for each complete or reasonably anticipated to be completed exposure
pathway;
(3) develop a conceptual model which graphically depicts the movement of COCs through media to
communities and the feeding guilds;
(4) discuss COC fate and transport and toxicological profiles;
(5) prepare a list of input data which includes values from the literature (e.g., exposure factors, intake
equations that account for total exposure, no observed adverse effect level (NOAEL) and lowest
observed adverse effect level (LC►AEL) values, references), any available site - specific data, and
reasonably conservative exposure assumptions, and then calculate the total exposure to selected
ecological receptors from each COC not eliminated according to paragraph (1) of this subsection and
present these calculations in tables or spreadsheets;
(6) utilize an ecological hazard quotient methodology to compare exposures to the NOAELs in order
to eliminate COCs that pose no unacceptable risk (i.e., NOAEL hazard quotient less than or equal to 1);
however, when multiple members of a class of COCs are present which exert additive effects, it is also
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appropriate to utilize an ecological hazard index methodology (if all COCs are eliminated at this point,
the ecological risk assessment process ends and the items listed in paragraphs (7) - (9) of this
subsection are not required);
(7) justify the use of less conservative assumptions (e.g., a larger home range) to adjust the exposure
and repeat the hazard quotient exercise in paragraph (6) of this subsection, once again eliminating
COCs that pose no unacceptable risk based on comparisons to the NOAELs and adding another set of
comparisons, this time to the LOAELs, for those COCs indicating a potential risk (i.e., NOAEL hazard
quotient >1); however, when multiple members of a class of COCs are present which exert additive
effects, it is also appropriate to utilize an ecological hazard index methodology (if all COCs are
eliminated at this point, the ecological risk assessment process ends and the items listed in paragraphs
(8) and (9) of this subsection are not required);
(8) develop an "uncertainty analysis" which discusses the major areas of uncertainty associated with
the screening -level ecological risk assessment, including a justification for not developing PCLs for
particular COCs /pathways, if appropriate (e.g., NOAEL hazard quotient > 1 > LOAEL hazard quotient,
an evaluation of the likelihood of ecological risk, a discussion of the half -life of the COCs, etc.);
however, when multiple members of a class of COCs are present which exert additive effects, it is also
appropriate to utilize an ecological hazard index methodology (if all COCs are eliminated at this point,
the ecological risk assessment process ends and the item listed in paragraph (9) of this subsection is not
required);
(9) calculate medium - specific PCLs bounded by the NOAEL and the LOAEL used in paragraph (7) of
this subsection for those COCs that are not eliminated as a result of the hazard quotient exercises or the
uncertainty analysis; and
(10) make a recommendation for managing ecological risk at the affected property based on the final
ecological PCLs, unless proceeding under Tier 3 (may be included as part of the affected property
assessment report, self - implementation notice, or the response action plan).
(d) Tier 3: site - specific ecological risk assessment. When any of the Tier 2 PCLs, as described in
subsection (c) of this section, are considered by the person to be inappropriate or not reflective of
existing conditions at the affected property, or when otherwise elected, the person may conduct a site -
specific ecological risk assessment. If the person elects to begin the ecological evaluation of the
affected property by proceeding directly to a site - specific ecological risk assessment, applicable
components of a Tier 2 screening -level ecological risk assessment shall be incorporated, including
subsections (c)(2) - (4), (8), and (10) of this section and other requirements of subsection (c) of this
section as determined appropriate by the executive director. The purpose of the optional site - specific
ecological risk assessment shall be to incorporate additional information obtained through the
performance of site - specific studies designed to provide a more empirical evaluation of ecological risk
at the affected property. The result of the site - specific ecological risk assessment will be the
development of site - specific Tier 3 PCLs, a determination that there is no ecological risk, or a
conclusion that ecological risk is not apparent based on site - specific information. Site - specific studies
which may be conducted include but are not limited to:
(1) development of site - specific bioaccumulation factors through the collection and analysis of tissue
samples from appropriate ecological receptors.
(2) performance of toxicological testing of the impacted media via exposure to an appropriate test
species.
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(3) comparison of site data (e.g., macroinvertebrate diversity surveys) to like data from a reference
area.
(4) other studies designed to obtain a preponderance or "weight -of- evidence" to draw conclusions
about ecological risk.
(e) Cross -media transfers of COCs. In situations where cross -media transfer of a COC from a source
medium to a POE within an exposure medium must occur for the receptor to be exposed, then the
person shall use the cross - media natural attenuation factor equations as shown in the figure in §350.75
(b)(1) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) to
calculate the PCL. In lieu of using the human health RBEL referenced in the figures, the person shall
use the ecological PCL established under subsections (c) or (d) of this section.
(f) Ecological risk management: options. After the ecological risk has been quantified and PCLs have
been established as specified in subsections (c) or (d) of this section and it has been determined that the
ecological PCL is the critical PCL, or is the only PCL, the person may either:
(1) take action to remove and /or decontaminate the impacted media and COCs as described in §350.32
of this title (relating to Remedy Standard A); or
(2) remove, decontaminate, and/or control the impacted media and COCs or, when after consultation
with the Natural Resource Trustees, it is determined appropriate by the executive director, conduct an
ecological services analysis in accordance with §350.33 of this title (relating to Remedy Standard B).
The ecological services analysis considers the ecological risks and benefits of the potential response
actions available under Remedy Standard B at the affected property and, as appropriate, factors in
compensatory ecological restoration in lieu of or in addition to remediation as a means of managing
residual ecological risk.
Source Note: The provisions of this §350.77 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective A/larch 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PARK 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER D DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
RULE §350.78 Determination of Critical Protective Concentration Levels
(a) For each individual COC for which PCLs have been developed in response to §350.71(k) of this
title (relating to General Requirements), the person shall establish the critical PCL. The critical PCL is
the lowest PCL for a particular environmental medium considering all the exposure pathways for which
a PCL is developed in accordance with §350.75(i) of this title (relating to Tiered Human Health
Protective Concentration Level Evaluation) and/or §350.77 of this title (relating to Ecological Risk
Assessment and Development of Ecological Protective Concentration Levels).
(b) If the critical groundwater PCL, or an attenuation action level developed in accordance with
§350.33(f) of this title (relating to Remedy Standard B), is greater than the aqueous solubility limit for
that COC, then the COC should. be addressed as NAPL should any NAPLs be present.
(c) If the critical PCL for a CO(: established in subsection (a) of this section is less than the method
quantitation limit as defined in §350.4 of this title (relating to Definitions and Acronyms) or
background concentration for that COC as determined in accordance with §350.51(1) and (m) of this
title (relating to Affected Property Assessment), then the greater of the method quantitation limit or
background concentration is the: critical PCL for that COC.
(d) As an additional requirement, the critical PCL and any attenuation action level must ensure that the
explosive vapor provisions set forth in §350.31(c) of this title (relating to General Requirements for
Remedy Standards) are met.
Source Note: The provisions of this §350.78 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER D
DEVELOPMENT OF PROTECTIVE CONCENTRATION
LEVELS
RULE §350.79
Comparison of Chemical of Concern Concentrations to
Protective Concentration Levels
The person shall follow the procedures of this subsection to determine if a response action under this
chapter is necessary to protect human health and the environment, and if a response action is necessary,
then to determine if the remedy standard is attained. If the person satisfactorily demonstrates that all
reasonably available analytical technology (e.g., selected ion monitoring) has been used to show that
the COC cannot be measured to the method quantitation limit due to sample specific interferences, then
the person shall be allowed to determine attainment based on the sample detection limit. The person
shall make these determinations using the procedures described in either paragraph (1) or (2) of this
subsection.
(1) The person may make a direct comparison between individual measurements of COC
concentrations within environmental media and the critical PCLs. If the concentrations of a COC
within an environmental medium exceeds a critical PCL, then a response action is required.
(2) The person may determine if a response action is required by using appropriate statistical methods
provided in subparagraphs (A) or (B) of this paragraph.
(A) In order to determine if the concentrations of the COC at an affected property exceed a critical
PCL the person shall conduct a statistical test of the following set of hypotheses:
(i) the null hypothesis (Ho ) is that the mean of the COC concentrations in the affected property is
equal to or greater than the critical PCL;
(ii) the alternative hypothesis (Ha ) is that the mean COC concentration is less than the critical PCL;
(iii) the test is performed at a Type I error rate of 5 %; and
(iv) any statistical model used. for testing this hypothesis set must be demonstrated to meet these
performance standards.
(B) In order to determine if the concentration of a COC in an environmental medium at the affected
property is greater than the COC concentration for background areas, the person will use a statistical
test meeting the following performance standards:
(i) the null hypothesis (H.), in conjunction with any supporting assumptions, is equivalent to the
statement that the mean of the COC concentrations in the two areas are identical;
(ii) the alternative hypothesis (Ha ), is equivalent to the statement that the mean of the COC
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concentrations at the affected property exceeds that population of background concentrations; and
(iii) the test is performed at a Type I error rate of 20% and the test must have a demonstrable power
of 80% for an alternative hypothesis equivalent to a 100% difference in population means in the
Student's 'T' test. Alternative statistical methods for comparing affected property COC concentrations
to background COC concentrations may be approved by the executive director.
Source Note: The provisions of this §350.79 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective :March 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART i_ TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E REPORTS
RULE §350.90 S] ?atial and Electronic Information
(a) When required, the person shall provide accurate spatial coordinates and associated data attributes
that are reported in a format approved or required by the executive director.
(b) Reports required by this subchapter shall be submitted in a format, including an electronic format,
and according to a schedule established by the executive director.
Source Note: The provisions of this §350.90 adopted to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30 EIS VIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E REPORTS
RULE §350.91 Affected Property Assessment Report
(a) The person shall include the contact and identifications as described in paragraphs (1) - (3) of this
subsection in an affected property assessment report (APAR):
(1) the name, mailing address, and telephone number of the contact person or office for the on -site
affected property;
(2) the program and identification numbers for the project, if any (e.g., Solid Waste Registration
number, Leaking Petroleum Storage Tank identification number, Voluntary Cleanup Program number,
etc.); and
(3) the physical address or location of the affected property, including accurate latitude and longitude
and associated spatial data attributes in a format approved or required by the executive director.
(b) An APAR shall document descriptions of procedures and conclusions of the assessment and shall
include all information required to meet the requirements of §350.51 of this title (relating to Affected
Property Assessment), §350.52 of this title (relating to Groundwater Resource Classification) and
§350.53 of this title (relating to :Land Use Classification). This includes, but is not limited to:
(1) the classification of the groundwater(s) at an affected property including all supporting data and
results;
(2) the classification of the land use(s) of the affected property;
(3) the identification and characterization of all source areas (e.g., NAPLs);
(4) a characterization of the local geology and hydrogeology;
(5) the direction and rate of movement, composition, and representative concentrations of COCs in
environmental media (including the potential for migration to other media);
(6) an identification of all complete or reasonably anticipated to be completed exposure pathways, and
an identification of other exposure pathways evaluated in accordance with §350.71(c)(8) of this title
(relating to General Requirements) and an explanation of why those pathways were not considered to
be complete or reasonably anticipated to be completed;
(7) as required, a completed Tier 1 Exclusion Criteria Checklist and, if appropriate, a reasoned
justification and/or an expedited stream evaluation for terminating the ecological risk assessment, or as
required a Tier 2 screening -level ecological risk assessment, and/or a Tier 3 site - specific ecological risk
assessment as specified in §350.77 of this title (relating to Ecological Risk Assessment and
Development of Ecological Protective Concentration Levels);
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(8) summaries of sampling methodology;
(9) all analytical data in accordance with §350.54 of this title (relating to Data Acquisition and
Reporting Requirements);
(10) documentation that the data necessary to support the development of PCLs and remedy selection
have been adequately and appropriately collected;
(11) documentation of the derivation of all RBELs and PCLs and the determination of the critical
PCLs for environmental media including all associated assumptions and calculations;
(12) a tabular comparison between concentrations of COCs and the critical PCLs. If statistical or
geostatistical methods are used to develop representative concentrations of COCs, then the person shall
include the following:
(A) a discussion of the data collection effort from an environmental medium to support this
determination (e.g., judgmental samples, random sampling design, etc.);
(B) the statistical or geostatistical methodology applied; and
(C) the assumptions of the statistical or geostatistical method and how those assumptions are met.
(13) graphical representations (e.g., maps and cross - sections) of the soil and/or groundwater PCLE
zone(s), location of other environmental media which exceeds the respective critical PCLs, and the
plume management zone if applicable;
(14) a description of any exposure conditions which require notice under §350.55(e) of this title
(relating to Notification Requirements) and any certification required under §350.55(d) and (e) of this
title;
(15) accurate spatial coordinates and associated data attributes, in a format approved or required by
the executive director, for all locations where samples of environmental media were collected or where
other testing was conducted (e.g., water wells and monitor wells which were sampled or which were
used for aquifer testing, soil sampling locations, surface water and sediment sampling locations, and air
sampling locations); and
(16) any other reasonable information required by the executive director.
Source Note: The provisions of this §350.91 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective Nlarch 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E REPORTS
RULE §350.92 Self- Implementation Notice
The person shall include the following information in a self - implementation notice (SIN):
(1) the person shall include the following contact and identifications:
(A) the name, mailing address, and telephone number of the contact person or office for the on -site
affected property;
(B) the program and identification numbers for the project, if any (e.g., Solid Waste Registration
number, Leaking Petroleum Storage Tank identification number, Voluntary Cleanup Program number,
etc.); and
(C) the physical address or location of the affected property;
(2) a list of the COCs which require a response action;
(3) a description of the qualitative and quantitative response action objectives to be achieved by the
response action;
(4) a description of any exposure conditions which require notice under §350.55(e) of this title
(relating to Notification Requirements) and any certification required under §350.55(d) and (e) of this
title;
(5) a description of the response action chosen to achieve Remedy Standard A;
(6) acknowledgment that any permits needed to implement the remedy will be obtained prior to
implementation;
(7) a schedule for implementation and completion of the response action;
(8) if applicable, a copy of the proposed institutional control for §350.31(h)(1) of this title (relating to
General Requirements for Remedy Standards); and
(9) any other reasonable information required by the executive director.
Source Note: The provisions of this §350.92 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
s, q <>.
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E
REPORTS
RULE §350.93
Response Action Effectiveness Report
The person shall include the following information in a response action effectiveness report (RA-ER):
(1) a summary of the response actions taken since the last reporting period;
(2) for each environmental medium, a comparison among the critical PCL; the initial concentration of
COCs; and the current (i.e., at the time of RAER submittal) concentrations of COCs;
(3) an estimate of the percentage of the response action which has been completed;
(4) an estimate in years of the additional time necessary to complete the response actions;
(5) a determination whether sufficient progress is being made to achieve the selected remedy standard
within a reasonable time frame given the particular circumstances of an affected property;
(6) if applicable, a copy of the proposed institutional control for §350.31(h) of this title (relating to
General Requirements for Remedy Standards); and
(7) any other reasonable information required by the executive director.
Source Note: The provisions of this §350.93 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E REPORTS
RULE §350.94 Response Action Plan
(a) The person shall address all environmental media containing COCs in excess of the critical PCLs in
a response action plan (RAP).
(b) The RAP must clearly state property - specific response objectives which are consistent with the
response objectives specified in §350.33 of this title (relating to Remedy Standard B), or §350.32 of
this title (relating to Remedy Standard A) if a person chooses to await executive director approval of a
RAP under Remedy Standard A.,
(c) The person must demonstrate; that the proposed property- specific response actions are capable of
achieving the response action objectives within a reasonable time frame as specified in §350.33 of this
title (relating to Remedy Standard B), or §350.32 of this title (relating to Remedy Standard A) if a
person chooses to await executive director approval of a RAP under Remedy Standard A.
(d) If monitoring of environmental media is proposed during the response action, the RAP shall address
the proposed monitoring frequencies, parameters, locations, analytical methods, and all associated
quality control procedures.
(e) The RAP shall describe any soil and/or groundwater treatment systems proposed as a part of the
response actions for the affected property.
(1) The person shall list necessary inspection, operation and maintenance tasks, as well as characterize
optimum operating conditions for any treatment system.
(2) The person shall discuss potential problems that can reasonably be expected to occur and indicate
how they propose to respond to those potential problems.
(3) The person shall identify any permits needed to construct and/or implement the remedy
(f) The person shall include a discussion of any sampling to be conducted to demonstrate conformance
with the response objectives and to meet all requirements of §350.79 of this title (relating to
Comparison of Chemical of Concern Concentrations to Protective Concentration Levels). This
sampling discussion shall include:
(1) the data collection effort from an environmental medium to support this determination (e.g.,
judgmental samples, random sampling design, etc.);
(2) the statistical or geostatistical methodology which will be applied, if any; and
(3) the assumptions of the statistical or geostatistical method and how those assumptions are met.
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(g) The RAP shall specify the type, location, duration, and implementation schedule for the various
removal actions, decontamination measures, and any physical and/or institutional controls to be
implemented as the response action for the affected property.
(h) The person shall include a schedule for submission of RAERs to the executive director.
(i) The person shall include a copy of the institutional control they plan to use to meet the requirements
of § §350.31(g) and (h); 350.74(b)(1); 350.740)(2)(L); or 350.51(1)(3) and (4) of this title (relating to
General Requirements for Remedy Standards; Development of Risk -Based Exposure Limits; and
Affected Property Assessment, respectively).
0) Cost information for the recommended response action and comparative cost analyses for a number
of response actions may be required by specific program areas.
(k) For Remedy Standard B, the person shall include the following information regarding post- response
action care in a RAP:
(1) a description of the monitoring program for the post- response action care period including, but not
limited to, the following where applicable:
(A) the type of monitoring to be performed (e.g., groundwater, soil, and soil gas);
(B) plot plan(s) indicating monitoring locations (including attenuation monitoring points);
(C) well construction details;
(D) environmental media monitoring frequency;
(E) COCs to be analyzed;
(F) sampling procedures, chain of custody protocols, and laboratory methods; and
(G) quality assurance /quality control procedures in accordance with §350.54 of this title (relating to
Data Acquisition and Reporting Requirements);
(2) a description of and schedule for the inspection, operation, and maintenance of any physical
controls for the post- response action care period;
(3) a description of the proposed post- response action land use and a demonstration that the proposed
use:
(A) will not compromise the integrity of the physical controls;
(B) will not interfere with the function of the monitoring systems;
(C) will not pose a threat to human health or the environment; and
(D) will be in accordance with any institutional controls.
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(4) a written financial assurance cost estimate, when applicable, for performing the post- response
action care, which has been prepared in accordance with §350.33(1) of this title (relating to Remedy
Standard B);
(5) the affidavit required under §350.33(n)(1) of this title (relating to Remedy Standard B) for the
special small business consideration, as applicable;
(6) a reporting schedule for submission of the PRACRs under Remedy Standard B based on annual
reporting unless the executive director approves an alternate reporting schedule. Alternate schedules
may have a greater or lesser period, or may specify quarterly reporting in the earlier post- response
action care period, decreasing to annual, biannual or other appropriate schedule.
(1) Any other reasonable information required by the executive director.
Source Note: The provisions of this §350.94 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E REPORTS
RULE §350.95 Response Action Completion Report
(a) For both Remedy Standard A, and B, the person shall include in the response action completion
report (RACR):
(1) information specified in §350.111 (c) of this title (relating to Use of Institutional Controls)
whenever an institutional control will be placed in the real property records of the county for an off -site
property or leased lands;
(2) all analytical data prepared and presented in accordance with §350.54 of this title (relating to Data
Acquisition and Reporting Requirements);
(3) a description of the volume and final disposal or reuse location, and a copy of any waste manifests
or other documentation of disposition for waste or environmental media which were removed from the
affected property; and
(4) if statistical or geostatistical. methods are used to demonstrate attainment of the response
objectives, the person shall include the following:
(A) a discussion of the data collection effort from an environmental medium to support this
determination (e.g., judgmental samples, random sampling design, etc.);
(B) the statistical or geostatistical methodology applied; and
(C) the assumptions of the statistical or geostatistical method and how those assumptions are met.
(b) When the person selects Remedy Standard A, the RACR shall include information which
documents that the requirements for response actions stated in §350.31 and §350.32 of this title
(relating to General Requirements for Remedy Standards and Remedy Standard A, respectively) have
been fulfilled. When applicable, the report shall also include a copy of the document that the person
proposes to use to fulfill the institutional control requirements of §350.31(g) of this title (relating to
General Requirements for Remedy Standards) when the affected property has been restored for
commercial/industrial land use, the requirements of §350.51(1)(3) or (4) of this title (relating to
Affected Property Assessment) when a non - default exposure area has been used, the requirements of
§350.74(b)(1) of this title (related to Development of Risk -Based Exposure Limits) when occupational
inhalation criteria have been used as RBELs, or the requirements of §350.740)(2) of this title (related to
Development of Risk -Based Exposure Limits) when non - default RBEL exposure factors have been
used.
(c) When the person selects Remedy Standard B, the RACR shall include information which
documents that the response actions described in the approved RAP have been completed. The report
shall:
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(1) include a demonstration that the requirements of §350.31 and §350.33 of this title (relating to
General Requirements for Remedy Standards and Remedy Standard B, respectively) have been fulfilled
for the affected property based upon concentration of COCs remaining at the property and the
application of physical and institutional controls; and
(2) document that any physical control, or combination of physical controls, (e.g., caps, slurry walls,
treatment which does not constitute decontamination, and/or landfills) has been constructed or
completed and is functioning as described in the approved RAP.
(d) In situations where soils which contain COCs are relocated for reuse in accordance with §350.36 of
this title (relating to Relocation of Soils Containing Chemicals of Concern for Reuse Purposes), the
person shall also provide:
(1) documentation of the prior written landowner consent required in §350.36(d) of this title (relating
to Relocation of Soils Containing Chemicals of Concern for Reuse Purposes) for soil reuse on property
not owned by the person; and
(2) documentation that any asphalt mix or road base mix meets the specifications required by the user
when requested by the executive director.
(e) The person shall provide any other reasonable information required by the executive director.
Source Note: The provisions of this §350.95 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
NeX t, _ a r, c' Pre v, o u s _ a �:Te
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER E
REPORTS
RULE §350.96
Post - Response Action Care Reports
The person shall include the following information in a post- response action care report (PRACR):
(1) the results of any monitoring program with all analytical data prepared and presented in
accordance with §350.54 of this title (relating to Data Acquisition and Reporting Requirements);
(2) a summary of activities related to the inspection, operation, and maintenance of physical controls;
(3) a discussion of any corrective actions taken in response to failure of institutional and/or physical
controls; and
(4) any other reasonable information required by the executive director.
Source Note: The provisions of this §350.96 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective Niarch 19, 2007, 32 TexReg 1526
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER F
INSTITUTIONAL CONTROLS
RULE §350.111
Use of Institutional Controls
(a) Whenever required by this chapter, the person or landowner shall file a copy of the appropriate deed
notice, VCP certificate of completion or restrictive covenant in the real property records of the county
in which the property is located to notify future owners of any limitations on the use of the property.
Deed notices, VCP certificates of completion and restrictive covenants shall include the following
information:
(1) a metes and bounds description of the portion(s) of the affected property to which the institutional
control applies;
(2) a plat map clearly demarcating the portion(s) of the affected property to which the institutional
control applies. The map must contain a north arrow, a correlating map scale, and a legend identifying
any used symbols or abbreviations;
(3) a certification by a registered professional land surveyor so registered by the Texas Board of
Professional Surveying attesting to the accuracy of the descriptions provided in paragraphs (1) and (2)
of this subsection;
(4) a statement discussing the appropriate land use (i.e., residential or commercial/industrial) for the
affected property;
(5) an explanation as to which environmental media contain COCs above PCLs;
(6) a statement documenting any property use limitations or any requirements for maintenance of
physical and/or institutional controls, or compliance with health and safety plans;
(7) the TCEQ Program and identifier number, and the availability of more detailed information at or
through the TCEQ Central Records Office or Web Site; and
(8) the physical address and mailing address for the TCEQ Central Records Office.
(b) The person shall record a deed notice, VCP certificate of completion or by agreement with an
innocent landowner cause a restrictive covenant to be recorded in accordance with subsection (c) of this
section and the additional applicable requirements detailed in paragraphs (1) - (14) of this subsection,
unless the affected property is subject to a zoning or governmental ordinance that is equivalent to the
deed notice, VCP certificate of completion or restrictive covenant that would otherwise be required
under this subsection.
(1) For on -site and off -site properties where an institutional control is required pursuant to §350.31(h)
of this title (relating to General Requirements for Remedy Standards), the person shall file a deed
notice or VCP certificate of completion which indicates that long -term response actions are being
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(2) For on -site and off -site properties that have achieved Remedy Standard A for
commercial /industrial land use,, pursuant to §350.31(g) of this title (relating to General Requirements
for Remedy Standards) the person shall note in a deed notice or VCP certificate of completion that if
any person desires to use the property for residential purposes, they must first notify the commission at
least 60 days in advance of such use and that additional response actions may be necessary.
(3) For on -site and off -site properties where an institutional control is required pursuant to §350.31(g)
of this title (relating to General Requirements for Remedy Standards) because a physical and/or
institutional control has been used to attain Remedy Standard B, the person shall describe in a deed
notice or VCP certificate of completion the physical control (including the physical location and/or the
lateral extent) and the reason the physical and/or institutional control must remain in place to be
protective of human health and the environment, unless or until the agency approves any modifications.
(4) For any on -site or off -site properties with changes in circumstances as discussed in §350.35 of this
title (relating to Substantial Change in Circumstances) that negate the need for a deed notice or VCP
certificate of completion, the person shall describe the reason the original deed notice or VCP
certificate of completion is no longer necessary to protect human health and the environment. If the
executive director agrees, the executive director will execute a superceding deed notice that may be
filed in the deed records.
(5) For on -site or off -site properties with a landowner who is an innocent owner or operator and where
an institutional control is required under §350.31(g) of this title (relating to General Requirements for
Remedy Standards) to limit the property to commercial/industrial land use, a restrictive covenant shall
limit the property to commercial /industrial land use. The restrictive covenant shall include a statement
indicating that if any person desires in the future to use the property for residential purposes, then the
agency must grant approval prior to such use.
(6) For on -site or off -site properties with a landowner who is an innocent owner or operator and where
an institutional control is required in response to §350.31(g) of this title (relating to General
Requirements for Remedy Standards), because a physical and/or institutional control has been used to
obtain Remedy Standard B, a restrictive covenant shall compel the maintenance of or prohibit the
removal of the physical control and shall describe any physical control (including the physical location
and/or lateral extent) and the reason the physical control and/or institutional control must remain in
place to be protective of human health and the environment. The restrictive covenant shall include a
statement indicating that if any person desires in the future to alter the physical or institutional control,
the agency must grant prior approval to any such changes.
(7) For any on -site or off -site properties with changes in circumstances as discussed in §350.35 of this
title (relating to Substantial Change in Circumstances) that negate the need for a restrictive covenant,
the person shall describe the reason the original restrictive covenant is no longer necessary to protect
human health and the environment. If the executive director agrees, the executive director will execute
a release of restrictive covenant that may be filed in the deed records.
(8) For on -site and off -site properties where an institutional control is required pursuant to §350.51(1)
(3) of this title (relating to Affected Property Assessment), the person shall indicate, in a deed notice or
VCP certificate of completion, the size of the assumed exposure area for residents and that if future
exposures are limited to smaller areas, the affected property should be reevaluated to ensure protection
of human health.
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(9) For on -site and off -site properties where an institutional control is required pursuant to §350.51(1)
(4) of this title (relating to Affected Property Assessment), the person shall indicate, in a deed notice or
VCP certificate of completion, the size of the assumed exposure area for commercial /industrial workers
and that if future exposures are limited to smaller areas, the affected property should be reevaluated to
ensure protection of human health.
(10) For on -site and off -site properties with a landowner who is an innocent owner or operator and
where an institutional control is required pursuant to §350.51(1)(3) of this title (relating to Affected
Property Assessment), a restrictive covenant shall indicate the size of the assumed exposure area for
residents and prohibit subdivision of the property into individual tracts smaller than the assumed
exposure area. The restrictive covenant shall include a statement indicating that if any person desires in
the future to subdivide the property, the agency must grant prior approval to any such changes.
(11) For on -site and off -site properties with a landowner who is an innocent owner or operator and
where an institutional control is required pursuant to §350.51(1)(4) of this title (relating to Affected
Property Assessment), a restrictive covenant shall indicate the size of the assumed exposure area for
commercial /industrial workers and prohibit subdivision of the property into individual tracts smaller
than the assumed exposure area„ The restrictive covenant shall include a statement indicating that if any
person desires in the future to subdivide the property, the agency must grant prior approval to any such
changes.
(12) For on -site and off -site properties where an institutional control is required pursuant to §350.740)
(2)(L) of this title (relating to Development of RiskBased Exposure Limits), the person shall indicate,
in a deed notice or VCP certificate of completion, the approved exposure frequency and duration and
that exposures exceeding these approved levels are not protective of human health.
(13) For on -site and off -site properties with a landowner who is an innocent owner or operator and
where an institutional control is required pursuant to §350.740)(2)(L) of this title (relating to
Development of RiskBased Exposure Limits), a restrictive covenant shall indicate the approved
exposure frequency and duration and prohibit exposures exceeding these approved levels. The
restrictive covenant shall include; a statement indicating that if any person desires to change the
exposure frequency and/or duration, the agency must grant approval prior to any such changes.
(14) For on -site and off -site properties where an institutional control is required pursuant to §350.74
(b)(1) and §350.31(g) of this title; (relating to Development of Risk -Based Exposure Limits, and
General Requirements for Remedy Standards, respectively) because occupational inhalation criteria are
used as the basis for determining the protective concentration of COCs in the working air environment,
the person shall note, in a deed notice or VCP certificate of completion, the fact that the response action
taken in response to this chapter relies on monitoring air concentrations of COCs and compliance with
occupational inhalation criteria and a required health and safety plan for the affected property.
(c) The person shall submit a written request to the landowner to obtain permission to file the deed
notice or VCP certificate of completion or to solicit agreement to have an innocent landowner execute a
restrictive covenant. This written request must contain a copy of the proposed deed notice, VCP
certificate of completion or restrictive covenant, the address and phone number of the commission's
Public Interest Counsel as someone the landowner may contact, and a clear explanation as to the
content and purpose of the institutional control. The person shall obtain written consent from the
landowner for the filing of the deed notice or VCP certificate of completion prior to filing of a deed
notice or VCP certificate of completion required to be filed under this chapter in the real property
records unless the person is a governmental entity that is not a responsible party or subsections (b)(4),
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(d), or (f) of this section apply. Restrictive covenants shall be executed only by the landowner. A
restrictive covenant in favor of 'TCEQ and the State of Texas which runs with the land shall be the
required institutional control with the exception of institutional controls required under §350.31(h) and
§350.74(b)(1) of this title (relating to General Requirements for Remedy Standards and Development
of Risk -Based Exposure Limits,, respectively) unless information is presented which demonstrates that:
(1) the landowner is not an innocent owner or operator as defined in §350.4 of this title (relating to
Definitions and Acronyms), in which case the person shall file a deed notice or VCP certificate of
completion;
(2) it is technically impracticable to obtain a residential -based Remedy Standard A response action
and an innocent landowner refuses to execute a restrictive covenant, or a non - innocent landowner
refuses to consent to the filing of a deed notice or VCP certificate of completion; a court of competent
jurisdiction has determined the amount of compensation due the landowner as compensation for filing a
deed notice or VCP certificate of completion in the real property records for that property; and the
person has paid into the court registry compensation, if any, determined by the court, in which case the
person shall file a deed notice or VCP certificate of completion;
(3) after extensive and diligent inquiry by the person, the executive director concludes that the
landowner cannot be found, in which case the person shall file a deed notice or VCP certificate of
completion; or
(4) the person is a governmental entity that is not a responsible party, and the innocent landowner
refuses to execute a restrictive covenant.
(d) Landowner consent shall not be required for the filing of deed notice or VCP certificate of
completion under this chapter if it is technically impracticable to obtain a residential -based Remedy
Standard A response action, and the person demonstrates that:
(1) the non - innocent landowner refuses to grant consent for the filing of a deed notice or VCP
certificate of completion, or an innocent landowner refuses to file a restrictive covenant;
(2) a court of competent jurisdiction has determined the amount of compensation due the landowner
as compensation for filing a deed notice or VCP certificate of completion in the real property records
for that property; and
(3) the person has paid into the court registry compensation, if any, determined by the court.
(e) The person shall provide a copy of the request for landowner consent for filing of a deed notice or
VCP certificate of completion or copy of the request for the innocent landowner to execute a restrictive
covenant, and proof of the date of receipt by the landowner of the request, with the RACR, unless
required earlier in accordance with §350.33(f)(2), (f)(3)(F), or (f)(4)(C) of this title (relating to Remedy
Standard B). Proof of written landowner consent for the filing of deed notice or a VCP certificate of
completion or the written agreement of the innocent landowner to execute a restrictive covenant shall
be provided to the executive director before the executive director will approve the RACR, unless the
provisions in subsections (b)(4), (d) or (0 of this section are met.
(f) Landowner consent for deed notice or VCP certificate of completion shall not be required if, after
extensive and diligent inquiry by the person, the executive director concludes that the landowner cannot
be found.
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Source Note: The provisions of this §350.111 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30
PART' 1
CHAPTER 350
SUBCHAPTER G
RULE §350.131
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ENVIRONMENTAL QUALITY
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
TE)US RISK REDUCTION PROGRAM
ESTABLISHING A FACILITY OPERATIONS AREA
Purpose
This subchapter specifies the information and procedures necessary to establish a Facility Operations
Area (FOA) to address multiple sources of COCs within an operational chemical or petroleum
manufacturing plant which is required to perform corrective action on property regulated under Chapter
335 of this title (relating to Industrial solid waste and municipal hazardous waste) pursuant to a
hazardous waste permit or commission corrective action order.
Source Note: The provisions of this §350.131 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30
ENVIRONMENTAL QUALITY
PART 1
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHANTER 350
TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER G
ESTABLISHING A FACILITY OPERATIONS AREA
RULE §350.132
Effect
(a) The person can propose to modify the provisions of this chapter to the extent necessary to establish
an interim response action that will be protective of human health and the environment within and at
the boundary of the FOA, with the exception of releases which occur after the effective date of the
FOA. The person can establish a. prioritization of final response actions to be initiated or completed to
the extent practical during the period of FOA authorization.
(b) The person must comply with all requirements of this chapter for response to affected property
outside the FOA as these modifications do not extend beyond the FOA boundary.
(c) The person must comply with all other applicable requirements of this chapter unless explicitly
exempted from doing so under this subchapter.
Source Note: The provisions of this §350.132 adopted to be effective September 23, 1999, 24 TexReg
7436
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER G ESTABLISHING A FACILITY OPERATIONS AREA
RULE §350.133 Diuration and Termination
(a) If granted, these modifications may remain in effect for the duration of active industrial operations
within the FOA.
(b) The allowance for the use of the FOA is subject to review at time of renewal of the hazardous waste
permit or commission corrective action order for any changed conditions in response to §350.35 of this
title (relating to Substantial Change in Circumstances) which result in the FOA no longer being
protective of human health and the environment, or at any other time for failing to maintain compliance
with the qualifying criteria specified in this subchapter. In such situations, the executive director may
direct the person to take corrective action within a certain time period to regain compliance or may
initiate actions to revoke the FOA.
(c) At the termination of the FOA, the person shall comply fully with this chapter, with the exception
that groundwater response objectives for class 1 and 2 groundwaters present within the terminated FOA
boundary may be based on response objectives for class 2 groundwater.
Source Note: The provisions of this §350.133 adopted to be effective September 23, 1999, 24 TexReg
7436
pa
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TITLE 30
PART 1
CHAPTER 3.50
SUBCHAPTER G
RULE §350.134
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ENVIRONMENTAL QUALITY
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
TEXAS RISK REDUCTION PROGRAM
ESTABLISHING A FACILITY OPERATIONS AREA
Qualifying Criteria
(a) The person seeking to obtain a FOA has the burden of providing sufficient evidence to the executive
director that the following criteria have been met.
(1) The facility must be an operational chemical or petroleum manufacturing plant with North
American Industrial Classification System code numbers 325 or 324, respectively, which is actively in
production of a product stream.
(2) The facility must be subject to a hazardous waste permit or commission corrective action order.
Facilities that are in operation but that have not received a hazardous waste permit as of the effective
date of this rule shall obtain authorization for a FOA by means of a corrective action order.
(3) The facility must restrict access to the FOA such that only workers and authorized visitors who
have been provided appropriate training or are subject to controls on their activities are permitted to
enter the FOA.
(4) The facility must conduct a. worker health and safety program. The facility must be able to
document that the worker health and safety program meets or exceeds requirements of the Occupational
Safety and Health Administration (OSHA) as demonstrated by:
(A) its OSHA compliance history, or
(B) results of evaluation by a third party certified industrial hygienist and safety specialist.
(5) the facility must have an average of both lost workday injury case rates and injury incidence rates
for the most recent three -year period at or below the most recent specific industry national average
published by the Bureau of Labor Statistics.
(6) The facility must have an audit of its health and safety programs by the Occupational Safety and
Health Administration or a third party certified professional industrial hygienist and safety specialist
anytime there is a significant change to the health and safety program, or at a minimum of every three
years, the results of which indicate the program is satisfactory.
(7) The facility must have a program to protect workers within the FOA from environmental media
having concentrations of COCs greater than PCLs or action levels based on the health and safety
program.
(8) The facility must have a pollution prevention program that has as a goal the prevention of releases
of COCs to environmental media within the FOA. The facility can satisfy this criterion with one or
more of the following options:
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(A) conduct a program to inspect and maintain on an appropriate frequency the physical integrity of
structures used for the manufacturing, storage and conveyance of products or feed stocks so as to
prevent or, if detected, to abate unauthorized releases of COCs to environmental media. These
procedures are to be applied within the FOA to all structures with potential to release COCs not already
addressed by commission rules for hazardous waste management facilities (e.g., secondary containment
systems for tanks);
(B) some other spill prevention approach for which the facility can demonstrate equivalent
performance with the program of subparagraph (A) of this paragraph; or
(C) acceptance of the facility into a commission- sponsored multi -media voluntary pollution
prevention program, such as Clean Industries Plus or a program deemed equivalent by the executive
director.
(9) The facility must not have any significant outstanding non - compliance issues resulting from
inspections for compliance with its Resource Conservation and Recovery Act permit or any
commission order.
(10) The facility must be able to meet requirements for financial assurance in accordance with Chapter
37 of this title (relating to Financial Assurance).
(b) Other criteria that may be considered include, but are not limited to, the risk to human health and
the environment that would be presented by the granting of a FOA, the compliance history of the
facility determined in accordance with Chapter 60 of this title (relating to Compliance History), as
amended, and any other pertinent information.
Source Note: The provisions of this §350.134 adopted to be effective September 23, 1999, 24 TexReg
7436; amended to be effective March 19, 2007, 32 TexReg 1526
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TITLE 30 ENVIRONMENTAL QUALITY
PART 1 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350 TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER G ESTABLISHING A FACILITY OPERATIONS AREA
RULE §350.135 Application Requirements
(a) The person shall submit a proposal as an application for a class 3 modification to a hazardous waste
permit, or during preparation of a commission corrective action order, in a form and content acceptable
to the executive director, that identifies the proposed modifications and provides the following
information.
(1) A description of the lateral and vertical boundaries of the proposed FOA. Facility operations area
boundaries can coincide with the facility property boundary only where industrial development extends
to the property line.
(A) The lateral boundary shall be depicted on a to -scale map, supported by a metes and bounds
description and aerial photographs, land use maps or other appropriate documentation. The exact lateral
limits of a FOA are determined on a facility -by- facility basis subject to specific approval by the
executive director.
(B) The vertical boundary shall be depicted on to -scale cross - sections which indicate the subsurface
conditions. The exact vertical limits of a FOA are determined on a facility -by- facility basis subject to
specific approval by the executive director in consideration of the extent and concentrations of COCs in
the groundwater - bearing units, hydrogeology, surrounding use of groundwater from those units, and
availability of superior water supplies.
(2) The results of an investigation that sufficiently characterizes the proposed FOA with regard to
surface and subsurface conditions, groundwater quality and horizontal and vertical groundwater flow
pathways. Migration of COCs toward and beyond the FOA boundary must be capable of being reliably
predicted and controlled.
(3) The locations of any attenuation monitoring points and points of exposure in relation to the FOA
boundary. There are no required. points of exposure for groundwater ingestion within the FOA
boundary unless water wells with potential for use are located within the FOA.
(4) A description of all action levels developed for the worker health and safety program such that
personal protection equipment (e.g., gloves, respirators, impervious clothing, etc.) will not be necessary
to prevent contact with COCs in environmental media during performance of normal job duties, and all
facility access restrictions to control exposure to environmental media containing COCs in excess of
protective levels.
(5) Procedures that shall be used for performing response actions for soil that will achieve protection
of human health when COCs in excess of levels acceptable under the worker health and safety program
are encountered in response to construction activity, excavation, etc.
(6) An identification of areas of ecological impact identified within the proposed FOA and procedures
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for responding to these identified ecologically impacted areas which are in accordance with §350.77 of
this title (relating to Ecological Risk Assessment and Development of Ecological Protective
Concentration Levels).
(7) Procedures for tracking and responding to releases which occur within the FOA after the effective
date of the FOA in a manner that will identify and abate the source of the release, (e.g., leaking tank or
piping), and restore the impacted environmental media to pre - release conditions.
(8) Procedures, contingency plans, and prioritization plan with time frames for phased corrective
action that shall be used for addressing COCs in groundwater and monitoring hydrogeologic
conditions, to include a monitoring program at the FOA boundary and intermediate points within or
beyond the FOA as necessary (e.g., attenuation monitoring points), as well as to comply with
monitoring programs in response to permit provisions or hazardous waste regulations and to evaluate
changes in hydrogeologic conditions and COC migration over time.
(9) Procedures to reduce known NAPLs and NAPLs identified during the operational life of the FOA
that:
(A) are generally mobile or readily recoverable; and/or
(B) would present a significant risk to human health and the environment should exposure occur at
the applicable POE.
(10) A cost estimate in current dollars supported with detailed calculations for hiring a third party to
perform the actions specified in subparagraphs (A) and (B) of this paragraph. A third party is a party
who is neither a parent nor a subsidiary of the person. The cost estimate may not incorporate any
salvage value that may be realized with the sale of hazardous wastes, or non - hazardous wastes, facility
structures or equipment, land, or other assets associated with the facility at the time the FOA is
authorized.
(A) Construct physical controls, operate and monitor the response action at the FOA in accordance
with this subchapter for a 30 year time period, and
(B) Carry out the final response action that will achieve compliance with this chapter upon
termination of the FOA. Until the person receives approval of the detailed final response action plan,
the person shall sum the cost estimates to attain Remedy Standard A or B at individual SV;Ws
identified in the permit or corrective action order for purposes of estimating this financial assurance
amount.
(11) A draft document that the person proposes to use to inform others of the deferred or on -going
response actions and institutional controls within the FOA. The document shall comply with the
requirements of §350.111 of this title (relating to Use of Institutional Controls). The boundaries of the
FOA shall be considered the affected property for purposes of complying with §350.111 of this title.
The person shall provide proof of compliance with §350.111 of this title to the executive director
within 90 days of authorization of the FOA.
(12) A schedule of implementation for items not completed at the time of FOA authorization by
hazardous waste permit modification or commission corrective action order.
(13) Sufficient evidence to show compliance with the qualifying criteria identified in this subchapter.
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(b) The facility must obtain final authorization for the FOA as part of a hazardous waste permit
modification or commission corrective action order. Revisions to existing hazardous waste permits
shall be processed as class 3 modifications. As part of the final authorization process, the person shall
provide notice to the public under Chapter 39 of this title (relating to Public Notice), as amended, and
Chapter 305 of this title (relating; to Consolidated Permits), as amended, for permitted facilities. In the
case of a facility obtaining a commission corrective action order, the person shall perform public notice
in the same manner as for a permitted facility.
(c) Within 60 days after the effective date of the hazardous waste permit or commission corrective
action order authorizing the FOA, the person shall provide proof of financial assurance to the executive
director in accordance with Chapter 37 of this title (relating to Financial Assurance) for the amount
required by the hazardous waste permit or commission corrective action order authorizing the FOA,
except that a pay -in trust is not an eligible financial assurance mechanism. The amount of financial
assurance shall be recalculated annually to account for inflation. The amount is also subject to review at
time of hazardous waste permit or commission corrective action order renewal. The financial assurance
amount may be revised by means of hazardous waste permit modification or commission corrective
action order amendment, upon a. showing by the person of changed conditions at the FOA that either
increase or decrease the amount.
Source Note: The provisions of this §350.135 adopted to be effective September 23, 1999, 24 TexReg
7436
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