any
person who is not under an enforcement order
by any state or federal agency and has right, title, or legal share of the
affected property. Accordingly, the rules do not allow persons who caused
or contributed to the contamination to participate in the VCP.
DBSA recommended that the rules include a Conditional Certification of
Completion to create a cooperative atmosphere between the Commission and the
regulated community.
The Commission agreed and as proposed, new §4.440(c) included provisions
for a Conditional Certificate of Completion.
In addition to the VCP, DBSA recommended that the Commission consider creating
an Innocent Owner Program (IOP) at a future date. An IOP would provide liability
protection for persons who did not have prior knowledge of negative environmental
conditions and did not cause or contribute to contamination on their property.
Properties that contain environmental source areas would not be eligible for
the IOP.
The Commission determined that issues concerning any IOP program are beyond
the scope of its statutory authority and thus should be addressed by the legislature.
DBSA agreed that the VCP agreement should refer to the appropriate statues,
rules, and standards necessary for completion of voluntary cleanup. Regarding
listed cleanup standards, all agreements should be virtually identical. Alternate
cleanup standards should be justified using site- specific information and
a full evaluation of human and ecological risk, both on- and off-site. DBSA
stated that it may be simpler to include all default cleanup values in the
appropriate statues, rules, and standards with equations and models available
to calculate site-specific values, instead of detailing cleanup values in
the agreement. It also may be problematic to include appropriate cleanup standards
exclusively in the agreement. Including cleanup standards in the agreement
requires properties to be fully investigated and completely delineated prior
to acceptance into the VCP in order to guarantee that the appropriate values
are listed. If additional constituents not identified in the agreement are
identified during the course of the investigation, the absence of listed cleanup
values may potentially cause inadequate investigation and cleanup.
The Commission anticipates operating the program with sufficient flexibility
to address the contingencies pointed out in this comment. For example, a VCP
agreement may state that the site will be remediated according to a specific
state standards protocol, thereby incorporating into the agreement all of
the options available under such protocol.
DBSA suggested some additional definitions for clarity. DBSA suggested
that defining "completion" as "the point at which no additional response actions
are necessary and all appropriate cleanup standards have been met." DBSA recommended
that "conditional completion" be defined as "the point at which the applicant
is satisfactorily maintaining remediation systems, engineering controls, post-closure
monitoring programs, or institutional controls with the eventual goal of obtaining
completion." DBSA proposed to define "Conditional Certificate of Completion"
as "an interim certificate that would be followed by a final Certificate of
Completion after all cleanup goals stated in the agreement have been met."
DBSA suggested that "ineligible applicant" be defined as "an applicant who
did cause or contribute to the contaminants on the site subject of the voluntary
cleanup agreement and whose application the Site Remediation Section has accepted."
DBSA suggested an ineligible applicant is not eligible to receive the liability
release in the final certificate, but may obtain the certificate to ensure
that future owners and operators are released of liability. DBSA went on to
state that in certificates obtained by ineligible applicants, the responsible
party must be listed along with the site's surface and mineral owners and
mineral operators on the certificate.
The Commission declined to incorporate the suggested definitions into the
rule because the provisions in proposed new §4.440 relating to Certificate
of Completion and Conditional Certificate of Completion sufficiently addressed
the issues raised in the comment. The Commission declined to define the term
"ineligible applicant" because persons who caused or contributed to the contamination
that is the subject of the VCP agreement may not participate in the program.
DBSA suggested that a conditional certificate of completion would be extremely
beneficial for the success of the VCP. Section 4.401 states that the goal
of the VCP is to provide an incentive to clean up property by removing the
liability to the state of lenders, developers, owners, and operators who did
not cause or contribute to contamination released at the site. Issuance of
conditional certificates of completion would stimulate property transactions
encouraged by the liability release, while at the same time would require
the applicant to continue tasks required to obtain a final certificate of
completion. Issuance of such a certificate would be appropriate if (1) no
receptors are immediately threatened by contamination originating from the
VCP site and; (2) any of the following are used to mitigate exposure of contamination
originating from the VCP site to potential receptors including but not limited
to remediation systems, engineering controls, post-closure monitoring programs,
and/or institutional controls; and (3) a notarized affidavit signed by the
applicant or representative of the applicant that details a schedule of post
closure monitoring activities and reporting to the Railroad Commission of
Texas with an estimated date of completion. The estimated date of completion
should not exceed 15 years from the date of the affidavit. If post-closure
monitoring is expected to exceed 15 years, then a more active method of contaminant
mitigation may be necessary. Once no additional response actions are necessary
and all cleanup standards have been met, then a Final Certificate of Completion
may be issued.
The Commission agreed that conditional certificates of completion may be
appropriate in certain circumstances, and one of the purposes of the VCP is
to encourage property transactions; however, the Commission declined to incorporate
the specific suggested language concerning conditional certificates of completion
into the proposed rule. The provisions in proposed new §4.440, relating
to Certificate of Completion and Conditional Certificate of Completion, sufficiently
address the issues raised in the comment. The Commission incorporated into
proposed new §4.440(c)(7) the suggestion concerning a notarized affidavit
signed by the applicant that details a schedule of post closure monitoring
activities and reporting to the Railroad Commission of Texas with an estimated
date of completion.
DBSA disagreed with the exclusion of responsible persons from participation
in the VCP. Section 4.401 states that the purpose of the VCP is to provide
an incentive to clean up property by removing the liability to the state of
lenders, developers, owners, and operators who did not cause or contribute
to the contamination released at the site. While responsible persons should
not be granted a release from liability, including responsible persons as
participants would provide an incentive to clean up contaminated properties
still under the financial obligation of responsible persons. Subsequent property
owners or operators would benefit from the liability release certificate.
Regarding proposed new §4.440(c)(3), DBSA commented that if the responsible
party is known, then this party should be listed on the final certificate
of completion along with the site's current surface and mineral owners and
mineral operators.
The Commission noted that it currently uses an Operator Cleanup Program
where persons who caused or contributed to contamination are subject to enforcement
and may work with the Commission to achieve remediation. Further, the Legislature
established the VCP based on a projection of 12 to 20 sites per year, so the
Commission may not have the personnel or resources to accommodate a large
influx of sites that could occur if the program were opened up to responsible
persons not under an enforcement order by any state or federal agency. Accordingly,
the rules do not allow persons who caused or contributed to the contamination
to participate in the VCP.
DBSA asked for further explanation as to why the proposed rules do not
meet the requirements of Texas Government Code, §2001.0225, or the definition
of Texas Government Code, §2001.0225(g)(3).
The Commission determined the rules were not "major environmental rules"
as defined by Texas Government Code, §2001.0225(g)(3), because they do
not adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state, which is an essential element
in the definition of a major environmental rule. Even if this rulemaking were
a "major environmental rule," it does not exceed any state or federal standards
and would not be adopted under the agency's general rulemaking authority.
Accordingly, this rulemaking does not meet the criteria of Texas Government
Code, §2001.0225(a).
With respect to proposed new §4.401, DBSA requested clarification
to insure that the applicant understands that third-party liability is not
removed by earning a VCP Certificate of Completion. An example of a third
party could be the Environmental Protection Agency (EPA), unless the Commission
has a memorandum of agreement indicating the EPA will honor the liability
release granted in Commission VCP certificates.
The Commission stated it would consider this informal comment during the
formal comment period. Therefore, the Commission notes that the statute authorizing
the VCP, as well as the rule, clearly provide that, upon fulfillment of all
the obligations in the VCP agreement, a qualified participate is released
from liability to the state. The Commission does not have a memorandum of
agreement indicating that the EPA will honor the liability release granted
in Commission VCP certificates, but believes such an understanding would be
appropriate for those sites, if any, where EPA has jurisdiction under federal
law, and the Commission anticipates that as its VCP matures, other agencies
will be more willing to acknowledge participants' cleanup efforts. The Commission
has made no change to this adopted rule language at this time.
Regarding new §4.410, DBSA questioned subsection (b)(2)(A)(i) which
states that the applicant must provide general information concerning the
applicant's financial ability to perform the voluntary cleanup. DBSA asked
whether, since responsible persons cannot be included as applicants, an eligible
applicant may include responsible persons as the entity financially responsible
for cleanup activities on the property.
This comment raised the following question: Would the Commission disqualify
an applicant whose application indicates that a responsible person is one
of the applicant's sources of financial capability to perform the remediation?
The answer to this question is no. The Commission will assure that the applicant
has the financial ability to carry out the entire voluntary cleanup, and is
not concerned about the source of the applicant's funding. Note, however,
that the focus is on the applicant. The applicant is required to have the
funding as a qualification for approval to participate. The Commission will
not approve an application unless the applicant has sufficient financial resources
to carry out the project that is subject of the application. Further note
that a responsible person who funds an applicant's voluntary cleanup will
not immunize itself from obligations imposed on "responsible persons."
DBSA recommended that §4.415(c)(3)(C) include the wording "relevant
information concerning the potential for human and ecological exposure to
contamination at the site."
The Commission agreed that a wording change was needed for clarity, but
did not use DBSA's suggested language. The Commission's proposed §4.415(c)(3)(C)
read, "relevant information concerning exposure to contamination at the site
by all potential receptors as indicated by site specific considerations."
DBSA stated that in §4.420, the section should include wording that
indicates that the identified contaminating activity or environmental contamination
must be one that is regulated under the jurisdiction of the Texas Railroad
Commission and not other state or federal programs.
The Commission addressed this concern in new §4.401, which states,
"The purpose of the voluntary cleanup program is to provide an incentive to
clean up property contaminated by activities under Railroad Commission jurisdiction
by removing the liability . . ."
DBSA recommended that §4.420(a)(6) be reworded to state "provided
information does not indicate that the person or the site is ineligible."
The Commission agreed with this comment and the proposed rule reflected
the change by adding the suggested phrase to §4.420(a)(3), moving what
was (a)(7) to (a)(6), and deleting (a)(7) as these paragraphs were written
in the draft rules considered in the informal comment period. DBSA observed
that some verbiage in proposed new §4.425 conflicts with the information
conveyed in the preamble. DBSA recommended that §4.425(a) should include
the wording, "Before the Site Remediation Section evaluates any plan or report
detailing cleanup goals and proposed response action methods, the applicant
shall enter into a voluntary cleanup agreement with the Commission that sets
forth the
default cleanup values
terms and
conditions of the evaluation of the reports,
including
proposed alternative cleanup values
, and the implementation of work
plans."
The Commission pointed out that the concerns raised in this comment were
addressed in §4.425(b)(7), regarding technical standards.
DBSA requested that proposed new §4.425(c)(2) include negotiation
time limits.
The Commission expected the parties to establish negotiation time frames
in the VCP agreements, so that a failure to meet schedules will subject participants
to the same consequences as failure to abide by the terms of the agreement.
DBSA suggested that new §4.440 include additional text that defines
which entity determines when response actions are no longer necessary and
specifies that final certificates will be issued only upon attainment of appropriate
cleanup standards.
The Commission agreed that the rule should clearly state that the Commission
will determine when response actions are no longer necessary; however the
Commission contemplated the possibility that a final certificate, with reopeners,
could be issued before attainment of appropriate cleanup standards when the
participant employs certain engineering or institutional controls.
Regarding §4.440(c)(3), DBSA commented that if the responsible person
is known, then this person should be listed on the final certificate of completion
along with the site's current surface and mineral owners and mineral operators.
The Commission's primary purpose in creating the VCP was to facilitate
site remediation. The phrase "if the responsible party is known" involves
legal issues beyond the intended purpose of the program. The Commission therefore
declined to incorporate this suggestion into the proposed rule.
The Environmental Protection Agency (EPA) commented that the cleanup selected
for some VCP sites may result in controls (
e.g.
,
caps) to assure protectiveness. Conditional certificates or use of reopeners
would be appropriate in these situations.
The Commission agreed that reopeners are appropriate for all remediations
that include use of post-closure care, engineering, and institutional controls.
The rules included a definition of and provisions for conditional certificates
of completion, which the Commission anticipated would be appropriate for long-term
remediations that involve more active care and reporting, such as pump-and-treat
groundwater cleanups. Sites at which passive engineering controls or land
use restrictions are used may be eligible for a final certificate with reopener
to cover contingencies such as control failure or a change in land use.
In general, the Commission contemplated three types of closures: (1) the
remediation work is complete, the site is closed to protective levels for
all constituents in all pathways for all property uses, all requirements of
the VCP agreement have been met, and the final certificate of completion is
issued with standard health and safety reopeners; (2) the remediation work
is complete, but control maintenance is required so that receptors are and
will remain protected, and a certificate is issued with more site-specific
reopeners; and (3) a reliable long-term remediation system is in place for
which a conditional certificate, requiring continued maintenance and success
of the long-term system, would be issued, so that receptors are and will remain
protected. The Commission contemplated that there would be cases where certificates
described in scenarios (2) and (3) may, over time, be replaced by the type
of certificate described in scenario (1) once a site meets the standards for
which the Commission issues a type (1) certificate. There also may be times
when conditions made part of certificates described in scenarios (2) and (3)
may fail, triggering a requirement that the participant revisit relevant remediation
issues at the site.
The EPA commended the Commission for requiring that certificates include
the proposed future land use as in §4.440(c)(2). EPA suggested also that
reopeners could be included in certificates issued for site cleanups to non-residential
standards.
The Commission intended that certificates issued for site cleanups to non-residential
standards shall be conditioned on maintaining the land use for which the certificate
was issued. Certificates of completion for such sites will include reopeners
or conditions requiring the land use to be maintained.
The EPA suggested that the recordation of certificates in public records
would inform future land owners and the community of the VCP cleanup and ensure
the integrity of the institutional controls.
The Commission stated that a primary purpose of the VCP is to return unmarketable
land to productive use. Where institutional controls are used to ensure protectiveness,
the voluntary cleanup agreement shall provide for the use of such controls,
which may include recordation of the certificate of completion, deed restrictions,
or reliance on city ordinances or other laws relating to restrictions in property
use.
The EPA commented that the meaning of the term "completion" in §4.440(a)
of the draft considered during the informal comment period is an important
VCP definition and suggested that the description be included in §4.405
as a definition.
The Commission agreed with this comment and proposed new §4.405 included
the definition of "completion."
The EPA also suggested that the definition of "completion" ("that no more
response actions are necessary") should indicate that closure is contingent
on maintenance of planned land use and any other post-certificate controls
required for the selected cleanup.
As proposed, the Commission's new rules included a definition of and provisions
for conditional certificates of completion, which the Commission anticipated
would be appropriate for long-term remediations that involve more active care
and reporting, such as pump-and-treat groundwater cleanups. Sites at which
passive engineering controls or land use restrictions are used may be eligible
for a final certificate with reopener to cover contingencies such as control
failure or a change in land use. The definition of "completion" in proposed
new §4.405 indicated that closure is contingent on maintenance of planned
land use and any other post-certificate controls required for the selected
cleanup.
The EPA observed that prospective participants might benefit from a preamble
discussion of any interaction, division of responsibilities, and relationship
of the Railroad Commission VCP and the Texas Natural Resources Conservation
Commission (TNRCC) VCP.
The Commission's VCP may include only sites contaminated by activities
over which the Commission exercises jurisdiction, as outlined in Texas Natural
Resources Code, §91.101. For sites contaminated by activities over which
both the Commission and the TNRCC have jurisdiction, the Commission will operate
consistent with the principles stated in its Memorandum of Understanding with
TNRCC, found in 16 Texas Administrative Code, §3.30, relating to Memorandum
of Understanding between the Railroad Commission of Texas (RRC) and the Texas
Natural Resources Conservation Commission (TNRCC).
The EPA commented that the draft rules were not clear as to whether the
VCP will provide an opportunity for community involvement.
As proposed, new §4.450(b)(2)(D) stated that if the applicant is not
the surface owner of the site, the applicant must provide written authorization
from all surface owners of the site agreeing to the applicant's participation
in the program. The Commission noted that involvement of parties such as surface
owners and adjoining landowners will be a necessary component of delineation
of the full nature and extent of contamination subject of the voluntary cleanup.
Participants in the program will need permission for access to properties
included in the delineation and will need to involve surface owners with any
land use restrictions that may be part of remediations.
The EPA suggested that a description of the Commission's oversight role
(both during cleanup and post-certificate) would help to support and encourage
the VCP. The information would reduce potential customers' anxiety and increase
citizens' confidence.
The Commission found from a review of the proposed new rules that the Commission's
oversight role was clearly described.
In reference to the new provision stating that the Commission will process
applications in the order in which they are received, the EPA pointed out
that some of the VCP sites may be related to development projects and, given
the time pressures normally associated with development projects and the desire
to encourage the cleanup and revitalization of these contaminated sites, the
Commission might consider including a provision allowing sites involved in
development projects to be prioritized or perhaps put on an expedited the
Commission review schedule.
The Commission found that new §4.420 clearly gives the Commission
45 days to reject an application, which means all applications should be processed
within 45 days. The Commission was not inclined to change either this provision
or the provision that applications will be processed in the order received
because these provisions provide sufficient certainty to applicants and maintain
order and efficiency for Commission staff. The Commission noted that the Voluntary
Cleanup Agreement may include deadlines that further the goals of developments
under a time crunch. The Commission also noted that it has discretion as to
the enforcement of its rules which allow staff to accommodate the rare true
emergency, such as the discovery of previously unknown contamination during
the course of a project.
EPA observed that the preamble to the draft rules stated that the rules
do not establish technical cleanup standards; rather, the voluntary cleanup
agreement between the Commission and the participant will include site-specific
cleanup standards. Including general guidance or rules about VCP cleanup standards
and remediation planning strategies would support and encourage the program
by providing potential customers valuable information and would increase citizens
confidence in the VCP. Guidance on Commission expectation for assessments,
work plans, and reports would be useful.
The Commission intends to evaluate developing such guidance based on experience
as its VCP program matures, and will include some of these issues in future
rulemakings.
The EPA sought clarity whether the release provided by the certificate
applies to future owners not listed on the certificate as participants and
whether the certificate is transferable.
The Commission intends for the release provided by the certificate to apply
to future owners not listed on the certificate as participants and to be transferable
in order to facilitate property transactions and redevelopment.
The EPA recommended that one of the final report requirements should be
confirmatory analytical sample results, when appropriate.
The Commission agreed with this comment, anticipating that its VCP agreements
would include a requirement for final confirmatory analytical sample results,
when appropriate.
The EPA commended the Commission for not limiting VCP participation to
prospective purchasers.
The Commission did not and does not intend to limit VCP participation to
prospective purchasers, but reminded the reader that the proposed new rules
would not allow persons who caused or contributed to the contamination to
participate in the VCP.
Formal Comments and Commission Responses.
After the proposed rules were published in the March 8, 2002, issue of
the
Texas Register
(27 TexReg 1616), the Commission
received one late-filed comment, which was from TXOGA.
TXOGA reiterated its comment from the informal comment period regarding
the wording in Texas Natural Resources Code, §91.653(a), and the Commission's
proposed wording for §4.110(a). The Commission had already addressed
this issue in the discussion of the informal comments in the proposal preamble,
and specifically requested comments with regard to circumstances where allowing
a third party to participate in the program would benefit the state, even
though the Commission did not believe §91.653(a) authorized the Commission
to allow such sites into the program.
Because of TXOGA's comment, the Commission has reconsidered this issue,
and has come to the conclusion that the statute does not exclude sites from
eligibility for voluntary clean up simply because there is the possibility
the site could become subject to an order. Such an interpretation
prevents
virtually every site from being eligible for the program,
thus rendering meaningless the stated purpose of the program. The Commission
therefore concludes that the statute is intended to exclude sites which at
the time of the application are subject of an actual Commission pollution
cleanup order, the execution of which accomplishes the same result as the
voluntary cleanup. The Commission therefore adopts clarifying changes to §4.410(a)
to make it clear that sites are excluded only if they are subject of a Commission
order to control or clean up pollution at the time of the application, and
providing that the site could come into the program if the order were dismissed.
These provisions assure that sites which would benefit from being in the program
are not left behind.
In addition, former operators of a facility may have difficulty qualifying
for the program because of a potential nexus between their activity and the
contamination, and the presence of contamination from unknown sources may
cause such operators or others associated with oil field activity on the site
to be disqualified as well. The Commission anticipates that, as it develops
a history with the program, it will evaluate the efficacy of this paradigm
and adjust, if necessary, to maximize clean-ups in the program.
TXOGA also commented on proposed §4.440(c) and stated that the issuance
of a Conditional Certificate of Completion "while not a specific requirement
of §91.656 of the Texas Natural Resources Code - is certainly within
the Commission's discretion and provides a means of designating a significant
milestone in a cleanup effort." TXOGA supported adoption of this provision.
In addition to its earlier findings, the Commission finds that the public
benefits resulting from the new rules include reduction of the number of sites
to be remediated with money from the Oil Field Cleanup Fund; additional protection
of human health and the environment; faster cleanup of sites; productive use
of formerly contaminated properties; and possible restoration of property
values that may have been depressed due to environmental damage.
The Commission also finds that small businesses, micro-businesses, or individuals
who are members of the regulated community will not see any mandatory increased
costs because the program established under the new rules is voluntary. The
rules are consistent with the Commission's response to spills and releases,
and create only an additional incentive to encourage cleanup.
The Commission adopts the new rules under the provisions of Section
34, Senate Bill 310, 77th Legislature (2001), which enacts new Texas Natural
Resources Code, §§91.651-91.661, authorizing the Commission to establish
a voluntary cleanup program according to the standards set forth in those
new sections; Texas Natural Resources Code, §91.113, which governs the
investigation, assessment, or cleanup by Commission of oil and gas wastes
or other substances or materials regulated by the Commission under Texas Natural
Resources Code, §91.101; and Texas Water Code, §26.131, which makes
the Commission solely responsible for the control and disposition of waste
and the abatement and prevention of pollution of surface and subsurface water
resulting from activities associated with the exploration, development, and
production of oil or gas or geothermal resources and any other activities
regulated by the Commission pursuant to Texas Natural Resources Code, §91.101.
Texas Natural Resources Code, §91.113, and §§91.651- 91.661,
as enacted by Senate Bill 310, 77th Legislature (2001), and Texas Water Code, §26.131,
are affected by the adopted new rules.
Issued in Austin, Texas, on May 21, 2002.
§4.401.Purpose.
The purpose of the voluntary cleanup program is to provide an incentive
to clean up property contaminated by activities under Railroad Commission
jurisdiction by removing the liability to the state of lenders, developers,
owners, and operators who did not cause or contribute to contamination released
at the site. The program is restricted to voluntary actions but does not replace
other voluntary actions.
§4.405.Definitions.
The following words and terms when used in this subchapter shall have
the following meanings unless the context clearly indicates otherwise.
(1)
Applicant--A person who is eligible to participate in the
voluntary cleanup program and who submits the required forms, information,
and fee for doing so.
(2)
Assistant director--The administrative head of the Site
Remediation Section.
(3)
Certificate of completion--The document executed by the
Commission upon satisfactory completion of obligations under a Voluntary Cleanup
Agreement.
(4)
Completion--The cleanup of a site to the point that no
more response actions are necessary.
(5)
Commission--The Railroad Commission of Texas, the director
of the Oil and Gas Division, or a staff delegate of the division director.
(6)
Conditional certificate of completion--The document executed
by the Commission upon a participant's satisfactory conditional completion
of obligations under a Voluntary Cleanup Agreement.
(7)
Conditional completion--The cleanup of a site to the point
that further response actions are limited to maintenance of engineering or
institutional controls and/or the continued successful operation of long-term
remediation systems.
(8)
Contaminant--A waste, pollutant, or other substance or
material regulated by or that results from an activity under the jurisdiction
of the Commission under Texas Natural Resources Code, Chapters 91 or 141,
or the Texas Water Code.
(9)
Division--The Oil and Gas Division of the Commission.
(10)
Eligible applicant--An applicant who did not cause or
contribute to the contaminants on the site that is the subject of the voluntary
cleanup agreement and whose application the Site Remediation Section has accepted.
(11)
Participant--An eligible applicant with whom the Commission
has entered into a voluntary cleanup agreement.
(12)
Response action--The control, cleanup, or removal of a
contaminant from the environment.
(13)
Responsible person--Any operator or other person required
by law, rules of the Commission, or a valid order of the Commission to control
or clean up the oil and gas wastes or other substances or materials.
(14)
Site Remediation Section--Those Commission staff, individually
or collectively, who are employed in the Site Remediation Section, or its
successor, of the Oil and Gas Division.
(15)
Voluntary cleanup--A response action taken under and in
compliance with this subchapter.
§4.410.Eligibility for the Voluntary Cleanup Program.
(a)
Any site that is contaminated with a contaminant is eligible
for participation in the voluntary cleanup program except the portion of a
site that is the subject of a Commission order to control or clean up the
contaminants. On application from an eligible applicant, the Commission may
dismiss an order that would otherwise render a site or portion of a site ineligible
for the program.
(b)
Any person who is not a responsible person as that term
is defined in §4.405(13) of this title (relating to Definitions) is eligible
to participate in the voluntary cleanup program.
§4.415.Application to Participate in the Voluntary Cleanup Program.
(a)
A person applying to participate in the voluntary cleanup
program shall submit to the Site Remediation Section an application to participate
in the voluntary cleanup program and an application fee as required by subsection
(b) of this section.
(b)
A person submitting an application to participate in the
voluntary cleanup program shall:
(1)
use the application form provided by the Commission;
(2)
provide the following information:
(A)
general information concerning:
(i)
the applicant and the applicant's capability, including
the applicant's financial capability, to perform the voluntary cleanup;
(ii)
the site; and
(iii)
the names, addresses, and telephone numbers of all surface
and mineral owners and mineral operators of property where the contamination
came to be located;
(B)
other background information requested by the Site Remediation
Section based on the particular circumstances of the site in question;
(C)
an environmental assessment of the actual or threatened
release of the contaminant or contaminants at the site that includes, at a
minimum, the information set forth in subsection (c) of this section; and
(D)
if the applicant is not the surface owner of the site,
written authorization from all surface owners of the site agreeing to the
applicant's participation in the program;
(3)
submit the application fee of $1,000; and
(4)
follow any schedule set by the Site Remediation Section.
(c)
The environmental assessment required by subsection (b)(2)(C)
of this section shall include, at a minimum:
(1)
a legal description of the site;
(2)
a description of the physical characteristics of the site;
and
(3)
to the extent known by the applicant:
(A)
the operational history of the site;
(B)
information concerning the nature and extent of any relevant
contamination or release at the site and immediately contiguous to the site,
and wherever the contamination came to be located; and
(C)
relevant information concerning the potential for human
exposure to contamination at the site.
§4.420.Acceptance or Rejection of an Application.
(a)
The Site Remediation Section shall process applications
in the order in which they are received.
(b)
The Commission may accept an application if it:
(1)
is submitted by a person eligible to participate in the
program, pursuant to §4.410(b) of this title (relating to Eligibility
for the Voluntary Cleanup Program);
(2)
pertains to an eligible site, pursuant to §4.410(a)
of this title (relating to Eligibility for the Voluntary Cleanup Program);
(3)
includes all of the information required by §4.415
of this title (relating to Application to Participate in the Voluntary Cleanup
Program), provided the information does not indicate that either the person
or the site is ineligible;
(4)
demonstrates that the applicant has the financial capability
to pay for all costs of the response action, including but not limited to
the direct costs of the response action and the reasonable costs attributable
to the oversight of the response action likely to be incurred by the Commission;
(5)
includes written authorization from all surface owners
of the site agreeing to the applicant's participation in the program, or proof
that the applicant is the surface owner of the site; and
(6)
includes the application fee.
(c)
The Commission may reject an application to participate
in the voluntary cleanup program if:
(1)
a state or federal enforcement action is pending that concerns
the remediation of the contaminant or contaminants described in the application;
(2)
a federal grant requires an enforcement action at the site;
(3)
the application is incomplete or inaccurate; or
(4)
the application fails to meet the requirements of subsection
(b) of this section.
(d)
If the Commission rejects the application, the Commission
shall:
(1)
not later than the 45th day after the Site Remediation
Section receives the application, notify the applicant in writing that the
application has been rejected;
(2)
explain the reasons for rejection of the application; and
(3)
inform the applicant that the Commission will refund half
the application fee unless the applicant indicates a desire to resubmit the
application.
(e)
If the Commission rejects an application because it is
incomplete or inaccurate, then not later than the 45th day after the Site
Remediation Section receives the application, the Assistant Director shall
notify the applicant in writing of all information needed to make the application
complete or accurate. If the applicant resubmits the application not later
than the 45th day after the Assistant Director issues notice that the application
has been rejected, the applicant shall not submit an additional application
fee. This waiver of the application fee applies only to the first re-submission
within 45 days of notice of an incomplete application. An applicant who re-submits
an application after the 45th day shall submit the application fee required
by §4.415(b)(3) of this title, relating to Application to Participate
in the Voluntary Cleanup Program.
§4.425.Voluntary Cleanup Agreement.
(a)
Before the Site Remediation Section evaluates any plan
or report detailing the cleanup goals and proposed response action methods,
the eligible applicant shall enter into a voluntary cleanup agreement with
the Commission that sets forth the terms and conditions of the evaluation
of the reports and the implementation of work plans.
(b)
A voluntary cleanup agreement shall:
(1)
include provisions by which the participant commits to
pay the Commission all reasonable costs:
(A)
incurred by the Commission for review and oversight of
the participant's work plan and reports and for the Commission's field activities;
(B)
attributable to the voluntary cleanup agreement including
direct and indirect costs of overhead, salaries, equipment, utilities, and
legal, management, and support costs; and
(C)
that exceed the amount of the application fee submitted
to the Commission by the applicant as required by §4.415 of this title
(relating to Application to Participate in the Voluntary Cleanup Program);
(2)
identify all statutes and rules with which the participant
shall comply;
(3)
identify all state and federal standards, requirements,
criteria, or limitations to which the response action would otherwise be subject
if a state or federal permit were required;
(4)
describe any work plan or report that the participant is
required to submit for review by the Commission, including a final report
that provides all information necessary to verify that all work contemplated
by the voluntary cleanup agreement has been completed;
(5)
include a schedule for the participant to submit and for
the Site Remediation Section to review the information required by paragraph
(4) of this subsection;
(6)
identify specific tasks, deliverables, and schedules for
conducting and completing the response action, including terms specifying
negotiating periods between reports and consequences for failure to meet deadlines
in the agreement;
(7)
state the technical standards to be applied by the Site
Remediation Section in evaluating the work plans and reports with reference
to the proposed future land use to be achieved; and
(8)
be signed by both the participant or the participant's
authorized representative and the Assistant Director.
(c)
If the eligible applicant and the Commission do not reach
an agreement on or before the 30th day after good faith negotiations have
begun:
(1)
either the eligible applicant or the Commission may withdraw
from the negotiations, in which event the Commission shall retain the application
fee; or
(2)
the eligible applicant and the Commission may continue
negotiating.
(d)
The Commission shall not initiate an enforcement action
against a participant who is in compliance with this section for the contamination
or release that is the subject of the voluntary cleanup agreement or for activity
that resulted in the contamination or release that is the subject of a voluntary
cleanup agreement.
§4.430.Termination of Agreement and Cost Recovery.
(a)
At any time and for any reason, either the Commission or
the participant may terminate a voluntary cleanup agreement by giving to the
other written notice 15 days prior to the stated termination date. The participant
shall pay and the Commission shall recover only those costs incurred or obligated
by the Commission before notice of termination of becomes effective. The Commission
shall retain the application fee.
(b)
Termination of the agreement does not affect any right
the Commission has under other law to recover its costs. The Commission shall
not issue a certificate of completion to a participant in a voluntary cleanup
agreement that is terminated.
(c)
If the participant does not pay to the Commission the Commission's
costs under a voluntary cleanup agreement before the 31st day after the date
the person receives notice that the costs are due and owing, the Commission
may request that the attorney general bring an action in the name of the state
in Travis County to recover the amount owed plus reasonable legal expenses,
including attorneys' fees, witness costs, court costs, and deposition costs,
pursuant to Texas Natural Resources Code, §91.657(c).
§4.435.Voluntary Cleanup Work Plans and Reports.
(a)
After signing a voluntary cleanup agreement, the participant
shall prepare and submit to the Site Remediation Section the work plans and
reports required by the agreement.
(b)
The Site Remediation Section shall review and evaluate
the work plans and reports for accuracy, quality, and completeness. The Site
Remediation Section may approve or not approve a voluntary cleanup work plan
or report. If the Site Remediation Section does not approve a work plan or
report, the Site Remediation Section shall, within the deadline established
by the Voluntary Cleanup Agreement, notify the participant of the specific
additional information or commitments needed to obtain approval.
(c)
At any time during the evaluation of a work plan or report,
the Site Remediation Section may request additional or corrected information.
(d)
After considering future land use, the Site Remediation
Section may approve work plans and reports submitted under this section that
do not require cleanup or removal of all contaminants at a site if the partial
response actions for the property:
(1)
will be completed in a manner that protects human health
and the environment;
(2)
will not cause, contribute, or exacerbate discharges, releases,
or threatened releases that are not required to be cleaned up or removed under
the work plan; and
(3)
will not interfere with or substantially increase the cost
of response actions to address any remaining contaminants.
§4.440.Certificate of Completion and Conditional Certificate of Completion.
(a)
If the Site Remediation Section determines that a participant
has completed a voluntary cleanup approved under this subchapter, the Commission
shall certify that the action has been completed by issuing the participant
a certificate of completion.
(b)
The certificate of completion shall:
(1)
acknowledge the protection from liability provided by §4.445
of this title (relating to Persons Released from Liability);
(2)
indicate the proposed future land use;
(3)
include a legal description of the site and the names of
the site's surface and mineral owners and mineral operators at the time the
application to participate in the voluntary cleanup program was filed; and
(4)
include an Affidavit of Completion on a form prescribed
by the Commission. The affidavit of completion is a sworn statement made by
the participant that is attached to and becomes part of the certificate of
completion issued by the Commission. The affidavit shall:
(A)
identify the site and its surface and mineral owners and
mineral operators;
(B)
identify the response actions performed including, if appropriate,
any reliance on engineering or institutional controls;
(C)
declare that the degree of inquiry used in determining
the appropriate response actions, the response actions, and reporting were
consistent with industry standards; and
(D)
state that the certificate of completion has not been acquired
by fraud, misrepresentation, or knowing failure to disclose material information.
(c)
If the Site Remediation Section determines that the participant
has substantially completed a voluntary cleanup approved under this subchapter,
and that oversight and maintenance of controls and remediation systems provide
a strong likelihood of success with minimal maintenance and reporting, the
Commission may issue a conditional certificate of completion. The conditional
certificate of completion shall:
(1)
acknowledge the protection from liability provided by §4.445
of this title (relating to Persons Released from Liability);
(2)
indicate the proposed future land use;
(3)
include a legal description of the site and the names of
the site's surface and mineral owners and mineral operators at the time the
application to participate in the voluntary cleanup program was filed;
(4)
identify the oversight and maintenance activities and results
the person must perform, reach, and maintain for the conditional certificate
to remain in force;
(5)
include a schedule of activities;
(6)
identify responses in case of remedy failure; and
(7)
include an Affidavit of Response Action Implementation.
The Affidavit of Response Action Implementation is a sworn statement made
by the participant and that is attached to and becomes part of the conditional
certificate of completion issued by the commission. In addition to all of
the elements identified in §4.40(b)(4), the Affidavit of Response Action
Implementation shall include a schedule the participant's post closure monitoring
activities and reporting to the Railroad Commission of Texas with an estimated
date of completion, and identify contingencies that the participant is obligated
to implement if any response action fails in whole or in part.
(d)
If the Site Remediation Section determines that the participant
has not completed a voluntary cleanup approved under this subchapter, the
Assistant Director shall so notify the participant, the current surface and
mineral owners and the mineral operators of the site that is the subject of
the cleanup.
§4.445.Persons Released from Liability.
(a)
A person who is not a responsible person, as that term
is defined in §4.405 of this title (relating to Definitions), at the
time the person applies to participate in a voluntary cleanup does not become
a responsible person solely because the person signs the application or the
voluntary cleanup agreement.
(b)
A participant who is not a responsible person at the time
the Commission issues a certificate of completion under §4.440 of this
title (relating to Certificate of Completion and Conditional Certificate of
Completion) is released, as of the date of the certificate, from all liability
to the state for cleanup of contaminants specified in the voluntary cleanup
agreement for areas of the site covered by the certificate, except for releases
and consequences that the participant causes.
(c)
The release from liability provided by this subchapter
does not apply to a person who:
(1)
caused or contributed to the contamination at the site
covered by the certificate;
(2)
acquires a certificate of completion by fraud, misrepresentation,
or knowing failure to disclose material information;
(3)
knows at the time the person acquires an interest in the
site for which the certificate of completion was issued that the certificate
was acquired by fraud, misrepresentation, or knowing failure to disclose material
information; or
(4)
changes the land use from the use specified in the certificate
of completion if the new use may result in increased risks to human health
or the environment.
§4.450.Federal, State, or Local Permits.
(a)
A state or local permit is not required for a voluntary
cleanup under this subchapter. A participant shall coordinate a voluntary
cleanup with ongoing federal and state waste programs.
(b)
Any participant conducting a voluntary cleanup shall comply
with any state or federal standard, requirement, criterion, or limitation
to which the response action would otherwise be subject if a state or federal
permit were required.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 21, 2002.
TRD-200203114
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: June 10, 2002
Proposal publication date: March 8, 2002
For further information, please call: (512) 475-1295