30 TAC §§335.341-335.351
The Texas Natural Resource Conservation Commission (commission)
proposes amendments to §§335.341-335.351 and the repeal of §335.352,
concerning the assessment and remediation of State Superfund sites that may
constitute an imminent and substantial endangerment to public health and safety
or the environment due to a release or threatened release of hazardous substances
into the environment.
EXPLANATION OF PROPOSED RULES
The rule changes to these sections are proposed to enhance the implementation
of certain provisions of House Bill (HB) 2776 passed by the 75th Texas Legislature,
to streamline current assessment and remediation procedures of State Superfund
sites, and to ensure consistency with the existing cleanup standards of the
Risk Reduction Rules in Chapter 335, Subchapter S. Later this year or early
next year, the commission intends to propose repealing the existing Risk Reduction
Rules and replacing them with a new set of risk-based corrective action standards
referred to as the Texas Risk Reduction Program (TRRP) rules. As the TRRP
rules are currently envisioned, the proposed changes to Chapter 335, Subchapter
K would be consistent with the new rules; however, a review of the amended
Subchapter K rules will be required after adoption of the TRRP rules to determine
if any further amendments to sections in Subchapter K are necessary.
Among the proposed changes today are the removal of the "Texas Water Commission"
and its acronym "TWC" wherever they appear in the existing Subchapter K sections.
Also, the commission is proposing to amend the rules to be consistent with
the terms and definitions of 30 TAC Chapter 3, which defines agency, commission,
and executive director. Where appropriate, the correct term is being proposed
to replace an incorrect term. As an example, in §335.344(b) the existing
rule states that the commission shall hold a public meeting. The proposed
change would replace "commission" with "executive director" since the executive
director's staff actually schedules and holds the meeting and the commission
does not formally act at the public meeting.
The commission proposes to amend §335.341 to recognize the commission's
Voluntary Cleanup Program (VCP) as a viable alternative to listing a site
on the State Superfund Registry. This change is a result of changes to the
Solid Waste Disposal Act, §361.183 and §361.189, in HB 2776. Proposed
changes to §335.343 and §335.344 are intended to be consistent with
the amendment to §335.341. Under §335.343, a delisted facility that
is no longer being adequately addressed in the VCP shall automatically revert
to its status prior to deletion from the State Registry. Under §335.344,
the executive director shall consider whether a site has been accepted into
the VCP when making a determination to delist a facility from the State Registry.
Section 335.342 sets forth the terms and associated definitions specific
to the State Superfund program. The commission is proposing to add, amend,
and delete a number of terms and definitions in Subchapter K. The following
new terms and definitions are proposed for addition to §335.342: "Feasibility
study," "Health and safety plan," "Implementation schedule," "Operation and
maintenance plan," "Presumptive remedy," "Quality assurance project plan,"
"Remedial Action," "Remedial action drawings and specifications," "Remedial
design," "Remedial investigation," "Responsible Party," "Sampling and analysis
plan," "Settlement offer," "Spill/release contingency plan," and "Unilateral
order." Amendment to the definitions for existing terms is being proposed
for "Divisible," "Facility," "Good faith offer," "Hazard ranking system,"
Hazardous waste disposal fee fund," "Oversight costs," "Potentially responsible
party (PRP)," and "Substantial Change in Use." The terms "Remedial Action
Plan," "Remedial investigation/feasibility study" and "State superfund hazard
ranking system" are proposed for deletion. Consistent with these changes,
other sections of Subchapter K reflect the use of the proposed new terms.
Section 335.343 establishes requirements for the ranking of facilities.
The commission proposes to clarify the agency's use of the same Hazardous
Ranking System (HRS) as the U.S. Environmental Protection Agency (EPA) for
scoring State Superfund sites. The proposed changes would give the agency
greater flexibility in establishing priorities for action at listed sites
by allowing the agency to prioritize sites based on reasons other than the
HRS such as community interests, simplicity, and costs. An updated state registry
identifying each facility and relative priority will be published annually.
The commission proposes to amend §335.344 relating to delisting and
modifications to delete the language that allowed "any interested person"
to request that a facility be delisted from the State Registry, modify the
facility's priority ranking, or modify any information regarding the facility.
The effect of this proposed change would be that PRPs of a listed facility
or the executive director would be the only parties that could request the
previously noted actions.
The commission is proposing to amend §335.345 to simplify the agency's
process for information requests on listed sites and potentially listed sites.
Existing language would be replaced with clear, succinct requirements requiring
submission of requested information and documents within 45 days from the
date of request and a statement that the submitted documents are subject to
the Public Information Act and its exceptions.
Proposed amendments to §335.346 would provide that the executive director
may use money in the Hazardous and Solid Waste Remediation Fee Account to
conduct early planned removals at sites to substantially reduce the overall
cost of cleaning up the site. The change is being added to be consistent with
HB 2776.
The proposed amendments to §335.347 relating to Financial Capability
Determinations would clarify the existing requirement that financial statements
and income tax information may be requested from PRPs in addition to other
financial information. Also, notice to all PRPs of the executive director's
determination on financial capability would no longer be required.
The commission proposes several amendments to §335.348 relating to
General Requirements for a Remedial Investigation. One proposed change is
that a baseline risk assessment will no longer be required as a comparison
standard for remedial action alternatives. Instead, a PRP must evaluate health-based
and ecological risks, and then calculate cleanup levels to the satisfaction
of the executive director before the remedial action is selected. The current
rules require a health and safety plan to assure the health and safety of
all personnel engaged in implementing the remedial investigation. The proposal
extends the scope of the health and safety plan to include all on-site personnel
and the general public. Another proposed amendment makes the remedial alternative
selection criteria consistent with the Solid Waste Disposal Act. Under the
proposal, a PRP may choose a presumptive remedy in lieu of the feasibility
study to expedite the remedial process. Finally, to be consistent with changes
to the Texas Engineering Practice Act by the 75th Legislature (Senate Bill
623), all engineering plans and specifications are to be prepared under the
supervision of a Licensed Engineer.
In §335.349, the commission proposes to change the current time frames
for selecting the proposed remedial action and to add procedures for modifying
the proposed remedial action after the date of the initial public meeting.
In addition, all documents submitted in connection with the remedial design
and remedial action must be sealed by a Licensed Engineer.
Proposed amendments to §335.350 are simple cleanup changes consistent
with other changes in the proposed rule.
Proposed amendments to §335.351 would add language that outlines the
basis for the executive director's consideration regarding settlement offers.
The commission proposes to repeal §335.352 because the reference to
federal Hazard Ranking System is no longer necessary given the amendments
to §335.343. The section also refers to an appendix which lists recommended
commission and EPA guidance documents. Repealing the section will allow guidance
documents to be added or taken off the list administratively instead of having
to go through a formal rulemaking.
FISCAL NOTE
Stephen Minick, Strategic Planning and Appropriations Division, has determined
that for the first five-year period the sections as proposed are in effect,
there will be fiscal implications as a result of administration or enforcement
of the sections. The effect on state government will be an anticipated reduction
in costs as a result of streamlining processes and procedures in the state
Superfund program. These cost savings are variable and will be realized on
a site-by-site basis. While the costs of responding to individual contaminated
sites may decrease, total expenditures in the program are not anticipated
to be reduced. The total estimated costs of remedial action at all identified
state Superfund sites is significantly greater than current appropriations
or available fund balances. The cost savings generated by these proposed amendments
will enable staff to improve the timeliness of response at contaminated sites
and address sites that would not otherwise be addressed within current projected
project schedules. These rules also increase incentives for potentially responsible
parties to participate in the voluntary cleanup program for site remediation.
Parties exercising this option will pay fees to the commission to offset the
costs of processing applications, evaluating proposals, and monitoring progress
of remedial actions. For sites currently being addressed under the voluntary
cleanup program, fees typically range between $2,000 and $5,000 for most projects,
although costs could be significantly greater for larger projects. The fees
received would be to recover actual costs; however, no projection is available
of the number of sites for which responsible parties will elect to participate
and total revenues to be gained by the state have not been estimated. There
are no significant fiscal implications anticipated for local governments,
except for those units of local government that may be identified as operators
of contaminated sites subject to these proposed rules or potentially responsible
parties for contaminated sites.
PUBLIC BENEFIT
Mr. Minick also has determined that, for the first five years the sections
as proposed are in effect, the public benefit anticipated as a result of enforcement
of and compliance with the sections will be more cost-effective remediation
of contaminated sites under the state Superfund program, increased protection
of public health and safety, improvements in the recovery of costs from parties
responsible for contamination of sites, reduced financial liabilities for
lenders with security interests in contaminated properties or potential purchasers,
maintenance or enhancement of local government tax bases as a result of restoration
of contaminated sites, and increased consistency between federal and state
procedures for assessment and ranking of hazards posed by contaminated sites.
Generally, the adoption of these proposed rules is anticipated to improve
and streamline the process for addressing contaminated sites under the state
Superfund program and result in cost savings for parties subject to the rules.
These provisions are generally not prescriptive, but rather, represent options
for responsible parties in addressing contaminated sites that can result in
costs savings. These savings will vary on a case-by-case basis and cannot
be determined prospectively. These savings will result from proposed options
for selection of presumptive remedies instead of full feasibility studies
at sites to be remediated, reduced time periods for initiating and completing
remedial actions, and mitigation of potential cleanup costs due to early removal
of sources of contamination. While fiscal implications for any individual
site are not known and are quite variable, it is anticipated that, for a typical
project, the selection of a presumptive remedy could result in costs savings
of $30,000. Potential costs savings due to acceleration of project schedules
will generally be proportional to the overall administrative and overhead
costs of the project. The opportunity for early removal of contamination could
generate costs savings on a site-by-site basis, but the extent of those cost
savings is difficult to quantify until the proposed changes are implemented.
Parties electing to use the voluntary cleanup program as an option under
these rules will be liable for the payment of application fees and the commission's
oversight and processing costs. The oversight costs are currently billed at
$67 per hour of staff time. These costs for sites which have been addressed
under the voluntary cleanup program to date have typically been less than
$5,000, although higher fees are possible for larger and more complex projects.
These costs do not include costs of actual site assessment or remedial action.
Although no comparisons have been quantified, it is anticipated that cleanup
costs through the voluntary cleanup program will be less than cleanup costs
under the procedures and requirements of the state Superfund program. Potential
costs savings will apply to both small businesses and larger concerns and
will be based on the allocation of financial participation by a responsible
party in the assessment and remediation of a contaminated property. There
are no significant costs anticipated to be imposed on affected persons, including
small business, required to comply with the provisions of these sections as
proposed.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act,
and it does not meet any of the four applicability requirements listed in
§2001.0225(a).
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules
pursuant to Texas Government Code, Annotated, §2007.043. The following
is a summary of that Assessment. The specific purpose of the rule is to enhance
the existing State Superfund program and to implement provisions of HB 2776.
The rules will substantially advance this specific purpose by clarifying portions
of the rule, by streamlining the assessment and remediation procedures, and
by implementing certain provisions in HB 2776 where rulemaking is necessary.
Promulgation and enforcement of these rules will not burden private real property
which is the subject of the rules because the rules are intended to streamline
existing procedures to facilitate removals and remedial actions at affected
sites. These streamlining measures should reduce the administrative burden
of remediating a site within the State Superfund program while continuing
to be protective of human and ecological receptors.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed this rulemaking for consistency with the Coastal
Management Program (CMP) goals and policies in accordance with the regulations
of the Coastal Coordination Council, and has determined that the rulemaking
is consistent with the applicable CMP goals and policies.
SUBMITTAL OF COMMENTS
Written comments may be mailed to Bettie Bell, Texas Natural Resource Conservation
Commission, Texas Register Team, MC-205, P.O. Box 13087, Austin, Texas 78711-3087.
All comments should reference Rules Tracking Log Number 97155-335-WS. Comments
must be received by 5:00 p.m., on February 23, 1998. For further information,
please contact Michael A. Bame, C.P.G., Pollution Cleanup Division (512) 239-5658
or Clark Talkington, Waste Policy and Regulations Division, (512) 239-6731.
STATUTORY AUTHORITY
The repeal and amendments are proposed under the Texas Water Code, §5.103
and §26.011, which provide the commission with authority to adopt any
rules necessary to carry out its powers, duties, and policies and to protect
water quality in the state. The amendments and repeal are also proposed under
the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.017,
and §361.024, which provide the commission the authority to regulate
industrial solid waste and municipal hazardous wastes and all other powers
necessary or convenient to carry out its responsibilities. The Texas Solid
Waste Disposal Act, Texas Health and Safety Code, Subchapter F provides additional
authority to propose rules specific to the registry and cleanup of certain
hazardous waste facilities.
The repeal and amendments affect Health and Safety Code, Chapter 361.
The amendments are proposed under the Texas Water Code, §5.103 and
§26.011, which provide the commission with authority to adopt any rules
necessary to carry out its powers, duties, and policies and to protect water
quality in the state. The amendments are also proposed under the Texas Solid
Waste Disposal Act, Texas Health and Safety Code, §361.017, and §361.024,
which provide the commission the authority to regulate industrial solid waste
and municipal hazardous wastes and all other powers necessary or convenient
to carry out its responsibilities. The Texas Solid Waste Disposal Act, Texas
Health and Safety Code, Subchapter F provides additional authority to propose
rules specific to the registry and cleanup of certain hazardous waste facilities.
The amendments affect Health and Safety Code, Chapter 361.
§ 335.341.Purpose and Scope.
(a)
(No change.)
(b)
This subsection describes the [
Texas Water Commission
(TWC)
] procedures for identifying, proposing,[
and
] listing
, and delisting
facilities on the State Registry.
(1)
(No change.)
(2)
If the potential endangerment cannot be fully resolved
by the present owner or operator, then the executive director shall determine
whether the potential endangerment can be resolved by voluntary cooperation
of some or all of the potentially responsible parties (PRPs) identified in
the Act, §361.271 pursuant to an agreed administrative order issued by
the commission
or a Voluntary Cleanup Agreement pursuant to Chapter 333
of this title (relating to Voluntary Cleanup Programs)
. If
a facility
[
it
] can be cleaned up pursuant to an agreed administrative
order
or an executed Voluntary Cleanup Agreement,
then it shall
not be proposed for listing.
(3)-(5)
(No change.)
§335.342.Definitions.
The following words and terms when used in this section have the following
meanings unless the context clearly indicates otherwise.
Divisible
- [
That the
] Hazardous substance(s) released
or threatened to be released
at a facility
are capable of being
managed separately under a remedial action plan.
Facility
-
In accordance with the Act, §361.181(c),
a facility means:
(A)
(No change.)
(B)
any site or area where a hazardous substance has
been [
posted
],
deposited
, stored, disposed of, or placed
or otherwise come to be located, but does not include any consumer product
in consumer use or any vessel.
Feasibility study (FS)
- A study which describes
and evaluates a set of remedial action alternatives for effectively mitigating
or minimizing damage to, and for providing adequate protection of, the public
health and safety and the environment in accordance with the requirements
of §335.348 of this title (relating to General Requirements for Remedial
Investigations).
Good faith offer
- A written proposal by one or more PRPs
which is not contingent on participation of other PRPs which, in the judgment
of the executive director, will:
(A)
in the case of a good faith offer to fund or
perform a remedial investigation[
/feasibility study or other similar
study
],
fully and
effectively determine the nature and extent
of the release or threatened release of hazardous substances and its impact
on air, soils, groundwater, and surface water, both within and beyond the
boundaries of the facility
. The executive director will not consider
an offer a good faith offer unless it is an offer to fully fund or perform
the remedial investigation
; or
(B)
in the case of a good faith offer to fund or perform
a remedial action,
fully and
effectively mitigate or minimize damage
to, and provide adequate protection of, the public health and safety and the
environment.
The executive director will not consider an offer a good
faith offer unless it is an offer to fully fund or perform the remedial action.
[
Federal
] Hazard ranking system
-
The method
used by the Environmental Protection Agency and the agency to evaluate the
relative potential of hazardous substance releases to cause health or safety
problems, ecological or environmental damage.
The scoring system
was
developed by the United States Environmental Protection Agency as
set out in 40 Code of Federal Regulations Part 300, Appendix A, as amended.
Hazardous
and Solid Waste Remediation Fee Account
[
waste disposal fee fund
]
- The fund
as
described
in the Act, §361.133.
Health and safety plan
- A document that addresses
the protection of on-site personnel and the public from potential hazards
particular to a facility while implementing the remedial investigation or
remedial action. The plan shall conform to applicable Occupational Safety
and Health Administrative Rules but not limited to 29 Code of Federal Regulations
§1910 and §1926.
Implementation schedule
- A document describing
the sequence, dependency on other activities, and duration of each activity
to be conducted during a remedial investigation or remedial action.
Operation and maintenance plan
- A document
detailing the necessary operation and maintenance, inspection, and monitoring
activities, including schedules, required to maintain the attainment of performance
goals after completion of the implementation phase of the remedial action.
Oversight costs
- All administrative costs and costs for technical
and legal services incurred by
the agency
[
commission personnel
], or agents or contractors for the [
commission
]
the
agency
, incurred in the
determination of superfund eligibility,
identification of PRPs
, oversight of the
remedial investigation
[
RI/FS
] and remedial action, plus all such costs incurred
in verifying compliance by PRPs with the terms of any agreed order which may
be issued
and costs incurred by the agency for delisting a site from
the State Registry and cost recovery costs.
Potentially responsible party ([
or
] PRP)
- A person
potentially responsible for solid waste as defined in the Act §361.271.
Presumptive remedy
- A remedy in a commission
document titled "Presumptive Remedies" which describes site specific remedial
alternatives for a facility in lieu of a full feasibility study as required
by §335.348 of this title (relating to General Requirements for Remedial
Investigations).
Quality assurance project plan (QAPP)
- A
document describing in comprehensive detail the necessary quality assurance,
quality control, and other technical activities that must be implemented to
meet the data quality goals during an investigation or remedial action.
Remedial action (RA)
-An action, including
remedial design and post-closure care, consistent with a remedy taken instead
of or in addition to a removal action in the event of a release or threatened
release of hazardous substances into the environment to prevent or minimize
the release of a hazardous substance so that the hazardous substance does
not migrate to cause an imminent and substantial danger to present or future
public health and safety or the environment.
Remedial action drawings and specifications
- Documents that include the drawings showing the scope, extent, and character
of the work to be performed during the remedial action and the written technical
descriptions of materials, equipment, remediation systems, standards and workmanship
as applied to the remedial action.
[
Remedial action plan
- A detailed plan for
the design, construction, and long-term operation and maintenance of the remedial
action agreed to by the commission.
]
Remedial design (RD)
- A design consisting
of engineering drawings and technical specifications and other documents developed
for implementation of the remedial action in accordance with the requirements
of §335.349 of this title (relating to General Requirements For Remedial
Activities).
[
Remedial investigation/feasibility study (or RI/FS)
-
]
[
(A)
An investigative study of the
entire facility designed to determine the nature and extent of a release or
threatened release of hazardous substances and, as appropriate, its impact
on air, soils, ground-water, and surface water, both within and beyond the
boundaries of the facility in accordance with the requirements of §335.348
of this title (relating to General Requirements for a RI/FS); and ]
[
(B)
A study which describes and evaluates
a set of remedial action alternatives for effectively mitigating or minimizing
damage to, and for providing adequate protection of, the public health and
safety or the environment in accordance with the requirements of §335.348
of this subchapter.
]
Remedial investigation (RI)
- An investigative
study, including removals, feasibility study, human health risk assessment,
ecological risk assessment, or similar study, designed to adequately determine
the nature and extent of a release or threatened release of hazardous substances
and, as appropriate, its impact on air, soils, groundwater, and surface water,
both within and beyond the boundaries of the facility in accordance with the
requirements of §335.348 of this title (relating to General Requirements
for Remedial Investigations).
Responsible party (RP)
- A person responsible
for solid waste as defined in the Act, §361.271 and §361.275(g).
Sampling and analysis plan (SAP)
- A document
describing the specific sampling and analytical protocols to be implemented
during a remedial investigation or remedial action.
[
State superfund hazard ranking system
- The
scoring system used by the executive director for determining the relative
priority for an RI/FS or remedial action needed at a facility.
]
Settlement offer
- A written offer by a potentially
responsible party to fund or perform less than a full and complete remedial
investigation, and/or remedial action.
Spill/release contingency plan
- A document
describing the sequences, procedures, and requirements to be implemented to
protect both workers at the facility and the public from hazardous exposure
to releases or spills resulting from the remedial action.
Substantial change in use
- A physical or functional alteration
of a facility, the effect of which is to interfere significantly with a proposed
or ongoing
remedial investigation
[
RI/FS study or similar
study
]
, proposed, ongoing, or completed remedial action
or to expose [
the
] public health and safety or the environment
to a significantly increased threat of harm. The term includes, but is not
limited to, actions such as the erection or razing of a building or other
structure at the facility, the use of a facility for agricultural production,
the paving over of a facility, the creation of a park or other public or private
recreational use on the facility, and any other alteration of the site or
activity which could interfere with the performance of
a remedial investigation
[
an RI/FS
] or remedial action.
Unilateral Order
- An order issued by the
commission without the consent of the person subject to the order.
§ 335.343. Ranking of Facilities.
(a)
The relative priority for action needed at a facility
investigated by the executive director for possible listing on the State Registry
may be
[
is
] based on a [
State
] Superfund Hazard
Ranking System (HRS). The [
State
] Superfund HRS is a methodology
designed to determine a numerical score for a facility based on the judgment
of the executive director concerning various factors which may impact the
public health and safety or the environment.
(b)
Upon appropriate investigation by the executive director,
a facility will be assigned a [
State
] Superfund HRS score. A facility
may be proposed for listing on the State Superfund Registry if it is assigned
a [
state
] Superfund HRS score 5.0 or greater.
[
(c)
Facilities with the highest State Superfund
HRS score shall receive the highest priority for remedial action and state-funded
cleanup, unless a situation described in the Act,§361.191 warrants more
immediate action.
]
(c)
[
(d)
]
The relative priority for action
at facilities listed on the State Registry will be periodically reviewed and
revised by the
executive director
[
commission
] as necessary
to accurately reflect the need for action at the facilities.
(d)
The commission shall annually publish an
updated state registry identifying each facility and the relative priority
for action at each listed facility.
(e)
If a facility has been deleted in accordance
with §335.344 of this title (relating to Delisting and Modifications)
based in whole or part on the facility being addressed pursuant to Chapter
333 of this title (relating to Voluntary Cleanup Programs), and the executive
director determines that the facility is no longer being adequately addressed,
the facility shall automatically revert to the status the facility had immediately
before the facility was deleted from the Registry in accordance with the Act,
§361.189. No public meeting is required under this subsection.
§335.344.Delisting and Modifications.
(a)
Any [
Potentially Responsible Party
] PRP of
a facility listed or proposed for listing on the State Registry [
or any
interested person
] may request the executive director to delete such
facility from the Registry, modify the facility's priority ranking within
the Registry, or modify any information regarding such facility by submitting
a written statement setting forth the grounds of the request. The PRP [
or interested person
] shall submit to the executive director any information
as may be reasonably required to enable the executive director to further
evaluate the facility including, but not limited to, information on all factors
used to develop a [
State
] Superfund HRS score and to make a determination
on the request. The executive director may initiate the delisting procedures
described in this section.
(b)
The
executive director
[
commission
]
shall hold a public meeting to receive comment. This meeting is not a contested
case hearing within the meaning of Texas Government Code, Chapter 2001. This
meeting shall be held upon requests filed with or initiated by the executive
director under subsection (a) of this section. At least 30 days prior to the
date set forth for the meeting, notice shall be provided by first class mail
to all other PRPs [
and other interested persons
], and by publication
in a newspaper of general circulation in the county where the facility is
located. The person submitting the request, if any, shall bear the cost of
publication of the notice.
(c)
In making a determination under subsection (a) of this
section, the executive director [
or the commission
] will consider
the following:
(1)
the extent to which the facility has been remediated under
the terms of
any removals and
[
the
] remedial action
[
plan
] agreed to by the executive director;
(2)-(3)
(No change.)
(4)
whether, because of the nature of
any removals
and
the remedial action implemented at the facility, it is not yet feasible
to make a determination that the remedial action has effectively remediated
the release or
threatened
[
threat of
] release of hazardous
substances; or
(5)
whether the site has been
accepted
[
remediated
] under the voluntary cleanup program as set out in [
30, TAC,
] Chapter 333 of this title (relating to Voluntary Cleanup Programs).
(d)
With the exception of paragraph (c) (5) of this section,
no
[
No
] requests for the delisting of a facility from the
State Registry or requests to modify information about a facility eligible
for listing on the Registry will be granted unless, at a minimum, the facility
has been investigated under the terms of
a remedial investigation
[
an RI/FS or other similar study
] approved by the executive director.
§335.345.Requests for Information or Production of Documents.
(a)
The executive director may submit requests for information
and requests for production of documents as authorized by the Act, §361.182
to any person who has information or documents which in the executive director's
opinion are necessary for the adequate investigation or remediation of a
facility listed on the Registry
or that the executive director has reason
to believe should be listed on the State Registry
[
or proposed
for listing on the Registry
]. [
If
] The requested information
or documents
shall be
[
are not
] produced
within
forty-five days from the date of request
. [
in a timely manner,
the executive director may petition the commission to issue an order directing
compliance with the requests for information or production of documents.
The executive director shall serve a copy of the petition on the person to
whom the request for information or production of documents was directed
at least 20 days prior to the scheduled date of commission action on the
petition. The person to whom the request for information or production of
documents was directed may appear before the commission and present evidence
and argument on the petition or in support of a claim asserted under subsection
(b), or the commission may refer the matter to the office of hearings examiners
for the taking of evidence.
]
(b)
Information or documents provided to the executive director
in accordance with this section are
subject to the Public Information
Act and its exceptions.
[
presumed to be public records except
to the extent that a showing satisfactory to the commission is made that
the information or documents would divulge trade secrets if made public.
The commission shall deem the information or documents to be confidential
and not subject to public disclosure if such a showing is made. Upon request,
confidential information and documents supplied to the executive director
will be returned to the person supplying the information or documents after
it has served the purpose for which it was requested by the executive director.
]
Removals
[
Removal Actions
] and Preliminary Site Investigations.
(a)
For facilities listed on the Registry or proposed for
listing on the Registry, no person may perform any partial or total
removals
[
removal activities
] at such facility or conduct
[
on-site sampling, testing, or
] preliminary investigations of
any type at such facility without the advance written authorization of the
executive director after notice and opportunity for comment to all other
potentially responsible parties.
(b)
To expedite the executive director's consideration of
a proposal to conduct
removals
[
removal activities
]
or preliminary investigations at a facility, the person proposing such actions
shall
[
should
] submit to the executive director a workplan
describing the [
precise nature of the
] removal
and/
or investigation activities proposed, a safety and health plan,
a quality
assurance project plan, and an implementation schedule
[
and a
quality assurance/quality control plan as well as a schedule
] for completing
various subtasks identified in the workplan.
(c)
Any authorization by the executive director to perform
[
on-site testing, sampling, or
] preliminary investigations
, investigation activities,
or partial or total
removals
[
removal activities
] at a facility does not constitute a finding
or determination by the
executive director
[
commission
]
that such testing, sampling, or preliminary investigation constitutes an
approved
remedial investigation
[
remedial investigation/feasibility
study
] or that the removal
constitutes
[
activities
constitute
] the final remedial action. An authorization by the executive
director to perform any partial or total
removals or investigation activities
[
removal activities
] also does not constitute a determination
or finding by the
executive director
[
commission
] that
any release or threatened release attributed to the removed materials is
divisible as defined in the Act,
§361.276.
(d)
Pursuant to the Act,§361.133(c)
(1)-(4) and (g),
the executive director may use money in the Hazardous and Solid Waste
Remediation Fee
Account
[
Fund
] for necessary and appropriate
removal and remedial action at sites at which solid waste or hazardous substances
have been disposed if funds from a liable party, independent third party,
or the federal government are not sufficient for the removal or remedial
action.
The executive director may also perform removals under the Act,
§361.133(c)(5) to protect human health and the environment.
[
A necessary and appropriate aspect of any such removal or remedial action
may be the construction of a fence as necessary to provide site security,
and the taking and analysis of samples of potential hazardous substances,
and potentially contaminated soils, surface water and groundwater.
]
§335.347.Financial Capability Determinations.
[
(a)
]
The executive director
may
[
will
]make a determination of whether a potentially responsible party
(PRP) is financially capable of participating in a facility investigation
or remediation. Such a determination may be based on some or all of the following
financial information:
(1)
a PRP's
audited financial statements;
(2)
a PRP's
federal or state income tax returns;
(3)
a PRP's gross and net income for each of the preceding
three years;
(4)
a PRP's net worth for each of the preceding three
years;
(5)
a PRP's current cash flow position;
(6)
a PRP's long-term liabilities;
(7)
the liquidity of a PRP's assets; and
(8)
any other data requested pursuant to §335.345
of this title (relating to Requests for Information or Production of Documents),
which in the opinion of the executive director is relevant to a determination
of the ability of the PRP to participate in a facility investigation or remediation.
[
(b)
A determination by the executive director
pursuant to this section shall be provided to all PRPs.
]
§335.348.General Requirements for Remedial Investigations[ /Feasibility Study ].
(a)
Unless otherwise directed by the commission,
a remedial
investigation
[
an RI/FS or other similar study
] as approved
by the
executive director
[
Texas Water Commission (TWC)
]
shall be completed before the executive director's selection of the remedial
action, except for
removals
[
emergency removal actions
]
and preliminary site investigations pursuant to §335.346 of this title
(relating to
Removals
[
Removal Actions
] and Preliminary
Site Investigations).
(b)
A similar study may be approved by the
executive
director
[
TWC
] as an appropriate alternative to the performance
of a full
remedial investigation
[
RI/FS
] when necessary
to avoid delay, to make more effective use of resources or when such similar
study is sufficient to adequately characterize a site.
(c)
The contents of the
remedial investigation
[
RI/FS
] as approved by the
executive director
, [
commission
] will depend on the particular circumstances of each specific
facility. Under any
remedial investigation;
[
RI/FS
]
however, sufficient information must be collected and evaluated to allow
the
executive director
[
commission
] to select an appropriate
remedial action.
(d)
A remedial investigation
[
An RI/FS
]
may include the following, as appropriate to a particular facility, for the
purpose of allowing
the executive director
[
TWC
] to
select an appropriate remedial action:
(1)
(No change.)
(2)
investigations to adequately characterize the
nature and extent
[
vertical and areal distribution and concentrations
] of hazardous substances in the soils encompassing the facility. Properties
associated with the soils which would influence the type and rate of hazardous
substance migration or affect the ability to implement alternative remedial
actions shall be characterized.
(3)
investigations of hydrogeology and geology to adequately
characterize the
nature and extent
[
horizontal and vertical
distribution and concentrations
] of hazardous substances in the ground
water and the features which affect the fate and transport of those hazardous
substances. This should include, but is not limited to, the physical properties
and distribution of bedrock and unconsolidated materials, groundwater flow
rate and gradient for contaminated and potentially contaminated aquifers,
groundwater divides, areas of groundwater recharge and discharge, and location
of public and private groundwater wells.
(4)-(5)
(No change.)
(6)
descriptions of the location, quantity, horizontal
and vertical extent, concentrations and sources of hazardous substances [
in disposal areas
]. Information on the physical and chemical characteristics
and the toxicological effects of hazardous substances shall be provided,
if available.
[
(e)
In order to identify possible health
problems associated with the "no action" remedial action alternative, a baseline
public health evaluation will be conducted in accordance with the Environmental
Protection Agency's Risk Assessment Guidance for Superfund - Volume 1: Human
Health Evaluation Manual or other equivalent EPA guidance document. The evaluation
may not be required when the executive director determines that remediation
standards are apparent and undisputed and adequately protective of human
health and the environment.
]
[
(f)
The number and types of remedial action
alternatives to be evaluated shall take into consideration the particular
characteristics and complexities of the facility. Development of remedial
action alternatives shall include, at a minimum, the following:
]
[
(1)
an alternative which involves the treatment
of hazardous substances to health-based levels or the level of Best Demonstrated
Available Technology (BDAT).
]
[
(2)
an alternative consisting of containment
of all hazardous substances either on-site or off-site.
]
[
(3)
an alternative consisting of a combination
of on-site and off-site containment.
]
[
(4)
no remedial action.
]
[
(g)
At a minimum, the following criteria
will be used to evaluate each remedial action alternative:
]
[
(1)
the extent to which the alternative mitigates
long-term exposure of any residual contamination;
]
[
(2)
the extent to which the alternative
achieves remediation standards and complies with applicable federal, state
and local regulations;
]
[
(3)
the extent to which the alternative
permanently and significantly reduces the volume, toxicity, and mobility
of hazardous substances;
]
[
(4)
the present value cost including
the total costs of implementation and annual operation and maintenance costs;
]
[
(5)
the extent to which local community
concerns are addressed and whether implementation of the alternative would
result in other adverse effects on the local community;
]
[
(6)
other significant impacts on human
health and the environment resulting from implementation of the remedial
action alternative; and
]
[
(7)
the technical merits of each remedial
alternative relative to the other.
]
(e)
[
(h)
]
A workplan for
a remedial
investigation
[
an RI/FS
] shall be submitted to the executive
director for final review and possible modifications and shall include the
following:
(1)
a sampling and analysis plan covering all sampling activities
to be undertaken pursuant to the
remedial investigation
[
RI/FS
];
(2)
a
quality assurance project plan
[
quality assurance/quality control plan
] to assure the integrity of
all samples taken pursuant to the
remedial investigation
[
RI/FS
]; and
(3)
a health and safety plan to describe steps to be
taken to assure the health and safety of all personnel engaged in implementing
the
remedial investigation
[
RI/FS
]; and
(4)
an implementation schedule
[
a schedule
of implementation
] for all aspects of the
remedial investigation
[
RI/FS
].
(f)
A health based risk assessment or similar
study and an ecological risk assessment shall be completed before the executive
director's selection of the proposed remedial action. The evaluation is not
required when the executive director determines that remediation standards
are apparent and undisputed and adequately protective of human health and
the environment.
(g)
For the purpose of conducting an ecological
risk assessment, any ecological risk assessment guidance material may be
used as long as the material has credible authority.
(h)
[
(i)
]
Treatability studies may be
required as necessary to provide information to evaluate remedial action
alternatives.
(i)
In evaluating the acceptability of a remedial
investigation, the executive director may require the utilization of published
agency and EPA technical guidance documents.
(j)
A health and safety plan shall be prepared that addresses
the protection of on-site personnel and the public from potential hazards
particular to a facility while implementing the remedial investigation.
[
A report shall be prepared at the completion of the remedial investigation/feasibility
study and submitted to the executive director for review, possible modification
and final approval.
]
(k)
A report shall be prepared at the completion of the
remedial investigation and submitted to the executive director for review,
possible modification and final approval.
[
In evaluating the acceptability
of a RI/FS or similar study, the executive director may utilize published
TWC and EPA technical guidance documents including, but not limited to, the
documents set forth in Appendix II.
]
(l)
The selection of the remedial alternative
shall be made according to the process outlined in the guidance document
"Presumptive Remedies for Soils at Texas State Superfund Sites" or other
applicable presumptive remedy documents, unless the executive director determines
that a feasibility study must be conducted.
(m)
The remedial action for a particular facility
shall be selected based on the remedial alternative that the executive director
determines to be the lowest cost alternative which is technologically feasible
and reliable, effectively mitigates and minimizes damage to the environment,
and provides adequate protection of the public health and safety and the
environment.
(n)
All engineering evaluations, plans, and
specifications included in the feasibility study or similar study must be
prepared under the supervision of and sealed by a Licensed Engineer, currently
licensed in accordance with the provisions of The Texas Engineering Practice
Act.
§335.349.General Requirements For [ a ] Remedial Activities [ Action ].
(a)
Based on the proposals set forth in the feasibility study,
the presumptive remedy, or other similar study, elements from different remedial
action alternatives as proposed in a remedial investigation as well as any
other information available to the executive director,
the executive
director shall select a
proposed
remedial action.
After the
selection of the proposed remedial action, the executive director shall hold
a public meeting to discuss the proposed action, as required by the Act,
§361.187. This meeting is not a contested case hearing within the meaning
of Texas Government Code, Chapter 2001. Persons desiring to submit comments
are encouraged to do so prior to the public meeting. Written comments should
be submitted to the executive director at least 5 days prior to the date
set for public meeting. All other comments shall be presented in the public
meeting.
[
The selection of the remedial action shall be based
on relevant information collected during the remedial investigation/feasibility
study (RI/FS), or other approved study, as well as any other information
available to the commission. The commission may select a final remedial action
which incorporates elements from different remedial action alternatives as
proposed in an RI/FS.
]
(b)
This subsection describes the administrative
procedures for modifying the proposed remedial action after the date of the
initial public meeting to discuss the remedial action for the site.
(1)
A minor change in the proposed remedial
action is one that does not significantly affect the scope, performance,
or cost of the proposed remedial action. The executive director will document
minor changes in the project records without the necessity of another public
meeting.
(2)
A significant change in the proposed
remedial action is one that materially affects the scope, performance, or
cost of the proposed remedial action, but uses the same approach and results
in a remedial action as least as protective as originally proposed. For significant
changes, the executive director shall notify the PRPs by certified mail of
the changes and issue a public notice in the Texas Register and in a newspaper
of general circulation in the county in which the facility is located. The
notice shall provide information regarding the significant changes in the
proposed remedial action; however, a public meeting or opportunity for public
comment is not required. If the commission has not entered into an administrative
order to perform the remedial action, a significant change will extend the
schedules provided in the Act, §361.187(d).
(3)
A fundamental change in the proposed
remedial action is one that uses a different approach to achieve the remedial
action goals, or one that uses the same approach, but results in a remedial
action that is less protective than that originally proposed. A major change
in technology to address the contamination is a fundamental change. For fundamental
changes, the executive director shall hold another public meeting to discuss
the proposed changes in accordance with the Act, §361.187, and as described
in subsection (a) of this section. This newly proposed remedial action shall
supersede the remedial action originally proposed in the initial public meeting.
(c)
[
(b)
]
Engineering documents submitted
in connection with the remedial action
must be approved by the executive
director and must
[
will be required to
] demonstrate compliance
with relevant cleanup standards, except as provided in the Act, §361.193.
The scope of these documents will depend on the nature and complexity of
the proposed remedial action and may vary from
facility to facility
[
site to site
].
[
(c)
A remedial action plan shall consider
the following factors if relevant to a particular facility, but shall not
be limited to those factors, as follows:
]
[
(1)
a design engineering report to include
information for the development and review of construction plans and specifications;
]
[
(2)
construction plans and specifications
describing in detail the cleanup actions to be performed and prepared in
conformance with currently acceptable engineering techniques and practices;
and
]
[
(3)
an operation and maintenance plan
to assure effective and environmentally safe operations under normal and
emergency situations.
]
(d)
The executive director shall establish
the minimum requirements for the remedial design, based on the specific characteristics
of the facility and the remedial action. If appropriate, the executive director
may waive any of the requirements in this subsection for a particular facility.
Typical remedial design requirements include, but are not limited to:
(1)
remedial action drawings and specifications;
(2)
quality assurance project plan;
(3)
sampling and analysis plan;
(4)
spill/release contingency plan;
(5)
implementation schedule; and
(6)
an operations and maintenance plan.
(e)
A health and safety plan shall be prepared
that addresses the protection of on-site personnel and the public from potential
hazards particular to a facility while implementing the remedial action.
(f)
All engineering plans and specifications
included in remedial activities must be prepared under the supervision of
and sealed by a Licensed Engineer licensed in accordance with the Texas Engineering
Practice Act.
§335.350.Defense to Liability and Claims of Divisibility.
(a)
The burden of establishing that a
PRP
[
potentially responsible party (PRP)
] qualifies for any defenses to
liability set forth in the Act, §361.275 or that a release is divisible
as set forth in the Act, §361.276 lies with the PRP asserting such claim.
(b)
(No change.)
(c)
The executive director will not consider claims of divisibility
until a site has been adequately characterized by
a remedial investigation
[
an RI/FS or other approved study
].
(d)
(No change.)
§335.351.Settlement Agreements.
(a)
General purpose. The
commission
[
Texas
Water Commission (TWC)
] encourages
PRPs
[
potentially
responsible parties (PRP)
] to enter into negotiated settlement agreements
which shall include an agreed administrative order
with the commission
so that an effective
remedial investigation and remedial action
[
cleanup
] of a [
state superfund
] facility can be quickly
implemented while at the same time resolving PRP's apparent liability for
the facility. The goal of the executive director in negotiating PRP settlements
is to obtain a complete
remedial
investigation and
remedial
action
[
cleanup
] of the facility by PRPs, or to collect
from PRPs 100% of the
agency's
[
commission's
] cost
of performing a complete
remedial
investigation and
remedial
action
[
cleanup
] of the facility.
PRPs shall have 60
days after the end of the good faith offer period to negotiate a settlement/final
administrative order. Settlement negotiations shall run concurrently with
agreed order negotiations.
(b)
Remedial investigation settlement. In the case of
an offer which is less than a good faith offer to fund or perform a remedial
investigation, the executive director's consideration of the offer shall
be based on a party's ability to pay.
[
Partial settlements. The
commission may consider a settlement proposal for cleanup of less than 100%
of a facility's cleanup remedial activities or cleanup costs. Upon settling
with cooperative parties, the commission will vigorously seek all remaining
relief, including full cost recovery of monies expended from the Hazardous
Waste Remediation Fee Fund, including penalties, damages, and interest where
appropriate, as well as TWC oversight costs, from parties whose non-cooperation
prevented the achievement of a complete settlement.
]
(c)
Remedial action settlement.
(1)
In the case of an offer which is less
than a good faith offer to fund or perform a remedial action, the executive
director's consideration of the offer may be based on:
(A)
the relationship between the parties'
actions in storing, processing, and disposing of hazardous substances and
the remedial action required to eliminate the release or threatened release;
(B)
the volume of hazardous substances each
party is responsible for at the site to the extent that the costs of the
remedial action are based on the volume of waste present;
(C)
consideration of toxicity or other waste
characteristics if those characteristics affect the cost to eliminate the
release or threatened release;
(D)
a party's cooperation with state agencies,
its cooperation or noncooperation with the pending efforts to eliminate the
release or threatened release, or a party's actions concerning storing, processing,
or disposing of hazardous substances, as well as the degree of care that
the party exercised; and
(E)
a party's ability to pay.
(2)
The commission may consider
a settlement proposal for remedial action of less than 100% of a facility's
remedial activities or remedial action costs. Upon settling with cooperative
parties, the commission will vigorously seek all remaining relief, including
full cost recovery of monies expended from the Hazardous and Solid Waste
Remediation Fee Account, including penalties, damages, and interest where
appropriate, as well as the agency's oversight costs, from parties whose
non-cooperation prevented the achievement of a complete settlement.
(d)
[
(c)
]
Mixed funding. Mixed Funding
means use of funds from federal, state, and private party sources, or any
combination of those sources, to fund a timely
remedial
[
response
] action. Mixed funding may be used in the following circumstances.
(1)
In order to achieve an expeditious
remedial action
[
cleanup
] of a facility listed on the Registry, the commission
may agree to reimburse parties to a settlement agreement from the
Hazardous
and Solid Waste Remediation Fee Account
[
Hazardous Waste Disposal
Fee Fund
] with interest, for certain costs incurred as a result of
the timely implementation of the remedial action plan that the parties agree
to perform but which the commission agrees to finance
in whole or in
part
. The commission may agree to utilize funds from whatever other
federal or state
sources
[
source
] are available to
the commission for the funding of a facility remediation.
(2)
Mixed funding shall be provided only to PRPs whom
the commission has found to be eligible and who have entered into an agreed
administrative order with
the commission
[
TWC
]. The
agreed administrative order shall identify remedial action tasks to be addressed
by the mixed funding, costs to be borne by the
Hazardous and Solid Waste
Remediation Fee Account
[
Hazardous Waste Disposal Fee Fund
]
and the terms of agreement.
(3)
A PRP must submit sufficient documentation, as requested
by the executive director, to support its request for mixed funding.
(4)
The commission's granting of a request for mixed
funding does not diminish or alter the standard and scope of liability as
set out in the Act. The commission will not approve mixed funding based solely
on the grounds that a share of wastes at a site may be attributable to an
unknown or financially nonviable party. In addition, the availability or
the amount of any fund-financing for a particular site will not be dependent
on consistency with any volumetric allocation.
(5)
Good faith negotiations and early cooperation of
settlers will be considered in mixed funding requests.
The executive
director shall only consider mixed funding for remedial action if the PRP
meets the following conditions:
[
Mixed funding for remedial actions
would not be appropriate where the executive director did not receive a good
faith offer for the participation of the PRPs in the completion of the remedial
investigation/feasibility study.
]
(A)
the PRP participated in the remedial investigation;
or
(B)
the PRP agreed to reimburse all agency
expenses associated with the remedial investigation, if the PRP did not participate
in the remedial investigation.
(6)
If a PRP is found to be eligible for mixed funding,
the executive director shall make an initial determination regarding the
amount of funding to be provided. This determination is solely within the
discretion of the executive director and is not subject to adjudication in
an administrative hearing or appeal to the commission. A determination of
eligibility is not a funding commitment as actual funding will depend on
availability of funds and approval of the commission
(7)
Where a remedial action has been completed at a facility
pursuant to a mixed funding agreement, the
Hazardous and Solid Waste
Remediation Fee Account
[
hazardous and waste disposal fee fund
(the fund)
] shall be subject to an obligation for subsequent remedial
actions at the same facility only to the extent that such subsequent actions
are necessary by reason of failure of the original remedial action. Such
obligation shall be in a proportion equal to, but not exceeding, the proportion
contributed by the fund for the original remedial action. The fund's obligation
for such future remedial action may be met through fund expenditures, or
through payment by parties who were not signatories to the original agreement.
(e)
[
(d)
]
De minimis settlements. The
commission may reach a final settlement with a PRP for only a minor portion
of the response costs at a facility if the conditions in either of the following
subparagraphs (1) or (2) of this subsection are met.
(1)
A PRP can demonstrate the following:
(A)
the amount of the hazardous substances contributed by
a particular PRP is minimal in comparison to the amounts of other hazardous
substances at the facility; or
(B)
the toxicity or other hazardous effects of the hazardous
substances contributed by a particular PRP are minimal in comparison to the
toxicity or other hazardous effects of other hazardous substances at the
facility.
(2)
The PRP can demonstrate that it:
(A)
is the owner of the real property on or in which the facility
is located;
(B)
did not conduct or permit the generation, transportation,
storage, treatment, or disposal of any hazardous substance at the facility;
and
(C)
did not contribute to the release or
threatened
[
threat of
] release of a hazardous substance at the facility through
any action or omission.
(3)
Paragraph (2) of this subsection does not apply
if the PRP purchased the real property with actual or constructive knowledge
that the property was used for the generation, transportation, storage, treatment,
or disposal of any hazardous substance.
(f)
[
(e)
]
Covenants not to sue.
(1)
The commission may, in its discretion, provide any PRP
with a covenant not to sue concerning any existing or future liability resulting
from a release or threatened release of a hazardous substance addressed by
a remedial action if each of the following conditions is met:
(A)
the covenant not to sue is in the public interest as determined
by criteria set forth in paragraph (2) of this subsection;
(B)
the granting of the covenant not to sue would expedite
a remedial action approved by the commission; and
(C)
the PRP is in full compliance with the terms of any order
issued by the commission for response to the release or threatened release
for the facility
concerned.
(2)
In assessing the appropriateness of granting
a covenant not to sue and in determining the appropriate legal scope of such
a covenant, the commission shall consider whether the covenant is in the
public interest on the basis of such factors as the following:
(A)
the effectiveness and reliability of the remedial action,
in light of other alternative remedies considered for the facility concerned;
(B)
the nature of the environmental risks remaining at the
facility;
(C)
the extent to which performance standards are included
in the order or decree;
(D)
the extent to which the response [
action
] provides
a complete
remedial action
[
remedy
] for the facility,
including a reduction in the hazardous nature of the substances at the facility;
(E)
the extent to which the technology used in the
remedial
[
response
] action is demonstrated to be effective;
(F)
whether the
Hazardous and Solid Waste Remediation
Fee Account
[
Hazardous Waste Disposal Fee Fund
] or other
sources of funding would be available for any additional remedial actions
that might eventually be necessary at the facility; and
(G)
whether the remedial action will be carried out, in whole
or in significant part, by the PRPs themselves.
(3)
A covenant not to sue shall be subject to the
satisfactory performance by the PRP of its obligations under any order issued
by the commission for [
response of
] remedial actions to address
the release or threatened release of a hazardous substance at the facility.
A covenant not to sue concerning future liability for remediation of the
facility shall not take effect until the executive director certifies that
the remedial action has been completed
or the ordered action has been
performed
in accordance with any such order issued by the commission.
(4)
A covenant not to sue a PRP concerning future liability
for remediation of a facility may include an exception to the covenant that
allows the commission to sue such person where such liability arises out
of conditions which are unknown to the executive director at the time he
certifies under paragraph (3) of this subsection that the remedial action
has been completed at the facility. A covenant not to sue may provide that
such future liability may be limited to the same proportion as that established
in the original settlement agreement or order issued by the commission.
(g)
[
(f)
]
Discharge of liability
for other PRPs.
Any settlement agreement with the commission which
resolves a PRP's liability for remediation of a facility does not discharge
the liability of any other PRP unless its terms so provide, but it reduces
the potential liability of the other PRPs by the amount of the settlement.
A PRP will be afforded the opportunity to comment on any settlement agreement
with the commission to which it is not a party.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January
9, 1998.
TRD-9800346
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation
Earliest possible date of adoption: February 23, 1998
For further information, please call: (512) 239-6087
30 TAC §335.352
(Editor's note: The text of the following section proposed
for repeal will not be published. The section may be examined in the offices
of the Texas Natural Resource Conservation or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Natural Resource Conservation Commission (commission)
proposes the repeal of §335.352, concerning the assessment and remediation
of State Superfund sites that may constitute an imminent and substantial
endangerment to public health and safety or the environment due to a release
or threatened release of hazardous substances into the environment.
EXPLANATION OF PROPOSED RULES
The commission proposes to repeal §335.352 because the reference to
federal Hazard Ranking System is no longer necessary given the amendments
to §335.343. The section also refers to an appendix which lists recommended
commission and EPA guidance documents. Repealing the section will allow guidance
documents to be added or taken off the list administratively instead of having
to go through a formal rulemaking.
FISCAL NOTE
Stephen Minick, Strategic Planning and Appropriations Division, has determined
that for the first five-year period the sections as proposed are in effect,
there will be fiscal implications as a result of administration or enforcement
of the sections. The effect on state government will be an anticipated reduction
in costs as a result of streamlining processes and procedures in the state
Superfund program. These cost savings are variable and will be realized on
a site-by-site basis. While the costs of responding to individual contaminated
sites may decrease, total expenditures in the program are not anticipated
to be reduced. The total estimated costs of remedial action at all identified
state Superfund sites is significantly greater than current appropriations
or available fund balances. The cost savings generated by these proposed
amendments will enable staff to improve the timeliness of response at contaminated
sites and address sites that would not otherwise be addressed within current
projected project schedules. These rules also increase incentives for potentially
responsible parties to participate in the voluntary cleanup program for site
remediation. Parties exercising this option will pay fees to the commission
to offset the costs of processing applications, evaluating proposals, and
monitoring progress of remedial actions. For sites currently being addressed
under the voluntary cleanup program, fees typically range between $2,000
and $5,000 for most projects, although costs could be significantly greater
for larger projects. The fees received would be to recover actual costs;
however, no projection is available of the number of sites for which responsible
parties will elect to participate and total revenues to be gained by the
state have not been estimated. There are no significant fiscal implications
anticipated for local governments, except for those units of local government
that may be identified as operators of contaminated sites subject to these
proposed rules or potentially responsible parties for contaminated sites.
PUBLIC BENEFIT
Mr. Minick also has determined that, for the first five years the sections
as proposed are in effect, the public benefit anticipated as a result of
enforcement of and compliance with the sections will be more cost-effective
remediation of contaminated sites under the state Superfund program, increased
protection of public health and safety, improvements in the recovery of costs
from parties responsible for contamination of sites, reduced financial liabilities
for lenders with security interests in contaminated properties or potential
purchasers, maintenance or enhancement of local government tax bases as a
result of restoration of contaminated sites, and increased consistency between
federal and state procedures for assessment and ranking of hazards posed
by contaminated sites. Generally, the adoption of these proposed rules is
anticipated to improve and streamline the process for addressing contaminated
sites under the state Superfund program and result in cost savings for parties
subject to the rules. These provisions are generally not prescriptive, but
rather, represent options for responsible parties in addressing contaminated
sites that can result in costs savings. These savings will vary on a case-by-case
basis and cannot be determined prospectively. These savings will result from
proposed options for selection of presumptive remedies instead of full feasibility
studies at sites to be remediated, reduced time periods for initiating and
completing remedial actions, and mitigation of potential cleanup costs due
to early removal of sources of contamination. While fiscal implications for
any individual site are not known and are quite variable, it is anticipated
that, for a typical project, the selection of a presumptive remedy could
result in costs savings of $30,000. Potential costs savings due to acceleration
of project schedules will generally be proportional to the overall administrative
and overhead costs of the project. The opportunity for early removal of contamination
could generate costs savings on a site-by-site basis, but the extent of those
cost savings is difficult to quantify until the proposed changes are implemented.
Parties electing to use the voluntary cleanup program as an option under
these rules will be liable for the payment of application fees and the commission's
oversight and processing costs. The oversight costs are currently billed
at $67 per hour of staff time. These costs for sites which have been addressed
under the voluntary cleanup program to date have typically been less than
$5,000, although higher fees are possible for larger and more complex projects.
These costs do not include costs of actual site assessment or remedial action.
Although no comparisons have been quantified, it is anticipated that cleanup
costs through the voluntary cleanup program will be less than cleanup costs
under the procedures and requirements of the state Superfund program. Potential
costs savings will apply to both small businesses and larger concerns and
will be based on the allocation of financial participation by a responsible
party in the assessment and remediation of a contaminated property. There
are no significant costs anticipated to be imposed on affected persons, including
small business, required to comply with the provisions of these sections
as proposed.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has
determined that the rulemaking is not subject to §2001.0225 because
it does not meet the definition of a "major environmental rule" as defined
in the act, and it does not meet any of the four applicability requirements
listed in §2001.0225(a).
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules
pursuant to Texas Government Code, Annotated, §2007.043. The following
is a summary of that Assessment. The specific purpose of the rule is to enhance
the existing State Superfund program and to implement provisions of HB 2776.
The rules will substantially advance this specific purpose by clarifying
portions of the rule, by streamlining the assessment and remediation procedures,
and by implementing certain provisions in HB 2776 where rulemaking is necessary.
Promulgation and enforcement of these rules will not burden private real
property which is the subject of the rules because the rules are intended
to streamline existing procedures to facilitate removals and remedial actions
at affected sites. These streamlining measures should reduce the administrative
burden of remediating a site within the State Superfund program while continuing
to be protective of human and ecological receptors.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed this rulemaking for consistency with the Coastal
Management Program (CMP) goals and policies in accordance with the regulations
of the Coastal Coordination Council, and has determined that the rulemaking
is consistent with the applicable CMP goals and policies.
SUBMITTAL OF COMMENTS
Written comments may be mailed to Bettie Bell, Texas Natural Resource Conservation
Commission, Texas Register Team, MC-205, P.O. Box 13087, Austin, Texas 78711-3087.
All comments should reference Rules Tracking Log Number 97155-335-WS. Comments
must be received by 5:00 p.m., on February 23, 1998. For further information,
please contact Michael A. Bame, C.P.G., Pollution Cleanup Division (512)
239-5658 or Clark Talkington, Waste Policy and Regulations Division, (512)
239-6731.
STATUTORY AUTHORITY
The repeal and amendments are proposed under the Texas Water Code, §5.103
and §26.011, which provide the commission with authority to adopt any
rules necessary to carry out its powers, duties, and policies and to protect
water quality in the state. The amendments and repeal are also proposed under
the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.017,
and §361.024, which provide the commission the authority to regulate
industrial solid waste and municipal hazardous wastes and all other powers
necessary or convenient to carry out its responsibilities. The Texas Solid
Waste Disposal Act, Texas Health and Safety Code, Subchapter F provides additional
authority to propose rules specific to the registry and cleanup of certain
hazardous waste facilities.
The repeal and amendments affect Health and Safety Code, Chapter 361.
335.352. Adoption of Appendices by Reference.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January
9, 1998.
TRD-9800345
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation
Earliest possible date of adoption: February 23, 1998
For further information, please call: (512) 239-6087