Section 335.8 - Closure and Remediation(a) Applicability. The regulations of this section, in addition to other applicable rules, permits, or orders, establish the obligation for persons to perform closures or remediations for facilities or areas containing industrial solid waste or municipal hazardous waste. The person can fulfill this obligation by meeting the risk reduction standards of this section or the remedy standards of Chapter 350 of this title (relating to Texas Risk Reduction Program), depending on the time of initial notification to the executive director of intent to conduct closure or remediation. The regulations of this section will remain in effect for persons who notify the executive director before May 1, 2000, of a closure or remediation in accordance with this section, unless the person elects to comply fully with Chapter 350 of this title prior to that date. Persons who notify of a closure or remediation in response to this section have up to five years from May 1, 2000, within which to submit for executive director review and approval according to this section a final report which demonstrates attainment of risk reduction standards 1 or 2. Persons will automatically qualify for this grandfathering provision if they have received a letter from the agency acknowledging receipt of the initial notification, or submit other forms of documentation by May 1, 2001, that proper and timely notification had been made. The person who has submitted a final remedial investigation report that fully complies with § 335.553(b)(1) of this title (relating to Risk Reduction Standard Number 3), prior to May 1, 2001, may elect to either continue under these rules or to proceed under Chapter 350 of this title. Any person who qualifies for this grandfathering provision and elects to continue using the provisions of this section may not use any of the provisions of Chapter 350 of this title. If the executive director denies approval of the final remedial investigation report under this section for reasons of technical inadequacy, the executive director may require the person to comply with the requirements of Chapter 350 of this title. For closures and remediations initially reported to the executive director on or after May 1, 2000, the person shall use the procedures of Chapter 350 of this title. The regulations in this section supplement but do not replace any requirements for closure or remediation specified in the regulations for the programs subject to these rules and shall continue to apply as specified in paragraphs (1) - (4) of this subsection to persons who qualify for this grandfathering provision.(1) Any person who stores, processes, or disposes of industrial solid waste or municipal hazardous waste at a facility permitted under § 335.2(a) of this title (relating to Permit Required), shall, unless specifically modified by other order of the commission, close the facility in accordance with the closing provisions of the permit.(2) Any person who stores, processes, or disposes of hazardous waste is also subject to the applicable provisions relating to closure and post-closure in Subchapters E and F of this chapter (relating to Interim Standards for Hazardous Waste Storage, Processing, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, respectively).(3) Persons who have received approval of closure or remediation plans by the executive director and have either completed or not completed the action prior to June 28, 1993, may either maintain or complete the action, as applicable, according to the approved plan and are not subject to the requirements of this section unless a substantial change in circumstances develops at the facility or area which results in an unacceptable threat to human health or the environment as described in § 350.35 of this title (relating to Substantial Change in Circumstances). Plans or reports submitted but not approved prior to June 28, 1993, will be reviewed according to the regulations in effect at the time of document submittal. If the executive director denies approval of the plan or report under those regulations for reasons of technical inadequacy, the person must then comply with the requirements of Chapter 350 of this title upon receipt of written notice from the executive director that the plan or report is not approved. Closure plans approved as part of an industrial solid or municipal hazardous waste permit which was issued prior to June 28, 1993, but not implemented at the time of permit renewal are subject to review for compliance with Chapter 350 of this title as part of the permit renewal process. Persons may resubmit such plans or reports that they have revised voluntarily to conform with the requirements of Chapter 350 of this title, unless such resubmittal would result in noncompliance with a previously approved or imposed schedule of compliance.(4) The requirements of this section do not apply to substances discharged or spilled from storage tanks regulated by Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks).(b) Closure and Remediation Obligations. Persons identified in subsection (a) of this section have the obligation to conduct the activities described in paragraphs (1) - (4) of this subsection when performing a closure or remediation. Upon receipt of approval by the executive director of reports demonstrating compliance with all applicable requirements, the person has completed these obligations unless a substantial change in circumstances results in an unacceptable risk to human health or the environment as described in paragraph (5) of this subsection. (1) Notify the executive director in writing of any closure or remediation activities as is further specified in subsection (c) of this section.(2) Perform closure or remediation activities at the facility or area of unauthorized discharge which meet one or more of the risk reduction standards specified in subparagraphs (A) - (C) of this paragraph. Unless the requirement to close a waste management facility component is specified by other rule, permit, or order, the person will determine the time for initiation of closure. The timely remediation of unauthorized discharges resulting from continuing operation of a waste management facility component does not compel the closure of the component unless closure is a necessary part of the remedy to achieve protection of human health and the environment. (A) Risk Reduction Standard Number 1. Closure/remediation to background--to remove and/or decontaminate all waste, waste residues, leachate, and contaminated media to background levels unaffected by waste management or industrial activities as further specified in § 335.554 of this title (relating to Attainment of Risk Reduction Standard Number 1); or(B) Risk Reduction Standard Number 2. Closure/remediation to health-based standards and criteria--to remove and/or decontaminate all waste, waste residues, leachate, and contaminated media to standards and criteria such that any substantial present or future threat to human health or the environment is eliminated as further specified in § 335.555 of this title (relating to Attainment of Risk Reduction Standard Number 2); or(C) Risk Reduction Standard Number 3. Closure/remediation with controls--to remove, decontaminate, and/or control all waste, waste residues, leachate, and contaminated media to levels and in a manner such that any substantial present or future threat to human health or the environment is eliminated or reduced to the maximum extent practicable, as further specified in § 335.561 of this title (relating to Attainment of Risk Reduction Standard Number 3).(3) Demonstrate in writing to the executive director that closure or remediation has been completed as is further specified in subsection (d) of this section.(4) Perform any necessary post-closure care and deed certification or recordation activities as required by Subchapter S of this chapter (relating to Risk Reduction Standards).(5) Respond on a continuing basis pursuant to paragraphs (1) - (4) of this subsection in the event that a substantial change in circumstances at the facility or area results in an unacceptable threat to human health or the environment. In response to these substantial changes in circumstances, the person shall comply with this subsection utilizing the then-prevailing criteria and perform such actions as necessary to provide protection of human health and the environment. A substantial change in circumstance can include, but is not limited to, the situations described in subparagraphs (A) - (D) of this paragraph.(A) a failure of institutional or engineering controls to prevent or mitigate exposure at the approved performance level;(B) a change in land use from nonresidential to residential; or(C) an actual exposure condition is determined to be occurring at levels not protective of human health or the environment. For purposes of this subparagraph, changes made to Subchapter S of this chapter (relating to Risk Reduction Standards) in response to periodic reviews of the general procedures specified to generate numeric cleanup levels, or in response to annual revisions of Appendix II of Subchapter S to reflect new toxicity data, do not constitute a substantial change in circumstances, unless these changes are of such magnitude to present an unacceptable threat to human health or the environment when evaluated for future exposure conditions based on site-specific considerations; or(D) new information indicates that the contamination at the facility or area was not sufficiently characterized such that an unacceptable threat to human health or the environment continues to exist.(c) Notification and Initiation Requirements. Persons who qualify according to subsection (a) of this section for an extended period of time for submittal of a final report to be reviewed according to this section must also respond, as appropriate, to the requirements of paragraphs (1) - (5) of this subsection. (1) A person who intends to continue any activity of closure or remediation in accordance with subsection (b) of this section shall determine the risk reduction standard(s) to be attained. If required by subsection (a) of this section to resubmit this notification, the person shall notify the executive director and the commission's office in the district where the facility or area is located in writing of the following information by May 1, 2001:(A) the facility or area to be subject to closure or remediation activities;(B) the risk reduction standard(s) to be attained; and(C) the estimated time necessary to complete the activity.(2) After performing notification in accordance with paragraph (1) of this subsection, the person may initiate the actions necessary to attain risk reduction standard numbers 1 or 2 without prior approval by the executive director, unless such approval is required by other regulation, order, or permit of the commission. Any plan submitted for prior approval by the executive director shall contain the information specified in § 335.553(a) of this title (relating to Required Information).(3) If the person intends to attain Risk Reduction Standard Number 3, the person shall submit to the executive director the information specified in § 335.553(b) of this title for approval prior to beginning or continuing, as applicable, the closure or remediation activities.(4) The person may include one or more waste management units or areas in a submittal for the purpose of responding to this subsection and subsection (d) of this section.(5) Notwithstanding any other requirement, the person shall submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether the closure or remediation is compliant with this section.(d) Demonstration of conformance with risk reduction standards. Upon completion of a closure or remediation, the person shall demonstrate in a form acceptable to the executive director that the activity meets the intended risk reduction standards and any applicable closure criteria listed or referenced in this chapter. Any submittal to the executive director in response to this subsection shall be in the form of a plan or report that contains the information specified in § 335.553 of this title.30 Tex. Admin. Code § 335.8
The provisions of this §335.8 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective June 28, 1993, 18 TexReg 3814; amended to be effective September 23, 1999, 24 TexReg 7426