| (a) Within 90 days of the date the agency requests the filing
of an institutional control, the owner and operator must provide a certified
copy of the filed institutional control stamped by the County Clerk(s), listing
the page and volume of the record notice to the agency. The filed institutional
control must contain:
(1) the name and address of the owner and operator of the tract
of land to which the institutional controls are applicable, and a metes and
bounds description of the portion(s) of the tract of land affected by the
institutional control as agreed to by the agency;
(2) a plat map clearly demarcating the portion(s) of the tract
of land to which the institutional control applies. The map must contain a
north arrow, a correlating map scale, and a legend identifying any used symbols
or abbreviations;
(3) a certification by a registered professional land surveyor
so registered by the Texas Board of Professional Land Surveying attesting
to the accuracy of the descriptions provided in paragraphs (1) and (2) of
this subsection;
(4) the terms of the institutional control as presented in §334.208
of this title (relating to Model Institutional Control);
(5) a statement that the agency must be notified in writing
at least 120 days prior to changes in site use or site conditions which violate
the terms of the institutional control, when the terms of the institutional
control place use conditions on the affected area;
(6) a statement that information and documents concerning the
corrective action effort and contaminant conditions are available for inspection
upon request of the agency;
(7) a statement that residual levels of regulated substances
are present at the site and that generation of the affected soils or water
may require special handling and disposal and/or treatment in accordance with
applicable state and federal regulations; and
(8) other information as requested by the agency.
(b) The current or future owner of the property affected by
the institutional control shall notify the agency in writing at least 120
days prior to changing the use or altering the condition of the site such
that the conditions specified in the institutional control would no longer
be met. The owner and operator will then provide a re-evaluation of the site
to the agency within 30 days of the date of notification such that the property
owner is able to demonstrate:
(1) that levels of regulated substances have degraded such
that human health and safety, and the environment are protected under the
planned land use or site condition change;
(2) the site will be adequately cleaned to meet human health
and environmental protective levels for the planned land use or site condition
change; or
(3) application of a revised institutional control will ensure
adequate protection of public health and safety and the environment. The revised
institutional control shall conform with all requirements of this section
relating to institutional controls.
(c) When the implementation of institutional controls by the
owner and operator is a condition of site closure, and such condition was
stipulated in a final concurrence letter issued by the agency, the closure
status is valid only so long as the conditions set forth in the institutional
control agreed to by the agency and filed in the county deed records are met.
When the conditions of the institutional control are not met, then the conditions
for closure are no longer met, and site closure status is nullified. The current
or future owner and operator affected by the institutional control shall notify
the agency within 24 hours of the discovery that the conditions of the institutional
control are not met. When the conditions of the institutional control are
not met and the change in site use or condition was not coordinated as defined
in subsection (a)(5) of this section, then the future or current owner and
operator is out of compliance pursuant to §334.81(h) of this title (relating
to Corrective Action Plan) and may be subjected to formal enforcement proceedings.
(d) When appropriate analytical evidence demonstrates to the
reasonable satisfaction of the agency that concentrations of residual substances
at the site no longer exceed the target risk goals by process of natural degradation
or other active site cleanup, then the agency shall agree by written concurrence
to the placement of a statement in the county deed records by the current
or future owner of the land which nullifies the need for the institutional
control and indicates that residual substance concentrations meet health protective
levels. Under this condition, the final concurrence letter shall remain in
effect.
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