| written approval by the executive director, the remainder of the initial or any continued post-response action care period will be canceled and the person will be released from the requirement to maintain financial assurance, and the financial assurance will be returned. The demonstration of no threat to human health or the environment shall be made by adequately documenting one of the following conditions: (1) the concentrations of COCs in soils are less than or equal to the critical surface and subsurface soil PCLs, as applicable, and the concentrations of COCs in groundwater are less than or equal to the critical groundwater PCLs as documented with three consecutive years of groundwater monitoring data, unless an alternate monitoring period is approved by the executive director; (2) the post-response action care activity consists entirely of monitoring the effectiveness of a physical control, and the physical control has been proven successful and secure (i.e., the physical control is permanent and does not require any inspections or maintenance); (3) an affected property contains only a groundwater PCLE zone and such groundwater PCLE zone has been demonstrated to be reducing in size and to have boundaries which are sufficiently smaller than the boundaries of an institutional control so as to preclude any potential for the groundwater PCLE zone to migrate beyond the boundaries of the institutional control considering both natural hydrogeologic conditions and changes to hydraulic gradients by off-site activities; or (4) the COC concentrations in surface and subsurface soils exceed only GW Soil, but the groundwater PCLE zone has been demonstrated to be reducing in size and to have boundaries which are sufficiently smaller than the boundaries of an institutional control so as to preclude any potential for the groundwater PCLE zone to migrate beyond the boundaries of the institutional control considering both natural hydrogeologic conditions and potential changes to hydraulic gradients by off-site activities. (j) If the person cannot make one of the demonstrations specified in subsection (i) of this section by the end of the initial post-response action care period specified in subsection (h) of this section, then the person shall be required to continue post-response action care for additional 30-year periods or until a demonstration of no threat to human health or the environment can be made under subsection (i) of this section. A shorter continued post-response action care period can be used provided the person demonstrates that such period would be appropriate due to: (1) the nature of the response action; (2) the persistence, migration potential, and toxicity of the COCs; and (3) the physical characteristics and location of the affected property. (k) The person shall perform the following record keeping and reporting requirements during the initial and any continued post-response action care period: (1) keep a copy of the approved RAP at the property, or specified alternative location; (2) keep records of all monitoring data, inspection and maintenance reports, and unexpected occurrences affecting any waste control unit or post-response action care systems; (3) submit Post-Response Action Care Reports (PRACRs) in accordance with the schedule in the approved RAP; and (4) notify the executive director in writing within 30 days after an unexpected event occurs, or a condition is detected, during the post-response action care period which indicates that additional response actions will be required at an affected property. (l) For properties using physical control measures in response to subsections (e)(2) and/or (f) of this section, financial assurance shall be established and maintained for the post-response action care period specified in subsection (h) of this section. The person shall prepare and include in the RAP a written cost estimate in current dollars of the total cost of the post-response action care activities for the post-response action care period specified in subsection (h) of this section. The cost estimate shall be based on the costs of hiring a third party to conduct the post-response action care activities. Within 90 days after the executive director's approval of the RAP and before commencing work indicated in the RAP, an acceptable financial assurance mechanism must be submitted to the commission for post-response action care in the amount specified in the approved RAP. If the total post-response action care cost estimate is $100,000 or less, the executive director may choose to exempt the person from providing a financial assurance demonstration. For persons meeting the requirements of subsection (n) of this section, the amount of financial assurance demonstrated may be less than the total post-response action care cost estimate. Financial assurance for post-response action care shall be demonstrated in compliance with Chapter 37, Subchapter N of this title (relating to Financial Assurance Requirements for the Texas Risk Reduction Program Rules). The executive director may perform the post-response action care activities at an affected property using the funds provided for this purpose when the executive director determines that a person has failed to provide the post-response action care described in an approved RAP. (m) For properties using physical control measures in response to subsections (e)(2) and/or (f) of this section that require post-response action care beyond the initial post-response action care period, financial assurance shall continue to be demonstrated for the post-response action care period specified in subsection (j) of this section. At least 180 days before the end of the preceding post-response action care period, a written cost estimate in current dollars shall be prepared and submitted for the cost of continuing the post-response action care activities specified in the approved RAP for the additional post-response action care period specified in subsection (j) of this section. The cost estimate shall be based on the costs of hiring a third party to conduct the post-response action care activities. At least 90 days before the end of the preceding post-response action care period, an acceptable financial assurance mechanism shall be submitted for the continued post-response action care period in an amount approved by the executive director. If the total post-response action care cost estimate is $100,000 or less, the executive director may choose to exempt the person from providing a financial assurance demonstration. For persons meeting the requirements of subsection (n) of this section, the amount of financial assurance demonstrated may be less than the total post-response action care estimate. Financial assurance for post-response action care shall be demonstrated in compliance with Chapter 37, Subchapter N of this title (relating to Financial Assurance Requirements for the Texas Risk Reduction Program Rule). The executive director may perform the continued post-response action care activities at an affected property using the funds provided for this purpose when the executive director determines that a person has failed to provide the post-response action care described in an approved RAP. (n) The owner or an authorized officer of a small business, as defined in this subsection, may seek to reduce the amount of financial assurance demonstrated under this subsection if the initial post-response action care period or subsequent post-response action care periods specified in subsections (h) - (j) of this section are greater than ten years. If the executive director determines a person meets the definition as specified in paragraph (2) of this subsection, the person shall submit the affidavit required by paragraph (1) of this subsection and establish and maintain financial assurance for the post-response action care period in an amount based on the following equation: ((total cost estimate)/(number of years in total response action care period)) X 10. The owner shall continue demonstrating subsequent post-response action care in ten year periods or as directed by the executive director. The owner or an authorized officer is required to notify the executive director when the definition specified in paragraph (2) of this subsection is no longer met. A small business must comply with subsections (l) and (m) of this section relating to financial assurance. (1) An affidavit signed by the owner or an authorized officer stating the business meets the definition of a small business as defined in paragraph (2) of this section shall be submitted to the executive director. (2) Definition of small business. (A) For purposes of financial assurance, a small business shall be defined as any person, firm, or business which employs, by direct payroll and/or through contract, fewer than 100 full-time employees and has net annual receipts of less than $3 million. Net annual receipts are defined as annual gross receipts less returns, discounts, and adjustments. The period used to determine net annual receipts shall be the preceding 12-month accounting year and can be either a calendar or fiscal-based period. (B) A business that is a wholly-owned subsidiary of a corporation shall not qualify as a small business under this section if the parent organization does not qualify as a small business under this section. |
