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TITLE 30ENVIRONMENTAL QUALITY
PART 1TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 350TEXAS RISK REDUCTION PROGRAM
SUBCHAPTER DDEVELOPMENT OF PROTECTIVE CONCENTRATION LEVELS
RULE §350.74Development of Risk-Based Exposure Limits

  (1) In accordance with §101.4 of this title (relating to Nuisance), as amended, the person may be required by the executive director to address COCs which present objectionable odors.

  (2) The maximum total soil concentration of COCs which are liquid at standard temperature and pressure shall not exceed 10,000 mg/kg within the soil interval of 0-10 feet, unless it can be demonstrated that:

    (A) no free liquids (e.g., no mobile NAPL) or sludges exist; or

    (B) higher concentrations do not adversely impair surface use of the affected property.

  (3) Other scientifically valid published criteria such as, but not limited to, non-COC specific secondary MCLs for water may be required by the executive director to be used as the RBEL.

(j) Requirements for variance to default RBEL exposure factors.

  (1) Under Tiers 2 or 3 as provided in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) and with prior executive director approval, the person may vary the following default exposure factors shown in the figures in subsections (a) and (c) of this section based on conditions or exposure levels at a particular affected property and in accordance with the conditions specified. A person shall provide the supporting documentation to justify the use of such alternative factors to the executive director.

    (A) Gastrointestinal absorption fraction (ABS GI ). A person or the executive director may use an alternative scientifically justifiable gastrointestinal absorption fraction value. Only in cases where the gastrointestinal absorption fraction is less than 50% shall the oral slope factor and oral reference dose be adjusted using equation RBEL-2 as shown in the figure in subsection (a) of this section, as applicable, to calculate the corresponding dermal slope factor and dermal reference dose. The person shall not use the gastrointestinal absorption fraction to modify the oral slope factor or oral reference dose for any exposure pathway other than the dermal exposure pathway. In the event the executive director determines a more scientifically valid gastrointestinal absorption fraction, that fraction shall be presumed to be the appropriate fraction and the person shall use that fraction unless a person rebuts that value with a scientifically valid study or by other credible published authority.

    (B) Dermal absorption fraction (ABS.d). A person or the executive director may conduct a scientifically valid study using property-specific soils or may use alternative scientifically justifiable dermal absorption values. In the event the executive director determines a more scientifically valid dermal absorption fraction, that fraction shall be presumed to be the appropriate fraction and the person shall use that fraction unless a person rebuts that fraction with a scientifically valid study using property-specific soils or by other credible published authority.

    (C) Relative bioavailability factor (RBAF). A person or the executive director may conduct a scientifically valid bioavailability study using property-specific soils or may conduct mineralogical evaluations of the chemical form of a COC present in soils at the affected property. In the event the executive director determines a more scientifically valid relative bioavailability factor, that factor shall be presumed to be the appropriate relative bioavailability factor and the person shall use that factor unless a person rebuts that factor with a scientifically valid bioavailability study using property-specific soils, mineralogical evaluation of the chemical form of a chemical of concern present in soils at the affected property, or by other credible published authority.

  (2) Under Tiers 2 or 3 as provided in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation), a person may request that the executive director allow a variance to the following default commercial/industrial exposure factors for the affected property as shown in the figure in subsection (a) of this section: averaging time for noncarcinogens (AT.w), exposure duration (ED.w), and exposure frequency (EF.w). This shall only be allowed for facilities that have or will have, as a condition of the approval of this variance, restricted property access. The executive director shall not delegate this decision to agency staff.

    (A) The person shall submit information to the executive director which demonstrates that variance from the default exposure factors is supported by property-specific information; historical, current, and probable future land use; redevelopment potential; and compatibility with surrounding land use. The person shall also provide written concurrence from the landowner for the placement of the institutional control in the county deed records, as required in subparagraph (L) of this paragraph, unless the property is subject to zoning or governmental ordinance which is equivalent to the deed notice, VCP certificate of completion or restrictive covenant that otherwise would have been required.

    (B) The person requesting such variance shall provide public notification as described in subparagraphs (D) and (E) of this paragraph for any request to vary the default exposure factors at the same time that variance-based PCLs are submitted to the executive director for approval. If the natural physical condition of the on-site commercial/industrial area for which the variance is sought essentially prohibits full commercial/industrial use (e.g., marshes and cliffs), and the variance would not necessitate a lesser commercial/industrial use of that area, then the executive director will determine the need for public notice on a site-specific basis for the prohibited use area. The person may request the executive director or his staff to review the variance-based PCLs or the variance request for completeness (e.g., administratively complete, mathematical accuracy, compliance with other PCL development procedures) in advance of initiating the public notification process. The required public notice shall be completed prior to consideration of the variance request for approval by the executive director. The public notice provisions may be performed in conjunction with or as part of another public participation/notification process required for permitting or other applicable state or federal statute or regulation provided the requirements of subparagraph (E) of this paragraph are also met. Additionally, an alternative mechanism that may exist under the other public participation/notification process which effectively provides broad public notice of the variance request, such as notification to an existing citizens advisory board for the affected property/facility, may substitute for the requirements of subparagraph (D) of this paragraph, provided the completion of the notification is sufficiently documented.

    (C) The notice shall contain, at a minimum, the following information:

      (i) the name, address and telephone number of the person requesting the variance;

      (ii) the address and the physical description for the location of the property and the agency case designation number;

      (iii) the modified value(s) the person seeks to use and the associated default exposure factor(s) as shown in the figure in subsection (a) of this section without any statements or other indications that such variance has been approved or otherwise considered favorably by the executive director or the executive director's staff other than that it has been reviewed for completeness;

      (iv) a clear and concise explanation as to the effect the variance will have on the future use of the subject property and on surrounding properties;

      (v) a statement that more detailed information regarding the variance request is available for review at the agency's central office in Austin, Texas, 8:00 am - 5:00 pm Monday thru Friday; and

      (vi) a notice to the public of the opportunity to submit written information, within 30 calendar days after the date of the initial published notice (publish the actual date), to the executive director which demonstrates that the proposal for variance from the default exposure factors would be compatible or incompatible with existing neighboring land uses and preservation of the active and productive land use of the subject property.

    (D) The notice shall be published in a newspaper distributed daily, if available, and generally circulated in the county or area where the property is located. The notice shall be published once a week for three weeks, with at least one of the notices appearing in a Sunday edition, if available.

    (E) The notice shall be sent to the following persons in clauses (i)-(viii) of this subparagraph by certified mail, return receipt requested:

      (i) all adjacent landowners;

      (ii) the local municipality planning board or similar governmental unit, if applicable;

      (iii) local taxing authorities;

      (iv) the mayor and health authorities of the city in which the property is located, if applicable;

      (v) the county judge and county health authority of the county in which the property is located;

      (vi) the agency's Public Interest Council;

      (vii) all persons or organizations who have requested the notice or expressed interest; and

      (viii) other persons or organizations specified by the executive director.

    (F) The person shall provide copies of each notice sent by mail, copies of the published notice, and copies of the signed publisher's affidavit for the initial notice to the agency's Austin office and to the appropriate agency region office within 10 calendar days after the initial publication and mailing. Copies of the signed publisher's affidavits for the subsequent notices shall be provided to the agency's Austin office and to the appropriate agency region office within 10 days of both subsequent notices.

    (G) At the executive director's request, and at the expense of the person, the person shall schedule and hold a public meeting at a time and place which are convenient for persons identified in subparagraph (E) of this paragraph. The forum chosen for the meeting shall comply with the Americans with Disabilities Act. Prior to scheduling the public meeting, the person shall coordinate the scheduling of the public meeting with the executive director's office to ensure the availability of agency personnel for the meeting. The person shall confirm with the executive director's office the date, time, and location of the meeting not less than 15 days prior to the meeting. The meeting shall be open to the public to provide information on the request to vary the default exposure factors and to allow for comments by the public. The person shall again confirm with the executive director's office on the time and place of the meeting at least 72 hours prior to the meeting.

    (H) In order to inform persons of the public meeting, the person shall, at least 30 calendar days prior to the public meeting, follow the notification process required in subparagraphs (C)-(F) of this paragraph with the following exceptions:

      (i) the notice shall be supplemented to include the date, time, and location of the public meeting and to indicate that the meeting is open to the public for the purposes of providing information on the request to vary default exposure factors and to provide the public the opportunity to provide comments on the request;

      (ii) the notice shall indicate that the public shall have 15 calendar days after the date of the public meeting to submit written information to the executive director which demonstrates that the proposal for variance from the default exposure factors would be compatible or incompatible with existing neighboring land uses and preservation of the active and productive land use of the subject property; and

      (iii) the notice by publication of the public meeting shall only be published once and shall be placed in a Sunday edition, if available.

    (I) The executive director's decision on the request for a variance from the default exposure factors shall occur at least 15 calendar days after any public meeting or if no public meeting is held, at least 45 days after the date of the initial published notice. The executive director's decision shall be based upon property-specific data; historical, current, and probable future land use; redevelopment potential; and compatibility with surrounding land use. The executive director shall not consider the costs incurred for any actions taken by the person in anticipation that the variance would be approved by the executive director.

    (J) At the same time that the executive director's decision is mailed to the person requesting the variance, a copy of this decision shall also be mailed to all persons identified in subparagraph (E) of this paragraph. The notice of the executive director's decision shall explain the method for submitting a motion for reconsideration of the executive director's decision by the commission.

    (K) The person requesting the variance and persons identified in subparagraph (E) of this paragraph may file with the chief clerk a motion for reconsideration of the executive director's decision related to the request for variance, in accordance with §50.39(b)-(f) of this title (relating to Motion for Reconsideration), as amended.

    (L) A person who receives a variance from the default exposure factors shall comply with the institutional control requirements in §350.111(b),(b)(12) or (13) of this title (relating to Use of Institutional Controls), as applicable, and provide proof of compliance with the institutional control requirements within 90 days of the approval by the executive director of the RACR.

  (3) The person shall not vary the following exposure factors shown in the figure in subsection (a) of this section.

Cont'd...

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