| (14) For on-site and off-site properties where an institutional control is required pursuant to §350.74(b)(1) and §350.31(g) of this title (relating to Development of Risk-Based Exposure Limits, and General Requirements for Remedy Standards, respectively) because occupational inhalation criteria are used as the basis for determining the protective concentration of COCs in the working air environment, the person shall note, in a deed notice or VCP certificate of completion, the fact that the response action taken in response to this chapter relies on monitoring air concentrations of COCs and compliance with occupational inhalation criteria and a required health and safety plan for the affected property. (c) The person shall submit a written request to the landowner to obtain permission to file the deed notice or VCP certificate of completion or to solicit agreement to have an innocent landowner execute a restrictive covenant. This written request must contain a copy of the proposed deed notice, VCP certificate of completion or restrictive covenant, the address and phone number of the commission's Public Interest Counsel as someone the landowner may contact, and a clear explanation as to the content and purpose of the institutional control. The person shall obtain written consent from the landowner for the filing of the deed notice or VCP certificate of completion prior to filing of a deed notice or VCP certificate of completion required to be filed under this chapter in the real property records unless the person is a governmental entity that is not a responsible party or subsections (b)(4), (d), or (f) of this section apply. Restrictive covenants shall be executed only by the landowner. A restrictive covenant in favor of TCEQ and the State of Texas which runs with the land shall be the required institutional control with the exception of institutional controls required under §350.31(h) and §350.74(b)(1) of this title (relating to General Requirements for Remedy Standards and Development of Risk-Based Exposure Limits, respectively) unless information is presented which demonstrates that: (1) the landowner is not an innocent owner or operator as defined in §350.4 of this title (relating to Definitions and Acronyms), in which case the person shall file a deed notice or VCP certificate of completion; (2) it is technically impracticable to obtain a residential-based Remedy Standard A response action and an innocent landowner refuses to execute a restrictive covenant, or a non-innocent landowner refuses to consent to the filing of a deed notice or VCP certificate of completion; a court of competent jurisdiction has determined the amount of compensation due the landowner as compensation for filing a deed notice or VCP certificate of completion in the real property records for that property; and the person has paid into the court registry compensation, if any, determined by the court, in which case the person shall file a deed notice or VCP certificate of completion; (3) after extensive and diligent inquiry by the person, the executive director concludes that the landowner cannot be found, in which case the person shall file a deed notice or VCP certificate of completion; or (4) the person is a governmental entity that is not a responsible party, and the innocent landowner refuses to execute a restrictive covenant. (d) Landowner consent shall not be required for the filing of deed notice or VCP certificate of completion under this chapter if it is technically impracticable to obtain a residential-based Remedy Standard A response action, and the person demonstrates that: (1) the non-innocent landowner refuses to grant consent for the filing of a deed notice or VCP certificate of completion, or an innocent landowner refuses to file a restrictive covenant; (2) a court of competent jurisdiction has determined the amount of compensation due the landowner as compensation for filing a deed notice or VCP certificate of completion in the real property records for that property; and (3) the person has paid into the court registry compensation, if any, determined by the court. (e) The person shall provide a copy of the request for landowner consent for filing of a deed notice or VCP certificate of completion or copy of the request for the innocent landowner to execute a restrictive covenant, and proof of the date of receipt by the landowner of the request, with the RACR, unless required earlier in accordance with §350.33(f)(2), (f)(3)(F), or (f)(4)(C) of this title (relating to Remedy Standard B). Proof of written landowner consent for the filing of deed notice or a VCP certificate of completion or the written agreement of the innocent landowner to execute a restrictive covenant shall be provided to the executive director before the executive director will approve the RACR, unless the provisions in subsections (b)(4), (d) or (f) of this section are met. (f) Landowner consent for deed notice or VCP certificate of completion shall not be required if, after extensive and diligent inquiry by the person, the executive director concludes that the landowner cannot be found. |
