| (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 , 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, Voluntary Cleanup
Program 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 protective concentration levels
(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 Counsel;
(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
Cont'd... |
