When institutional controls are assumed in determining target concentrations, the owner and operator shall file institutional control requirements in the county deed records of the county or counties in which the property affected by the institutional control is located. Institutional controls shall be required when such action is needed to demonstrate control or elimination of exposure pathways in a manner consistent with §334.203(1) or (2) of this title (relating to Risk-Based Criteria for Establishing Target Concentrations). Institutional controls may also be required to provide notice to future land owners that residual regulated substances are present at the site when the site is considered protective so long as there is no substantial change in site conditions or use of the property which would change the exposure conditions. All institutional control information filed in the county deed records must be written such that a layperson can easily understand it.
  (1) Institutional controls may be required as part of the corrective action plan when:
    (A) the residential cumulative carcinogenic risk level exceeds 1 X 10-5 for Class A and B carcinogens for residential use properties (child or adult);
    (B) the commercial/industrial cumulative carcinogenic risk level exceeds 1 X 10-5 level for Class A and B carcinogens for commercial/industrial use properties;
    (C) an engineering or legal control is needed to eliminate an otherwise viable exposure pathway;
    (D) sites not zoned commercial/industrial that are to close under commercial/industrial land use assumption and adjoin residential property when the same site under a residential land use assumption would exceed a cumulative carcinogenic risk of 1 x 10-4 or a hazard index of unity (one); and
    (E) when requested by the agency.
  (2) The owner and operator, or the agency, may recommend the specific conditions of the institutional control. In the event the agency and the owner and operator are unable to agree upon a suitable institutional control, then the agency will require target concentrations to be established so as to eliminate a need for an institutional control.
  (3) Institutional controls may only be employed on sites when the owner(s) of the affected property(ies) is/are in agreement with the placement and the conditions of the institutional control. A written statement signed by the owner, or their designated agent, of each property directly affected by the placement of the institutional control must be provided to the agency by the owner and operator which indicates that the owner of the affected property understands the requirements set forth in §334.206 of this title (relating to Criteria for Institutional Control Use) and agrees with the placement and terms of the institutional control.

Source Note: The provisions of this §334.205 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442