(a) A person must comply with this section when relocating soils for reuse purposes from an affected property (on-site or off-site) which is undergoing or has completed a response action under Remedy Standard A or B and the soils contain COCs in excess of naturally occurring background concentrations. Relocation of soils which contain COCs may be subject to additional requirements or limitations (e.g., land disposal restrictions) within each program area identified in §350.2 of this title (relating to Applicability). The person must treat excavated soils containing non-aqueous phase liquids to applicable levels prior to relocation or else manage the soils as wastes. The excavation of soils containing COCs during construction activities (e.g., installation, repair, removal of telephone lines or other utilities, but not closures, remediations, or PST tank removal actions, for example) and the subsequent replacement of those soils into that same excavation shall not be considered to constitute relocation or reuse and shall not be subject to the provisions of this section.
(b) The person may relocate soils for reuse in response to Remedy Standard A when COCs meet the critical soil PCLs and the following requirements for the new location.
  (1) Soils to be reused must meet the residential or commercial/industrial critical surface or subsurface soil PCLs as applicable for the new location, depending upon depth of placement, established in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels).
  (2) The soil reuse shall be protective of ecological receptors at the new location.
  (3) The soil reuse activity must allow the requirements for Remedy Standard A response actions set forth in §350.32(a) of this title (relating to Remedy Standard A) to be met at the new location.
  (4) The person shall comply with the institutional control requirement for commercial/industrial land use as specified in §350.31(g) of this title (relating to General Requirements for Remedy Standards). Proof of compliance with the institutional control requirement shall be submitted within 90 days of completing the relocation action.
  (5) The reuse of soils with concentrations of COCs which do not exceed the critical soil PCLs for the new location does not require the prior approval of the executive director, when that new location is within the boundary of on-site or off-site property which contains the affected property (i.e., not just within the affected property limits).
(c) The person must meet the following requirements in response to Remedy Standard B when soils that are to be relocated for reuse purposes contain concentrations of COCs that exceed the critical soil PCLs for the new location.
  (1) The person shall determine the critical surface and, if applicable, subsurface soil PCLs in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels) for the new location.
  (2) The soil reuse must be protective of ecological receptors at the new location.
  (3) The person shall demonstrate that the soil reuse activity will allow the requirements for Remedy Standard B response actions set forth in §350.33(a) of this title (relating to Remedy Standard B) to be met for the new location.
  (4) The person shall comply with the institutional control requirements specified in §350.31(g) of this title (relating to General Requirements for Remedy Standards). Proof of compliance with the institutional control shall be submitted within 90 days of completing the relocation action.
  (5) The reuse of soil under Remedy Standard B requires prior executive director approval.
  (6) The executive director may require the person to conduct post-response action care and submit PRACRs.
  (7) The executive director may require the person to provide financial assurance for post-response action care in response to §350.33(e)(2)(C) of this title (relating to Remedy Standard B).
(d) If soils which contain concentrations of COCs above naturally-occurring levels resulting from a release are to be relocated for reuse on property not owned by the person, then the person shall obtain the written consent of the landowner prior to relocation of the soils.
(e) Within 90 days of completing a soil relocation action under this section, the person shall complete the applicable portions of a RACR as described in §350.95 of this title (relating to Response Action Completion Report) and make it available for inspection or submittal upon request of the executive director.

Source Note: The provisions of this §350.36 adopted to be effective September 23, 1999, 24 TexReg 7436