### ATTORNEY GENERAL OFTEXAS
GREG ABBOTT

January 5,2005

The Honorable Eddie Lucia Jr. Chair, Senate Committee on International Relations and Trade Sam Houston Building, Room 475 Post Office Box 12068 Austin, TX 78711 Opinion No. GA-0290

Re: Whether the Texas Commission on Environmental Quality is authorized to raise the environmental cleanup level at a specific site, and if so, what procedures must it follow (RQ-0245-GA)

Dear Senator Lucia:

You pose questions pertaining to the authority ofthe Texas Commission on Environmental Quality (“TCEQ” or “commission”) to raise the environmental cleanup level at aparticular site in Texas. You inform us that the United States Environmental Protection Agency (“EPA”) and TCEQ
are “currently taking public comment on the Administrative Record File for the ASARCOiEl Paso Metals site [(“Site”)] in El Paso County.“’ You provide us with acopy of apublic notice issued by EPA, Region 6, in which EPA proposes to “change the cleanup level for soils lead contamination from the current 500 parts per million @pm) to 640 ppm based on recent site studies and information.” EPA Notice, supra note 1. Inyour letter, you refer toTCEQ regulations that establish the current “human health residential soil protective concentration level [for lead] at 500 ppm.” Id. at 1 (citing 30 TEX. ADMIN.CODE5 350.76 (2004)). The proposed change prompts you to ask whether: [gliven the concentration levels under Rule 5 350.76, TAC, does

TCEQ have the authority to raise the cleanup level at the El Paso County Metals site from 500 ppm to 640 ppm? Can TCEQ grant a variance such that itchanges the cleanup level ataspecific site, while the level at other sites remains the same? IfTCEQ has the authority to change these levels, what process or guidelines must the agency follow, ifany? Ifafederal agency raises the concentration levels for remediation, would the state agency have to make [conforming] changes to their rules?

‘Letter and attached copy of EPA Notice from Senator Eddie Lucia Jr., Chair, Senate Committee on International Relations and Trade, toHonorable Greg Abbott, Texas Attorney General, at 1(July 12,2004) (on tile with Opinion Committee, also availa6le afhttp:l/www.oag.state.tx.us) [hereinaikr “Request Letter” and “EPA Notice”].The Honorable Eddie Lucia Jr. - Page 2 (GA-0290)

Id. We provided interested parties an opportunity to comment on your request. Neither EPA nor TCEQ provided briefing to this office regarding the cleanup activities atthe Site or the legal issues raised by your request.
Yom question assumes that any cleanup orremediation ofasite will not return the site to its pristine condition, but will instead allow a certain amount of a contaminant to remain. We understand the reference to “cleanup level” to be the amount of aparticular contaminant that will be allowed to remain at the site. For instance, a 500 ppm lead cleanup level contemplates that a concentration of lead in the amount of 500 ppm will remain, while a 640 ppm lead cleanup level allows aconcentration of 640 ppm toremain. There is an inverse relationship between the cleanup level and the amount of contaminant that is removed. A higher cleanup level means less contaminant needs to be cleaned up or removed. A lower cleanup level would require a greater amount ofcontaminant to be removed or cleaned up.
I. Background
A. ASARCOlEl Paso Metals Site

You do not provide us with much information regarding the Site. From documents found on EPA’s website, we have learned that the Site includes residential properties located near the ASARCO property in the City of El Paso that are contaminated with arsenic and/or lead.* Testing results in 2001 indicated that lead levels in the residential soil at the Site were ashigh as 1,700 ppm.3 See EPA Memo, supra note 2, at 2.
B. Removal Action under CERCLA

We have also learned from EPA’s website that the current action at the Site is a Removal Action4 pursuant to the federal Comprehensive Environmental Response, Compensation

*See Memorandum from Myron 0. Knudson, P.E., Director, Superfund Division (6SF), Environmental Protection Agency, to Marianne L. Horinko, Assistant Administrator, Offke of Solid Waste and Emergency Response, Environmental Protection Agency, at 1(Mar. 11, 2003) available af www.epa.goviArkansas/6sf/pdffiles/elqaso -memo.pdf [hereinafter EPA Memo].

‘Generally, lead contamination in residential soil comes from mining and milling sites, primary and secondary smelters, battery manufacturing and recycling facilities, and paint manufacturers. See United States Environmental ProtectionAgency, Lead inPaint, Dust&Soil, Basic Information, available atwww.epa.gov/opptea~eadileadinfo.hhn. Lead will remain in soil indefinitely. “Lead poisoning can cause, or be associated with, neurological damage, mental retardation, cerebral palsy, seizures, visual-motor deficiencies, behavioral problems, and even death.” Daniel G. LeVan, Landlord Liability for Lead Poisoning of Tenant Children Caused by Defects inPremises, 70 U. DET.MERCYL.REV. 429,430.3 1(1992). The effects of lead poisoning are permanent. See id. at 431. Low concentrations of lead blood levels can permanently lower achild’s intelligence quotient. See id.

‘A“Removal Action” involves the cleanup OIremoval ofreleased hazardous substances from the environment. 42 U.S.C. 59601(23). In contrast, a “Remedial Action” means “those actions consistent with permanent remedy taken instead of or in addition to removal actions to prevent or minimize the release ofhazardous substances so that they do not migrate.” Id. 99601(24).The Honorable Eddie Lucia Jr. - Page 3 (GA-0290)

and Liability Act, 42 U.S.C. $4 9601-9675 (“CERCLA”), undertaken to remove the arsenic and/or lead contaminated soils found on numerous residential properties. See EPA Memo, supra note 2, at 1. Better known as the federal Superfund because of the funding provided by the Hazardous Substance Superfund (“Superfund”), see 42 U.S.C. 59601(11), CERCLA allows EPA to clean up or remediate contaminated sites with funding from the Superfund,’ and later seek reimbursement from responsible parties. See id. §9607. As ofMarch 11, 2003, the Site was being evaluated for inclusion as aRemedial Action on the National Priorities List. See EPA Memo, supra note 2, at 1;
see also infra note 6.
The public notice that prompts your question states that EPA and TCEQ are cooperating at the Site. Because the notice was published by EPA and directs comments be made to EPA, and because the Site information isfound onEPA’s website andnot onTCEQ’s website, we assume that EPA, not TCEQ, is the lead agency at the Site conducting or overseeing the Removal Action.6
CERCLA does not establish quantitative cleanup levels, but instead utilizes cleanup levels from state and other federal sources. See 42U.S.C. 5962 1. Because CERCLA incorporates certain state requirements, where aTexas site is involved, Texas cleanup levels such as the one found in section 350.76(c)(l) are relevant.
C. Rule 350.76(c)(l)
Texas Administrative Code, title 30, section 350.76(c)(l) (“Rule” or “Rule 350.76(c)(l)“) is contained in TCEQ’s Texas Risk Reduction Program (“TRRP”) rule? See generally 30 TEX. ADMIN. CODE §§ 350.1-. 135 (2004). Toput your question incontext, itishelpful to generally understand the operation and goal of the TRRP. The TRRP is a comprehensive rule designed to set cleanup levels for environmental contamination in the State of Texas. See id. $350.2(a). Texas has amultitude ofenvironmental regulation and cleanup programs, including the State Superfund, Voluntary Cleanup, Petroleum Storage Tank, Industrial and Hazardous Waste, and Underground Injection Control programs. See 24 Tex. Reg. 7437, 7438-39 (1999).’ The various programs deal with different modes of contamination and different kinds of substances. Instead of

‘Only releases included on the National Priorities List are eligible for Superfond-financed Remedial Actions. Superfund financing of Removal Actions is not limited to sites listed on the National Priorities List. See 40 C.F.R. 5 300.425.

6With respect to each site, the designated lead agency is required to define potential federal and state cleanup standards and other criteria to be considered. See id. 5 300.430(b)(9). The lead agency is the agency that plans and implements the Remedial or Removal Action at a federal Superfond site, and may include a state acting pursuant to a contract or other agreement. See id. 5 300.5. This is to be distinguished from a state Superfind cleanup under the jwisdictionofstatelaw. See, ~~,TEx.HEALTH&SAFE~CODEANN. $§361.181-.188,361.272(Vemon2001 &Supp. 2004-05).

‘Your question assumes that the Site is subject to the TRRP rule as opposed to being grandfathered under the TRRP’s predecessor rule. See Request Letter, supra note 1,at 1. The Rule’s general applicability date is May 1,200O. See 30 TEX.ADMIN.CODE5 350.2 (2004). We do not question this assumption.

‘See also http://www.tceq.state.tx.us/navicec/cleanops.h~The Honorable Eddie Lucia Jr. - Page 4 (GA-0290)

having different cleanup standards for each respective program, the TRRP serves as acentral (and consistent) rule forthe cleanup process for all specified remediation programs. See 30 TEX. ADMIN. CODE 5350.2 (2004). The TRRP does not use the terms pollution or contaminant, but rather uses the term of art “chemicals of concern.” Id. 5350.2(a). A chemical of concern is

[a]ny chemical that has the potential to adversely affect ecological or human receptors due to its concentration, distribution, and mode of toxicity. Depending on the program area, chemicals ofconcern may include the following: solid waste, industrial solid waste, municipal solid waste, and hazardous waste as defined in the Texas Health and Safety Code

. Id. 9350.4(11).
The TRRP sets out afive-part process tobe followed once arelease ofchemicals ofconcern has been identified and reported under the respective state program. See id. 5 350.3. Generally, a party undertaking to clean up orremediate aproperty must (1) conduct aproperty assessment: (2) determine critical protective concentration levelsi ofchemicals of concern that can remain in oron thepropertyand stillbeprotective ofhuman and ecological health, see id. §$350.71-.79, (3)develop
aresponse action to attain objectives under one oftwo remedy standards,” (4) develop and submit required reports to TCEQ, and (5) implement the response action. See id. 5 350.3. Rule 350.76(c)(l) is a component of Step 2-the determination ofprotective concentration levels. See id. 5350.3(2). The protective concentration level is the cleanup standard. See id. 5350.71(a) (“If [protective concentration levels] areexceeded forcertain [chemicals ofconcern], then [after further evaluation and comparison]

. aresponse action must be initiated.“). Generally, Step 2 requires aperson involved in the cleanup of a release of chemicals of
concern to determine how much of the particular chemical of concern may remain in or on the property, and still protect human health and ecological health. See id. The TRRP establishes three tiers under which this calculation can be made. See id. $3 350.71, .75. Each successive tier calls for incrementally increased consideration of site-specific information and sophistication in the protective concentration level calculation process. See id. 5350,71(a). Aparty must use one ofthe

‘A property assessment identities chemicals of concern, locates human and ecological receptors, and characterizes the geological and hydrogeological features ofa site. Upon completion ofthe property assessment, there shouldbeaclearunderstandingofthechemicalsofconcempresent,theenviro~entalmediai~actedbyeachchemical of concern, and the nature of any exposure to human and ecological receptors posed by the chemicals of concern. See 30Tm. ADMIN.CODE$9 350.51-.55 (2004).

‘OTheprotective concentration level isthe “concentration ofachemical of concern which can remain within the
source mediumand not result in levels which exceed the applicable humanhealtb risk-based exposure limit or ecological protective concentration level at the point of exposure for that exposure pathway.” Id. 5350.4(68).

“The TRRF’ allows aperson to select between Remedy Standard A and Remedy Standard B. Under Remedy Standard A, the property must be cleaned upby removing or decontaminating the chemical ofconcern. See id. 5350.32. Remedy Standard Ballows for the elimination ofexposure to achemical ofconcern through the use ofcontrol measures. Controls can be physical, such as aparking lot placed over contaminated soils, or institutional, such as a deed notice which identifies the problem with the property. See id. 5350.33.The Honorable Eddie Lucia Jr. - Page 5 (GA-0290)

tiered approaches to calculate the protective concentration level, but is given some flexibility in selecting which tier to use. Any chemical of concern existing at a site above the protective concentration level must be the subject of a response action (Steps 3 & 5)-that is, cleaned up. See id.
There are afew chemicals of concern that TCEQ has segregated for special treatment “due to the unique nature ofthe toxicity and/or exposure, ”id. 5350.76(a), which chemicals are excluded from the three-tiered calculation approach. Instead, the TRRP mandates amore specific approach (anumeric level or formula) for these particular chemicals. See id. Lead isone ofthese segregated chemicalsofconcem,seeid. 3350,76(a)(l)(B), andTCEQ has aftirmativelyestablishedaprotective concentration level of 500 ppm for lead in residential soils in Texas. See id. 5 350.76(c)(l). Irrespective ofwhich tier is utilized with respect to arelease of chemicals of concern, the 500ppm protective concentration level isthe cleanup standard bywhich allresidential soil lead contamination in Texas is to be measured and remediated. See id.
With this background information, we now turn to address your questions
II. Authoritv of TCEO

Because they are closely related, we will answer your first two questions together. You specifically ask whether TCEQ has the authority to raise the lead cleanup level atthis Site from 500 ppm to 640 ppm. See Request Letter, supra note 1,at 1. You also inquire whether TCEQ can grant avariance such that itchanges the cleanup level atthis Site, while the level atother sites remains the
same. See id. We read your questions to ultimately inquire whether TCEQ may apply acleanup level tothe Site that isdifferent from the level established by the TRRP, without changing the TRRP. The nature ofyour questions assumes that Texas law will set the cleanup level for the Site, which,
as we discuss later in this opinion, may not be the case. However, in order to answer your initial questions, we address here the authority ofTCEQ acting under state law asthe environmental agency ofthe State ofTexas.

You do not question TCEQ’s authority to have adopted the TRRP. TCEQ is a creature of statute withno inherent authority. SeeSexton v.Mount Olivet Cemetery Ass ‘n,720 S.W.2d 129,137 (Tex. App.-Austin 1986, writ ref dn.r.e.). An agency may exercise only those powers granted itby statute together with those powers necessarily implied from its statutory authority. See City of Sherman V.

Pub. Util. Comm’n ofTex., 643 S.W.2d 681,686 (Tex. 1983); Tex. Att’y Gen. Qp. No. JM-903 (1988) at4. The TRRP was adopted under TCEQ’s authority pursuant to sections 5.103, 26.011,26.039,26.121,26.262,26.264,26.341,26.354, and 26.401 ofthe Texas Water Code, and sections 361.017 and 361.024 oftheHealth and Safety Code. See 24Tex. Reg. 7743 (1999). These sections provide TCEQ with authority to adopt anyrules necessary tocarry out itspowers, duties and policies to protect water quality and regulate solid waste. We will assume, asyou appear to in your request letter, that these statutes sufficiently authorized the TCEQ to initially adopt and implement the TRRP rule.
Once adopted, valid rules of administrative agencies have the same “force and effect of legislation.” Tex. Citrus Exch. v. Sharp, 955 S.W.2d 164, 169 (Tex. App.-Austin 1997, no pet.);The Honorable Eddie Lucia Jr. - Page 6 (GA-0290)

Nacogdoches Sav. &Loan Ass’n v.Lewis, 531 S.W.2d 428,430 (Tex. App.-Austin 1975), rev’don other grounds, 540 S.W.2d 313 (Tex. 1976). While an agency’s interpretation of its own rules is entitled to deference from the courts, see Pub. Util. Comm ‘nv. GulfStates Utils. Co., 809 S.W.2d 201,207 (Tex. 1991), an agency is, nonetheless, bound by its own rules. SeeNacogdoches SW. & Loan Ass iz, 531 S.W.2d at430 (CitingFoley v.Benedict, 55 S.W.2d 805,808 (Tex. 1932)); Flares Y.Employees Ret. Sys., 74 S.W.3d 532,542 (Tex. App.-Austin 2002, pet. denied). Moreover, the commission is directed by statute to follow its own rules. See TEX.WATERCODEANN. 55.103(c) (Vernon Supp. 2004-05); see also TEX.HEALTHANDSAFETYCODEANN. 5 361.024(e) (Vernon 2001). Where an agency fails to follow the clear, unambiguous language of its own regulation, its action is arbitrary and capricious. See 

### Gulf States Utils. Co., 809 S.W.2d at207.
Rule 350.76(c)(l) clearly and unambiguously establishes the protective concentration level, or cleanup standard, for lead in residential soils at 500 ppm.‘* See 30 TEX.ADMIN.CODE 5350.76(c)(l) (2004). Though the TRRP is flexible and allows for some site-specificity in state cleanup actions for many chemicals ofconcern, see id. 5350.2(a), itgives special treatment to lead. See id. 5350.76(a)(l)(B). Where the protective concentration level for most chemicals of concern can be established using one ofthe calculations ofone ofthe three tiers, see id. 5350.75, the TRRP affirmatively establishes the protective concentration level for lead in residential soils in all three tiers. See id. 5350.76(c)(l). Moreover, the TRRP does not contain any exceptions or allow for any variances from the residential lead protective concentration level. Accordingly, anyparty, including TCEQ, undertaking the cleanup of lead in residential soil in Texas pursuant to the TRRP must use the 500 ppm protective concentration level.

Because TCEQ isbound to itsrules, itmust apply the 500 ppm standard to all sites in Texas to which the TRRP applies. Applying a cleanup level of 640 ppm in violation of the 500 ppm standard set forth in Rule 350.76(c)(l) would be arbitrary and capricious. Such an arbitrary and capricious action on the part ofTCEQ would be subject tojudicial reversal. See TEX.GOV’T CODE ANN.~~~~~.~~~(~)(F)(V~~~~~~~~);TEX.HEALTH&SAFETYCODEANN. $3361,32l(e)(Vemon 2001) (“the issueiswhethertheactionisinvalid, arbitraryorunreasonable”), 361.322(g)-(h) (“action shall be upheld unless the court determines the remedy is arbitrary or unreasonable”); Gulf States Vtik Co., 809 S.W.2d at2lo- 11. Having created acleanup standard that applies toresidential soils
across the state, TCEQ isprecluded from applying that standard differently to different sites. See TEX.WATERCODEANN. $ 5.103(c) (Vernon Supp. 2004-05); see also TEX. HEALTH & SAFETY CODEANN. 5361.024(e) (Vernon 2001).
III. Procedurefor Charwine Cleanup Level

You next ask, “IfTCEQ has the authority to change these levels, what process or guidelines must the agency follow, if any?” Request Letter, supra note 1, at 1. As we have concluded, the TRRP does not permit TCEQ to apply acleanup level other than 500 ppm. TCEQ may authorize
adifferent cleanup level for the state only by amending the TRRP.

‘*Theprotecfive concentration level for lead in residential soils is treated more stringently than the protective concentration level for lead in commercial/industrial soil. The TRRF’ provides equations for the calculation of commercial/industrial

leadprotectiveconcentrationlevelsunder Tier 1orTier 2and Tier 3. See 30 TEX.ADMIN.CODE § 350.76(c)(2)-(3) (2004).The Honorable Eddie Lucia Jr. - Page 7 (GA-0290)

TCEQ adopted the TRRP pursuant toitsrulemaking authority under the Water Code and the Health and Safety Code, see supra p. 5, and it may amend the TRRP under the same authority. Because arule includes an amendment to aprior rule, see TEX. GOV’T CODE ANN. § 2001.029(a) (Vernon 2000), should TCEQ decide to amend the TRRP, itmust follow the rulemaking procedures ofthe Texas Administrative Procedure Act. SeeT~x. WATERCODE&. 55.103(c) (Vernon Supp. 2004-05) (“Rules shall be adopted in the manner provided by Chapter 2001, Government Code.“);

see also TEX. HEALTH &SAFETY CODE ANN.5361.024(e) (Vernon 2001). Ifany proposed change tothe TRRP meets the statutory definition ofa“major environmental rule,“13then aFinal Regulatory Analysis of the rule’s impact is also required. TEX. GOV’T CODE ANN. 5 2001.0225(d) (Vernon 2000).
IV. Effect ofEPA Cleanup, Level on State Rule

You do not ask about what cleanup standard isto be used at the Site. Instead, you ask if a federal agency raises the cleanup level at the Site, “would the state agency have to make [conforming] changes to their rules.“‘4 To fully address your question, amore detailed discussion of CERCLA, and its relationship to Rule 350.76(c)(l), isrequired.
A. CERCLA
CERCLA authorizes the President, orthe EPA as delegatee ofthe President, to:

remove or arrange forthe removal of, andprovide forremedial action relating to such hazardous substance, pollutant, orcontaminant atany time (including itsremoval from any contaminated natural resource),
or to take any other response measure consistent with the national contingency plan

. . to protect the public health or welfare or the environment.
42 U.S.C. 5 9604(a)(l). CERCLA contemplates two types of actions: Removal Actions and Remedial Actions. See supra note 4. Whether aresponse is a Removal Action or a Remedial Action, CERCLA does not affiatively establish aquantitative nationwide cleanup standard for particular hazardous substances and environmental media. Instead, CERCLA incorporates cleanup

““A ‘major environmental rule’ means arule the specific intent ofwhich istoprotect the environment orreduce risks tohuman health from environmental exposure and that may adversely affect in amaterial way the economy, asector ofthe economy, productivity, competition, jobs, the environment, 01thepublic health and safety ofthe state OIasector ofthe state.” Twc. GOV’T CODE ANN. 52001,0225(g)(3) (Vernon 2000).

14Request Letter,supranote 1,at 1. Congresshasthe authoritytoestablishfederalcleanup standards, andunder the federal Supremacy Doctrine, can impose those standards on the states. See U.S. CONST.,zut.VI, cl. 2. While ithas the authority to do so, ithas not done so. Instead, ithas chosen, through CERCLA, touse the standards dictated by other federal regulations and mope stringent state standards. See 42 U.S.C. 59621. We note further that Congress can use its powers of economic inducement to encourage the states to adopt state laws and regulations desired by the Congress. See West Virginia v. UnifedSfafes Dep’t ofHealth &Human Serw., 289 F.3d 281,286-87 (4th Cir. 2002) (“Congress may use its spending power to encourage the states to act.“). We do not read your question to inquire about these posslblhtles and so do not address them in this opinion.The Honorable Eddie Lucia Jr. - Page 8 (GA-0290)

standards from other federal sources and state sources through the concept of “applicable orrelevant and appropriate requirements,” orARARs. See 42 U.S.C. 59621(d)(2)(A) @emedial Actions); 40 C.F.R. $ 300.4156) (Removal Actions). A Removal Action, such as the one here, shall “to the extent practicable considering the exigencies of the situation, attain applicable or relevant and appropriate requirements under federal environmental orstate environmental orfacility siting laws.” 40 C.F.R. 5300.415(j). Ultimately, ifRule 350.76(c)(l) is an ARAR under CERCLA, then pursuant to 40 C.F.R. 5300.415cj), the EPA should be required to clean up the residential soils lead atthe Site under the state standard. See United States v.Akzo Coatings ofAm., Inc., 949 F.2d 1409,1439 (6th Cir. 1991). However, that determination is ultimately within thejurisdiction and discretion of EPA. See 42 U.S.C. 9 9604(a)(l) (“[T]he President is authorized to act to remove
. such hazardous substance, pollutant, or contaminant

. .“);see also 40 C.F.R. $3 300.4OO(g)(l)-(2), 300.415(a)(l) (lead agency to determine appropriate extent of action to be taken in response to arelease); United States v. Fort Lauderdale, 81 F. Supp. 2d 1348, 1352 n.5 (S.D. Fla. 1999) (“The EPA’s determination of whether these state standards are ARARs under federal law is entitled to some deference under Chevron, USA v. NRDC, 467 U.S. 837, 843-44 (1984).“). Furthermore, that determination is also dependent on the facts and circumstances of aparticular site. See Tex. Att’y Gen. Op. No. GA-0139 (2004) at 5 (the opinion process does not resolve questions of fact). Nonetheless, we offer the following analysis of issues that would bear upon EPA’s determination.
B. Applicable or Relevant and Appropriate Requirements (ARARs)

To constitute anARAR, astate standard must be (1)promulgated, (2)more stringent than federal standards, (3) legally applicable or relevant and appropriate, and (4) timely identified with respect to aparticular site. See 40 C.F.R. §300.400(g)(4); see also Akzo, 949 F.2d at 1440.
First, to be viewed as promulgated, Rule 350.76(c)(l) must be legally enforceable and generally applicable. Itwill be considered legally enforceable ifitisbased on specific enforcement provisions or the state’s general legal authority. See Akzo, 949 F.2d at 1440-43. It is generally applicable ifitapplies to more thanjust Superfund sites. See id. Rule 350,76(c)(l) was adopted by TCEQ under the authority ofthe state given to itby the legislature in the Texas Water Code and the Health and Safety Code to conserve the state’s natural resources and protect the environment. See supra p. 5. As such itis derived from the state’s general legal authority. Rule 350.76(c)(l) applies to state Superfimd sites, but also tocontaminated sites involving municipal solid waste, Brownfield initiatives, composting, spill prevention and control, and underground injection control. See 30 TEX. ADMIN.CODE 9 350.2 (2004). Accordingly, it is our opinion that under Texas law, Rule 350.76(c)(l) is both legally enforceable and generally applicable.
Second, tobedetermined tobe anARAR, Rule 350.76(c)( 1)must also bemore stringent than applicable federal standards. See Akzo, 949 F.2d at 1443-45. EPA must consider whether any federal act imposes any relevant cleanup standards for the Site. Any applicable federal cleanup standards would then be compared against the standard in Rule 350.76(c)(l), and EPA would determine whether the state standard of 500 ppm was more stringent.The Honorable Eddie Lucia Jr. - Page 9 (GA-0290)

Third, to constitute an ARAR arequirement must either be “applicable”” or “relevant and appropriate.“‘6 40 C.F.R. §300,400(g)(2); see also Franklin County Convention Facilities Auth. Y. Premier Underwriters, 240 F.3d 534,544 (6th Cir. 2001); Ohio v. UnitedStates Envtl. Prot. Agency, 997 F.2d 1520, 1526 (D.C. Cir. 1993). Applicable state requirements are those cleanup standards, controls, and other substantive environmental protection requirements, criteria, or limitations promulgated under state law that specifically address a hazardous substance, pollutant or contaminant, remedial action, location, or other circumstance at a Superfund site. See 40 C.F.R. 5 300.5. To be applicable, “a requirement must directly and fully address a CERCLA activity.” Akzo, 949 F.2d at 1445-46. We believe that Rule 350.76(c)(l) would be considered applicable to the Site under Texas law.” Pursuant to the state’s Solid Waste Disposal Act, TCEQ isresponsible for the management of lead as a solid waste. See TEX. HEALTH & SAFETY CODE ANN. 5 361.002 (Vernon 2001). “Solid waste” includes awide variety of discarded material, including hazardous substances for purposes of the state’s Superfund enforcement provisions. See id. 5361.003(35). “Hazardous substance” includes “an element, compound, mixture, solution, or substance designated under Section 102of[CERCLA].” Id. 5361,003(11)(A)(ii). Regulationspromulgatedunder section 102 of CERCLA (42 U.S.C. 49602) include lead as ahazardous substance. See 40 C.F.R. 5302.4. Irrespective ofits source, the lead in the residential soil atthe Site isasolid waste over which TCEQ has jurisdiction. If the Site is ultimately not remediated under CERCLA, TCEQ would have authority toremediate the site under the Health and Safety Code. See TEX. HEALTH &SAFETY CODE ANN.$5 361.181-.188,361.271-.273,361.341 (Vernon 2001 & Supp. 2004-05). Anyremediation action under Texas law would have to comply with the standard setby Rule 350.76(c)(l). See supra Part II. Fourth, apotentially more stringent state standard must be timely identified as applicable to aparticular site. See 40 C.F.R. $5 300.515(d) (state involvement in Remedial InvestigationiFeasibility Study process), 300,515(h)(2) (identification of ARARs and TBCs, or To Be Considered). The question ofwhether astate standard has been timely identified sothat itmaybe considered anARAR is for EPA to decide. As apractical matter with respect to the Site, we point out that the Texas standard setby Rule 350.76(c)(l) of 500ppm inresidential soils has likely already been identified.
C. ARARs Applicable to Removal Actions Although ARARs aredefined inthe same way forpurposes ofaRemoval Action and
a Remedial Action, ARARs are used differently under the two actions. A Removal Action is designed to deal with an emergency situation. It has a short time frame and amonetary ceiling, and is“tocontribute to the efficient performance ofalong-term remedial action, where practicable.” 42 U.S.C. 59604(a)(2); 53 Fed. Reg. 51394,51409 (1988). A Remedial Action, see supra note 4,

“Applicable requirements are those standards that arepromulgated under federal laws that specifically address
ahazardous circumstance ataCERCLA site, orrelevant state standards that are more stringent than federal requirements. See 40 C.F.R. 5 300.5.

‘6Relevant and appropriate requirements are those that are “well suited to aparticular site” but donot fall witbin the deftition of “applicable.” Id.

“‘Accordingly, we do not address whether Rule 350.76(c)(l) is “relevant and appropriate” under CERCLAThe Honorable Eddie Lucia Jr. - Page 10 (GA-0290)

isthe long-term cleanup action that involves the complete cleanup ofasite. See 53Fed. Reg. 51394, 51409 (1988). CERCLA requires that Remedial Actions attain ARARs but does not impose the
same requirement on Removal Actions. See 42 U.S.C. 5 9621. EPA, through its regulations, requires Removal Actions to identify and attain ARARs but only to the extent practicable. See 53 Fed. Reg. 51394, 51410 (1988). EPA offers three factors to guide adetermination that attainment of ARARs are practicable in a particular situation. Those factors are (1) the exigencies of the situation, (2) the scope of the removal action tobe taken, and (3) the effect ofARAR attainment on the statutory limits for duration and costs. See id. at 51411.
Under the first factor, urgent and time-critical conditions may constrain or preclude efforts toidentify and attain ARARs. See id. The federal regulations provide the example ofleaking drums that pose an immediate threat of tire or explosion that must be removed immediately, without consideration of any ARAR, to protect human health. See id. As an interim remedy, a Removal Action has a more limited scope than aRemedial Action. The second factor focuses narrowly on the “stabilization of arelease or threat of arelease and mitigation of near-term threats.” Id. Only ARARs that are within the narrow parameters ofthe Removal Action must be attained. The third factor takes into consideration the statutory time and monetary limitations on Removal Actions which may preclude the attainments of all ARARs in such an action. See id.
The fact that this Site isbeing evaluated forinclusion on the National Priorities List, see EPA Memo, supra note 2, at4, as apossible Remedial Action is also aconsideration. CERCLA requires that Removal Actions, to the extent practicable, contribute to the performance of any long-term Remedial Action. See 42 U.S.C. 59604(a)(2). By repeating this requirement in itsregulations, see 40 C.F.R. 3300.415(c), EPA intends to “avoid repetitive removal actions or actions that do not take into account their impact on performance of subsequent remedial actions, and to allow for more permanent tasks tobe completedunderremoval authorities.” 53Fed. Reg. 51394,51409-10 (1988). We cannot fully ascertain f?om your letter and material on EPA’s website what precise cleanup activities are planned for the Removal Action and for any subsequent Remedial Action. To the extent that Rule 350.76(c)(l) is an ARAR in any subsequent Remedial Action, its use as an ARAR in the current Removal Action would certainly contribute to the efficient performance of the Remedial Action. However, as we have stated before, this determination is ultimately within the province ofEPA.
D. Standard Applicable to the Site and Effect on State Law
Because the cleanup at the site isbeing conducted under CERCLA, the cleanup is governed by federal law.” Should the Site ultimately warrant aRemedial Action, CERCLA requires the cleanup of the Site to comply with all ARARs, or “applicable” or “relevant and appropriate” requirements. We believe the state’s Rule 350.76(c)(l) cleanup standard is “promulgated” and “legally applicable” as contemplated by CERCLA regulations. If it is more stringent than comparable federal requirements andhas been timely identified toEPA, then itshould be considered
an ARAR and apply to any Remedial Action.

“If the Site is not remediated under CERCLA, the Texas Health and Safety Code would direct the remediation efforts. S~~TEX.HEALTH&SAFE~CODEANN.§§ 361.181..188,361.271-.273,361.341 (Vernon2001 &Supp.2004- 05).The Honorable Eddie Lucia Jr. - Page 11 (GA-0290)

As the action at the Site is still aRemoval Action, Rule 350.76(c)(l), ifan ARAR, should bethe cleanup standard but only tothe extent practicable, considering the exigencies ofthe situation. While we believe the Rule is anARAR with respect to the final cleanup standard for the Site, itmay not apply to this Removal Action if EPA finds it is not practicable given the exigencies of the situation. However, if this action is intended to be the final cleanup of the Site, this statewide standard should apply. In any case, the determination ofwhether Rule 350.76(c)( 1)is an ARAR is ultimately within EPA’s discretion.

Yom question indicates that you are concerned about the effect of EPA cleanup standards at the Site on Rule 350.76(c)(l). See Request Letter, supro note 1, at 1. Jn the event EPA determines that Rule 350.76(c)(l) is not an ARAR, or otherwise decides on some other legal basis to allow ahigher lead level to remain atthe Site, such an application of federal law would not affect the validity or enforceability ofthe Rule under Texas law, but would merely control forpurposes of remediation at the Site under CERCLA. Thus, in answer to your specific question, “if a federal agency raises the concentration levels for remediation” atthe Site, TCEQ would not berequired to make conforming changes to the Rule.The Honorable Eddie Lucia Jr. - Page 12 (GA-0290)

SUMMARY
As an administrative agency, the Texas Commission on Environmental Quality (“TCEQ”) isbound by its own rules. Where
a validly adopted rule, here the Texas Risk Reduction Program (“TRRP”) rule, establishes the cleanup standard for remediation activity at all sites in the state, TCEQ’s application of a different standard to the ASARCO/El Paso Metals Site without changing the ~rulewould be arbitrary and capricious. TCEQ is authorized under its enabling legislation to amend the TRRP rule so long as itfollows the rulemaking procedures ofthe Texas Administrative Procedure Act.
As a Removal Action under the federal Comprehensive Environmental Response Compensation and Liability Act, or CERCLA, the current United States Environmental Protection Agency (“EPA”) cleanup at the Site is required to meet the lead cleanup standard in title 30 Texas Administrative Code section 350.76(c)(l) to the extent it is practicable to do so given the exigencies ofthe situation. IfEPA determines that the action will be
aRemedial Action, or final cleanup, then Rule 350.76(c)(l) sets the applicable cleanup standard. In either case, if EPA determines that Rule 350.76(c)(l) is not applicable to the Site as an applicable or relevant and appropriate requirement, or ARAR, that determination would not require achange in the TRRP rule. Very truly yours,

eneral of Texas

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Charlotte M. Harper Assistant Attorney General, Opinion Committee