By Eckels H.B. No. 1384
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the waste tire recycling program; providing for civil
1-3 penalties and injunctive relief.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter P, Chapter 361, Health and Safety
1-6 Code, is amended to read as follows:
1-7 SUBCHAPTER P. WASTE TIRE RECYCLING PROGRAM
1-8 Sec. 361.471. Definitions. In this subchapter:
1-9 (1) "Commission" means the Texas Water Commission or
1-10 its successor agencies.
1-11 (2) "Fund" means the waste tire recycling fund.
1-12 (3) "Green tire" means the casing form of a tire that
1-13 has not been cured and/or does not have a tread or marking of any
1-14 kind.
1-15 (4) <(2)> "Mobile tire shredder" means equipment
1-16 mounted on wheels or skid-mounted and hauled from place to place to
1-17 split, shred, or quarter used or scrap tires.
1-18 (5) <(3)> "Scrap tire" has the meaning assigned by
1-19 Section 361.112.
1-20 (6) <(4)> "Waste tire facility" means a facility
1-21 registered <permitted> by the commission <department> under Section
1-22 361.112 at which scrap tires are collected or deposited and
1-23 shredded to facilitate the future extraction of useful materials
2-1 for recycling, reuse, or energy recovery.
2-2 (7) <(5)> "Waste tire processor" means:
2-3 (A) a waste tire facility; or
2-4 (B) a mobile tire shredder that splits, shreds,
2-5 or quarters tires and deposits the split, shredded, or quartered
2-6 tires for eventual recycling, reuse, or energy recovery at:
2-7 (i) a waste tire storage facility
2-8 registered by the commission <department> under Section 361.112; or
2-9 (ii) a waste tire facility.
2-10 (8) <(6)> "Waste tire transporter" means a person who
2-11 collects and transports used or scrap tires or scrap tire pieces
2-12 for storage or disposal.
2-13 (9) <(7)> "Weighed tire" means a unit of weight for
2-14 shredded scrap tires that is equal to 18.7 pounds.
2-15 Sec. 361.4711. POTENTIALLY RESPONSIBLE PARTY. For purposes
2-16 of this subchapter, the commission shall employ the following three
2-17 criteria to determine whether a person is a potentially responsible
2-18 party:
2-19 (1) the person must be the property owner of record,
2-20 the site operator, or the depositor of the scrap tires on the site;
2-21 (2) the person must have benefitted financially from
2-22 the disposition of the scrap tires on the site; and
2-23 (3) the person must be financially capable of funding
2-24 total or partial site cleanup based on the actual costs of cleanup
2-25 as determined by the commission.
3-1 Sec. 361.472. Waste Tire Recycling Fees. (a)(1) A
3-2 wholesale or retail tire dealer who sells or offers to sell new
3-3 tires not for resale shall collect at the time and place of sale a
3-4 waste tire recycling fee <of $2> for each new <automobile, van,
3-5 bus, truck, trailer, semitrailer, truck tractor and semitrailer
3-6 combination, or recreational vehicle> tire sold as follows:
3-7 (A) $2 for each tire with <that has> a rim
3-8 diameter equal to or greater than 12 inches but less than 19.5 <26>
3-9 inches; and
3-10 (B) $5 for each tire with a rim diameter equal
3-11 to or greater than 19.5 inches but less than 25 inches, for each
3-12 truck tire with a rim diameter of 17 inches, and for any other
3-13 truck tires as identified by the commission.
3-14 (2) The sale of a tire as original equipment in the
3-15 manufacture of new vehicles is a sale for resale.
3-16 (b) <A dealer required to collect a fee under this section
3-17 may retain 2-1/2 cents from each fee the dealer collects. A
3-18 dealer shall account for amounts retained under this subsection in
3-19 the manner prescribed by the comptroller.>
3-20 <(c)> A dealer required to collect a fee under this section:
3-21 (1) shall list as a separate item on an invoice a fee
3-22 due under this section; and
3-23 (2) except as provided by Subsection (c) <(d)>, on or
3-24 before the 20th day of the month following the end of each calendar
3-25 month and on a form and in the manner prescribed by the
4-1 comptroller, shall file a report with and shall remit to the
4-2 comptroller the amount of fees collected during the preceding
4-3 calendar month.
4-4 (c) <(d)> A person required to collect a fee under this
4-5 section who collects less than $50 for a calendar month or less
4-6 than $150 for a calendar quarter is not required to file a monthly
4-7 report but shall file a quarterly report with and make a quarterly
4-8 remittance to the comptroller. The quarterly report and remittance
4-9 shall include fees collected during the preceding calendar quarter.
4-10 The report and remittance are due not later than the 20th day of
4-11 the month following the end of the calendar quarter.
4-12 (d) A person seeking registration for a fixed or mobile
4-13 processing facility or for a storage facility shall pay a fee of
4-14 $500 for each new, renewed, or amended registration application.
4-15 (e) An invoice or other record required by this section or
4-16 rules of the comptroller must be maintained for at least four years
4-17 after the date on which the invoice or record is prepared and be
4-18 open for inspection by the comptroller at all reasonable times.
4-19 (f) The comptroller shall adopt rules necessary for the
4-20 administration, collection, reporting, and payment of the fees
4-21 payable or collected under this section.
4-22 (g) A waste tire recycling fee is imposed on the storage,
4-23 use, or other consumption in this state of a new tire at the same
4-24 rate as provided by Subsection (a), except when purchased for the
4-25 purpose of resale.
5-1 (h) A person storing, using, or consuming a new tire in this
5-2 state is liable for the waste tire recycling fee as defined in this
5-3 section and is responsible for reporting and paying the fee to the
5-4 comptroller in the same manner as a person required to collect this
5-5 fee, as provided in Subsections (b)(2) and (c).
5-6 (i) A person storing, using, or consuming a new tire in this
5-7 state is not further liable for the waste tire recycling fee
5-8 imposed by Subsection (a) if the person pays the fee to a
5-9 wholesaler or retailer engaged in business in this state or another
5-10 person authorized by the comptroller to collect the fee and
5-11 receives from the wholesaler, retailer, or other person a
5-12 purchaser's receipt.
5-13 Sec. 361.473. Enforcement; Penalties. (a) A person who
5-14 does not file a report as provided by Section 361.472 or who
5-15 possesses a fee collected or payable under that section and who
5-16 does not remit the fee to the comptroller at the time and in the
5-17 manner required by that section and rules of the comptroller shall
5-18 pay a penalty of five percent of the amount of the fee due and
5-19 payable. If the person does not file the report or pay the fee
5-20 before the 30th day after the date on which the fee or report is
5-21 due, the person shall pay a penalty of an additional five percent
5-22 of the amount of the fee due and payable.
5-23 (b) Chapters 101 and 111 through 113, Tax Code, and Sections
5-24 153.006 and 153.007, Tax Code, apply to the administration,
5-25 payment, collection, and enforcement of fees under this section in
6-1 the same manner that those chapters and sections apply to the
6-2 administration, payment, collection, and enforcement of taxes under
6-3 Title 2, Tax Code.
6-4 (c) The comptroller may add a penalty of 75 percent of the
6-5 amount of the fee, penalty, and interest due if failure to file the
6-6 report or pay the fee when it comes due is attributable to fraud or
6-7 an intent to evade the application of this section or a rule made
6-8 under this section or Chapter 111, Tax Code.
6-9 Sec. 361.474. Disposition of Fees and Penalties. Fees and
6-10 penalties collected under this subchapter shall be deposited in the
6-11 state treasury to the credit of the waste tire recycling fund.
6-12 Sec. 361.475. Waste Tire Recycling Fund. (a) The waste
6-13 tire recycling fund is a special account in the general revenue
6-14 fund.
6-15 (b) The commission <department> shall administer the fund.
6-16 (c) The fund consists of fees and penalties collected under
6-17 this subchapter, interest on money in the fund, and money from
6-18 gifts, grants, or any other source intended to be used for the
6-19 purposes of this subchapter.
6-20 (d) The fund may be used only to pay:
6-21 (1) waste tire processors that meet the requirements
6-22 for payment under Section 361.477 and rules adopted under that
6-23 section;
6-24 (2) the commission's <department's> reasonable and
6-25 necessary administrative costs of performing its duties under this
7-1 subchapter in an amount not to exceed six percent of the money
7-2 annually accruing to the fund; however, the registration fees
7-3 received under Section 361.472(d) shall be allocated to the
7-4 commission for its reasonable and necessary costs associated with
7-5 reviewing and issuing fixed and mobile processing applications and
7-6 storage site applications; and
7-7 (3) the comptroller's reasonable and necessary
7-8 administrative costs of performing the comptroller's duties under
7-9 this subchapter in an amount not to exceed two percent of the money
7-10 annually accruing to the fund.
7-11 (e) The fund may not be used to reimburse shredding of:
7-12 (1) innertubes;
7-13 (2) scrap rubber products;
7-14 (3) green tires;
7-15 (4) industrial solid waste, excluding waste tires; or
7-16 (5) oversized tires, as defined by commission rule.
7-17 (f) The commission may classify special authorization tires,
7-18 as defined by commission rule, as priority enforcement list tires.
7-19 (g) The fund shall maintain a balance of not less than
7-20 $500,000.
7-21 (h) If the commission has reason to believe that the fund
7-22 balance will fall below $500,000, the commission may:
7-23 (1) suspend the requirement to reimburse priority
7-24 enforcement list tires shredded in excess of the minimum percentage
7-25 identified in Section 361.477(b)(2)(B); or
8-1 (2) limit the number of waste tires for which a
8-2 processor will be reimbursed.
8-3 Sec. 361.476. Priority Enforcement List. The commission
8-4 <department> shall identify scrap <unauthorized> tire dumps that
8-5 present an existing or potential threat to public health and safety
8-6 or to the environment and shall prepare an enforcement list of
8-7 those dumps, giving priority to dumps for which a responsible party
8-8 cannot be located.
8-9 Sec. 361.477. Payments to Waste Tire Processors. (a) The
8-10 commission <department> each month shall pay a waste tire processor
8-11 that shreds scrap tires and meets the requirements of this section
8-12 and rules adopted under this section an amount equal to 85 cents
8-13 for each weighed tire shredded by the processor during the
8-14 preceding calendar month.
8-15 (b) A waste tire processor that desires to receive payment
8-16 under this section for tires shredded by the processor during a
8-17 calendar month must:
8-18 (1) apply to the commission <department> in accordance
8-19 with forms prescribed by the commission <department>;
8-20 (2) demonstrate as required by rules adopted under
8-21 this section that:
8-22 (A) all tires for which payment is sought have
8-23 been shredded to a particle size not larger than nine square
8-24 inches; and
8-25 (B) not less than 15 <25> percent and not more
9-1 than 30 percent of those tires were collected from scrap tire sites
9-2 <dumps> listed on the commission's <department's> priority
9-3 enforcement list;
9-4 (3) on and after January 1, 1995, demonstrate to the
9-5 commission that shredded scrap tire pieces for which reimbursement
9-6 is sought were delivered to a person that either recycles or reuses
9-7 the shredded scrap tires or utilizes the shredded scrap tires for
9-8 energy recovery;
9-9 (4) provide any other information the commission
9-10 <department> determines is needed to accomplish the purposes of
9-11 this subchapter; <and>
9-12 (5) <(4)> demonstrate that energy recovery activities
9-13 are in compliance with applicable air emission control rules and
9-14 standards as adopted by the Texas Air Control Board; and
9-15 (6) provide financial assurance deemed adequate by the
9-16 commission, which assurance shall correspond to the payment
9-17 appropriate for the number of scrap tires the processor anticipates
9-18 shredding or the waste tire storage site owner or operator
9-19 anticipates accepting for storage in the next calendar month.
9-20 (c) A waste tire processor that in any month exceeds the <25
9-21 percent> minimum requirement of Subsection (b)(2) shall receive a
9-22 credit for the amount in excess of the requirement <25 percent>
9-23 that may be used to meet the minimum requirement during a later
9-24 month. The commission <board of health> by rule may prescribe the
9-25 method of applying credits accrued under this subsection.
10-1 (d) The commission <board of health> by rule shall adopt
10-2 application and payment procedures and requirements to implement
10-3 this section.
10-4 (e) A waste tire processor shall not be authorized to
10-5 process or store scrap tires at those sites at which the processor
10-6 is processing or storing or intends to process or store the scrap
10-7 tires until the commission has determined that the processor is in
10-8 compliance with all applicable requirements. <A permitted Type
10-9 VIII tire monofill approved under board of health rules may qualify
10-10 as a waste tire processor and is eligible to receive payment under
10-11 this section if the Type VIII tire monofill complies with all the
10-12 provisions of this subchapter and rules of the board of health.>
10-13 Sec. 361.478. Evaluation of Recycling and Energy Recovery
10-14 Activities; Certification for Payment. (a) Beginning January
10-15 <June> 1, 1995, and every two <five> years after that date, the
10-16 commission <department> shall evaluate according to standards
10-17 adopted by commission <board of health> rule, the recycling and
10-18 energy recovery activities of each waste tire processor that
10-19 received payment from the waste tire recycling fund <under Section
10-20 361.477 during the preceding five years>.
10-21 (b) After evaluation, the commission <department> shall
10-22 certify as eligible for payment under this subchapter <Section
10-23 361.477> during the next two <five> years a waste tire processor
10-24 that has conducted or provided for recycling of or energy recovery
10-25 from tires for which the processor received payment during the
11-1 preceding period of operation <five years>.
11-2 (c) A waste tire processor that receives payment under this
11-3 subchapter <Section 361.477> during any two-year <five-year> period
11-4 and that after evaluation is not certified by the commission
11-5 <department> under Subsection (b) as eligible for payment under
11-6 this subchapter <Section 361.477> may not receive payment under
11-7 this subchapter <that section> for the next two <five> years.
11-8 (d) The commission <board of health> by rule may establish a
11-9 procedure by which a waste tire processor can reestablish
11-10 eligibility for payment under this subchapter <Section 361.477>.
11-11 Sec. 361.479. Evidence of Financial Responsibility. (a) A
11-12 waste tire storage facility registered by the commission
11-13 <department> under Section 361.112 or a waste tire facility that
11-14 accepts shredded scrap tires for storage or for processing for
11-15 recycling, reuse, or energy recovery shall submit to the commission
11-16 <department> evidence of financial responsibility in an amount
11-17 adequate to assure proper cleanup and <or> closure of the facility.
11-18 (b) A facility subject to Subsection (a) shall submit to the
11-19 commission <department> an estimate of the total amount of shredded
11-20 scrap tires or scrap tire pieces measured by weighed tire that the
11-21 facility will store or process and the estimated cost, using that
11-22 total amount, of cleaning up and <or> closing the facility.
11-23 (c) The commission <department> shall evaluate and may amend
11-24 an estimate submitted under Subsection (b) and <by order> shall
11-25 determine for each facility the amount for which evidence of
12-1 financial responsibility is required.
12-2 (d) Evidence of financial responsibility may be in the form
12-3 of a performance bond or<,> a letter of credit from a recognized
12-4 financial institution<, a trust fund, or insurance> for a privately
12-5 owned facility, or a resolution by the commissioners court or the
12-6 city council, as appropriate, for a publicly owned facility. On or
12-7 after September 1, 1993, persons requesting new processing
12-8 registration shall not be allowed to provide evidence of financial
12-9 responsibility through a trust agreement or insurance.
12-10 Sec. 361.480. Tire Collection Fee Prohibited. A waste tire
12-11 transporter or mobile tire shredder may not charge a fee to a
12-12 wholesale or retail dealer for collecting for delivery to a waste
12-13 tire facility or for collecting and shredding <used or> scrap tires
12-14 accepted for temporary storage by the dealer from purchasers of new
12-15 tires.
12-16 Sec. 361.481. Prohibition on Out-of-State Tires. A waste
12-17 tire processor may not claim payment under Section 361.477 for
12-18 shredding out-of-state tires.
12-19 Sec. 361.482. Prohibition on Disposal of Shredded Tires in
12-20 Landfill. A waste tire processor may not dispose of shredded scrap
12-21 tires in a landfill if the processor has received payment under
12-22 Section 361.477 for the tires.
12-23 Sec. 361.483. Civil Penalty. (a) A person who violates any
12-24 section of this subchapter <Section 361.481 or 361.482> is liable
12-25 for an administrative <a civil> penalty of up to $10,000 and
13-1 corrective action for each violation and is liable for a civil
13-2 penalty of up to $25,000 and corrective action for each violation.
13-3 (b) The attorney general or the prosecuting attorney in the
13-4 county in which the alleged violation occurs may bring suit to
13-5 recover the civil penalty imposed under Subsection (a).
13-6 (c) The commission may bring suit to mandate the corrective
13-7 action required or recover administrative penalties imposed under
13-8 Subsection (a).
13-9 (d) An administrative or civil <A> penalty collected under
13-10 this section shall be deposited to the credit of the waste tire
13-11 recycling fund.
13-12 Sec. 361.484. Rules. The commission <board of health> may
13-13 adopt rules reasonably necessary to implement this subchapter.
13-14 Sec. 361.485. Report. Not later than February 1 of each
13-15 odd-numbered year, the commission <department> shall report to the
13-16 governor and the legislature on the administration of the program
13-17 established under this subchapter and its effectiveness in cleaning
13-18 up existing scrap tire dumps and in preventing new scrap tire
13-19 dumps.
13-20 Sec. 361.486. RECYCLING EFFORTS. (a) On and after
13-21 January 1, 1995, all new, amended, and renewal processing
13-22 registrations shall require the processor to identify those persons
13-23 that, by contract, will accept the processor's shredded scrap tire
13-24 pieces either to recycle or reuse the shredded scrap tires or to
13-25 utilize the shredded scrap tires for energy recovery. The
14-1 commission shall reimburse for only those shredded tires which the
14-2 commission determines are committed to a legitimate end user.
14-3 (b) The commission shall have the authority to review and
14-4 approve or disapprove the use of the person identified by the
14-5 processor to recycle or reuse the shredded scrap tires or utilize
14-6 the shredded scrap tires for energy recovery.
14-7 (c) The commission shall adopt a rule to define recycling
14-8 for purposes of this subchapter.
14-9 (d) On January 1, 1994, and on a semiannual basis
14-10 thereafter, registered processors and storage site owners and
14-11 operators shall report their recycling, reuse, and energy recovery
14-12 activities to the commission. The commission by rule shall
14-13 prescribe the form and other requirements of the report.
14-14 Sec. 361.487. REIMBURSEMENT RESTRICTIONS. (a) A processor
14-15 seeking reimbursement under Section 361.477 shall process and store
14-16 the scrap tires or scrap tire pieces within the state.
14-17 (b) Scrap tires and scrap tire pieces generated in Texas,
14-18 removed from Texas, and subsequently reintroduced to Texas shall be
14-19 defined as out-of-state scrap tires for the purposes of this
14-20 subchapter.
14-21 (c) Scrap tires and scrap tire pieces which were shredded
14-22 and reimbursed shall not be disposed of in a Type VIII-S tire
14-23 monofill.
14-24 Sec. 361.488. GENERATOR CHARGE PROHIBITED. A scrap tire
14-25 generator shall not receive remuneration in exchange for scrap
15-1 tires.
15-2 Sec. 361.489. IMMEDIATE REMOVAL AND REMEDIAL ACTION BY THE
15-3 COMMISSION. (a) If after investigation the commission finds that
15-4 there exists a situation caused by the illegal dumping of scrap
15-5 tires that is causing or may cause imminent and substantial
15-6 endangerment to the public health and safety or the environment and
15-7 that the immediacy of the situation makes it prejudicial to the
15-8 public interest to delay action until an administrative order can
15-9 be issued to potentially responsible parties or until a judgment
15-10 can be entered in an appeal of an administrative order, the
15-11 commission may, with the funds available to the commission from the
15-12 waste tire recycling fund, undertake immediate remediation of the
15-13 site.
15-14 (b) If a person ordered to eliminate an imminent and
15-15 substantial danger to the public health and safety or the
15-16 environment has failed to do so within the time limits specified in
15-17 the order or any extension of time approved by the commission, the
15-18 commission may implement a remedial program for the site.
15-19 (c) The commission may recover against all responsible
15-20 parties reasonable expenses for undertaking immediate removal under
15-21 Subsection (a) or for implementing a remedial action order under
15-22 Subsection (b).
15-23 (d) The commission shall file the cost recovery action no
15-24 later than one year after immediate-removal or remedial-action
15-25 measures are completed.
16-1 (e) Money collected in a cost recovery action shall be
16-2 deposited to the credit of the waste tire recycling fund.
16-3 (f) The commission, in lieu of recovery costs incurred under
16-4 this section, may file a lien against the property on which the
16-5 site is located.
16-6 Sec. 361.490. PRIORITY ENFORCEMENT LIST SITE ACCESS.
16-7 (a) The members of the commission, employees and agents of the
16-8 commission, and authorized processors and their subcontractors are
16-9 entitled to enter any public or private property at any reasonable
16-10 time for the purpose of inspecting, investigating, or remediating
16-11 any conditions relating to illegal scrap-tire dumping. Notice of
16-12 intent to enter private property for such purposes shall be given
16-13 by the executive director by certified mail to the last known
16-14 address indicated in the current county property records at least
16-15 10 days before commission members, commission employees and agents,
16-16 or authorized processors and their subcontractors may enter the
16-17 property. Commission members, commission employees and agents, and
16-18 authorized processors and their subcontractors who, acting under
16-19 this authority, enter private property shall observe the
16-20 establishment's rules concerning safety, internal security, and
16-21 fire protection and, if the property has management in residence,
16-22 shall make a reasonable attempt to notify the management or the
16-23 person in charge of their presence and shall exhibit credentials.
16-24 (b) Authorized processors and their subcontractors shall not
16-25 be considered agents of the State of Texas and are solely
17-1 responsible for their actions.
17-2 (c) Whenever it appears that a person has violated or is
17-3 violating or is threatening to violate any provision of this
17-4 subchapter or any rule, permit, or order of the commission, the
17-5 executive director may have a civil suit instituted in district
17-6 court for injunctive relief to restrain the person from continuing
17-7 the violation or threat of violation.
17-8 Sec. 361.491. NEW TIRE WHOLESALERS AND RETAILERS. Any
17-9 person selling new tires as described in Section 361.472(a) shall
17-10 accept from customers, without charge, used scrap tires of the type
17-11 and in a quantity at least equal to the number of new tires
17-12 purchased, if offered by customers.
17-13 SECTION 2. The importance of this legislation and the
17-14 crowded condition of the calendars in both houses create an
17-15 emergency and an imperative public necessity that the
17-16 constitutional rule requiring bills to be read on three several
17-17 days in each house be suspended, and this rule is hereby suspended,
17-18 and that this Act take effect and be in force from and after its
17-19 passage, and it is so enacted.