By Gray H.B. No. 2537
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the development and use of land over a closed municipal
1-3 solid waste landfill unit; providing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 361, Health and Safety Code, is amended
1-6 by adding Subchapter R to read as follows:
1-7 SUBCHAPTER R. USE OF LAND OVER MUNICIPAL
1-8 SOLID WASTE LANDFILLS
1-9 Sec. 361.531. DEFINITIONS. In this subchapter:
1-10 (1) "Develop" or "development" means an activity on or
1-11 related to real property that is intended to lead to the
1-12 construction or alteration of an enclosed structure for the use or
1-13 occupation of people for a commercial or public purpose or to the
1-14 construction of residences for three or more families.
1-15 (2) "Municipal solid waste landfill unit" means a
1-16 discrete area of land or an excavation that receives municipal
1-17 solid waste or other solid wastes approved under this chapter and
1-18 that is not a land application unit, surface impoundment, injection
1-19 well, or waste pile as those terms are defined by 40 C.F.R. Section
1-20 257.2.
1-21 Sec. 361.532. PERMIT REQUIRED FOR DEVELOPMENT OF CERTAIN
1-22 LAND. (a) The owner or lessee of land located over any part of a
1-23 closed municipal solid waste landfill unit may not develop the land
1-24 unless the owner or lessee holds a permit for the development
2-1 issued under this subchapter.
2-2 (b) This subchapter does not apply to an activity associated
2-3 with solid waste disposal that is approved by the commission.
2-4 (c) The commission by rule shall establish standards to
2-5 assure that any development over any part of a closed municipal
2-6 landfill is conducted in a manner that will not increase or create
2-7 a potential threat to public health or the environment. The
2-8 standards, at a minimum, shall assure that soil test and plan
2-9 development methodologies, and all construction plans approved by a
2-10 county under this subchapter, are adequate to prevent the
2-11 development from increasing or creating a potential threat to
2-12 public health or the environment. The requirements shall assure
2-13 the protection of the integrity of the closed municipal landfill.
2-14 (d) Rules adopted under this section are minimum standards.
2-15 A county may impose more stringent conditions for the protection of
2-16 public health or the environment.
2-17 Sec. 361.533. APPLICATION FOR DEVELOPMENT PERMIT. (a) The
2-18 owner or lessee of land located over any part of a closed municipal
2-19 solid waste landfill unit may apply for a permit to develop the
2-20 land. The owner or lessee shall submit to the county in which the
2-21 development is to be located an application for a permit on forms
2-22 prescribed by the county not later than the 45th day before the
2-23 date on which development begins. The application must include a
2-24 registered professional engineer's verified certification that the
2-25 proposed development is necessary to reduce a potential threat to
2-26 public health or the environment or that the proposed development
2-27 will not increase or create a potential threat to public health or
3-1 the environment. The certification must indicate the registered
3-2 professional engineer's determination of whether the proposed
3-3 development will damage the integrity or function of any component
3-4 of the landfill's:
3-5 (1) final cover;
3-6 (2) containment systems;
3-7 (3) monitoring systems;
3-8 (4) liners; or
3-9 (5) gas collection systems.
3-10 (b) The engineer's certification required under Subsection
3-11 (a) must include documentation of all studies or data on which the
3-12 engineer relied.
3-13 (c) If the proposed development includes an enclosed
3-14 structure, the application must include plans for the structure
3-15 that meet the minimum standards established under
3-16 Section 361.536(d). The county shall review the plans to assure
3-17 the plans comply with the minimum standards.
3-18 (d) The county may not issue a permit under this subchapter
3-19 unless the county determines that the development, as proposed:
3-20 (1) would be constructed in a manner that will satisfy
3-21 criteria established by the commission in accordance with this
3-22 subchapter; and
3-23 (2) will not otherwise increase or create a threat to
3-24 public health or the environment.
3-25 Sec. 361.534. PERMIT HEARING. (a) The county shall set a
3-26 hearing to be held not later than the 30th day after the date that
3-27 the county receives an application under this subchapter.
4-1 (b) The county by mail shall notify the applicant of the
4-2 date, time, and place of the hearing not later than the 15th day
4-3 before the date of the hearing. The county shall publish notice of
4-4 the hearing in a newspaper that is generally circulated in the
4-5 county. The published notice must appear at least once a week for
4-6 two weeks before the date of the hearing.
4-7 Sec. 361.535. ISSUANCE OF PERMIT; PERMIT CONDITIONS. (a)
4-8 The county may issue a permit for the development of land over a
4-9 closed municipal solid waste landfill unit only if the county finds
4-10 that the proposed development will not increase or create a
4-11 potential threat to public health or the environment.
4-12 (b) The county shall impose conditions on a permit that are
4-13 designed to assure compliance with commission rules adopted under
4-14 this subchapter and to prevent a threat to public health or the
4-15 environment. Conditions may include:
4-16 (1) restrictions on building types, construction
4-17 methods, pilings, boring, or digging;
4-18 (2) requiring ventilation, emissions or water quality
4-19 monitoring devices, soil testing, warnings to subsequent owners or
4-20 lessees, maintenance of structures or landfill containment, or the
4-21 placement of additional soil layers or building pads; or
4-22 (3) any other conditions the county finds to be
4-23 reasonable and necessary to protect the public health or the
4-24 environment or to ensure compliance with rules or conditions
4-25 adopted or imposed under this subchapter.
4-26 Sec. 361.536. REQUIREMENTS FOR STRUCTURES ON CLOSED
4-27 MUNICIPAL SOLID WASTE LANDFILL UNIT. (a) The owner or lessee of
5-1 an existing or new structure that overlies a closed municipal solid
5-2 waste landfill unit shall install automatic methane gas sensors
5-3 approved by the commission and designed to trigger an audible alarm
5-4 if the volumetric concentration of methane in the sampled air is
5-5 greater than one percent. The commission shall make a list of
5-6 approved sensors available to the public.
5-7 (b) In the development of land that overlies a closed
5-8 municipal solid waste landfill unit, a person may not, unless
5-9 approved by the county and in accordance with commission rules:
5-10 (1) drive piling into or through the final cover or a
5-11 liner;
5-12 (2) bore through or otherwise penetrate the final
5-13 cover or a liner; or
5-14 (3) construct an enclosed area under the natural grade
5-15 of the land or under the grade of the final cover of the closed
5-16 landfill.
5-17 (c) The owner or lessee of a structure built over a closed
5-18 municipal solid waste landfill unit shall modify the structure as
5-19 is necessary to comply with commission rules for a new structure
5-20 that overlies a landfill to minimize the effects of, or to prevent,
5-21 gas accumulation. The commission shall adopt rules to allow the
5-22 owner or lessee of a structure a reasonable amount of time to make
5-23 required modifications.
5-24 (d) The commission by rule shall establish minimum standards
5-25 for plans for a new structure over a closed municipal solid waste
5-26 landfill unit to prevent or minimize the effects of harmful gas
5-27 accumulation. At a minimum, the commission shall require:
6-1 (1) ventilation or active gas collection systems;
6-2 (2) a low gas-permeable membrane and a vented,
6-3 permeable layer of an open-graded, clean aggregate material
6-4 installed between the area below the slab for the structure and the
6-5 soil of the final cover; and
6-6 (3) automatic methane gas sensors that will sound an
6-7 audible alarm if the sensor detects a methane gas volumetric
6-8 concentration of greater than one percent installed:
6-9 (A) within the venting pipe or permeable layer;
6-10 and
6-11 (B) inside the structure.
6-12 Sec. 361.537. LEASE RESTRICTION; NOTICE TO LESSEE. A person
6-13 may not lease or offer for lease land that overlies a closed
6-14 municipal solid waste landfill unit unless:
6-15 (1) existing development on the land is in compliance
6-16 with this subchapter; or
6-17 (2) the person gives notice to the prospective lessee
6-18 of what is required to bring the land and any development on the
6-19 land into compliance with this subchapter and the prohibitions or
6-20 requirements for future development imposed by this subchapter and
6-21 by any permit issued for the land under this subchapter.
6-22 Sec. 361.538. SOIL TEST REQUIRED BEFORE DEVELOPMENT OF
6-23 CERTAIN LAND. (a) A person may not undertake the development of a
6-24 tract of land that is greater than one acre in area unless the
6-25 person has conducted soil tests, in accordance with commission
6-26 rules, to determine whether any part of the development overlies a
6-27 closed municipal solid waste landfill unit.
7-1 (b) Tests under this section must be conducted by a
7-2 registered professional engineer.
7-3 (c) If an engineer who conducts a test under this section
7-4 determines that part of the tract overlies a closed municipal solid
7-5 waste landfill unit, the engineer shall notify the following
7-6 persons of the determination:
7-7 (1) each owner and each lessee of the tract;
7-8 (2) the commission; and
7-9 (3) any local governmental official with the authority
7-10 to disapprove an application for development.
7-11 (d) A local governmental official who receives a notice
7-12 under this section shall prepare a written notice stating the legal
7-13 description of the portion of the tract that overlies a closed
7-14 municipal solid waste landfill unit, the current owner of the
7-15 tract, notice of the tract's former use, and notice of the
7-16 restrictions on the development or lease of the land imposed by
7-17 this subchapter. The official shall file for record the notice in
7-18 the real property records in the county in which the tract is
7-19 located.
7-20 (e) Not later than the 30th day before the development
7-21 begins, the owner or lessee of land for which a test is done under
7-22 this section shall send the test results to:
7-23 (1) the executive director; and
7-24 (2) the county to be included in the application for
7-25 development filed under Section 361.533.
7-26 Sec. 361.539. NOTICE TO BUYERS, LESSEES, AND OCCUPANTS. (a)
7-27 An owner of land that overlies a closed municipal solid waste
8-1 landfill unit shall prepare a written notice stating the former use
8-2 of the unit, the legal description of the pertinent part of the
8-3 land, notice of the restrictions on the development or lease of the
8-4 land imposed by this subchapter, and the name of the owner. The
8-5 owner shall file for record the notice in the real property records
8-6 of the county in which the land is located.
8-7 (b) An owner of land that overlies a closed municipal solid
8-8 waste landfill unit shall notify each lessee and each occupant of a
8-9 structure that overlies the site of:
8-10 (1) the land's former use as a landfill; and
8-11 (2) the structural controls in place to minimize
8-12 potential future danger posed by the landfill.
8-13 Sec. 361.540. CIVIL PENALTY. (a) A person who violates
8-14 this subchapter is liable for a civil penalty not to exceed $10,000
8-15 for each violation and may be enjoined from using the property
8-16 until the property is modified to conform to the requirements of
8-17 this subchapter.
8-18 (b) The attorney general or the prosecuting attorney in a
8-19 county in which the closed municipal solid waste landfill unit is
8-20 located may bring suit for the injunction or to recover the penalty
8-21 imposed by Subsection (a).
8-22 (c) A penalty collected under this section shall be
8-23 deposited to the credit of the general revenue fund if the suit is
8-24 brought by the attorney general.
8-25 (d) A penalty collected under this section shall be
8-26 deposited to the credit of the general fund of the county if the
8-27 suit is brought by the county's prosecuting attorney.
9-1 Sec. 361.541. CRIMINAL PENALTY. A person commits an offense
9-2 if the person violates this subchapter or a condition adopted by a
9-3 county under Section 361.532(d) or 361.535(b). An offense under
9-4 this section is a Class A misdemeanor. Each day of a continuing
9-5 violation is a separate offense.
9-6 Sec. 361.542. PERMIT AND FILING FEES. A county
9-7 commissioners court may assess fees to recover the county's costs
9-8 under this subchapter. The fees shall be paid on the filing of an
9-9 application for a development permit under Section 361.532 and on
9-10 the filing with the county clerk of a notice of former use as a
9-11 municipal solid waste landfill.
9-12 Sec. 361.543. PREVAILING LAW. In the event of conflict,
9-13 conditions adopted by a county under Section 361.532(d) or
9-14 361.535(b) prevail over any ordinance or regulation adopted by a
9-15 municipality.
9-16 Sec. 361.544. IMMUNITY FROM SUIT. A county and its officers
9-17 and employees are immune from liability for damages for an act or
9-18 omission under this subchapter unless the act or omission was in
9-19 bad faith.
9-20 SECTION 2. Section 363.064, Health and Safety Code, as
9-21 amended by Chapters 238 and 303, Acts of the 72nd Legislature,
9-22 Regular Session, 1991, is amended to read as follows:
9-23 Sec. 363.064. Contents of Regional or Local Solid Waste
9-24 Management Plan. (a) A regional or local solid waste management
9-25 plan must:
9-26 (1) include a description and an assessment of current
9-27 efforts in the geographic area covered by the plan to minimize
10-1 production of municipal solid waste, including sludge, and efforts
10-2 to reuse or recycle waste;
10-3 (2) identify additional opportunities for waste
10-4 minimization and waste reuse or recycling;
10-5 (3) include a description and assessment of existing
10-6 or proposed community programs for the collection of household
10-7 hazardous waste;
10-8 (4) make recommendations for encouraging and achieving
10-9 a greater degree of waste minimization and waste reuse or recycling
10-10 in the geographic area covered by the plan;
10-11 (5) encourage cooperative efforts between local
10-12 governments in the siting of landfills for the disposal of solid
10-13 waste;
10-14 (6) consider the need to transport waste between
10-15 municipalities, from a municipality to an area in the jurisdiction
10-16 of a county, or between counties, particularly if a technically
10-17 suitable site for a landfill does not exist in a particular area;
10-18 <and>
10-19 (7) allow a local government to justify the need for a
10-20 landfill in its jurisdiction to dispose of the solid waste
10-21 generated in the jurisdiction of another local government that does
10-22 not have a technically suitable site for a landfill in its
10-23 jurisdiction;<.>
10-24 (8) <(7)> establish recycling rate goals appropriate
10-25 to the area covered by the plan; <and>
10-26 (9) <(8)> recommend composting programs for yard waste
10-27 and related organic wastes that may include:
11-1 (A) creation and use of community composting
11-2 centers;
11-3 (B) adoption of the "Don't Bag It" program for
11-4 lawn clippings developed by the Texas Agricultural Extension
11-5 Service; and
11-6 (C) development and promotion of education
11-7 programs on home composting, community composting, and the
11-8 separation of yard waste for use as mulch; and
11-9 (10) include an inventory of municipal solid waste
11-10 landfill units, including landfill units no longer in operation,
11-11 the location of such units, the current owners of the land on which
11-12 the former landfill units were located, and the current use of the
11-13 land.
11-14 (b) Each council of governments shall notify the owner of
11-15 land that overlies a former municipal solid waste unit within the
11-16 council of government's jurisdiction of the former use of the land
11-17 and shall notify the county clerk of the county or counties in
11-18 which the former landfill unit is located of the former use. The
11-19 county clerk shall record on the deed records of land formerly used
11-20 as a municipal sold waste landfill a description of the pertinent
11-21 part of the land, notice of its former use, and notice of the
11-22 restrictions on the development or lease of the land imposed by
11-23 this subchapter.
11-24 (c) The municipalities and counties within each council of
11-25 governments shall cooperate fully in compiling the inventory of
11-26 landfill units.
11-27 (d) Each council of governments shall provide a copy of the
12-1 inventory of municipal solid waste landfill units to the Texas
12-2 Natural Resource Conservation Commission.
12-3 (e) The Texas Natural Resource Conservation Commission may
12-4 grant money from fees collected under Section 361.013 to a
12-5 municipality or association of municipalities for the purpose of
12-6 conducting the inventory required by this section.
12-7 SECTION 3. This Act takes effect September 1, 1993.
12-8 SECTION 4. The importance of this legislation and the
12-9 crowded condition of the calendars in both houses create an
12-10 emergency and an imperative public necessity that the
12-11 constitutional rule requiring bills to be read on three several
12-12 days in each house be suspended, and this rule is hereby suspended.