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