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.