73R9481 E
          By Gray                                               H.B. No. 2537
          Substitute the following for H.B. No. 2537:
          By Saunders                                       C.S.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 a civil penalty.
    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 tract overlies a closed
   6-27  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        SECTION 2.  Section 363.064, Health and Safety Code, as
   8-26  amended by Chapters 238 and 303, Acts of the 72nd Legislature,
   8-27  Regular Session, 1991, is amended to read as follows:
    9-1        Sec. 363.064.  Contents of Regional or Local Solid Waste
    9-2  Management Plan.  (a)  A regional or local solid waste management
    9-3  plan must:
    9-4              (1)  include a description and an assessment of current
    9-5  efforts in the geographic area covered by the plan to minimize
    9-6  production of municipal solid waste, including sludge, and efforts
    9-7  to reuse or recycle waste;
    9-8              (2)  identify additional opportunities for waste
    9-9  minimization and waste reuse or recycling;
   9-10              (3)  include a description and assessment of existing
   9-11  or proposed community programs for the collection of household
   9-12  hazardous waste;
   9-13              (4)  make recommendations for encouraging and achieving
   9-14  a greater degree of waste minimization and waste reuse or recycling
   9-15  in the geographic area covered by the plan;
   9-16              (5)  encourage cooperative efforts between local
   9-17  governments in the siting of landfills for the disposal of solid
   9-18  waste;
   9-19              (6)  consider the need to transport waste between
   9-20  municipalities, from a municipality to an area in the jurisdiction
   9-21  of a county, or between counties, particularly if a technically
   9-22  suitable site for a landfill does not exist in a particular area;
   9-23  <and>
   9-24              (7)  allow a local government to justify the need for a
   9-25  landfill in its jurisdiction to dispose of the solid waste
   9-26  generated in the jurisdiction of another local government that does
   9-27  not have a technically suitable site for a landfill in its
   10-1  jurisdiction;<.>
   10-2              (8) <(7)>  establish recycling rate goals appropriate
   10-3  to the area covered by the plan; <and>
   10-4              (9) <(8)>  recommend composting programs for yard waste
   10-5  and related organic wastes that may include:
   10-6                    (A)  creation and use of community composting
   10-7  centers;
   10-8                    (B)  adoption of the "Don't Bag It" program for
   10-9  lawn clippings developed by the Texas Agricultural Extension
  10-10  Service; and
  10-11                    (C)  development and promotion of education
  10-12  programs on home composting, community composting, and the
  10-13  separation of yard waste for use as mulch; and
  10-14              (10)  include an inventory of municipal solid waste
  10-15  landfill units, including landfill units no longer in operation,
  10-16  the location of such units, the current owners of the land on which
  10-17  the former landfill units were located, and the current use of the
  10-18  land.
  10-19        (b)  Each council of governments shall notify the owner of
  10-20  land that overlies a former municipal solid waste unit within the
  10-21  council of government's jurisdiction of the former use of the land
  10-22  and shall notify the county clerk of the county or counties in
  10-23  which the former landfill unit is located of the former use.  The
  10-24  county clerk shall record on the deed records of land formerly used
  10-25  as a municipal sold waste landfill a description of the pertinent
  10-26  part of the land, notice of its former use, and notice of the
  10-27  restrictions on the development or lease of the land imposed by
   11-1  this subchapter.
   11-2        (c)  The municipalities and counties within each council of
   11-3  governments shall cooperate fully in compiling the inventory of
   11-4  landfill units.
   11-5        (d)  Each council of governments shall provide a copy of the
   11-6  inventory of municipal solid waste landfill units to the Texas
   11-7  Natural Resource Conservation Commission.
   11-8        (e)  The Texas Natural Resource Conservation Commission may
   11-9  grant money from fees collected under Section 361.013 to a
  11-10  municipality or association of municipalities for the purpose of
  11-11  conducting the inventory required by this section.
  11-12        SECTION 3.  This Act takes effect September 1, 1993.
  11-13        SECTION 4.  The importance of this legislation and the
  11-14  crowded condition of the calendars in both houses create an
  11-15  emergency and an imperative public necessity that the
  11-16  constitutional rule requiring bills to be read on three several
  11-17  days in each house be suspended, and this rule is hereby suspended.