1-1 By: Gray (Senate Sponsor - Barrientos) H.B. No. 2537
1-2 (In the Senate - Received from the House May 12, 1993;
1-3 May 13, 1993, read first time and referred to Committee on Natural
1-4 Resources; May 21, 1993, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 9, Nays 0;
1-6 May 21, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Sims x
1-10 Truan x
1-11 Armbrister x
1-12 Barrientos x
1-13 Bivins x
1-14 Brown x
1-15 Carriker x
1-16 Lucio x
1-17 Montford x
1-18 Ratliff x
1-19 Shelley x
1-20 COMMITTEE SUBSTITUTE FOR H.B. No. 2537 By: Barrientos
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to the development and use of land over a closed municipal
1-24 solid waste landfill unit; providing civil and criminal penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Chapter 361, Health and Safety Code, is amended
1-27 by adding Subchapter R to read as follows:
1-28 SUBCHAPTER R. USE OF LAND OVER MUNICIPAL
1-29 SOLID WASTE LANDFILLS
1-30 Sec. 361.531. DEFINITIONS. In this subchapter:
1-31 (1) "Develop" or "development" means an activity on or
1-32 related to real property that is intended to lead to the
1-33 construction or alteration of an enclosed structure for the use or
1-34 occupation of people for a commercial or public purpose or to the
1-35 construction of residences for three or more families.
1-36 (2) "Municipal solid waste landfill unit" means a
1-37 discrete area of land or an excavation that receives municipal
1-38 solid waste or other solid wastes approved under this chapter and
1-39 that is not a land application unit, surface impoundment, injection
1-40 well, or waste pile as those terms are defined by 40 C.F.R. Section
1-41 257.2.
1-42 Sec. 361.532. PERMIT REQUIRED FOR DEVELOPMENT OF CERTAIN
1-43 LAND. (a) The owner or lessee of land located over any part of a
1-44 closed municipal solid waste landfill unit may not develop the land
1-45 unless the owner or lessee holds a permit for the development
1-46 issued under this subchapter.
1-47 (b) This subchapter does not apply to an activity associated
1-48 with solid waste disposal that is approved by the commission.
1-49 (c) The Texas Natural Resource Conservation Commission shall
1-50 charge any applicant for a permit under this subchapter the actual
1-51 cost of reviewing any application prior to the issuance of a
1-52 permit.
1-53 Sec. 361.533. APPLICATION FOR DEVELOPMENT PERMIT. (a) The
1-54 owner or lessee of land located over any part of a closed municipal
1-55 solid waste landfill facility may apply for a permit to develop the
1-56 land. The owner or lessee shall submit to the executive director
1-57 an application for a permit on forms prescribed by the commission
1-58 not later than 45 days before the development begins. The
1-59 application must include a registered professional engineer's
1-60 verified certification that the proposed development is necessary
1-61 to reduce a potential threat to public health or the environment or
1-62 that the proposed development will not increase or create a
1-63 potential threat to public health or the environment. The
1-64 certification must indicate the registered professional engineer's
1-65 determination of whether the proposed development will damage the
1-66 integrity or function of any component of the landfill's:
1-67 (1) final cover;
1-68 (2) containment systems;
2-1 (3) monitoring systems; or
2-2 (4) liners.
2-3 (b) The engineer's certification required under Subsection
2-4 (a) must include documentation of all studies or data on which the
2-5 engineer relied.
2-6 Sec. 361.534. PERMIT HEARING. (a) The commission shall set
2-7 a hearing to be held not later than the 30th day after the date
2-8 that the commission receives an application under this subchapter.
2-9 (b) The commission by mail shall notify the applicant of the
2-10 date, time, and place of the hearing not later than the 15th day
2-11 before the date of the hearing. The commission shall publish
2-12 notice of the hearing in a newspaper that is generally circulated
2-13 in each county in which the property proposed for development is
2-14 located. The published notice must appear at least once a week for
2-15 the two weeks before the date of the hearing.
2-16 Sec. 361.535. ISSUANCE OF PERMIT; PERMIT CONDITIONS.
2-17 (a) The commission may issue a permit for the development of land
2-18 over a closed municipal solid waste landfill facility only if the
2-19 commission finds that the proposed development will not increase or
2-20 create a potential threat to public health or the environment.
2-21 (b) The commission may impose conditions on a permit that
2-22 are designed to prevent a threat to public health or the
2-23 environment. Conditions may include:
2-24 (1) restrictions on building types, construction
2-25 methods, pilings, boring, or digging;
2-26 (2) requiring ventilation, emissions or water quality
2-27 monitoring devices, soil testing, warnings to subsequent owners or
2-28 lessees, maintenance of structures or landfill containment, or the
2-29 placement of additional soil layers or building pads; or
2-30 (3) any other conditions the commission finds to be
2-31 reasonable and necessary to protect the public health or the
2-32 environment or to ensure compliance with rules or conditions
2-33 adopted or imposed under this subchapter.
2-34 Sec. 361.536. REQUIREMENTS FOR STRUCTURES ON CLOSED
2-35 MUNICIPAL SOLID WASTE LANDFILL FACILITY. (a) The owner or lessee
2-36 of an existing or new structure that overlies a closed municipal
2-37 solid waste landfill facility shall install automatic methane gas
2-38 sensors approved by the commission and designed to trigger an
2-39 audible alarm if the volumetric concentration of methane in the
2-40 sampled air is greater than one percent.
2-41 (b) In the development of land that overlies a closed
2-42 municipal solid waste landfill facility, a person may not, unless
2-43 approved by the commission:
2-44 (1) drive piling into or through the final cover or a
2-45 liner;
2-46 (2) bore through or otherwise penetrate the final
2-47 cover or a liner; or
2-48 (3) construct an enclosed area under the natural grade
2-49 of the land or under the grade of the final cover of the closed
2-50 landfill.
2-51 (c) The owner or lessee of a structure built over a closed
2-52 municipal solid waste landfill facility shall modify the structure
2-53 as is necessary to comply with commission rules for a new structure
2-54 that overlies a landfill to minimize the effects of, or to prevent,
2-55 gas accumulation. The commission shall adopt rules to allow the
2-56 owner or lessee of a structure a reasonable amount of time to make
2-57 required modifications.
2-58 (d) The commission by rule shall require plans for a new
2-59 structure over a closed municipal solid waste landfill facility to
2-60 prevent or minimize the effects of harmful gas accumulation. At a
2-61 minimum, the commission shall require:
2-62 (1) ventilation or active gas collection systems;
2-63 (2) a low gas-permeable membrane and a vented,
2-64 permeable layer of an open-graded, clean aggregate material
2-65 installed between the area below the slab for the structure and the
2-66 soil of the final cover; and
2-67 (3) automatic methane gas sensors that will sound an
2-68 audible alarm if the sensor detects a methane gas volumetric
2-69 concentration of greater than one percent installed:
2-70 (A) within the venting pipe or permeable layer;
3-1 and
3-2 (B) inside the structure.
3-3 Sec. 361.537. LEASE RESTRICTION; NOTICE TO LESSEE. A person
3-4 may not lease or offer for lease land that overlies a closed
3-5 municipal solid waste landfill facility unless:
3-6 (1) existing development on the land is in compliance
3-7 with this subchapter; or
3-8 (2) the person gives notice to the prospective lessee
3-9 of what is required to bring the land and any development on the
3-10 land into compliance with this subchapter and the prohibitions or
3-11 requirements for future development imposed by this subchapter and
3-12 by any permit issued for the land under this subchapter.
3-13 Sec. 361.538. SOIL TEST REQUIRED BEFORE DEVELOPMENT OF
3-14 CERTAIN LAND. (a) A person may not undertake the development of a
3-15 tract of land that is greater than one acre in area unless the
3-16 person has conducted soil tests, in accordance with commission
3-17 rules, to determine whether any part of the tract overlies a closed
3-18 municipal solid waste landfill facility.
3-19 (b) Tests under this section must be conducted by a
3-20 registered professional engineer.
3-21 (c) If an engineer who conducts a test under this section
3-22 determines that part of the tract overlies a closed municipal solid
3-23 waste landfill facility, the engineer shall notify the following
3-24 persons of the determination:
3-25 (1) each owner and each lessee of the tract;
3-26 (2) the commission; and
3-27 (3) any local governmental official with the authority
3-28 to disapprove an application for development.
3-29 (d) A local governmental official who receives a notice
3-30 under this section shall notify the county clerk of each county in
3-31 which the tract is located of the portion of the tract that
3-32 overlies a closed municipal solid waste landfill facility. The
3-33 county clerk shall record on the deed records of the land formerly
3-34 used as a landfill a description of the pertinent part of the land,
3-35 notice of its former use, and notice of the restrictions on the
3-36 development or lease of the land imposed by this subchapter.
3-37 (e) The owner or lessee of land for which a test is done
3-38 under this section shall send the test results to the executive
3-39 director not later than the 30th day before the development begins.
3-40 Sec. 361.539. NOTICE TO BUYERS, LESSEES, AND OCCUPANTS.
3-41 (a) An owner of land that overlies a closed municipal solid waste
3-42 landfill facility shall cause the county clerk to record on the
3-43 deed records of the land a description of the pertinent part of the
3-44 land, notice of its former use, and notice of the restrictions on
3-45 the development or lease of the land imposed by this subchapter.
3-46 (b) An owner of land that overlies a closed municipal solid
3-47 waste landfill facility shall notify each lessee and each occupant
3-48 of a structure that overlies the site of:
3-49 (1) the land's former use as a landfill; and
3-50 (2) the structural controls in place to minimize
3-51 potential future danger posed by the landfill.
3-52 Sec. 361.540. CIVIL PENALTY. (a) A person who violates
3-53 this subchapter is liable for a civil penalty not to exceed $10,000
3-54 for each violation.
3-55 (b) The attorney general or the prosecuting attorney in a
3-56 county in which the closed municipal solid waste landfill facility
3-57 is located may bring suit to recover the penalty imposed by
3-58 Subsection (a).
3-59 (c) A penalty collected under this section shall be
3-60 deposited to the credit of the general revenue fund.
3-61 SECTION 2. Section 363.064, Health and Safety Code, as
3-62 amended by Chapters 238 and 303, Acts of the 72nd Legislature,
3-63 Regular Session, 1991, is amended to read as follows:
3-64 Sec. 363.064. Contents of Regional or Local Solid Waste
3-65 Management Plan. (a) A regional or local solid waste management
3-66 plan must:
3-67 (1) include a description and an assessment of current
3-68 efforts in the geographic area covered by the plan to minimize
3-69 production of municipal solid waste, including sludge, and efforts
3-70 to reuse or recycle waste;
4-1 (2) identify additional opportunities for waste
4-2 minimization and waste reuse or recycling;
4-3 (3) include a description and assessment of existing
4-4 or proposed community programs for the collection of household
4-5 hazardous waste;
4-6 (4) make recommendations for encouraging and achieving
4-7 a greater degree of waste minimization and waste reuse or recycling
4-8 in the geographic area covered by the plan;
4-9 (5) encourage cooperative efforts between local
4-10 governments in the siting of landfills for the disposal of solid
4-11 waste;
4-12 (6) consider the need to transport waste between
4-13 municipalities, from a municipality to an area in the jurisdiction
4-14 of a county, or between counties, particularly if a technically
4-15 suitable site for a landfill does not exist in a particular area;
4-16 <and>
4-17 (7) allow a local government to justify the need for a
4-18 landfill in its jurisdiction to dispose of the solid waste
4-19 generated in the jurisdiction of another local government that does
4-20 not have a technically suitable site for a landfill in its
4-21 jurisdiction;<.>
4-22 (8) <(7)> establish recycling rate goals appropriate
4-23 to the area covered by the plan; <and>
4-24 (9) <(8)> recommend composting programs for yard waste
4-25 and related organic wastes that may include:
4-26 (A) creation and use of community composting
4-27 centers;
4-28 (B) adoption of the "Don't Bag It" program for
4-29 lawn clippings developed by the Texas Agricultural Extension
4-30 Service; and
4-31 (C) development and promotion of education
4-32 programs on home composting, community composting, and the
4-33 separation of yard waste for use as mulch; and
4-34 (10) include an inventory of municipal solid waste
4-35 landfill units, including landfill units no longer in operation,
4-36 the location of such units, the current owners of the land on which
4-37 the former landfill units were located, and the current use of the
4-38 land.
4-39 (b) Each council of governments shall notify the owner of
4-40 land that overlies a former municipal solid waste unit within the
4-41 council of government's jurisdiction of the former use of the land
4-42 and shall notify the county clerk of the county or counties in
4-43 which the former landfill unit is located of the former use. The
4-44 county clerk shall record on the deed records of land formerly used
4-45 as a municipal solid waste landfill a description of the pertinent
4-46 part of the land, notice of its former use, and notice of the
4-47 restrictions on the development or lease of the land imposed by
4-48 this subchapter.
4-49 (c) The municipalities and counties within each council of
4-50 governments shall cooperate fully in compiling the inventory of
4-51 landfill units.
4-52 (d) Each council of governments shall provide a copy of the
4-53 inventory of municipal solid waste landfill units to the Texas
4-54 Natural Resource Conservation Commission.
4-55 (e) The Texas Natural Resource Conservation Commission may
4-56 grant money from fees collected under Section 361.013 to a
4-57 municipality or association of municipalities for the purpose of
4-58 conducting the inventory required by this section.
4-59 SECTION 3. This Act takes effect September 1, 1993.
4-60 SECTION 4. The importance of this legislation and the
4-61 crowded condition of the calendars in both houses create an
4-62 emergency and an imperative public necessity that the
4-63 constitutional rule requiring bills to be read on three several
4-64 days in each house be suspended, and this rule is hereby suspended.
4-65 * * * * *
4-66 Austin,
4-67 Texas
4-68 May 21, 1993
4-69 Hon. Bob Bullock
4-70 President of the Senate
5-1 Sir:
5-2 We, your Committee on Natural Resources to which was referred H.B.
5-3 No. 2537, have had the same under consideration, and I am
5-4 instructed to report it back to the Senate with the recommendation
5-5 that it do not pass, but that the Committee Substitute adopted in
5-6 lieu thereof do pass and be printed.
5-7 Sims,
5-8 Chairman
5-9 * * * * *
5-10 WITNESSES
5-11 FOR AGAINST ON
5-12 ___________________________________________________________________
5-13 Name: William Power x
5-14 Representing: County Judges & Commissioners
5-15 City: Marshall
5-16 -------------------------------------------------------------------
5-17 Name: Kim Phillips x
5-18 Representing: Texas PTA
5-19 City: McGregor
5-20 -------------------------------------------------------------------
5-21 Name: Jim Allison x
5-22 Representing: County Judges & Commissioners
5-23 City: Austin
5-24 -------------------------------------------------------------------