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
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   5-17  Name:  Kim Phillips                              x
   5-18  Representing:  Texas PTA
   5-19  City:  McGregor
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   5-21  Name:  Jim Allison                               x
   5-22  Representing:  County Judges & Commissioners
   5-23  City:  Austin
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