S.B. No. 1201
AN ACT
1-1 relating to industrial solid waste and hazardous waste fee
1-2 revenues; recovery of regulatory and remediation costs.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 361.131, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Sec. 361.131. Definitions. In this subchapter:
1-7 (1) "Captured facility" means a manufacturing or
1-8 production facility which generates an industrial solid waste or
1-9 hazardous waste which is routinely stored, processed, or disposed,
1-10 on a shared basis, in an integrated waste management unit owned and
1-11 operated by and located within a contiguous manufacturing facility.
1-12 (2) "Commercial waste storage, processing, or disposal
1-13 facility" includes any facility that accepts an industrial solid
1-14 waste or a hazardous waste for storage, processing, including
1-15 incineration, or disposal for a charge.
1-16 (3) "Dry weight" means the weight of constituents
1-17 other than water.
1-18 (4) "Generator" means a person whose act or process
1-19 produces industrial solid waste or hazardous waste or whose act
1-20 first causes an industrial solid waste or a hazardous waste to be
1-21 regulated by the commission.
1-22 (5) "Hazardous waste" means solid waste not otherwise
1-23 exempt that is identified or listed as hazardous waste by the
2-1 administrator of the United States Environmental Protection Agency
2-2 under the federal Solid Waste Disposal Act, as amended (42 U.S.C.
2-3 Section 6901 et seq.).
2-4 (6) "Land disposal" does not include the normal
2-5 application of agricultural chemicals or fertilizers.
2-6 (7) "Land disposal facility" includes:
2-7 (A) a landfill;
2-8 (B) a surface impoundment, excluding an
2-9 impoundment treating or storing waste that is disposed of under
2-10 Chapter 26 or 27, Water Code;
2-11 (C) a waste pile;
2-12 (D) a facility at which land treatment, land
2-13 farming, or a land application process is used; and
2-14 (E) an injection well.
2-15 (8) "Noncommercial waste storage, processing, or
2-16 disposal facility" includes any facility that accepts an industrial
2-17 solid waste or a hazardous waste for storage, processing, including
2-18 incineration, or disposal for no charge or that stores, processes,
2-19 or disposes of waste generated on site.
2-20 <(9) "Primary metals high volume, low-hazard waste" is
2-21 hazardous waste from the extraction, beneficiation, and processing
2-22 of ores, minerals, or scrap metal and whose constituents are
2-23 subject to the criteria for the identification or listing as a
2-24 hazardous waste under Section 3001(a) of the Resource Conservation
2-25 and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.) and
3-1 account for 10 percent or less of its total dry weight volume.>
3-2 SECTION 2. Section 361.132, Health and Safety Code, is
3-3 amended to read as follows:
3-4 Sec. 361.132. Hazardous and Solid Waste Fees Fund. (a) The
3-5 hazardous and solid waste fees fund is in the state treasury.
3-6 (b) The fund consists of money collected by the commission
3-7 from:
3-8 (1) fees imposed on generators of industrial solid
3-9 waste or hazardous waste under Section 361.134;
3-10 (2) fees imposed on owners or operators of permitted
3-11 industrial solid waste or hazardous waste facilities, or owners or
3-12 operators of industrial solid waste or hazardous waste facilities
3-13 subject to the requirement of permit authorization, under Section
3-14 361.135;
3-15 (3) fees imposed on the owner or operator of an
3-16 industrial solid waste or hazardous waste facility for
3-17 noncommercial and commercial management or disposal of hazardous
3-18 waste or commercial disposal of industrial solid waste under
3-19 Section 361.136;
3-20 (4) fees imposed on applicants for industrial solid
3-21 waste and hazardous waste permits under Section 361.137; and
3-22 (5) interest and penalties imposed under Section
3-23 361.140 for late payment of industrial solid waste and hazardous
3-24 waste fees authorized under this subchapter.
3-25 (c) Except as provided by Section 361.136(l)(1), the
4-1 commission may use the money in the fund only for regulation of
4-2 industrial solid and hazardous waste under this chapter, including
4-3 payment to other state agencies for services provided under
4-4 contract concerning enforcement of this chapter.
4-5 (d) <The total amount of generation fees and facility fees
4-6 collected and deposited to the credit of the hazardous and solid
4-7 waste fees fund in a fiscal year may not be less than $4.5 million
4-8 or more than $6.0 million.>
4-9 <(e)> Any unobligated balance in the fund <in excess of $1
4-10 million> at the end of the state fiscal year may, at the discretion
4-11 of the commission, <shall> be transferred to the hazardous and
4-12 solid waste remediation fee fund.
4-13 SECTION 3. Section 361.133, Health and Safety Code, is
4-14 amended to read as follows:
4-15 Sec. 361.133. Hazardous and Solid Waste Remediation Fee
4-16 Fund. (a) The hazardous and solid waste remediation fee fund is
4-17 in the state treasury.
4-18 (b) The fund consists of money collected by the commission
4-19 from:
4-20 (1) fees imposed on the owner or operator of an
4-21 industrial solid waste or hazardous waste facility for commercial
4-22 and noncommercial management or disposal of hazardous waste or
4-23 commercial disposal of industrial solid waste under Section 361.136
4-24 and fees imposed under Section 361.138;
4-25 (2) interest and penalties imposed under Section
5-1 361.140 for late payment of a fee or late filing of a report;
5-2 (3) money paid by a person liable for facility cleanup
5-3 and maintenance under Section 361.197;
5-4 (4) the interest received from the investment of this
5-5 fund, in accounts under the charge of the treasurer, to be credited
5-6 pro rata to the hazardous and solid waste remediation fee fund; and
5-7 (5) monies transferred from other agencies under
5-8 provisions of this code or grants or other payments from any person
5-9 made for the purpose of remediation of facilities under this
5-10 chapter or the investigation, cleanup, or removal of a spill or
5-11 release of a hazardous substance.
5-12 (c) The commission may use the money collected and deposited
5-13 to the credit of the fund under this section, including interest
5-14 credited under Subsection (b)(4), only for:
5-15 (1) necessary and appropriate removal and remedial
5-16 action at sites at which solid waste or hazardous substances have
5-17 been disposed if funds from a liable person, independent third
5-18 person, or the federal government are not sufficient for the
5-19 removal or remedial action;
5-20 (2) necessary and appropriate maintenance of removal
5-21 and remedial actions for the expected life of those actions if:
5-22 (A) funds from a liable person have been
5-23 collected and deposited to the credit of the fund for that purpose;
5-24 or
5-25 (B) funds from a liable person, independent
6-1 third person, or the federal government are not sufficient for the
6-2 maintenance;
6-3 (3) expenses concerning compliance with:
6-4 (A) the Comprehensive Environmental Response,
6-5 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
6-6 seq.) as amended;
6-7 (B) the federal Superfund Amendments and
6-8 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
6-9 (C) Subchapters F and I;
6-10 (4) expenses concerning the regulation and management
6-11 of household hazardous substances and the prevention of pollution
6-12 of the water resources of the state from the uncontrolled release
6-13 of hazardous substances; and
6-14 (5) expenses concerning the cleanup or removal of a
6-15 spill, release, or potential threat of release of a hazardous
6-16 substance where immediate action is appropriate to protect human
6-17 health and the environment.
6-18 (d) The commission shall establish the fee rates for waste
6-19 management under Section 361.136 and revise them as necessary. The
6-20 <so that the> amount collected each year shall not exceed <equals
6-21 between $12 million and> $16 million after making payments to
6-22 counties under Section 361.136(l)(1).
6-23 (e) The commission shall monitor the unobligated balance in
6-24 the hazardous and solid waste remediation fee fund and all sources
6-25 of revenue to the fund and may adjust the amount of fees collected
7-1 under Subsection (d) of this section and Section 361.138 of this
7-2 chapter, within prescribed limits, to maintain an unobligated
7-3 balance of <at least $5 million and> no more than $25 million at
7-4 the end of each fiscal year.
7-5 (f) For the purpose of Subsection (e) of this section, the
7-6 unobligated balance in the hazardous and solid waste remediation
7-7 fee fund shall be determined by subtracting from the cash balance
7-8 of the fund at the end of each quarter:
7-9 (1) the total of all operating expenses encumbered by
7-10 the commission from the fund;
7-11 (2) the sum of the total balances remaining on all
7-12 contracts entered into by the commission to be paid from the fund;
7-13 and
7-14 (3) the estimated total cost of investigation and
7-15 remedial action at any site eligible for funding under the
7-16 Comprehensive Environmental Response, Compensation and Liability
7-17 Act, as amended, or Subchapters F or I and not currently under
7-18 contract.
7-19 SECTION 4. Section 361.134, Health and Safety Code, is
7-20 amended to read as follows:
7-21 Sec. 361.134. Industrial Solid Waste and Hazardous Waste
7-22 Generation Fee. (a) The annual generation fee prescribed by this
7-23 section is imposed on each generator who generates Class I
7-24 industrial solid waste or hazardous waste during any part of the
7-25 year.
8-1 (b) The commission shall:
8-2 (1) require each generator of industrial solid waste
8-3 or hazardous waste to register its activities; and
8-4 (2) collect the annual generation fee imposed under
8-5 this section.
8-6 (c) The commission by rule shall adopt a generation fee
8-7 schedule for use in determining the amount of fees to be charged.
8-8 The annual generation fee may not be less than $50 and may not be
8-9 <or> more than $50,000 for generation of hazardous waste or more
8-10 than $10,000 <$25,000, except that the fee> for generation of
8-11 nonhazardous waste <shall not be more than $1,000>.
8-12 (d) The commission by rule may exempt generators of small
8-13 quantities of Class I industrial solid waste or hazardous waste
8-14 from the payment of a generation fee under this section.
8-15 (e) Wastes generated in a removal or remedial action
8-16 accomplished through the expenditure of public funds from the
8-17 hazardous and solid waste remediation fee fund shall be exempt from
8-18 any generation fee assessed under this section.
8-19 (f) Wastewaters containing hazardous wastes which are
8-20 designated as hazardous solely because they exhibit a hazardous
8-21 characteristic as defined in 40 Code of Federal Regulations, Part
8-22 261, Subpart C, relating to characteristics of hazardous waste, and
8-23 are rendered nonhazardous by neutralization or other treatment
8-24 on-site in totally enclosed treatment facilities or wastewater
8-25 treatment units for which no permit is required under this chapter
9-1 are exempt from the assessment of hazardous waste generation fees.
9-2 By rule, the commission may authorize additional exemptions if
9-3 consistent with state waste management policy. An exemption from
9-4 fee assessment does not limit a generator's obligation to report
9-5 waste generation or waste management activity under any applicable
9-6 regulation of the commission.
9-7 SECTION 5. Section 361.136, Health and Safety Code, is
9-8 amended to read as follows:
9-9 Sec. 361.136. INDUSTRIAL SOLID WASTE AND Hazardous Waste
9-10 Management Fee. (a) Except as provided by Subsections (e) through
9-11 (i), a fee shall be imposed on the owner or operator of a waste
9-12 storage, processing, or disposal facility for industrial solid
9-13 waste and hazardous waste that is managed on site. This fee is in
9-14 addition to any other fee that may be imposed under this chapter.
9-15 (b) The commission by rule shall establish fee rates for
9-16 management <both commercial and noncommercial storage, processing,
9-17 and disposal> of hazardous waste and commercial disposal of
9-18 industrial solid waste, as well as the manner of collection, and
9-19 shall revise the fee amounts as necessary.
9-20 (1) Fees under this section may apply only to the
9-21 following:
9-22 (A) commercial and noncommercial storage,
9-23 processing, or disposal of hazardous waste; or
9-24 (B) commercial disposal of Class I nonhazardous
9-25 industrial solid waste.
10-1 (2) A fee established for the commercial disposal of a
10-2 nonhazardous industrial solid waste shall not exceed 20 percent of
10-3 the fee established for the disposal of a hazardous waste by the
10-4 same method of disposal.
10-5 (3) A fee under this section shall not be assessed for
10-6 the disposal of a waste subject to an assessment under Section
10-7 361.013.
10-8 (c) The <hazardous> waste management fee shall be based on
10-9 the total weight or volume of a <hazardous> waste other than wastes
10-10 that are disposed of in an underground injection well. The fee for
10-11 those wastes shall be based on the dry weight of the waste.
10-12 (d) The <hazardous> waste management fee for wastes
10-13 generated in this state may not exceed $40 <$20> per ton for wastes
10-14 that are landfilled. The commission by rule shall establish the
10-15 amount of the fee for all other waste management methods at a
10-16 lesser amount and shall base the amount on the factors specified in
10-17 Section 361.139.
10-18 (e) A fee, which must be the same for wastes generated both
10-19 in state and out of state and consistent with fees assessed for the
10-20 management of other hazardous wastes, shall be established by the
10-21 commission for the storage, processing, incineration, and disposal
10-22 of hazardous waste fuels that the commission by rule shall define
10-23 considering:
10-24 (1) Btu content;
10-25 (2) metals content;
11-1 (3) chlorinated hydrocarbon content; and
11-2 (4) the degree to which the waste fuel is used for
11-3 energy recovery.
11-4 (f) A fee imposed on the owner or operator of a commercial
11-5 industrial solid waste or hazardous waste storage, processing, or
11-6 disposal facility, for <hazardous> wastes that are generated in
11-7 this state and received from an affiliate or wholly-owned
11-8 subsidiary of the commercial facility, or from a captured facility,
11-9 shall be the same fee imposed on a noncommercial facility. For the
11-10 purpose of this subsection, an affiliate of a commercial industrial
11-11 solid waste or hazardous waste facility must have a controlling
11-12 interest in common with that facility.
11-13 (g) A fee may not be imposed on the owner or operator of a
11-14 waste storage, processing, or disposal facility for the storage of
11-15 hazardous wastes for fewer than 90 days.
11-16 (h) A fee may not be imposed under this section on the
11-17 operation of a facility permitted under Chapter 26, Water Code, or
11-18 the federal National Pollutant Discharge Elimination System program
11-19 for wastes treated, processed, or disposed of in a wastewater
11-20 treatment system that discharges into surface water of the state.
11-21 (i) The storage, processing, or disposal of industrial solid
11-22 wastes or hazardous wastes generated in a removal or remedial
11-23 action accomplished through the expenditure of public funds from
11-24 the hazardous and solid waste remediation fee fund shall be exempt
11-25 from the assessment of a waste management fee under this section.
12-1 (j) The owner or operator of a waste storage, processing, or
12-2 disposal facility receiving industrial solid waste or hazardous
12-3 waste from out-of-state generators shall be assessed a fee amount
12-4 required on wastes generated in state plus an additional increment
12-5 that the commission by rule shall establish. In establishing an
12-6 incremental fee for out-of-state wastes, the commission shall
12-7 consider:
12-8 (1) factors specified by Section 361.139;
12-9 (2) added costs to the state of regulating the
12-10 interstate transport and subsequent management and disposal of
12-11 imported industrial solid wastes and hazardous wastes and their
12-12 <its> associated risks;
12-13 (3) similar fees that may be imposed in a generator's
12-14 state of origin for the storage, processing, or disposal of
12-15 hazardous waste; and
12-16 (4) contributions in both fees and taxes paid by
12-17 generators in this state to the support of the state's industrial
12-18 solid waste and hazardous waste regulatory programs.
12-19 (k) A fee for industrial solid wastes or hazardous wastes
12-20 that are legitimately reclaimed, reused, or recycled at a waste
12-21 storage, processing, or disposal facility must be the same for
12-22 wastes generated in state and out of state.
12-23 (l) Fees collected under this section shall be credited as
12-24 follows:
12-25 (1) 25 percent of the <commercial hazardous> waste
13-1 management fees <fee> collected from each commercial waste storage,
13-2 processing, or disposal facility under this section shall be
13-3 credited to the hazardous and solid waste fees fund to be
13-4 distributed to the county in which the facility is located to
13-5 assist that county in defraying the costs associated with
13-6 commercial industrial solid waste and hazardous waste management
13-7 facilities; and
13-8 (2) of the remaining amount of the commercial
13-9 <hazardous> waste management fees <fee> and of the total amount of
13-10 the noncommercial <hazardous> waste management fees <fee> collected
13-11 from each waste storage, processing, or disposal facility:
13-12 (A) 50 percent of each amount shall be credited
13-13 to the hazardous and solid waste remediation fee fund; and
13-14 (B) 50 percent of each amount shall be credited
13-15 to the hazardous and solid waste fees fund.
13-16 (m) Funds due an affected county under Subsection (l)(1)
13-17 shall be paid by the commission not later than the 60th day after
13-18 the receipt and verification of the payments from commercial
13-19 facilities in the county.
13-20 (n) The commission by rule shall provide:
13-21 (1) for methods of computing the dry weight of
13-22 industrial solid waste and hazardous waste; and
13-23 (2) for a method to determine or estimate the dry
13-24 weight of small volumes of <hazardous> waste delivered to
13-25 <hazardous> waste disposal facilities for which the costs of a dry
14-1 weight analysis are disproportionate to the costs of disposal.
14-2 (o) A generator of industrial solid waste or hazardous waste
14-3 shall provide to the operator of a land disposal facility
14-4 certification of the computation of the dry weight of a <hazardous>
14-5 waste to be disposed.
14-6 SECTION 6. Section 361.138, Health and Safety Code, is
14-7 amended by amending Subsections (a) and (b) and adding Subsection
14-8 (k) to read as follows:
14-9 (a) In this section, "lead-acid battery" means any battery
14-10 <with a capacity of six or more volts> which contains lead and
14-11 sulfuric acid.
14-12 (b) A wholesale or retail battery dealer who sells or offers
14-13 to sell lead-acid batteries not for resale shall collect at the
14-14 time and place of sale a fee for each nonexempt lead-acid battery
14-15 sold, according to the following schedule:
14-16 (1) for a lead-acid battery with a capacity of less
14-17 than 12 volts, a fee of $2;
14-18 (2) for a lead-acid battery with a capacity of 12 or
14-19 more volts, a fee of $3.
14-20 (k) A battery is exempt from this section if it meets all of
14-21 the following criteria:
14-22 (1) the ampere-hour rating of the battery is less than
14-23 10 ampere-hours;
14-24 (2) the sum of the dimensions of the battery (height,
14-25 width, and length) is less than 15 inches; and
15-1 (3) the battery is sealed so that no access to the
15-2 interior of the battery is possible without destroying the battery.
15-3 SECTION 7. Section 361.139, Health and Safety Code, is
15-4 amended to read as follows:
15-5 Sec. 361.139. Factors to be Considered in Setting Fees.
15-6 (a) To promote the public policy of preferred waste management
15-7 methods under Section 361.023 and to provide for an equitable fee
15-8 rate structure, the commission shall consider the following in
15-9 establishing the fees authorized under this subchapter:
15-10 (1) the variation in risks to the public associated
15-11 with different waste management methods, including storage,
15-12 specifically:
15-13 (A) promoting the establishment and maintenance
15-14 of industrial solid waste and hazardous waste reclamation, reuse,
15-15 and recycling facilities;
15-16 (B) promoting the public policy of preferred
15-17 waste management methods for waste streams that are amenable to
15-18 multiple waste management methods; and
15-19 (C) considering whether the waste is ultimately
15-20 disposed of in the state;
15-21 (2) the funding needed to adequately and equitably
15-22 support the regulation of industrial solid waste and hazardous
15-23 waste generation, storage, processing, and disposal activities and
15-24 the remediation of contaminated disposal sites, considering:
15-25 (A) the nature and extent of regulated
16-1 activities and the variation in the cost of regulating different
16-2 types of facilities;
16-3 (B) the cost to the state of operating an
16-4 effective program for the regulation of industrial solid waste and
16-5 hazardous waste which protects human health and the environment and
16-6 is consistent with state and federal authority;
16-7 (C) the higher costs of regulation and oversight
16-8 that may be required for commercial <hazardous> waste management
16-9 facilities;
16-10 (D) the sources and causes of contamination at
16-11 sites in need of remediation; and
16-12 (E) the benefits and beneficiaries of the
16-13 regulatory programs and activities supported through fees assessed
16-14 under this subchapter;
16-15 (3) promoting the efficient and effective use of
16-16 existing industrial solid waste and hazardous waste storage,
16-17 processing, and disposal facilities within the state;
16-18 (4) whether a volume of waste received by a facility
16-19 has been or will be assessed a <hazardous> waste management fee at
16-20 other facilities under Section 361.136; and
16-21 (5) the prevailing rates of similar fees for
16-22 industrial solid waste and hazardous waste activities charged in
16-23 other states to which wastes from this state may be exported or
16-24 from which wastes may be imported for storage, processing, or
16-25 disposal.
17-1 (b) In addition to the factors prescribed in Subsection (a),
17-2 the commission, in establishing fees for the management of
17-3 hazardous waste under Section 361.136, shall also consider:
17-4 (1) the amount of state matching funds necessary for
17-5 remedial actions under the Comprehensive Environmental Response,
17-6 Compensation and Liability Act; and
17-7 (2) the costs of state-funded remedial actions under
17-8 Subchapter F.
17-9 SECTION 8. Section 361.140, Health and Safety Code, is
17-10 amended to read as follows:
17-11 Sec. 361.140. Interest and Penalties. (a) The commission
17-12 by rule shall establish requirements for the assessment of
17-13 penalties and interest for late payment of fees owed the state
17-14 <Interest at an annual rate of 15 percent of the amount of a fee
17-15 due> under Sections 361.134 through 361.137 <and unpaid accrues
17-16 from the date on which the fee is due>. Penalties and interest
17-17 established under this section shall not exceed rates established
17-18 for delinquent taxes under Sections 111.060 and 111.061, Tax Code.
17-19 (b) A person is subject to a civil penalty of up to $100 for
17-20 each day the violation continues for failure to timely submit a
17-21 properly completed report as required by commission rule under
17-22 Section 361.035.
17-23 (c) Interest collected under this section for late payment
17-24 of a fee shall be deposited in the state treasury to the credit of
17-25 the respective fund to which the late fee is credited.
18-1 (d) Any penalty collected under this section for late filing
18-2 of reports shall be deposited in the state treasury to the credit
18-3 of the hazardous and solid waste remediation fee fund.
18-4 SECTION 9. The importance of this legislation and the
18-5 crowded condition of the calendars in both houses create an
18-6 emergency and an imperative public necessity that the
18-7 constitutional rule requiring bills to be read on three several
18-8 days in each house be suspended, and this rule is hereby suspended,
18-9 and that this Act take effect and be in force from and after its
18-10 passage, and it is so enacted.