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