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.