1-1 By: Armbrister S.B. No. 1201
1-2 (In the Senate - Filed March 12, 1993; March 16, 1993, read
1-3 first time and referred to Committee on Finance; April 15, 1993,
1-4 reported adversely, with favorable Committee Substitute by the
1-5 following vote: Yeas 11, Nays 0; April 15, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Montford x
1-9 Turner x
1-10 Armbrister x
1-11 Barrientos x
1-12 Bivins x
1-13 Ellis x
1-14 Haley x
1-15 Moncrief x
1-16 Parker x
1-17 Ratliff x
1-18 Sims x
1-19 Truan x
1-20 Zaffirini x
1-21 COMMITTEE SUBSTITUTE FOR S.B. No. 1201 By: Armbrister
1-22 A BILL TO BE ENTITLED
1-23 AN ACT
1-24 relating to industrial solid waste and hazardous waste fee
1-25 revenues; recovery of regulatory and remediation costs.
1-26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-27 SECTION 1. Section 361.131, Health and Safety Code, is
1-28 amended to read as follows:
1-29 Sec. 361.131. Definitions. In this subchapter:
1-30 (1) "Captured facility" means a manufacturing or
1-31 production facility which generates an industrial solid waste or
1-32 hazardous waste which is routinely stored, processed, or disposed,
1-33 on a shared basis, in an integrated waste management unit owned and
1-34 operated by and located within a contiguous manufacturing facility.
1-35 (2) "Commercial waste storage, processing, or disposal
1-36 facility" includes any facility that accepts an industrial solid
1-37 waste or a hazardous waste for storage, processing, including
1-38 incineration, or disposal for a charge.
1-39 (3) "Dry weight" means the weight of constituents
1-40 other than water.
1-41 (4) "Generator" means a person whose act or process
1-42 produces industrial solid waste or hazardous waste or whose act
1-43 first causes an industrial solid waste or a hazardous waste to be
1-44 regulated by the commission.
1-45 (5) "Hazardous waste" means solid waste not otherwise
1-46 exempt that is identified or listed as hazardous waste by the
1-47 administrator of the United States Environmental Protection Agency
1-48 under the federal Solid Waste Disposal Act, as amended (42 U.S.C.
1-49 Section 6901 et seq.).
1-50 (6) "Land disposal" does not include the normal
1-51 application of agricultural chemicals or fertilizers.
1-52 (7) "Land disposal facility" includes:
1-53 (A) a landfill;
1-54 (B) a surface impoundment, excluding an
1-55 impoundment treating or storing waste that is disposed of under
1-56 Chapter 26 or 27, Water Code;
1-57 (C) a waste pile;
1-58 (D) a facility at which land treatment, land
1-59 farming, or a land application process is used; and
1-60 (E) an injection well.
1-61 (8) "Noncommercial waste storage, processing, or
1-62 disposal facility" includes any facility that accepts an industrial
1-63 solid waste or a hazardous waste for storage, processing, including
1-64 incineration, or disposal for no charge or that stores, processes,
1-65 or disposes of waste generated on site.
1-66 <(9) "Primary metals high volume, low-hazard waste" is
1-67 hazardous waste from the extraction, beneficiation, and processing
1-68 of ores, minerals, or scrap metal and whose constituents are
2-1 subject to the criteria for the identification or listing as a
2-2 hazardous waste under Section 3001(a) of the Resource Conservation
2-3 and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.) and
2-4 account for 10 percent or less of its total dry weight volume.>
2-5 SECTION 2. Section 361.132, Health and Safety Code, is
2-6 amended to read as follows:
2-7 Sec. 361.132. Hazardous and Solid Waste Fees Fund. (a) The
2-8 hazardous and solid waste fees fund is in the state treasury.
2-9 (b) The fund consists of money collected by the commission
2-10 from:
2-11 (1) fees imposed on generators of industrial solid
2-12 waste or hazardous waste under Section 361.134;
2-13 (2) fees imposed on owners or operators of permitted
2-14 industrial solid waste or hazardous waste facilities, or owners or
2-15 operators of industrial solid waste or hazardous waste facilities
2-16 subject to the requirement of permit authorization, under Section
2-17 361.135;
2-18 (3) fees imposed on the owner or operator of an
2-19 industrial solid waste or hazardous waste facility for
2-20 noncommercial and commercial management or disposal of industrial
2-21 solid waste or hazardous waste under Section 361.136;
2-22 (4) fees imposed on applicants for industrial solid
2-23 waste and hazardous waste permits under Section 361.137; and
2-24 (5) interest and penalties imposed under Section
2-25 361.140 for late payment of industrial solid waste and hazardous
2-26 waste fees authorized under this subchapter.
2-27 (c) Except as provided by Section 361.136(l)(1), the
2-28 commission may use the money in the fund only for regulation of
2-29 industrial solid and hazardous waste under this chapter, including
2-30 payment to other state agencies for services provided under
2-31 contract concerning enforcement of this chapter.
2-32 (d) <The total amount of generation fees and facility fees
2-33 collected and deposited to the credit of the hazardous and solid
2-34 waste fees fund in a fiscal year may not be less than $4.5 million
2-35 or more than $6.0 million.>
2-36 <(e)> Any unobligated balance in the fund <in excess of $1
2-37 million> at the end of the state fiscal year may, at the discretion
2-38 of the commission, <shall> be transferred to the hazardous and
2-39 solid waste remediation fee fund.
2-40 SECTION 3. Section 361.133, Health and Safety Code, is
2-41 amended to read as follows:
2-42 Sec. 361.133. Hazardous and Solid Waste Remediation Fee
2-43 Fund. (a) The hazardous and solid waste remediation fee fund is
2-44 in the state treasury.
2-45 (b) The fund consists of money collected by the commission
2-46 from:
2-47 (1) fees imposed on the owner or operator of an
2-48 industrial solid waste or hazardous waste facility for commercial
2-49 and noncommercial management or disposal of industrial solid waste
2-50 or hazardous waste under Section 361.136 and fees imposed under
2-51 Section 361.138;
2-52 (2) interest and penalties imposed under Section
2-53 361.140 for late payment of a fee or late filing of a report;
2-54 (3) money paid by a person liable for facility cleanup
2-55 and maintenance under Section 361.197;
2-56 (4) the interest received from the investment of this
2-57 fund, in accounts under the charge of the treasurer, to be credited
2-58 pro rata to the hazardous and solid waste remediation fee fund; and
2-59 (5) monies transferred from other agencies under
2-60 provisions of this code or grants or other payments from any person
2-61 made for the purpose of remediation of facilities under this
2-62 chapter or the investigation, cleanup, or removal of a spill or
2-63 release of a hazardous substance.
2-64 (c) The commission may use the money collected and deposited
2-65 to the credit of the fund under this section, including interest
2-66 credited under Subsection (b)(4), only for:
2-67 (1) necessary and appropriate removal and remedial
2-68 action at sites at which solid waste or hazardous substances have
2-69 been disposed if funds from a liable person, independent third
2-70 person, or the federal government are not sufficient for the
3-1 removal or remedial action;
3-2 (2) necessary and appropriate maintenance of removal
3-3 and remedial actions for the expected life of those actions if:
3-4 (A) funds from a liable person have been
3-5 collected and deposited to the credit of the fund for that purpose;
3-6 or
3-7 (B) funds from a liable person, independent
3-8 third person, or the federal government are not sufficient for the
3-9 maintenance;
3-10 (3) expenses concerning compliance with:
3-11 (A) the Comprehensive Environmental Response,
3-12 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
3-13 seq.) as amended;
3-14 (B) the federal Superfund Amendments and
3-15 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
3-16 (C) Subchapters F and I;
3-17 (4) expenses concerning the regulation and management
3-18 of household hazardous substances and the prevention of pollution
3-19 of the water resources of the state from the uncontrolled release
3-20 of hazardous substances; and
3-21 (5) expenses concerning the cleanup or removal of a
3-22 spill, release, or potential threat of release of a hazardous
3-23 substance where immediate action is appropriate to protect human
3-24 health and the environment.
3-25 (d) The commission shall establish the fee rates for waste
3-26 management under Section 361.136 and revise them as necessary. The
3-27 <so that the> amount collected each year shall not exceed <equals
3-28 between $12 million and> $16 million after making payments to
3-29 counties under Section 361.136(l)(1).
3-30 (e) The commission shall monitor the unobligated balance in
3-31 the hazardous and solid waste remediation fee fund and all sources
3-32 of revenue to the fund and may adjust the amount of fees collected
3-33 under Subsection (d) of this section and Section 361.138 of this
3-34 chapter, within prescribed limits, to maintain an unobligated
3-35 balance of at least $5 million and no more than $25 million at the
3-36 end of each fiscal year.
3-37 (f) For the purpose of Subsection (e) of this section, the
3-38 unobligated balance in the hazardous and solid waste remediation
3-39 fee fund shall be determined by subtracting from the cash balance
3-40 of the fund at the end of each quarter:
3-41 (1) the total of all operating expenses encumbered by
3-42 the commission from the fund;
3-43 (2) the sum of the total balances remaining on all
3-44 contracts entered into by the commission to be paid from the fund;
3-45 and
3-46 (3) the estimated total cost of investigation and
3-47 remedial action at any site eligible for funding under the
3-48 Comprehensive Environmental Response, Compensation and Liability
3-49 Act, as amended, or Subchapters F or I and not currently under
3-50 contract.
3-51 SECTION 4. Section 361.134, Health and Safety Code, is
3-52 amended to read as follows:
3-53 Sec. 361.134. Industrial Solid Waste and Hazardous Waste
3-54 Generation Fee. (a) The annual generation fee prescribed by this
3-55 section is imposed on each generator who generates Class I
3-56 industrial solid waste or hazardous waste during any part of the
3-57 year.
3-58 (b) The commission shall:
3-59 (1) require each generator of industrial solid waste
3-60 or hazardous waste to register its activities; and
3-61 (2) collect the annual generation fee imposed under
3-62 this section.
3-63 (c) The commission by rule shall adopt a generation fee
3-64 schedule for use in determining the amount of fees to be charged.
3-65 The annual generation fee may not be less than $50 and may not be
3-66 <or> more than $50,000 for generation of hazardous waste or more
3-67 than $10,000 <$25,000, except that the fee> for generation of
3-68 nonhazardous waste <shall not be more than $1,000>.
3-69 (d) The commission by rule may exempt generators of small
3-70 quantities of Class I industrial solid waste or hazardous waste
4-1 from the payment of a generation fee under this section.
4-2 (e) Wastes generated in a removal or remedial action
4-3 accomplished through the expenditure of public funds from the
4-4 hazardous and solid waste remediation fee fund shall be exempt from
4-5 any generation fee assessed under this section.
4-6 (f) Wastewaters containing hazardous wastes which are
4-7 designated as hazardous solely because they exhibit a hazardous
4-8 characteristic as defined in 40 Code of Federal Regulations, Part
4-9 261, Subpart C, relating to characteristics of hazardous waste, and
4-10 are rendered nonhazardous by neutralization or other treatment
4-11 on-site in totally enclosed treatment facilities or wastewater
4-12 treatment units for which no permit is required under this chapter
4-13 are exempt from the assessment of hazardous waste generation fees.
4-14 By rule, the commission may authorize additional exemptions if
4-15 consistent with state waste management policy. An exemption from
4-16 fee assessment does not limit a generator's obligation to report
4-17 waste generation or waste management activity under any applicable
4-18 regulation of the commission.
4-19 SECTION 5. Section 361.136, Health and Safety Code, is
4-20 amended to read as follows:
4-21 Sec. 361.136. INDUSTRIAL SOLID WASTE AND Hazardous Waste
4-22 Management Fee. (a) Except as provided by Subsections (e) through
4-23 (i), a fee shall be imposed on the owner or operator of a waste
4-24 storage, processing, or disposal facility for industrial solid
4-25 waste and hazardous waste that is managed on site. This fee is in
4-26 addition to any other fee that may be imposed under this chapter.
4-27 (b) The commission by rule shall establish fee rates for
4-28 management <both commercial and noncommercial storage, processing,
4-29 and disposal> of industrial solid waste and hazardous waste, as
4-30 well as the manner of collection, and shall revise the fee amounts
4-31 as necessary.
4-32 (1) Fees under this section may apply to the
4-33 commercial and noncommercial storage, processing, or disposal of
4-34 hazardous waste.
4-35 (2) Fees under this section may apply to the
4-36 commercial disposal of Class I nonhazardous industrial solid waste.
4-37 (3) A fee established for the disposal of a
4-38 nonhazardous industrial solid waste shall not exceed 20 percent of
4-39 the fee established for the disposal of a hazardous waste by the
4-40 same method of disposal.
4-41 (4) A fee under this section shall not be assessed for
4-42 the disposal of a waste subject to an assessment under Section
4-43 361.013.
4-44 (c) The <hazardous> waste management fee shall be based on
4-45 the total weight or volume of a <hazardous> waste other than wastes
4-46 that are disposed of in an underground injection well. The fee for
4-47 those wastes shall be based on the dry weight of the waste.
4-48 (d) The <hazardous> waste management fee for wastes
4-49 generated in this state may not exceed $40 <$20> per ton for wastes
4-50 that are landfilled. The commission by rule shall establish the
4-51 amount of the fee for all other waste management methods at a
4-52 lesser amount and shall base the amount on the factors specified in
4-53 Section 361.139.
4-54 (e) A fee, which must be the same for wastes generated both
4-55 in state and out of state and consistent with fees assessed for the
4-56 management of other hazardous wastes, shall be established by the
4-57 commission for the storage, processing, incineration, and disposal
4-58 of hazardous waste fuels that the commission by rule shall define
4-59 considering:
4-60 (1) Btu content;
4-61 (2) metals content;
4-62 (3) chlorinated hydrocarbon content; and
4-63 (4) the degree to which the waste fuel is used for
4-64 energy recovery.
4-65 (f) A fee imposed on the owner or operator of a commercial
4-66 industrial solid waste or hazardous waste storage, processing, or
4-67 disposal facility, for <hazardous> wastes that are generated in
4-68 this state and received from an affiliate or wholly-owned
4-69 subsidiary of the commercial facility, or from a captured facility,
4-70 shall be the same fee imposed on a noncommercial facility. For the
5-1 purpose of this subsection, an affiliate of a commercial industrial
5-2 solid waste or hazardous waste facility must have a controlling
5-3 interest in common with that facility.
5-4 (g) A fee may not be imposed on the owner or operator of a
5-5 waste storage, processing, or disposal facility for the storage of
5-6 hazardous wastes for fewer than 90 days.
5-7 (h) A fee may not be imposed under this section on the
5-8 operation of a facility permitted under Chapter 26, Water Code, or
5-9 the federal National Pollutant Discharge Elimination System program
5-10 for wastes treated, processed, or disposed of in a wastewater
5-11 treatment system that discharges into surface water of the state.
5-12 (i) The storage, processing, or disposal of industrial solid
5-13 wastes or hazardous wastes generated in a removal or remedial
5-14 action accomplished through the expenditure of public funds from
5-15 the hazardous and solid waste remediation fee fund shall be exempt
5-16 from the assessment of a waste management fee under this section.
5-17 (j) The owner or operator of a waste storage, processing, or
5-18 disposal facility receiving industrial solid waste or hazardous
5-19 waste from out-of-state generators shall be assessed a fee amount
5-20 required on wastes generated in state plus an additional increment
5-21 that the commission by rule shall establish. In establishing an
5-22 incremental fee for out-of-state wastes, the commission shall
5-23 consider:
5-24 (1) factors specified by Section 361.139;
5-25 (2) added costs to the state of regulating the
5-26 interstate transport and subsequent management and disposal of
5-27 imported industrial solid wastes and hazardous wastes and their
5-28 <its> associated risks;
5-29 (3) similar fees that may be imposed in a generator's
5-30 state of origin for the storage, processing, or disposal of
5-31 hazardous waste; and
5-32 (4) contributions in both fees and taxes paid by
5-33 generators in this state to the support of the state's industrial
5-34 solid waste and hazardous waste regulatory programs.
5-35 (k) A fee for industrial solid wastes or hazardous wastes
5-36 that are legitimately reclaimed, reused, or recycled at a waste
5-37 storage, processing, or disposal facility must be the same for
5-38 wastes generated in state and out of state.
5-39 (l) Fees collected under this section shall be credited as
5-40 follows:
5-41 (1) 25 percent of the <commercial hazardous> waste
5-42 management fees <fee> collected from each commercial waste storage,
5-43 processing, or disposal facility under this section shall be
5-44 credited to the hazardous and solid waste fees fund to be
5-45 distributed to the county in which the facility is located to
5-46 assist that county in defraying the costs associated with
5-47 commercial industrial solid waste and hazardous waste management
5-48 facilities; and
5-49 (2) of the remaining amount of the commercial
5-50 <hazardous> waste management fees <fee> and of the total amount of
5-51 the noncommercial <hazardous> waste management fees <fee> collected
5-52 from each waste storage, processing, or disposal facility:
5-53 (A) 50 percent of each amount shall be credited
5-54 to the hazardous and solid waste remediation fee fund; and
5-55 (B) 50 percent of each amount shall be credited
5-56 to the hazardous and solid waste fees fund.
5-57 (m) Funds due an affected county under Subsection (l)(1)
5-58 shall be paid by the commission not later than the 60th day after
5-59 the receipt and verification of the payments from commercial
5-60 facilities in the county.
5-61 (n) The commission by rule shall provide:
5-62 (1) for methods of computing the dry weight of
5-63 industrial solid waste and hazardous waste; and
5-64 (2) for a method to determine or estimate the dry
5-65 weight of small volumes of <hazardous> waste delivered to
5-66 <hazardous> waste disposal facilities for which the costs of a dry
5-67 weight analysis are disproportionate to the costs of disposal.
5-68 (o) A generator of industrial solid waste or hazardous waste
5-69 shall provide to the operator of a land disposal facility
5-70 certification of the computation of the dry weight of a <hazardous>
6-1 waste to be disposed.
6-2 SECTION 6. Section 361.138, Health and Safety Code, is
6-3 amended by amending Subsections (a) and (b) and adding Subsection
6-4 (k) to read as follows:
6-5 (a) In this section, "lead-acid battery" means any battery
6-6 <with a capacity of six or more volts> which contains lead and
6-7 sulfuric acid.
6-8 (b) A wholesale or retail battery dealer who sells or offers
6-9 to sell lead-acid batteries not for resale shall collect at the
6-10 time and place of sale a fee for each nonexempt lead-acid battery
6-11 sold, according to the following schedule:
6-12 (1) for a lead-acid battery with a capacity of less
6-13 than 12 volts, a fee of $2;
6-14 (2) for a lead-acid battery with a capacity of 12 or
6-15 more volts, a fee of $3.
6-16 (k) A battery is exempt from this section if it meets all of
6-17 the following criteria:
6-18 (1) the ampere-hour rating of the battery is less than
6-19 10 ampere-hours;
6-20 (2) the sum of the dimensions of the battery (height,
6-21 width, and length) is less than 15 inches; and
6-22 (3) the battery is sealed so that no access to the
6-23 interior of the battery is possible without destroying the battery.
6-24 SECTION 7. Section 361.139, Health and Safety Code, is
6-25 amended to read as follows:
6-26 Sec. 361.139. Factors to be Considered in Setting Fees.
6-27 (a) To promote the public policy of preferred waste management
6-28 methods under Section 361.023 and to provide for an equitable fee
6-29 rate structure, the commission shall consider the following in
6-30 establishing the fees authorized under this subchapter:
6-31 (1) the variation in risks to the public associated
6-32 with different waste management methods, including storage,
6-33 specifically:
6-34 (A) promoting the establishment and maintenance
6-35 of industrial solid waste and hazardous waste reclamation, reuse,
6-36 and recycling facilities;
6-37 (B) promoting the public policy of preferred
6-38 waste management methods for waste streams that are amenable to
6-39 multiple waste management methods; and
6-40 (C) considering whether the waste is ultimately
6-41 disposed of in the state;
6-42 (2) the funding needed to adequately and equitably
6-43 support the regulation of industrial solid waste and hazardous
6-44 waste generation, storage, processing, and disposal activities and
6-45 the remediation of contaminated disposal sites, considering:
6-46 (A) the nature and extent of regulated
6-47 activities and the variation in the cost of regulating different
6-48 types of facilities;
6-49 (B) the cost to the state of operating an
6-50 effective program for the regulation of industrial solid waste and
6-51 hazardous waste which protects human health and the environment and
6-52 is consistent with state and federal authority;
6-53 (C) the higher costs of regulation and oversight
6-54 that may be required for commercial <hazardous> waste management
6-55 facilities;
6-56 (D) the sources and causes of contamination at
6-57 sites in need of remediation; and
6-58 (E) the benefits and beneficiaries of the
6-59 regulatory programs and activities supported through fees assessed
6-60 under this subchapter;
6-61 (3) promoting the efficient and effective use of
6-62 existing industrial solid waste and hazardous waste storage,
6-63 processing, and disposal facilities within the state;
6-64 (4) whether a volume of waste received by a facility
6-65 has been or will be assessed a <hazardous> waste management fee at
6-66 other facilities under Section 361.136; and
6-67 (5) the prevailing rates of similar fees for
6-68 industrial solid waste and hazardous waste activities charged in
6-69 other states to which wastes from this state may be exported or
6-70 from which wastes may be imported for storage, processing, or
7-1 disposal.
7-2 (b) In addition to the factors prescribed in Subsection (a),
7-3 the commission, in establishing fees for the management of
7-4 hazardous waste under Section 361.136, shall also consider:
7-5 (1) the amount of state matching funds necessary for
7-6 remedial actions under the Comprehensive Environmental Response,
7-7 Compensation and Liability Act; and
7-8 (2) the costs of state-funded remedial actions under
7-9 Subchapter F.
7-10 SECTION 8. Section 361.140, Health and Safety Code, is
7-11 amended to read as follows:
7-12 Sec. 361.140. Interest and Penalties. (a) The commission
7-13 by rule shall establish requirements for the assessment of
7-14 penalties and interest for late payment of fees owed the state
7-15 <Interest at an annual rate of 15 percent of the amount of a fee
7-16 due> under Sections 361.134 through 361.137 <and unpaid accrues
7-17 from the date on which the fee is due>. Penalties and interest
7-18 established under this section shall not exceed rates established
7-19 for delinquent taxes under Sections 111.060 and 111.061, Tax Code.
7-20 (b) A person is subject to a civil penalty of up to $100 for
7-21 each day the violation continues for failure to timely submit a
7-22 properly completed report as required by commission rule under
7-23 Section 361.035.
7-24 (c) Interest collected under this section for late payment
7-25 of a fee shall be deposited in the state treasury to the credit of
7-26 the respective fund to which the late fee is credited.
7-27 (d) Any penalty collected under this section for late filing
7-28 of reports shall be deposited in the state treasury to the credit
7-29 of the hazardous and solid waste remediation fee fund.
7-30 SECTION 9. The importance of this legislation and the
7-31 crowded condition of the calendars in both houses create an
7-32 emergency and an imperative public necessity that the
7-33 constitutional rule requiring bills to be read on three several
7-34 days in each house be suspended, and this rule is hereby suspended,
7-35 and that this Act take effect and be in force from and after its
7-36 passage, and it is so enacted.
7-37 * * * * *
7-38 Austin,
7-39 Texas
7-40 April 15, 1993
7-41 Hon. Bob Bullock
7-42 President of the Senate
7-43 Sir:
7-44 We, your Committee on Finance to which was referred S.B. No. 1201,
7-45 have had the same under consideration, and I am instructed to
7-46 report it back to the Senate with the recommendation that it do not
7-47 pass, but that the Committee Substitute adopted in lieu thereof do
7-48 pass and be printed.
7-49 Montford,
7-50 Chairman
7-51 * * * * *
7-52 WITNESSES
7-53 FOR AGAINST ON
7-54 ___________________________________________________________________
7-55 Name: Bob Leonard, Jr. x
7-56 Representing: Tx Burglar & Fire Alarm Assoc
7-57 City: Austin
7-58 -------------------------------------------------------------------
7-59 Name: Stephen Minick x
7-60 Representing: Tx. Water Commission
7-61 City: Austin
7-62 -------------------------------------------------------------------