BILL ANALYSIS
C.S.H.B. 2296
By: Jackson
4-11-95
Committee Report (Substituted)
BACKGROUND
Currently, land in Texas that is contaminated by a hazardous waste
can only be cleared up through one of three mechanisms: (1) an
enforcement order issued by the Texas Natural Resources
Conservation Commission (TNRCC); (2) through the federal or state
Superfund programs; or (3) through the federal Resource
Conservation and Recovery Act (RCRA). These three alternatives
provide the TNRCC with the authority to ensure that the cleanup is
completed properly. Also, each of these methods use existing TNRCC
risk reduction rules (Subchapter S, TAC 33.551-599), which
establish acceptable cleanup levels for specific sites and for
specific contaminants. However, there is a growing interest in an
additional cleanup program, that could be used by interested
parties that want to voluntarily remediate contaminated sites that
are not necessarily appropriate for any of the three existing
cleanup mechanisms.
Such a voluntary cleanup program was first developed in the
northeast, to address remediation of inner-city sites that were
otherwise unusable due to the contamination. In Texas, a voluntary
cleanup program would help to handle the large number of site
remediations currently being driven by real estate transactions.
The program would allow interested parties to notify TNRCC of their
intent to clean up the site, using the existing risk reduction
rules or other applicable cleanup standards. The program would be
self-funded by fees paid by the interested parties. At the
successful completion of the cleanup, the TNRCC would grant the
parties a certification of completion releasing future owners and
lenders from liability at the site.
PURPOSE
HB 2296 allows interested parties to voluntarily clean up
contaminated sites while allowing the state to ensure that certain
clean up standards have been met.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill expressly grants
rulemaking authority to the Texas Natural Resource Conservation
Commission in SECTION 1 [Sec. 361.604 (b), Health and Safety Code,
Sec. 361.611 (b), Health & Safety Code, Sec. 361.612, Health and
Safety Code].
SECTION BY SECTION ANALYSIS
SECTION 1: Amends Chapter 361, Health and Safety Code, by adding
Subchapter S as follows:
Section 361.601. DEFINITIONS.
Specifies that "contaminant" includes solid waste, specified
hazardous wastes, and specified pollutants. Sates that
"environmental assessment" means the assessment which is
described by Section 361.603 which lists criteria that must be
included in the assessment. "Response action" is defined as
the cleanup or removal of a hazardous substance or contaminant
from the environment, and "voluntary cleanup" is defined as a
response action taken under and in compliance with this
subchapter.
Section 361.602. PURPOSE. The purpose for the voluntary
cleanup program is to provide incentive to remediate property
by removing liability of lenders and future landowners.
Section 361.603. ELIGIBILITY FOR VOLUNTARY CLEANUP PROGRAM.
Any site is eligible for participation in the voluntary
cleanup program except the portion subject to a
commission permit or order. Persons participating in
the program must enter into a voluntary agreement and
pay all costs of commission oversight.
Section 361.604. APPLICATION TO PARTICIPATE IN VOLUNTARY
CLEANUP PROGRAM. A person desiring to participate in the
voluntary cleanup program must submit an application and an
application fee. The application must be on a provided form
and contain general information regarding the site, the
person, the person's capability to perform the cleanup,
background information requested, an environmental assessment
and a $1,000 application fee, all submitted according to
schedules set by commission rule. The environmental
assessment must include a legal description of the site, a
description of the physical characteristics of the site, the
operational history of the site, and information that the
applicant has regarding the nature and extent of any relevant
contamination at the site. Fees collected under this section
shall be deposited to the credit of the hazardous and solid
waste remediation fund.
Section 361.605. REJECTION OF APPLICATION. The executive
director may reject an application if there is enforcement
action pending, a federal grant requires an enforcement action
at the site, the application is not complete or accurate, or
the site is ineligible under Section 361.603. If the
application is not complete or accurate, the executive
director shall provide the person with a list of information
needed. If the application is rejected the executive director
shall notify the person, explain the reasons for the
rejection, and explain that half the application fee will be
returned unless the person desires to resubmit.
Section 361.606. VOLUNTARY CLEANUP AGREEMENT. A person
desiring to participate in the voluntary cleanup program must
enter into a voluntary agreement that sets forth the terms and
conditions of the evaluation of the reports and implementation
of work plans. The agreement must provide for recovery by the
commission of all reasonable costs, a schedule of payments to
be made to the commission, and appropriate tasks,
deliverables, and schedules. The agreement shall also
identify all statutes and rules that must be complied with,
describe the work plan, include a schedule for submitting
information, and state technical standards to be applied. If
agreement is not reached, either party may withdraw from
negotiations, and the commission retains the application fee.
The commission may not initiate an enforcement action against
a person who is in compliance with this section for the
contamination or release that is the subject of the voluntary
cleanup agreement.
Section 361.607. TERMINATION OF AGREEMENT; COST RECOVERY.
Either party may terminate the agreement by giving 15 days
advance notice. Only those costs incurred by the executive
director before notice of termination are recoverable.
Termination does not affect any right the executive director
has under law to recover costs. The attorney general, at the
request of the executive director, shall bring action to
recover any amount owed, and not paid in a timely manner, in
addition to reasonable legal expenses.
Section 361.608. VOLUNTARY CLEANUP WORK PLANS AND REPORTS.
After signing a voluntary cleanup agreement, the person shall
prepare and submit the appropriate work plans and reports to
the executive director, who shall review and evaluate them.
The executive director may approve the plan, or notify the
person of additional information needed to obtain approval.
After considering future land use, the executive director may
approve work plans that do not require removal or remedy of
all discharges, releases, and threatened releases if partial
actions will protect human health and the environment, will
not cause, contribute, or exacerbate present or future
contamination not required to be removed under the work plan,
and it will not interfere with or substantially increase the
costs of response actions to address the remaining discharges,
releases, or threatened releases.
Section 361.609. CERTIFICATE OF COMPLETION. Provides for a
certificate of completion, with acknowledgement of liability
protection, to be issued by the executive director upon
determination that a voluntary cleanup has been successfully
completed. The executive director is required to file the
certificate of completion in the real property records of the
county in which the land is located. Requires the executive
director to notify a person if the voluntary cleanup was not
successfully completed.
Section 361.610. PERSONS RELEASED FROM LIABILITY. A person
who is not a responsible party at the time of application to
perform a voluntary cleanup is released from all liability to
the state for cleanup of areas certified complete, except for
releases and consequences caused by that person. The release
from liability is not effective if the certificate of
completion is acquired by fraud, misrepresentation, or failure
to disclose. If a certificate of completion is issued by the
commission, future owners or lenders are released from
liability, unless future use may increase risks to human
health and the environment.
Section 361.611. PERMIT NOT REQUIRED. Provides that a permit
is not required for removal or remedial action conducted on a
site as part of a voluntary cleanup under this subchapter.
Requires the commission, by rule, to require that the
voluntary cleanup comply with applicable federal or state
standards or other criterion.
Section 361.612. PUBLIC PARTICIPATION. Allows the commission
to adopt rules pertaining to public participation in voluntary
cleanup decisions.
Section 361.613. COST REPORT; BUDGET ALLOCATION. Requires
the executive director annually to calculate and publish
administrative costs associated with the voluntary cleanup
program. The costs recovered are to be budgeted throughout
the TNRCC.
SECTION 2: Amends Section 361.133, Health and Safety Code, to
include State voluntary cleanup program fees and federal grants
received in the hazardous waste and solid waste remediation fee
fund, and to use the fund for the voluntary cleanup program.
SECTION 3: Effective date: September 1, 1995.
SECTION 4: Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
Original HB 2296
Committee Substitute for HB
2296
No similar provision in the
original.
Any activity under the
jurisdiction of the Railroad
Commission is not included in
the voluntary cleanup program.
Includes a statement of
purpose in §361.602.
§361.602 directs the
commission by rule to adopt
site eligibility requirements
for participation in the
voluntary cleanup program;
this language is not included
in the substitute.
§361.603(a) A site is eligible
for participation except for
the portion which is subject
to a permit or order.
§361.603 (c) (5) states that
the environmental assessment
must include relevant
information of which the
applicant is aware concerning
the potential for human
exposure to contamination at
the site.
No similar provision in the
substitute.
No similar provision in the
original.
The substitute adds a new
subsection (e) to §361.606
(§361.605 in the original
bill). The commission may not
initiate an enforcement action
against a person who is in
compliance with this section
for contamination that is the
subject of the cleanup
agreement.
§361.607(d) Allows the
executive director to approve
work plans and reports
submitted under this section
as stipulated.
§361.608 (d) Allows the
executive director to approve
work plans and reports
submitted under this section
as stipulated, after
considering future land use.
No similar provision in the
original.
§361.609 (§361.608 in the
original bill) (b) and (c).
Language is included in the
substitute requiring the
executive director to file a
copy of the certificate of
completion in the real
property records of the county
in which the site is located.
The certificate of completion
must also include a legal
description of the site and
the name of the site's owner.
SUMMARY OF COMMITTEE ACTION
HB 2296 was considered by the House Committee on Environmental
Regulation in a public hearing on April 4, 1995. The committee
considered two amendments to HB 2296. The following persons
testified in favor of the bill:
Steve Perry, representing Texaco and Star Enterprises
Jim E. Kennedy, representing Texas Chemical Council.
The following persons testified neutrally on the bill:
David Duncan, representing the Texas Natural Resource
Conservation Commission
Ken Kramer, representing the Sierra Club
Charles Epperson, representing the Texas Natural Resources
Conservation Commission.
Both of the amendments to HB 2296 were withdrawn without objection.
Without objection, HB 2296 was left pending.
HB 2296 was considered by the House Committee on Environmental
Regulation in a public hearing on April 11, 1995. The committee
considered a complete substitute for the bill. By the same motion,
the substitute was adopted and HB 2296 was reported favorably as
substituted with the recommendation that it do pass and be printed,
by a record vote of nine (9) ayes, no (0) nays, no (0) pnv, and no
(0) absent.