BILL ANALYSIS
H.B. 2296
By: Jackson (Brown)
Natural Resources
5-21-95
Senate Committee Report (Unamended)
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 Resource 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 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, which
could be used by interested parties who want to voluntarily
remediate contaminated sites that are not necessarily appropriate
for any of the three existing cleanup mechanisms.
PURPOSE
As proposed, H.B. 2296 creates a voluntary cleanup program for
solid and hazardous wastes.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Texas Natural Resource Conservation Commission under SECTION
1 (Sections 361.611(b) and 361.612, Health and Safety Code) of this
bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 361, Health and Safety Code, by adding
Subchapter S, as follows:
SUBCHAPTER S. VOLUNTARY CLEANUP PROGRAM
Sec. 361.601. DEFINITIONS. Defines "contaminant,"
"environmental assessment," "response action," and "voluntary
cleanup."
Sec. 361.602. PURPOSE. Sets forth the purpose of the voluntary
cleanup program.
Sec. 361.603. ELIGIBILITY FOR VOLUNTARY CLEANUP PROGRAM. (a)
Provides that any site is eligible for participation in the
voluntary cleanup program except the portion of a site that is
subject to a Texas Natural Resource Conservation Commission
(commission) permit or order.
(b) Requires a person electing to participate in the
voluntary cleanup program to enter into a voluntary cleanup
agreement as provided by Section 361.606; and pay all costs
of commission oversight of the voluntary cleanup.
Sec. 361.604. APPLICATION TO PARTICIPATE IN VOLUNTARY CLEANUP
PROGRAM. (a) Requires a person who desires to participate in
the voluntary cleanup program under this subchapter to submit
to the commission an application and an application fee as
prescribed by this section.
(b) Sets forth requirements for an application submitted
under this section.
(c) Sets forth requirements for the environmental assessment
required by Subsection (b).
(d) Requires an application to be processed in the order in
which it is received.
(e) Requires fees collected under this section to be
deposited to the credit of the hazardous and solid waste
remediation fee fund.
Sec. 361.605. REJECTION OF APPLICATION. (a) Sets forth
provisions under which the executive director may reject an
application submitted under Section 361.604.
(b) Requires the executive director, no later than 45 days
after receipt of the application, if an application is
rejected because it is not complete or accurate, to provide
the person with a list of all information needed to make the
application complete or accurate. Authorizes a person to
resubmit an application without submitting an additional
application fee.
(c) Sets forth requirements for the executive director, if
the executive director rejects the application.
Sec. 361.606. VOLUNTARY CLEANUP AGREEMENT. (a) Requires a
person desiring to participate in the voluntary cleanup
program, before the executive director evaluates any plan or
report detailing the remediation goals and proposed methods of
remediation, to enter into a voluntary cleanup agreement that
sets forth the terms and conditions of the evaluation of the
reports and the implementation or work plans.
(b) Sets forth provisions a voluntary cleanup agreement must
provide.
(c) Sets forth requirements for the voluntary cleanup
agreement.
(d) Provides that if an agreement is not reached between a
person desiring to participate in the voluntary cleanup
program and the executive director on or before 30 days
after good faith negotiations have begun: the person or the
executive director may withdraw from the negotiations; and
the commission retains the person's application fee.
(e) Prohibits the commission from initiating 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 or for the activity that
resulted in the contamination or release.
Sec. 361.607. TERMINATION OF AGREEMENT; COST RECOVERY. (a)
Authorizes the executive director or the person in its sole
discretion to terminate the agreement by giving 15 days'
advance notice to the other. Provides that only those costs
incurred or obligated by the executive director before notice
of termination of the agreement are recoverable under the
agreement if the agreement is terminated.
(b) Provides that termination of the agreement does not
affect any right the executive director has under other law
to recover costs.
(c) Requires the attorney general, at the request of the
executive director, if the person does not pay to the
commission the state's costs associated with the voluntary
cleanup before 31 days after the person receives notice that
the costs are due and owing, to bring an action in the name
of the state in Travis County to recover the amount owed and
legal expenses.
Sec. 361.608. VOLUNTARY CLEANUP WORK PLANS AND REPORTS. (a)
Requires a person, after signing a voluntary cleanup
agreement, to prepare and submit the appropriate work plans
and reports to the executive director.
(b) Requires the executive director to review and evaluate
the work plans and reports for accuracy, quality, and
completeness. Authorizes the executive director to approve
a voluntary cleanup work plan or report or, if a work plan
or report is not approved, notify the person concerning
additional information or commitments needed to obtain
approval.
(c) Authorizes the executive director, at any time during
the evaluation of a work plan or report, to request the
person to submit additional or corrected information.
(d) Authorizes the executive director, after considering
future land use, to approve work plans and reports submitted
under this section that do not require removal or remedy of
all discharges, releases, and threatened releases at a site
if the partial response actions for the property meet
certain conditions.
Sec. 361.609. CERTIFICATE OF COMPLETION. (a) Requires the
executive director, if the executive director determines that
a person has successfully completed a voluntary cleanup
approved under this subchapter, to certify that the action has
been completed by issuing the person a certificate of
completion.
(b) Sets forth requirements for the certificate of
completion.
(c) Requires 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.
(d) Requires the executive director, if the executive
director determines that the person has not successfully
completed a voluntary cleanup approved under this
subchapter, to notify the person who undertook the voluntary
cleanup and the current owner of the site that is the
subject of the cleanup of this determination.
Sec. 361.610. PERSONS RELEASED FROM LIABILITY. (a) Provides
that a person who is not a responsible party under Section
361.271 or 361.275(g) at the time the person applies to
perform a voluntary cleanup is released, on certification
under Section 361.609, from all liability to the state for
cleanup of areas of the site covered by the certification,
except for releases and consequences that the person causes.
(b) Provides that the release from liability is not
effective if a certificate of completion is acquired by
fraud, misrepresentation, or knowing failure to disclose
material information.
(c) Provides that if a certificate of completion for a site
is issued by the commission, an owner who acquires the
property on which the site is located or a lender who makes
a loan secured by that property after the date of issuance
of the certificate is released from all liability for
cleanup of contamination released before the date of the
certificate for the areas covered by the certificate unless
the owner or lender was originally included as a responsible
party under Section 361.271 or 361.275(g). Provides that a
release of liability does not apply to a person who changes
land use from the use specified in the certificate of
completion if the new use may result in increased risks to
human health or the environment.
Sec. 361.611. PERMIT NOT REQUIRED. (a) Provides that a state
or local permit is not required for removal or remedial action
conducted on a site as part of a voluntary cleanup under this
subchapter. Requires a person to coordinate a voluntary
cleanup with ongoing federal and state hazardous waste
programs.
(b) Requires the commission, by rule, to require that the
person conducting the voluntary cleanup comply with any
federal or state standard, requirement, criterion, or
limitation to which the remedial action would otherwise be
subject if a permit were required.
Sec. 361.612. PUBLIC PARTICIPATION. Authorizes the commission
to adopt rules pertaining to public participation in voluntary
cleanup decisions.
Sec. 361.613. COST REPORT; BUDGET ALLOCATION. (a) Requires the
executive director annually to calculate the commission's
costs to administer the voluntary cleanup program under this
subchapter and to publish in the Texas Register the rates
established for the purposes of identifying the costs
recoverable by the commission under this subchapter.
(b) Requires costs recovered under this subchapter and
appropriated to the commission to be budgeted and
distributed to each organizational unit of the commission
solely on the basis of costs fairly attributable to the
voluntary cleanup program.
SECTION 2. Amends Sections 361.133(b) and (c), Health and Safety
Code, to add fees imposed under Section 361.604, and federal grants
received for the implementation or administration of state
voluntary cleanup programs, to the provisions from which money
collected by the commission constitute the fund. Adds to the list
of provisions for which the commission may use the money collected
and deposited to the credit of the fund under this section,
including interest credited under Subsection (b)(4), expenses
concerning implementation of the voluntary cleanup program under
Subchapter S.
SECTION 3. Effective date: September 1, 1995.
SECTION 4. Emergency clause.