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.