By Jackson H.B. No. 2296
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of a voluntary cleanup program for solid
1-3 and hazardous wastes.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 361, Health and Safety Code, is amended
1-6 by adding Subchapter S to read as follows:
1-7 SUBCHAPTER S. VOLUNTARY CLEANUP PROGRAM
1-8 Sec. 361.601. DEFINITIONS. In this subchapter:
1-9 (1) "Contaminant" includes:
1-10 (A) solid waste;
1-11 (B) hazardous waste;
1-12 (C) a hazardous waste constituent listed in 40
1-13 C.F.R. Part 261, Subpart D, or Table 1, 40 C.F.R. Section 261.24;
1-14 (D) a pollutant as defined in Section 26.001,
1-15 Water Code; and
1-16 (E) a hazardous substance:
1-17 (i) as defined in Section 361.003; or
1-18 (ii) subject to Sections 26.261-26.268,
1-19 Water Code.
1-20 (2) "Environmental assessment" means the assessment
1-21 described by Section 361.604.
1-22 (3) "Response action" means the cleanup or removal of
1-23 a hazardous substance or contaminant from the environment,
1-24 excluding a waste, pollutant, or substance regulated by or that
2-1 results from an activity under the jurisdiction of the Railroad
2-2 Commission of Texas under Chapter 91 or 141, Natural Resources
2-3 Code, or Chapter 27, Water Code.
2-4 (4) "Voluntary cleanup" means a response action taken
2-5 under and in compliance with this subchapter.
2-6 Sec. 361.602. PURPOSE. The purpose of the voluntary cleanup
2-7 program is to provide incentive to remediate property by removing
2-8 liability of lenders and future landowners. The program does not
2-9 replace other voluntary actions and is restricted to voluntary
2-10 actions.
2-11 Sec. 361.603. ELIGIBILITY FOR VOLUNTARY CLEANUP PROGRAM.
2-12 (a) Any site is eligible for participation in the voluntary
2-13 cleanup program except the portion of a site that is subject to a
2-14 commission permit or order.
2-15 (b) A person electing to participate in the voluntary
2-16 cleanup program must:
2-17 (1) enter into a voluntary cleanup agreement as
2-18 provided by Section 361.606; and
2-19 (2) pay all costs of commission oversight of the
2-20 voluntary cleanup.
2-21 Sec. 361.604. APPLICATION TO PARTICIPATE IN VOLUNTARY
2-22 CLEANUP PROGRAM. (a) A person who desires to participate in the
2-23 voluntary cleanup program under this subchapter must submit to the
2-24 commission an application and an application fee as prescribed by
2-25 this section.
2-26 (b) An application submitted under this section must:
2-27 (1) be on a form provided by the executive director;
3-1 (2) contain:
3-2 (A) general information concerning:
3-3 (i) the person and the person's
3-4 capability, including the person's financial capability, to perform
3-5 the voluntary cleanup; and
3-6 (ii) the site;
3-7 (B) other background information requested by
3-8 the executive director; and
3-9 (C) an environmental assessment of the actual or
3-10 threatened release of the hazardous substance or contaminant at the
3-11 site;
3-12 (3) be accompanied by an application fee of $1,000;
3-13 and
3-14 (4) be submitted according to schedules set by
3-15 commission rule.
3-16 (c) The environmental assessment required by Subsection (b)
3-17 must include:
3-18 (1) a legal description of the site;
3-19 (2) a description of the physical characteristics of
3-20 the site;
3-21 (3) the operational history of the site to the extent
3-22 that history is known by the applicant;
3-23 (4) information of which the applicant is aware
3-24 concerning the nature and extent of any relevant contamination or
3-25 release at the site and immediately contiguous to the site, or
3-26 wherever the contamination came to be located; and
3-27 (5) relevant information of which the applicant is
4-1 aware concerning the potential for human exposure to contamination
4-2 at the site.
4-3 (d) An application shall be processed in the order in which
4-4 it is received.
4-5 (e) Fees collected under this section shall be deposited to
4-6 the credit of the hazardous and solid waste remediation fee fund.
4-7 Sec. 361.605. REJECTION OF APPLICATION. (a) The executive
4-8 director may reject an application submitted under Section 361.604
4-9 if:
4-10 (1) an administrative, state, or federal enforcement
4-11 action is pending that concerns the remediation of the hazardous
4-12 substance or contaminant described in the application;
4-13 (2) a federal grant requires an enforcement action at
4-14 the site;
4-15 (3) the application is not complete or accurate; or
4-16 (4) the site is ineligible under Section 361.603.
4-17 (b) If an application is rejected because it is not complete
4-18 or accurate, the executive director, not later than the 45th day
4-19 after receipt of the application, shall provide the person with a
4-20 list of all information needed to make the application complete or
4-21 accurate. A person may resubmit an application without submitting
4-22 an additional application fee.
4-23 (c) If the executive director rejects the application, the
4-24 executive director shall:
4-25 (1) notify the person that the application has been
4-26 rejected;
4-27 (2) explain the reasons for rejection of the
5-1 application; and
5-2 (3) inform the person that the commission will refund
5-3 half the person's application fee unless the person indicates a
5-4 desire to resubmit an application.
5-5 Sec. 361.606. VOLUNTARY CLEANUP AGREEMENT. (a) Before the
5-6 executive director evaluates any plan or report detailing the
5-7 remediation goals and proposed methods of remediation, the person
5-8 desiring to participate in the voluntary cleanup program must enter
5-9 into a voluntary cleanup agreement that sets forth the terms and
5-10 conditions of the evaluation of the reports and the implementation
5-11 of work plans.
5-12 (b) A voluntary cleanup agreement must provide for:
5-13 (1) recovery by the commission of all reasonable
5-14 costs:
5-15 (A) incurred by the commission in review and
5-16 oversight of the person's work plan and reports and as a result of
5-17 the commission's field activities;
5-18 (B) attributable to the voluntary cleanup
5-19 agreement; and
5-20 (C) in excess of the amount of fees submitted by
5-21 the applicant under Section 361.604;
5-22 (2) a schedule of payments to the commission to be
5-23 made by the person for recovery of all commission costs fairly
5-24 attributable to the voluntary cleanup program, including direct and
5-25 indirect costs of overhead, salaries, equipment, and utilities, and
5-26 legal, management, and support costs; and
5-27 (3) appropriate tasks, deliverables, and schedules.
6-1 (c) The voluntary cleanup agreement shall:
6-2 (1) identify all statutes and rules that must be
6-3 complied with;
6-4 (2) describe any work plan or report to be submitted
6-5 for review by the executive director, including a final report that
6-6 provides all information necessary to verify that all work
6-7 contemplated by the voluntary cleanup agreement has been completed;
6-8 (3) include a schedule for submitting the information
6-9 required by Subdivision (2); and
6-10 (4) state the technical standards to be applied in
6-11 evaluating the work plans and reports, with reference to the
6-12 proposed future land use to be achieved.
6-13 (d) If an agreement is not reached between a person desiring
6-14 to participate in the voluntary cleanup program and the executive
6-15 director on or before the 30th day after good faith negotiations
6-16 have begun:
6-17 (1) the person or the executive director may withdraw
6-18 from the negotiations; and
6-19 (2) the commission retains the person's application
6-20 fee.
6-21 (e) The commission may not initiate an enforcement action
6-22 against a person who is in compliance with this section for the
6-23 contamination or release that is the subject of the voluntary
6-24 cleanup agreement or for the activity that resulted in the
6-25 contamination or release.
6-26 Sec. 361.607. TERMINATION OF AGREEMENT; COST RECOVERY. (a)
6-27 The executive director or the person in its sole discretion may
7-1 terminate the agreement by giving 15 days' advance written notice
7-2 to the other. Only those costs incurred or obligated by the
7-3 executive director before notice of termination of the agreement
7-4 are recoverable under the agreement if the agreement is terminated.
7-5 (b) Termination of the agreement does not affect any right
7-6 the executive director has under other law to recover costs.
7-7 (c) If the person does not pay to the commission the state's
7-8 costs associated with the voluntary cleanup before the 31st day
7-9 after the date the person receives notice that the costs are due
7-10 and owing, the attorney general, at the request of the executive
7-11 director, shall bring an action in the name of the state in Travis
7-12 County to recover the amount owed and reasonable legal expenses,
7-13 including attorney's fees, witness costs, court costs, and
7-14 deposition costs.
7-15 Sec. 361.608. VOLUNTARY CLEANUP WORK PLANS AND REPORTS. (a)
7-16 After signing a voluntary cleanup agreement, the person shall
7-17 prepare and submit the appropriate work plans and reports to the
7-18 executive director.
7-19 (b) The executive director shall review and evaluate the
7-20 work plans and reports for accuracy, quality, and completeness.
7-21 The executive director may approve a voluntary cleanup work plan or
7-22 report or, if a work plan or report is not approved, notify the
7-23 person concerning additional information or commitments needed to
7-24 obtain approval.
7-25 (c) At any time during the evaluation of a work plan or
7-26 report, the executive director may request the person to submit
7-27 additional or corrected information.
8-1 (d) After considering future land use, the executive
8-2 director may approve work plans and reports submitted under this
8-3 section that do not require removal or remedy of all discharges,
8-4 releases, and threatened releases at a site if the partial response
8-5 actions for the property:
8-6 (1) will be completed in a manner that protects human
8-7 health and the environment;
8-8 (2) will not cause, contribute, or exacerbate
8-9 discharges, releases, or threatened releases that are not required
8-10 to be removed or remedied under the work plan; and
8-11 (3) will not interfere with or substantially increase
8-12 the cost of response actions to address the remaining discharges,
8-13 releases, or threatened releases.
8-14 Sec. 361.609. CERTIFICATE OF COMPLETION. (a) If the
8-15 executive director determines that a person has successfully
8-16 completed a voluntary cleanup approved under this subchapter, the
8-17 executive director shall certify that the action has been completed
8-18 by issuing the person a certificate of completion.
8-19 (b) The certificate of completion shall:
8-20 (1) acknowledge the protection from liability provided
8-21 by Section 361.610;
8-22 (2) indicate the proposed future land use; and
8-23 (3) include a legal description of the site and the
8-24 name of the site's owner.
8-25 (c) The executive director shall file a copy of the
8-26 certificate of completion in the real property records of the
8-27 county in which the site is located.
9-1 (d) If the executive director determines that the person has
9-2 not successfully completed a voluntary cleanup approved under this
9-3 subchapter, the executive director shall notify the person who
9-4 undertook the voluntary cleanup and the current owner of the site
9-5 that is the subject of the cleanup of this determination.
9-6 Sec. 361.610. PERSONS RELEASED FROM LIABILITY. (a) A
9-7 person who is not a responsible party under Section 361.271 or
9-8 361.275(g) at the time the person applies to perform a voluntary
9-9 cleanup is released, on certification under Section 361.609, from
9-10 all liability to the state for cleanup of areas of the site covered
9-11 by the certification, except for releases and consequences that the
9-12 person causes.
9-13 (b) The release from liability is not effective if a
9-14 certificate of completion is acquired by fraud, misrepresentation,
9-15 or knowing failure to disclose material information.
9-16 (c) If a certificate of completion for a site is issued by
9-17 the commission, an owner who acquires the property on which the
9-18 site is located or a lender who makes a loan secured by that
9-19 property after the date of issuance of the certificate is released
9-20 from all liability for cleanup of contamination released before the
9-21 date of the certificate for the areas covered by the certificate
9-22 unless the owner or lender was originally included as a responsible
9-23 party under Section 361.271 or 361.275(g). A release of liability
9-24 does not apply to a person who changes land use from the use
9-25 specified in the certificate of completion if the new use may
9-26 result in increased risks to human health or the environment.
9-27 Sec. 361.611. PERMIT NOT REQUIRED. (a) A state or local
10-1 permit is not required for removal or remedial action conducted on
10-2 a site as part of a voluntary cleanup under this subchapter. A
10-3 person shall coordinate a voluntary cleanup with ongoing federal
10-4 and state hazardous waste programs.
10-5 (b) The commission by rule shall require that the person
10-6 conducting the voluntary cleanup comply with any federal or state
10-7 standard, requirement, criterion, or limitation to which the
10-8 remedial action would otherwise be subject if a permit were
10-9 required.
10-10 Sec. 361.612. PUBLIC PARTICIPATION. The commission may
10-11 adopt rules pertaining to public participation in voluntary cleanup
10-12 decisions.
10-13 Sec. 361.613. COST REPORT; BUDGET ALLOCATION. (a) The
10-14 executive director annually shall calculate the commission's costs
10-15 to administer the voluntary cleanup program under this subchapter
10-16 and shall publish in the Texas Register the rates established for
10-17 the purposes of identifying the costs recoverable by the commission
10-18 under this subchapter.
10-19 (b) Costs recovered under this subchapter and appropriated
10-20 to the commission shall be budgeted and distributed to each
10-21 organizational unit of the commission solely on the basis of costs
10-22 fairly attributable to the voluntary cleanup program.
10-23 SECTION 2. Sections 361.133(b) and (c), Health and Safety
10-24 Code, are amended to read as follows:
10-25 (b) The fund consists of money collected by the commission
10-26 from:
10-27 (1) fees imposed on the owner or operator of an
11-1 industrial solid waste or hazardous waste facility for commercial
11-2 and noncommercial management or disposal of hazardous waste or
11-3 commercial disposal of industrial solid waste under Section 361.136
11-4 and fees imposed under Section 361.138;
11-5 (2) interest and penalties imposed under Section
11-6 361.140 for late payment of a fee or late filing of a report;
11-7 (3) money paid by a person liable for facility cleanup
11-8 and maintenance under Section 361.197;
11-9 (4) the interest received from the investment of this
11-10 fund, in accounts under the charge of the treasurer, to be credited
11-11 pro rata to the hazardous and solid waste remediation fee fund;
11-12 <and>
11-13 (5) monies transferred from other agencies under
11-14 provisions of this code or grants or other payments from any person
11-15 made for the purpose of remediation of facilities under this
11-16 chapter or the investigation, cleanup, or removal of a spill or
11-17 release of a hazardous substance;
11-18 (6) fees imposed under Section 361.604; and
11-19 (7) federal grants received for the implementation or
11-20 administration of state voluntary cleanup programs.
11-21 (c) The commission may use the money collected and deposited
11-22 to the credit of the fund under this section, including interest
11-23 credited under Subsection (b)(4), only for:
11-24 (1) necessary and appropriate removal and remedial
11-25 action at sites at which solid waste or hazardous substances have
11-26 been disposed if funds from a liable person, independent third
11-27 person, or the federal government are not sufficient for the
12-1 removal or remedial action;
12-2 (2) necessary and appropriate maintenance of removal
12-3 and remedial actions for the expected life of those actions if:
12-4 (A) funds from a liable person have been
12-5 collected and deposited to the credit of the fund for that purpose;
12-6 or
12-7 (B) funds from a liable person, independent
12-8 third person, or the federal government are not sufficient for the
12-9 maintenance;
12-10 (3) expenses concerning compliance with:
12-11 (A) the Comprehensive Environmental Response,
12-12 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
12-13 seq.) as amended;
12-14 (B) the federal Superfund Amendments and
12-15 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
12-16 (C) Subchapters F and I;
12-17 (4) expenses concerning the regulation and management
12-18 of household hazardous substances and the prevention of pollution
12-19 of the water resources of the state from the uncontrolled release
12-20 of hazardous substances; <and>
12-21 (5) expenses concerning the cleanup or removal of a
12-22 spill, release, or potential threat of release of a hazardous
12-23 substance where immediate action is appropriate to protect human
12-24 health and the environment; and
12-25 (6) expenses concerning implementation of the
12-26 voluntary cleanup program under Subchapter S.
12-27 SECTION 3. This Act takes effect September 1, 1995.
13-1 SECTION 4. The importance of this legislation and the
13-2 crowded condition of the calendars in both houses create an
13-3 emergency and an imperative public necessity that the
13-4 constitutional rule requiring bills to be read on three several
13-5 days in each house be suspended, and this rule is hereby suspended.