74R10375 JJT-D
          By Jackson                                            H.B. No. 2296
          Substitute the following for H.B. No. 2296:
          By Jackson                                        C.S.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.
   2-10        Sec. 361.603.  ELIGIBILITY FOR VOLUNTARY CLEANUP PROGRAM.
   2-11  (a)  Any site is eligible for participation in the voluntary
   2-12  cleanup program except the portion of a site that is subject to a
   2-13  commission permit or order.
   2-14        (b)  A person electing to participate in the voluntary
   2-15  cleanup program must:
   2-16              (1)  enter into a voluntary cleanup agreement as
   2-17  provided by Section 361.606; and
   2-18              (2)  pay all costs of commission oversight of the
   2-19  voluntary cleanup.
   2-20        Sec. 361.604.  APPLICATION TO PARTICIPATE IN VOLUNTARY
   2-21  CLEANUP PROGRAM.  (a)  A person who desires to participate in the
   2-22  voluntary cleanup program under this subchapter must submit to the
   2-23  commission an application and an application fee as prescribed by
   2-24  this section.
   2-25        (b)  An application submitted under this section must:
   2-26              (1)  be on a form provided by the executive director;
   2-27              (2)  contain:
    3-1                    (A)  general information concerning:
    3-2                          (i)  the person and the person's
    3-3  capability, including the person's financial capability, to perform
    3-4  the voluntary cleanup; and
    3-5                          (ii)  the site;
    3-6                    (B)  other background information requested by
    3-7  the executive director; and
    3-8                    (C)  an environmental assessment of the actual or
    3-9  threatened release of the hazardous substance or contaminant at the
   3-10  site;
   3-11              (3)  be accompanied by an application fee of $1,000;
   3-12  and
   3-13              (4)  be submitted according to schedules set by
   3-14  commission rule.
   3-15        (c)  The environmental assessment required by Subsection (b)
   3-16  must include:
   3-17              (1)  a legal description of the site;
   3-18              (2)  a description of the physical characteristics of
   3-19  the site;
   3-20              (3)  the operational history of the site to the extent
   3-21  that history is known by the applicant; and
   3-22              (4)  information of which the applicant is aware
   3-23  concerning the nature and extent of any relevant contamination or
   3-24  release at the site and immediately contiguous to the site, or
   3-25  wherever the contamination came to be located.
   3-26        (d)  An application shall be processed in the order in which
   3-27  it is received.
    4-1        (e)  Fees collected under this section shall be deposited to
    4-2  the credit of the hazardous and solid waste remediation fee fund.
    4-3        Sec. 361.605.  REJECTION OF APPLICATION.  (a)  The executive
    4-4  director may reject an application submitted under Section 361.604
    4-5  if:
    4-6              (1)  an administrative, state, or federal enforcement
    4-7  action is pending that concerns the remediation of the hazardous
    4-8  substance or contaminant described in the application;
    4-9              (2)  a federal grant requires an enforcement action at
   4-10  the site;
   4-11              (3)  the application is not complete or accurate; or
   4-12              (4)  the site is ineligible under Section 361.603.
   4-13        (b)  If an application is rejected because it is not complete
   4-14  or accurate, the executive director, not later than the 45th day
   4-15  after receipt of the application, shall provide the person with a
   4-16  list of all information needed to make the application complete or
   4-17  accurate.  A person may resubmit an application without submitting
   4-18  an additional application fee.
   4-19        (c)  If the executive director rejects the application, the
   4-20  executive director shall:
   4-21              (1)  notify the person that the application has been
   4-22  rejected;
   4-23              (2)  explain the reasons for rejection of the
   4-24  application; and
   4-25              (3)  inform the person that the commission will refund
   4-26  half the person's application fee unless the person indicates a
   4-27  desire to resubmit an application.
    5-1        Sec. 361.606.  VOLUNTARY CLEANUP AGREEMENT.  (a)  Before the
    5-2  executive director evaluates any plan or report detailing the
    5-3  remediation goals and proposed methods of remediation, the person
    5-4  desiring to participate in the voluntary cleanup program must enter
    5-5  into a voluntary cleanup agreement that sets forth the terms and
    5-6  conditions of the evaluation of the reports and the implementation
    5-7  of work plans.
    5-8        (b)  A voluntary cleanup agreement must provide for:
    5-9              (1)  recovery by the commission of all reasonable
   5-10  costs:
   5-11                    (A)  incurred by the commission in review and
   5-12  oversight of the person's work plan and reports and as a result of
   5-13  the commission's field activities;
   5-14                    (B)  attributable to the voluntary cleanup
   5-15  agreement; and
   5-16                    (C)  in excess of the amount of fees submitted by
   5-17  the applicant under Section 361.604;
   5-18              (2)  a schedule of payments to the commission to be
   5-19  made by the person for recovery of all commission costs fairly
   5-20  attributable to the voluntary cleanup program, including direct and
   5-21  indirect costs of overhead, salaries, equipment, and utilities, and
   5-22  legal, management, and support costs; and
   5-23              (3)  appropriate tasks, deliverables, and schedules.
   5-24        (c)  The voluntary cleanup agreement shall:
   5-25              (1)  identify all statutes and rules that must be
   5-26  complied with;
   5-27              (2)  describe any work plan or report to be submitted
    6-1  for review by the executive director, including a final report that
    6-2  provides all information necessary to verify that all work
    6-3  contemplated by the voluntary cleanup agreement has been completed;
    6-4              (3)  include a schedule for submitting the information
    6-5  required by Subdivision (2); and
    6-6              (4)  state the technical standards to be applied in
    6-7  evaluating the work plans and reports, with reference to the
    6-8  proposed future land use to be achieved.
    6-9        (d)  If an agreement is not reached between a person desiring
   6-10  to participate in the voluntary cleanup program and the executive
   6-11  director on or before the 30th day after good faith negotiations
   6-12  have begun:
   6-13              (1)  the person or the executive director may withdraw
   6-14  from the negotiations; and
   6-15              (2)  the commission retains the person's application
   6-16  fee.
   6-17        (e)  The commission may not initiate an enforcement action
   6-18  against a person who is in compliance with this section for the
   6-19  contamination or release that is the subject of the voluntary
   6-20  cleanup agreement or for the activity that resulted in the
   6-21  contamination or release.
   6-22        Sec. 361.607.  TERMINATION OF AGREEMENT; COST RECOVERY.  (a)
   6-23  The executive director or the person in its sole discretion may
   6-24  terminate the agreement by giving 15 days' advance written notice
   6-25  to the other.  Only those costs incurred or obligated by the
   6-26  executive director before notice of termination of the agreement
   6-27  are recoverable under the agreement if the agreement is terminated.
    7-1        (b)  Termination of the agreement does not affect any right
    7-2  the executive director has under other law to recover costs.
    7-3        (c)  If the person does not pay to the commission the state's
    7-4  costs associated with the voluntary cleanup before the 31st day
    7-5  after the date the person receives notice that the costs are due
    7-6  and owing, the attorney general, at the request of the executive
    7-7  director, shall bring an action in the name of the state in Travis
    7-8  County to recover the amount owed and reasonable legal expenses,
    7-9  including attorney's fees, witness costs, court costs, and
   7-10  deposition costs.
   7-11        Sec. 361.608.  VOLUNTARY CLEANUP WORK PLANS AND REPORTS.  (a)
   7-12  After signing a voluntary cleanup agreement, the person shall
   7-13  prepare and submit the appropriate work plans and reports to the
   7-14  executive director.
   7-15        (b)  The executive director shall review and evaluate the
   7-16  work plans and reports for accuracy, quality, and completeness.
   7-17  The executive director may approve a voluntary cleanup work plan or
   7-18  report or, if a work plan or report is not approved, notify the
   7-19  person concerning additional information or commitments needed to
   7-20  obtain approval.
   7-21        (c)  At any time during the evaluation of a work plan or
   7-22  report, the executive director may request the person to submit
   7-23  additional or corrected information.
   7-24        (d)  After considering future land use, the executive
   7-25  director may approve work plans and reports submitted under this
   7-26  section that do not require removal or remedy of all discharges,
   7-27  releases, and threatened releases at a site if the partial response
    8-1  actions for the property:
    8-2              (1)  will be completed in a manner that protects human
    8-3  health and the environment;
    8-4              (2)  will not cause, contribute, or exacerbate
    8-5  discharges, releases, or threatened releases that are not required
    8-6  to be removed or remedied under the work plan; and
    8-7              (3)  will not interfere with or substantially increase
    8-8  the cost of response actions to address the remaining discharges,
    8-9  releases, or threatened releases.
   8-10        Sec. 361.609.  CERTIFICATE OF COMPLETION.  (a)  If the
   8-11  executive director determines that a person has successfully
   8-12  completed a voluntary cleanup approved under this subchapter, the
   8-13  executive director shall certify that the action has been completed
   8-14  by issuing the person a certificate of completion.
   8-15        (b)  The certificate of completion shall:
   8-16              (1)  acknowledge the protection from liability provided
   8-17  by Section 361.610;
   8-18              (2)  indicate the proposed future land use; and
   8-19              (3)  include a legal description of the site and the
   8-20  name of the site's owner.
   8-21        (c)  The executive director shall file a copy of the
   8-22  certificate of completion in the real property records of the
   8-23  county in which the site is located.
   8-24        (d)  If the executive director determines that the person has
   8-25  not successfully completed a voluntary cleanup approved under this
   8-26  subchapter, the executive director shall notify the person who
   8-27  undertook the voluntary cleanup and the current owner of the site
    9-1  that is the subject of the cleanup of this determination.
    9-2        Sec. 361.610.  PERSONS RELEASED FROM LIABILITY.  (a)  A
    9-3  person who is not a responsible party under Section 361.271 or
    9-4  361.275(g) at the time the person applies to perform a voluntary
    9-5  cleanup is released, on certification under Section 361.609, from
    9-6  all liability to the state for cleanup of areas of the site covered
    9-7  by the certification, except for releases and consequences that the
    9-8  person causes.
    9-9        (b)  The release from liability is not effective if a
   9-10  certificate of completion is acquired by fraud, misrepresentation,
   9-11  or knowing failure to disclose material information.
   9-12        (c)  If a certificate of completion for a site is issued by
   9-13  the commission, an owner who acquires the property on which the
   9-14  site is located or a lender who makes a loan secured by that
   9-15  property after the date of issuance of the certificate is released
   9-16  from all liability for cleanup of contamination released before the
   9-17  date of the certificate for the areas covered by the certificate
   9-18  unless the owner or lender was originally included as a responsible
   9-19  party under Section 361.271 or 361.275(g).  A release of liability
   9-20  does not apply to a person who changes land use from the use
   9-21  specified in the certificate of completion if the new use may
   9-22  result in increased risks to human health or the environment.
   9-23        Sec. 361.611.  PERMIT NOT REQUIRED.  (a)  A state or local
   9-24  permit is not required for removal or remedial action conducted on
   9-25  a site as part of a voluntary cleanup under this subchapter.
   9-26        (b)  The commission by rule shall require that the person
   9-27  conducting the voluntary cleanup comply with any federal or state
   10-1  standard, requirement, criterion, or limitation to which the
   10-2  remedial action would otherwise be subject if a permit were
   10-3  required.
   10-4        Sec. 361.612.  PUBLIC PARTICIPATION.  The commission may
   10-5  adopt rules pertaining to public participation in voluntary cleanup
   10-6  decisions.
   10-7        Sec. 361.613.  COST REPORT; BUDGET ALLOCATION.  (a)  The
   10-8  executive director annually shall calculate the commission's costs
   10-9  to administer the voluntary cleanup program under this subchapter
  10-10  and shall publish in the Texas Register the rates established for
  10-11  the purposes of identifying the costs recoverable by the commission
  10-12  under this subchapter.
  10-13        (b)  Costs recovered under this subchapter and appropriated
  10-14  to the commission shall be budgeted and distributed to each
  10-15  organizational unit of the commission solely on the basis of costs
  10-16  fairly attributable to the voluntary cleanup program.
  10-17        SECTION 2.  Sections 361.133(b) and (c), Health and Safety
  10-18  Code, are amended to read as follows:
  10-19        (b)  The fund consists of money collected by the commission
  10-20  from:
  10-21              (1)  fees imposed on the owner or operator of an
  10-22  industrial solid waste or hazardous waste facility for commercial
  10-23  and noncommercial management or disposal of hazardous waste or
  10-24  commercial disposal of industrial solid waste under Section 361.136
  10-25  and fees imposed under Section 361.138;
  10-26              (2)  interest and penalties imposed under Section
  10-27  361.140 for late payment of a fee or late filing of a report;
   11-1              (3)  money paid by a person liable for facility cleanup
   11-2  and maintenance under Section 361.197;
   11-3              (4)  the interest received from the investment of this
   11-4  fund, in accounts under the charge of the treasurer, to be credited
   11-5  pro rata to the hazardous and solid waste remediation fee fund;
   11-6  <and>
   11-7              (5)  monies transferred from other agencies under
   11-8  provisions of this code or grants or other payments from any person
   11-9  made for the purpose of remediation of facilities under this
  11-10  chapter or the investigation, cleanup, or removal of a spill or
  11-11  release of a hazardous substance;
  11-12              (6)  fees imposed under Section 361.604; and
  11-13              (7)  federal grants received for the implementation or
  11-14  administration of state voluntary cleanup programs.
  11-15        (c)  The commission may use the money collected and deposited
  11-16  to the credit of the fund under this section, including interest
  11-17  credited under Subsection (b)(4), only for:
  11-18              (1)  necessary and appropriate removal and remedial
  11-19  action at sites at which solid waste or hazardous substances have
  11-20  been disposed if funds from a liable person, independent third
  11-21  person, or the federal government are not sufficient for the
  11-22  removal or remedial action;
  11-23              (2)  necessary and appropriate maintenance of removal
  11-24  and remedial actions for the expected life of those actions if:
  11-25                    (A)  funds from a liable person have been
  11-26  collected and deposited to the credit of the fund for that purpose;
  11-27  or
   12-1                    (B)  funds from a liable person, independent
   12-2  third person, or the federal government are not sufficient for the
   12-3  maintenance;
   12-4              (3)  expenses concerning compliance with:
   12-5                    (A)  the Comprehensive Environmental Response,
   12-6  Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
   12-7  seq.) as amended;
   12-8                    (B)  the federal Superfund Amendments and
   12-9  Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
  12-10                    (C)  Subchapters F and I;
  12-11              (4)  expenses concerning the regulation and management
  12-12  of household hazardous substances and the prevention of pollution
  12-13  of the water resources of the state from the uncontrolled release
  12-14  of hazardous substances; <and>
  12-15              (5)  expenses concerning the cleanup or removal of a
  12-16  spill, release, or potential threat of release of a hazardous
  12-17  substance where immediate action is appropriate to protect human
  12-18  health and the environment; and
  12-19              (6)  expenses concerning implementation of the
  12-20  voluntary cleanup program under Subchapter S.
  12-21        SECTION 3.  This Act takes effect September 1, 1995.
  12-22        SECTION 4.  The importance of this legislation and the
  12-23  crowded condition of the calendars in both houses create an
  12-24  emergency and an imperative public necessity that the
  12-25  constitutional rule requiring bills to be read on three several
  12-26  days in each house be suspended, and this rule is hereby suspended.