By Jackson H.B. No. 2296
74R3756 MI-F
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 361.603.
1-22 (3) "Response action" means the cleanup or removal of
1-23 a hazardous substance or contaminant from the environment.
1-24 (4) "Voluntary cleanup" means a response action taken
2-1 under and in compliance with this subchapter.
2-2 Sec. 361.602. ELIGIBILITY FOR VOLUNTARY CLEANUP PROGRAM.
2-3 (a) The commission by rule shall adopt site eligibility
2-4 requirements for participation in the voluntary cleanup program
2-5 under this subchapter, considering efficiency and long-term
2-6 effectiveness in cleanups and removals as well as regulatory and
2-7 state resource considerations.
2-8 (b) A portion of a contaminated site that is subject to a
2-9 commission permit or order is not eligible to be included under the
2-10 voluntary cleanup program.
2-11 (c) A person electing to participate in the voluntary
2-12 cleanup program must:
2-13 (1) enter into a voluntary cleanup agreement as
2-14 provided by Section 361.605; and
2-15 (2) pay all costs of commission oversight of the
2-16 voluntary cleanup.
2-17 Sec. 361.603. APPLICATION TO PARTICIPATE IN VOLUNTARY
2-18 CLEANUP PROGRAM. (a) A person who desires to participate in the
2-19 voluntary cleanup program under this subchapter must submit to the
2-20 commission an application and an application fee as prescribed by
2-21 this section.
2-22 (b) An application submitted under this section must:
2-23 (1) be on a form provided by the executive director;
2-24 (2) contain:
2-25 (A) general information concerning:
2-26 (i) the person and the person's
2-27 capability, including the person's financial capability, to perform
3-1 the voluntary cleanup; and
3-2 (ii) the site;
3-3 (B) other background information requested by
3-4 the executive director; and
3-5 (C) an environmental assessment of the actual or
3-6 threatened release of the hazardous substance or contaminant at the
3-7 site;
3-8 (3) be accompanied by an application fee of $1,000;
3-9 and
3-10 (4) be submitted according to schedules set by
3-11 commission rule.
3-12 (c) The environmental assessment required by Subsection (b)
3-13 must include:
3-14 (1) a legal description of the site;
3-15 (2) a description of the physical characteristics of
3-16 the site;
3-17 (3) the operational history of the site to the extent
3-18 that history is known by the applicant;
3-19 (4) information of which the applicant is aware
3-20 concerning the nature and extent of any relevant contamination or
3-21 release at the site and immediately contiguous to the site, or
3-22 wherever the contamination came to be located; and
3-23 (5) relevant information of which the applicant is
3-24 aware concerning the potential for human exposure to contamination
3-25 at the site.
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. 361.604. REJECTION OF APPLICATION. (a) The executive
4-4 director may reject an application submitted under Section 361.603
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 361.602 or
4-13 rules adopted under that section.
4-14 (b) If an application is rejected because it is not complete
4-15 or accurate, the executive director, not later than the 45th day
4-16 after receipt of the application, shall provide the person with a
4-17 list of all information needed to make the application complete or
4-18 accurate. A person may resubmit an application without submitting
4-19 an additional application fee.
4-20 (c) If the executive director rejects the application, the
4-21 executive director shall:
4-22 (1) notify the person that the application has been
4-23 rejected;
4-24 (2) explain the reasons for rejection of the
4-25 application; and
4-26 (3) inform the person that the commission will refund
4-27 half the person's application fee unless the person indicates a
5-1 desire to resubmit an application.
5-2 Sec. 361.605. VOLUNTARY CLEANUP AGREEMENT. (a) Before the
5-3 executive director evaluates any plan or report detailing the
5-4 remediation goals and proposed methods of remediation, the person
5-5 desiring to participate in the voluntary cleanup program must enter
5-6 into a voluntary cleanup agreement that sets forth the terms and
5-7 conditions of the evaluation of the reports and the implementation
5-8 of work plans.
5-9 (b) A voluntary cleanup agreement must provide for:
5-10 (1) recovery by the commission of all reasonable
5-11 costs:
5-12 (A) incurred by the commission in review and
5-13 oversight of the person's work plan and reports and as a result of
5-14 the commission's field activities;
5-15 (B) attributable to the voluntary cleanup
5-16 agreement; and
5-17 (C) in excess of the amount of fees submitted by
5-18 the applicant under Section 361.603;
5-19 (2) a schedule of payments to the commission to be
5-20 made by the person for recovery of all commission costs fairly
5-21 attributable to the voluntary cleanup program, including direct and
5-22 indirect costs of overhead, salaries, equipment, and utilities, and
5-23 legal, management, and support costs; and
5-24 (3) appropriate tasks, deliverables, and schedules.
5-25 (c) The voluntary cleanup agreement shall:
5-26 (1) identify all statutes and rules that must be
5-27 complied with;
6-1 (2) describe any work plan or report to be submitted
6-2 for review by the executive director, including a final report that
6-3 provides all information necessary to verify that all work
6-4 contemplated by the voluntary cleanup agreement has been completed;
6-5 (3) include a schedule for submitting the information
6-6 required by Subdivision (2); and
6-7 (4) state the technical standards to be applied in
6-8 evaluating the work plans and reports, with reference to the
6-9 proposed future land use to be achieved.
6-10 (d) If an agreement is not reached between a person desiring
6-11 to participate in the voluntary cleanup program and the executive
6-12 director on or before the 30th day after good faith negotiations
6-13 have begun:
6-14 (1) the person or the executive director may withdraw
6-15 from the negotiations; and
6-16 (2) the commission retains the person's application
6-17 fee.
6-18 Sec. 361.606. TERMINATION OF AGREEMENT; COST RECOVERY. (a)
6-19 The executive director or the person in its sole discretion may
6-20 terminate the agreement by giving 15 days' advance written notice
6-21 to the other. Only those costs incurred or obligated by the
6-22 executive director before notice of termination of the agreement
6-23 are recoverable under the agreement if the agreement is terminated.
6-24 (b) Termination of the agreement does not affect any right
6-25 the executive director has under other law to recover costs.
6-26 (c) If the person does not pay to the commission the state's
6-27 costs associated with the voluntary cleanup before the 31st day
7-1 after the date the person receives notice that the costs are due
7-2 and owing, the attorney general, at the request of the executive
7-3 director, shall bring an action in the name of the state in Travis
7-4 County to recover the amount owed and reasonable legal expenses,
7-5 including attorney's fees, witness costs, court costs, and
7-6 deposition costs.
7-7 Sec. 361.607. VOLUNTARY CLEANUP WORK PLANS AND REPORTS. (a)
7-8 After signing a voluntary cleanup agreement, the person shall
7-9 prepare and submit the appropriate work plans and reports to the
7-10 executive director.
7-11 (b) The executive director shall review and evaluate the
7-12 work plans and reports for accuracy, quality, and completeness.
7-13 The executive director may approve a voluntary cleanup work plan or
7-14 report or, if a work plan or report is not approved, notify the
7-15 person concerning additional information or commitments needed to
7-16 obtain approval.
7-17 (c) At any time during the evaluation of a work plan or
7-18 report, the executive director may request the person to submit
7-19 additional or corrected information.
7-20 (d) The executive director may approve work plans and
7-21 reports submitted under this section that do not require removal or
7-22 remedy of all discharges, releases, and threatened releases at a
7-23 site if the partial response actions for the property:
7-24 (1) will be completed in a manner that protects human
7-25 health and the environment;
7-26 (2) will not cause, contribute, or exacerbate
7-27 discharges, releases, or threatened releases that are not required
8-1 to be removed or remedied under the work plan; and
8-2 (3) will not interfere with or substantially increase
8-3 the cost of response actions to address the remaining discharges,
8-4 releases, or threatened releases.
8-5 Sec. 361.608. CERTIFICATE OF COMPLETION. (a) If the
8-6 executive director determines that a person has successfully
8-7 completed a voluntary cleanup approved under this subchapter, the
8-8 executive director shall certify that the action has been completed
8-9 by issuing the person a certificate of completion.
8-10 (b) The certificate of completion shall acknowledge the
8-11 protection from liability provided by Section 361.609 and indicate
8-12 the proposed future land use.
8-13 (c) If the executive director determines that the person has
8-14 not successfully completed a voluntary cleanup approved under this
8-15 subchapter, the executive director shall notify the person who
8-16 undertook the voluntary cleanup and the current owner of the site
8-17 that is the subject of the cleanup of this determination.
8-18 Sec. 361.609. PERSONS RELEASED FROM LIABILITY. (a) A
8-19 person who is not a responsible party under Section 361.271 or
8-20 361.275(g) at the time the person applies to perform a voluntary
8-21 cleanup is released, on certification under Section 361.608, from
8-22 all liability to the state for cleanup of areas of the site covered
8-23 by the certification, except for releases and consequences that the
8-24 person causes.
8-25 (b) The release from liability is not effective if a
8-26 certificate of completion is acquired by fraud, misrepresentation,
8-27 or knowing failure to disclose material information.
9-1 (c) If a certificate of completion for a site is issued by
9-2 the commission, an owner who acquires the property on which the
9-3 site is located or a lender who makes a loan secured by that
9-4 property after the date of issuance of the certificate is released
9-5 from all liability for cleanup of contamination released before the
9-6 date of the certificate for the areas covered by the certificate
9-7 unless the owner or lender was originally included as a responsible
9-8 party under Section 361.271 or 361.275(g). A release of liability
9-9 does not apply to a person who changes land use from the use
9-10 specified in the certificate of completion if the new use may
9-11 result in increased risks to human health or the environment.
9-12 Sec. 361.610. PERMIT NOT REQUIRED. (a) A state or local
9-13 permit is not required for removal or remedial action conducted on
9-14 a site as part of a voluntary cleanup under this subchapter. A
9-15 person shall coordinate a voluntary cleanup with ongoing federal
9-16 and state hazardous waste programs.
9-17 (b) The commission by rule shall require that the person
9-18 conducting the voluntary cleanup comply with any federal or state
9-19 standard, requirement, criterion, or limitation to which the
9-20 remedial action would otherwise be subject if a permit were
9-21 required.
9-22 Sec. 361.611. PUBLIC PARTICIPATION. The commission may
9-23 adopt rules pertaining to public participation in voluntary cleanup
9-24 decisions.
9-25 Sec. 361.612. COST REPORT; BUDGET ALLOCATION. (a) The
9-26 executive director annually shall calculate the commission's costs
9-27 to administer the voluntary cleanup program under this subchapter
10-1 and shall publish in the Texas Register the rates established for
10-2 the purposes of identifying the costs recoverable by the commission
10-3 under this subchapter.
10-4 (b) Costs recovered under this subchapter and appropriated
10-5 to the commission shall be budgeted and distributed to each
10-6 organizational unit of the commission solely on the basis of costs
10-7 fairly attributable to the voluntary cleanup program.
10-8 SECTION 2. Sections 361.133(b) and (c), Health and Safety
10-9 Code, are amended to read as follows:
10-10 (b) The fund consists of money collected by the commission
10-11 from:
10-12 (1) fees imposed on the owner or operator of an
10-13 industrial solid waste or hazardous waste facility for commercial
10-14 and noncommercial management or disposal of hazardous waste or
10-15 commercial disposal of industrial solid waste under Section 361.136
10-16 and fees imposed under Section 361.138;
10-17 (2) interest and penalties imposed under Section
10-18 361.140 for late payment of a fee or late filing of a report;
10-19 (3) money paid by a person liable for facility cleanup
10-20 and maintenance under Section 361.197;
10-21 (4) the interest received from the investment of this
10-22 fund, in accounts under the charge of the treasurer, to be credited
10-23 pro rata to the hazardous and solid waste remediation fee fund;
10-24 <and>
10-25 (5) monies transferred from other agencies under
10-26 provisions of this code or grants or other payments from any person
10-27 made for the purpose of remediation of facilities under this
11-1 chapter or the investigation, cleanup, or removal of a spill or
11-2 release of a hazardous substance;
11-3 (6) fees imposed under Section 361.603; and
11-4 (7) federal grants received for the implementation or
11-5 administration of state voluntary cleanup programs.
11-6 (c) The commission may use the money collected and deposited
11-7 to the credit of the fund under this section, including interest
11-8 credited under Subsection (b)(4), only for:
11-9 (1) necessary and appropriate removal and remedial
11-10 action at sites at which solid waste or hazardous substances have
11-11 been disposed if funds from a liable person, independent third
11-12 person, or the federal government are not sufficient for the
11-13 removal or remedial action;
11-14 (2) necessary and appropriate maintenance of removal
11-15 and remedial actions for the expected life of those actions if:
11-16 (A) funds from a liable person have been
11-17 collected and deposited to the credit of the fund for that purpose;
11-18 or
11-19 (B) funds from a liable person, independent
11-20 third person, or the federal government are not sufficient for the
11-21 maintenance;
11-22 (3) expenses concerning compliance with:
11-23 (A) the Comprehensive Environmental Response,
11-24 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
11-25 seq.) as amended;
11-26 (B) the federal Superfund Amendments and
11-27 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
12-1 (C) Subchapters F and I;
12-2 (4) expenses concerning the regulation and management
12-3 of household hazardous substances and the prevention of pollution
12-4 of the water resources of the state from the uncontrolled release
12-5 of hazardous substances; <and>
12-6 (5) expenses concerning the cleanup or removal of a
12-7 spill, release, or potential threat of release of a hazardous
12-8 substance where immediate action is appropriate to protect human
12-9 health and the environment; and
12-10 (6) expenses concerning implementation of the
12-11 voluntary cleanup program under Subchapter S.
12-12 SECTION 3. This Act takes effect September 1, 1995.
12-13 SECTION 4. The importance of this legislation and the
12-14 crowded condition of the calendars in both houses create an
12-15 emergency and an imperative public necessity that the
12-16 constitutional rule requiring bills to be read on three several
12-17 days in each house be suspended, and this rule is hereby suspended.