1-1 By: Jackson (Senate Sponsor - Brown) H.B. No. 2296
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 17, 1995, read first time and referred to Committee on Natural
1-4 Resources; May 19, 1995, reported favorably by the following vote:
1-5 Yeas 10, Nays 0; May 19, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the creation of a voluntary cleanup program for solid
1-9 and hazardous wastes.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Chapter 361, Health and Safety Code, is amended
1-12 by adding Subchapter S to read as follows:
1-13 SUBCHAPTER S. VOLUNTARY CLEANUP PROGRAM
1-14 Sec. 361.601. DEFINITIONS. In this subchapter:
1-15 (1) "Contaminant" includes:
1-16 (A) solid waste;
1-17 (B) hazardous waste;
1-18 (C) a hazardous waste constituent listed in 40
1-19 C.F.R. Part 261, Subpart D, or Table 1, 40 C.F.R. Section 261.24;
1-20 (D) a pollutant as defined in Section 26.001,
1-21 Water Code; and
1-22 (E) a hazardous substance:
1-23 (i) as defined in Section 361.003; or
1-24 (ii) subject to Sections 26.261-26.268,
1-25 Water Code.
1-26 (2) "Environmental assessment" means the assessment
1-27 described by Section 361.604.
1-28 (3) "Response action" means the cleanup or removal of
1-29 a hazardous substance or contaminant from the environment,
1-30 excluding a waste, pollutant, or substance regulated by or that
1-31 results from an activity under the jurisdiction of the Railroad
1-32 Commission of Texas under Chapter 91 or 141, Natural Resources
1-33 Code, or Chapter 27, Water Code.
1-34 (4) "Voluntary cleanup" means a response action taken
1-35 under and in compliance with this subchapter.
1-36 Sec. 361.602. PURPOSE. The purpose of the voluntary cleanup
1-37 program is to provide incentive to remediate property by removing
1-38 liability of lenders and future landowners. The program does not
1-39 replace other voluntary actions and is restricted to voluntary
1-40 actions.
1-41 Sec. 361.603. ELIGIBILITY FOR VOLUNTARY CLEANUP PROGRAM.
1-42 (a) Any site is eligible for participation in the voluntary
1-43 cleanup program except the portion of a site that is subject to a
1-44 commission permit or order.
1-45 (b) A person electing to participate in the voluntary
1-46 cleanup program must:
1-47 (1) enter into a voluntary cleanup agreement as
1-48 provided by Section 361.606; and
1-49 (2) pay all costs of commission oversight of the
1-50 voluntary cleanup.
1-51 Sec. 361.604. APPLICATION TO PARTICIPATE IN VOLUNTARY
1-52 CLEANUP PROGRAM. (a) A person who desires to participate in the
1-53 voluntary cleanup program under this subchapter must submit to the
1-54 commission an application and an application fee as prescribed by
1-55 this section.
1-56 (b) An application submitted under this section must:
1-57 (1) be on a form provided by the executive director;
1-58 (2) contain:
1-59 (A) general information concerning:
1-60 (i) the person and the person's
1-61 capability, including the person's financial capability, to perform
1-62 the voluntary cleanup; and
1-63 (ii) the site;
1-64 (B) other background information requested by
1-65 the executive director; and
1-66 (C) an environmental assessment of the actual or
1-67 threatened release of the hazardous substance or contaminant at the
1-68 site;
2-1 (3) be accompanied by an application fee of $1,000;
2-2 and
2-3 (4) be submitted according to schedules set by
2-4 commission rule.
2-5 (c) The environmental assessment required by Subsection (b)
2-6 must include:
2-7 (1) a legal description of the site;
2-8 (2) a description of the physical characteristics of
2-9 the site;
2-10 (3) the operational history of the site to the extent
2-11 that history is known by the applicant;
2-12 (4) information of which the applicant is aware
2-13 concerning the nature and extent of any relevant contamination or
2-14 release at the site and immediately contiguous to the site, or
2-15 wherever the contamination came to be located; and
2-16 (5) relevant information of which the applicant is
2-17 aware concerning the potential for human exposure to contamination
2-18 at the site.
2-19 (d) An application shall be processed in the order in which
2-20 it is received.
2-21 (e) Fees collected under this section shall be deposited to
2-22 the credit of the hazardous and solid waste remediation fee fund.
2-23 Sec. 361.605. REJECTION OF APPLICATION. (a) The executive
2-24 director may reject an application submitted under Section 361.604
2-25 if:
2-26 (1) an administrative, state, or federal enforcement
2-27 action is pending that concerns the remediation of the hazardous
2-28 substance or contaminant described in the application;
2-29 (2) a federal grant requires an enforcement action at
2-30 the site;
2-31 (3) the application is not complete or accurate; or
2-32 (4) the site is ineligible under Section 361.603.
2-33 (b) If an application is rejected because it is not complete
2-34 or accurate, the executive director, not later than the 45th day
2-35 after receipt of the application, shall provide the person with a
2-36 list of all information needed to make the application complete or
2-37 accurate. A person may resubmit an application without submitting
2-38 an additional application fee.
2-39 (c) If the executive director rejects the application, the
2-40 executive director shall:
2-41 (1) notify the person that the application has been
2-42 rejected;
2-43 (2) explain the reasons for rejection of the
2-44 application; and
2-45 (3) inform the person that the commission will refund
2-46 half the person's application fee unless the person indicates a
2-47 desire to resubmit an application.
2-48 Sec. 361.606. VOLUNTARY CLEANUP AGREEMENT. (a) Before the
2-49 executive director evaluates any plan or report detailing the
2-50 remediation goals and proposed methods of remediation, the person
2-51 desiring to participate in the voluntary cleanup program must enter
2-52 into a voluntary cleanup agreement that sets forth the terms and
2-53 conditions of the evaluation of the reports and the implementation
2-54 of work plans.
2-55 (b) A voluntary cleanup agreement must provide for:
2-56 (1) recovery by the commission of all reasonable
2-57 costs:
2-58 (A) incurred by the commission in review and
2-59 oversight of the person's work plan and reports and as a result of
2-60 the commission's field activities;
2-61 (B) attributable to the voluntary cleanup
2-62 agreement; and
2-63 (C) in excess of the amount of fees submitted by
2-64 the applicant under Section 361.604;
2-65 (2) a schedule of payments to the commission to be
2-66 made by the person for recovery of all commission costs fairly
2-67 attributable to the voluntary cleanup program, including direct and
2-68 indirect costs of overhead, salaries, equipment, and utilities, and
2-69 legal, management, and support costs; and
2-70 (3) appropriate tasks, deliverables, and schedules.
3-1 (c) The voluntary cleanup agreement shall:
3-2 (1) identify all statutes and rules that must be
3-3 complied with;
3-4 (2) describe any work plan or report to be submitted
3-5 for review by the executive director, including a final report that
3-6 provides all information necessary to verify that all work
3-7 contemplated by the voluntary cleanup agreement has been completed;
3-8 (3) include a schedule for submitting the information
3-9 required by Subdivision (2); and
3-10 (4) state the technical standards to be applied in
3-11 evaluating the work plans and reports, with reference to the
3-12 proposed future land use to be achieved.
3-13 (d) If an agreement is not reached between a person desiring
3-14 to participate in the voluntary cleanup program and the executive
3-15 director on or before the 30th day after good faith negotiations
3-16 have begun:
3-17 (1) the person or the executive director may withdraw
3-18 from the negotiations; and
3-19 (2) the commission retains the person's application
3-20 fee.
3-21 (e) The commission may not initiate an enforcement action
3-22 against a person who is in compliance with this section for the
3-23 contamination or release that is the subject of the voluntary
3-24 cleanup agreement or for the activity that resulted in the
3-25 contamination or release.
3-26 Sec. 361.607. TERMINATION OF AGREEMENT; COST RECOVERY. (a)
3-27 The executive director or the person in its sole discretion may
3-28 terminate the agreement by giving 15 days' advance written notice
3-29 to the other. Only those costs incurred or obligated by the
3-30 executive director before notice of termination of the agreement
3-31 are recoverable under the agreement if the agreement is terminated.
3-32 (b) Termination of the agreement does not affect any right
3-33 the executive director has under other law to recover costs.
3-34 (c) If the person does not pay to the commission the state's
3-35 costs associated with the voluntary cleanup before the 31st day
3-36 after the date the person receives notice that the costs are due
3-37 and owing, the attorney general, at the request of the executive
3-38 director, shall bring an action in the name of the state in Travis
3-39 County to recover the amount owed and reasonable legal expenses,
3-40 including attorney's fees, witness costs, court costs, and
3-41 deposition costs.
3-42 Sec. 361.608. VOLUNTARY CLEANUP WORK PLANS AND REPORTS. (a)
3-43 After signing a voluntary cleanup agreement, the person shall
3-44 prepare and submit the appropriate work plans and reports to the
3-45 executive director.
3-46 (b) The executive director shall review and evaluate the
3-47 work plans and reports for accuracy, quality, and completeness.
3-48 The executive director may approve a voluntary cleanup work plan or
3-49 report or, if a work plan or report is not approved, notify the
3-50 person concerning additional information or commitments needed to
3-51 obtain approval.
3-52 (c) At any time during the evaluation of a work plan or
3-53 report, the executive director may request the person to submit
3-54 additional or corrected information.
3-55 (d) After considering future land use, the executive
3-56 director may approve work plans and reports submitted under this
3-57 section that do not require removal or remedy of all discharges,
3-58 releases, and threatened releases at a site if the partial response
3-59 actions for the property:
3-60 (1) will be completed in a manner that protects human
3-61 health and the environment;
3-62 (2) will not cause, contribute, or exacerbate
3-63 discharges, releases, or threatened releases that are not required
3-64 to be removed or remedied under the work plan; and
3-65 (3) will not interfere with or substantially increase
3-66 the cost of response actions to address the remaining discharges,
3-67 releases, or threatened releases.
3-68 Sec. 361.609. CERTIFICATE OF COMPLETION. (a) If the
3-69 executive director determines that a person has successfully
3-70 completed a voluntary cleanup approved under this subchapter, the
4-1 executive director shall certify that the action has been completed
4-2 by issuing the person a certificate of completion.
4-3 (b) The certificate of completion shall:
4-4 (1) acknowledge the protection from liability provided
4-5 by Section 361.610;
4-6 (2) indicate the proposed future land use; and
4-7 (3) include a legal description of the site and the
4-8 name of the site's owner.
4-9 (c) The executive director shall file a copy of the
4-10 certificate of completion in the real property records of the
4-11 county in which the site is located.
4-12 (d) If the executive director determines that the person has
4-13 not successfully completed a voluntary cleanup approved under this
4-14 subchapter, the executive director shall notify the person who
4-15 undertook the voluntary cleanup and the current owner of the site
4-16 that is the subject of the cleanup of this determination.
4-17 Sec. 361.610. PERSONS RELEASED FROM LIABILITY. (a) A
4-18 person who is not a responsible party under Section 361.271 or
4-19 361.275(g) at the time the person applies to perform a voluntary
4-20 cleanup is released, on certification under Section 361.609, from
4-21 all liability to the state for cleanup of areas of the site covered
4-22 by the certification, except for releases and consequences that the
4-23 person causes.
4-24 (b) The release from liability is not effective if a
4-25 certificate of completion is acquired by fraud, misrepresentation,
4-26 or knowing failure to disclose material information.
4-27 (c) If a certificate of completion for a site is issued by
4-28 the commission, an owner who acquires the property on which the
4-29 site is located or a lender who makes a loan secured by that
4-30 property after the date of issuance of the certificate is released
4-31 from all liability for cleanup of contamination released before the
4-32 date of the certificate for the areas covered by the certificate
4-33 unless the owner or lender was originally included as a responsible
4-34 party under Section 361.271 or 361.275(g). A release of liability
4-35 does not apply to a person who changes land use from the use
4-36 specified in the certificate of completion if the new use may
4-37 result in increased risks to human health or the environment.
4-38 Sec. 361.611. PERMIT NOT REQUIRED. (a) A state or local
4-39 permit is not required for removal or remedial action conducted on
4-40 a site as part of a voluntary cleanup under this subchapter. A
4-41 person shall coordinate a voluntary cleanup with ongoing federal
4-42 and state hazardous waste programs.
4-43 (b) The commission by rule shall require that the person
4-44 conducting the voluntary cleanup comply with any federal or state
4-45 standard, requirement, criterion, or limitation to which the
4-46 remedial action would otherwise be subject if a permit were
4-47 required.
4-48 Sec. 361.612. PUBLIC PARTICIPATION. The commission may
4-49 adopt rules pertaining to public participation in voluntary cleanup
4-50 decisions.
4-51 Sec. 361.613. COST REPORT; BUDGET ALLOCATION. (a) The
4-52 executive director annually shall calculate the commission's costs
4-53 to administer the voluntary cleanup program under this subchapter
4-54 and shall publish in the Texas Register the rates established for
4-55 the purposes of identifying the costs recoverable by the commission
4-56 under this subchapter.
4-57 (b) Costs recovered under this subchapter and appropriated
4-58 to the commission shall be budgeted and distributed to each
4-59 organizational unit of the commission solely on the basis of costs
4-60 fairly attributable to the voluntary cleanup program.
4-61 SECTION 2. Sections 361.133(b) and (c), Health and Safety
4-62 Code, are amended to read as follows:
4-63 (b) The fund consists of money collected by the commission
4-64 from:
4-65 (1) fees imposed on the owner or operator of an
4-66 industrial solid waste or hazardous waste facility for commercial
4-67 and noncommercial management or disposal of hazardous waste or
4-68 commercial disposal of industrial solid waste under Section 361.136
4-69 and fees imposed under Section 361.138;
4-70 (2) interest and penalties imposed under Section
5-1 361.140 for late payment of a fee or late filing of a report;
5-2 (3) money paid by a person liable for facility cleanup
5-3 and maintenance under Section 361.197;
5-4 (4) the interest received from the investment of this
5-5 fund, in accounts under the charge of the treasurer, to be credited
5-6 pro rata to the hazardous and solid waste remediation fee fund;
5-7 <and>
5-8 (5) monies transferred from other agencies under
5-9 provisions of this code or grants or other payments from any person
5-10 made for the purpose of remediation of facilities under this
5-11 chapter or the investigation, cleanup, or removal of a spill or
5-12 release of a hazardous substance;
5-13 (6) fees imposed under Section 361.604; and
5-14 (7) federal grants received for the implementation or
5-15 administration of state voluntary cleanup programs.
5-16 (c) The commission may use the money collected and deposited
5-17 to the credit of the fund under this section, including interest
5-18 credited under Subsection (b)(4), only for:
5-19 (1) necessary and appropriate removal and remedial
5-20 action at sites at which solid waste or hazardous substances have
5-21 been disposed if funds from a liable person, independent third
5-22 person, or the federal government are not sufficient for the
5-23 removal or remedial action;
5-24 (2) necessary and appropriate maintenance of removal
5-25 and remedial actions for the expected life of those actions if:
5-26 (A) funds from a liable person have been
5-27 collected and deposited to the credit of the fund for that purpose;
5-28 or
5-29 (B) funds from a liable person, independent
5-30 third person, or the federal government are not sufficient for the
5-31 maintenance;
5-32 (3) expenses concerning compliance with:
5-33 (A) the Comprehensive Environmental Response,
5-34 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
5-35 seq.) as amended;
5-36 (B) the federal Superfund Amendments and
5-37 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
5-38 (C) Subchapters F and I;
5-39 (4) expenses concerning the regulation and management
5-40 of household hazardous substances and the prevention of pollution
5-41 of the water resources of the state from the uncontrolled release
5-42 of hazardous substances; <and>
5-43 (5) expenses concerning the cleanup or removal of a
5-44 spill, release, or potential threat of release of a hazardous
5-45 substance where immediate action is appropriate to protect human
5-46 health and the environment; and
5-47 (6) expenses concerning implementation of the
5-48 voluntary cleanup program under Subchapter S.
5-49 SECTION 3. This Act takes effect September 1, 1995.
5-50 SECTION 4. The importance of this legislation and the
5-51 crowded condition of the calendars in both houses create an
5-52 emergency and an imperative public necessity that the
5-53 constitutional rule requiring bills to be read on three several
5-54 days in each house be suspended, and this rule is hereby suspended.
5-55 * * * * *