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                               * * * * *