By Turner of Harris                                   H.B. No. 2103

         75R5053 SMH-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to restrictions on the siting of solid waste facilities

 1-3     and to the Texas Natural Resource Conservation Commission's

 1-4     consideration of cumulative risks in certain administrative

 1-5     proceedings.

 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-7           SECTION 1.  Section 361.002, Health and Safety Code, is

 1-8     amended by adding Subsection (c) to read as follows:

 1-9           (c)  It is this state's policy to restrict the siting of

1-10     solid waste facilities so that those facilities are not located

1-11     disproportionately in low-income, minority, or other communities

1-12     and the adverse effects of those facilities on the communities in

1-13     which they are located will be minimized, while ensuring that this

1-14     state has adequate solid waste management capacity.

1-15           SECTION 2.  Section 361.020(a), Health and Safety Code, is

1-16     amended to read as follows:

1-17           (a)  The commission shall develop a strategic state solid

1-18     waste plan for all solid waste under its jurisdiction.  The

1-19     commission shall develop a strategic plan for the reduction of

1-20     solid waste.  The strategic plan shall include provisions to:

1-21                 (1)  restrict the siting of solid waste facilities so

1-22     as to minimize the adverse effects of those facilities on

1-23     low-income, minority, and other communities; and

1-24                 (2)  require the consideration of the cumulative effect

 2-1     the presence of multiple sources of pollution and other nuisances

 2-2     may have on the community surrounding a solid waste facility.

 2-3           SECTION 3.  Section 361.0201(b), Health and Safety Code, is

 2-4     amended to read as follows:

 2-5           (b)  The plan shall:

 2-6                 (1)  describe the capacity in the state to manage

 2-7     municipal waste through existing treatment or disposal facilities

 2-8     and identify all existing municipal solid waste management

 2-9     facilities in the state, their capacity, and their projected

2-10     remaining useful life; [and]

2-11                 (2)  analyze the state's capacity requirements over the

2-12     planning periods specified in Section 361.020(c); and

2-13                 (3)  assess historical trends regarding the siting of

2-14     solid waste facilities in low-income, minority, and other

2-15     communities and include provisions to restrict the siting of those

2-16     facilities so as to minimize their adverse effects on those

2-17     communities.

2-18           SECTION 4.  Section 361.0216, Health and Safety Code, is

2-19     amended to read as follows:

2-20           Sec. 361.0216.  OFFICE OF POLLUTION PREVENTION.  The office

2-21     of pollution prevention is created in the executive office of the

2-22     commission to direct and coordinate all source reduction, [and]

2-23     waste minimization, and environmental justice activities of the

2-24     commission.

2-25           SECTION 5.  Section 361.034(a), Health and Safety Code, is

2-26     amended to read as follows:

2-27           (a)  The commission shall submit a report to the presiding

 3-1     officers of the legislature and the governor not later than January

 3-2     1 of each odd-numbered year.  The report must include:

 3-3                 (1)  a summary of a performance report of the imposed

 3-4     industrial solid waste and hazardous waste fees authorized under

 3-5     Subchapter D and related activities to determine the

 3-6     appropriateness of the fee structures;

 3-7                 (2)  an evaluation of progress made in accomplishing

 3-8     the state's public policy concerning the preference of waste

 3-9     management methods under Section 361.023;

3-10                 (3)  projections of the volume of waste by type of

3-11     waste, disposition of waste, and remaining capacity or capacity

3-12     used for the treatment and disposal of the waste;

3-13                 (4)  projections of the availability of adequate

3-14     capacity in this state for the management of all types of hazardous

3-15     waste generated within the state and a report of the amounts,

3-16     types, and sources of hazardous waste imported into and exported

3-17     from the state in the previous year;

3-18                 (5)  an evaluation of the progress made and activities

3-19     engaged in consistent with the state's municipal solid waste

3-20     management plan, in particular the progress toward meeting the

3-21     waste reduction goal established by Section 361.0201(d);

3-22                 (6)  an evaluation of the progress made by local

3-23     governments under the solid waste management plans;

3-24                 (7)  the status of state procurement under Section

3-25     361.426 of products made of recycled materials or that are

3-26     reusable, including documentation of any decision not to purchase

3-27     those products;

 4-1                 (8)  the status of the governmental entity recycling

 4-2     program established under Section 361.425, including the status of

 4-3     collection and storage procedures and program evaluations required

 4-4     by that section;

 4-5                 (9)  the status of the public education program

 4-6     described in Section 361.0202; [and]

 4-7                 (10)  recommendations to the governor and to the

 4-8     legislature for improving the management of municipal solid waste

 4-9     in the state; and

4-10                 (11)  an evaluation of the progress made in

4-11     accomplishing the state's policy of restricting the siting of solid

4-12     waste facilities so as to minimize the adverse effects of those

4-13     facilities on low-income, minority, and other communities.

4-14           SECTION 6.  Section 361.102, Health and Safety Code, is

4-15     amended to read as follows:

4-16           Sec. 361.102. PROHIBITION ON SITING OF [PERMIT FOR HAZARDOUS

4-17     WASTE MANAGEMENT] FACILITIES WITHIN A CERTAIN DISTANCE OF

4-18     RESIDENCE, CHURCH, SCHOOL, DAY CARE CENTER, [PARK, OR] PUBLIC

4-19     DRINKING WATER SUPPLY, OR PARK.  (a)  The [Except as provided by

4-20     Subsections (b) and (c), the] commission by rule shall prohibit the

4-21     issuance of a permit for a new solid waste [hazardous waste

4-22     landfill or land treatment] facility or the areal expansion of such

4-23     a facility, the siting or areal expansion of a solid waste facility

4-24     that is exempt from the requirement of a permit, or the disposal of

4-25     solid waste if [the boundary of] the facility or disposal site

4-26     [landfill or land treatment facility] is to be located within

4-27     one-half mile [1,000 feet] of an established residence, church,

 5-1     school, day care center, surface water body used for a public

 5-2     drinking water supply, or dedicated public park.

 5-3           (b)  [The commission by rule shall prohibit the issuance of a

 5-4     permit for a new commercial hazardous waste management facility or

 5-5     the subsequent areal expansion of such a facility or unit of that

 5-6     facility if the boundary of the unit is to be located within

 5-7     one-half of a mile (2,640 feet) of an established residence,

 5-8     church, school, day care center, surface water body used for a

 5-9     public drinking water supply, or dedicated public park.]

5-10           [(c)]  For a subsequent areal expansion of a new solid

5-11     [commercial hazardous] waste [management] facility that was

5-12     required to comply with Subsection (a) [(b)], distances shall be

5-13     measured from a residence, church, school, day care center, surface

5-14     water body used for a public drinking water supply, or dedicated

5-15     public park only if, at the time the distance was certified under

5-16     that subsection:

5-17                 (1)  the property was being used for that purpose; or

5-18                 (2)  in the case of a residence, the property was zoned

5-19     residential [such structure, water supply, or park was in place at

5-20     the time the distance was certified for the original permit].

5-21           (c) [(d)]  The commission by rule shall prohibit the issuance

5-22     of a permit for a new solid [commercial hazardous] waste

5-23     [management] facility or the areal expansion of such a facility,

5-24     the siting or areal expansion of a solid waste facility that is

5-25     exempt from the requirement of a permit, or the disposal of solid

5-26     waste if the facility or disposal site [that] is [proposed] to be

5-27     located at a distance greater than one-half mile [(2,640 feet)]

 6-1     from an established residence, church, school, day care center,

 6-2     surface water body used for a public drinking water supply, or

 6-3     dedicated park, unless the applicant or the owner or operator of

 6-4     the facility or disposal site demonstrates that the facility or

 6-5     disposal site will be operated so  as to safeguard public health

 6-6     and welfare and protect physical property and the environment, at

 6-7     any distance beyond the facility's or disposal site's property

 6-8     boundaries, consistent with the purposes of this chapter.

 6-9           (d) [(e)]  The measurement of distances required by

6-10     Subsections (a), (b), and (c)[, and (d)] shall be taken toward the

6-11     property line of an established residence, church, school, day care

6-12     center, surface water body used for a public drinking water supply,

6-13     or dedicated park that is  in use when:

6-14                 (1)  the notice of intent to file a permit application

6-15     is filed with the commission; [or,]

6-16                 (2)  [if no notice of intent is filed, when] the permit

6-17     application is filed with the commission, if no notice of intent is

6-18     filed; or

6-19                 (3)  construction of the facility or disposal site

6-20     begins, if a permit is not required.

6-21           (e)  The restrictions imposed by Subsections (a), (b), and

6-22     (c)[, and (d)] do not apply to:

6-23                 (1)  a residence, church, school, day care center,

6-24     surface water body used for a public drinking water supply, or [a]

6-25     dedicated park located within the boundaries of a solid [commercial

6-26     hazardous] waste [management] facility[,] or disposal site; or

6-27                 (2)  property owned by the owner or operator of the

 7-1     facility or disposal site [permit applicant].

 7-2           (f)  The measurement of distances required by Subsections

 7-3     (a), (b), and (c)[, and (d)] shall be taken from a perimeter around

 7-4     the proposed solid [hazardous] waste facility or disposal site

 7-5     [management unit].  The perimeter shall be not more than 75 feet

 7-6     from the edge of the proposed facility or disposal site [hazardous

 7-7     waste management unit].

 7-8           SECTION 7.  Subchapter D, Chapter 5, Water Code, is amended

 7-9     by adding Section 5.123 to read as follows:

7-10           Sec. 5.123.  CONSIDERATION OF CUMULATIVE RISKS.  (a)  In an

7-11     administrative proceeding involving the siting, expansion, or

7-12     operation of a facility in an area in which other permitted

7-13     facilities are located, an affected party may offer, and the

7-14     commission shall consider, evidence relating to cumulative risks,

7-15     including:

7-16                 (1)  the synergistic effects of substances in the

7-17     releases, emissions, or discharges of the facility that could

7-18     create additional hazards in combination with each other or with

7-19     substances originating from other facilities in the area;

7-20                 (2)  the combined effect of releases, emissions, or

7-21     discharges from the facility and from other facilities in the area;

7-22                 (3)  the potential for exposure to a particular

7-23     substance by means of multiple pathways; and

7-24                 (4)  the combined level of noise, odor, and other

7-25     potential nuisances from the facility and other facilities in the

7-26     area.

7-27           (b)  The commission shall:

 8-1                 (1)  develop and implement policies to protect the

 8-2     public from cumulative risks, particularly in:

 8-3                       (A)  low-income or minority communities; and

 8-4                       (B)  communities in which permitted facilities

 8-5     are concentrated; and

 8-6                 (2)  give priority to monitoring and enforcement in

 8-7     areas in which permitted facilities are concentrated.

 8-8           (c)  The commission shall adopt rules as necessary to

 8-9     accomplish the purposes of this section.

8-10           SECTION 8.  This Act takes effect September 1, 1997.

8-11           SECTION 9.  The importance of this legislation and the

8-12     crowded condition of the calendars in both houses create an

8-13     emergency and an imperative public necessity that the

8-14     constitutional rule requiring bills to be read on three several

8-15     days in each house be suspended, and this rule is hereby suspended.

8-16                          COMMITTEE AMENDMENT NO. 1

8-17           Amend H.B. 2103 as follows:

8-18           (1)  On page 1, strike lines 9-14 and substitute:

8-19           (c)  It is the state's policy to ensure that new solid waste

8-20     facilities are not located disproportionately in preexisting

8-21     low-income, minority, or other communities and that the adverse

8-22     effects of solid waste facilities on the communities in which they

8-23     are located are minimized, while ensuring that the state has

8-24     adequate solid waste management capacity.

8-25           (2)  On page 1, strike lines 21-23 and substitute:

8-26                 (1)  ensure that new solid waste facilities are not

8-27     located disproportionately in low-income, minority, or other

 9-1     communities to minimize the adverse effects of solid waste

 9-2     facilities on those communities; and

 9-3           (3)  On page 1, line 24, strike "cumulative".

 9-4           (4)  On page 2, strike lines 15-17 and substitute

 9-5     "communities.".

 9-6           (5)  On page 4, strike lines 10-13 and substitute:

 9-7                 (11)  an evaluation of the implementation of the

 9-8     state's policy of ensuring that new solid waste facilities are not

 9-9     located disproportionately in low-income, minority, or other

9-10     communities and ensuring that the adverse effects of solid waste

9-11     facilities on the communities in which they are located are

9-12     minimized.

9-13           (6)  Strike page 4, line 14, through page 7, line 7.

9-14           (7)  On page 7, line 8, strike "7" and substitute "6".

9-15           (8)  On page 7, strike line 12 and substitute: "operation of

9-16     a facility in the local area in which other".

9-17           (9)  On page 7, strike lines 16-19.

9-18           (10)  On page 7, line 20, strike "(2)  the combined" and

9-19     substitute "(1)  the".

9-20           (11)  On page 7, line 22 strike "(3)" and substitute "(2)".

9-21           (12)  On page 7, line 24, strike "(4)" and substitute "(3)".

9-22           (13)  On page 7, line 25, strike "potential nuisances" and

9-23     substitute "impacts".

9-24                                                                 Jackson

9-25                          COMMITTEE AMENDMENT NO. 2

9-26           Amend H.B. 2103 as follows:

9-27           (1)  On page 8, between lines 9 and 10, insert:

 10-1          SECTION 7.  Subchapter C, Chapter 361, Health and Safety

 10-2    Code, is amended by adding Section 361.0695 to read as follows:

 10-3          Sec. 361.0695.  PUBLIC MEETING AND NOTICE FOR SOLID WASTE

 10-4    FACILITIES.  (a)  An applicant for a new facility that accepts

 10-5    municipal solid wastes shall hold a public meeting in the county in

 10-6    which the proposed facility is to be located.  The meeting must be

 10-7    held before the 45th day after the application is filed.

 10-8          (b)  The applicant shall publish notice of the public meeting

 10-9    at least once each week during the three weeks preceding the

10-10    meeting.  The notice must be published in the newspaper of the

10-11    largest general circulation that is published in the county in

10-12    which the proposed facility is to be located.  If a newspaper is

10-13    not published in the county, the notice must be published in a

10-14    newspaper of general circulation in the county.

10-15          (c)  The applicant shall present to the commission an

10-16    affidavit certifying that the notice was published as required by

10-17    Subsection (b).  The commission's acceptance of the affidavit

10-18    raises a presumption that the applicant has complied with

10-19    Subsection (b).

10-20          (d)  The published notice may not be smaller than 96.8 square

10-21    centimeters or 15 square inches with the shortest dimension not

10-22    less than 7.5 centimeters or 3 inches.  The notice must contain at

10-23    least the following information:

10-24                (1)  the permit application number;

10-25                (2)  the applicant's name;

10-26                (3)  the proposed location of the facility; and

10-27                (4)  the location and availability of copies of the

 11-1    application.

 11-2          (e)  The applicant shall pay the cost of the notice required

 11-3    under this section.  The commission by rule may establish a

 11-4    procedure for payment of those costs.

 11-5          (f)  The meeting shall include a discussion of:

 11-6                (1)  the compatibility of the proposed facility with

 11-7    relevant state or regional solid waste management plans;

 11-8                (2)  other sites considered for the proposed facility

 11-9    and the process for selecting the site identified in the

11-10    application;

11-11                (3)  potential benefits to the local community of

11-12    constructing the proposed facility including:

11-13                      (A)  employment opportunities and related job

11-14    training to ensure that residents of the host community can compete

11-15    for skilled and semiskilled employment at the facility;

11-16                      (B)  contributions by the facility to the

11-17    community infrastructure including road maintenance, park

11-18    development, and litter control;

11-19                      (C)  fair and reasonable compensation to owners

11-20    of real property less than 2,640 feet from the facility for any

11-21    decrease in the assessed value of the property attributable to the

11-22    siting of the facility.

11-23                (4)  effects the facility may have on local residents,

11-24    places of worship, schools, day care centers, or surface water

11-25    bodies used to supply public drinking water; and

11-26          (g)  The applicant shall mail to the commission a report of

11-27    the proceedings of the meeting, including summaries of the

 12-1    information discussed and input received at the meeting.  The

 12-2    report must be postmarked not later than the 30th day after the

 12-3    date the meeting concludes.

 12-4                                                                Jackson