By Kuempel                                            H.B. No. 3110

         Line and page numbers may not match official copy.

         Bill not drafted by TLC or Senate E&E.

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the waste tire recycling fund.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Sections 361.112(f) and (g), Health and Safety

 1-5     Code, are amended to read as follows:

 1-6           (f)  A person may not store more than 500 [used or] scrap

 1-7     tires or dispose of any quantity of [used or] scrap tires unless

 1-8     the tires are shredded, split, or quartered as provided by

 1-9     commission rule.  The commission may grant an exception to this

1-10     requirement if the commission finds that circumstances warrant the

1-11     exception.  The prohibition provided by this subsection regarding

1-12     storage does not apply to:

1-13                 (1)  a registered scrap [waste] tire energy recovery

1-14     facility, scrap tire recycler, scrap tire facility or a whole scrap

1-15     [waste] tire energy recovery facility storage site;

1-16                 (2)  [.  The prohibition provided by this subsection

1-17     does not apply to] a person who, for eventual recycling, reuse, or

1-18     energy recovery, temporarily stores scrap tires in a designated

1-19     recycling collection area at a landfill permitted by the commission

1-20     or licensed by a county or by a political subdivision exercising

1-21     the authority granted by Section 361.165; or

1-22                 (3)  a person described in Section 361.472(a) who

 2-1     stores not more than 1,000 scrap tires for more than 30 days.

 2-2           (g)  The commission shall require a person who transports

 2-3     used or scrap tires for storage, [or] disposal, or end use to

 2-4     maintain records and use a manifest or other appropriate system to

 2-5     assure that those tires are transported to a storage site that is

 2-6     registered or to a disposal facility that is permitted under this

 2-7     section for that purpose, or to a registered end user.

 2-8           SECTION 2.  The heading to Subchapter P, Chapter 361, Health

 2-9     and Safety Code, is amended to read as follows:

2-10             SUBCHAPTER P.  SCRAP [WASTE] TIRE RECYCLING PROGRAM

2-11           SECTION 3.  Section 361.471, Health and Safety Code, is

2-12     amended to read as follows:

2-13           Sec. 361.471.  Definitions.  In this subchapter:

2-14                 (1)  "Class I Region" means any area within 190 miles

2-15     from the cities Dallas, Fort Worth, Houston, or San Antonio as that

2-16     distance is determined by the Texas Department of Transportation

2-17     Official Highway Map, and shall include the entirety of any county

2-18     which has at least 50 percent of its area within that distance.

2-19                 (2)  "Class II Region" means any area of the state

2-20     which is not within a Class I Region.

2-21                 (3)  "End use" includes the use of whole scrap tires,

2-22     shredded tire pieces, or tire-derived material for a civil

2-23     engineering application or practice, energy recovery, or the

2-24     manufacture of a product with economic value or for any other

2-25     process or product that the commission by rule determines meets the

2-26     objectives of this subchapter.

2-27                 (4)  "Fund" means the scrap [waste] tire recycling

 3-1     fund.

 3-2                 (5) [(2)]  "Green tire" means the casing form of a tire

 3-3     that has not been cured or does not have a tread or marking of any

 3-4     kind.

 3-5                 [(3)  "Good used tire" means a used tire, not including

 3-6     a recapped or retreaded tire, suitable for continued use for its

 3-7     original intended purpose.]

 3-8                 (6) [(4)]  "Manufacturer reject tire" means a tire

 3-9     rendered defective in the manufacturing process, whether the tire

3-10     is determined to be defective before or after consumer purchase.

3-11                 (7) [(5)]  "Mobile tire shredder" means equipment

3-12     mounted on wheels or skid-mounted and hauled from place to place to

3-13     split, shred, or quarter [used or] scrap tires.

3-14                 (8) [(6)]  "Scrap tire" has the meaning assigned by

3-15     Section 361.112.

3-16                 (9) [(7)]  "Scrap [Waste] tire energy recovery

3-17     facility" means a facility at which [whole used or scrap tires or]

3-18     shredded tires are used as a fuel, including:

3-19                       (A)  a cement kiln;

3-20                       (B)  a utility boiler;

3-21                       (C)  a pulp and paper mill;

3-22                       (D)  a cogeneration facility;

3-23                       (E)  a foundary; or

3-24                       (F) [(E)]  another facility designated by the

3-25     commission.

3-26                 (10)  "Scrap tire generator" includes an entity that

3-27     accepts scrap tire pieces for temporary storage, a fleet operator,

 4-1     an automotive dismantler, or a whole new or used tire retailer,

 4-2     wholesaler, manufacturer, recapper, or retreader.  The term does

 4-3     not include a scrap tire facility, scrap tire recycler or whole

 4-4     scrap tire energy recovery facility that stores whole tires or tire

 4-5     pieces.

 4-6                 (11) [(8)]  "Scrap [Waste] tire facility" means a

 4-7     facility [registered by the commission under Section 361.477] at

 4-8     which scrap tires are collected and shredded to facilitate the

 4-9     future extraction of useful materials for recycling, reuse, or

4-10     energy recovery and are stored in a scrap [waste] tire storage

4-11     facility or a facility that recycles, reuses, or recovers the

4-12     energy from the shredded tire pieces.

4-13                 (12) [(9)]  "Scrap [waste] tire processor" means:

4-14                       (A)  a scrap [waste] tire facility; or

4-15                       (B)  a mobile tire shredder that splits, shreds,

4-16     or quarters tires and deposits the split, shredded, or quartered

4-17     tires for eventual recycling, reuse, or energy recovery at:

4-18                             (i)  a scrap [waste] tire storage facility

4-19     registered by the commission under Section 361.112; or

4-20                             (ii)  a scrap [waste] tire facility.

4-21                 (13) [(10)]  "Scrap [waste] tire storage facility"

4-22     means a facility registered by the commission under Section

4-23     361.4725 [361.477] at which whole [used or] scrap tires or shredded

4-24     tire pieces are collected and stored to facilitate the future

4-25     extraction of useful material for recycling, reuse, or recovery.

4-26     The term does not include a marine dock, rail yard, or trucking

4-27     facility used to store tires that are awaiting shipment to a person

 5-1     for recycling, reuse, or energy recovery for 30 days or less.

 5-2                 (14) [(11)]  Scrap [waste] tire transporter" means a

 5-3     person who collects and transports [used or] scrap tires or scrap

 5-4     tire pieces for storage or disposal.

 5-5                 (15)  "Tire-derived material" includes crumb rubber,

 5-6     materials produced from scrap tires or tire pieces through a

 5-7     pyrolytic or other chemical or thermal process.

 5-8                 (16)  "Whole scrap tire energy recovery facility" means

 5-9     a facility at which whole scrap tires are used as fuel.

5-10                 [(12)  "Weighed tire" means a unit of weight for

5-11     shredded scrap tires that is equal to 18.7 pounds.]

5-12           SECTION 4.  Section 461.472, Health and Safety Code, is

5-13     amended to read as follows:

5-14           Sec. 361.472.  SCRAP [Waste] Tire Recycling Fees.  (a)  A

5-15     person in the business of selling new [good used] tires who sells

5-16     or offers to sell new tires not for resale [for use on a vehicle,]

5-17     or a person in the business of selling used vehicles or used

5-18     vehicle parts who sells or offers to sell new [or good used] tires

5-19     not for resale shall collect at the time and place of sale a scrap

5-20     [waste] tire recycling fee for each tire sold as follows:

5-21                 (1)  $2 for each new tire that has a rim diameter of 12

5-22     inches or more but less than 17.5 inches [and $1 for each good used

5-23     tire that has a rim diameter of 12 inches or more but less than

5-24     17.5 inches];

5-25                 (2)  $3.50 for each new tire that has a rim diameter of

5-26     17.5 inches or greater, other than an off-the-road tire intended

5-27     for use on heavy machinery, including an earthmover, a

 6-1     loader/dozer, a grader, or mining equipment; and

 6-2                 (3)  $1.50 [$2] for a new motorcycle tire, regardless

 6-3     of the rim diameter.

 6-4           (b)  The sale of a tire as original equipment in the

 6-5     manufacture of a new vehicle is a sale for resale.

 6-6           (c)  A fee may not be assessed for:

 6-7                 (1)  a recapped or retreaded tire; [or]

 6-8                 (2)  a bicycle tire; or

 6-9                 (3)  a solid industrial tire.

6-10           (d)  A person required to collect a fee under this section:

6-11                 (1)  shall list as a separate item on an invoice a fee

6-12     due under this section; and

6-13                 (2)  except as provided by Subsection (e), on or before

6-14     the 20th day of the month following the end of each calendar month

6-15     and on a form and in the manner prescribed by the comptroller,

6-16     shall file a report with and shall remit to the comptroller the

6-17     amount of fees collected during the preceding calendar month.

6-18           (e)  A person required to collect a fee under this section

6-19     who collects less than $50 for a calendar month or less than $150

6-20     for a calendar quarter is not required to file a monthly report but

6-21     shall file a quarterly report with and make a quarterly remittance

6-22     to the comptroller.  The quarterly report and remittance shall

6-23     include fees collected during the preceding calendar quarter.  The

6-24     report and remittance are due not later than the 20th day of the

6-25     month following the end of the calendar quarter.

6-26           (f)  An invoice or other record required by this section or

6-27     rules of the comptroller must be maintained for at least four years

 7-1     after the date on which the invoice or record is prepared and be

 7-2     open for inspection by the comptroller at all reasonable times.

 7-3           (g)  The comptroller shall adopt rules necessary for the

 7-4     administration, collection, reporting, and payment of the fees

 7-5     payable or collected under this section.

 7-6           (h)  A scrap [waste] tire recycling fee is imposed on the

 7-7     storage, use, or consumption in this state of a tire at the same

 7-8     rate as provided by Subsection (a), except when purchased for the

 7-9     purpose of resale.

7-10           (i)  A person storing, using, or consuming a tire in this

7-11     state is liable for the scrap [waste] tire recycling fee as defined

7-12     in this section and is responsible for reporting and paying the fee

7-13     to the comptroller in the same manner as a person required to

7-14     collect this fee, as provided in Subsections (d)(2) and (e).

7-15           (j)  A person storing, using, or consuming a tire in this

7-16     state is not further liable for the scrap [waste] tire recycling

7-17     fee imposed by Subsection (a) if the person:

7-18                 (1)  pays the fee to:

7-19                       (A)  a person who is required to collect the fee

7-20     under Subsection (a) and who is engaged in business in this state;

7-21     or

7-22                       (B)  another person authorized by the comptroller

7-23     to collect the fee; and

7-24                 (2)  receives a purchaser's receipt from the person to

7-25     whom the fee was paid.

7-26           (k)  In this section:

7-27                 (1)  "Engaged in business in this state" has the

 8-1     meaning provided under Sections 151.107(a) and (b), Tax Code.

 8-2                 (2)  "Purchased for resale" means acquired by means of

 8-3     a sale for resale as defined in Section 151.006, Tax Code.

 8-4                 (3)  "Storage" and "use" have the meanings assigned

 8-5     those terms by Section 151.011, Tax Code.

 8-6           SECTION 5.  Section 361.4275, Health and Safety Code, is

 8-7     amended to read as follows:

 8-8           Sec. 361.4725.  Registration; Fee.  (a)  A scrap tire

 8-9     facility, scrap tire recycler, scrap tire storage facility, scrap

8-10     tire transporter, scrap tire processor, scrap tire energy recovery

8-11     facility, whole scrap tire energy recovery facility, or scrap tire

8-12     generator shall register with the commission in accordance with

8-13     commission rules and on the forms prescribed by the commission.

8-14           (b)  A person who applies to the commission to register under

8-15     this section [a waste tire storage facility, a waste tire energy

8-16     recovery facility storage site, a waste tire recycler, or a fixed

8-17     or mobile tire processor,] or applies to renew or amend the

8-18     registration, must pay a fee set by the commission not to exceed

8-19     [of] $500.

8-20           SECTION 6.  Sections 361.474 and 361.475, Health and Safety

8-21     Code, are amended to read as follows:

8-22           Sec. 361.474.  Disposition of Fees and Penalties.  Fees and

8-23     penalties collected under this subchapter shall be deposited in the

8-24     state treasury to the credit of the scrap [waste] tire recycling

8-25     fund.

8-26           Sec. 361.475.  SCRAP [Waste] Tire Recycling Fund.  (a)  The

8-27     scrap [waste] tire recycling fund is a special account in the

 9-1     general revenue fund.

 9-2           (b)  The commission shall administer the fund.

 9-3           (c)  The fund consists of fees and penalties collected under

 9-4     this subchapter, interest on money in the fund, and money from

 9-5     gifts, grants, or any other source intended to be used for the

 9-6     purposes of this subchapter.

 9-7           (d)  The fund shall be used only to:

 9-8                 (1)  pay scrap [waste] tire facilities [processors],

 9-9     [waste] whole scrap tire energy recovery facility, or scrap tire

9-10     recyclers owners or operators[, or waste tire recyclers] that meet

9-11     the requirements for payment under Section 361.477, 361.4771, or

9-12     361.4772[, or 361.4773] and rules adopted under those sections;

9-13                 (2)  pay the commission's reasonable and necessary

9-14     administrative costs of performing its duties under this subchapter

9-15     as provided by Section 361.4774 [in an amount not to exceed six

9-16     percent of the money annually accruing to the fund]; and

9-17                 (3)  pay the comptroller's reasonable and necessary

9-18     administrative costs of performing the comptroller's duties under

9-19     this subchapter as provided by Section 361.4774 [in an amount not

9-20     to exceed two percent of the money annually accruing to the fund;]

9-21                 [(4)  provide grants to waste tire energy recovery

9-22     facility owners or operators to cover equipment capital investment

9-23     costs and equipment installation costs to enable a facility to use

9-24     tire shreds as fuel; and]

9-25                 [(5)  provide grants for recycling facility

9-26     construction costs].

9-27           (e)  Registration fees received under Section 361.4725 shall

 10-1    be allocated to the commission for its reasonable and necessary

 10-2    costs associated with the [reviewing applications for] registration

 10-3    of a person required to register under that section [and with

 10-4    registering:]

 10-5                [(1)  fixed and mobile tire processing facilities and

 10-6    storage sites;]

 10-7                [(2)  waste tire energy recovery facilities and storage

 10-8    sites; and]

 10-9                [(3)  waste tire recyclers].

10-10          (f)  The fund may not be used to reimburse shredding or

10-11    burning of:

10-12                (1)  innertubes;

10-13                (2)  scrap rubber products;

10-14                (3)  green tires;

10-15                (4)  industrial solid waste, excluding scrap [waste]

10-16    tires;

10-17                (5)  oversized tires, as defined by commission rule,

10-18    unless the oversized tires are collected from a priority

10-19    enforcement list site;

10-20                (6)  manufacturer reject tires; or

10-21                (7)  nonpneumatic tires.

10-22          (g)  The commission may classify special authorization tires,

10-23    as defined by commission rule, as priority enforcement list tires.

10-24          (h)  [The fund shall maintain a balance of not less than

10-25    $500,000.]

10-26          [(i)  If the commission has reason to believe that the

10-27    balance of money appropriated from the fund will fall below

 11-1    $500,000, the commission may:]

 11-2                [(1)  suspend the requirement to reimburse priority

 11-3    enforcement list tires shredded in excess of the minimum percentage

 11-4    identified in Section 361.477(c)(3)(C);]

 11-5                [(2)  limit the number of scrap waste tires for which a

 11-6    processor, waste tire energy recovery facility owner or operator,

 11-7    or scrap waste tire end user recycler will be reimbursed; or]

 11-8                [(3)  discontinue paid carryover.]

 11-9          [(j)]  The revenues obtained from the scrap [waste] tire

11-10    recycling fees shall be deposited to the credit of the scrap

11-11    [waste] tire recycling fund and may be used only to pay for those

11-12    activities and costs identified in Subsection (d) or (e).

11-13          SECTION 7.  Section 361.477, Health and Safety Code, is

11-14    amended to read as follows:

11-15          Sec. 361.477.  Payments to SCRAP [Waste] Tire FACILITIES AND

11-16    WHOLE SCRAP TIRE ENERGY RECOVERY FACILITIES [Processors].  (a)  The

11-17    commission each calendar month shall pay a scrap [waste] tire

11-18    facility [processor] that shreds scrap tires and meets the

11-19    requirements of this section and rules adopted under this section

11-20    an amount equal to the following:

11-21                      (A)  five cents per pound for [80 cents] for each

11-22    pound of [weighed] tires generated from the Class I Region, and

11-23    which scrap tires were shredded by the processor during the

11-24    preceding calendar month; and

11-25                      (B)  five and one-half cents for each pound of

11-26    tires generated from the Class II Region, and which scrap tires

11-27    were shredded by the processor during the preceding calendar month.

 12-1          (b)  The commission shall pay a whole scrap tire energy

 12-2    recovery facility that meet the requirements of this section and

 12-3    rules adopted under this section an amount equal to two cents per

 12-4    pound of whole scrap tires actually put to end use by the facility.

 12-5          (c)  [If the total number of used or scrap tires or tire

 12-6    pieces contained in illegal scrap tire sites that are identified on

 12-7    the priority enforcement list is below 2,500,000 tires, the] The

 12-8    commission may pay [80 cents or] an appropriate amount determined

 12-9    by the commission for each pound [weighed tire] to scrap tire

12-10    facilities or whole scrap tire energy recovery facilities

12-11    [processors] with whom the commission has contracted to remove and

12-12    transport to scrap tire facilities or whole scrap tire energy

12-13    recovery facilities [shred] scrap tires and scrap tire pieces from

12-14    priority enforcement list sites.  [The 2,500,000 tire limit does

12-15    not include those tires contained in sites under commission

12-16    enforcement or attorney general action or that require corrective

12-17    action or remedial action in response to a release or threat of

12-18    release of hazardous substances.]  In acting under this subsection,

12-19    the commission may contract with scrap tire facilities or whole

12-20    scrap tire energy recovery facilities [processors] on a regional or

12-21    site-specific basis.  The contracts shall be procured through a

12-22    competitive bid process conducted in accordance with the provisions

12-23    of the State Purchasing and General Services Act (Subtitle D, Title

12-24    10, Government Code [Article 601b, Vernon's Texas Civil Statutes])

12-25    applicable to contracts for services.  [Notwithstanding Subsection

12-26    (c), while the commission is using a competitive bid process for

12-27    assignment of sites listed on the priority enforcement list, the

 13-1    priority enforcement list requirements of Subsection (c)(3)(C) do

 13-2    not apply to an application for payment.  The commission may elect

 13-3    not to enter into contracts under this subsection.  The contracts

 13-4    may be only for the removal and shredding of tires from priority

 13-5    enforcement list sites.]

 13-6          [(c)  A waste tire processor that desires to receive payment

 13-7    under this section for tires shredded by the processor during a

 13-8    calendar month must:]

 13-9                [(1)  apply to the commission for registration in

13-10    accordance with forms prescribed by the commission;]

13-11                [(2)  apply to the commission for payment on forms

13-12    prescribed by the commission or, on a voluntary basis, apply by a

13-13    removable storage medium stored in an industry standard file format

13-14    acceptable to the commission;]

13-15                [(3)  demonstrate as required by rules adopted under

13-16    this section that:]

13-17                      [(A)  all tires for which payment is sought have

13-18    been shredded to an industry standard two-inch minus particle size

13-19    or, if approved by the commission, shredded to an alternative

13-20    particle size set by a contract requirement related to recycling or

13-21    end use of the particles; and]

13-22                      [(B)  not less than 50 percent of those tires

13-23    were collected from generators, unless this requirement is

13-24    suspended by the commission on consideration of service needs

13-25    contained in a contract drafted under Subsection (b); and]

13-26                      [(C)  if the total number of whole used or scrap

13-27    tires or shredded tire pieces contained in illegal waste tire sites

 14-1    that are identified on the priority enforcement list exceeds

 14-2    2,500,000 tires for more than 60 consecutive days, not less than 15

 14-3    percent and not more than 30 percent of those tires were collected

 14-4    from scrap tire sites listed on the priority enforcement list;]

 14-5                [(4)  provide any other information the commission

 14-6    determines is needed to accomplish the purposes of this subchapter,

 14-7    including a monthly report of waste tires or tire pieces shredded,

 14-8    subtotaled by tire count or weight, for each generator number and

 14-9    priority enforcement list number;]

14-10                [(5)  demonstrate that energy recovery activities in

14-11    the state are in compliance with applicable air emission control

14-12    rules and standards; and]

14-13                [(6)  provide financial assurance deemed adequate by

14-14    the commission that corresponds to:]

14-15                      [(A)  the payment appropriate for the number of

14-16    scrap waste tires the processor anticipates shredding in the next

14-17    calendar month; or]

14-18                      [(B)  the number of scrap tires the waste tire

14-19    storage site owner or operator anticipates accepting for storage in

14-20    the next calendar month.]

14-21          [(d)  A waste tire processor that in any month exceeds the

14-22    minimum requirement of Subsection (c)(3)(C) may receive credit only

14-23    for paid carryover in the amount in excess of the requirement that

14-24    may be used to meet the minimum requirement during a later month.

14-25    The commission by rule may prescribe the method of applying credits

14-26    accrued under this subsection.]

14-27          [(e)  The commission by rule shall adopt application and

 15-1    payment procedures and requirements to implement this section.]

 15-2          [(f)]  Until the commission has determined that a scrap

 15-3    [waste] tire facility and whole scrap tire energy recovery facility

 15-4    owner or operator [processor] is in compliance with all applicable

 15-5    requirements, the commission may not authorize the scrap tire

 15-6    facility or whole scrap tire energy recovery facility owner or

 15-7    operator [processor] to process, burn or store scrap tires or tire

 15-8    pieces at a site at which the scrap tire facility or a whole scrap

 15-9    tire energy recovery facility owner or operator [processor]

15-10    processes, burns or stores or intends to process, burn or store

15-11    scrap tires or tire pieces.

15-12          [(g)  Beginning January 1, 1996, the commission may reimburse

15-13    a processor for shredded scrap tires only if the processor has a

15-14    binding agreement to deliver the shredded scrap tires to a person

15-15    to recycle or reuse or to use for energy recovery within 180 days

15-16    after the date of reimbursement.  The commission shall suspend

15-17    subsequent shredding reimbursements to a processor that fails to

15-18    deliver the tire shreds to an identified end-use market before the

15-19    181st day after the date of reimbursement unless the executive

15-20    director determines that the failure to deliver was caused by an

15-21    act of God or by unforeseen business events.  The commission may

15-22    not resume suspended reimbursements until the processor makes all

15-23    delinquent deliveries.]

15-24          [(h)  The commission may not pay a waste tire processor for

15-25    processing scrap tires if:]

15-26                [(1)  the commission field office and central office

15-27    program staff have not reviewed and approved for further processing

 16-1    by the commission all information submitted to the commission by

 16-2    the waste tire processor as required by Subsection (c) or rules

 16-3    adopted under this section; or]

 16-4                [(2)  the commission determines that the processor:]

 16-5                      [(A)  has not provided adequate financial

 16-6    assurance;]

 16-7                      [(B)  does not have adequate fire protection; or]

 16-8                      [(C)  is causing an imminent danger to public

 16-9    health or welfare.]

16-10          [(i)  A waste tire processor that in any month exceeds the

16-11    generator percentage of the allocated number of waste tires

16-12    assigned for reimbursement purposes may accrue credit only for paid

16-13    generator carryover in the amount in excess of the requirement that

16-14    may be used to meet the allocation maximum during a later month.

16-15    The commission by rule may prescribe the method of applying

16-16    carryover credit accrued under this section.]

16-17          [(j)  The commission shall adopt rules to manage payments

16-18    from the fund to prevent depletion of the fund.  Rules adopted

16-19    under this subsection shall consider appropriate payments to

16-20    processors that reflect the varying amounts of money available in

16-21    the fund.  In any allocation adopted for processors under this

16-22    section, the commission shall consider the monthly average

16-23    percentage of shredded tires the processor has forwarded to an

16-24    end-use or recycling market.  In addition, the commission may

16-25    consider the historical average number of tires for which the

16-26    processor has been reimbursed and such other factors as may be

16-27    determined by the commission.]

 17-1          [(k)  Notwithstanding Subsection (a), beginning September 1,

 17-2    1995, the commission shall reimburse a waste tire processor an

 17-3    additional five cents for each weighed tire if the commission

 17-4    determines that the processor has a binding agreement to deliver

 17-5    100 percent of the scrap tires shredded by the processor monthly to

 17-6    a person to recycle or reuse or to use for energy recovery and the

 17-7    commission verifies that the processor has delivered the tire

 17-8    shreds to such identified end-use market.  This section applies

 17-9    only to a waste tire processor registered on January 1, 1995, and

17-10    that has a verified end market for the processor's tire shreds on

17-11    June 1, 1995.]

17-12          SECTION 8.  Sections 361.4771, 361.4772 and 361.4773 are

17-13    amended to read as follows:

17-14          Sec. 361.4771.  PAYMENTS TO SCRAP TIRE RECYCLERS [Payment for

17-15    Energy Recovery from Whole Waste Tires or Shredded Tires].

17-16    (a)  The commission each calendar month shall pay a scrap tire

17-17    recycler that meets the requirements of this section and rules

17-18    adopted under this section an amount set forth in this subsection

17-19    for shredded scrap tires the scrap tire recycler actually puts to

17-20    an end use during the preceding calendar month.  The payment

17-21    amounts are as follows for the following categories:

17-22                (1)  a scrap tire energy recovery facility shall

17-23    receive $30 per ton for shredded scrap tire pieces used for fuel at

17-24    the facility;

17-25                (2)  a scrap tire recycler which utilizes shredded tire

17-26    pieces for civil engineering applications or practices, which

17-27    practices include but are not limited to, landfill protective

 18-1    cover, landfill liner cover, landfill leachate collection systems,

 18-2    embankment construction, erosion control, road base material,

 18-3    requested applications by political subdivisions, councils of

 18-4    government, or any other application approved by the executive

 18-5    director, shall receive $15 per ton;

 18-6                (3)  scrap tire recyclers which engage in other

 18-7    recycling applications, including tire-derived material, shall

 18-8    receive $30 per ton, so long as the scrap tire recycler producing

 18-9    the tire-derived material does not exceed 20 million pounds of

18-10    inventory of tire-derived material at any one time.

18-11                (4)  scrap tire recyclers which utilize shredded tire

18-12    pieces for septic system applications shall receive $10 per ton for

18-13    shredded tire pieces actually put to end use, provided that at

18-14    least 150 tons of shreds is actually put to end use in each

18-15    calendar quarter; and

18-16                (5)  scrap tire recyclers which recycle metal wire

18-17    derived from scrap tire pieces shall receive $10.00 per ton for

18-18    scrap tire wire actually put to an end use.

18-19          Sec. 361.4772.  PROCEDURE FOR OBTAINING PAYMENT FOR SCRAP

18-20    TIRE FACILITIES, WHOLE SCRAP TIRE ENERGY RECOVERY FACILITIES, AND

18-21    SCRAP TIRE RECYCLERS; RESTRICTIONS; FUND MANAGEMENT.  [The

18-22    commission shall adopt rules governing payments to waste tire

18-23    energy recovery facilities for weighed tires used by the facility

18-24    for fuel.  The rules must include rules governing registration and

18-25    application procedures.   The rules must include a voluntary

18-26    alternative process for making a payment application by the use of

18-27    an industry standard file format removable storage medium.]

 19-1          [(b)] (a)  To receive payment under this section and Sections

 19-2    361.477, 361.4771 [361.4773], a scrap [waste] tire facility, whole

 19-3    scrap tire energy recovery facility, and scrap tire recycler owner

 19-4    or operator must:

 19-5                (1)  apply to the commission for registration in the

 19-6    manner and on forms prescribed by commission rule;

 19-7                (2)  apply to the commission for payment:

 19-8                      (A)  in a manner and on forms prescribed by

 19-9    commission rule; or

19-10                      (B)  as a voluntary alternative, by use of a

19-11    removable storage medium stored in an industry standard file format

19-12    acceptable to the commission;

19-13                (3)  demonstrate that all tires or tire pieces for

19-14    which the scrap tire facility, whole scrap tire energy recovery

19-15    facility and scrap tire recycler [owner or operator] applies for

19-16    payment are whole scrap [waste] tires or shredded tires;

19-17                (4)  send the commission a monthly report of the number

19-18    of pounds of whole waste tires or shredded tires, or tire-derived

19-19    material put to actual end use [used for energy recovery],

19-20    subtotaled by [tire count or by] weight attributed to each

19-21    generator number or priority enforcement list number;

19-22                (5)  demonstrate that any [the] energy recovery

19-23    activities comply with applicable air emission control standards

19-24    and rules;

19-25                (6)  submit evidence of financial responsibility in an

19-26    amount adequate to assure proper cleanup and closure of the

19-27    facility, if the person anticipates accepting an amount of whole

 20-1    scrap tires, shredded tire pieces, or tire-derived material for

 20-2    storage that exceeds the facility's 30-day supply; and

 20-3                (7)  [if the number of whole used or scrap tires or

 20-4    shredded tire pieces contained in illegal waste tire sites that are

 20-5    identified on the priority enforcement list exceeds 2,500,000 tires

 20-6    for more than 60 consecutive days, demonstrate that not less than

 20-7    15 percent and not more than 30 percent of the tires used for

 20-8    energy recovery at the facility were collected from scrap tire

 20-9    sites listed on the priority enforcement list; and]

20-10                [(8)]  provide any other information required by

20-11    commission rule.

20-12          (b) [(c)]  A scrap [waste] tire energy recovery facility, or

20-13    whole scrap tire energy recovery facility, may not store in excess

20-14    of a 30-day supply of whole scrap [waste] tires, [or] shredded tires

20-15    or tire-derived material at a site at which the owner or operator

20-16    intends to burn or store waste tires, [or] shredded tire pieces, or

20-17    tire-derived material [tires] until the facility is registered by

20-18    the commission as a scrap [waste] tire energy recovery facility

20-19    storage site or a whole scrap tire energy recovery facility storage

20-20    site.  A scrap tire recycler may not store in excess of a 30-day

20-21    supply of whole scrap tires, shredded tire pieces, or tire-derived

20-22    material at a site at which the recycler intends to recycle or

20-23    store whole scrap tires, shredded tire pieces, or tire-derived

20-24    material until the facility is registered by the commission as a

20-25    scrap tire recycler storage site.

20-26          (c) [(d)]  The commission may not pay a whole scrap [waste]

20-27    tire energy recovery facility owner or operator for actual end use

 21-1    of whole scrap [using waste] tires, [or] shredded tire pieces, or

 21-2    tire-derived material [tires] if:

 21-3                (1)  the commission field office and central office

 21-4    program staff have not reviewed and approved for further processing

 21-5    by the commission all information submitted to the commission by

 21-6    the whole scrap [waste] tire energy recovery facility owner or

 21-7    operator as required by Subsection (a) [(b)] or rules adopted under

 21-8    this section;

 21-9                (2)  the commission determines that the facility:

21-10                      (A)  has not provided adequate financial

21-11    assurance;

21-12                      (B)  does not have adequate fire protection; or

21-13                      (C)  is causing an imminent danger to public

21-14    health or welfare;

21-15                (3)  the facility does not have appropriate

21-16    authorization from the commission to:

21-17                      (A)  perform scrap [waste] tire energy recovery

21-18    at the energy recovery facility site if the end user is a scrap

21-19    tire energy recovery facility owner or operator; or

21-20                      (B)  recycle scrap tires, shredded tire pieces,

21-21    or tire-derived material at the recycling site if the end user is a

21-22    scrap tire recycler; or

21-23                (4)  the facility is not physically capable of

21-24    performing:

21-25                      (A)  scrap [waste] tire energy recovery if the

21-26    end user is a scrap tire energy recovery facility owner or

21-27    operator; or

 22-1                      (B)  scrap tire recycling, if the end user is a

 22-2    scrap tire recycler.

 22-3          (d)  The commission may not pay a scrap tire facility for

 22-4    shredded tire pieces or tire-derived material if:

 22-5                (1)  the commission field office and central office

 22-6    program staff have not reviewed and approved for further processing

 22-7    by the commission all information submitted to the commission by

 22-8    the scrap tire facility as required by subsection (a) or rules

 22-9    adopted under this section;

22-10                (2)  the commission determines that the scrap tire

22-11    facility:

22-12                      (A)  has not provided adequate financial

22-13    assurance;

22-14                      (B)  does not have adequate fire protection; or

22-15                      (C)  is causing an imminent danger to public

22-16    health or welfare;

22-17                (3)  the scrap tire facility does not have appropriate

22-18    authorization from the commission to perform processing operations

22-19    at the facility; or

22-20                (4)  the scrap tire facility is not physically capable

22-21    of performing processing operations at the facility.

22-22          (e)  The commission may not pay a scrap tire recycler for

22-23    whole scrap tires, shredded tire pieces, or tire-derived material

22-24    if the commission determines that the whole scrap tires, shredded

22-25    tire pieces, or tire-derived material:

22-26                (1)  are not being utilized for legitimate end use

22-27    purposes; or

 23-1                (2)  delivered from out of state to be used in state.

 23-2          (f) [(e)]  The commission shall adopt rules to manage

 23-3    payments from the fund to prevent depletion of the fund as follows:

 23-4                (1)  the commission shall pay scrap tire facilities and

 23-5    whole scrap tire energy facilities who have established end use

 23-6    markets and have not exceed their registered storage capacity under

 23-7    this section before using any allocation method authorized by this

 23-8    subchapter and before making other payments from the fund to other

 23-9    uses authorized by this subchapter.

23-10                (2)  the commission shall pay scrap tire recyclers for

23-11    whole tires, shredded tire pieces or tire derived material that is

23-12    actually put to end use provided that:

23-13                      (A)  the commission does not exceed $5,000,000

23-14    dollars per fiscal year; and

23-15                      (B)  the commission shall pay out no more than

23-16    $420,000 per calendar month;

23-17                      (C)  any unspent funds remaining at the end of

23-18    the calendar month shall roll forward to the following month;

23-19                      (D)  scrap tire recyclers which exceed the

23-20    maximum annual or calendar month payment requirement of subsection

23-21    (f)(2)(A) and (B) for whole tires, shredded tires pieces or tire

23-22    derived material put to actual end use shall receive a credit which

23-23    shall carryover to the following calendar month or fiscal year.

23-24                (3)  the commission shall use the balance of the fund

23-25    for priority enforcement list site remediation, research grants to

23-26    state entities for the use of shreds in civil engineering

23-27    application, or any other use the commission deems necessary.

 24-1          (g)  In this section, "30-day supply" means an amount equal

 24-2    to the average of the amount of tires consumed for energy recovery

 24-3    or legitimately recycled in each of the six months immediately

 24-4    preceding the month for which the supply is being computed.

 24-5    [Before using any allocation method authorized by this subchapter

 24-6    and before making other payments from the fund, the commission

 24-7    shall pay reimbursements to processors under Section 361.477 who

 24-8    have established end-use markets and pay reimbursements under this

 24-9    section and Sections 361.4772 and 361.4773.]

24-10          Sec. 361.4773.  STORED TIRES.  (a)  A scrap tire storage

24-11    facility shall not exceed the registered storage capacity approved

24-12    by the commission.

24-13          (b)  A scrap tire storage facility that does not meet the

24-14    requirement of Subsection (a) shall immediately cease accepting

24-15    additional whole scrap tires or shredded tire pieces.

24-16          [Sec. 361.4772.  ][Recycling Facility Construction Grant][.

24-17    (a)  The commission by rule shall establish a program for providing

24-18    grants for the construction of waste tire recycling facilities for

24-19    the recycling of whole waste tires or shredded tires.]

24-20          [(b)  The commission may not expend more than $2 million each

24-21    year for grants under this section.]

24-22          [(c)  A facility constructed with a grant under this section

24-23    is not eligible for reimbursement for:]

24-24                [(1)  powdered rubber;]

24-25                [(2)  a tire-derived fuel;]

24-26                [(3)  buffing dust;]

24-27                [(4)  a retreaded or recapped tire; or]

 25-1                [(5)  a product that is ineligible for reimbursement

 25-2    under commission rules.]

 25-3          [(d)  The commission shall require a grant recipient to:]

 25-4                [(1)  demonstrate that not less than 15 percent and not

 25-5    more than 30 percent of the tires used for energy recovery at the

 25-6    facility were collected from scrap tire sites listed on the

 25-7    priority enforcement list if the number of whole used or scrap

 25-8    tires or shredded tire pieces contained in illegal waste tire sites

 25-9    that are identified on the priority enforcement list exceeds

25-10    2,500,000 tires for more than 60 consecutive days; and]

25-11                [(2)  submit evidence of financial responsibility in an

25-12    amount adequate to assure proper cleanup and closure of the

25-13    facility, if the recipient anticipates accepting an amount of whole

25-14    waste tires or shredded tire pieces for storage that exceeds the

25-15    facility's 30-day supply.]

25-16          [Sec. 361.4773.  ][Payment for Shredded Waste Tire Energy

25-17    Recovery Facility][.  The commission each month shall pay to a waste

25-18    tire energy recovery facility owner or operator that burns shredded

25-19    tires in compliance with an energy recovery permit issued by the

25-20    commission an amount equal to 40 cents for each weighed tire the

25-21    facility used for energy recovery during the preceding month.]

25-22          [(b)  To receive payment under this section, a retrofitted

25-23    waste tire energy recovery facility owner or operator must:]

25-24                [(1)  apply to the commission for payment in a manner

25-25    and on forms prescribed by commission rule; and]

25-26                [(2)  comply with applicable rules adopted by the

25-27    commission under this section and Section 361.4771, unless

 26-1    otherwise indicated by the energy recovery permit issued by the

 26-2    commission.]

 26-3          SECTION 9.  Section 361.4774, Health and Safety Code, is

 26-4    amended to read as follows:

 26-5          Sec. 361.4774.  [Limited Use of Waste Tire Recycling Fund;

 26-6    Grants, Reimbursement, and] Administrative Expenses.  (a)  For

 26-7    performing duties related to the scrap [waste] tire program, each

 26-8    fiscal year the comptroller may expend [up to $680,000 or] an

 26-9    amount equal to not more than two percent of the monthly annually

26-10    accruing to the scrap [waste] tire [recovery] fund[, whichever is

26-11    greater].

26-12          (b)  For administering the scrap [waste] tire recycling

26-13    program, each fiscal year the commission may expend [not more than

26-14    the lesser of $2.05 million or] an amount equal to not more than

26-15    six percent of the amount annually accruing to [appropriated from]

26-16    the scrap [waste] tire recycling fund for the administration and

26-17    operation of the scrap [waste] tire recycling program.

26-18          [(c)  Each fiscal year, the commission may expend not more

26-19    than:]

26-20                [(1)  $1.4 million for paying accrued carryover credits

26-21    as provided by Section 361.499;]

26-22                [(2)  $15.2 million for tire shredding under Section

26-23    361.477;]

26-24                [(3)  $3.52 million for the cleanup and closure of

26-25    priority enforcement list tire sites as provided by Sections

26-26    361.476 and 361.477;]

26-27                [(4)  $2 million for providing recycling facility

 27-1    construction grants under Section 361.4772;]

 27-2                [(5)  $600,000 for payments to energy recovery

 27-3    facilities under Section 361.4773 at a rate of 40 cents per weighed

 27-4    tire unit; and]

 27-5                [(6)  $6 million to provide grants for retrofitting

 27-6    facilities to use whole or shredded tires for fuel or for paying

 27-7    for facilities to use whole tires for fuel as provided by

 27-8    Subsections (d) and (e).]

 27-9          [(d)  For fiscal year 1996, the commission may expend not

27-10    more than $4 million for:]

27-11                [(1)  providing grants to waste tire energy recovery

27-12    facilities that are not using tire-derived fuel and apply for

27-13    assistance to cover retrofitting costs the commission determines

27-14    are necessary to enable the facilities to use whole tires as fuel;

27-15    and]

27-16                [(2)  paying a facility eligible for a grant under

27-17    Subdivision (1), but for which the commission has not made a grant,

27-18    an amount of up to 80 cents per weighed tire unit.]

27-19          [(e)  A person receiving payments for weighed tires under

27-20    Subsection (d)(2) may not receive reimbursements that exceed the

27-21    total of:]

27-22                [(1)  the amount of the retrofitting costs the facility

27-23    would have received if the person had applied for a grant under

27-24    Subsection (d)(1); and]

27-25                [(2)  the cost, as determined by the commission, of

27-26    transporting to the facility the number of whole tires used for

27-27    fuel until the payments under Subsection (d)(2) equal the amount of

 28-1    the retrofitting costs the facility would have received.]

 28-2          [(f)  For fiscal year 1996, the commission may expend not

 28-3    more than $2 million to provide grants to waste tire energy

 28-4    recovery facilities that are not using tire-derived fuel and apply

 28-5    for assistance to cover retrofitting costs the commission

 28-6    determines are necessary to enable the facilities to use shredded

 28-7    tires as fuel.]

 28-8          [(g)  For the period beginning September 1, 1996, and ending

 28-9    December 31, 1997, the commission may expend not more than $6

28-10    million for payments to waste tire energy recovery facilities that

28-11    burn whole tires at a rate of 80 cents per weighed tire unit used.]

28-12          [(h)  After the third quarter of each year of the fiscal

28-13    biennium, funds that remain unused for the purposes specified in

28-14    Subsections (a)-(g) may be transferred for use for a purpose

28-15    specified in Subsections (c)-(g) at the discretion of the

28-16    commission to promote recycling and energy recovery].

28-17          SECTION 10.  Section 361.479, Health and Safety Code, is

28-18    amended to read as follows:

28-19          Sec. 361.479.  Evidence of Financial Responsibility.  (a)  A

28-20    person required to register under Section 361.4725 [waste tire

28-21    storage facility registered by the commission or a waste tire

28-22    facility that accepts shredded scrap tires for storage or for

28-23    processing for recycling, reuse, or energy recovery] shall submit

28-24    to the commission and shall maintain evidence of financial

28-25    responsibility in an amount adequate to assure proper cleanup and

28-26    closure of the facility.

28-27          (b)  A scrap [waste] tire [recycling] facility owner or

 29-1    operator who anticipates accepting for storage an amount of whole

 29-2    scrap tires, shredded tire pieces, or tire-derived material [for

 29-3    storage] that exceeds the facility's 30-day supply shall submit to

 29-4    the commission and shall maintain evidence of financial

 29-5    responsibility in an amount adequate to assure proper cleanup and

 29-6    closure of the facility.

 29-7          (c)  A facility subject to Subsection (a) or (b) shall submit

 29-8    to the commission an estimate of the total amount of whole scrap

 29-9    tires, shredded tire pieces, or tire-derived material measured by

29-10    pounds [weighed tire] that the facility will store or process, the

29-11    maximum number of out-of-state tires the facility will store, and

29-12    the estimated cost, using that total amount, of cleaning up and

29-13    closing the facility.

29-14          (d)  The commission shall evaluate and may amend an estimate

29-15    submitted under Subsection (c) and shall determine for each

29-16    facility the amount for which evidence of financial responsibility

29-17    is required.  The commission periodically may audit a facility

29-18    subject to this section and may increase the amount for which the

29-19    facility is required to provide evidence of financial

29-20    responsibility.  the commission may suspend the registration of, or

29-21    payments under Sections 361.477 and 361.4771 to, a facility that

29-22    does not provide evidence of financial responsibility for an

29-23    increased amount required under this section.

29-24          (e)  Evidence of financial responsibility may be in the form

29-25    of:

29-26                (1)  a performance bond or a letter of credit

29-27    acceptable to the commission that is from a financial institution,

 30-1    a trust fund, or insurance for a privately owned facility; or

 30-2                (2)  a self-insurance test designed by the commission

 30-3    for a publicly owned facility.  A person who makes an initial

 30-4    request for reimbursement from the scrap [waste] tire recycling

 30-5    fund on or after September 1, 1993, must provide evidence of

 30-6    financial responsibility for the full amount determined under

 30-7    Subsection (d).

 30-8          (f)  A person who files an application or amended application

 30-9    for registration under this subchapter on or after September 1,

30-10    1997, must provide evidence of financial responsibility:

30-11                (1)  in an amount adequate to assure proper cleanup and

30-12    closure of the facility for which registration is requested; and

30-13                (2)  in a form prescribed by commission rule that may

30-14    be used to pay for the proper cleanup and closure of that facility.

30-15          SECTION 11.  Subchapter P, Chapter 361, Health and Safety

30-16    Code, is amended by adding Sections 361.4791 and 361.4792 to read

30-17    as follows:

30-18          Sec. 361.4791.  LIEN.  (a)  All remediation costs incurred by

30-19    the commission for the cleanup and closure of a site for which

30-20    insufficient financial assurance has been provided constitute a

30-21    lien in favor of the state on the property on which the site is

30-22    located.

30-23          (b)  The lien arises and attaches on the date a commission

30-24    affidavit is filed with the county clerk in the county in which the

30-25    site is located.  The affidavit shall state the name of the owner

30-26    of the property, the amount owed, and the legal description of the

30-27    property.  The county clerk shall file an affidavit relating to the

 31-1    site in the real property records of the county in which the

 31-2    property is located.

 31-3          (c)  The lien is subordinate to the rights of prior bona fide

 31-4    purchasers of or lienholders on the property.

 31-5          Sec. 361.4792.  NOTICE OF BANKRUPTCY.  (a)  Not later than

 31-6    the second business day after the filing of a voluntary petition in

 31-7    bankruptcy by a scrap tire processor, scrap tire end user, or scrap

 31-8    tire transporter or the filing of an involuntary bankruptcy

 31-9    petition for relief against a scrap tire processor, scrap tire end

31-10    user, or scrap tire transporter, the scrap tire processor, scrap

31-11    tire end user, or scrap tire transporter shall deliver to the

31-12    bankruptcy program department of the commission in Austin written

31-13    notice of the bankruptcy stating the case number and the bankruptcy

31-14    court where the case is pending.

31-15          (b)  Not later than the second business day after the date

31-16    the document is filed with the bankruptcy clerk's office in a

31-17    bankruptcy case described in Subsection (a), the scrap tire

31-18    processor, scrap tire end user, or scrap tire transporter shall

31-19    deliver to the bankruptcy program department of the commission a

31-20    copy of:

31-21                (1)  any schedule or statement of affairs;

31-22                (2)  any amended schedule or statement of affairs; or

31-23                (3)  any monthly operating report.

31-24          SECTION 12.  Sections 361.481 and 361.482, Health and Safety

31-25    Code, are amended to read as follows:

31-26          Sec. 361.481.  Prohibition On Out-of-State Tires; Penalty.

31-27    (a)  A scrap [waste] tire facility, scrap tire recycler or whole

 32-1    scrap tire energy recovery facility [processor] may not claim

 32-2    payment under this subchapter (Section 361.477 for shredding,

 32-3    burning or recycling out-of-state tires.  [A waste tire energy

 32-4    recovery facility owner or operator may not claim payment under

 32-5    Section 361.4771 or 361.4773 for burning out-of-state tires.  A

 32-6    waste tire recycler may not claim payment under Section 361.4772

 32-7    for recycling out-of-state tires.]

 32-8          (b)  A scrap [waste] tire generator that the commission

 32-9    determines has used a manifest and commission generator number to

32-10    pass out-of-state tires is subject to an [not eligible for the free

32-11    collection and transportation of waste tires generated at the

32-12    generator's place of business.  In addition to any] administrative,

32-13    civil, or criminal enforcement action[, the commission shall

32-14    require the generator to pay for:]

32-15                [(1)  collection and transportation of generated tires;

32-16    and]

32-17                [(2)  shredding, burning, or recycling of generated

32-18    tires at the applicable rate specified in Section 361.477,

32-19    361.4771, or 361.4772].

32-20          (c)  A scrap [waste] tire facility [processor], whole scrap

32-21    [waste] tire energy recovery facility owner or operator, or scrap

32-22    [waste] tire recycler who the commission determines has knowingly

32-23    accepted out-of-state tires on manifests using a commission

32-24    generator number is subject to an administrative, civil, or

32-25    criminal enforcement action.

32-26          (d)  A scrap [waste] tire transporter that the commission

32-27    determines has transported out-of-state tires using a

 33-1    commission-approved manifest or transporter number is subject to an

 33-2    administrative, civil, or criminal enforcement action.

 33-3          (e)  The commission shall treat whole scrap tires and

 33-4    shredded scrap tire pieces generated in Texas, removed from Texas,

 33-5    and subsequently reintroduced in Texas as out-of-state scrap tires

 33-6    for the purposes of this subchapter.

 33-7          Sec. 361.482.  Prohibition on Disposal of [Shredded] Tires in

 33-8    Landfill.  (a)  Except as provided by Subsection (b), a [A] person

 33-9    may not dispose of in-state or out-of-state whole used tires, [or]

33-10    scrap tires, [that are eligible for reimbursement under this

33-11    chapter] or shredded tire pieces [for which reimbursement has been

33-12    paid under this subchapter] in a landfill, including a Type VIII-S

33-13    tire monofill.

33-14          (b)  In an emergency, the commission may by rule authorize

33-15    the landfill disposal of scrap tires that have been quartered or

33-16    shredded tire pieces until the commission determines that there are

33-17    sufficient uses for scrap tires being generated in this state.

33-18          SECTION 13.  Subchapter P, Chapter 361, Health and Safety

33-19    Code, is amended by adding Section 361.4825 to read as follows:

33-20          Sec. 361.4825.  INTENTIONAL BURNING PROHIBITED; DUMPING

33-21    PROHIBITED; CRIMINAL PENALTY.  (a)  A person commits an offense if

33-22    the person starts a fire with the intent to destroy or damage whole

33-23    scrap tires, tire pieces, or tire-derived products stored at a:

33-24                (1)  scrap tire generator;

33-25                (2)  scrap tire facility;

33-26                (3)  whole scrap tire energy recovery facility;

33-27                (4)  scrap tire recycling facility; or

 34-1                (5)  priority enforcement list site.

 34-2          (b)  It is an exception to the application of Subsection

 34-3    (a)(3) that the fire was started at a registered scrap tire energy

 34-4    recovery facility in the course of an energy recovery procedure

 34-5    authorized under this subchapter.

 34-6          (c)  A person commits an offense if the person disposes of

 34-7    more than 100 whole tires or an equivalent amount of scrap tire

 34-8    pieces at a site that is not authorized by the commission to accept

 34-9    whole tires or scrap tire pieces.

34-10          (d)  An offense under this section is a felony of the second

34-11    degree.

34-12          (e)  In addition to the criminal penalty provided by this

34-13    section, a person who commits an offense under this section is

34-14    subject to a civil penalty under Section 361.483.

34-15          SECTION 14.  Sections 361.483(a) and (c), Health and Safety

34-16    Code are amended to read as follows:

34-17          (a)  A person who violates this subchapter or a rule adopted

34-18    or order issued under this subchapter is liable for a civil penalty

34-19    of not less than $100 or more than $25,000; [up to $10,000] for

34-20    each violation and for each day of a continuing violation.

34-21          (c)  A penalty collected under this section shall be

34-22    deposited to the credit of the scrap [waste] tire recycling fund.

34-23          SECTION 15.  Section 361.4832, Health and Safety Code, is

34-24    amended to read as follows:

34-25          Sec. 361.4832.  Administrative Penalty; Order for Corrective

34-26    Action; Suspension of Registration.  (a)  If a person violates this

34-27    subchapter or a rule adopted or order issued under this subchapter

 35-1    the commission may:

 35-2                (1)  assess against the person an administrative

 35-3    penalty under Section 361.252 in an amount not to exceed $10,000

 35-4    for each act of violation and for each day of violation; or

 35-5                (2)  order the person to take a corrective action.

 35-6          (b)  The commission may suspend a registration issued under

 35-7    this subchapter and may suspend payment under Sections 361.477 or

 35-8    361.4771 to a scrap [of or reimbursement payment to a waste tire

 35-9    processor, waste tire transporter, waste tire generator, waste]

35-10    tire [recycling] facility, or whole scrap [waste] tire energy

35-11    recovery facility, or scrap tire recycler on the initiation of an

35-12    enforcement proceeding and while the proceeding is pending for the

35-13    violation of this subchapter or a rule adopted or order issued

35-14    under this subchapter.

35-15          SECTION 16.  Section 361.485(b), Health and Safety Code, is

35-16    amended to read as follows:

35-17          (b)  The commission shall include in the report the

35-18    commission's (recommendation, based on the commission's evaluation)

35-19    adjustment to compensate for the rate of inflation made pursuant to

35-20    Section 361.4851 during the preceding two years[, as to whether an

35-21    adjustment] to the fee assessed on the sale of tires or to the rate

35-22    of reimbursement paid to a scrap [waste] tire facility [processor],

35-23    or whole scrap [waste] tire energy recovery facility, or scrap tire

35-24    recycler owner or operator [is warranted].

35-25          SECTION 17.  Subchapter P, Chapter 361, Health and Safety

35-26    Code, is amended by adding a new Section 361.4851 to read as

35-27    follows:

 36-1          Sec. 361.4851.  ADJUSTMENTS DUE TO INFLATION.  The commission

 36-2    shall biannually adjust the reimbursements paid under this

 36-3    subchapter to a scrap tire facility, whole scrap tire energy

 36-4    recovery facility, or a scrap tire recycler in an equivalent amount

 36-5    to reflect changes in inflation occurring as measured by the U.S.

 36-6    Consumer Products Index (CPI).  The base for the adjustment shall

 36-7    be the CPI as it exists on September 1, 1997.

 36-8          SECTION 18.  Section 361.486, Health and Safety Code, is

 36-9    amended to read as follows:

36-10          Sec. 361.486.  Recycling Efforts.  (a)  Notwithstanding

36-11    Section 361.496, on and after January 1, 1996, each applicant for a

36-12    new, amended, and renewal processing registration and each existing

36-13    processor must identify those persons who will accept the

36-14    processor's shredded tire pieces for recycling or reuse or to use

36-15    the shredded scrap tires for energy recovery.  The commission may

36-16    not require that the processor provide a copy of the contract, or

36-17    provide any of the contract terms, between the processor and the

36-18    end user.  The commission shall reimburse a processor for only

36-19    those shredded tires that the executive director [commission]

36-20    determines are committed to a legitimate end user.  When a scrap

36-21    tire facility or scrap tire recycler submits an application for end

36-22    use approval, the executive director shall act upon the request for

36-23    approval within 90 days from the date of filing, and in writing

36-24    notify the application stating the executive director's reasons for

36-25    or against approval.

36-26          (b)  The commission may disapprove of the use a person

36-27    identified by the processor has for the tire pieces unless the

 37-1    person identified is authorized by the state to use tire-derived

 37-2    fuel for energy recovery or is a scrap tire recycler.

 37-3          (c)  The commission by rule shall define recycling for

 37-4    purposes of this subchapter.

 37-5          (d)  On or before January 1, 1994, and on a semiannual basis

 37-6    thereafter, registered scrap tire facilities, scrap tire recyclers,

 37-7    and whole scrap tire energy recovery facility [processors and

 37-8    storage site] owners and operators shall report their recycling,

 37-9    reuse, and energy recovery activities to the commission.  The

37-10    commission by rule shall prescribe the form and other requirements

37-11    of the report.

37-12          (e)  A person who, in this state, recycles or recovers the

37-13    energy from shredded tire pieces shall register with the commission

37-14    in accordance with the rules and on the forms prescribed by the

37-15    commission.

37-16          SECTION 19.  Section 361.487, Health and Safety Code, is

37-17    amended to read as follows:

37-18          Sec. 361.487.  PAYMENTS TO OUT-OF-STATE END USERS

37-19    [Reimbursement Restrictions].  (a)  The commission by rule may

37-20    provide for payments under Sections 361.477 and 361.4771 to an end

37-21    user outside the state boundaries of Texas.  [A processor seeking

37-22    reimbursement under Section 361.477 shall process and store the

37-23    whole used or scrap tires or shredded tire pieces in the state.  A

37-24    waste tire energy recovery facility owner or operator seeking

37-25    reimbursement under Section 361.4771 or 361.4773 shall store and

37-26    burn the whole used or scrap tires or shredded tire pieces in the

37-27    state.]

 38-1          (b)  The rules must require an end user outside the state

 38-2    boundaries of Texas to demonstrate that whole scrap tires, shredded

 38-3    tire pieces, or tire-derived material for which payment is

 38-4    requested were:

 38-5                (1)  generated and collected in this state;

 38-6                (2)  transported out of this state and delivered to the

 38-7    end user outside the state boundaries of Texas; and

 38-8                (3)  actually put to end use by the end user outside

 38-9    the state boundaries of Texas [commission shall treat whole used or

38-10    scrap tires and shredded tire pieces generated in Texas, removed

38-11    from Texas, and subsequently reintroduced to Texas as out-of-state

38-12    scrap tires for the purposes of this subchapter].

38-13          SECTION 20.  Section 361.489(a) and (e), Health and Safety

38-14    Code, are amended to read as follows:

38-15          (a)  The commission may, with the funds available to the

38-16    commission from the scrap [waste] tire recycling fund, undertake

38-17    immediate remediation of a site if, after investigation, the

38-18    commission finds:

38-19                (1)  that there exists a situation caused by the

38-20    [illegal dumping of] scrap tires that is causing or may cause

38-21    imminent and substantial endangerment to the public health and

38-22    safety or the environment; and

38-23                (2)  the immediacy of the situation makes it

38-24    prejudicial to the public interest to delay action until an

38-25    administrative order can be issued to potentially responsible

38-26    parties or until a judgment can be entered in an appeal of an

38-27    administrative order.

 39-1          (e)  Money collected in a suit to recover costs shall be

 39-2    deposited to the credit of the scrap [waste] tire recycling fund.

 39-3          SECTION 21.  Section 361.490, Health and Safety Code, is

 39-4    amended to read as follows:

 39-5          Sec. 361.490.  Access to Priority Enforcement List Site.

 39-6    [(a)]  Members of the commission or [,] employees or agents of the

 39-7    commission[, and authorized processors or their subcontractors] are

 39-8    entitled to enter any public or private property at any reasonable

 39-9    time for the purpose of inspecting, investigating, or remediating

39-10    any condition related to illegal dumping of scrap tires.  [An

39-11    authorized processor or subcontractor is entitled to enter property

39-12    only if the commission directs the processor or subcontractor to

39-13    enter the property.]  The executive director shall give notice of

39-14    intent to enter private property for those purposes by certified

39-15    mail to the last known address indicated in the current county

39-16    property records at least 10 days before a commission member,

39-17    commission employee or agent [, or authorized processor or

39-18    subcontractor] enters the property.  A commission member,

39-19    commission employee or agent[, or authorized processor or

39-20    subcontractor] who, acting under this subsection, enters private

39-21    property shall:

39-22                (1)  observe the establishment's rules concerning

39-23    safety, internal security, and fire protection; and

39-24                (2)  if the property has management in residence, make

39-25    a reasonable attempt to notify the management or person in charge

39-26    of the entry and exhibit credentials.

39-27          [(b)  Authorized processors and their subcontractors may not

 40-1    be considered agents of the state and are solely responsible for

 40-2    their actions.]

 40-3          SECTION 22.  Sections 361.494-361.496, Health and Safety Code

 40-4    are amended to read as follows:

 40-5          Sec. 361.494.  Appeal.  The commission shall establish a

 40-6    process by which a registered scrap tire facility or the owner or

 40-7    operator of a registered whole scrap [waste] tire energy recovery

 40-8    facility, or a registered scrap tire recycler [processor] who is

 40-9    adversely affected by an agency decision affecting reimbursement

40-10    may appeal that decision to the executive director or the

40-11    commission.

40-12          Sec. 361.495.  Fiscal Audits.  The commission biennially

40-13    shall perform a fiscal audit of each person receiving

40-14    reimbursements under Sections 361.477 and 361.4771 [waste tire

40-15    processor, waste tire recycling facility, and waste tire energy

40-16    recovery facility owner or operator] to ensure fiscal

40-17    responsibility and accountability regarding reimbursements made

40-18    under Sections 361.477, and 361.4771[, and 361.4773.  The person

40-19    audited shall bear the costs of the audits].

40-20          Sec. 361.496.  New or Expanded Processing Operation.  A scrap

40-21    tire facility [new processor], whole scrap [waste] tire energy

40-22    recovery facility, or scrap [waste] tire recycler or a registered

40-23    scrap tire facility, whole scrap [processor, waste] tire energy

40-24    recovery facility, or scrap [waste] tire recycler that seeks to

40-25    establish a new processing facility or expand a processing

40-26    operation in the state must:

40-27                (1)  certify that such scrap tire facility, whole

 41-1    [processor, waste] tire energy recovery facility, or scrap [waste]

 41-2    tire recycler is willing to provide collection and transportation

 41-3    of scrap [waste] tires from registered generators in rural counties

 41-4    of the state at the request of the commission during emergency

 41-5    periods as defined by the commission when such generators are not

 41-6    being otherwise served by registered processors or transporters;

 41-7    and

 41-8                (2)  identify and have available a certified end use in

 41-9    the application for a new or amended registration.

41-10          SECTION 23.  Section 361.498 is amended to read as follows:

41-11          Sec. 361.498.  Community Service.  Persons seeking

41-12    reimbursement from the scrap [waste] tire recycling fund shall

41-13    perform community service on an annual basis.  Community service

41-14    includes cooperation with local civic groups to clean up abandoned

41-15    tire sites that are not classified as priority enforcement list

41-16    sites.  The tires collected under this section are eligible for

41-17    reimbursement.

41-18          SECTION 24.  Sections 361.478, 361.486, 361.4865, and

41-19    361.499, Health and Safety Code, are repealed.

41-20          SECTION 25.  (a)  As soon as practicable after September 1,

41-21    1997, the Texas Natural Resource Conservation Commission shall

41-22    inventory the amount and location of:

41-23                (1)  shredded tire pieces in this state; and

41-24                (2)  whole scrap tires in priority enforcement list

41-25    sites in the state.

41-26          (b)  Not later than December 1, 1997, the Texas Natural

41-27    Resource Conservation Commission shall adopt the rules necessary to

 42-1    implement Subchapter P, Chapter 361, Health and Safety Code, as

 42-2    amended by this Act.

 42-3          SECTION 26.  (a)  Any unappropriated, unexpended, and

 42-4    unencumbered money available in the scrap tire recycling fund on

 42-5    September 1, 1997, is appropriated to the Texas Natural Resource

 42-6    Conservation Commission to be used only for payments under Sections

 42-7    361.477 and 361.4771, Health and Safety Code, as amended by this

 42-8    Act, for:

 42-9                (1)  shredded tire pieces identified in the inventory

42-10    conducted under Section 22(a) of this Act; or

42-11                (2)  whole scrap tires from a priority enforcement list

42-12    site identified in the inventory conducted under Section 22(a) of

42-13    this Act.

42-14          (b)  The payments authorized under subsection (a) of this

42-15    section apply only to whole scrap tires or shredded tire pieces

42-16    actually put to end use on or after January 1, 1998.

42-17          SECTION 27.  (a)  Except as otherwise provided by this Act,

42-18    this Act takes effect September 1, 1997.

42-19          (b)  Section 361.4725(c), Health and Safety Code, as added by

42-20    this Act, applies to an application for a new registration or an

42-21    application to renew or amend an existing registration that is

42-22    pending before the Texas Natural Resource Conservation Commission

42-23    on or after that date.

42-24          (c)  The payments authorized by Sections 361.477 and

42-25    361.4771, Health and Safety Code, as amended by this Act, apply

42-26    only to whole scrap tires shredded tire pieces, or tire-derived

42-27    materials actually put to end use on or after September 1, 1997.

 43-1          (d)  Section 361.4825, Health and Safety Code, as added by

 43-2    this Act, applies only to an offense committed on or after

 43-3    September 1, 1997, if any element of the offense occurs on or after

 43-4    that date.

 43-5          SECTION 28.  The importance of this legislation and the

 43-6    crowded condition of the calendars in both houses create an

 43-7    emergency and an imperative public necessity that the

 43-8    constitutional rule requiring bills to be read on three several

 43-9    days in each house be suspended, and this rule is hereby suspended,

43-10    and that this Act take effect and be in force from and after its

43-11    passage, and it is so enacted.