By Yarbrough H.B. No. 1823
76R2863 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the establishment and operation of a scrap tire
1-3 recycling program; providing civil, criminal, and administrative
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 361.014(c), Health and Safety Code, is
1-7 amended to read as follows:
1-8 (c) Revenue derived from fees charged under Section
1-9 361.013(c) to a transporter of whole used or scrap tires or
1-10 shredded tire pieces shall be deposited to the credit of the scrap
1-11 [waste] tire recycling fund [account].
1-12 SECTION 2. Sections 361.112(a), (b), (f), and (g), Health
1-13 and Safety Code, are amended to read as follows:
1-14 (a) A person may not store more than 500 used or scrap tires
1-15 for any period on any publicly or privately owned property unless
1-16 the person registers the scrap tire storage facility [site] with
1-17 the commission. This subsection does not apply to the storage,
1-18 protection, or production of agricultural commodities.
1-19 (b) The commission may register a scrap tire storage
1-20 facility [site] to store more than 500 used or scrap tires.
1-21 (f) A person may not store more than 500 [used or] scrap
1-22 tires or dispose of any quantity of [used or] scrap tires unless
1-23 the tires are shredded, split, or quartered as provided by
1-24 commission rule. The commission may grant an exception to this
2-1 requirement if the commission finds that circumstances warrant the
2-2 exception. The prohibition provided by this subsection regarding
2-3 storage does not apply to:
2-4 (1) a registered scrap [waste] tire energy recovery
2-5 facility or a [waste tire energy recovery facility] storage site
2-6 appurtenant to a registered scrap tire energy recovery facility;
2-7 (2) [. The prohibition provided by this subsection
2-8 does not apply to] a person that [who], for eventual recycling,
2-9 reuse, or energy recovery, temporarily stores scrap tires in a
2-10 designated recycling collection area at a landfill permitted by the
2-11 commission or licensed by a county or by a political subdivision
2-12 exercising the authority granted by Section 361.165; or
2-13 (3) a person described by Section 361.472(b) that
2-14 stores not more than 1,000 scrap tires for not more than 30 days.
2-15 (g) The commission shall require a person that [who]
2-16 transports [used or] scrap tires for end use, storage, or disposal
2-17 to maintain records and use a manifest or other appropriate system
2-18 to assure that those tires are transported to a registered end
2-19 user, a registered storage site, or [that is registered or to] a
2-20 disposal facility that is permitted under this section for that
2-21 purpose.
2-22 SECTION 3. Section 361.133(h), Health and Safety Code, is
2-23 amended to read as follows:
2-24 (h) If the commission collects a fee that is deposited in a
2-25 dedicated fund established for the purpose of cleaning up a
2-26 facility, tank, or site described by this subsection, the
2-27 commission may not use money in the hazardous and solid waste
3-1 remediation fee fund to clean up a:
3-2 (1) facility of a scrap tire recycler [waste tire
3-3 recycling facility];
3-4 (2) municipal solid waste facility;
3-5 (3) petroleum storage tank; or
3-6 (4) used oil collection and recycling site that
3-7 received used oil after August 31, 1995.
3-8 SECTION 4. Chapter 361, Health and Safety Code, is amended
3-9 by adding Subchapter P to read as follows:
3-10 SUBCHAPTER P. SCRAP TIRE PROGRAM
3-11 Sec. 361.471. DEFINITIONS. In this subchapter:
3-12 (1) "End use" means a process or product involving the
3-13 use of whole scrap tires, shredded tire pieces, or material derived
3-14 from tires for a civil engineering application or practice,
3-15 reclamation, energy recovery, or the manufacture of a product that
3-16 has economic value, including crumb rubber.
3-17 (2) "Good used tire" means a used tire suitable for
3-18 continued use for its original intended purpose. The term does not
3-19 include a recapped or retreaded tire.
3-20 (3) "Mobile tire shredder" means equipment for
3-21 splitting, shredding, or quartering scrap tires that is mounted on
3-22 wheels or skid-mounted for transportation from place to place.
3-23 (4) "Reclamation" has the meaning assigned by Section
3-24 131.004, Natural Resources Code.
3-25 (5) "Scrap tire" has the meaning assigned by Section
3-26 361.112.
3-27 (6) "Scrap tire end user" includes:
4-1 (A) a scrap tire energy recovery facility; or
4-2 (B) a scrap tire recycler.
4-3 (7) "Scrap tire energy recovery facility" means a
4-4 facility at which whole or shredded tires are used as a fuel,
4-5 including:
4-6 (A) a cement kiln;
4-7 (B) a utility boiler;
4-8 (C) a pulp and paper mill;
4-9 (D) a cogeneration facility;
4-10 (E) a foundry; or
4-11 (F) another facility designated by the
4-12 commission.
4-13 (8) "Scrap tire facility" means:
4-14 (A) a facility at which scrap tires are
4-15 collected and shredded to facilitate the future extraction of
4-16 materials useful for recycling, reuse, or energy recovery and are
4-17 stored in a scrap tire storage facility; or
4-18 (B) a facility that recycles, reuses, or
4-19 recovers the energy from the shredded tire pieces.
4-20 (9) "Scrap tire generator" includes a fleet operator,
4-21 a motor vehicle dismantler, a person that sells at wholesale or
4-22 retail new or used tires, a tire manufacturer, recapper, or
4-23 retreader, or a person that accepts whole scrap tires or scrap tire
4-24 pieces for temporary storage. The term does not include a scrap
4-25 tire recycler or scrap tire energy recovery facility that stores
4-26 whole tires or tire pieces.
4-27 (10) "Scrap tire processor" means:
5-1 (A) a scrap tire facility; or
5-2 (B) a mobile tire shredder that splits, shreds,
5-3 or quarters tires and deposits the split, shredded, or quartered
5-4 tires for eventual recycling, reuse, or energy recovery at:
5-5 (i) a scrap tire storage facility
5-6 registered by the commission under Section 361.112; or
5-7 (ii) a scrap tire facility.
5-8 (11) "Scrap tire recycler" means a person that uses
5-9 whole scrap tires, shredded tire pieces, or material derived from
5-10 tires for an end use other than energy recovery.
5-11 (12) "Scrap tire storage facility" means a facility at
5-12 which whole scrap tires or shredded tire pieces are collected and
5-13 stored to facilitate the future extraction of useful material for
5-14 recycling, reuse, or recovery. The term does not include a marine
5-15 dock, rail yard, or trucking facility used to store, for not more
5-16 than 30 days, tires that are awaiting shipment to a person for
5-17 recycling, reuse, or energy recovery.
5-18 (13) "Scrap tire transporter" means a person that
5-19 collects and transports scrap tires or scrap tire pieces for
5-20 storage or disposal.
5-21 (14) "Special authorization priority enforcement
5-22 tires" means scrap tires identified by rule adopted under Section
5-23 361.476(i).
5-24 Sec. 361.472. SCRAP TIRE RECYCLING FEES. (a) In this
5-25 section:
5-26 (1) "Engaged in business in this state" has the
5-27 meaning provided by Sections 151.107(a) and (b), Tax Code.
6-1 (2) "Purchased for resale" means acquired by means of
6-2 a "sale for resale" as defined by Section 151.006, Tax Code.
6-3 (3) "Storage" and "use" have the meanings assigned
6-4 those terms by Section 151.011, Tax Code.
6-5 (b) A person in the business of selling not for resale new
6-6 tires for use on a motor vehicle, and a person that sells not for
6-7 resale a used vehicle with new tires mounted, shall collect at the
6-8 time and place of sale a scrap tire recycling fee for each tire
6-9 sold as follows:
6-10 (1) $2 for each new tire that has a rim diameter of 12
6-11 inches or greater but less than 17.5 inches;
6-12 (2) $3.50 for each new tire that has a rim diameter of
6-13 17.5 inches or greater, other than an off-road tire intended for
6-14 use on heavy machinery, including an earthmover, a loader/dozer, a
6-15 grader, or mining equipment; and
6-16 (3) $2 for a new motorcycle tire of any rim diameter.
6-17 (c) A fee may not be assessed for:
6-18 (1) new tires mounted on a new vehicle as original
6-19 equipment;
6-20 (2) a recapped or retreaded tire;
6-21 (3) a bicycle tire; or
6-22 (4) a solid industrial tire.
6-23 (d) A person required to collect a fee under this section:
6-24 (1) shall list a fee due under this section as a
6-25 separate item on an invoice or receipt for the sale of the tire;
6-26 and
6-27 (2) except as provided by Subsection (e), on or before
7-1 the 20th day of the month following the end of each calendar month
7-2 and on a form and in the manner prescribed by the comptroller,
7-3 shall file a report with and shall remit to the comptroller the
7-4 amount of the fees collected during the preceding calendar month.
7-5 (e) A person required to collect a fee under this section:
7-6 (1) may retain one percent of each fee collected to
7-7 defray costs of administering the fees; and
7-8 (2) is not required to file a monthly report if the
7-9 person collects less than $50 for a calendar month or less than
7-10 $150 for a calendar quarter.
7-11 (f) A person exempt under Subsection (e)(2) from the
7-12 requirement to file a monthly report shall file a quarterly report
7-13 with and make a quarterly remittance to the comptroller. The
7-14 quarterly report and remittance shall include fees collected during
7-15 the preceding calendar quarter. The report and remittance are due
7-16 not later than the 20th day of the month following the end of the
7-17 calendar quarter.
7-18 (g) An invoice or other record required by this section or
7-19 rules of the comptroller must be maintained for at least four years
7-20 after the date on which the invoice or record is prepared and be
7-21 open for inspection by the comptroller at all reasonable times.
7-22 (h) The comptroller shall adopt rules necessary for the
7-23 administration, collection, reporting, and payment of the fees
7-24 payable or collected under this section.
7-25 (i) A scrap tire recycling fee is imposed on the storage,
7-26 use, or consumption in this state of a tire at the same rate as
7-27 provided by Subsection (b), except when the tire is purchased for
8-1 resale.
8-2 (j) A person storing, using, or consuming a tire in this
8-3 state is liable for the scrap tire recycling fee as defined in this
8-4 section and is responsible for reporting and paying the fee to the
8-5 comptroller in the same manner as a person required to collect the
8-6 fee, as provided in Subsections (d)(2), (e), and (f).
8-7 (k) A person storing, using, or consuming a tire in this
8-8 state is not further liable for the scrap tire recycling fee
8-9 imposed by Subsection (b) if the person:
8-10 (1) pays the fee to:
8-11 (A) a person that is required to collect the fee
8-12 under Subsection (b) and that is engaged in business in this
8-13 state; or
8-14 (B) another person authorized by the comptroller
8-15 to collect the fee; and
8-16 (2) receives a purchaser's receipt from the person to
8-17 whom the fee was paid.
8-18 Sec. 361.473. REGISTRATION; FEE. (a) The owner or operator
8-19 of a scrap tire end user, scrap tire facility, scrap tire storage
8-20 facility, scrap tire transporter, scrap tire processor, scrap tire
8-21 generator, or scrap tire reclamation project shall register with
8-22 the commission as provided by commission rules.
8-23 (b) The commission shall charge a fee for each registration
8-24 application or registration renewal application. The fee may not
8-25 exceed $500.
8-26 (c) The commission may not register an applicant under this
8-27 section or renew or amend an applicant's registration unless the
9-1 applicant has given the commission evidence of financial
9-2 responsibility required by this subchapter.
9-3 (d) Subsection (c) does not apply to a:
9-4 (1) scrap tire generator;
9-5 (2) scrap tire transporter; or
9-6 (3) scrap tire end user that stores not more than a
9-7 30-day supply of whole scrap tires, scrap tire pieces, or material
9-8 derived from tires.
9-9 Sec. 361.474. ENFORCEMENT; PENALTIES. (a) A person that
9-10 does not file a report required by Section 361.472 or that
9-11 possesses a fee collected or payable under that section and that
9-12 does not remit the fee to the comptroller at the time and in the
9-13 manner required by that section and by rules of the comptroller
9-14 shall pay a penalty of five percent of the amount of the fee due
9-15 and payable. If the person does not file the report or pay the fee
9-16 before the 30th day after the date on which the fee or report is
9-17 due, the person shall pay a penalty of an additional five percent
9-18 of the amount of the fee due and payable.
9-19 (b) Chapters 101 and 111 through 113, Tax Code, and Sections
9-20 153.006 and 153.007, Tax Code, apply to the administration,
9-21 payment, collection, and enforcement of fees under this section in
9-22 the same manner that those chapters and sections apply to the
9-23 administration, payment, collection, and enforcement of taxes under
9-24 Title 2, Tax Code.
9-25 (c) The comptroller may add a penalty of 75 percent of the
9-26 amount of the fee, penalty, and interest due if failure to file the
9-27 report or pay the fee when it comes due is attributable to fraud or
10-1 an intent to evade the application of this section or a rule made
10-2 under this section or Chapter 111, Tax Code.
10-3 (d) The comptroller and commission jointly shall develop and
10-4 implement an enforcement program to pursue the collection of
10-5 delinquent fees assessed under Section 361.472.
10-6 Sec. 361.475. DISPOSITION OF FEES AND PENALTIES. The
10-7 commission and comptroller shall deposit fees and penalties
10-8 collected under this subchapter in the state treasury to the credit
10-9 of the scrap tire recycling fund.
10-10 Sec. 361.476. SCRAP TIRE RECYCLING FUND. (a) The scrap
10-11 tire recycling fund is a special account in the general revenue
10-12 fund.
10-13 (b) The commission shall administer the fund.
10-14 (c) The fund consists of fees and penalties collected under
10-15 this subchapter, interest on money in the fund, and money from
10-16 gifts, grants, or any other source intended to be used for the
10-17 purposes of this subchapter.
10-18 (d) The fund may be used only to pay:
10-19 (1) scrap tire end users that meet the requirements
10-20 for payment provided by Sections 361.478 and 361.479 and by rules
10-21 adopted under this subchapter;
10-22 (2) the commission's reasonable and necessary
10-23 administrative costs of performing its duties under this subchapter
10-24 as provided by Section 361.482;
10-25 (3) the comptroller's reasonable and necessary
10-26 administrative costs of performing the comptroller's duties under
10-27 this subchapter as provided by Section 361.482;
11-1 (4) costs of cleaning up priority enforcement list
11-2 sites and sites where special authorization enforcement tires are
11-3 located; and
11-4 (5) grants for research and development to foster new
11-5 end uses for scrap tires.
11-6 (e) The commission may employ a consultant to advise
11-7 regarding, and assist in, the development and evaluation of end
11-8 uses.
11-9 (f) A grant awarded under Subsection (d)(5) must reserve to
11-10 the state a nonexclusive and transferable right to use or modify,
11-11 or authorize another to use or modify, all intellectual property
11-12 developed using the grant money.
11-13 (g) Registration fees received under Section 361.473 shall
11-14 be allocated to the commission for its reasonable and necessary
11-15 costs associated with registrations applied for and granted under
11-16 that section.
11-17 (h) The fund may not be used to reimburse burning of:
11-18 (1) inner tubes;
11-19 (2) scrap rubber products;
11-20 (3) green tires;
11-21 (4) industrial solid waste other than scrap tires;
11-22 (5) oversized tires, as defined by commission rule,
11-23 unless the oversized tires are collected from a priority
11-24 enforcement list site;
11-25 (6) tires that have not been sold to consumers because
11-26 they were rendered defective in manufacturing or that were returned
11-27 to the manufacturer because of a manufacturing defect detected
12-1 after sale to a consumer; or
12-2 (7) nonpneumatic tires.
12-3 (i) The commission may authorize payment to end users of
12-4 scrap tires as if the tires were priority enforcement list tires if
12-5 the tires:
12-6 (1) are generated in a county or region of the state
12-7 that the executive director determines does not receive adequate
12-8 collection services; and
12-9 (2) present a threat to public health or safety or to
12-10 the environment.
12-11 (j) The revenues obtained from the scrap tire recycling fees
12-12 shall be deposited to the credit of the fund and may be used only
12-13 to pay for those activities and costs identified in Subsection (d),
12-14 (e), or (g).
12-15 Sec. 361.477. PRIORITY ENFORCEMENT LIST. The commission
12-16 shall identify and prepare an enforcement list of scrap tire sites
12-17 that present an existing or potential threat to public health or
12-18 safety or to the environment. The list must give priority for
12-19 enforcement to sites for which the commission cannot locate a
12-20 person that:
12-21 (1) is the property owner of record, the site
12-22 operator, or the depositor of the scrap tires on the site;
12-23 (2) has benefited financially from the disposition of
12-24 the scrap tires on the site; and
12-25 (3) is financially capable of paying all or part of
12-26 the total or partial cleanup of the site, considering the costs of
12-27 the cleanup as the commission determines.
13-1 Sec. 361.478. PAYMENTS TO SCRAP TIRE END USERS. (a) Each
13-2 calendar quarter the commission shall pay a scrap tire end user
13-3 that meets the requirements of this section, Section 361.479, and
13-4 rules adopted under those sections:
13-5 (1) $70 for each ton of whole scrap tires, shredded
13-6 tire pieces, or material derived from tires, that the end user put
13-7 to an end use during the preceding calendar quarter for an end use
13-8 other than a use described by Subdivision (2); or
13-9 (2) $30 for each ton of whole scrap tire, shredded
13-10 tire pieces, or material derived from tires, that the end user put
13-11 to an end use during the preceding calendar quarter for road
13-12 construction, landfill application, reclamation, septic system use,
13-13 or another civil engineering use approved by the commission.
13-14 (b) The commission may pay a person with whom the commission
13-15 has contracted to remove and transport to an end user scrap tires
13-16 and scrap tire pieces from priority enforcement list sites or a
13-17 site at which special authorization priority enforcement tires are
13-18 stored. The commission shall determine an appropriate amount to
13-19 pay for each ton of tires or tire pieces transported under each
13-20 contract. In acting under this subsection, the commission may
13-21 contract on a regional or site-specific basis. The contracts shall
13-22 be procured through a competitive bid process conducted in
13-23 accordance with the provisions of Subtitle D, Title 10, Government
13-24 Code, that apply to contracts for services.
13-25 (c) The commission may not authorize a scrap tire energy
13-26 recovery facility owner or operator or a scrap tire recycler to
13-27 burn, recycle, or store scrap tires or scrap tire pieces at a site
14-1 until the commission determines that the facility owner or operator
14-2 or the recycler and the site at which the energy recovery or
14-3 recycling is to occur comply with this subchapter and rules adopted
14-4 under this subchapter.
14-5 Sec. 361.479. PAYMENT PROCEDURES AND RESTRICTIONS;
14-6 MANAGEMENT OF FUND. (a) To receive payment under Section 361.478,
14-7 a scrap tire end user must:
14-8 (1) apply to the commission for registration in the
14-9 manner and on forms prescribed by commission rule;
14-10 (2) apply to the commission for payment in a manner
14-11 and on forms prescribed by commission rule;
14-12 (3) demonstrate that all tires, tire pieces, or
14-13 material derived from tires for which the owner or operator applies
14-14 for payment are from scrap tires generated and collected in this
14-15 state;
14-16 (4) send the commission a quarterly report of the
14-17 number of tons of whole scrap tires, shredded tire pieces, or
14-18 material derived from tires the end user put to an end use approved
14-19 by the commission, subtotaled by the weight attributed to each
14-20 generator number or priority enforcement list number;
14-21 (5) demonstrate that any energy recovery activities
14-22 comply with applicable air emission control standards and rules;
14-23 (6) submit evidence of financial responsibility in an
14-24 amount adequate to assure proper cleanup and closure of the
14-25 facility, if the person anticipates accepting an amount of whole
14-26 scrap tires, shredded tire pieces, or material derived from tires
14-27 for storage that exceeds the facility's 30-day supply; and
15-1 (7) provide any other information required by
15-2 commission rule.
15-3 (b) The commission shall allow application for payment, at
15-4 the option of the applicant, to be made by use of a removable
15-5 storage medium in an industry standard file format acceptable to
15-6 the commission.
15-7 (c) The commission may pay a scrap tire end user under
15-8 Section 361.478 for scrap tires used for reclamation only if the
15-9 scrap tires have been shredded or cut into pieces not larger than
15-10 nine square inches. To receive payment under that section, an end
15-11 user that intends to use tire pieces for a reclamation project
15-12 must:
15-13 (1) comply with Subsection (a); and
15-14 (2) submit for commission approval a project plan
15-15 that:
15-16 (A) addresses the management of the tire pieces;
15-17 and
15-18 (B) includes design requirements to address fire
15-19 prevention and protection of surface water and groundwater.
15-20 (d) The commission may pay as an end user a scrap tire
15-21 processor that processes scrap tires or tire pieces into crumb
15-22 rubber if the processor sells the crumb rubber to another person
15-23 that uses the crumb rubber as raw material in the production of an
15-24 economically useful product or in an economically useful process,
15-25 including roadway construction or repair. The processor must
15-26 verify for the commission that the crumb rubber was used by the
15-27 purchaser. The commission may not pay under Section 361.478:
16-1 (1) the purchaser of crumb rubber if the commission
16-2 under that section has paid a processor for making the crumb
16-3 rubber; or
16-4 (2) the processor that made the crumb rubber if the
16-5 commission under that section has paid the person that used the
16-6 crumb rubber.
16-7 (e) A tire energy recovery facility may not store more than
16-8 a 30-day supply of whole scrap tires, shredded tire pieces, or
16-9 material derived from tires until the facility is registered by the
16-10 commission as a scrap tire energy recovery facility storage site.
16-11 A scrap tire recycler may not store more than a 30-day supply of
16-12 whole scrap tires, shredded tire pieces, or material derived from
16-13 tires unless the facility is registered by the commission as a
16-14 scrap tire recycler storage site.
16-15 (f) The commission may not pay a scrap tire end user for an
16-16 end use of scrap tires, shredded tires, or material derived from
16-17 tires under Subsection (c) or (d) if:
16-18 (1) the commission field office and central office
16-19 program staff have not reviewed and approved for further processing
16-20 by the commission all information submitted to the commission by
16-21 the scrap tire end user as required by Subsection (a) or rules
16-22 adopted under this section;
16-23 (2) the commission determines that the end user:
16-24 (A) has not provided adequate financial
16-25 assurance;
16-26 (B) does not have adequate fire protection; or
16-27 (C) is causing an imminent danger to public
17-1 health, safety, or welfare;
17-2 (3) the end user does not have appropriate
17-3 authorization from the commission to:
17-4 (A) perform energy recovery activities using
17-5 scrap tires, scrap tire pieces, or material derived from tires at
17-6 the end user's scrap tire energy recovery facility site; or
17-7 (B) recycle scrap tires, scrap tire pieces, or
17-8 material derived from tires at the end user's recycling site;
17-9 (4) the end user is not capable of performing:
17-10 (A) scrap tire energy recovery at the end user's
17-11 scrap tire energy recovery facility site; or
17-12 (B) scrap tire recycling at the end user's
17-13 recycling site; or
17-14 (5) the scrap tires, shredded tires, or material
17-15 derived from tires put to an end use are tires or derived from
17-16 tires that any person has been paid to process or put to an end use
17-17 under any other program.
17-18 (g) The commission shall adopt rules to manage payments from
17-19 the fund to prevent depletion of the fund.
17-20 (h) For purposes of this section, the amount of whole tires,
17-21 shredded tires, and material derived from tires that constitutes a
17-22 30-day supply is the average amount of the tires recycled or
17-23 consumed for energy recovery monthly for the six months preceding
17-24 the month for which the average is computed. For a facility or
17-25 recycler that has not been in continuous operation for the six
17-26 months preceding the month for which the average is computed:
17-27 (1) the facility or recycler shall submit to the
18-1 commission for approval an estimate of the 30-day supply; and
18-2 (2) the commission shall determine the equivalent of a
18-3 30-day supply, after review of the estimate.
18-4 Sec. 361.480. OPERATION OF SCRAP TIRE PROCESSORS. The
18-5 commission may not authorize a scrap tire processor to process or
18-6 store scrap tires at a site until the commission determines that
18-7 the processor and the site comply with this subchapter and rules
18-8 adopted under this subchapter.
18-9 Sec. 361.481. TRANSPORTATION OF STORED TIRES TO END USER.
18-10 (a) Not later than the 30th day after the end of each calendar
18-11 quarter, a scrap tire storage facility shall send to an end user
18-12 all of the whole scrap tires or shredded tire pieces collected or
18-13 processed by the facility in the calendar quarter.
18-14 (b) A scrap tire storage facility that violates Subsection
18-15 (a) may not accept additional whole scrap tires or shredded tire
18-16 pieces.
18-17 (c) This section applies only to whole scrap tires collected
18-18 from a scrap tire generator on or after September 1, 1999, and
18-19 shredded tire pieces or material derived from tires that originated
18-20 from scrap tires collected from a scrap tire generator on or after
18-21 that date.
18-22 Sec. 361.482. ADMINISTRATIVE EXPENSES. (a) For performing
18-23 duties related to the scrap tire program, each fiscal year the
18-24 comptroller may spend not more than an amount equal to two percent
18-25 of the money that annually accrues to the scrap tire recycling
18-26 fund.
18-27 (b) For administering the scrap tire recycling program, each
19-1 fiscal year the commission may spend not more than an amount equal
19-2 to six percent of the amount that annually accrues to the scrap
19-3 tire recycling fund for the administration and operation of the
19-4 scrap tire recycling program.
19-5 Sec. 361.483. EVIDENCE OF FINANCIAL RESPONSIBILITY. (a) A
19-6 person required to register with the commission under Section
19-7 361.473 shall submit to the commission evidence of financial
19-8 responsibility in an amount adequate to assure proper cleanup and
19-9 closure of the facility. This subsection does not apply to a
19-10 person described by Section 361.473(d).
19-11 (b) A scrap tire recycler or a scrap tire energy recovery
19-12 facility that anticipates accepting for storage an amount of whole
19-13 scrap tires, shredded tire pieces, or material derived from tires
19-14 that exceeds the facility's 30-day supply shall submit to the
19-15 commission evidence of financial responsibility in an amount
19-16 adequate to assure proper cleanup and closure of the facility. A
19-17 person this subsection requires to submit evidence of financial
19-18 responsibility shall maintain the evidence as provided by
19-19 commission rules.
19-20 (c) A facility subject to Subsection (a) or (b) shall
19-21 submit to the commission an estimate of:
19-22 (1) the total weight of whole scrap tires, shredded
19-23 tire pieces, and material derived from tires that the facility will
19-24 store, process, or put to an end use;
19-25 (2) the maximum number of scrap tires generated or
19-26 collected outside of the state the facility will store; and
19-27 (3) the cost, using those amounts, of cleaning up and
20-1 closing the facility.
20-2 (d) The commission shall evaluate and may amend an estimate
20-3 submitted under Subsection (c) and shall determine for each
20-4 facility the amount for which evidence of financial responsibility
20-5 is required. The commission periodically may audit a facility
20-6 subject to this section and may increase the amount for which the
20-7 facility is required to provide evidence of financial
20-8 responsibility. The commission may suspend the registration of, or
20-9 payments under Section 361.478 to, a facility that does not provide
20-10 evidence of financial responsibility for an increased amount
20-11 required under this section.
20-12 (e) Evidence of financial responsibility may be in the form
20-13 of:
20-14 (1) a performance bond, surety bond, or letter of
20-15 credit acceptable to the commission that is from a financial
20-16 institution, a trust fund, or insurance for a privately owned
20-17 facility; or
20-18 (2) a self-insurance test designed by the commission
20-19 for a publicly owned facility.
20-20 (f) A person that makes an initial request for payment from
20-21 the scrap tire recycling fund must provide evidence of financial
20-22 responsibility for the full amount determined under Subsection (d).
20-23 (g) A person that files an application or amended
20-24 application for registration under this subchapter must provide
20-25 evidence of financial responsibility:
20-26 (1) in an amount adequate to:
20-27 (A) assure proper cleanup and closure of the
21-1 facility for which registration is requested; and
21-2 (B) pay for reasonable emergency response costs
21-3 that might be incurred because of a catastrophic occurrence; and
21-4 (2) in a form prescribed by commission rule that may
21-5 be used to:
21-6 (A) pay for the proper cleanup and closure of,
21-7 or for reasonable emergency response costs incurred because of a
21-8 catastrophic event at, the facility; or
21-9 (B) contribute to payment of cleanup and closure
21-10 costs or reasonable emergency response costs for another facility
21-11 as provided by Subsection (h).
21-12 (h) The commission by rule shall provide a process for a
21-13 facility's financial assurance to contribute to the commission's
21-14 costs of cleanup and closure of, or the reasonable emergency
21-15 response costs that might be incurred because of a catastrophic
21-16 event at, another facility owned, operated, or controlled by the
21-17 same person or by the person's subsidiary or affiliate if the
21-18 financial assurance provided for that facility is insufficient to
21-19 pay for proper cleanup and closure of or reasonable emergency
21-20 response costs at the facility. The rules must provide for a
21-21 hearing before the financial assurance for a facility may be used
21-22 to pay costs incurred for another facility.
21-23 Sec. 361.484. LIEN. (a) All remediation costs the
21-24 commission incurs for the cleanup and closure of a site for which
21-25 insufficient financial assurance has been provided constitute a
21-26 lien in favor of the state on the property on which the site is
21-27 located and any other real or personal property of the owner or
22-1 operator located in the state.
22-2 (b) The lien arises and attaches on the date a commission
22-3 affidavit is filed with the county clerk of the county in which the
22-4 real property is located or, for personal property, in the county
22-5 in which the principal place of business of the owner or operator
22-6 is located. The affidavit shall state the name of the owner of the
22-7 property, the amount owed, and the legal description of the
22-8 property. The county clerk shall file an affidavit relating to
22-9 real property in the real property records of the county in which
22-10 the property is located.
22-11 (c) The lien is subordinate to the rights of bona fide
22-12 purchasers of or lien holders on the property.
22-13 Sec. 361.485. NOTICE OF BANKRUPTCY. (a) Not later than the
22-14 second business day after the filing of a voluntary or involuntary
22-15 petition in bankruptcy by a scrap tire processor, scrap tire end
22-16 user, or scrap tire transporter or the filing of an involuntary
22-17 bankruptcy petition for relief against a scrap tire processor,
22-18 scrap tire end user, or scrap tire transporter, the scrap tire
22-19 processor, scrap tire end user, or scrap tire transporter shall
22-20 deliver to the commission's bankruptcy program in Austin written
22-21 notice of the bankruptcy that states the case number and the
22-22 bankruptcy court in which the case is pending.
22-23 (b) Not later than the second business day after the date
22-24 the document is filed with the bankruptcy clerk's office in a
22-25 bankruptcy case described by Subsection (a), the scrap tire
22-26 processor, scrap tire end user, or scrap tire transporter shall
22-27 deliver to the commission's bankruptcy program in Austin a copy of
23-1 any:
23-2 (1) schedule or statement of affairs;
23-3 (2) amended schedule or statement of affairs; or
23-4 (3) operating report.
23-5 Sec. 361.486. PROHIBITION ON OUT-OF-STATE TIRES; PENALTY.
23-6 (a) A scrap tire energy recovery facility owner or operator may
23-7 not claim payment under Section 361.478 for burning scrap tires
23-8 generated or collected outside of the state. A scrap tire recycler
23-9 may not apply for payment under Section 361.478 for recycling scrap
23-10 tires generated or collected outside of the state.
23-11 (b) A scrap tire generator that the commission determines
23-12 has used a manifest and commission generator number to pass tires
23-13 generated or collected outside of the state is subject to an
23-14 administrative, civil, or criminal enforcement action.
23-15 (c) A scrap tire processor, scrap tire energy recovery
23-16 facility owner or operator, or scrap tire recycler that the
23-17 commission determines knowingly accepted scrap tires generated or
23-18 collected outside of the state on manifests using a commission
23-19 generator number is subject to an administrative, civil, or
23-20 criminal enforcement action.
23-21 (d) A scrap tire transporter that the commission determines
23-22 has transported scrap tires generated or collected outside of the
23-23 state using a commission-approved manifest or transporter number is
23-24 subject to an administrative, civil, or criminal enforcement
23-25 action.
23-26 Sec. 361.487. PROHIBITION ON LANDFILL DISPOSAL. (a)
23-27 Notwithstanding any other law, a person may not dispose of used
24-1 tires, scrap tires, or shredded tire pieces in a landfill of any
24-2 type except as provided by Subsection (b).
24-3 (b) If a scrap tire generator cannot locate an end user for
24-4 its scrap tires, the commission by emergency order may permit
24-5 landfill disposal of the generator's scrap tires at the generator's
24-6 expense. The order may apply to any number of scrap tire
24-7 generators in an identified region.
24-8 Sec. 361.488. PROHIBITION ON BURNING AND DUMPING; CRIMINAL
24-9 PENALTY. (a) A person commits an offense if the person starts a
24-10 fire with the intent to burn, damage, or destroy a whole scrap
24-11 tire, scrap tire pieces, or material derived from scrap tires.
24-12 (b) It is an exception to the application of Subsection (a)
24-13 that the fire was started at a registered scrap tire energy
24-14 recovery facility in the course of an energy recovery procedure
24-15 authorized under this subchapter.
24-16 (c) A person commits an offense if the person disposes of
24-17 more than 100 whole scrap tires or 1,800 pounds of scrap tire
24-18 pieces at a site that the commission has not authorized to accept
24-19 whole scrap tires or tire pieces.
24-20 (d) An offense under this section is a felony of the second
24-21 degree.
24-22 (e) In addition to the criminal penalty provided by this
24-23 section, a person that commits an offense under this section is
24-24 subject to a civil penalty under Section 361.489.
24-25 Sec. 361.489. CIVIL PENALTY. (a) A person that violates
24-26 this subchapter or a rule adopted or order issued under this
24-27 subchapter is liable for a civil penalty of not less than $100 or
25-1 more than $25,000 for each violation and for each day of a
25-2 continuing violation.
25-3 (b) The attorney general or the prosecuting attorney in the
25-4 county in which the alleged violation occurs may bring suit to
25-5 recover a civil penalty imposed under Subsection (a).
25-6 (c) A penalty collected under this section shall be
25-7 deposited to the credit of the scrap tire recycling fund.
25-8 Sec. 361.490. INJUNCTION FOR CORRECTIVE ACTION. (a) The
25-9 attorney general or the prosecuting attorney in a county in which
25-10 the violation occurs may bring suit for an injunction to compel a
25-11 person that violates this subchapter or a rule adopted or order
25-12 issued under this subchapter to take corrective action.
25-13 (b) The suit may be brought independently of or together
25-14 with a suit under Section 361.489.
25-15 Sec. 361.491. ADMINISTRATIVE PENALTY; ORDER FOR CORRECTIVE
25-16 ACTION; SUSPENSION OF REGISTRATION. (a) If a person violates this
25-17 subchapter or a rule adopted or order issued under this subchapter
25-18 the commission may:
25-19 (1) assess against the person an administrative
25-20 penalty as provided by Subchapter C, Chapter 7, Water Code, in an
25-21 amount not to exceed $10,000 for each violation and for each day of
25-22 a continuing violation; or
25-23 (2) order the person to take a corrective action.
25-24 (b) The commission may suspend a registration issued under
25-25 this subchapter and may suspend payment under Section 361.478 to a
25-26 scrap tire energy recovery facility on the initiation of an
25-27 enforcement proceeding and while the proceeding is pending for the
26-1 violation of this subchapter or a rule adopted or order issued
26-2 under this subchapter.
26-3 Sec. 361.492. RULES. The commission may adopt rules
26-4 reasonably necessary to implement this subchapter.
26-5 Sec. 361.493. REPORT. (a) Not later than February 1 of
26-6 each odd-numbered year, the commission shall report to the governor
26-7 and the legislature on the administration of the program
26-8 established under this subchapter and its effectiveness in cleaning
26-9 up existing scrap tire dumps and in preventing new scrap tire
26-10 dumps.
26-11 (b) The commission shall include in the report the
26-12 commission's recommendation as to whether circumstances warrant an
26-13 adjustment to the fee assessed on the sale of tires or to the rate
26-14 of payment paid to a scrap tire recycler or scrap tire energy
26-15 recovery facility owner or operator.
26-16 Sec. 361.494. PAYMENT TO OUT-OF-STATE RECYCLERS. (a) The
26-17 commission by rule shall provide for payments under Section 361.478
26-18 to a scrap tire recycler located in another state.
26-19 (b) The rules must require a scrap tire recycler located
26-20 outside of the state to demonstrate that whole scrap tires, scrap
26-21 tire pieces, and material derived from tires for which payment is
26-22 requested were:
26-23 (1) generated and collected in this state;
26-24 (2) transported out of this state; and
26-25 (3) put to an approved end use by the person
26-26 requesting payment.
26-27 Sec. 361.495. IMMEDIATE REMOVAL AND REMEDIAL ACTION BY
27-1 COMMISSION. (a) The commission may, with the funds available to
27-2 the commission from the scrap tire recycling fund, undertake
27-3 immediate remediation of a site if after investigation the
27-4 commission finds:
27-5 (1) that there exists a situation caused by scrap
27-6 tires that is causing or may cause imminent and substantial
27-7 endangerment to the public health and safety or the environment;
27-8 and
27-9 (2) the immediacy of the situation makes it
27-10 prejudicial to the public interest to delay action until an
27-11 administrative order can be issued to potentially responsible
27-12 parties or until a judgment can be entered in an appeal of an
27-13 administrative order.
27-14 (b) If a person ordered to eliminate an imminent and
27-15 substantial danger to the public health and safety or the
27-16 environment has failed to do so within the time limits specified in
27-17 the order or any extension of time approved by the commission, the
27-18 commission may implement a remedial program for the site.
27-19 (c) The commission may bring suit against a potentially
27-20 responsible party to recover reasonable expenses incurred in
27-21 implementing a remedial action under this section. For purposes of
27-22 this subsection, the commission shall employ the following three
27-23 criteria to determine whether a person is a potentially responsible
27-24 party:
27-25 (1) the person must be the property owner of record,
27-26 the site operator, or the depositor of the scrap tires on the site;
27-27 (2) the person must have benefited financially from
28-1 the disposition of the scrap tires on the site; and
28-2 (3) the person must be financially capable of paying
28-3 at least part of the costs of the total or partial cleanup of the
28-4 site.
28-5 (d) The commission shall file the suit to recover costs not
28-6 later than one year after the date the remedial measures are
28-7 completed.
28-8 (e) Money collected in a suit to recover costs shall be
28-9 deposited to the credit of the scrap tire recycling fund.
28-10 (f) The commission, instead of bringing suit to recover
28-11 costs incurred under this section, may file a lien against the
28-12 property on which the site is located. The lien must state the
28-13 name of the owner of the property, the amount owed, and the legal
28-14 description of the property. The lien arises and attaches on the
28-15 date the lien is filed in the real property records of the county
28-16 in which the property is located. The lien is subordinate to the
28-17 rights of prior bona fide purchasers or lien holders on the
28-18 property.
28-19 Sec. 361.496. ACCESS TO PRIORITY ENFORCEMENT LIST SITE. A
28-20 member of the commission or an employee or agent of the commission
28-21 is entitled to enter any public or private property at any
28-22 reasonable time for the purpose of inspecting, investigating, or
28-23 remediating any condition related to illegal dumping of scrap
28-24 tires. The executive director shall give notice of intent to enter
28-25 private property for those purposes by certified mail to the last
28-26 known address indicated in the current county property records not
28-27 less than 10 days before a commission member or a commission
29-1 employee or agent enters the property. A commission member or
29-2 commission employee or agent who, acting under this subsection,
29-3 enters private property shall:
29-4 (1) observe the establishment's rules concerning
29-5 safety, internal security, and fire protection; and
29-6 (2) if the property has management in residence, make
29-7 a reasonable attempt to notify the management or person in charge
29-8 of the entry and exhibit credentials.
29-9 Sec. 361.497. INJUNCTION TO RESTRAIN VIOLATION. If it
29-10 appears that a person has violated, is violating, or is threatening
29-11 to violate this subchapter or a rule, permit, or order adopted or
29-12 issued under this subchapter, the executive director may bring suit
29-13 in a district court for injunctive relief to restrain the person
29-14 from continuing the violation or threat of violation.
29-15 Sec. 361.498. ACCEPTANCE OF USED OR SCRAP TIRES ON SALE OF
29-16 TIRES. (a) A wholesale or retail tire dealer or a person in the
29-17 business of selling new or good used tires for use on a vehicle or
29-18 selling used vehicle parts shall accept from customers, without
29-19 charge, used or scrap tires of the type and in a quantity at least
29-20 equal to the number of new or good used tires the customer
29-21 purchases.
29-22 (b) This section does not require a person to accept a used
29-23 tire from a customer that purchases a new or used vehicle on which
29-24 the tires purchased are mounted.
29-25 Sec. 361.4981. APPEAL. The commission shall establish a
29-26 process by which a registered scrap tire recycler or the owner or
29-27 operator of a registered scrap tire energy recovery facility that
30-1 is adversely affected by an agency decision affecting payment may
30-2 appeal that decision to the executive director or the commission.
30-3 Sec. 361.4982. COMPLIANCE AUDITS. The commission biennially
30-4 may perform a compliance audit of each person that receives
30-5 payments under Section 361.478 to ensure responsibility and
30-6 accountability regarding those payments. The person audited shall
30-7 bear the costs of the audits. If, after an audit, the commission
30-8 determines that the commission is due a refund of money paid to a
30-9 person out of the scrap tire recycling fund, the commission may
30-10 adjust any future payments to that person to offset the refund
30-11 amount.
30-12 Sec. 361.4983. NEW OR EXPANDED SCRAP TIRE SITE, FACILITY, OR
30-13 OPERATION. A person that seeks to establish a new site, facility,
30-14 or operation required to be registered under Section 361.473 or a
30-15 person registered under that section that seeks to expand a site,
30-16 facility, or operation required to be registered under that section
30-17 must:
30-18 (1) certify that the person is willing to provide
30-19 collection and transportation of scrap tires from registered scrap
30-20 tire generators in rural counties of the state at the request of
30-21 the commission during emergency periods as defined by the
30-22 commission when the generators are not being otherwise served by
30-23 registered processors or transporters; and
30-24 (2) identify and have available a certified end use in
30-25 the application for the new or amended registration.
30-26 Sec. 361.4984. COMMUNITY SERVICE. Persons seeking payment
30-27 from the scrap tire recycling fund shall perform community service
31-1 on an annual basis. Community service includes cooperation with
31-2 local civic groups to clean up abandoned tire sites that are not
31-3 classified as priority enforcement list sites. The tires collected
31-4 under this section are eligible for payment.
31-5 SECTION 5. Section 363.041, Health and Safety Code, is
31-6 amended to read as follows:
31-7 Sec. 363.041. COMPOSITION OF ADVISORY COUNCIL. The
31-8 Municipal Solid Waste Management and Resource Recovery Advisory
31-9 Council is composed of the following 18 members appointed by the
31-10 commission:
31-11 (1) an elected official from a municipality with a
31-12 population of 750,000 or more;
31-13 (2) an elected official from a municipality with a
31-14 population of 100,000 or more but less than 750,000;
31-15 (3) an elected official from a municipality with a
31-16 population of 25,000 or more but less than 100,000;
31-17 (4) an elected official from a municipality with a
31-18 population of less than 25,000;
31-19 (5) two elected officials of separate counties, one of
31-20 whom is from a county with a population of less than 150,000;
31-21 (6) an official from a municipality or county solid
31-22 waste agency;
31-23 (7) a representative from a private environmental
31-24 conservation organization;
31-25 (8) a representative from a public solid waste
31-26 district or authority;
31-27 (9) a representative from a planning region;
32-1 (10) a representative of the financial community;
32-2 (11) a representative from a solid waste management
32-3 organization composed primarily of commercial operators;
32-4 (12) two persons representing the public who would not
32-5 otherwise qualify as members under this section;
32-6 (13) a registered scrap [waste] tire processor;
32-7 (14) a professional engineer from a private
32-8 engineering firm with experience in the design and management of
32-9 solid waste facilities;
32-10 (15) a solid waste professional with experience
32-11 managing or operating a commercial solid waste landfill; and
32-12 (16) a person who is experienced in the management and
32-13 operation of a composting or recycling facility or an educator with
32-14 knowledge of the design and management of solid waste facilities.
32-15 SECTION 6. Section 7.304, Water Code, is amended to read as
32-16 follows:
32-17 Sec. 7.304. SUSPENSION OF REGISTRATION OR REIMBURSEMENT
32-18 PAYMENT ISSUED UNDER SCRAP [WASTE] TIRE RECYCLING PROGRAM.
32-19 Notwithstanding Sections 7.303, 7.305, and 7.306, the commission
32-20 may suspend a registration of or [reimbursement] payment to a scrap
32-21 [waste] tire processor, scrap [waste] tire transporter, scrap
32-22 [waste] tire generator, scrap [waste] tire recycler [recycling
32-23 facility], or scrap [waste] tire energy recovery facility, without
32-24 notice or hearing, on the initiation of an enforcement proceeding
32-25 under this chapter and while the proceeding is pending for a
32-26 violation of Subchapter P, Chapter 361, Health and Safety Code, or
32-27 a rule adopted or order issued under that subchapter.
33-1 SECTION 7. (a) As soon as practicable after the effective
33-2 date of this Act, the Texas Natural Resource Conservation
33-3 Commission shall adopt rules necessary to implement Subchapter P,
33-4 Chapter 361, Health and Safety Code, as added by this Act.
33-5 (b) The Texas Natural Resource Conservation Commission may
33-6 make payments authorized by Sections 361.478 and 361.479, Health
33-7 and Safety Code, as added by this Act, only for whole scrap tires,
33-8 shredded tire pieces, or material derived from tires put to an end
33-9 use after the effective date of this Act.
33-10 (c) Section 361.488, Health and Safety Code, as added by
33-11 this Act, applies only to an offense committed on or after the
33-12 effective date of this Act. For purposes of this subsection, an
33-13 offense is committed on or after the effective date of this Act if
33-14 any element of the offense occurs on or after that date.
33-15 SECTION 8. This Act takes effect September 1, 1999.
33-16 SECTION 9. The importance of this legislation and the
33-17 crowded condition of the calendars in both houses create an
33-18 emergency and an imperative public necessity that the
33-19 constitutional rule requiring bills to be read on three several
33-20 days in each house be suspended, and this rule is hereby suspended.