By Lewis of Orange H.B. No. 3217
77R7230 QS-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the voluntary cleanup program of the Railroad
1-3 Commission of Texas.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 91.111(c), Natural Resources Code, is
1-6 amended to read as follows:
1-7 (c) The fund consists of:
1-8 (1) penalties imposed under Section 85.381 for
1-9 violation of a law, order, or rule relating to well plugging
1-10 requirements;
1-11 (2) proceeds from bonds and other financial assurances
1-12 required by this chapter, subject to the refund provisions of
1-13 Section 91.1091;
1-14 (3) private contributions, including contributions
1-15 made under Section 89.084;
1-16 (4) expenses collected under Section 89.083;
1-17 (5) fees imposed under Section 85.2021;
1-18 (6) civil penalties collected for violations of
1-19 Chapter 89 or of rules or orders relating to plugging that are
1-20 adopted under this code;
1-21 (7) proceeds collected under Sections 89.085 and
1-22 91.115;
1-23 (8) interest earned on the funds deposited in the
1-24 fund;
2-1 (9) fees collected under Section 91.104;
2-2 (10) civil penalties or costs recovered under Section
2-3 91.457 or 91.459;
2-4 (11) oil and gas waste hauler permit application fees
2-5 collected under Section 29.015, Water Code;
2-6 (12) costs recovered under Section 91.113(f);
2-7 (13) hazardous oil and gas waste generation fees
2-8 collected under Section 91.605;
2-9 (14) oil-field cleanup regulatory fees on oil
2-10 collected under Section 81.116;
2-11 (15) oil-field cleanup regulatory fees on gas
2-12 collected under Section 81.117;
2-13 (16) fees for a reissued certificate collected under
2-14 Section 85.167;
2-15 (17) fees collected under Section 91.1013;
2-16 (18) fees collected under Section 89.088;
2-17 (19) penalties collected under Section 81.0531; [and]
2-18 (20) application fees collected under Section 91.653;
2-19 and
2-20 (21) legislative appropriations.
2-21 SECTION 2. Section 91.112, Natural Resources Code, is amended
2-22 to read as follows:
2-23 Sec. 91.112. PURPOSE OF THE FUND. (a) Money in the fund may
2-24 be used by the commission or its employees or agents for:
2-25 (1) conducting a site investigation or environmental
2-26 assessment to determine:
2-27 (A) the nature and extent of contamination
3-1 caused by oil and gas wastes or other substances or materials
3-2 regulated by the commission under Section 91.101; and
3-3 (B) the measures that should be taken to control
3-4 or clean up the wastes, substances, or materials described in
3-5 Paragraph (A);
3-6 (2) controlling or cleaning up oil and gas wastes or
3-7 other substances or materials regulated by the commission under
3-8 Section 91.101 that are causing or are likely to cause the
3-9 pollution of surface or subsurface water, consistent with Section
3-10 91.113;
3-11 (3) plugging abandoned wells and administering or
3-12 enforcing permits, orders, and rules relating to the commission's
3-13 authority to prevent pollution under this chapter, Chapter 89, or
3-14 any other law administered or enforced by the commission under
3-15 Title 3;
3-16 (4) implementing Subchapter N and enforcing rules,
3-17 orders, and permits adopted or issued under that subchapter; [and]
3-18 (5) implementing the voluntary cleanup program under
3-19 Subchapter O; and
3-20 (6) preparing the report required under Subsection
3-21 (b).
3-22 (b) The commission shall submit to the legislature,
3-23 annually, a report that reviews the extent to which money provided
3-24 under Section 91.111 has enabled the commission to better protect
3-25 the environment and enhance the income of the oil-field cleanup
3-26 fund. The report shall include:
3-27 (1) the number of wells plugged;
4-1 (2) the number of wells abandoned;
4-2 (3) the number of inactive wells not currently in
4-3 compliance with commission rules;
4-4 (4) the status of enforcement proceedings for all
4-5 wells in violation of commission rules and the time period during
4-6 which the wells have been in violation;
4-7 (5) the method by which the commission sets priorities
4-8 by which it determines the order in which abandoned wells are
4-9 plugged;
4-10 (6) a projection of the amount of money needed for the
4-11 next biennium for conducting site investigations and environmental
4-12 assessments, plugging abandoned wells, and remediating surface
4-13 locations; [and]
4-14 (7) the status of implementation of the provisions of
4-15 Section 89.085 relating to possession and sale of equipment to
4-16 recover plugging costs; and
4-17 (8) the number of sites successfully remediated under
4-18 the voluntary cleanup program.
4-19 SECTION 3. Chapter 91, Natural Resources Code, is amended by
4-20 adding Subchapter O to read as follows:
4-21 SUBCHAPTER O. RAILROAD COMMISSION VOLUNTARY CLEANUP PROGRAM
4-22 Sec. 91.651. DEFINITIONS. In this subchapter:
4-23 (1) "Contaminant" includes a waste, pollutant, or
4-24 substance regulated by, or that results from an activity under the
4-25 jurisdiction of, the commission under this chapter or Chapter 141
4-26 of this code or Chapter 27, Water Code.
4-27 (2) "Environmental assessment" means the assessment
5-1 described by Section 91.653.
5-2 (3) "Response action" means the cleanup or removal of
5-3 a contaminant from the environment.
5-4 (4) "Voluntary cleanup" means a response action taken
5-5 under and in compliance with this subchapter.
5-6 Sec. 91.652. ELIGIBILITY FOR COMMISSION VOLUNTARY CLEANUP
5-7 PROGRAM. (a) Any site that is contaminated with a contaminant is
5-8 eligible for participation in the commission voluntary cleanup
5-9 program except the portion of a site that may be subject to a
5-10 commission order.
5-11 (b) A person electing to participate in the voluntary
5-12 cleanup program must:
5-13 (1) enter into a voluntary cleanup agreement as
5-14 provided by Section 91.655; and
5-15 (2) pay all costs of commission oversight of the
5-16 voluntary cleanup.
5-17 Sec. 91.653. APPLICATION TO PARTICIPATE IN VOLUNTARY CLEANUP
5-18 PROGRAM. (a) A person who desires to participate in the voluntary
5-19 cleanup program under this subchapter must submit to the commission
5-20 an application and an application fee as prescribed by this
5-21 section.
5-22 (b) An application submitted under this section must:
5-23 (1) be on a form provided by the commission;
5-24 (2) contain:
5-25 (A) general information concerning:
5-26 (i) the person and the person's
5-27 capability, including the person's financial capability, to perform
6-1 the voluntary cleanup;
6-2 (ii) the site; and
6-3 (iii) the name, address, and telephone
6-4 number of all surface and mineral owners;
6-5 (B) other background information requested by
6-6 the commission;
6-7 (C) an environmental assessment of the actual or
6-8 threatened release of the contaminant at the site; and
6-9 (D) if the person applying is not the surface
6-10 owner, written authorization from the surface owner agreeing to the
6-11 applicant's participation in the program;
6-12 (3) be accompanied by an application fee of $1,000;
6-13 and
6-14 (4) be submitted according to schedules set by the
6-15 commission.
6-16 (c) The environmental assessment required by Subsection (b)
6-17 must include:
6-18 (1) a legal description of the site;
6-19 (2) a description of the physical characteristics of
6-20 the site;
6-21 (3) the operational history of the site to the extent
6-22 that history is known by the applicant;
6-23 (4) information of which the applicant is aware
6-24 concerning the nature and extent of any relevant contamination or
6-25 release at the site and immediately contiguous to the site, or
6-26 wherever the contamination came to be located; and
6-27 (5) relevant information of which the applicant is
7-1 aware concerning the potential for human exposure to contamination
7-2 at the site.
7-3 (d) An application shall be processed in the order in which
7-4 it is received.
7-5 (e) Fees collected under this section shall be deposited to
7-6 the credit of the oil-field cleanup fund under Section 91.111.
7-7 Sec. 91.654. REJECTION OF APPLICATION. (a) The commission
7-8 may reject an application submitted under Section 91.653 if:
7-9 (1) a state or federal enforcement action is pending
7-10 that concerns the remediation of the contaminant described in the
7-11 application;
7-12 (2) a federal grant requires an enforcement action at
7-13 the site;
7-14 (3) the application is incomplete or inaccurate; or
7-15 (4) the site is ineligible under Section 91.652.
7-16 (b) If an application is rejected because it is incomplete
7-17 or inaccurate, the commission, not later than the 45th day after
7-18 receipt of the application, shall provide the person with a list of
7-19 all information needed to make the application complete or
7-20 accurate. A person may resubmit an application once without
7-21 submitting an additional application fee if the person resubmits
7-22 the application not later than the 45th day after the date the
7-23 commission issues notice that the application has been rejected.
7-24 (c) If the commission rejects the application, the
7-25 commission shall:
7-26 (1) notify the person that the application has been
7-27 rejected;
8-1 (2) explain the reasons for rejection of the
8-2 application; and
8-3 (3) inform the person that the commission will refund
8-4 half the person's application fee unless the person indicates a
8-5 desire to resubmit the application.
8-6 Sec. 91.655. VOLUNTARY CLEANUP AGREEMENT. (a) Before the
8-7 commission evaluates any plan or report detailing the remediation
8-8 goals and proposed methods of remediation, the person desiring to
8-9 participate in the voluntary cleanup program must enter into a
8-10 voluntary cleanup agreement that sets forth the terms and
8-11 conditions of the evaluation of the reports and the implementation
8-12 of work plans.
8-13 (b) A voluntary cleanup agreement must provide for:
8-14 (1) recovery by the commission of all reasonable
8-15 costs:
8-16 (A) incurred by the commission in review and
8-17 oversight of the person's work plan and reports and as a result of
8-18 the commission's field activities;
8-19 (B) attributable to the voluntary cleanup
8-20 agreement; and
8-21 (C) in excess of the amount of fees submitted by
8-22 the applicant under Section 91.653;
8-23 (2) a schedule of payments to the commission to be
8-24 made by the person for recovery of all commission costs fairly
8-25 attributable to the voluntary cleanup program, including direct and
8-26 indirect costs of overhead, salaries, equipment, and utilities, and
8-27 legal, management, and support costs; and
9-1 (3) appropriate tasks, deliverables, and schedules.
9-2 (c) The voluntary cleanup agreement shall:
9-3 (1) identify all statutes and rules with which the
9-4 person must comply;
9-5 (2) describe any work plan or report to be submitted
9-6 for review by the commission, including a final report that
9-7 provides all information necessary to verify that all work
9-8 contemplated by the voluntary cleanup agreement has been completed;
9-9 (3) include a schedule for submitting the information
9-10 required by Subdivision (2); and
9-11 (4) state the technical standards to be applied in
9-12 evaluating the work plans and reports, with reference to the
9-13 proposed future land use to be achieved.
9-14 (d) If an agreement is not reached between a person desiring
9-15 to participate in the voluntary cleanup program and the commission
9-16 on or before the 30th day after good faith negotiations have begun:
9-17 (1) the person or the commission may withdraw from the
9-18 negotiations; and
9-19 (2) the commission retains the person's application
9-20 fee.
9-21 (e) The commission may not initiate an enforcement action
9-22 against a person who is in compliance with this section for the
9-23 contamination or release that is the subject of the voluntary
9-24 cleanup agreement or for activity that resulted in the
9-25 contamination or release.
9-26 Sec. 91.656. TERMINATION OF AGREEMENT; COST RECOVERY. (a)
9-27 The commission or the person in its sole discretion may terminate
10-1 the agreement by giving 15 days' advance written notice to the
10-2 other. Only those costs incurred or obligated by the commission
10-3 before notice of termination of the agreement are recoverable under
10-4 the agreement if the agreement is terminated.
10-5 (b) Termination of the agreement does not affect any right
10-6 the commission has under other law to recover costs.
10-7 (c) If the person does not pay to the commission the state's
10-8 costs associated with the voluntary cleanup before the 31st day
10-9 after the date the person receives notice that the costs are due
10-10 and owing, the attorney general, at the request of the commission,
10-11 shall bring an action in the name of the state in Travis County to
10-12 recover the amount owed and reasonable legal expenses, including
10-13 attorney's fees, witness costs, court costs, and deposition costs.
10-14 Sec. 91.657. VOLUNTARY CLEANUP WORK PLANS AND REPORTS. (a)
10-15 After signing a voluntary cleanup agreement, the person shall
10-16 prepare and submit the appropriate work plans and reports to the
10-17 commission.
10-18 (b) The commission shall review and evaluate the work plans
10-19 and reports for accuracy, quality, and completeness. The
10-20 commission may approve a voluntary cleanup work plan or report or,
10-21 if a work plan or report is not approved, notify the person
10-22 concerning additional information or commitments needed to obtain
10-23 approval.
10-24 (c) At any time during the evaluation of a work plan or
10-25 report, the commission may request the person to submit additional
10-26 or corrected information.
10-27 (d) After considering future land use, the commission may
11-1 approve work plans and reports submitted under this section that do
11-2 not require removal or remedy of all discharges, releases, and
11-3 threatened releases at a site if the partial response actions for
11-4 the property:
11-5 (1) will be completed in a manner that protects human
11-6 health and the environment;
11-7 (2) will not cause, contribute, or exacerbate
11-8 discharges, releases, or threatened releases that are not required
11-9 to be removed or remedied under the work plan; and
11-10 (3) will not interfere with or substantially increase
11-11 the cost of response actions to address the remaining discharges,
11-12 releases, or threatened releases.
11-13 Sec. 91.658. CERTIFICATE OF COMPLETION. (a) If the
11-14 commission determines that a person has successfully completed a
11-15 voluntary cleanup approved under this subchapter, the commission
11-16 shall certify that the action has been completed by issuing the
11-17 person a certificate of completion.
11-18 (b) The certificate of completion must:
11-19 (1) acknowledge the protection from liability provided
11-20 by Section 91.659;
11-21 (2) indicate the proposed future land use; and
11-22 (3) include a legal description of the site and the
11-23 name of the site's surface and mineral owner and mineral operator
11-24 at the time the application to participate in the voluntary cleanup
11-25 program was filed.
11-26 (c) If the commission determines that the person has not
11-27 successfully completed a voluntary cleanup approved under this
12-1 subchapter, the commission shall notify the person who undertook
12-2 the voluntary cleanup and the current surface and mineral owner and
12-3 mineral operator of the site that is the subject of the cleanup of
12-4 this determination.
12-5 Sec. 91.659. PERSONS RELEASED FROM LIABILITY. (a) A person
12-6 who is not a responsible person under Section 91.113 at the time
12-7 the person applies to perform a voluntary cleanup:
12-8 (1) does not become a responsible person solely
12-9 because the person signs the application; and
12-10 (2) is released, on certification under Section
12-11 91.658, from all liability to the state for cleanup of areas of the
12-12 site covered by the certification, except for releases and
12-13 consequences that the person causes.
12-14 (b) A person who is not a responsible person under Section
12-15 91.113 at the time the commission issues a certificate of
12-16 completion under Section 91.658 is released, on issuance of the
12-17 certificate, from all liability to the state for cleanup of areas
12-18 of the site covered by the certificate, except for releases and
12-19 consequences that the person causes.
12-20 (c) The release from liability provided by this section does
12-21 not apply to a person who:
12-22 (1) acquires a certificate of completion by fraud,
12-23 misrepresentation, or knowing failure to disclose material
12-24 information;
12-25 (2) knows at the time the person acquires an interest
12-26 in the site for which the certificate of completion was issued that
12-27 the certificate was acquired in a manner provided by Subdivision
13-1 (1); or
13-2 (3) changes land use from the use specified in the
13-3 certificate of completion if the new use may result in increased
13-4 risks to human health or the environment.
13-5 Sec. 91.660. PERMIT NOT REQUIRED. (a) A state or local
13-6 permit is not required for removal or remedial action conducted on
13-7 a site as part of a voluntary cleanup under this subchapter. A
13-8 person shall coordinate a voluntary cleanup with ongoing federal
13-9 and state hazardous waste programs.
13-10 (b) The commission by rule shall require that the person
13-11 conducting the voluntary cleanup comply with any federal or state
13-12 standard, requirement, criterion, or limitation to which the
13-13 remedial action would otherwise be subject if a permit were
13-14 required.
13-15 SECTION 4. This Act takes effect immediately if it receives
13-16 a vote of two-thirds of all the members elected to each house, as
13-17 provided by Section 39, Article III, Texas Constitution. If this
13-18 Act does not receive the vote necessary for immediate effect, this
13-19 Act takes effect September 1, 2001.