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.