By: Brown S.B. No. 1334
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 creation of the Railroad Commission voluntary
1-3 cleanup program.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 91, Natural Resources Code, is amended by
1-6 adding Subchapter I to read as follows:
1-7 SUBCHAPTER I. RAILROAD COMMISSION VOLUNTARY CLEANUP PROGRAM
1-8 Sec. 91.301. DEFINITIONS. In this subchapter:
1-9 (1) "Commission" means Railroad Commission of Texas.
1-10 (2) "Contaminant" includes a waste, pollutant, or
1-11 substance regulated by or that results from an activity under the
1-12 jurisdiction of the Railroad Commission of Texas under Chapter 91
1-13 or 141, Natural Resources Code, or Chapter 27, Water Code.
1-14 (3) "Environmental assessment" means the assessment
1-15 described by Section 91.305.
1-16 (4) "Response action" means the cleanup or removal of
1-17 a contaminant from the environment.
1-18 (5) "Voluntary cleanup" means a response action taken
1-19 under and in compliance with this subchapter.
1-20 Sec. 91.302. PURPOSE. The purpose of the Railroad
1-21 Commission Voluntary Cleanup Program is to provide incentive to
1-22 remediate property by removing liability to the State of lenders,
1-23 developers, owners and operators that did not cause or contribute
2-1 to contamination released at the site covered by the certificate.
2-2 The program does not replace other voluntary actions and is
2-3 restricted to voluntary actions.
2-4 Sec. 91.303. ELIGIBILITY FOR RAILROAD COMMISSION VOLUNTARY
2-5 CLEANUP PROGRAM. (a) Any site that is contaminated with a waste,
2-6 pollutant or substance identified in Section 91.114(2) is eligible
2-7 for participation in the Railroad Commission Voluntary Cleanup
2-8 Program except the portion of a site that may be subject to a
2-9 Commission order.
2-10 (b) A person electing to participate in the voluntary
2-11 cleanup program must:
2-12 (1) enter into a voluntary cleanup agreement as
2-13 provided by Section 91.120; and
2-14 (2) pay all costs of Commission oversight of the
2-15 voluntary cleanup.
2-16 Sec. 91.304. ELIGIBILITY OF CERTAIN PERSONS FOR RELEASE FROM
2-17 LIABILITY. On certification under Section 91.123, a person is
2-18 released from all liability to the state for cleanup of
2-19 contamination that was released at the site covered by the
2-20 certificate except for releases or consequences the person
2-21 contributed to or caused.
2-22 Sec. 91.305. APPLICATION TO PARTICIPATE IN VOLUNTARY CLEANUP
2-23 PROGRAM. (a) A person who desires to participate in the voluntary
2-24 cleanup program under this subchapter must submit to the Commission
2-25 an application and an application fee as prescribed by this
2-26 section.
3-1 (b) An application submitted under this section must:
3-2 (1) be on a form provided by the Commission;
3-3 (2) contain:
3-4 (A) general information concerning:
3-5 (i) the person and the person's
3-6 capability, including the person's financial capability, to perform
3-7 the voluntary cleanup; and
3-8 (ii) the site;
3-9 (iii) the name, address and telephone
3-10 number of all surface and mineral owners.
3-11 (B) other background information requested by
3-12 the Commission;
3-13 (C) an environmental assessment of the actual or
3-14 threatened release of the contaminant at the site; and,
3-15 (D) if the person entering into the Voluntary
3-16 Cleanup agreement is not the surface owner, written authorization
3-17 from the surface owner agreeing to applicant's participation in the
3-18 program.
3-19 (3) be accompanied by an application fee of $1,000.00;
3-20 and
3-21 (4) be submitted according to schedules set by the
3-22 Commission.
3-23 (c) The environmental assessment required by Subsection (b)
3-24 must include:
3-25 (1) a legal description of the site;
3-26 (2) a description of the physical characteristics of
4-1 the site;
4-2 (3) the operational history of the site to the extent
4-3 that history is known by the applicant;
4-4 (4) information of which the applicant is aware
4-5 concerning the nature and extent of any relevant contamination or
4-6 release at the site and immediately contiguous to the site, or
4-7 wherever the contamination came to be located; and
4-8 (5) relevant information of which the applicant is
4-9 aware concerning the potential for human exposure to contamination
4-10 at the site.
4-11 (d) An application shall be processed in the order in which
4-12 it is received.
4-13 (e) Fees collected under this section shall be deposited to
4-14 the credit of the oil field cleanup fund.
4-15 Sec. 91.306. REJECTION OF APPLICATION. (a) The Commission
4-16 may reject an application submitted under Section 91.305 if:
4-17 (1) a state, or federal enforcement action is pending
4-18 that concerns the remediation of the contaminant described in the
4-19 application;
4-20 (2) a federal grant requires an enforcement action at
4-21 the site;
4-22 (3) the application is not complete or accurate; or
4-23 (4) The site is ineligible under Section 91.118.
4-24 (b) If an application is rejected because it is not complete
4-25 or accurate, the Commission, not later than the 45th day after
4-26 receipt of the application, shall provide the person with a list of
5-1 all information needed to make the application complete or
5-2 accurate. A person may resubmit an application once without
5-3 submitting an additional application fee if the person resubmits
5-4 the application not later than the 45th day after the date the
5-5 Commission issues notice that the application has been rejected.
5-6 (c) If the Commission rejects the application, it shall:
5-7 (1) notify the person that the application has been
5-8 rejected;
5-9 (2) explain the reasons for rejection of the
5-10 application; and
5-11 (3) inform the person that the Commission will refund
5-12 half the person's application fee unless the person indicates a
5-13 desire to resubmit an application.
5-14 Sec. 91.307. VOLUNTARY CLEANUP AGREEMENT. (a) Before the
5-15 Commission evaluates any plan or report detailing the remediation
5-16 goals and proposed methods of remediation, the person desiring to
5-17 participate in the voluntary cleanup program must enter into a
5-18 voluntary cleanup agreement that sets forth the terms and
5-19 conditions of the evaluation of the reports and the implementation
5-20 of work plans.
5-21 (b) A voluntary cleanup agreement must provide for:
5-22 (1) recovery by the Commission of all reasonable
5-23 costs:
5-24 (A) incurred by the Commission in review and
5-25 oversight of the person's work plan and reports and as a result of
5-26 the commission's field activities;
6-1 (B) attributable to the voluntary cleanup
6-2 agreement; and
6-3 (C) in excess of the amount of fees submitted by
6-4 the applicant under Section 91.305.
6-5 (2) a schedule of payments to the Commission to be
6-6 made by the person for recovery of all Commission costs fairly
6-7 attributable to the voluntary cleanup program, including direct and
6-8 indirect costs of overhead, salaries, equipment, and utilities, and
6-9 legal, management, and support costs; and
6-10 (3) appropriate tasks, deliverables, and schedules.
6-11 (c) The voluntary cleanup agreement shall:
6-12 (1) identify all statutes and rules that must be
6-13 complied with;
6-14 (2) describe any work plan or report to be submitted
6-15 for review by the Commission, including a final report that
6-16 provides all information necessary to verify that all work
6-17 contemplated by the voluntary cleanup agreement has been completed;
6-18 (3) include a schedule for submitting the information
6-19 required by Subdivision (2); and
6-20 (4) state the technical standards to be applied in
6-21 evaluating the work plans and reports, with reference to the
6-22 proposed future land use to be achieved.
6-23 (d) If an agreement is not reached between a person desiring
6-24 to participate in the voluntary cleanup program and the Commission
6-25 on or before the 30th day after good faith negotiations on the
6-26 voluntary cleanup agreement have begun:
7-1 (1) the person or the Commission may withdraw from the
7-2 negotiations; and
7-3 (2) the Commission retains the person's application
7-4 fee.
7-5 (e) The Commission may not initiate an enforcement action
7-6 against a person who is in compliance with this section for the
7-7 contamination or release that is the subject of the voluntary
7-8 cleanup agreement or for the activity that resulted in the
7-9 contamination or release.
7-10 Sec. 91.308. TERMINATION OF AGREEMENT; COST RECOVERY.
7-11 (a) The Commission or the person in its sole discretion may
7-12 terminate the agreement by giving 15 days' advance written notice
7-13 to the other. Only those costs incurred or obligated by the
7-14 Commission before notice of termination of the agreement are
7-15 recoverable under the agreement if the agreement is terminated.
7-16 (b) Termination of the agreement does not affect any right
7-17 the Commission has under other law to recover costs.
7-18 (c) If the person does not pay to the Commission the state's
7-19 costs associated with the voluntary cleanup before the 31st day
7-20 after the date the person receives notice that the costs are due
7-21 and owing, the attorney general, at the request of the commission,
7-22 shall bring an action in the name of the state in Travis County to
7-23 recover the amount owed and reasonable legal expenses, including
7-24 attorney's fees, witness costs, court costs, and deposition costs.
7-25 Sec. 91.309. VOLUNTARY CLEANUP WORK PLANS AND REPORTS.
7-26 (a) After signing a voluntary cleanup agreement, the person shall
8-1 prepare and submit the appropriate work plans and reports to the
8-2 Commission.
8-3 (b) The Commission shall review and evaluate the work plans
8-4 and reports for accuracy, quality, and completeness. The
8-5 Commission may approve a voluntary cleanup work plan or report or,
8-6 if a work plan or report is not approved, notify the person
8-7 concerning additional information or commitments needed to obtain
8-8 approval.
8-9 (c) At any time during the evaluation of a work plan or
8-10 report, the Commission may request the person to submit additional
8-11 or corrected information.
8-12 (d) After considering future land use, the Commission may
8-13 approve work plans and reports submitted under this section that do
8-14 not require removal or remedy of all discharges, releases, and
8-15 threatened releases at a site if the partial response actions for
8-16 the property:
8-17 (1) will be completed in a manner that protects human
8-18 health and the environment;
8-19 (2) will not cause, contribute, or exacerbate
8-20 discharges, releases, or threatened releases that are not required
8-21 to be removed or remedied under the work plan; and
8-22 (3) will not interfere with or substantially increase
8-23 the cost of response actions to address the remaining discharges,
8-24 releases, or threatened releases.
8-25 Sec. 91.310. CERTIFICATE OF COMPLETION. (a) If the
8-26 Commission determines that a person has successfully completed a
9-1 voluntary cleanup approved under this subchapter, the Commission
9-2 shall certify that the action has been completed by issuing the
9-3 person a certificate of completion.
9-4 (b) The certificate of completion shall:
9-5 (1) acknowledge the protection from liability to the
9-6 State provided by Section 91.304;
9-7 (2) indicate the proposed future land use; and
9-8 (3) include a legal description of the site and the
9-9 name of the site's surface and mineral owner and mineral operator
9-10 at the time the application to participate in the voluntary cleanup
9-11 program was filed.
9-12 (c) If the Commission determines that the person has not
9-13 successfully completed a voluntary cleanup approved under this
9-14 subchapter, the Commission shall notify the person who undertook
9-15 the voluntary cleanup and the current surface and mineral owner and
9-16 mineral operator of the site that is the subject of the cleanup of
9-17 this determination.
9-18 Sec. 91.311. PERSONS RELEASED FROM LIABILITY. (a) A person
9-19 who is not a responsible person under Section 91.113 at the time
9-20 the person applies to perform a voluntary cleanup:
9-21 (1) does not become a responsible person solely
9-22 because the person signs the application; and
9-23 (2) is released, on certification under Section
9-24 91.310, from all liability to the state for cleanup of areas of the
9-25 site covered by the certificate, except for releases and
9-26 consequences that the person causes.
10-1 (b) A person who is not a responsible person under Section
10-2 91.113 at the time the Commission issues a certificate of
10-3 completion under Section 91.310 is released, on issuance of the
10-4 certificate, from all liability to the state for cleanup of areas
10-5 of the site covered by the certificate, except for releases and
10-6 consequences that the person causes.
10-7 (c) The release from liability provided by this section does
10-8 not apply to a person who:
10-9 (1) acquires a certificate of completion by fraud,
10-10 misrepresentation, or knowing failure to disclose material
10-11 information;
10-12 (2) knows at the time the person acquires an interest
10-13 in the site for which the certificate of completion was issued that
10-14 the certificate was acquired in a manner provided by subdivision
10-15 (1); or
10-16 (3) changes land use from the use specified in the
10-17 certificate of completion if the new use may result in increased
10-18 risks to human health or the environment.
10-19 Sec. 91.312. PERMIT NOT REQUIRED. (a) A state or local
10-20 permit may not be required for removal of remedial action conducted
10-21 on a site as part of a voluntary cleanup under this subchapter. A
10-22 person shall coordinate a voluntary cleanup with ongoing federal
10-23 and state hazardous waste programs.
10-24 (b) The Commission by rule shall require that the person
10-25 conducting the voluntary cleanup comply with any federal or state
10-26 standard, requirement, criterion, or limitation to which the
11-1 remedial action would otherwise be subject if a permit were
11-2 required.
11-3 SECTION 2. This Act takes effect immediately if it receives
11-4 a vote of two-thirds of all the members elected to each house, as
11-5 provided by Section 39, Article III, Texas Constitution. If this
11-6 Act does not receive the vote necessary for immediate effect, this
11-7 Act takes effect September 1, 2001.