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.