1-1 By: Brown S.B. No. 1334
1-2 (In the Senate - Filed March 8, 2001; March 13, 2001, read
1-3 first time and referred to Committee on Natural Resources;
1-4 March 26, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; March 26, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1334 By: Brown
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the voluntary cleanup program of the Railroad
1-11 Commission of Texas.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection (c), Section 91.111, Natural Resources
1-14 Code, is amended to read as follows:
1-15 (c) The fund consists of:
1-16 (1) penalties imposed under Section 85.381 for
1-17 violation of a law, order, or rule relating to well plugging
1-18 requirements;
1-19 (2) proceeds from bonds and other financial assurances
1-20 required by this chapter, subject to the refund provisions of
1-21 Section 91.1091;
1-22 (3) private contributions, including contributions
1-23 made under Section 89.084;
1-24 (4) expenses collected under Section 89.083;
1-25 (5) fees imposed under Section 85.2021;
1-26 (6) civil penalties collected for violations of
1-27 Chapter 89 or of rules or orders relating to plugging that are
1-28 adopted under this code;
1-29 (7) proceeds collected under Sections 89.085 and
1-30 91.115;
1-31 (8) interest earned on the funds deposited in the
1-32 fund;
1-33 (9) fees collected under Section 91.104;
1-34 (10) civil penalties or costs recovered under Section
1-35 91.457 or 91.459;
1-36 (11) oil and gas waste hauler permit application fees
1-37 collected under Section 29.015, Water Code;
1-38 (12) costs recovered under Section 91.113(f);
1-39 (13) hazardous oil and gas waste generation fees
1-40 collected under Section 91.605;
1-41 (14) oil-field cleanup regulatory fees on oil
1-42 collected under Section 81.116;
1-43 (15) oil-field cleanup regulatory fees on gas
1-44 collected under Section 81.117;
1-45 (16) fees for a reissued certificate collected under
1-46 Section 85.167;
1-47 (17) fees collected under Section 91.1013;
1-48 (18) fees collected under Section 89.088;
1-49 (19) penalties collected under Section 81.0531; [and]
1-50 (20) application fees collected under Section 91.653;
1-51 and
1-52 (21) legislative appropriations.
1-53 SECTION 2. Section 91.112, Natural Resources Code, is
1-54 amended to read as follows:
1-55 Sec. 91.112. PURPOSE OF THE FUND. (a) Money in the fund
1-56 may be used by the commission or its employees or agents for:
1-57 (1) conducting a site investigation or environmental
1-58 assessment to determine:
1-59 (A) the nature and extent of contamination
1-60 caused by oil and gas wastes or other substances or materials
1-61 regulated by the commission under Section 91.101; and
1-62 (B) the measures that should be taken to control
1-63 or clean up the wastes, substances, or materials described in
1-64 Paragraph (A);
2-1 (2) controlling or cleaning up oil and gas wastes or
2-2 other substances or materials regulated by the commission under
2-3 Section 91.101 that are causing or are likely to cause the
2-4 pollution of surface or subsurface water, consistent with Section
2-5 91.113;
2-6 (3) plugging abandoned wells and administering or
2-7 enforcing permits, orders, and rules relating to the commission's
2-8 authority to prevent pollution under this chapter, Chapter 89, or
2-9 any other law administered or enforced by the commission under
2-10 Title 3;
2-11 (4) implementing Subchapter N and enforcing rules,
2-12 orders, and permits adopted or issued under that subchapter; [and]
2-13 (5) implementing the voluntary cleanup program under
2-14 Subchapter O; and
2-15 (6) preparing the report required under Subsection
2-16 (b).
2-17 (b) The commission shall submit to the legislature,
2-18 annually, a report that reviews the extent to which money provided
2-19 under Section 91.111 has enabled the commission to better protect
2-20 the environment and enhance the income of the oil-field cleanup
2-21 fund. The report shall include:
2-22 (1) the number of wells plugged;
2-23 (2) the number of wells abandoned;
2-24 (3) the number of inactive wells not currently in
2-25 compliance with commission rules;
2-26 (4) the status of enforcement proceedings for all
2-27 wells in violation of commission rules and the time period during
2-28 which the wells have been in violation;
2-29 (5) the method by which the commission sets priorities
2-30 by which it determines the order in which abandoned wells are
2-31 plugged;
2-32 (6) a projection of the amount of money needed for the
2-33 next biennium for conducting site investigations and environmental
2-34 assessments, plugging abandoned wells, and remediating surface
2-35 locations; [and]
2-36 (7) the status of implementation of the provisions of
2-37 Section 89.085 relating to possession and sale of equipment to
2-38 recover plugging costs; and
2-39 (8) the number of sites successfully remediated under
2-40 the voluntary cleanup program.
2-41 SECTION 3. Chapter 91, Natural Resources Code, is amended by
2-42 adding Subchapter O to read as follows:
2-43 SUBCHAPTER O. RAILROAD COMMISSION VOLUNTARY CLEANUP PROGRAM
2-44 Sec. 91.651. DEFINITIONS. In this subchapter:
2-45 (1) "Contaminant" includes a waste, pollutant, or
2-46 substance regulated by, or that results from an activity under the
2-47 jurisdiction of, the commission under this chapter or Chapter 141
2-48 of this code or Chapter 27, Water Code.
2-49 (2) "Environmental assessment" means the assessment
2-50 described by Section 91.653.
2-51 (3) "Response action" means the cleanup or removal of
2-52 a contaminant from the environment.
2-53 (4) "Voluntary cleanup" means a response action taken
2-54 under and in compliance with this subchapter.
2-55 Sec. 91.652. ELIGIBILITY FOR COMMISSION VOLUNTARY CLEANUP
2-56 PROGRAM. (a) Any site that is contaminated with a contaminant is
2-57 eligible for participation in the commission voluntary cleanup
2-58 program except the portion of a site that may be subject to a
2-59 commission order.
2-60 (b) A person electing to participate in the voluntary
2-61 cleanup program must:
2-62 (1) enter into a voluntary cleanup agreement as
2-63 provided by Section 91.655; and
2-64 (2) pay all costs of commission oversight of the
2-65 voluntary cleanup.
2-66 Sec. 91.653. APPLICATION TO PARTICIPATE IN VOLUNTARY CLEANUP
2-67 PROGRAM. (a) A person who desires to participate in the voluntary
2-68 cleanup program under this subchapter must submit to the commission
2-69 an application and an application fee as prescribed by this
3-1 section.
3-2 (b) An application submitted under this section must:
3-3 (1) be on a form provided by the commission;
3-4 (2) contain:
3-5 (A) general information concerning:
3-6 (i) the person and the person's
3-7 capability, including the person's financial capability, to perform
3-8 the voluntary cleanup;
3-9 (ii) the site; and
3-10 (iii) the name, address, and telephone
3-11 number of all surface and mineral owners;
3-12 (B) other background information requested by
3-13 the commission;
3-14 (C) an environmental assessment of the actual or
3-15 threatened release of the contaminant at the site; and
3-16 (D) if the person applying is not the surface
3-17 owner, written authorization from the surface owner agreeing to the
3-18 applicant's participation in the voluntary cleanup program;
3-19 (3) be accompanied by an application fee of $1,000;
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
3-27 the site;
3-28 (3) the operational history of the site to the extent
3-29 that history is known by the applicant;
3-30 (4) information of which the applicant is aware
3-31 concerning the nature and extent of any relevant contamination or
3-32 release at the site and immediately contiguous to the site, or
3-33 wherever the contamination came to be located; and
3-34 (5) relevant information of which the applicant is
3-35 aware concerning the potential for human exposure to contamination
3-36 at the site.
3-37 (d) An application shall be processed in the order in which
3-38 it is received.
3-39 (e) Fees collected under this section shall be deposited to
3-40 the credit of the oil-field cleanup fund under Section 91.111.
3-41 Sec. 91.654. REJECTION OF APPLICATION. (a) The commission
3-42 may reject an application submitted under Section 91.653 if:
3-43 (1) a state or federal enforcement action is pending
3-44 that concerns the remediation of the contaminant described in the
3-45 application;
3-46 (2) a federal grant requires an enforcement action at
3-47 the site;
3-48 (3) the application is incomplete or inaccurate; or
3-49 (4) the site is ineligible under Section 91.652.
3-50 (b) If an application is rejected because it is incomplete
3-51 or inaccurate, the commission, not later than the 45th day after
3-52 receipt of the application, shall provide the person with a list of
3-53 all information needed to make the application complete or
3-54 accurate. A person may resubmit an application once without
3-55 submitting an additional application fee if the person resubmits
3-56 the application not later than the 45th day after the date the
3-57 commission issues notice that the application has been rejected.
3-58 (c) If the commission rejects the application, the
3-59 commission shall:
3-60 (1) notify the person that the application has been
3-61 rejected;
3-62 (2) explain the reasons for rejection of the
3-63 application; and
3-64 (3) inform the person that the commission will refund
3-65 half the person's application fee unless the person indicates a
3-66 desire to resubmit the application.
3-67 Sec. 91.655. VOLUNTARY CLEANUP AGREEMENT. (a) Before the
3-68 commission evaluates any plan or report detailing the remediation
3-69 goals and proposed methods of remediation, the person desiring to
4-1 participate in the voluntary cleanup program must enter into a
4-2 voluntary cleanup agreement that sets forth the terms and
4-3 conditions of the evaluation of the reports and the implementation
4-4 of work plans.
4-5 (b) A voluntary cleanup agreement must provide for:
4-6 (1) recovery by the commission of all reasonable
4-7 costs:
4-8 (A) incurred by the commission in review and
4-9 oversight of the person's work plan and reports and as a result of
4-10 the commission's field activities;
4-11 (B) attributable to the voluntary cleanup
4-12 agreement; and
4-13 (C) in excess of the amount of fees submitted by
4-14 the applicant under Section 91.653;
4-15 (2) a schedule of payments to the commission to be
4-16 made by the person for recovery of all commission costs fairly
4-17 attributable to the voluntary cleanup program, including direct and
4-18 indirect costs of overhead, salaries, equipment, and utilities and
4-19 legal, management, and support costs; and
4-20 (3) appropriate tasks, deliverables, and schedules.
4-21 (c) The voluntary cleanup agreement shall:
4-22 (1) identify all statutes and rules with which the
4-23 person must comply;
4-24 (2) describe any work plan or report to be submitted
4-25 for review by the commission, including a final report that
4-26 provides all information necessary to verify that all work
4-27 contemplated by the voluntary cleanup agreement has been completed;
4-28 (3) include a schedule for submitting the information
4-29 required by Subdivision (2); and
4-30 (4) state the technical standards to be applied in
4-31 evaluating the work plans and reports, with reference to the
4-32 proposed future land use to be achieved.
4-33 (d) If an agreement is not reached between a person desiring
4-34 to participate in the voluntary cleanup program and the commission
4-35 on or before the 30th day after good faith negotiations have begun:
4-36 (1) the person or the commission may withdraw from the
4-37 negotiations; and
4-38 (2) the commission retains the person's application
4-39 fee.
4-40 (e) The commission may not initiate an enforcement action
4-41 against a person who is in compliance with this section for the
4-42 contamination or release that is the subject of the voluntary
4-43 cleanup agreement or for activity that resulted in the
4-44 contamination or release.
4-45 Sec. 91.656. TERMINATION OF AGREEMENT; COST RECOVERY.
4-46 (a) The commission or the person in its sole discretion may
4-47 terminate the agreement by giving 15 days' advance written notice
4-48 to the other. Only those costs incurred or obligated by the
4-49 commission before notice of termination of the agreement are
4-50 recoverable under the agreement if the agreement is terminated.
4-51 (b) Termination of the agreement does not affect any right
4-52 the commission has under other law to recover costs.
4-53 (c) If the person does not pay to the commission the state's
4-54 costs associated with the voluntary cleanup before the 31st day
4-55 after the date the person receives notice that the costs are due
4-56 and owing, the attorney general, at the request of the commission,
4-57 shall bring an action in the name of the state in Travis County to
4-58 recover the amount owed and reasonable legal expenses, including
4-59 attorney's fees, witness costs, court costs, and deposition costs.
4-60 Sec. 91.657. VOLUNTARY CLEANUP WORK PLANS AND REPORTS.
4-61 (a) After signing a voluntary cleanup agreement, the person shall
4-62 prepare and submit the appropriate work plans and reports to the
4-63 commission.
4-64 (b) The commission shall review and evaluate the work plans
4-65 and reports for accuracy, quality, and completeness. The
4-66 commission may approve a voluntary cleanup work plan or report or,
4-67 if a work plan or report is not approved, notify the person
4-68 concerning additional information or commitments needed to obtain
4-69 approval.
5-1 (c) At any time during the evaluation of a work plan or
5-2 report, the commission may request the person to submit additional
5-3 or corrected information.
5-4 (d) After considering future land use, the commission may
5-5 approve work plans and reports submitted under this section that do
5-6 not require removal or remedy of all discharges, releases, and
5-7 threatened releases at a site if the partial response actions for
5-8 the property:
5-9 (1) will be completed in a manner that protects human
5-10 health and the environment;
5-11 (2) will not cause, contribute to, or exacerbate
5-12 discharges, releases, or threatened releases that are not required
5-13 to be removed or remedied under the work plan; and
5-14 (3) will not interfere with or substantially increase
5-15 the cost of response actions to address the remaining discharges,
5-16 releases, or threatened releases.
5-17 Sec. 91.658. CERTIFICATE OF COMPLETION. (a) If the
5-18 commission determines that a person has successfully completed a
5-19 voluntary cleanup approved under this subchapter, the commission
5-20 shall certify that the action has been completed by issuing the
5-21 person a certificate of completion.
5-22 (b) The certificate of completion must:
5-23 (1) acknowledge the protection from liability provided
5-24 by Section 91.659;
5-25 (2) indicate the proposed future land use; and
5-26 (3) include a legal description of the site and the
5-27 name of the site's surface and mineral owner and mineral operator
5-28 at the time the application to participate in the voluntary cleanup
5-29 program was filed.
5-30 (c) If the commission determines that the person has not
5-31 successfully completed a voluntary cleanup approved under this
5-32 subchapter, the commission shall notify the person who undertook
5-33 the voluntary cleanup and the current surface and mineral owner and
5-34 mineral operator of the site that is the subject of the cleanup of
5-35 this determination.
5-36 Sec. 91.659. PERSONS RELEASED FROM LIABILITY. (a) A person
5-37 who is not a responsible person under Section 91.113 at the time
5-38 the person applies to perform a voluntary cleanup:
5-39 (1) does not become a responsible person solely
5-40 because the person signs the application; and
5-41 (2) is released, on certification under Section
5-42 91.658, from all liability to the state for cleanup of areas of the
5-43 site covered by the certification, except for releases and
5-44 consequences that the person causes.
5-45 (b) A person who is not a responsible person under Section
5-46 91.113 at the time the commission issues a certificate of
5-47 completion under Section 91.658 is released, on issuance of the
5-48 certificate, from all liability to the state for cleanup of areas
5-49 of the site covered by the certificate, except for releases and
5-50 consequences that the person causes.
5-51 (c) The release from liability provided by this section does
5-52 not apply to a person who:
5-53 (1) caused or contributed to the contamination at the
5-54 site covered by the certificate;
5-55 (2) acquires a certificate of completion by fraud,
5-56 misrepresentation, or knowing failure to disclose material
5-57 information;
5-58 (3) knows at the time the person acquires an interest
5-59 in the site for which the certificate of completion was issued that
5-60 the certificate was acquired in a manner provided by Subdivision
5-61 (2); or
5-62 (4) changes land use from the use specified in the
5-63 certificate of completion if the new use may result in increased
5-64 risks to human health or the environment.
5-65 Sec. 91.660. PERMIT NOT REQUIRED. (a) A state or local
5-66 permit is not required for removal or remedial action conducted on
5-67 a site as part of a voluntary cleanup under this subchapter. A
5-68 person shall coordinate a voluntary cleanup with ongoing federal
5-69 and state hazardous waste programs.
6-1 (b) The commission by rule shall require that the person
6-2 conducting the voluntary cleanup comply with any federal or state
6-3 standard, requirement, criterion, or limitation to which the
6-4 remedial action would otherwise be subject if a permit were
6-5 required.
6-6 SECTION 4. This Act takes effect immediately if it receives
6-7 a vote of two-thirds of all the members elected to each house, as
6-8 provided by Section 39, Article III, Texas Constitution. If this
6-9 Act does not receive the vote necessary for immediate effect, this
6-10 Act takes effect September 1, 2001.
6-11 * * * * *