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A BILL TO BE ENTITLED
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AN ACT
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relating to the waste tire recycling program; providing for civil |
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penalties and injunctive relief. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter P, Chapter 361, Health and Safety |
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Code, is amended to read as follows: |
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SUBCHAPTER P. WASTE TIRE RECYCLING PROGRAM |
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Sec. 361.471. DEFINITIONS. In this subchapter: |
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(1) "Commission" means the Texas Water Commission or |
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its successor agencies. |
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(2) "Fund" means the waste tire recycling fund. |
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(3) "Green tire" means the casing form of a tire that |
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has not been cured and/or does not have a tread or marking of any |
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kind. |
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(4) "Manufacturer reject tire" means a tire rendered |
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defective in the manufacturing process whether determined |
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defective prior to or after consumer purchase. |
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(5) [(2)] "Mobile tire shredder" means equipment |
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mounted on wheels or skid-mounted and hauled from place to place to |
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split, shred, or quarter used or scrap tires. |
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(6) [(3)] "Scrap tire" has the meaning assigned by |
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Section 361.112. |
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(7) [(4)] "Waste tire facility" means a facility |
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registered [permitted] by the commission [department] under |
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Section 361.112 at which scrap tires are collected or deposited and |
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shredded to facilitate the future extraction of useful materials |
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for recycling, reuse, or energy recovery. |
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(8) [(5)] "Waste tire processor" means: |
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(A) a waste tire facility; or |
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(B) a mobile tire shredder that splits, shreds, |
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or quarters tires and deposits the split, shredded, or quartered |
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tires for eventual recycling, reuse, or energy recovery at: |
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(i) a waste tire storage facility |
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registered by the commission [department] under Section 361.112; or |
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(ii) a waste tire facility. |
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(9) [(6)] "Waste tire transporter" means a person who |
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collects and transports used or scrap tires or scrap tire pieces for |
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storage or disposal. |
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(10) [(7)] "Weighed tire" means a unit of weight for |
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shredded scrap tires that is equal to 18.7 pounds. |
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Sec. 361.4711. POTENTIALLY RESPONSIBLE PARTY. For purposes |
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of this subchapter, the commission shall employ the following three |
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criteria to determine whether a person is a potentially responsible |
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party: |
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(1) the person must be the property owner of record, |
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the site operator, or the depositor of the scrap tires on the site; |
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(2) the person must have benefitted financially from |
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the disposition of the scrap tires on the site; and |
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(3) the person must be financially capable of funding |
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total or partial site cleanup, based on the actual costs of cleanup |
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as determined by the commission. |
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Sec. 361.472. WASTE TIRE RECYCLING FEES. (a)(1) A |
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wholesale or retail tire dealer who sells or offers to sell new |
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tires not for resale shall collect at the time and place of sale a |
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waste tire recycling fee [of $2] for each new [automobile, van, bus,
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truck, trailer, semitrailer, truck tractor and semitrailer
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combination, or recreational vehicle] tire sold as follows: |
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(A) $2 for each tire with [that has] a rim |
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diameter equal to or greater than 12 inches but less than 17.5 [26] |
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inches; and |
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(B) $3.50 for each tire, except motorcycle tires, |
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with a rim diameter equal to or greater than 17.5 inches but less |
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than 25 inches. |
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(2) The sale of a tire as original equipment in the |
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manufacture of new vehicles is a sale for resale. |
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(3) No fee shall be assessed for bicycle tires. |
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(b) [A dealer required to collect a fee under this section
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may retain 2-1/2 cents from each fee the dealer collects. A dealer
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shall account for amounts retained under this subsection in the
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manner prescribed by the comptroller.
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[(c)] A dealer required to collect a fee under this section: |
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(1) shall list as a separate item on an invoice a fee |
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due under this section; and |
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(2) except as provided by Subsection (c) [(d)], on or |
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before the 20th day of the month following the end of each calendar |
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month and on a form and in the manner prescribed by the comptroller, |
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shall file a report with and shall remit to the comptroller the |
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amount of fees collected during the preceding calendar month. |
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(c) [(d)] A person required to collect a fee under this |
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section who collects less than $50 for a calendar month or less than |
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$150 for a calendar quarter is not required to file a monthly report |
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but shall file a quarterly report with and make a quarterly |
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remittance to the comptroller. The quarterly report and remittance |
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shall include fees collected during the preceding calendar quarter. |
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The report and remittance are due not later than the 20th day of the |
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month following the end of the calendar quarter. |
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(d) A person seeking registration for a fixed or mobile |
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processing facility or for a storage facility shall pay a fee of |
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$500 for each new, renewed, or amended registration application. |
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(e) An invoice or other record required by this section or |
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rules of the comptroller must be maintained for at least four years |
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after the date on which the invoice or record is prepared and be |
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open for inspection by the comptroller at all reasonable times. |
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(f) The comptroller shall adopt rules necessary for the |
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administration, collection, reporting, and payment of the fees |
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payable or collected under this section. |
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(g) A waste tire recycling fee is imposed on the storage, |
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use, or other consumption in this state of a new tire at the same |
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rate as provided by Subsection (a), except when purchased for the |
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purpose of resale. |
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(h) A person storing, using, or consuming a new tire in this |
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state is liable for the waste tire recycling fee as defined in this |
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section and is responsible for reporting and paying the fee to the |
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comptroller in the same manner as a person required to collect this |
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fee, as provided in Subsections (b)(2) and (c). |
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(i) A person storing, using, or consuming a new tire in this |
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state is not further liable for the waste tire recycling fee imposed |
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by Subsection (a) if the person pays the fee to a wholesaler or |
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retailer engaged in business in this state or another person |
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authorized by the comptroller to collect the fee and receives from |
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the wholesaler, retailer, or other person a purchaser's receipt. |
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Sec. 361.473. ENFORCEMENT; PENALTIES. (a) A person who |
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does not file a report as provided by Section 361.472 or who |
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possesses a fee collected or payable under that section and who does |
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not remit the fee to the comptroller at the time and in the manner |
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required by that section and rules of the comptroller shall pay a |
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penalty of five percent of the amount of the fee due and payable. If |
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the person does not file the report or pay the fee before the 30th |
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day after the date on which the fee or report is due, the person |
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shall pay a penalty of an additional five percent of the amount of |
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the fee due and payable. |
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(b) Chapters 101 and 111 through 113, Tax Code, and Sections |
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153.006 and 153.007, Tax Code, apply to the administration, |
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payment, collection, and enforcement of fees under this section in |
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the same manner that those chapters and sections apply to the |
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administration, payment, collection, and enforcement of taxes |
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under Title 2, Tax Code. |
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(c) The comptroller may add a penalty of 75 percent of the |
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amount of the fee, penalty, and interest due if failure to file the |
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report or pay the fee when it comes due is attributable to fraud or |
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an intent to evade the application of this section or a rule made |
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under this section or Chapter 111, Tax Code. |
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Sec. 361.474. DISPOSITION OF FEES AND PENALTIES. Fees and |
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penalties collected under this subchapter shall be deposited in the |
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state treasury to the credit of the waste tire recycling fund. |
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Sec. 361.475. WASTE TIRE RECYCLING FUND. (a) The waste |
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tire recycling fund is a special account in the general revenue |
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fund. |
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(b) The commission [department] shall administer the fund. |
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(c) The fund consists of fees and penalties collected under |
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this subchapter, interest on money in the fund, and money from |
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gifts, grants, or any other source intended to be used for the |
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purposes of this subchapter. |
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(d) The fund may be used only to pay: |
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(1) waste tire processors that meet the requirements |
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for payment under Section 361.477 and rules adopted under that |
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section; |
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(2) the commission's [department's] reasonable and |
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necessary administrative costs of performing its duties under this |
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subchapter in an amount not to exceed six percent of the money |
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annually accruing to the fund; however, the registration fees |
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received under Section 361.472(d) shall be allocated to the |
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commission for its reasonable and necessary costs associated with |
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reviewing and issuing fixed and mobile processing applications and |
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storage site applications; and |
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(3) the comptroller's reasonable and necessary |
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administrative costs of performing the comptroller's duties under |
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this subchapter in an amount not to exceed two percent of the money |
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annually accruing to the fund. |
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(e) The fund may not be used to reimburse shredding of: |
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(1) innertubes; |
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(2) scrap rubber products; |
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(3) green tires; |
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(4) industrial solid waste, excluding waste tires; |
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(5) oversized tires, as defined by commission rule, |
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except those oversized tires collected from priority enforcement |
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list sites; or |
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(6) manufacturer reject tires. |
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(f) The commission may classify special authorization |
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tires, as defined by commission rule, as priority enforcement list |
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tires. |
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(g) The fund shall maintain a balance of not less than |
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$500,000. |
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(h) If the commission has reason to believe that the fund |
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balance will fall below $500,000, the commission may: |
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(1) suspend the requirement to reimburse priority |
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enforcement list tires shredded in excess of the minimum percentage |
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identified in Section 361.477(b)(2)(B); or |
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(2) limit the number of waste tires for which a |
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processor will be reimbursed. |
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(i) The revenues obtained from the waste tire recycling fees |
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shall be deposited into the waste tire recycling fund which is a |
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special account in the general revenue fund and may only be used to |
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pay for those activities and costs identified in Subsection (d). |
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Sec. 361.476. PRIORITY ENFORCEMENT LIST. The commission |
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[department] shall identify scrap [unauthorized] tire dumps that |
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present an existing or potential threat to public health and safety |
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or to the environment and shall prepare an enforcement list of those |
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dumps, giving priority to dumps for which a responsible party |
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cannot be located. |
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Sec. 361.477. PAYMENTS TO WASTE TIRE PROCESSORS. (a)(1) |
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The commission [department] each month shall pay a waste tire |
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processor that shreds scrap tires and meets the requirements of |
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this section and rules adopted under this section an amount equal to |
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85 cents for each weighed tire shredded by the processor during the |
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preceding calendar month. |
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(2) Should the total number of whole used or scrap |
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tires or scrap tire pieces contained in illegal waste tire sites as |
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identified on the priority enforcement list fall below 500,000 |
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tires, Subdivision (4) shall be implemented. The 500,000 tire limit |
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does not include those tires contained in sites under commission |
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enforcement or attorney general action. |
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(3) Should the number of whole used or scrap tires or |
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scrap tire pieces contained in illegal waste tire sites as |
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identified on the priority enforcement list exceed 500,000 tires |
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for greater than 30 consecutive days, the priority enforcement list |
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requirements contained in Subsection (b)(2)(B) shall become |
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effective. |
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(4) The commission may pay more than 85 cents per |
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weighed tire to processors with whom the commission has contracted |
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to remove and shred scrap tires and scrap tire pieces from priority |
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enforcement list sites. The commission may contract with processors |
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on a regional or site-specific basis. The contracts shall be |
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procured through a competitive bid process conducted in accordance |
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with the provisions of the State Purchasing and General Services |
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Act (Article 601b, Vernon's Texas Civil Statutes) applicable to |
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contracts for services. The commission may elect not to enter into |
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contracts pursuant to this subdivision. The contracts, if any, may |
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be for the removal and shredding of tires only from priority |
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enforcement list sites. The provisions of this subdivision become |
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effective only when Subdivision (2) is implemented. |
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(b) A waste tire processor that desires to receive payment |
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under this section for tires shredded by the processor during a |
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calendar month must: |
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(1) apply to the commission [department] in accordance |
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with forms prescribed by the commission [department]; |
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(2) demonstrate as required by rules adopted under |
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this section that: |
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(A) all tires for which payment is sought have |
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been shredded to a particle size not larger than nine square inches; |
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[and] |
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(B) not less than 15 [25] percent and not more |
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than 30 percent of those tires were collected from scrap tire sites |
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[dumps] listed on the commission's [department's] priority |
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enforcement list; and |
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(C) not less than 25 percent of those tires were |
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collected from tire generators; |
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(3) on and after January 1, 1995, prior to |
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reimbursement demonstrate to the commission that shredded scrap |
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tire pieces for which reimbursement is sought were delivered to a |
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person that either recycles or reuses the shredded scrap tires or |
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utilizes the shredded scrap tires for energy recovery; |
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(4) provide any other information the commission |
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[department] determines is needed to accomplish the purposes of |
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this subchapter; [and] |
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(5) [(4)] demonstrate that energy recovery activities |
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in the State of Texas are in compliance with applicable air emission |
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control rules and standards as adopted by the Texas Air Control |
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Board; and |
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(6) provide financial assurance deemed adequate by the |
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commission, which assurance shall correspond to the payment |
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appropriate for the number of scrap tires the processor anticipates |
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shredding or the waste tire storage site owner or operator |
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anticipates accepting for storage in the next calendar month. |
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(c) Implementation of Subsection (a)(2) eliminates the |
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requirement for compliance with the provisions of Subsection |
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(b)(2)(B) for the duration that Subsection (a)(2) is in effect. |
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(d) A waste tire processor that in any month exceeds the [25
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percent] minimum requirement of Subsection (b)(2) shall receive a |
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credit for the amount in excess of the requirement [25 percent] that |
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may be used to meet the minimum requirement during a later month. |
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The commission [board of health] by rule may prescribe the method of |
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applying credits accrued under this subsection. |
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(e) [(d)] The commission [board of health] by rule shall |
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adopt application and payment procedures and requirements to |
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implement this section. |
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(f) [(e)] A waste tire processor shall not be authorized to |
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process or store scrap tires at those sites at which the processor |
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is processing or storing or intends to process or store the scrap |
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tires until the commission has determined that the processor is in |
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compliance with all applicable requirements [permitted Type VIII
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tire monofill approved under board of health rules may qualify as a
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waste tire processor and is eligible to receive payment under this
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section if the Type VIII tire monofill complies with all the
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provisions of this subchapter and rules of the board of health]. |
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(g) Notwithstanding Subsection (b)(3), the commission may |
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reimburse for shredded scrap tires for which a processor has a |
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binding agreement to deliver the shredded tires to a person to |
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recycle, reuse, or utilize for energy recovery within 180 days from |
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the date of reimbursement. |
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Sec. 361.478. EVALUATION OF RECYCLING AND ENERGY RECOVERY |
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ACTIVITIES; CERTIFICATION FOR PAYMENT. (a) Beginning January |
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[June] 1, 1995, and every two [five] years after that date, the |
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commission [department] shall evaluate, according to standards |
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adopted by commission [board of health] rule, the recycling and |
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energy recovery activities of each waste tire processor that |
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received payment from the waste tire recycling fund [under Section
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361.477 during the preceding five years]. |
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(b) After evaluation, the commission [department] shall |
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certify as eligible for payment under this subchapter [Section
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361.477] during the next two [five] years a waste tire processor |
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that has conducted or provided for recycling of or energy recovery |
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from tires for which the processor received payment during the |
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preceding period of operation [five years]. |
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(c) A waste tire processor that receives payment under this |
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subchapter [Section 361.477] during any two-year [five-year] |
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period and that after evaluation is not certified by the commission |
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[department] under Subsection (b) as eligible for payment under |
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this subchapter [Section 361.477] may not receive payment under |
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this subchapter [that section] for the next two [five] years. |
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(d) The commission [board of health] by rule may establish a |
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procedure by which a waste tire processor can reestablish |
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eligibility for payment under this subchapter [Section 361.477]. |
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Sec. 361.479. EVIDENCE OF FINANCIAL RESPONSIBILITY. (a) A |
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waste tire storage facility registered by the commission |
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[department] under Section 361.112 or a waste tire facility that |
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accepts shredded scrap tires for storage or for processing for |
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recycling, reuse, or energy recovery shall submit to the commission |
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[department] evidence of financial responsibility in an amount |
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adequate to assure proper cleanup and [or] closure of the facility. |
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(b) A facility subject to Subsection (a) shall submit to the |
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commission [department] an estimate of the total amount of shredded |
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scrap tires or scrap tire pieces measured by weighed tire that the |
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facility will store or process and the estimated cost, using that |
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total amount, of cleaning up and [or] closing the facility. |
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(c) The commission [department] shall evaluate and may |
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amend an estimate submitted under Subsection (b) and [by order] |
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shall determine for each facility the amount for which evidence of |
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financial responsibility is required. |
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(d) Evidence of financial responsibility may be in the form |
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of a performance bond or[,] a letter of credit from a recognized |
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financial institution[, a trust fund, or insurance] for a privately |
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owned facility, or a resolution by the commissioners court or the |
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city council, as appropriate, for a publicly owned facility. On or |
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after September 1, 1993, persons requesting new processing |
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registration shall not be allowed to provide evidence of financial |
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responsibility through a trust agreement or insurance. |
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Sec. 361.480. TIRE COLLECTION FEE PROHIBITED. A waste tire |
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transporter or mobile tire shredder may not charge a fee to a |
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wholesale or retail dealer for collecting for delivery to a waste |
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tire facility or for collecting and shredding [used or] scrap tires |
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accepted for temporary storage by the dealer from purchasers of new |
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tires. |
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Sec. 361.481. PROHIBITION ON OUT-OF-STATE TIRES. A waste |
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tire processor may not claim payment under Section 361.477 for |
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shredding out-of-state tires. |
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Sec. 361.482. PROHIBITION ON DISPOSAL OF SHREDDED TIRES IN |
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LANDFILL. A waste tire processor may not dispose of shredded scrap |
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tires in a landfill if the processor has received payment under |
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Section 361.477 for the shredding of such tires. |
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Sec. 361.483. CIVIL PENALTY. (a) A person who violates any |
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section of this subchapter [Section 361.481 or 361.482] is liable |
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for an administrative [a civil] penalty of up to $10,000 per day and |
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corrective action for each violation and is liable for a civil |
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penalty of up to $25,000 and corrective action for each violation. |
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(b) The attorney general or the prosecuting attorney in the |
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county in which the alleged violation occurs may bring suit to |
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recover the civil penalty imposed under Subsection (a). |
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(c) The commission may bring suit to mandate the corrective |
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action required or to recover administrative penalties imposed |
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under Subsection (a). |
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(d) An administrative or civil [A] penalty collected under |
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this section shall be deposited to the credit of the waste tire |
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recycling fund. |
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Sec. 361.484. RULES. The commission [board of health] may |
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adopt rules reasonably necessary to implement this subchapter. |
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Sec. 361.485. REPORT. Not later than February 1 of each |
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odd-numbered year, the commission [department] shall report to the |
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governor and the legislature on the administration of the program |
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established under this subchapter and its effectiveness in cleaning |
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up existing scrap tire dumps and in preventing new scrap tire dumps. |
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Sec. 361.486. RECYCLING EFFORTS. (a) On and after January |
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1, 1995, all new, amended, and renewal processing registrations |
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shall require the processor to identify those persons that will |
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accept the processor's shredded scrap tire pieces either to recycle |
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or reuse the shredded scrap tires or to utilize the shredded scrap |
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tires for energy recovery. The commission shall reimburse for only |
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those shredded tires which the commission determines are committed |
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to a legitimate end user. |
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(b) The commission shall have the authority to review and |
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approve or disapprove the use of the person identified by the |
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processor to recycle or reuse the shredded scrap tires or utilize |
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the shredded scrap tires for energy recovery unless that person has |
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already been authorized by the state to use tire-derived fuel for |
|
energy recovery in which case that person is only required to |
|
register pursuant to Subsection (e). |
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(c) The commission shall adopt a rule to define recycling |
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for purposes of this subchapter. |
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(d) On January 1, 1994, and on a semiannual basis |
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thereafter, registered processors and storage site owners and |
|
operators shall report their recycling, reuse, and energy recovery |
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activities to the commission. The commission by rule shall |
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prescribe the form and other requirements of the report. |
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(e) All persons that recycle or recover the energy from |
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whole used or scrap tires or shredded tire pieces shall register |
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with the commission in accordance with the rules and on the forms |
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prescribed by the commission. |
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Sec. 361.487. REIMBURSEMENT RESTRICTIONS. (a) A processor |
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seeking reimbursement under Section 361.477 shall process and store |
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the scrap tires or scrap tire pieces within the state. |
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(b) Scrap tires and scrap tire pieces generated in Texas, |
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removed from Texas, and subsequently reintroduced to Texas shall be |
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defined as out-of-state scrap tires for the purposes of this |
|
subchapter. |
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(c) Scrap tires and scrap tire pieces which were shredded |
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and reimbursed shall not be disposed of in a Type VIII-S tire |
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monofill. |
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Sec. 361.488. GENERATOR CHARGE PROHIBITED. A scrap tire |
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generator shall not receive remuneration in exchange for scrap |
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tires. |
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Sec. 361.489. IMMEDIATE REMOVAL AND REMEDIAL ACTION BY THE |
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COMMISSION. (a) If after investigation the commission finds that |
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there exists a situation caused by the illegal dumping of scrap |
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tires that is causing or may cause imminent and substantial |
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endangerment to the public health and safety or the environment and |
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that the immediacy of the situation makes it prejudicial to the |
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public interest to delay action until an administrative order can |
|
be issued to potentially responsible parties or until a judgment |
|
can be entered in an appeal of an administrative order, the |
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commission may, with the funds available to the commission from the |
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waste tire recycling fund, undertake immediate remediation of the |
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site. |
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(b) If a person ordered to eliminate an imminent and |
|
substantial danger to the public health and safety or the |
|
environment has failed to do so within the time limits specified in |
|
the order or any extension of time approved by the commission, the |
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commission may implement a remedial program for the site. |
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(c) The commission may recover against all responsible |
|
parties reasonable expenses for undertaking immediate removal |
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under Subsection (a) or for implementing a remedial action order |
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under Subsection (b). |
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(d) The commission shall file the cost recovery action no |
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later than one year after immediate-removal or remedial-action |
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measures are completed. |
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(e) Money collected in a cost recovery action shall be |
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deposited to the credit of the waste tire recycling fund. |
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(f) The commission, in lieu of recovery costs incurred under |
|
this section, may file a lien against the property on which the site |
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is located. The lien shall state the name of the owner of the |
|
property, the amount owed, and the legal description of the |
|
property. The lien arises and attaches on the date the lien is filed |
|
in the real property records of the county in which the property is |
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located. The lien is subordinate to the rights of prior bona fide |
|
purchasers and lienholders on the property. |
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Sec. 361.490. PRIORITY ENFORCEMENT LIST SITE ACCESS. (a) |
|
The members of the commission, employees and agents of the |
|
commission, and authorized processors and their subcontractors are |
|
entitled to enter any public or private property at any reasonable |
|
time for the purpose of inspecting, investigating, or remediating |
|
any conditions relating to illegal scrap-tire dumping. Notice of |
|
intent to enter private property for such purposes shall be given by |
|
the executive director by certified mail to the last known address |
|
indicated in the current county property records at least 10 days |
|
before commission members, commission employees and agents, or |
|
authorized processors and their subcontractors may enter the |
|
property. Commission members, commission employees and agents, and |
|
authorized processors and their subcontractors who, acting under |
|
this authority, enter private property shall observe the |
|
establishment's rules concerning safety, internal security, and |
|
fire protection and, if the property has management in residence, |
|
shall make a reasonable attempt to notify the management or the |
|
person in charge of their presence and shall exhibit credentials. |
|
(b) Authorized processors and their subcontractors shall |
|
not be considered agents of the State of Texas and are solely |
|
responsible for their actions. |
|
(c) Whenever it appears that a person has violated or is |
|
violating or is threatening to violate any provision of this |
|
subchapter or any rule, permit, or order of the commission, the |
|
executive director may have a civil suit instituted in district |
|
court for injunctive relief to restrain the person from continuing |
|
the violation or threat of violation. |
|
Sec. 361.491. NEW TIRE WHOLESALERS AND RETAILERS. Any |
|
person selling new tires as described in Section 361.472(a) shall |
|
accept from customers, without charge, used scrap tires of the type |
|
and in a quantity at least equal to the number of new tires |
|
purchased, if offered by customers. |
|
Sec. 361.492. CONFIDENTIALITY. Information submitted to |
|
the commission pursuant to Section 361.477(b)(3) or (g) or any |
|
reports generated by the commission based on such information shall |
|
be deemed confidential by law as commercial or financial |
|
information. |
|
Sec. 361.493. APPEAL. The commission shall establish a |
|
process by which a registered waste tire processor who is adversely |
|
affected by an agency decision affecting reimbursement may appeal |
|
that decision to the executive director or the commission. |
|
SECTION 2. The importance of this legislation and the |
|
crowded condition of the calendars in both houses create an |
|
emergency and an imperative public necessity that the |
|
constitutional rule requiring bills to be read on three several |
|
days in each house be suspended, and this rule is hereby suspended, |
|
and that this Act take effect and be in force from and after its |
|
passage, and it is so enacted. |