The 79th Regular Session of the Texas Legislature adjourned on May 30, 2005. During the 140 day session, legislators managed to pass and send over 1,300 of the over 5,000 bills filed during the session to Governor Perry. June 19th marked the deadline for the Governor to take action on the bills passed by the Legislature, of which only 19 were vetoed.
Legislative leaders considered dozens of bills that would have impacted the Texas solid waste industry. TxSWANA's legislative team worked on over 130 bills during the regular session of the legislature to attempt to protect members' interests. TxSWANA's legislative efforts this session focused more on defeating or amending bills that would have impacted the industry negatively than on seeking passage of new laws.
The new laws outlined below are but a sampling of the measures with impacts to the solid waste industry. This article attempts to highlight some of the more notable bills affecting the industry that emerged from the 79th Regular Session and made it past the Governor's desk, as well as some of those that did not.
Noteworthy Bills That Became Law
House Bill 580; Author: Smith, Wayne/Gallegos
Relating to the authority of a county to provide hazardous materials services.
Effective Date: 9/01/05
Counties have incurred uncompensated damages related to incidents involving hazardous material. HB 580 authorizes a county to provide hazardous materials services when hazardous materials have been leaked, spilled, released, or abandoned and charge the concerned party a reasonable fee.
House Bill 754; Author: Gattis/Fraser
Relating to transportation of loose materials.
Effective Date: 9/01/05
Current law requires a vehicle hauling "loose materials" to cover its load with a tarp or otherwise enclose the load. Loose materials are those that can be blown or spilled from a vehicle because of movement or exposure.
HB 754 amends Section 725.021, Transportation Code, to expand the prohibition to transport materials in violation of the Chapter to include the transportation of aggregates or refuse, regardless of whether such aggregates or refuse constitute "loose materials." Thus, such a load would be required to be covered and the covering firmly secured at the front and back, or must be completely enclosed by the load-carrying compartment. Importantly, however, the manner in which the bill is written seems to require aggregate loads to be covered, regardless of whether the materials are "loose," but seems to require loads of refuse only to be covered if the refuse is "loose material."
This bill amends Section 725.003, Transportation Code, to eliminate a subsequent fine escalator provision and simply increase the fine for any offense to not less than $25 or more than $500. Finally, the bill removes the prohibition in current law that someone not "load" such loose materials, and rather limits the prohibition to transporting such loose materials.
House Bill 1053; Author: Hope/Staples
Relating to the location of municipal solid waste landfills.
Effective Date: 6/18/05
This bill prohibits the issuance of a permit for a new Type 1 or Type 4 municipal solid waste landfill in Montgomery County, or the conversion of a Type 4 MSW landfill to a Type 1 MSW landfill in Montgomery County. The bill does not prohibit the areal expansion of an existing Type 1 MSW landfill. The bill only applies to permit applications received by TCEQ on or after the effective date of the Act.
House Bill 1287; Author: Leibowitz/Madla
Relating to county abatement of a public nuisance.
Effective Date: 9/01/05
The bill permits a county to bring suit to prohibit or control access to a premises where a large amount of uncontained refuse is located in a neighborhood, where hazardous visual obstructions exist, where refuse exists within 20 ft. of a utility line, or within the utility easement. The court may grant relief only if the county demonstrates that the owner or person responsible has not responded sufficiently to previous notices. The bill amends the notice requirements to require the violator to remove the nuisance within 31 days of receiving their first notice or within 10 days of receipt of any subsequent notice. The county is allowed to control access to the premises and the violator may submit a written request for a hearing within 31 days of receipt of the first notice or 10 days of receipt of a subsequent notice. The bill allows counties "to use any money available under other law for a cleanup or remediation of private property" to abate a nuisance.
House Bill 1609; Author: Chisum/Seliger
Relating to the allowed wastes and exemptions applicable to certain municipal solid waste landfill units in arid areas and to public meetings held by the Texas Commission on Environmental Quality on permit applications regarding hazardous or municipal solid waste or landfill development permits.
Effective Date: 9/01/05
This bill expands the small arid MSW landfill exemption. It provides that the landfill may dispose of less than 20 tons of construction or demolition waste per day in addition to the normal intake of municipal solid waste (up to 20 tons per day). The bill also allows TCEQ to grant a small MSW landfill unit an exemption from the requirements for groundwater protection design and operation and groundwater monitoring and corrective action if there is no evidence of groundwater contamination. It requires TCEQ to adopt rules to implement the bill in a way that does not violate federal law.
The bill also amends Section 361.0666, Health and Safety Code, to allow, rather than require, an application for a new facility that accepts municipal solid waste to hold a public meeting in the county in which the proposed facility is to be located.
The bill also amends Section 361.0791(a) and (b), Health and Safety Code, to make the public meeting requirement for an application for a new hazardous waste management facility, or a Class 3 modification or a major amendment to an existing hazardous waste permit, permissive rather than mandatory. A conforming change is made to Section 361.082(d). The same change is made for public meetings on applications for new municipal solid waste management facilities.
Also, the bill amends Subchapter R, Chapter 361, Health and Safety Code, regarding "Use of Land Over Municipal Solid Waste Landfills" to change the hearing requirement for permit applications to develop over closed landfills. Rather than a mandatory hearing, the TCEQ is required to hold a public meeting on request by a legislator from the area or if the executive director determines that there is substantial public interest in the proposed development. Otherwise, holding a public meeting is discretionary by TCEQ.
House Bill 1611; Author: Chisum/Armbrister
Relating to the use of money for the low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program.
Effective Date: 6/18/05
In 2001, the 77th Legislature, Regular Session, enacted HB 2134, to expand the mandatory inspection and maintenance program in the Dallas-Fort Worth and Houston-Galveston non-attainment areas. HB 2134 also introduced the Low-Income Vehicle Repair, Retrofit, and Accelerated Retirement Program (LIRAP). LIRAP offers financial assistance to low-income vehicle owners whose vehicles fail the emissions inspection test. Qualified participants receive a voucher for emissions repairs or assistance towards the cost of a replacement vehicle that meets emissions standards if they retire their old vehicle.
HB 1611 changes the method of administration of the low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program that is part of Chapter 382 of the Health & Safety Code (Clean Air Act). HB 1611 establishes that the administration of the vehicle repair program shall be governed by the Uniform Grant and Contract Management Act, which provides the framework for funds involved in the cooperation of local, state, and federal agencies. HB 1611 also adds provisions to Chapter 382 to address any unexpended positive balance that might exist for any participating county or the TCEQ as a result of the vehicle retirement program.
House Bill 2131; Author: Phillips/Estes
Relating to the demonstration of financial assurance by a local government in relation to the operation of a municipal solid waste landfill facility.
Effective Date: 5/24/05
HB 2131 is the TASWA financial assurance bill. Instead of having to use other financial vehicles, this bills allows a local government corporation created under Ch. 341, Transportation Code, or a conservation and reclamation district that owns or operates and MSW landfill facility to satisfy financial assurance requirements if it: (1) meets a TCEQ-approved financial test; and (2) demonstrates that its outstanding bonds, which are not secured by insurance, a letter of credit, or any other collateral or guarantee, have a current rating of AAA, AA, A or BBB. The demonstration must be made by the local government before its initial receipt of waste, or as soon as practicable if it is already in operation and receiving waste. Same as SB 1407.
House Bill 2466; Author: Swinford/Ellis
Relating to recycling market development.
Effective Date: 9/01/05
HB 2466 amends Section 361.423, Health and Safety Code, to eliminate the Texas Recycling Market Development Board (board) and establish joint coordination of recycling activities by the Texas Commission on Environmental Quality (TCEQ) and the Texas Building and Procurement Commission (TBPC) with the entities maintaining the functions and activities of the board. This bill also amends Section 2155.448(a), Government Code, to eliminate its reference to the board.
HB 2466 requires TCEQ and TBPC to utilize the Pollution Prevention Advisory Committee established in Section 361.0215, Health and Safety Code, in carrying out their recycling efforts.
House Bill 2481; Author: Bonnen
Relating to air contaminant emissions reductions, including the continuation and provisions of the Texas emissions reduction plan and the use of money currently dedicated to the Texas emissions reduction plan fund.
Effective Date: 9/01/05
HB 2481, commonly known as the "TERP Bill," provides funding for new technology that would be used for developing research and infrastructure designed to solve Texas' air quality concerns and, in that regard, makes a number of reallocations and adjustments in the administration and distribution of TERP funds. Importantly, HB 2481 extends the life of the TERP program and collection of fees under it until August 31, 2010.
In addition, this bill directs TCEQ to adopt and incorporate by reference EPA's finalized version of the Clean Air Interstate Rule (CAIR) and Clean Air Mercury Rule (CAMR). From the regulated community's perspective, incorporating EPA's rules by reference adds certainty to the TCEQ rulemaking process.
CAIR and CAMR are broad-sweeping air quality rules that are designed to work together to create a multi-pollutant strategy for reducing NOx, SO2, and Hg emissions through the country. The intent of HB 2481 was to clarify the application of these broad regulations, and thus take advantage of some of "known" federal requirements. HB 2481 incorporated the NOx, S02, and Hg trading provisions, by incorporating 40 CFR 96 Subparts AA through II; 40 CFR 96 Subparts AAA through IIII, and 40 CFR 60 Subpart HHHH into the Texas Health and Safety Code. The deadline for TCEQ rulemaking is September 2006 for the NOx and SO2 trading programs and October 2006 for the Hg trading program.
Incorporating the EPA model rules by reference means that Texas has an EPA-approved trading program for NOx, SO2, and Hg. Therefore, only limited TCEQ rulemaking is required, and agency resources should be conserved. Other advantages include permanent, no-cost emission allocations for units such as stationary coal-fired boilers or a stationary coal-fired combustion turbines. In addition, a special reserve of allocations was set aside for new units that began operating on or after January 1, 2001, and additional requirements for NOx allocations were listed, as well.
The bill also provides increased use of actual quantification of emissions reductions in order to realize benefits under the TERP program.
In sum, HB 2481 extended the TERP program and nailed down some important provisions regarding the implementation of CAIR and CAMR, which nonetheless still appear to be moving targets because of various lawsuits against the EPA by eastern states and industry groups.
Senate Bill 739; Author: Lucio/Chisum
Relating to the payment of certain administrative penalties assessed by the Texas Commission on Environmental Quality under an installment payment schedule.
Effective Date: 9/01/05
SB 739 allows the TCEQ the discretion to establish an installment payment plan for administrative penalties assessed under Ch. 7, Water Code, against a regulated entity after a hearing.
Senate Bill 784; Author: Shapleigh/Haggerty
Relating to the acceptance by the Texas Commission on Environmental Quality of certain emissions reductions in exchange for other emissions reductions.
Effective Date: 9/01/05
Senate Bill 784 amends Section 382.0172(c), Health and Safety Code, to allow the TCEQ greater discretion in its authorization of substitute emissions reductions achieved outside the United States to satisfy other emissions reduction requirements.
Senate Bill 1281; Author: Armbrister/Bonnen;
Relating to the regulation and permitting of a commercial industrial solid waste facility connected to a publicly owned treatment works facility.
Effective Date: 9/01/05
Currently, a loophole in state law allows a commercial industrial solid waste facility to accept for profit hazardous and nonhazardous industrial solid waste without being subject to the state's hazardous and nonhazardous industrial solid waste permitting requirements. The exemption is allowed if the facility discharges the wastewaters via pipeline to a publicly-owned treatment works facility. As a result, commercial industrial solid waste facilities that take advantage of this loophole in state law are not subject to the TCEQ financial assistance requirements, routine inspections, personnel training requirements, siting limitations, quality assurance requirements, closure and post-closure requirements, and do not need to conduct waste analyses on wastes coming into the facility.
SB 1281 prohibits a commercial industrial solid waste facility from receiving industrial solid waste for discharge into a publicly-owned treatment works facility without first obtaining a permit from TCEQ under Chapter 361, Heath and Safety Code, or Chapter 26, Water Code. This bill requires that the commercial industrial solid waste facilities comply with the state's hazardous and nonhazardous industrial solid waste permitting regulations, including obtaining adequate financial assurance, conducting waste analyses on waste received from third parties, allowing routine inspections of the facility, meeting personnel training requirements, abiding by siting limitations, complying with quality assurance requirements, and complying with closure and post-closure care requirements.
Senate Bill 1297; Author: Armbrister
Relating to the elements of the criminal offense discharging used oil into water in the state.
Effective Date: 9/01/05
SB 1297 as finally passed amends Chapter 7, Water Code, to clarify that a discharge of used oil into waters of the state at less than 15 ppm if the person is authorized to discharge stormwater under a general permit is not a violation.
Senate Bill 1298; Author: Armbrister/Talton;
Relating to restrictions on the transfer of a fuel tank to a metal recycling entity.
Effective Date: 9/01/05
SB 1298 allows the sale of fuel tanks, which have been completely drained and rendered unusable to a metal recycling entity, whether or not it is attached to a vehicle. The notice to be posted by the metal recycler is amended to prohibit the sale of fuel tanks that have not been completely drained and rendered unusable either separately or as contained in a vehicle, appliance or other such item. This change allows recycling operations that invest in fuel draining equipment to safely remove fuel from vehicles in a manner that more effectively protects against accidental fuel spills.
Senate Bill 1299; Author: Armbrister/Talton
Relating to an exception to the prohibition against commingling used oil with solid waste if the commingling is incident to the dismantling of scrap, used, or obsolete metals.
Effective Date: 9/01/05
Current Texas law prohibits commingling used oil with solid waste except for that which is unavoidable and incidental to the mechanical shredding of motor vehicles, appliances, or other items of scrap. Current statute does not give dismantling of a vehicle the same status as shredding the vehicle in this regard.
SB 1299 provides an exception to the prohibition on commingling used oil with solid waste for the dismantling of motor vehicles, appliances, and other items of scrap in addition to the existing exception for mechanical shredding, if such commingling is incident to and the unavoidable result of the dismantling.
Senate Bill 1740; Author: Staples/Bonnen
Relating to permits issued by the Texas Commission on Environmental Quality for certain construction activities.
Effective Date: 9/01/05
SB 1740 authorizes applicants seeking an air permit amendment to begin construction prior to a final decision by the TCEQ. It specifies that the applicant assumes responsibility for proceeding before receiving a final decision, and prohibits the TCEQ from considering construction efforts when evaluating the merits of the amendment application. This bill amends Section 382.05195, Health and Safety Code, by providing that if a standard permit for a facility requires a distance setback, or buffer from other property or structures as a condition of the permit, the determination of whether the distance, setback, or buffer is satisfied shall be made on the basis of conditions existing at the earlier of the date new construction, expansion, or modification of a facility begins; or the date any application or notice of intent is first filed with the commission to obtain approval for the construction or operation of the facility.
Bills Not Passed by the 79th Legislature
Noteworthy among those bills that were defeated in the legislative process are the following:
House Bill 86; Author: W. Smith
Relating to compliance histories andincentives to reward compliance performance by entities regulated by the Texas Commission on Environmental Quality. H.B. 86 would have provided more flexibility to the TCEQ in the use of compliance history by eliminating the requirement for a single uniform standard for all entities and eliminating the requirement for a ranking system. The bill also would have eliminated the requirement that TCEQ use notices of violation in compliance history.
House Bill 680; Author: Gattis
Relating to procedures for providing notice of intent to obtain certain permits issued by the Commission on Environmental Quality. The bill would have required applicants for certain permits issued by the TCEQ to provide notice by certified mail to adjacent land owners of their intent to obtain a permit, and prohibits publication of notice in newspapers on legal state or national holidays or on weekends preceding or following legal state or national holidays.
House Bill 786; Author: Hope
Relating to the authority of county governments to prohibit solid waste disposal. This bill would have taken away the county siting ordinance requirement to specifically designate where waste would be allowed, but then allows the TCEQ, if it believes the location in the permit application is appropriate for a landfill, to trump the county's ordinance if the county either: (1) does not designate where waste is allowed; or (2) designates only place(s) that the TCEQ believes are inappropriate.
House Bill 1780; Author: P. King
Relating to a notification requirement concerning certain permit applications for municipal solid waste facilities. HB 1780 would have amended Chapter 361, Health and Safety Code, by creating a new section regarding additional notice requirements for MSW facilities. It would have required TCEQ to require applicants for permits, amendments, or modifications (if notice of the modification is required by TCEQ rule) to mail notice to (1) each residential and business address within one mile of the facility; and (2) each owner of property within one mile of the facility as per appraisal district records. Applicants would have had to certify their compliance with this section, which creates a rebuttable presumption of compliance.
House Bill 2130; Author: Staples/Bonnen
Relating to the notification requirement concerning a permit application for applying Class B sludge on a land application unit. This bill would have increased the notice requirement for Class B sludge permits or amendments for notice by registered or certified mail for each owner of land in the area from within 1/4 mile of land application unit (current law) to within 1/2 mile of land application unit.
House Bill 2176; Author: Phillips
Relating to consideration by the Commission Environmental Quality of a landfill's impact on the transportation systems and economic development of the area in which the landfill is located or proposed to be located. House Bill 2176 would have amended 361.123, H&S Code, to require TCEQ, when reviewing an application to construct a landfill or of an application for an amendment to modify a landfill, to consider the impact of the landfill or modification on the transportation system in the county of the landfill and on the economic development of the area surrounding the landfill.
House Bill 3002; Author: Hegar
Relating to the revocation of certain waste-related permits issued by the Commission on Environmental Quality. This bill would have allowed TCEQ, after notice and hearing, to revoke a permit for a municipal solid waste landfill facility, transfer station, sludge disposal facility, or an injection well if: (1) the facility, station, or well has not begun to receive the waste materials for which the permit was issued on or before the sixth anniversary of the date the permit was issued; and (2) the commissioners court of the county in which the facility, station, or well is located adopts and forwards to the commission a resolution recommending the revocation of the permit.
House Bill 3273; Author: Strama
Relating to the denial of certain landfill permits by the Commission on Environmental Quality. HB 3273 would have required that the Commission may not issue a Type I landfill or areal expansion if (1) the proposed landfill or expansion is located above or in an area that contains municipal solid waste but does not meet federal regulations or is adjacent to a landfill facility that has applied for the areal expansion permit during the previous 36 months; or (2) if the commissioners of the county adopt a resolution recommending denial prior to final consideration of the application by the Commission.
The Texas Legislature reconvened on June 21, 2005, in Austin for a special called session on school finance and tax reform, which has been expanded to include eminent domain, tuition revenue bonds, judicial pay raises, telecommunications, and renewable energy. TxSWANA's legislative team will be monitoring the session for any solid waste related measures.
For complete text or further information on this or other legislation, please visit the Legislature's website: www.capitol.state.tx.us. For additional information on these or other legislative matters affecting the solid waste industry, please contact Brian Sledge at (512) 322-5839 or bsledge(at)lglawfirm.com.
This article was prepared by Brian L. Sledge and Sarah Hamm of the Austin-based law firm of Lloyd Gosselink Blevins Rochelle & Townsend, P.C. The legislative summaries above are intended only as short overviews for the convenience of the reader and should not be relied upon as legal advice or accurate depictions of the actual legislative measures. If you have any questions concerning legislative issues or would like additional information concerning this or any other related matter, please contact Brian at (512) 322-5839 or bsledge(at)lglawfirm.com, or Sarah at (512) 322-5824 or shamm(at)lglawfirm.com.
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