HBA-KMH H.B. 1823 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1823 By: Yarbrough Environmental Regulation 4/1/1999 Introduced BACKGROUND AND PURPOSE The Texas Legislature created a scrap tire program in 1991 to address a problem with illegally dumped tires and to create recycling and end-use markets. A $2 fee was paid at the point of retail purchase for each tire sold and it was used to pay processors to transport tires from tire dealers and shred the tires into chips. After several years of the tire program, few recycling and end-use markets had been created. The Texas Legislature later changed the law to include only those tire processors who were actually sending tire chips to an end-use market. In 1997, the Texas Legislature allowed the tire program to expire under sunset rules. H.B. 1823 establishes a comprehensive scrap tire program (program) and makes necessary conforming changes to other sections of the law. The program requires a person in the business of selling not for resale new tires for use on a motor vehicle and a person that sells not for resale a used vehicle with new tires mounted on each wheel. The program requires these merchants to provide an acknowledgment of the fee on invoices and receipts, and requires merchants to provide a report and remittance of the fee to the Texas Natural Resource Conservation Commission (TNRCC), unless the merchant collects only a minor amount of fees. The program also provides a payment schedule and grant program for recyclers, storage facilities, processors, and transporters who participate in the program. The program further provides for research into efficient end uses of tires and materials derived from tires. Additionally, the program provides for criminal, civil, and administrative penalties against a person who violates provisions of the program. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to comptroller of public accounts in SECTION 4 (Section 361.472, Health and Safety Code) and the Texas Natural Resource Conservation Commission in SECTION 4 (Sections 361.478, 361.479, 361.483, and 361.492, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 361.014(c), Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 2. Amends Sections 361.112(a), (b), (f), and (g), Health and Safety Code, as follows: (a) Makes conforming and nonsubstantive changes. (b) Makes conforming and nonsubstantive changes. (f) Exempts a person described by Section 361.472(b), as provided by this Act, that stores not more than 1,000 scrap tires for not more than 30 days from the prohibition provided by this subsection regarding storage. Makes conforming and nonsubstantive changes. (g) Makes conforming and nonsubstantive changes. SECTION 3. Amends Section 361.133(h), Health and Safety Code, to make conforming and nonsubstantive changes. SECTION 4. Amends Chapter 361, Health and Safety Code, by adding Subchapter P, as follows: SUBCHAPTER P. SCRAP TIRE PROGRAM Sec. 361.471. DEFINITIONS. Defines "end use," "good used tire," " mobile tire shredder," "reclamation," "scrap tire," "scrap tire end user," "scrap tire energy recovery facility," "scrap tire facility," "scrap tire generator," "scrap tire processor," "scrap tire recycler," "scrap tire storage facility," "scrap tire transporter," and "special authorization priority enforcement tires." Sec. 361.472. SCRAP TIRE RECYCLING FEES. (a) Defines "engaged in business in this state," "purchased for resale," "storage," and "use." (b) Requires a person in the business of selling not for resale new tires for use on a motor vehicle, and a person that sells not for resale a used vehicle with new tires mounted, to collect at the time and place of sale a scrap tire recycling fee for each tire as described in this subsection. (c) Prohibits a fee from being assessed for new tires mounted on a new vehicle as original equipment, a recapped or retreaded tire, a bicycle tire, or a solid industrial tire. (d) Requires the person to record the fee separately on an invoice or receipt for the sale of the tire and, requires the person in the time, manner, and form prescribed by the comptroller of public accounts (comptroller) to file a report with and to remit to the comptroller the amount of the fees collected during the preceding calendar month. (e) Authorizes the person required to collect the fee to retain one percent of each fee collected and exempts the person from filing a monthly report if the person collects less than $50 for a calendar month or less than $150 for a calendar quarter. (f) Requires a person exempt under Subsection (e) to file a quarterly report with and make a quarterly remittance to the comptroller. Requires the quarterly report and remittance to include fees collected during the preceding calendar quarter. Provides that the quarterly report and remittance are due not later than the 20th day of the month following the end of the calendar quarter. (g) Provides that an invoice or other record required by this section or rules of the comptroller must be maintained for at least four years after the date on which the invoice or record is prepared an be open for inspection by the comptroller at all reasonable times. (h) Requires the comptroller to adopt rules necessary for the administration, collection, reporting, and payment of the fees payable or collected under this section. (i) Imposes a scrap tire recycling fee on the storage, use, or consumption in this state of a tire at the same rate as provided by Subsection (b), except when the tire is purchased for resale. (j) Provides that a person storing, using, or consuming a tire in this state is liable for the scrap tire recycling fee and is responsible for reporting and paying the fee to the comptroller in the same manner as a person required to collect the fee. (k) Relieves the person storing, using, or consuming a tire from further liability if the person pays the fee to the appropriate person or receives a valid receipt. Sec. 361.473. REGISTRATION; FEE. (a) Requires a specified owner or operator to register with the Texas Natural Resource Conservation Commission (TNRCC) as provided by TNRCC rules. (b) Requires TNRCC to charge a fee for each registration application or registration renewal application. Prohibits the fee from exceeding $500. (c) Prohibits TNRCC from registering an applicant under this section or renewing or amending and applicant's registration unless the applicant has given TNRCC evidence of financial responsibility required by this subchapter. (d) Provides that Subsection (c) does not apply to a scrap tire generator, scrap tire transporter, or scrap tire end user (end user) that stores not more than a 30-day supply of whole scrap tires, scrap tire pieces, or material derived from tires. Sec. 361.474. ENFORCEMENT; PENALTIES. (a) Makes an offense punishable by a fine of five percent of the amount of the fee due and payable if a person fails to file a report required under Section 361.472 or remit fees due as prescribed. Increases the penalty if the report or remittance is not made before the 30th day after the due date. (b) Applies Chapter 101 and 111 through 113, Tax Code, and Sections 153.006 (Cancellation or Refusal of Permit)and 153.007 (Enforcement of Permit Cancellation, Supervision, or Refusal), Tax Code, to the administration, payment, collection, and enforcement of fees under this section equally as to taxes under Title 2 (State Taxation), Tax Code. Chapter101 (General Provisions), Chapter 111 (Collection Procedures), Chapter 112 (Taxpayer's Suits), Chapter 113 (Tax Liens). (c) Authorizes the comptroller to add a penalty of 75 percent of the amount of the fee, penalty, and interest due if failure to file the report or make remittance which it comes due is attributable to fraud or an intent to evade the application of this section or a rule made under this section or Chapter 111, Tax Code. (d) Requires the comptroller and TNRCC to jointly develop and implement an enforcement program to pursue the collection of delinquent fees assessed under Section 361.472. Sec. 361.475. DISPOSITION OF FEES AND PENALTIES. Requires the comptroller and TNRCC to deposit fees and penalties collected under this subchapter in the state treasury to the credit of the scrap tire recycling fund (fund). Sec. 361.476. SCRAP TIRE RECYCLING FUND. Provides that the fund is a special account in the general revenue fund. Requires TNRCC to administer the fund. Provides that the fund consists of money from any source intended to be used for the purposes of this subchapter. Prescribes the authorized uses of the fund. Authorizes TNRCC to employ a consultant to advise regarding, and assist in, the development and evaluation of end uses. Provides that a grant awarded for research and development to foster new end uses for scrap tires must reserve to the state a nonexclusive and transferable right to use or modify, or authorize another to use or modify, all intellectual property developed using the grant money. Requires registration fees to be allocated to TNRCC for its reasonable and necessary costs associated with registrations applied for and granted under this Section 361.473. Sets forth prohibited uses of the fund. Authorizes TNRCC to authorize payment to end users of scrap tires if the tires are generated in a part of the state that the executive director determines does not receive adequate collection services and present a threat to public health or safety or to the environment. Requires revenues from the fund to be deposited to the credit of the fund and authorizes them to be used only to pay for prescribed activities and costs under Subsection (d), (e), or (g). Sec. 361.477. PRIORITY ENFORCEMENT LIST. Requires TNRCC to identify and prepare an enforcement list of scrap tire sites that present an existing or potential threat to public health or safety or to the environment. Provides that the list must give priority for enforcement to sites for which TNRCC cannot locate a responsible party as described in this section. Sec. 361.478. PAYMENTS TO SCRAP TIRE END USERS. (a) Requires TNRCC to pay a end user each calendar quarter that meets the requirements of this section, Section 361.479, and rules adopted under those sections in the amounts and manner prescribed in this subsection. (b) Authorizes TNRCC to pay a person with whom TNRCC has contracted to remove and transport to an end user scrap tires and pieces from certain priority enforcement list sites. Requires TNRCC to determine an appropriate amount to pay for each ton of tires or pieces transported under each contract. Requires TNRCC to contract on a regional or site-specific basis in acting under this subsection. Requires contracts to be procured through a competitive bid process conducted in accordance with the provisions of Subtitle D (State Purchasing and General Services), Title 10, Government Code, that apply to contracts for services. (c) Prohibits TNRCC from authorizing a scrap tire energy recovery facility (facility) owner or operator or a scrap tire recycler (recycler) to burn, recycle, or store scrap tires or scrap tire pieces at a site until TNRCC determines that the facility owner or operator or the recycler are in full compliance with this subchapter. Sec. 361.479. PAYMENT PROCEDURES AND RESTRICTIONS; MANAGEMENT OF FUND. (a) Sets forth conditions for payment to an end user. (b) Requires TNRCC to allow application for payment, at the option of the applicant, to be made by use of a removable storage medium in an industry standard file format acceptable to TNRCC. (c) Authorizes TNRCC to pay an end user under Section 361.478 for scrap tires used for reclamation only if the scrap tires have been shredded or cut into pieces not larger than nine square inches. Provides that an end user that intends to use tire pieces for a reclamation project must comply with Subsection (a) and submit for TNRCC approval of a project plan that addresses the management of the tire pieces and includes design requirements to address fire prevention and protection of surface water and groundwater in order to receive payment. (d) Authorizes TNRCC to pay as an end user a scrap tire processor (processor) that processes scrap tire or pieces into crumb rubber if the processor sells the crumb rubber to another person that uses it as raw material in the production of an economically useful product or in an economically useful process. Provides that the processor must verify for TNRCC that the crumb rubber was used by the purchaser. Prohibits TNRCC from paying under Section 361.478 both the purchaser and processor of the same crumb rubber. (e) Prohibits a facility from storing more than a 30-day supply of whole scrap tires, shredded tire pieces, or material derived from tires until the facility is registered by TNRCC as a scrap tire energy recovery facility storage site (recovery storage site). Prohibits a recycler from storing more than a 30-day supply of whole scrap tires, shredded tire pieces, or material derived from tires until the recycler is registered by TNRCC as a scrap tire recycler storage site (recycler storage site). (f) Prohibits TNRCC from paying an end user for an end use of scrap tires, shredded tires or material derived from tires under Subsection (c) or (d) if: (1) TNRCC field office and central office program staff have not reviewed and approved for further processing by TNRCC all information submitted to TNRCC by the end user as required by Subsection (a) or rules adopted under this section: (2) TNRCC determines that the end user has not provided adequate financial assurance or adequate fire protection, or is causing an imminent danger to public health, safety, or welfare. (3) the end user does not have appropriate authorization from TNRCC to perform energy recovery activities at the end user's facility or to recycle the scrap tires, scrap tire pieces, or material derived from tires at the end user's recycling site. (4) the end user is not capable of performing scrap tire energy recovery at the end user's recovery facility or scrap tire recycling at the end user's recycling site; or (5) the scrap tires, shredded tires, or material derived from tires put to an end use are tires or derived from tires that any person has been paid to process or put to an end use under any program. (g) Requires TNRCC to adopt rules to manage payments from the fund to prevent depletion of the fund. (h) Sets forth the calculation methods to determine a 30-day supply of whole tires, shredded tires, and material derived from tires for purposes of this section. Sec. 361.480. OPERATION OF SCRAP TIRE PROCESSORS. Prohibits TNRCC from authorizing a processor to process or store scrap tires at a site until TNRCC determines that the processor and the site comply with this subchapter and rules adopted under this subchapter. Sec. 361.481. TRANSPORTATION OF STORED TIRES TO END USER. Requires a storage facility to send to an end user all the whole scrap tires or shredded pieces collected or processed by the facility in the calendar quarter not later than the 30th day after the end of each calendar quarter. Prohibits a storage facility from accepting additional whole scrap tires or shredded tire pieces if it violates this section. Makes this section applicable only to whole scrap tires collected from a scrap tire generator on or after September 1, 1999, and shredded tire pieces or material derived from tires that originated from scrap tires collected from a scrap tire generator on or after that date. Sec. 361.482. ADMINISTRATIVE EXPENSES. Prohibits the comptroller from spending more than an amount equal to two percent of the money that annually accrues to the fund for the program administration each fiscal year. Prohibits TNRCC from spending more than an amount equal to six percent of the money that annually accrues to the fund for the program administration each fiscal year. Sec. 361.483. EVIDENCE OF FINANCIAL RESPONSIBILITY. (a) Requires a person required to register with TNRCC under Section 361.473 to submit to TNRCC evidence of financial responsibility in an amount adequate to assure proper cleanup and closure of the facility. Provides that this section does not apply to a person described by Section 361.473(d). (b) Requires a facility that anticipates accepting for storage an amount that exceeds the facility's 30-day supply to submit to TNRCC evidence of financial responsibility sufficient to cover the amount accepted and maintain the evidence as provided by TNRCC rules. (c) Requires a facility under this section to submit certain estimates pertinent to financial responsibility required under this section. (d) Requires TNRCC to evaluate and authorizes TNRCC to amend an estimate submitted under this section. Requires TNRCC to determine for each facility the amount for which evidence of financial responsibility is required. Authorizes TNRCC to periodically audit a facility subject to this section and authorizes TNRCC to increase the amount for which the facility is required to provide evidence of financial responsibility. Authorizes TNRCC to suspend the registration of, or payments under Section 361.478 to, a facility that does not provide evidence of financial responsibility for an increased amount required under this section. (e) Sets forth acceptable evidence of financial responsibility. (f) Provides that a person that makes an initial request for payment from the fund must provide evidence of financial responsibility for the full amount determined under Subsection (d). (g) Sets forth the required forms of evidence of financial responsibility that must be provided with an application or amended application for registration under this subchapter. (h) Requires TNRCC, by rule, to provide a process for a facility's financial assurance to contribute to TNRCC's costs of cleanup and closure of, or the reasonable emergency response costs that might be incurred because of a catastrophic event at the person's other or subsidiary facility if the other facility is insufficiently covered. Provides that the rules must provide for a hearing before the financial assurance for a facility is authorized to be used to pay costs incurred for another facility. Sec. 361.484. LIEN. (a) Provides that remediation costs provided for under this subchapter as incurred by TNRCC constitute a lien in favor of the state on the property on which the site is located and any other real or personal property of the owner or operator located in the state. (b) Provides that the lien arises and attaches on the date a TNRCC affidavit is filed with the county clerk of the county in which the real property is located or, for personal property, in the county in which the principal place of business of the owner or operator is located. Requires the affidavit to state the name of the owner of the property, the amount owed, and the legal description of the property. Requires the county clerk to file an affidavit relating to real property in the real property records of the county in which the property is located. (c) Provides that the lien is subordinate to the rights of bona fide purchasers of or lien holder on the property. Sec. 361.485. NOTICE OF BANKRUPTCY. Requires a person described in this subsection to deliver to TNRCC's bankruptcy program in Austin written notice of bankruptcy that states the case number and the bankruptcy court in which the case is pending not later than the second day after the filing of a petition in bankruptcy by the person or for relief against the person, as well as any schedule or statement of affairs, amended schedule or statement of affairs, or operating report. Sec. 361.486. PROHIBITION ON OUT-OF-STATE TIRES; PENALTY. (a) Prohibits a facility owner or operator from claiming payment under Section 361.478 for burning scrap tires generated or collected outside of the state. Prohibits a recycler from applying for payment under Section 361.478 for recycling scrap tires generated or collected outside of the state. (b) Subjects a generator that TNRCC determines used a manifest and commission generator number to pass tires generated or collected outside of the state to an administrative, civil, or criminal enforcement action. (c) Subjects a processor, facility owner or operator, or recycler that TNRCC determines knowingly accepted scrap tires generated or collected outside of the state on manifests using a commission generator number to an administrative, civil, or criminal enforcement action. (d) Subjects a transporter that TNRCC determines has transported scrap tires generated or collected outside of the state using a commission-approved manifest or transporter number to an administrative, civil, or criminal enforcement action. Sec. 361.487. PROHIBITION ON LANDFILL DISPOSAL. Prohibits a person from disposing of used tires, scrap tires, or shredded tire pieces in a landfill or any type except as provided by this section and notwithstanding any other law. Authorizes TNRCC, by emergency order, to permit landfill disposal of a generator's scrap tires at the generator's expense if the generator cannot locate an end user for the scrap tires. Authorizes the order to apply to any number of scrap tire generators in an identified region. Sec. 361.488. PROHIBITION ON BURNING AND DUMPING; CRIMINAL PENALTY. Provides that it is a felony of the second degree if a person starts a fire with intent to burn, damage, or destroy a whole scrap tire, scrap tire pieces, or material derived from scrap tires. Provides an exception to the offense that the fire was started at a registered facility in the course of an energy recovery procedure authorized under this subchapter. Provides that it is a felony of the second degree if the person disposes of more than 100 whole scrap tires or 1,800 pounds of scarp tire pieces at a site that the commission has not authorized to accept whole scrap tires or tire pieces. Provides that the person is also subject to a civil penalty under Section 361.489. Sec. 361.489. CIVIL PENALTY. Provides a civil penalty of no less than $100 or more than $25,000 for each violation and each day of a continuing violation of a rule or a section under this subchapter. Authorizes the attorney general or the prosecuting attorney in the county in which the alleged violation occurs to bring suit to recover the civil penalty. Requires the penalty to be deposited to the credit of the fund. Sec. 361.490. INJUNCTION FOR CORRECTIVE ACTION. Authorizes the attorney general or the prosecuting attorney in the county in which the alleged violation occurs to bring suit for an injunction to compel the person to take corrective action. Authorizes the suit to be brought independently of or together with a suit under Section 361.489. Sec. 361.491. ADMINISTRATIVE PENALTY; ORDER FOR CORRECTIVE ACTION; SUSPENSION OF REGISTRATION. Authorizes TNRCC to assess against a violator of a provision, rule adopted, or order issued, under this subchapter an administrative penalty as provided by Subchapter C (Administrative Penalties), Chapter 7, Water Code, in an amount not to exceed $10,000 for each violation and for each day of a continuing violation or order the person to take a corrective action. Authorizes TNRCC to suspend a registration issued under this subchapter and payments under Section 361.478 to a facility on the initiation and for the duration of an enforcement proceeding for a violation of this subchapter or a rule adopted or order issued under this subchapter. Sec. 361.492. RULES. Authorizes TNRCC to adopt rules reasonably necessary to implement this subchapter. Sec. 361.493. REPORT. Requires TNRCC to report to the governor and legislature biennially as provided on the administration of the program and its effectiveness. Requires TNRCC to include TNRCC's recommendation on modification of the fees or the rate of payment provided in this subchapter. Sec. 361.494. PAYMENT TO OUT-OF-STATE RECYCLERS. Requires TNRCC, by rule, to provide for payments under Section 361.478 to recyclers located in another state. Provides that the rules must require the recycler to demonstrate that whole scrap tires, scrap tire pieces, and material derived from tires for which payment is being requested were generated and collected in this state, transported out of this state, and put to an approved end use by the person requesting payment. Sec. 361.495. IMMEDIATE REMOVAL AND REMEDIAL ACTION BY COMMISSION. (a) Authorizes TNRCC to undertake remediation of a site from money in the fund if after an investigation TNRCC finds conditions exist that cause or may cause imminent and substantial endangerment to public health and safety or the environment and make it prejudicial to public interest to delay action until the violator can be required to take corrective action. (b) Authorizes TNRCC to implement a remedial program for the site if the person ordered to eliminate an imminent danger to public safety or the environment fails to respond in adherence with the time specified in the order or extension provided by TNRCC. (c) Authorizes TNRCC to bring suit against a potentially responsible party to recover reasonable expenses incurred in implementing remedial action under this section. Requires TNRCC to employ the criteria described in this subsection to determine whether a person is a potentially responsible party for the purposes of this subsection. (d) Requires TNRCC to file suit to recover costs not later than one year after the date the remedial measures are completed. (e) Requires money collected in a suit to recover costs to be deposited to the credit of the fund. (f) Authorizes TNRCC, in the alternative, to file a lien against the property on which the site is located. Sets forth the contents of the lien. Provides that 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 located. Provides that the lien is subordinate to the rights of prior bona fide purchasers or lien holders on the property. Sec. 361.496. ACCESS TO PRIORITY ENFORCEMENT LIST SITE. Entitles a member of TNRCC, an employee, or agent of TNRCC to enter any public or private property at any reasonable time for the purpose of inspecting, investigating, or remediating any condition related to illegal dumping of scrap tires. Requires the executive director to give notice of intent to enter private property for those purposes by certified mail to the last known address indicated in the current county property records not less than 10 days before a TNRCC member, employee, or agent enters the property. Requires a TNRCC member, employee, or agent who enters private property to observe the establishment's rules concerning safety, internal security, and fire protection, and, if available, make a reasonable attempt to notify the management or person in charge of the entry and exhibit credentials. Sec. 361.497. INJUNCTION TO RESTRAIN VIOLATION. Authorizes the executive director to bring suit in a district court for injunctive relief to restrain the person from continuing a violation or threat of violation of this subchapter. Sec. 361.498. ACCEPTANCE OF USED OR SCRAP TIRES ON SALE OF TIRES. Requires a wholesale or retail tire dealer or a person in the business of selling new or good used tires for use on a vehicle or selling used vehicle parts to accept from customers, without charge, used or scrap tires of the type and in a quantity at least equal to the number of new or good used tires the customer purchases. Provides that this section does not require a person to accept a used tire from a customer that purchases a new or used vehicle on which the tires purchased are mounted. Sec. 361.4981. APPEAL. Requires TNRCC to establish a process by which a registered recycler or registered facility owner that is adversely affected by an agency decision affecting payment is authorized to appeal that decision to the executive director of the commission. Sec. 361.4982. COMPLIANCE AUDITS. Authorizes TNRCC biennially to perform a compliance audit of each person that receives payments under Section 361.478 to ensure responsibility and accountability regarding those payments. Requires the person audited to bear the costs of the audits. Authorizes TNRCC to adjust any future payments to a person to offset the refund amount if it is determined by TNRCC that a refund is due out of the fund. Sec. 361.4983. NEW OR EXPANDED SCRAP TIRE SITE, FACILITY, OR OPERATION. Provides conditions that must be fulfilled by a person seeking to establish or expand a site, facility, or operation required to be registered under Section 361.473. Sec. 361.4984. COMMUNITY SERVICE. Requires persons seeking payment from the fund to perform community service on an annual basis. Sets forth examples of community service. Provides that tires collected under this section are eligible for payment. SECTION 5. Amends Section 363.041, Health and Safety Code, to make a conforming change. SECTION 6. Amends Section 7.304, Water Code, to make conforming and nonsubstantive changes. SECTION 7. (a) Requires TNRCC, as soon as practicable after the effective date of this Act, to adopt rules necessary to implement Subchapter P, Chapter 361, Health and Safety Code, as added by this Act. (b) Authorizes TNRCC to make payments authorized by Sections 361.478 and 361.479, Health and Safety Code, as added by this Act, only for whole scrap tires, shredded tire pieces, or material derived from tires put to an end use after the effective date of this Act. (c) Makes application as to Section 361.488, Health and Safety Code, of this Act prospective. SECTION 8. Effective date: September 1, 1999. SECTION 9. Emergency clause.