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H.B. No. 2376
AN ACT
relating to the environmental regulation and remediation of dry
cleaning facilities; imposing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 374.001, Health and Safety Code, is
amended by amending Subdivisions (2), (6), and (7) to read as
follows:
(2) "Chlorinated dry cleaning solvent" means any dry
cleaning solvent that contains a compound that has a molecular
structure containing the element chlorine, including
perchloroethylene, also known as tetrachloroethylene.
(6) "Dry cleaning drop station" means a retail
commercial establishment described in category 812320 of the 2002
North American Industry Classification System as an establishment
the primary business of which is to act [that acts] as a collection
point for the drop-off and pick-up of garments or other fabrics that
are sent to a dry cleaning facility for processing.
(7) "Dry cleaning facility" means:
(A) a retail commercial establishment, described
in category 812320 of the 2002 North American Industry
Classification System, that operates, or has operated, in whole or
in part for the purpose of cleaning garments or other fabrics using
a process that involves any use of dry cleaning solvents;
(B) all contiguous land used in connection with
the establishment; and
(C) all structures and other appurtenances and
improvements located on the contiguous land and used in connection
with the establishment.
SECTION 2. Section 374.004, Health and Safety Code, is
amended by amending Subsection (b) and adding Subsection (d) to
read as follows:
(b) The advisory committee shall:
(1) review and comment on the methodology the
commission uses to rank contaminated sites under Section 374.154;
(2) review and comment on the report the commission
prepares each biennium under Section 374.056; and
(3) assist in the ongoing development of rules to
implement, administer, and enforce this chapter.
(d) A member of the advisory committee serves without
compensation but is entitled to be reimbursed by the commission for
actual and necessary travel expenses related to the performance of
committee duties.
SECTION 3. Section 374.051, Health and Safety Code, is
amended to read as follows:
Sec. 374.051. COMMISSION RULES AND STANDARDS. (a) The
commission, with the assistance of the advisory committee, shall
adopt rules necessary to administer and enforce this chapter.
Rules adopted under this section must be reasonably necessary:
(1) to preserve, protect, and maintain the water and
other natural resources of this state; and
(2) to provide for prompt and appropriate corrective
action of releases from dry cleaning facilities.
(b) The commission shall adopt rules that establish:
(1) performance standards for dry cleaning
facilities;
(2) requirements for the removal of chlorinated dry
cleaning solvents and wastes from dry cleaning facilities that are
to be closed by the owner to prevent future releases;
(3) criteria to be used in setting priorities for the
expenditure of money from the fund after consideration of:
(A) the benefit to be derived from corrective
action compared to the cost of implementing the corrective action;
(B) the degree to which human health and the
environment are affected by exposure to contamination;
(C) the present and reasonably foreseeable
future uses of affected surface water or groundwater;
(D) the effect that interim or immediate remedial
measures may have on future costs;
(E) the amount of money available for corrective
action in the fund; and
(F) any additional factors the commission
considers relevant; and
(4) criteria under which the commission may determine
the level at which corrective action is considered to be complete.
SECTION 4. Section 374.052(b), Health and Safety Code, is
amended to read as follows:
(b) The commission by rule shall require businesses
operating on or before January 1, 2004, whose annual gross receipts
are $150,000 or less to implement the performance standards adopted
under Sections 374.053(c)(3), (4), and (5) not later than January
1, 2015 [may exempt businesses whose annual gross receipts are
$200,000 or less from the requirements of Subsection (a) on the
basis of financial hardship].
SECTION 5. Sections 374.053(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) Rules adopted under this section must require:
(1) proper storage and disposal of wastes generated at
the facility that contain any quantity of chlorinated dry cleaning
solvent;
(2) compliance with emissions standards for hazardous
air pollutants for perchloroethylene dry cleaning facilities
adopted by the United States Environmental Protection Agency on
September 22, 1993;
(3) dikes or other containment structures to be:
(A) installed around each dry cleaning unit that
uses chlorinated dry cleaning solvents and each storage area for
chlorinated dry cleaning solvents or waste; and
(B) capable of containing any leak, spill, or
release of chlorinated dry cleaning solvent;
(4) secondary containment for all new or replaced dry
cleaning units, regardless of the solvent used;
(5) [(4)] all diked floor surfaces on which any
chlorinated dry cleaning solvent may leak, spill, or otherwise be
released to be made of epoxy, steel, or another material impervious
to chlorinated dry cleaning solvents; and
(6) [(5)] all chlorinated dry cleaning solvents to be
delivered to dry cleaning facilities by means of closed,
direct-coupled delivery systems, when those systems have become
generally available.
(d) Rules adopted under this section shall ensure that
wastewater from a dry cleaning unit using chlorinated dry cleaning
solvent or discharge of chlorinated dry cleaning solvent is not
discharged to a sanitary sewer, to a septic tank, or to water of
this state.
SECTION 6. Section 374.054, Health and Safety Code, is
amended to read as follows:
Sec. 374.054. COMPLETION CRITERIA. (a) In determining
whether a corrective action is complete, the commission shall
consider the factors listed under Section 374.051(b)(3) and:
(1) individual site characteristics, including
natural remediation processes;
(2) state water quality standards; and
(3) [whether deviation from state water quality
standards or from established criteria is appropriate, based on the
degree to which the desired remediation level is achievable and may
be reasonably and cost-effectively implemented; and
[(4)] additional factors the commission considers
relevant.
(b) A [In considering a deviation under Subsection (a)(3),
a] deviation from a state water quality standard may not result in
the application of a standard that is more stringent than the
applicable standard.
SECTION 7. Sections 374.101(b) and (d), Health and Safety
Code, are amended to read as follows:
(b) The fund consists of money from:
(1) proceeds from the charges and fees imposed by this
chapter;
(2) interest attributable to investment of money in
the fund;
(3) money recovered by the state under this chapter,
including any money paid:
(A) under an agreement with the commission; or
(B) as [civil] penalties; and
(4) money received by the commission in the form of
gifts, grants, reimbursements, or appropriations from any source
intended to be used for the purposes of this chapter.
(d) The [Before September 1, 2005, the] commission may
annually spend for administrative and start-up expenses incurred in
fulfilling its duties under this chapter an amount of money from the
fund not to exceed 15 percent of the amount of money credited to the
fund in the same fiscal year as the expenditures. [Beginning on
September 1, 2005, the commission may spend from the fund for those
expenses an amount not to exceed 10 percent of the amount of money
credited to the fund in the same fiscal year.]
SECTION 8. Section 374.102, Health and Safety Code, is
amended by amending Subsections (b) and (d) and by adding
Subsection (f) to read as follows:
(b) An annual registration fee, the total amount of which
may be divided into quarterly payments and billed on dates
established by the commission, is assessed as follows [Except for a
carbon dioxide facility, the registration must be accompanied by a
fee of]:
(1) [$250] for a dry cleaning facility that:
(A) has gross annual receipts of more than
$150,000, a fee of $2,500;
(B) has gross annual receipts of $150,000 or
less, a fee of $250;
(C) is designated as nonparticipating under
Section 374.104, a fee of $250; or
(D) depends entirely on revenue collected from an
associated dry cleaning drop station or drop stations, a fee in
accordance with Paragraphs (A) and (B) determined by the combined
gross annual receipts of the drop station or drop stations; or
(2) for a dry cleaning drop station that:
(A) has gross annual receipts of more than
$150,000, a fee of $750;
(B) has gross annual receipts of $150,000 or
less, a fee of $250; or
(C) is designated as nonparticipating under
Section 374.104, a fee of $125 [a dry cleaning facility with gross
annual receipts of $100,000 or less; or
[(B) a dry cleaning facility designated as
nonparticipating under Section 374.104;
[(2) $1,000 for a dry cleaning drop station, except
that the fee for a drop station is $250 if the drop station is not
owned by the owner of the dry cleaning facility; or
[(3) $2,500 for a dry cleaning facility with gross
annual receipts of more than $100,000].
(d) The owner of a dry cleaning facility or drop station
shall post the owner's registration number, in a manner prescribed
by the commission, in the public area of each of the owner's
operating dry cleaning facilities or drop stations.
(f) For each registration application, the commission shall
request that the comptroller verify whether the owner submitting
the registration application is in good standing with the state and
whether the owner's selection on the registration application of
the gross annual receipts classification for the dry cleaning
facility or drop station agrees with information reported to the
comptroller for the same tax or reporting year. Not later than the
third business day after the comptroller receives the verification
request, based in part on information supplied by the commission,
the comptroller shall report to the commission the owner's standing
and whether the owner's application information agrees with the
comptroller's information.
SECTION 9. Section 374.103, Health and Safety Code, is
amended by amending Subsections (a) and (b) and adding Subsection
(a-1) to read as follows:
(a) Except as provided by Subsection (b) and Section
374.104(d), a fee of $15 per gallon is imposed on the purchase of
the dry cleaning solvent perchloroethylene and $5 per gallon on the
purchase of any other dry cleaning solvent by an owner of a dry
cleaning facility. The person who distributes the solvent shall
collect the fees and shall pay to the commission the amount due, in
accordance with Subsection (a-1).
(a-1) A person who distributes dry cleaning solvent must
register as a distributor with the commission. A registered
distributor is entitled to withhold one percent of the amount of the
fee imposed by Subsection (a) for the distributor's administrative
expenses if the distributor pays [The person who distributes the
solvent shall pay] the remaining amount [fee] to the commission not
later than the date prescribed by the commission.
(b) Subsection (a) does not apply to a dry cleaning facility
designated as nonparticipating under Section 374.104 [:
[(1) an owner who has never used or allowed the use of
the dry cleaning solvent perchloroethylene at a dry cleaning
facility in this state; or
[(2) the purchase of the dry cleaning solvent carbon
dioxide].
SECTION 10. Section 374.104, Health and Safety Code, is
amended by amending Subsections (a)-(c), (e), and (f) and adding
Subsection (b-1) to read as follows:
(a) The owner of a dry cleaning facility or drop station may
file with the commission an option for the facility or drop station
not to participate in fund benefits.
(b) An option not to participate must be filed on or before
February 28, 2006 [January 1, 2004]. An owner may not file an
option not to participate after September 1, 2005, unless the owner
was:
(1) the owner of the dry cleaning facility or drop
station on January 1, 2004; and
(2) eligible to file the option on or before January 1,
2004, and inadvertently failed to file before that date.
(b-1) An owner of a dry cleaning facility who files an
option not to participate in accordance with Subsection (b) is
entitled to a credit against future registration fees under Section
374.102, Health and Safety Code, to the extent that a registration
fee paid in 2004 or 2005 exceeded the amount due for a
nonparticipating dry cleaning facility or drop station.
(c) The commission shall designate a dry cleaning facility
or drop station as nonparticipating if the owner:
(1) demonstrates, at the owner's expense and in
accordance with commission rules, that:
(A) the owner has never used or allowed the use of
the dry cleaning solvent perchloroethylene at any dry cleaning
facility or drop station in this state; and
(B) perchloroethylene has never been used at that
location;
(2) agrees[. The owner must also agree] that
perchloroethylene will not be used as a dry cleaning solvent at the
facility or drop station; and
(3) obtains the written consent of the person who owns
the real property on which the dry cleaning facility or drop station
is located.
(e) On payment of the registration fee, the commission shall
issue a specially marked registration document to the owner of a
nonparticipating facility or drop station. The owner shall post
the registration document in the public area of the facility or drop
station.
(f) After a dry cleaning facility or drop station is
designated as nonparticipating:
(1) the [owner of the] facility or drop station is not
eligible for any expenditures of money from the fund or other
benefits of participation under this chapter for that facility or
drop station; and
(2) that facility or drop station may not later become
a participating facility.
SECTION 11. Section 374.151, Health and Safety Code, is
amended to read as follows:
Sec. 374.151. RESPONSE TO RELEASE. (a) A person may not
knowingly [intentionally] allow a release.
(b) A person who knows of a release [over a 24-hour period]
of more than one quart of a chlorinated dry cleaning solvent or of
more than one gallon of a non-chlorinated dry cleaning solvent
shall:
(1) immediately contain and control the release; and
(2) notify the commission of the release before the
expiration of 24 [48] hours after the person learns of the release.
SECTION 12. Sections 374.154(b) and (c), Health and Safety
Code, are amended to read as follows:
(b) The following persons are eligible to apply for a site
to be ranked under Subsection (a):
(1) a person who is an owner of the dry cleaning
facility or drop station; and
(2) a person who is [and has been] an owner of the real
property on which the dry cleaning facility or drop station is or
was located; or
(3) a person who was the preceding owner of the real
property on which the dry cleaning facility or drop station is or
was located if the person entered into an agreement with the current
owner associated with the sale of the real property to the current
owner that requires the person to be responsible for any costs
associated with the clean up of contamination covered under this
chapter [for not less than five years as of the date the application
for ranking is submitted].
(c) If the applicant for ranking:
(1) is not an owner of the real property, the
application must include proof that an owner of the real property
has been notified of the application; [or]
(2) is an owner of the real property and the dry
cleaning facility or drop station is leased, the application must
include proof that a lessee has been notified of the application; or
(3) is a person described by Subsection (b)(3), the
application must include proof that the owner of the real property
and any lessee have been notified of the application.
SECTION 13. Section 374.202, Health and Safety Code, is
amended by adding Subsection (c) to read as follows:
(c) The commission, or the attorney general at the request
of the commission, may bring a civil action to recover any amounts
owed to the commission under this section. The commission or
attorney general, as applicable, may recover court costs, the costs
of preparing for litigation, and reasonable attorney's fees
incurred in an action brought under this section. An owner is
jointly and severally liable with any other defendant for the
entire amount of costs.
SECTION 14. Sections 374.203(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) Except for dry cleaning sites that require emergency
action under Section 374.152, the [The] commission may not use
money from the fund for corrective action at a contaminated dry
cleaning site unless an eligible person [:
[(1) the owner] applies for the ranking under Section
374.154 and is not otherwise ineligible for corrective action under
this chapter[; or
[(2) at the time corrective action is to begin, the
real property at the site has been under the same ownership for not
less than five years].
(d) The owner of a dry cleaning facility or drop station, or
other person who submits the application for ranking the facility
under Section 374.154, shall pay as a nonrefundable deductible the
first $5,000 of corrective action costs incurred because of a
release from the dry cleaning facility or drop station. The
commission may take corrective action regardless of whether the
commission obtains the deductible.
SECTION 15. Section 374.251, Health and Safety Code, is
amended to read as follows:
Sec. 374.251. REVIEW OF ORDERS [AND DECISIONS]. (a) A
person affected by an order [or decision] of the commission under
this chapter may, on or before the 15th day after the date of
service of the order [or decision], make a written request for a
hearing.
(b) A person affected by the final order [decision] in an
administrative hearing under Subsection (a) is entitled to judicial
review and may appeal the order [decision] on or before the 31st day
after the date on which the order [decision] was rendered. If the
state prevails in an appeal filed under this subsection, the state
is entitled to recover reasonable expenses incurred in obtaining
the judgment, including reasonable attorney's fees, costs involved
in preparing for the litigation, and witness fees.
SECTION 16. Section 374.252, Health and Safety Code, is
amended to read as follows:
Sec. 374.252. VIOLATIONS; PENALTIES. (a) A person is
subject to an administrative penalty under Section 7.0525, Water
Code, if the person:
(1) operates a dry cleaning facility or drop station
in violation of this chapter, rules adopted under this chapter, or
orders of the commission made under this chapter;
(2) prevents or hinders a properly identified
authorized officer, employee, or agent of the commission, or a
properly identified person under order of or contract with the
commission, from entering, inspecting, sampling, or responding to a
release as authorized by this chapter;
(3) knowingly makes any false material statement or
representation in any record, report, or other document filed,
maintained, or used for the purpose of compliance with this
chapter;
(4) knowingly destroys, alters, or conceals any record
that this chapter or rules adopted under this chapter require to be
maintained; or
(5) violates Section 374.151 or related commission
rules.
(b) If a registration fee is not paid on or before the 30th
day after the date the fee is due, the commission may assess a
penalty not to exceed $50 per day for each day the fee is not paid.
(c) If a registration application for an operating dry
cleaning facility or drop station is not filed with the commission
on or before the 30th day after the date the application is due, the
commission may assess a penalty not to exceed $50 per day for each
day the application is not filed.
(d) The commission may use normal commission procedures for
the collection of penalties and interest on a penalty imposed under
this section.
SECTION 17. Section 374.253(c), Health and Safety Code, is
amended to read as follows:
(c) The commission may continue a [A] corrective action that
has not progressed beyond the investigative or planning stage after
[on] September 1, 2021, to the extent money from the fund is
available [may not be paid for using money from the fund].
SECTION 18. Section 7.0525(b), Water Code, is amended to
read as follows:
(b) The amount of the penalty for a violation of Section
374.252(a)(3) [374.252(a)(1)], Health and Safety Code, may not
exceed $10,000 [$1,000].
SECTION 19. Sections 374.001(1), 374.052(c), 374.105,
374.156, and 374.201, Health and Safety Code, are repealed.
SECTION 20. (a) The changes in law affecting registration
fees for a dry cleaning facility as that term is defined by Section
374.001, Health and Safety Code, as amended by this Act, under
Sections 374.102 and 374.252, Health and Safety Code, as amended by
this Act, apply only to a registration fee payable on or after
September 1, 2005. A registration fee payable before September 1,
2005, is governed by the law as it existed on the date the fee became
due and that law is continued in effect for that purpose.
(b) The changes in law affecting registration fees for a dry
cleaning drop station as that term is defined by Section 374.001,
Health and Safety Code, as amended by this Act, apply only to a
registration fee that becomes payable on or after September 1,
2005.
(c) Notwithstanding Section 374.102, Health and Safety
Code, as added by Chapter 540, Acts of the 78th Legislature, Regular
Session, 2003, a registration fee that was payable before September
1, 2005, for a dry cleaning drop station as that term is defined by
Section 374.001, Health and Safety Code, as amended by this Act, is
payable not later than October 1, 2005, in the amount of $125 for
each dry cleaning drop station that is owned by the owner of a dry
cleaning facility that was registered and designated as
nonparticipating under Section 374.104, Health and Safety Code,
before the effective date of this Act.
(d) The change in law affecting fees collected under Section
374.103, Health and Safety Code, as amended by this Act, applies
only to a fee associated with the distribution of a dry cleaning
solvent on or after September 1, 2005. A fee collected under Section
374.103, Health and Safety Code, before September 1, 2005, is
governed by that section as it existed on the date the distribution
of the solvent occurred, and that law is continued in effect for
that purpose.
(e) The changes in law regarding allowing a release and
notifying the Texas Commission on Environmental Quality of a
release under Section 374.151, Health and Safety Code, as amended
by this Act, apply only to a release that occurs on or after the
effective date of this Act. A release that occurs before the
effective date of this Act is governed by the law as it existed on
the date of the release or the date a person learns of the release,
as applicable, and that law is continued in effect for that purpose.
(f) On or before February 28, 2006, the owner of a dry
cleaning facility that filed an option not to participate under
Section 374.104, Health and Safety Code, before the effective date
of this Act, must comply with Subsection (c)(3) of that section, as
added by this Act, to maintain nonparticipating status.
SECTION 21. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2376 was passed by the House on May
10, 2005, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 2376 on May 27, 2005, by a non-record
vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2376 was passed by the Senate, with
amendments, on May 24, 2005, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor