HBA-MPM H.B. 3483 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3483 By: Kuempel Environmental Regulation 3/30/1999 Introduced BACKGROUND AND PURPOSE In 1991, the Texas Legislature created a scrap tire management program, the intent of which was to control the flow of the disposal of scrap tires by eliminating the economic incentive of illegally dumping the tires. This program was subject to Sunset review and was repealed under the Sunset provision. Texas continues to generate millions of scrap tires each year, many of which are disposed through illegal dumping. H.B. 3483 provides a program for the proper disposal and recycling of scrap tires and outlines the responsibilities and procedures allowing for the management of scrap tires. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the department responsible for the implementation of this Act in SECTION 3 and SECTION 8 and to the comptroller of public accounts in SECTION 9 of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Requires this article to be known at the Scrap Tire Recycling Management Act. SECTION 2. Defines for the purpose of this Act, the following terms: "business," "commission," "generators or dealers," "end users," "enforcement scrap tires," "enforcement scrap tire site," "land reclamation projects using shredded tires," "manufacture reject tire," "motor vehicle," "new tire," "person," "place of business," "process," "processed tire," "purchaser," "recycling," "scrap tire," "scrap tire collection site," "scrap tire facility," "scrap tire storage facility," "scrap tire transporter," and "tire." SECTION 3. GENERAL RULEMAKING AUTHORITY. (a) Authorizes the department responsible for the implementation of this act (commission) to adopt certain rules for scrap tire management in order to adequately control disease vectors and other public health nuisances associated with transportation, storage, processing, and disposal of scrap tires in Texas. (b) Prohibits a person from accumulating or storing more than 100 scrap tires exposed to the elements at any site unless the person applies for and receives a tire storage registration from the commission under the requirements of the rules of the commission. Makes certain exceptions for certain persons. (c) Prohibits a scrap tire collection site from operating in this state except under a registration obtained from the commission under its adopted rules. (d) Requires any site where more than 100 tires are deposited, placed, or stored subject to the elements, whether registered or not registered, or publicly or privately owned, and which does not receive effective control of disease vectors to be considered a public nuisance. Requires the site to be subject to abatement procedures. (e) Prohibits a person from collecting or processing scrap tires in this state under this Act until the person makes application for and receives a scrap tire facility registration form from the commission. (f) Provides that it is unlawful for any person to dispose of whole tires at a landfill in this state or at a site not permitted or registered by the commission to receive scrap tires. (g) Requires all persons, corporations, or public entities disposing of scrap tires regulated by this Act to do so only at a scrap tire facility that is registered by the commission and which engages in tire processing for energy recovery or recycling. (h) Authorizes the executive director, if having determined that the adopted rules are burdensome to industry or overly interfering with commerce, to alter any adopted rule in order to ensure that the goals of this Act are achieved. SECTION 4. GENERATORS OR DEALERS OF SCRAP TIRES. (a) Requires a generator or dealer of scrap tires, for purposes of this subchapter, to be a person that accepts tires for storage, is a fleet operator, or a new or used tire retailer, wholesaler, manufacturer, or retreader. (b) Requires generators or dealers to be responsible for accepting scrap tires from the consumer and assess a reasonable disposal fee, equal to the number of tires sold, and to make those tires available to a registered scrap tire facility. (c) Sets forth the responsibilities required of generators and dealers of scrap tires. (d) Requires generators or dealers of scrap tires to contact the commission and provide certain information, including location information, a business tax identification number, and a registration fee. Requires generators and dealers to notify the commission within 15 days, in writing, of any changes to information contained within the commission's records. (e) Requires generators or dealers of scrap tires to initiate and maintain a record of each individual collection in the form of a manifest that is required to include certain information. (f) Provides that manifest copies are required to be retained by the generators or dealers, transporters, and facility operators for three years and made available to the commission or comptroller of public accounts (comptroller) upon request. (g) Authorizes generators or dealers of scrap tires to store tires at the generator's or dealer's location, where they are generated for no more than 90 days, and where the tires do not exceed 500 tires on the ground or 1,500 scrap tires in an enclosed, locked container. (h) Requires generators or dealers of scrap tires to be subject to random audits by the commission in order to comply with the requirements set forth in this Act. (i) Authorizes generators or dealers found to be in violation of this Act to have their registration revoked, pay a fine from $200 to $10,000 per violation, and be subjected to penalties specified in SECTION 19 of this Act. SECTION 5. TRANSPORTERS OF SCRAP TIRES. (a) Requires a transporter of scrap tires to include, but not limited to, measures utilizing roadway, rail, and water facilities for purposes of this subchapter. (b) Requires persons planning to transport scrap tires after the effective date of this Act to register with the commission prior to commencing operations. Requires these persons to submit certain identifying information and a registration fee. (c) Requires transporters' delivery requirements of scrap tires to include depositing scrap tires at a registered scrap tire facility where the operator of the facility agrees to receive the tires and possess an agreement with an individual facility or class of facilities to receive scrap tires. (d) Requires transporters to initiate a manifest that is required to include certain information. (e) Requires manifest copies to be retained by the generator, transporters, and facility operators for three years and to be made available to the commission upon request. (f) Authorizes transporters of scrap tires found in violation of this Act to have their registration revoked, pay a fine of $200 to $10,000 per violation, and be subjected to the penalties specified in SECTION 19 of this Act. (g) Prohibits transporters from collecting tires from generators or dealers who do not have a registration from the commission. (h) Provides that commercial haulers who transport scrap tires from a scrap tire facility to an end user are not required to register. SECTION 6. SCRAP TIRE FACILITIES. (a) Requires a scrap facility to be applicable to persons, corporations, or public entities processing whole scrap tires or scrap tire pieces for the use of recycling or energy recover for purposes of this subchapter. (b) Requires a registration to be required rom the commission for a scrap tire facility. (c) Requires a scrap tire facility to pay a registration fee of $500, which is valid or 60 months. Requires the facility to apply for renewed registration after the expiration of this time period. (d) Requires all scrap tire facilities to process all scrap tires within 90 days after receipt. (e) Requires operators of scrap tire facilities to ensure that scrap tire transporters who deposit scrap tires at their facilities are properly registered with the commission. Requires the commission to provide a scrap tire facility an approved transporters quarterly. (f) Requires scrap tire facilities to maintain copies of manifests received from the transporters of scrap tires. Requires the facilities to ensure that the information is completed on the manifests as described in SECTIONS 4 and 5 of this Act and report any observed violation of this Act to the commission. Requires the commission to have 30 days to respond to any reported violation. (g) Requires the reporting activities of the scrap tire facility to be documented in terms of weight. (h) Provides that all documentation is to be kept by the scrap tire facility for a period of three years and be made available for the commission's inspection. (i) Prohibits scrap tire facilities from accepting tires from generators or transporters who do not have a registration form from the commission. Requires the facilities to report to the commission those individuals, as required by this Act. (j) Authorizes scrap the facilities found to be in violation of this Act to have their registration revoked, pay fines of $200 to $10,000 per violation, and be subjected to penalties specified in SECTION 19 of this Act. SECTION 7. SCRAP TIRE STORAGE FACILITY. (a) Requires a scrap tire storage facility to be applicable to persons, corporations, or public entities who store whole scrap tires or scrap tire pieces for the use of recycling or energy recovery for the purposes of this subchapter. (b) Requires a registration to be mandated from the commission for a scrap tire storage facility. (c) Requires a scrap tire facility to pay a registration fee of $500, which is valid for 60 months, after which the facility is required to apply for a renewed license. (d) Requires the scrap tire facilities to maintain copies of manifests received from transporters of scrap tires and to ensure that the information is completed on the manifests as provided in SECTIONS 4 and 5 of this Act. (e) Requires the reporting activities of the scrap tire facility to be documented in terms of weight. (f) Provides that all documentation is to be kept by the scrap tire facility for a period of three years and made available for the commission's inspection. (g) Prohibits a scrap tire facility from exceeding the registered storage capacity approved by the commission. (h) Requires a scrap tire facility exceeding its storage capacity to immediately cease accepting additional whole scrap tires or shredded tire pieces until the facility can demonstrate to the commission that volumes of whole scrap tires or shredded tire pieces have been removed from the facility to an approved end user or other approved means which reduces the stored volume to less than total approved capacity. (i) Requires scrap tire storage facilities requesting a new registration from the commission after January 1, 1998, to be required to limit their storage area to a 180-day supply to be determined by the commission unless the applicant can demonstrate that they have a contracted approved end use that will require a larger volume of shredded scrap tires to be stored. (j) Exempts scrap tire facilities registered before January 1, 1998, and which are still active from the provisions in (h) of this subsection. Prohibits such facilities from expanding their approved storage. (k) Authorizes scrap tire facilities found in violation of this Act to have their registration revoked, pay fines of $200 to $10,000 per violation, and be subjected to penalties specified in SECTION 19 of this Act. SECTION 8. PRIORITY ENFORCEMENT STORAGE SITE. (a) Requires each county in this state to make an inventory of scrap tire piles deposited within that county in a nonpermitted area. (b) Requires the state official to make an estimate of the number of tires that are in the pile, the location, the proximity of major highways, municipalities, and the legal description of the property. (c) Requires the state official to make an assessment on the degree of hazard the pile represents to the public. (d) Requires it to be unlawful to bury whole, split or quartered tires at these sites, and requires the tires to be removed to a registered scrap tire facility. (e) Requires the commission to rate enforcement tire storage sites with respect to the environmental impact they present to the public and to have the authority to contract with a registered scrap tire facility for cleanup of those stockpiled scrap tires, provided that funds are available to the commission for that purpose as provided by SECTION 11 of this Act. (f) Authorizes the commission to adopt rules necessary for the administration, collection, reporting, and payment of fees payable or to be collected under this Act. (g) Authorizes the commission to assess fees or penalties associated with an enforcement scrap tire site towards a responsible party if the department deems the action necessary. SECTION 9. PROGRAM FUNDING. (a) Requires a person in the business of selling new or used tires of any type or description or a person who offers to sell new or used tires not for resale to collect at the time and place of the sale a scrap tire management fee for each tire sold in the amount of $0.75 per tire. (b) Requires this fee to be known as the scrap tire management fee. Requires the fee to be applied to all tires, new or used, for all over-the-road-highway vehicles, including, but not limited to passenger vehicles, pickup trucks, truck tractors, trailers of all kinds, recreational vehicles, motor homes, and motorcycles. (c) Requires every tire subject to the fee provided in Subsection (a) to have added to the purchase cost of the tire the designated fee. Requires this fee to be stated upon the invoices as a scrap tire management fee. (d) Prohibits the provision that the fee be collected from the purchaser or the new or used tire from relieving any person, firm, or corporation of the fee. Prohibits the inability, impractibility, refusal, or failure to collect this fee from such purchaser from relieving such persons, firms, or corporations of the fee. (e) Requires the fee to be due and payable to the comptroller, along with forms prescribed by the comptroller on or before the 20th day of the month after the month in which the fee accrued. (f) Authorizes the comptroller to promulgate rules and regulations for making returns and for ascertainment, assessment, and collection of the fee imposed by this Act as the department deems necessary to administer and enforce its provisions. SECTION 10. SCRAP TIRE MANAGEMENT FUND. Creates within the treasury the Scrap Tire Management Fund (fund). Requires the fund to be administered by the comptroller under the provisions of SECTION 11 of this Act. Requires the fund to consist of certain monies. Prohibits the monies deposited in the fund from becoming part of the general budget of the commission, comptroller, or any other state agency, or general revenue except as provided in SECTION 11 of this Act. Provides that all monies in the fund are continuously appropriated to the commission respectively, to be utilized or disbursed as specified in this Act. SECTION 11. ALLOCATION OF FUNDS. Provides that all monies in the fund are hereby continuously appropriated to the commission and comptroller to be utilized or dispersed as specified in this Act. Authorizes the funds, out of monies accruing annually to the fund to be used only to pay specific costs. Requires the remaining monies in the fund the be allocated under the provisions of this Act to achieve certain goals. SECTION 12. ENFORCEMENT SCRAP TIRE SITE CLEAN-UP PAYMENT PROCEDURE. (a) Provides that application for payment to registered tire processing facilities is required to be on forms provided by the commission and to provide documentation of collection on enforcement scrap tires, provided that appropriations have been made to fund enforcement scrap tire site cleanups. (b) Prohibits a person from processing scrap tires in this state or from receiving payment under this Act for collecting and processing enforcement scrap tires until the scrap tire facility makes application for and receives registration from the commission. (c) Requires scrap tire facilities to submit ending month payment application reports by the 10th day of the following month and to provide certain information. (d) Requires the commission to contract with the scrap tire facility that is assigned the enforcement scrap tire site for clean-up. Requires that the compensation rate be determined through certain processes. Provides that facilities must demonstrate end use capabilities, as outlined in SECTION 15 of this Act, equal to the volume by weight of scrap tires or shredded tire pieces that is removed from an enforcement scrap tire site. (e) Requires the commission to review and submit payment to the qualifying scrap tire facility within 20 days of receipt of the payment application. (f) Provides that scrap tire facilities found in violation of this section of this Act are authorized to have their registration revoked, pay fines from $200 to $10,000 per violation, and be subjected to penalties in SECTION 19 of this Act. SECTION 13. ACCESS TO PRIORITY ENFORCEMENT LIST SITE. (a) Entitles the commission or its employees or agents to enter any public or private property at any reasonable time for the purposes of inspection, investigating, or remediating any condition related to illegal dumping of scrap tires. (b) Requires the executive director to give notice of intent to enter private property for those purposes by certified mail to the last known residence indicated in the current county property records at least 10 days before a commission representative enters. (c) Requires a commission member, employee, agent, or subcontractor who, acting under this subsection, enters private property, to observe the establishment's rules concerning safety, internal security, and fire protection; and if the property has management in residence, make a reasonable attempt to notify the management or person in charge of the entry and exhibit credentials. SECTION 14. RESPONSIBILITIES OF THE COMMISSION. (a) Requires the commission to be responsible to ensure that all generators or dealers of scrap tires have accepted scrap tires from consumers for purposes of recycling or disposal and have made available those scrap tires only to registered scrap tire facilities or other approved recycling or disposal sites by the commission. (b) Requires the comptroller to provide to the commission a list of businesses that have been designated as tire dealers. Requires the commission to send to generators and dealers, by July 15, 1999, a letter of notification including certain information. (c) Requires the commission to mandate a monthly report from registered scrap tire facilities or other approved disposal sites and transporters providing certain information. (d) Requires the commission to determine a generator's or dealer's compliance with this Act by following a specific protocol with respect to the list of generators or dealers. (e) Requires the commission to release to the region's offices the generator's or dealer's inspection list within 30 days after receiving the required reports from the registered scrap tire facilities or other approved disposal sites. (f) Requires the regional offices to report back to the central office the finding of the inspection as to compliance or noncompliance of the generator or dealer. (g) Requires the commission to promote, encourage, and provide all the assistance possible to direct all scrap tires to a recyclable end use. SECTION 15. END USE OF SCRAP TIRES. (a) Prohibits the commission from preventing or deterring the use of scrap tires in commercial use in this state, provided the end uses include certain projects or directives. (b) Products manufactured from rubber derived from shredded tire pieces. (c) Requires the executive director to have 60 days to approve or disapprove any end use request submitted to the commission. (d) Provides that any disapproved requests are required to be answered in writing with an explanation of why the end use was disapproved. (e) Requires the commission to encourage and promote end use of scrap tires generated within this state. SECTION 16. WHOLE TIRE LANDFILL BAN. (a) Requires whole scrap tires from being banned from disposals in landfills within this state. (b) Provides that scrap tires are authorized to be landfilled only under certain circumstances. (c) Prohibits whole scrap tires from being allowed to be placed in any monofill or land reclamation project and that if whole scrap tires are found to have been placed in any monofill or land reclamation project and if exposed to open air, regardless of when the scrap tires were placed in the monofill or land reclamation project, it is required to be declared an enforcement scrap tire site. (d) Sets forth exemptions from the provisions in subsection (a). (e) Authorizes the executive director to declare a prohibition on the landfilling of shredded tire pieces in any area or region of the state if it is demonstrated that all scrap tires in that area of the state have an end use. SECTION 17. FINANCIAL RESPONSIBILITY. (a) Requires a registered scrap tire facility mandated to register under this Act to submit to the commission and maintain evidence of financial responsibility in an amount adequate to assure proper clean-up and closure of the facility. (b) Requires a scrap tire facility owner or operator or an end user who anticipates accepting for storage an amount of whole scrap tires or shredded tire pieces that exceeds the facility's 30-day supply to submit to the commission and to maintain evidence of financial responsibility in an amount adequate to assure proper clean-up and closure of the facility. (c) Requires a facility subject to Subsections (a) or (b) to submit to the commission an estimate of the total amount of whole scrap tires and/or shredded tire pieces measured by weight the facility will store and the estimated cost, using that total amount, of cleaning up and closing the facility. (d) Requires scrap tire facilities registered prior to January 1, 1998, and which have received an approval letter from the commission renewing their registration to be in compliance with this section until the date of the next renewal period. (e) Provides that evidence of financial responsibility must be in certain forms. SECTION 18. ENFORCEMENT BY CERTAIN COUNTY OR MUNICIPAL EMPLOYEES. Authorizes employees of counties or municipalities whose duty is to ensure code compliance or to enforce codes and ordinances to be designated by the governing body of the county or the municipality to enforce the provisions of this Act. Provides that this section does not limit the authority of any state of local agency to enforce other laws, rules, or ordinances relating to scrap tire dumping or solid waste management. SECTION 19. PENALTIES FOR VIOLATION. (a) Provides that generators or dealers of scrap tires and transporters of scrap tires are to be registered with the commission before tires can be accepted by a scrap tire facility or other approved disposal site. Authorizes the commission to suspend or revoke a generator's or dealer's registration for certain offenses. (b) Provides that scrap tire facilities that process scrap tires are required to be registered with the commission before collecting and receiving scrap tires. Authorizes the commission to suspend or revoke a registration or deny an initial registration for certain offenses. (c) Requires any person violating any provision of this Act or any rule, regulation, or order made under this Act to, upon conviction for the violation, be fined a penalty of $200 to $10,000 per violation. (d) Authorizes any person to be assessed an administrative penalty by the commission, as provided by this Act. Provides that including costs associated therewith, if the person violated this Act or rules or regulations adopted by the commission, and no local government has instituted a civil action and is diligently prosecuting the same person for the same violation. (e) Requires the commission to consider certain factors in determining the amount of the administrative penalty to be imposed. (f) Prohibits an administrative penalty from falling below the amount of economic benefit gained by violation of law. (g) Provides that any person who dumps up to 50 scrap tires is in violation of this section and can demonstrate that the dumping did not occur for commercial purpose is guilty of a Class B misdemeanor, punishable as provided by Subsection (c) of this section. Requires the court to require the violator to perform certain remedies with respect to the violation. (h) Provides that any person who dumps in excess of 50 scrap tires for commercial purpose is guilty of a Class C misdemeanor, punishable as provided in Subsection (c) of this section. Authorizes the court to order the violator to perform certain remedies with respect to the violation. (i) Requires any penalties imposed and collected after this Act, less any costs for attorney, or other reasonable associated costs, to be deposited to the credit of the commission to be utilized for purposes related to this Act. (j) Authorizes the commission to issue orders to any permittee, registrant, or any person in violation of this Act or any rule adopted and promulgated under it. Requires these orders to be enforceable as against such permittee, registrant, or violator. (k) Authorizes the commission to bring action for mandatory or prohibitive injunction relief in the circuit court of Texas having jurisdiction over the property on which a violation occurred or is expected to occur if the commission finds that the operator of a scrap tire generator or dealer, transporter, or scrap tire facility subject to the provisions of this Act is in violation of any provision of this Act, or any rule or regulation made under this Act, or any order of the commission or any term or condition of any registration issued under this Act, or might reasonably be expected to cause pollution of the land, air, or waters of Texas, or is creating a public nuisance or otherwise threatens human or animal health or the environment. SECTION 20. REPORT. (a) Requires the commission to report to the governor and the legislature on the administration and effectiveness of the program in cleaning up existing enforcement scrap tire sites and in the prevention of new sites no later than three years after the passage of this Act. SECTION 21. EFFECTIVE DATE. Effective date: September 1, 1999. SECTION 22. REPEALER. Repealer: All laws or parts of laws which conflict with this Act. SECTION 23. Emergency clause.