Texas tries to make cleanup law work
Tension, frustration and confusion were
words used to describe the new Texas environmental cleanup fund
by one of the men charged with its implementation.
Speaking at last month’s Southwest
Drycleaners Association convention, Larry R. Soward of the
Texas Commission on Environmental Quality (TCEQ) said the early
months of the new law have
been difficult and he asked for cooperation of drycleaners in
making it work.
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One of those glitches has been a lawsuit
by a group of Texas cleaners seeking to halt collection of fees
under the new law. Parties to that suit have agreed to an early
trial date, set for May 3. But Soward said the resources that
would go into a legal battle could be better spent addressing
concerns that have arisen since the law was passed last year.
Some of those concerns can be resolved at
the agency level, he said. Others would need to be resolved in
rule-making. And still others would need to go before the
legislature. Soward said it is likely the next session of the
legislature will address some of those areas.
When the bill was passed last summer,
state officials thought it was supported by the drycleaning
industry, he said. While it’s true that the law has
support within the industry, it’s also evident, by the
fact of the lawsuit as well as other issues and complaints that
have been raised, that industry support is not unanimous.
Under the law drycleaners, in exchange for
relief from liability for contamination and assistance with
cleanups, pay fees based on sales volume and solvent purchases
and must comply with performance standards in their cleaning
operations.
Performance standards include the use of
dikes or other containment structures around drycleaning
machines that use perc and where perc is stored; closed,
direct-coupled delivery systems (when those systems have become
generally available); and no discharge of wastewater to a
sanitary sewer or septic tank.
Solvent fees are set at $15 per gallon of
perc and $5 per gallon for other solvents, with liquid carbon
dioxide exempt. Annual fees are based on sales volume —
$2,500 for plants with annual receipts of more than $100,000
and $250 for those under $100,000. Plants with drop stores also
must pay a fee of $1,000 per store unless they are associated
with a plant doing under $100,000 a year or not associated with
a plant at all; in that case the annual fee is $250.
Paying the fees gives cleaners a
registration number which is needed in order to buy solvent.
Solvent distributors collect the fees and can sell only to
licensed drycleaners.
Soward said that as of Jan. 1, 3,557
drycleaning facilities and drop stores had been registered. To
date, some $2 million has been collected for the fund. The
commission had estimated that about $6 million would be
collected in the first year and $9 million in the second year.
Until January 2005, disbursements from the
fund are limited to administrative and start-up costs. Those
costs are limited to 15 percent of the funds credited to the
account during fiscal year 2004 and 10 percent in subsequent
years. The maximum amount for corrective action for a single
site will be limited to $5 million.
One point of contention has been the
difficulty cleaners faced coming up with the fees in short
order after the law went into effect. Soward said the agency
has tried to ease that burden by allowing quarterly installment
payments.
For the state, one problem has been
finding all the drycleaners. Another has been meeting deadline
for developing rules to implement the program. The original
deadline was Dec. 1.
The rules are to include performance
standards for drycleaning facilities and criteria for setting
priorities for expenditure of funds from the Dry Cleaning
Facility Release Account. TCEQ will also develop corrective
action completion criteria for the remediation of sites.
Soward said that agency wants to do all it
can to work with the industry and get the program together and
running well.
“We are willing to do anything we
can,” he said. “Where there is flexibility in the
law, we should pursue flexibility. We’re open and
amenable to getting issues addressed. We have a piece of
legislation that has many flaws and we need to work
together.”
Soward said cleaners are invited to attend
meeting of the public advisory
committee that is working
with the agency on the new law.
The committee, which will assist the
commission in ranking contaminated sites and in developing
rules, includes three drycleaning industry representatives, two
public representatives and one “urban”
representative. It next meets April 18.
Facilities operating on or before Jan. 1,
2004 would have until January, 2006 to implement the
performance standards.
Barring a court ruling or an act of the
legislature, the law will stay on the books until 2021. In the
meantime, money collected by the fund can be used to clean up
sites contaminated by drycleaning operations and anyone covered
by the program would be immune for suits by the state or other
parties for any action resulting from the contamination.
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