By:  Brown                                            S.B. No. 1619
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the authority of the Texas Natural Resource
    1-2  Conservation Commission to enter property, remediate certain
    1-3  conditions related to hazardous substances, and recover costs
    1-4  associated with remediation, to the authority of commission
    1-5  contractors to enter property, and to the liability of certain
    1-6  contractors who sign a waste manifest.
    1-7        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-8        SECTION 1.  Section 26.014, Water Code (effective until
    1-9  delegation of NPDES permit authority), is amended to read as
   1-10  follows:
   1-11        Sec. 26.014.  POWER TO ENTER PROPERTY.  The members of the
   1-12  commission and employees and agents of the commission are entitled
   1-13  to enter or cross any public or private property at any reasonable
   1-14  time for the purpose of inspecting and investigating conditions
   1-15  relating to the quality of water in the state.  Members, employees,
   1-16  or agents of the commission and commission contractors are entitled
   1-17  to enter or cross public or private property at any reasonable time
   1-18  to investigate or monitor or, if the responsible party is not
   1-19  responsive or there is an immediate danger to public health or the
   1-20  environment, to remove or remediate a condition related to the
   1-21  quality of water in the state.  Members, employees,  commission
   1-22  contractors, or agents acting under this authority who enter or
   1-23  cross private property shall observe the establishment's rules and
    2-1  regulations concerning safety, internal security, and fire
    2-2  protection, and if the property has management in residence, shall
    2-3  notify management or the person then in charge of his presence and
    2-4  shall exhibit proper credentials.  If any member, employee,
    2-5  commission contractor, or agent is refused the right to enter in or
    2-6  on or to cross public or private property under this authority, the
    2-7  executive director may invoke the remedies authorized in Section
    2-8  26.123 of this code.
    2-9        SECTION 2.  Section 26.014, Water Code (effective upon
   2-10  delegation of NPDES permit authority), is amended to read as
   2-11  follows:
   2-12        Sec. 26.014.  POWER TO ENTER PROPERTY.  The members of the
   2-13  commission and employees and agents of the commission are entitled
   2-14  to enter or cross any public or private property at any reasonable
   2-15  time for the purpose of inspecting and investigating conditions
   2-16  relating to the quality of water in the state or the compliance
   2-17  with any rule, regulation, permit or other order of the commission.
   2-18  Members, employees, or agents of the commission and commission
   2-19  contractors are entitled to enter or cross public or private
   2-20  property at any reasonable time to investigate or monitor or, if
   2-21  the responsible party is not responsive or there is an immediate
   2-22  danger to public health or the environment, to remove or remediate
   2-23  a condition related to the quality of water in the state.  Members,
   2-24  employees, commission contractors, or agents acting under this
   2-25  authority who enter or cross private property shall observe the
    3-1  establishment's rules and regulations concerning safety, internal
    3-2  security, and fire protection, and if the property has management
    3-3  in residence, shall notify management or the person then in charge
    3-4  of his presence and shall exhibit proper credentials.  If any
    3-5  member, employee, commission contractor, or agent is refused the
    3-6  right to enter in or on or to cross public or private property
    3-7  under this authority, the executive director may invoke the
    3-8  remedies authorized in Section 26.123 of this code.
    3-9        SECTION 3.  Section 361.032, Health and Safety Code, is
   3-10  amended to read as follows:
   3-11        Sec. 361.032.  INSPECTIONS; RIGHT OF ENTRY.  (a)  The
   3-12  <department and the> commission may <are each authorized to>
   3-13  inspect and approve solid waste facilities used or proposed to be
   3-14  used to store, process, or dispose of <the> solid waste <under the
   3-15  agency's jurisdiction>.
   3-16        (b)  Agents or employees of <the department,> the
   3-17  commission<,> or local governments have the right to enter or cross
   3-18  at any reasonable time public or private property in the
   3-19  governmental entity's jurisdiction, including a municipality's
   3-20  extraterritorial jurisdiction, to inspect and investigate
   3-21  conditions concerning solid waste management and control.
   3-22        (c)  Agents or employees of the commission or commission
   3-23  contractors have the right to enter or cross at any reasonable time
   3-24  public or private property to investigate or monitor the release or
   3-25  threatened release of a hazardous substance.
    4-1        (d)  Agents or employees of the commission or commission
    4-2  contractors may not enter or cross private property with management
    4-3  in residence without notifying the management, or the person in
    4-4  charge at the time, of their presence and presenting proper
    4-5  credentials.
    4-6        (e) <(d)>  Agents or employees of the commission or
    4-7  commission contractors acting under this section <inspecting an
    4-8  establishment> shall observe the establishment's rules on safety,
    4-9  internal security, and fire protection.
   4-10        SECTION 4.  Subsection (b), Section 361.197, Health and
   4-11  Safety Code, is amended to read as follows:
   4-12        (b)  The state may seek a judgment against the noncompliant
   4-13  parties for the total amount of the cost of the remedial
   4-14  investigation and feasibility study, the remedial design, and the
   4-15  remedial action, including costs of any necessary studies and
   4-16  oversight costs, minus the amount agreed to be paid or expended by
   4-17  any other responsible parties under an order issued under Section
   4-18  361.185 or 361.188.
   4-19        SECTION 5.  Section 104.001, Civil Practice and Remedies
   4-20  Code, is amended to read as follows:
   4-21        Sec. 104.001.  STATE LIABILITY; PERSONS COVERED.  In a cause
   4-22  of action based on conduct described in Section 104.002, the state
   4-23  shall indemnify the following persons for actual damages, court
   4-24  costs, and attorney's fees adjudged against:
   4-25              (1)  an employee, a member of the governing board, or
    5-1  any other officer of a state agency, institution, or department;
    5-2              (2)  a former employee, former member of the governing
    5-3  board, or any other former officer of a state agency, institution,
    5-4  or department who was an employee or officer when the act or
    5-5  omission on which the damages are based occurred;
    5-6              (3)  a physician or psychiatrist licensed in this state
    5-7  who was performing services under a contract with any state agency,
    5-8  institution, or department or a racing official performing services
    5-9  under a contract with the Texas Racing Commission when the act or
   5-10  omission on which the damages are based occurred;
   5-11              (4)  a person serving on the governing board of a
   5-12  foundation, corporation, or association at the request and on
   5-13  behalf of an institution of higher education, as that term is
   5-14  defined by Section 61.003(8), Education Code, not including a
   5-15  public junior college; <or>
   5-16              (5)  a state contractor who signed a waste manifest as
   5-17  required by a state contract; or
   5-18              (6)  the estate of a person listed in this section.
   5-19        SECTION 6.  Subsection (b), Section 104.002, Civil Practice
   5-20  and Remedies Code, is amended to read as follows:
   5-21        (b)  The state is liable for indemnification under this
   5-22  chapter if:
   5-23              (1)  the person is liable for the damages solely
   5-24  because the person signed an industrial solid waste or hazardous
   5-25  waste manifest or other record required by Section 361.036, Health
    6-1  and Safety Code;
    6-2              (2)  the person signed the manifest or record in the
    6-3  course and scope of the person's office, employment, or contractual
    6-4  performance or service on behalf of the agency, institution, or
    6-5  department; and
    6-6              (3)  the person or company who signed the manifest did
    6-7  not increase or aggravate circumstances of contamination by grossly
    6-8  negligent acts or wilful misconduct.
    6-9        SECTION 7.  The importance of this legislation and the
   6-10  crowded condition of the calendars in both houses create an
   6-11  emergency and an imperative public necessity that the
   6-12  constitutional rule requiring bills to be read on three several
   6-13  days in each house be suspended, and this rule is hereby suspended,
   6-14  and that this Act take effect and be in force from and after its
   6-15  passage, and it is so enacted.