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.