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
1-24 regulations concerning safety, internal security, and fire
2-1 protection, and if the property has management in residence, shall
2-2 notify management or the person then in charge of his presence and
2-3 shall exhibit proper credentials. If any member, employee,
2-4 commission contractor, or agent is refused the right to enter in or
2-5 on or to cross public or private property under this authority, the
2-6 executive director may invoke the remedies authorized in Section
2-7 26.123 of this code.
2-8 SECTION 2. Section 26.014, Water Code (effective upon
2-9 delegation of NPDES permit authority), is amended to read as
2-10 follows:
2-11 Sec. 26.014. POWER TO ENTER PROPERTY. The members of the
2-12 commission and employees and agents of the commission are entitled
2-13 to enter or cross any public or private property at any reasonable
2-14 time for the purpose of inspecting and investigating conditions
2-15 relating to the quality of water in the state or the compliance
2-16 with any rule, regulation, permit or other order of the commission.
2-17 Members, employees, or agents of the commission and commission
2-18 contractors are entitled to enter or cross public or private
2-19 property at any reasonable time to investigate or monitor or, if
2-20 the responsible party is not responsive or there is an immediate
2-21 danger to public health or the environment, to remove or remediate
2-22 a condition related to the quality of water in the state. Members,
2-23 employees, commission contractors, or agents acting under this
2-24 authority who enter or cross private property shall observe the
2-25 establishment's rules and regulations concerning safety, internal
2-26 security, and fire protection, and if the property has management
2-27 in residence, shall notify management or the person then in charge
3-1 of his presence and shall exhibit proper credentials. If any
3-2 member, employee, commission contractor, or agent is refused the
3-3 right to enter in or on or to cross public or private property
3-4 under this authority, the executive director may invoke the
3-5 remedies authorized in Section 26.123 of this code.
3-6 SECTION 3. Section 361.032, Health and Safety Code, is
3-7 amended to read as follows:
3-8 Sec. 361.032. INSPECTIONS; RIGHT OF ENTRY. (a) The
3-9 <department and the> commission may <are each authorized to>
3-10 inspect and approve solid waste facilities used or proposed to be
3-11 used to store, process, or dispose of <the> solid waste <under the
3-12 agency's jurisdiction>.
3-13 (b) Agents or employees of <the department,> the
3-14 commission<,> or local governments have the right to enter or cross
3-15 at any reasonable time public or private property in the
3-16 governmental entity's jurisdiction, including a municipality's
3-17 extraterritorial jurisdiction, to inspect and investigate
3-18 conditions concerning solid waste management and control.
3-19 (c) Agents or employees of the commission or commission
3-20 contractors have the right to enter or cross at any reasonable time
3-21 public or private property to investigate or monitor the release or
3-22 threatened release of a hazardous substance.
3-23 (d) Agents or employees of the commission or commission
3-24 contractors may not enter or cross private property with management
3-25 in residence without notifying the management, or the person in
3-26 charge at the time, of their presence and presenting proper
3-27 credentials.
4-1 (e) <(d)> Agents or employees of the commission or
4-2 commission contractors acting under this section <inspecting an
4-3 establishment> shall observe the establishment's rules on safety,
4-4 internal security, and fire protection.
4-5 SECTION 4. Subsection (b), Section 361.197, Health and
4-6 Safety Code, is amended to read as follows:
4-7 (b) The state may seek a judgment against the noncompliant
4-8 parties for the total amount of the cost of the remedial
4-9 investigation and feasibility study, the remedial design, and the
4-10 remedial action, including costs of any necessary studies and
4-11 oversight costs, minus the amount agreed to be paid or expended by
4-12 any other responsible parties under an order issued under Section
4-13 361.185 or 361.188.
4-14 SECTION 5. Section 104.001, Civil Practice and Remedies
4-15 Code, is amended to read as follows:
4-16 Sec. 104.001. STATE LIABILITY; PERSONS COVERED. In a cause
4-17 of action based on conduct described in Section 104.002, the state
4-18 shall indemnify the following persons for actual damages, court
4-19 costs, and attorney's fees adjudged against:
4-20 (1) an employee, a member of the governing board, or
4-21 any other officer of a state agency, institution, or department;
4-22 (2) a former employee, former member of the governing
4-23 board, or any other former officer of a state agency, institution,
4-24 or department who was an employee or officer when the act or
4-25 omission on which the damages are based occurred;
4-26 (3) a physician or psychiatrist licensed in this state
4-27 who was performing services under a contract with any state agency,
5-1 institution, or department or a racing official performing services
5-2 under a contract with the Texas Racing Commission when the act or
5-3 omission on which the damages are based occurred;
5-4 (4) a person serving on the governing board of a
5-5 foundation, corporation, or association at the request and on
5-6 behalf of an institution of higher education, as that term is
5-7 defined by Section 61.003(8), Education Code, not including a
5-8 public junior college; <or>
5-9 (5) a state contractor who signed a waste manifest as
5-10 required by a state contract; or
5-11 (6) the estate of a person listed in this section.
5-12 SECTION 6. Subsection (b), Section 104.002, Civil Practice
5-13 and Remedies Code, is amended to read as follows:
5-14 (b) The state is liable for indemnification under this
5-15 chapter if:
5-16 (1) the person is liable for the damages solely
5-17 because the person signed an industrial solid waste or hazardous
5-18 waste manifest or other record required by Section 361.036, Health
5-19 and Safety Code;
5-20 (2) the person signed the manifest or record in the
5-21 course and scope of the person's office, employment, or contractual
5-22 performance or service on behalf of the agency, institution, or
5-23 department; and
5-24 (3) the person or company who signed the manifest did
5-25 not increase or aggravate circumstances of contamination by grossly
5-26 negligent acts or wilful misconduct.
5-27 SECTION 7. The importance of this legislation and the
6-1 crowded condition of the calendars in both houses create an
6-2 emergency and an imperative public necessity that the
6-3 constitutional rule requiring bills to be read on three several
6-4 days in each house be suspended, and this rule is hereby suspended,
6-5 and that this Act take effect and be in force from and after its
6-6 passage, and it is so enacted.
6-7 COMMITTEE AMENDMENT NO. 1
6-8 Amend S.B. No. 1619 (Senate Engrossment) as follows:
6-9 (1) In SECTION 1 of the bill, Section 26.014, Water Code
6-10 (effective until delegation of NPDES permit authority) (page 1,
6-11 lines 13, 17, and 22-23), strike "or cross".
6-12 (2) In SECTION 1 of the bill, Section 26.014, Water Code
6-13 (effective until delegation of NPDES permit authority) (page 2,
6-14 line 6), strike "or to cross".
6-15 (3) In SECTION 2 of the bill, Section 26.014, Water Code
6-16 (effective on delegation of NPDES permit authority) (page 2, lines
6-17 14, 19, and 25), strike "or cross".
6-18 (4) In SECTION 2 of the bill, Section 26.014, Water Code
6-19 (effective on delegation of NPDES permit authority) (page 3, line
6-20 6), strike "or to cross".
6-21 (5) In SECTION 3 of the bill, Section 361.032, Health and
6-22 Safety Code (page 3, lines 17 and 23), strike "or cross".
6-23 (6) In SECTION 3 of the bill, Section 361.032, Health and
6-24 Safety Code (page 4, line 2), strike "or cross".
6-25 74R13574 MI-D Turner of Coleman