By: Brown S.B. No. 1619
A BILL TO BE ENTITLED
AN ACT
1-1 relating to certain powers of the Texas Natural Resource
1-2 Conservation Commission, its ability to remediate certain abandoned
1-3 hazardous substances, the recovery of costs associated with
1-4 remediation activities, and the liability of contractors signing a
1-5 waste manifest.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 26.014, Water Code (effective until
1-8 delegation of NPDES permit authority), is amended to read as
1-9 follows:
1-10 Sec. 26.014. Power to Enter Property. Text of section
1-11 effective until delegation of NPDES authority. The members of the
1-12 commission, <and> employees, commission contractors, persons under
1-13 commission order or their contractors and agents of the commission
1-14 are entitled to enter or cross any public or private property at
1-15 any reasonable time for the purpose of inspecting, <and>
1-16 investigating, removing, remediating and monitoring conditions
1-17 relating to the quality of water in the state. Members, employees,
1-18 commission contractors, persons under commission order or their
1-19 contractors, or agents acting under this authority who enter or
1-20 cross private property shall observe the establishment's rules and
1-21 regulations concerning safety, internal security, and fire
1-22 protection, and if the property has management in residence, shall
1-23 notify management or the person then in charge of his presence and
2-1 shall exhibit proper credentials. If any member, employee,
2-2 commission contractor, persons under commission order or their
2-3 contractors, or agent is refused the right to cross or enter in or
2-4 on public or private property under this authority, the executive
2-5 director may invoke the remedies authorized by Section 26.123 of
2-6 this code.
2-7 SECTION 2. Section 26.014, Water Code (effective upon
2-8 delegation of NPDES permit authority), is amended to read as
2-9 follows:
2-10 Sec. 26.014. POWER TO ENTER PROPERTY. Text of section
2-11 effective upon delegation of NPDES authority. The members of the
2-12 commission, <and> employees, commission contractors, persons under
2-13 commission order or their contractors and agents of the commission
2-14 are entitled to enter or cross any public or private property at
2-15 any reasonable time for the purpose of inspecting, <and>
2-16 investigating, removing, remediating and monitoring conditions
2-17 relating to the quality of water in the state or the compliance
2-18 with any rule, regulation, permit or other order of the commission.
2-19 Members, employees, commission contractors, persons under
2-20 commission order or their contractors, or agents acting under this
2-21 authority who enter or cross private property shall observe the
2-22 establishment's rules and regulations concerning safety, internal
2-23 security, and fire protection, and if the property has management
2-24 in residence, shall notify management or the person then in charge
2-25 of his presence and shall exhibit proper credentials. If any
3-1 member, employee, commission contractor, persons under commission
3-2 order or their contractors, or agent is refused the right to cross
3-3 or enter in or on public or private property under this authority,
3-4 the executive director may invoke the remedies authorized by
3-5 Section 26.123 of this code.
3-6 SECTION 3. Subsections (b), (c), and (d), Section 361.032,
3-7 Health and Safety Code, are amended to read as follows:
3-8 (b) Agents or employees of the department, the commission,
3-9 or local governments, commission contractors, or persons under
3-10 commission order or their contractors have the right to enter or
3-11 cross at any reasonable time public or private property in the
3-12 governmental entity's jurisdiction, including a municipality's
3-13 extraterritorial jurisdiction, to inspect, <and> investigate,
3-14 remove, remediate and monitor conditions concerning solid waste
3-15 management and control.
3-16 (c) Agents, <or> employees, commission contractors, or
3-17 persons under commission order or their contractors may not cross
3-18 or enter private property with management in residence without
3-19 notifying the management, or the person in charge at the time, of
3-20 their presence and presenting proper credentials.
3-21 (d) Agents, <or> employees, commission contractors, or
3-22 persons under commission order or their contractors inspecting,
3-23 investigating, removing, remediating or monitoring conditions at an
3-24 establishment shall observe the establishment's rules on safety,
3-25 internal security, and fire protection.
4-1 SECTION 4. Subsections (a) and (b), Section 361.191, Health
4-2 and Safety Code is amended to read as follows:
4-3 (a) If the executive director <commission>, after
4-4 investigation, finds that there exists a release or threatened
4-5 release of a hazardous substance at a facility <that is causing
4-6 irreversible or irreparable harm to the public health and safety or
4-7 the environment> and that the immediate danger <immediacy> of the
4-8 situation makes it prejudicial to the public interest to delay
4-9 action until an administrative order can be issued to potentially
4-10 responsible parties or until a judgment can be entered in an appeal
4-11 of an administrative order, the executive director <commission>
4-12 may, with the funds available to the commission from the hazardous
4-13 waste disposal fee fund, undertake immediate removal action at the
4-14 facility to alleviate the harm.
4-15 (b) After the immediate danger <of irreversible or
4-16 irreparable harm> has been alleviated, the commission shall proceed
4-17 under this subchapter.
4-18 SECTION 5. Section 361.197, Health and Safety Code is
4-19 amended to read as follows:
4-20 (a) The commission shall file a cost recovery action against
4-21 all responsible parties who have not complied with the terms of an
4-22 administrative order issued under Section 361.88 or have not
4-23 entered into an agreed administrative order under Section 361.185.
4-24 The commission shall file the cost recovery action no later than
4-25 one year after all remedial action has been completed.
5-1 (b) The state may seek a judgment against the noncompliant
5-2 parties for the total amount of the cost of the immediate removal
5-3 under Section 361.191, the remedial investigation and feasibility
5-4 study or the remedial design, and the remedial action, including
5-5 costs of any necessary studies and oversight costs, minus the
5-6 amount agreed to be paid or expended by other responsible parties
5-7 under an order issued under Section 361.185 or 361.188.
5-8 (c) The action may also include a plea seeking civil
5-9 penalties for noncompliance with the commission's administrative
5-10 order and a claim for up to triple the state's costs if the
5-11 responsible party's defenses are not upheld <determined> by the
5-12 court <to be unreasonable, frivolous, or without foundation>.
5-13 SECTION 6. Subsection (d), Section 361.341, Health and
5-14 Safety Code is amended to read as follows:
5-15 (d) If an appeal or third party claim is not upheld <found>
5-16 by the court <to be frivolous, unreasonable, or without
5-17 foundation>, the court may assess damages against the party
5-18 bringing the appeal or third party claim in an amount not to exceed
5-19 triple the costs incurred by the state of the third party
5-20 defendant, including reasonable attorney's fees, reasonable costs
5-21 of preparing and providing witnesses, and reasonable costs of
5-22 studies, analyses, engineering reports, tests, or other projects
5-23 the court finds were necessary for the preparation of the party's
5-24 case.
5-25 SECTION 7. Section 104.001, Civil Practice and Remedies
6-1 Code, is amended to read as follows:
6-2 Sec. 104.001. STATE LIABILITY; PERSONS COVERED.
6-3 In a cause of action based on conduct described in Section
6-4 104.002, the state shall indemnify the following persons for actual
6-5 damages, court costs, and attorney's fees adjudged against:
6-6 (1) an employee, a member of the governing board, or
6-7 any other officer of a state agency, institution, or department;
6-8 (2) a former employee, former member of the governing
6-9 board, or any other former officer of a state agency, institution,
6-10 or department who was an employee or other officer when the act or
6-11 omission on which the damages are based occurred;
6-12 (3) a physician or psychiatrist licensed in this state
6-13 who was performing services under contract with any state agency,
6-14 institution, or department or a racing official performing services
6-15 under a contract with the Texas Racing Commission when the act or
6-16 omission on which the damages are based occurred;
6-17 (4) a person serving on the governing board of a
6-18 foundation, corporation, or association at the request and on
6-19 behalf of an institution of higher education, as that term is
6-20 defined by Section 61.003(8), Education Code, not including a
6-21 public junior college; <or>
6-22 (5) a state contractor signing a waste manifest as
6-23 required by state contract; or
6-24 (6) the estate of a person listed in this section.
6-25 SECTION 8. The importance of this legislation and the
7-1 crowded condition of the calendars in both houses create an
7-2 emergency and an imperative public necessity that the
7-3 constitutional rule requiring bills to be read on three several
7-4 days in each house be suspended, and this rule is hereby suspended,
7-5 and that this Act take effect and be in force from and after its
7-6 passage, and it is so enacted.