1-1 By: Brown S.B. No. 1619
1-2 (In the Senate - Filed March 23, 1995; March 27, 1995, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 28, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 28, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1619 By: Brown
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the authority of the Texas Natural Resource
1-11 Conservation Commission to enter property, remediate certain
1-12 conditions related to hazardous substances, and recover costs
1-13 associated with remediation, to the authority of commission
1-14 contractors to enter property, and to the liability of certain
1-15 contractors who sign a waste manifest.
1-16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-17 SECTION 1. Section 26.014, Water Code (effective until
1-18 delegation of NPDES permit authority), is amended to read as
1-19 follows:
1-20 Sec. 26.014. POWER TO ENTER PROPERTY. The members of the
1-21 commission and employees and agents of the commission are entitled
1-22 to enter or cross any public or private property at any reasonable
1-23 time for the purpose of inspecting and investigating conditions
1-24 relating to the quality of water in the state. Members, employees,
1-25 or agents of the commission and commission contractors are entitled
1-26 to enter or cross public or private property at any reasonable time
1-27 to investigate or monitor or, if the responsible party is not
1-28 responsive or there is an immediate danger to public health or the
1-29 environment, to remove or remediate a condition related to the
1-30 quality of water in the state. Members, employees, commission
1-31 contractors, or agents acting under this authority who enter or
1-32 cross private property shall observe the establishment's rules and
1-33 regulations concerning safety, internal security, and fire
1-34 protection, and if the property has management in residence, shall
1-35 notify management or the person then in charge of his presence and
1-36 shall exhibit proper credentials. If any member, employee,
1-37 commission contractor, or agent is refused the right to enter in or
1-38 on or to cross public or private property under this authority, the
1-39 executive director may invoke the remedies authorized in Section
1-40 26.123 of this code.
1-41 SECTION 2. Section 26.014, Water Code (effective upon
1-42 delegation of NPDES permit authority), is amended to read as
1-43 follows:
1-44 Sec. 26.014. POWER TO ENTER PROPERTY. The members of the
1-45 commission and employees and agents of the commission are entitled
1-46 to enter or cross any public or private property at any reasonable
1-47 time for the purpose of inspecting and investigating conditions
1-48 relating to the quality of water in the state or the compliance
1-49 with any rule, regulation, permit or other order of the commission.
1-50 Members, employees, or agents of the commission and commission
1-51 contractors are entitled to enter or cross public or private
1-52 property at any reasonable time to investigate or monitor or, if
1-53 the responsible party is not responsive or there is an immediate
1-54 danger to public health or the environment, to remove or remediate
1-55 a condition related to the quality of water in the state. Members,
1-56 employees, commission contractors, or agents acting under this
1-57 authority who enter or cross private property shall observe the
1-58 establishment's rules and regulations concerning safety, internal
1-59 security, and fire protection, and if the property has management
1-60 in residence, shall notify management or the person then in charge
1-61 of his presence and shall exhibit proper credentials. If any
1-62 member, employee, commission contractor, or agent is refused the
1-63 right to enter in or on or to cross public or private property
1-64 under this authority, the executive director may invoke the
1-65 remedies authorized in Section 26.123 of this code.
1-66 SECTION 3. Section 361.032, Health and Safety Code, is
1-67 amended to read as follows:
1-68 Sec. 361.032. INSPECTIONS; RIGHT OF ENTRY. (a) The
2-1 <department and the> commission may <are each authorized to>
2-2 inspect and approve solid waste facilities used or proposed to be
2-3 used to store, process, or dispose of <the> solid waste <under the
2-4 agency's jurisdiction>.
2-5 (b) Agents or employees of <the department,> the
2-6 commission<,> or local governments have the right to enter or cross
2-7 at any reasonable time public or private property in the
2-8 governmental entity's jurisdiction, including a municipality's
2-9 extraterritorial jurisdiction, to inspect and investigate
2-10 conditions concerning solid waste management and control.
2-11 (c) Agents or employees of the commission or commission
2-12 contractors have the right to enter or cross at any reasonable time
2-13 public or private property to investigate or monitor the release or
2-14 threatened release of a hazardous substance.
2-15 (d) Agents or employees of the commission or commission
2-16 contractors may not enter or cross private property with management
2-17 in residence without notifying the management, or the person in
2-18 charge at the time, of their presence and presenting proper
2-19 credentials.
2-20 (e) <(d)> Agents or employees of the commission or
2-21 commission contractors acting under this section <inspecting an
2-22 establishment> shall observe the establishment's rules on safety,
2-23 internal security, and fire protection.
2-24 SECTION 4. Subsection (b), Section 361.197, Health and
2-25 Safety Code, is amended to read as follows:
2-26 (b) The state may seek a judgment against the noncompliant
2-27 parties for the total amount of the cost of the remedial
2-28 investigation and feasibility study, the remedial design, and the
2-29 remedial action, including costs of any necessary studies and
2-30 oversight costs, minus the amount agreed to be paid or expended by
2-31 any other responsible parties under an order issued under Section
2-32 361.185 or 361.188.
2-33 SECTION 5. Section 104.001, Civil Practice and Remedies
2-34 Code, is amended to read as follows:
2-35 Sec. 104.001. STATE LIABILITY; PERSONS COVERED. In a cause
2-36 of action based on conduct described in Section 104.002, the state
2-37 shall indemnify the following persons for actual damages, court
2-38 costs, and attorney's fees adjudged against:
2-39 (1) an employee, a member of the governing board, or
2-40 any other officer of a state agency, institution, or department;
2-41 (2) a former employee, former member of the governing
2-42 board, or any other former officer of a state agency, institution,
2-43 or department who was an employee or officer when the act or
2-44 omission on which the damages are based occurred;
2-45 (3) a physician or psychiatrist licensed in this state
2-46 who was performing services under a contract with any state agency,
2-47 institution, or department or a racing official performing services
2-48 under a contract with the Texas Racing Commission when the act or
2-49 omission on which the damages are based occurred;
2-50 (4) a person serving on the governing board of a
2-51 foundation, corporation, or association at the request and on
2-52 behalf of an institution of higher education, as that term is
2-53 defined by Section 61.003(8), Education Code, not including a
2-54 public junior college; <or>
2-55 (5) a state contractor who signed a waste manifest as
2-56 required by a state contract; or
2-57 (6) the estate of a person listed in this section.
2-58 SECTION 6. Subsection (b), Section 104.002, Civil Practice
2-59 and Remedies Code, is amended to read as follows:
2-60 (b) The state is liable for indemnification under this
2-61 chapter if:
2-62 (1) the person is liable for the damages solely
2-63 because the person signed an industrial solid waste or hazardous
2-64 waste manifest or other record required by Section 361.036, Health
2-65 and Safety Code;
2-66 (2) the person signed the manifest or record in the
2-67 course and scope of the person's office, employment, or contractual
2-68 performance or service on behalf of the agency, institution, or
2-69 department; and
2-70 (3) the person or company who signed the manifest did
3-1 not increase or aggravate circumstances of contamination by grossly
3-2 negligent acts or wilful misconduct.
3-3 SECTION 7. The importance of this legislation and the
3-4 crowded condition of the calendars in both houses create an
3-5 emergency and an imperative public necessity that the
3-6 constitutional rule requiring bills to be read on three several
3-7 days in each house be suspended, and this rule is hereby suspended,
3-8 and that this Act take effect and be in force from and after its
3-9 passage, and it is so enacted.
3-10 * * * * *