ACG C.S.H.B. 2776 75(R)BILL ANALYSIS


ENVIRONMENTAL REGULATION
C.S.H.B. 2776
By: Jackson
4-10-97
Committee Report (Substituted)

BACKGROUND 
 The federal Superfund program was established to clean up abandoned
hazardous waste sites that pose an imminent threat to public health and
safety or the environment.  The state Superfund program was created to
address hazardous waste sites that pose a threat, but less severe than
federal sites.  The state program is funded by fees on the disposal of
hazardous waste, the purchase of lead acid batteries, and the purchase of
automotive oil. 
 Because of concerns that program revenues may be inadequate to remediate
the Superfund sites being evaluated, the TNRCC's Executive Director
requested that a work group of industry and environmental stakeholders
review the program's funding requirements and processes.  After several
meetings during 1996, the work group recommended changes in the program
intended to expedite site cleanup and encourage the use of the Voluntary
Cleanup Program when possible.  CSHB 2776 includes the recommendations of
that work group.  The TNRCC and the work group expect these program
revisions to result in cost savings to the program, although specific
amounts cannot be quantified. 
 The legislation also includes provisions consistent with a federal law
enacted in September 1996, providing relief from liability for lenders and
fiduciaries that have not been involved in the management of the site. 

PURPOSE

 C.S.H.B. 2776 will encourage the cleanup of sites contaminated by
hazardous waste, and provide relief from liability for lenders and
fiduciaries that did not participate in the management of the facility. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 361.133, Health and Safety Code, to allow early
planned removal of waste at sites where the removal will prevent the site
from becoming a state Superfund site, can be conducted without extensive
investigation and planning, and will result in a significant cost
reduction for the cleanup.  Prohibits the use by the TNRCC of Fund 550
revenues to cleanup sites for which the TNRCC has other dedicated funds.
Notice of the planned removal must be published in the Texas Register at
least 30 days before the removal occurs. 

SECTION 2.  Amends Section 361.136(i), Health and Safety Code, to exempt
waste generated from remedial actions conducted by the EPA from paying the
state hazardous waste remediation fee. 

SECTION 3.  Amends Section 361.183(a), Health and Safety Code, to
recognize an agreement under the Voluntary Cleanup Program as a viable
alternative to listing a site on the state registry of Superfund sites. 

SECTION 4.  Amends Subchapter F, Section 361, Health and Safety Code, by
adding a new Section 361.1855, to allow early decisions regarding future
land use.  Before the site evaluation is completed, if a non-residential
land use is proposed for a site that is zoned residential, the TNRCC must
conduct a public meeting to receive public comment on the proposed land
use.  Notice of the meeting must be published in the Texas Register and
the local newspaper at least 30 days before the meeting, and  all public
records regarding the site must be made available.  The executive director
will determine the land use after the public meeting. 

SECTION 5.  Amends Section 361.187(b), Health and Safety Code, to reduce
the time between the notice and the public meeting from 45 to 30 days. 

SECTION 6.  Amends Section 361.188(a), Health and Safety Code, to specify
that the final administrative order must include the selected land use, as
well as the selected remedial action. 

SECTION 7.  Amends Section 361.189(a), (b), and (c), Health and Safety
Code, to allow the executive director to request that a site be delisted
from the state registry.  The commission's procedures to consider this
request may include public meetings.  Provides that a site that has
entered the Voluntary Cleanup Program and has been delisted from the state
registry be automatically reinstated to the state Superfund registry if
the party fails to perform in the Voluntary Cleanup Program. 

SECTION 8.  Amends Section 361.194(b) and (c), Health and Safety Code, to
remove the requirement that the commission file a lien on state Superfund
sites.  The decision on whether to file a lien shall be based on the
action that will result in the least cost to the state after cost
recovery. 

SECTION 9.  Amends Section 361.197(d), Health and Safety Code, to require
the TNRCC to recover costs incurred in conducting a planned removal,
spill, release or threatened release, and implementation of the Voluntary
Cleanup Program. 

SECTION 10.  Amends Section 361.200, Health and Safety Code, to allow the
TNRCC to enter into settlement agreements that include covenants not to
sue, mixed public and private funding, and partial settlements, as well as
the de minimis settlements presently allowed. 

SECTION 11.  Amends Section 361.271(e) and (f), Health and Safety Code, to
state that a fiduciary's responsibility for solid waste is subject to
Subchapter T, and a lender's responsibility for solid waste is subject to
Subchapter U. 

SECTION 12.  Amends Section 361.277, Health and Safety Code, to state that
a settlement with the state releases the settling party from liability.
The liability of nonsettling parties is not affected unless the settlement
specifies otherwise, but the liability to the state is reduced by the
amount of the settlement. 

SECTION 13.  Amends Section 361.343, Health and Safety Code, to require
the court, when apportioning costs for a site among responsible parties,
to give credit for previous expenditures connected to a TNRCC-approved
cleanup at the site. 

SECTION 14. Amends Section 361.344(a), Health and Safety Code, to state
that a person that addresses a release or threatened release with
commission approval may sue in district court to recover their costs. 

SECTION 15.  Amends Chapter 361 by adding Subchapters T, U and V as
follows: 

Subchapter T:
_with the exception of the Petroleum Storage Tank Program, which has its
own fiduciary liability provisions, the liability of a fiduciary is
limited in certain situations for the release or threatened release of
solid waste from a solid waste facility to the assets held in the
fiduciary capacity; 
_in certain situations, does not limit the liability if the fiduciary's
negligence caused or contributed to the release; 
_with the exception of the Petroleum Storage Tank Program, which has its
own safe harbor provisions, provides a safe harbor in certain situations
for the fiduciary for actions taken to clean up the site, comply with
environmental laws, administer the site, or otherwise perform as a
fiduciary for the site after the site was contaminated; and 
_defines "fiduciary", "fiduciary capacity", and "solid waste facility".
 
Subchapter U:
_defines applicable terms;
_in certain situations, the lender is not liable for a removal or remedial
action or subject to a fine or penalty if the lender did not participate
in management of the site; 
_the lender is responsible for proper management of the site if the lender
operates, directs the operation, or maintains the operation after
foreclosure; and 
_states that the term "owner or operator" does not apply to a lender that
does not participate in the management of the solid waste facility or
forecloses on the facility, and closes the facility and cleans up the site
after foreclosure.  A lender is presumed to divest itself of a solid waste
facility if the facility is listed for sale within 12 months of
foreclosure. 

Subchapter V:
_defines applicable terms;
_provides for immunity from liability of innocent owners or operators if
contamination is a result of contamination from off site if reasonable
access to the site is provided for remediation; 
_provides for an innocent owner or operator to obtain a certificate
confirming innocent status; and 
_provides that this subchapter will not limit the rights of an innocent
owner or operator to pursue any current remedy in law or equity. 

SECTION 16.  Amends Subchapter C, Section 2155, Government Code, by adding
a new Section 2155.144 to delegate to the TNRCC purchasing functions
related to the State Superfund Program. 

SECTION 17.  Amends Section 2166.003(a), Government Code, to add the State
Superfund Program to the list of exemptions regarding building
construction and acquisition. 

SECTION 18.  Amends Subchapter A, Chapter 2253.002, Government Code, to
specify that a public works contract does not include contract entered
into under the State Superfund Program. 

SECTION 19.  Amends Section 26.265, Water Code by adding (h), (i) and (j)
to state that a settlement with the state releases the settling party from
liability.  The liability of nonsettling parties is not affected unless
the settlement specifies otherwise, but the liability to the state is
reduced by the amount of the settlement. 

SECTION 20.  Effective date: September 1, 1997

SECTION 21.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

CSHB 2776 revises and rearranges the language of the original bill, in
some cases makes the same changes in different sections of the statute.
In addition the following changes are made: 

Section 361.136(i) of the substitute replaces the term "public funds" with
"money." 
Section 361.194(c) of the substitute replaces the term "shall" with "must."

The substitute adds a new Chapter 361.702(f) to release from liability
those owners or operators of land next to contaminated property if that
owner or operator did not contribute to the contamination. 

SECTION 16 of the substitute is a new section, delegating to the TNRCC
from the General Services Commission those purchasing functions related to
the State Superfund Program. 

SECTION 17 of the substitute is a new section, stating that the State
Superfund Program is exempt from State building and construction
requirements. 

SECTION 18 of the substitute is a new section, stating that the State
Superfund Program is exempt from State public works contract requirements.