1-1 AN ACT
1-2 relating to the voluntary cleanup program, including municipal tax
1-3 abatements for certain property located in reinvestment zones and
1-4 subject to voluntary cleanup agreements.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 361.133(b) and (c), Health and Safety
1-7 Code, are amended to read as follows:
1-8 (b) The fund consists of money collected by the commission
1-9 from:
1-10 (1) fees imposed on the owner or operator of an
1-11 industrial solid waste or hazardous waste facility for commercial
1-12 and noncommercial management or disposal of hazardous waste or
1-13 commercial disposal of industrial solid waste under Section 361.136
1-14 and fees imposed under Section 361.138;
1-15 (2) interest and penalties imposed under Section
1-16 361.140 for late payment of a fee or late filing of a report;
1-17 (3) money paid by a person liable for facility cleanup
1-18 and maintenance under Section 361.197;
1-19 (4) the interest received from the investment of this
1-20 fund, in accounts under the charge of the comptroller [treasurer],
1-21 to be credited pro rata to the hazardous and solid waste
1-22 remediation fee fund;
1-23 (5) monies transferred from other agencies under
1-24 provisions of this code or grants or other payments from any person
2-1 made for the purpose of remediation of facilities under this
2-2 chapter or the investigation, cleanup, or removal of a spill or
2-3 release of a hazardous substance;
2-4 (6) fees imposed under Section 361.604; and
2-5 (7) federal grants received for the implementation or
2-6 administration of state voluntary cleanup programs or federal
2-7 brownfields initiatives.
2-8 (c) The commission may use the money collected and deposited
2-9 to the credit of the fund under this section, including interest
2-10 credited under Subsection (b)(4), only for:
2-11 (1) necessary and appropriate removal and remedial
2-12 action at sites at which solid waste or hazardous substances have
2-13 been disposed if funds from a liable person, independent third
2-14 person, or the federal government are not sufficient for the
2-15 removal or remedial action;
2-16 (2) necessary and appropriate maintenance of removal
2-17 and remedial actions for the expected life of those actions if:
2-18 (A) funds from a liable person have been
2-19 collected and deposited to the credit of the fund for that purpose;
2-20 or
2-21 (B) funds from a liable person, independent
2-22 third person, or the federal government are not sufficient for the
2-23 maintenance;
2-24 (3) expenses concerning compliance with:
2-25 (A) the Comprehensive Environmental Response,
2-26 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
2-27 seq.) as amended;
3-1 (B) the federal Superfund Amendments and
3-2 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
3-3 (C) Subchapters F and I;
3-4 (4) expenses concerning the regulation and management
3-5 of household hazardous substances and the prevention of pollution
3-6 of the water resources of the state from the uncontrolled release
3-7 of hazardous substances;
3-8 (5) expenses concerning the cleanup or removal of a
3-9 spill, release, or potential threat of release of a hazardous
3-10 substance where immediate action is appropriate to protect human
3-11 health and the environment; and
3-12 (6) expenses concerning implementation of the
3-13 voluntary cleanup program under Subchapter S or federal brownfields
3-14 initiatives.
3-15 SECTION 2. Section 361.603, Health and Safety Code, is
3-16 amended by adding Subsection (c) to read as follows:
3-17 (c) Notwithstanding Subsection (a), a site or portion of a
3-18 site that is subject to a commission permit or order is eligible
3-19 for participation in the voluntary cleanup program on dismissal of
3-20 the permit or order. An administrative penalty paid to the general
3-21 revenue fund under the permit or order is nonrefundable.
3-22 SECTION 3. Subchapter S, Chapter 361, Health and Safety
3-23 Code, as added by Chapter 986, Acts of the 74th Legislature,
3-24 Regular Session, 1995, is amended by adding Section 361.6035 to
3-25 read as follows:
3-26 Sec. 361.6035. ELIGIBILITY OF CERTAIN PERSONS FOR RELEASE
3-27 FROM LIABILITY. (a) A person who purchased a site before
4-1 September 1, 1995, is released, on certification under Section
4-2 361.609, from all liability to the state for cleanup of
4-3 contamination that was released at the site covered by the
4-4 certificate before the purchase date, except for releases or
4-5 consequences that the person contributed to or caused, if:
4-6 (1) the person did not operate the site, or any
4-7 portion of the site, before the purchase date; and
4-8 (2) another person that is a responsible party under
4-9 Section 361.271 or 361.275(g) successfully completes a voluntary
4-10 cleanup of the site under this subchapter.
4-11 (b) A person described by Subsection (a)(2):
4-12 (1) remains liable to the state for any contamination
4-13 that was released at the site before the date the certificate is
4-14 issued; and
4-15 (2) is not liable to the state for any contamination
4-16 that was released at the site after the date the certificate is
4-17 issued unless the person:
4-18 (A) contributes to or causes the release of
4-19 contamination; or
4-20 (B) changes the land use from the use specified
4-21 in the certificate of completion if the new use may result in
4-22 increased risks to human health or the environment.
4-23 SECTION 4. Section 361.604(b), Health and Safety Code, is
4-24 amended to read as follows:
4-25 (b) An application submitted under this section must:
4-26 (1) be on a form provided by the executive director;
4-27 (2) contain:
5-1 (A) general information concerning:
5-2 (i) the person and the person's
5-3 capability, including the person's financial capability, to perform
5-4 the voluntary cleanup; [and]
5-5 (ii) the site; and
5-6 (iii) whether the voluntary cleanup is
5-7 subject to Section 361.6035;
5-8 (B) other background information requested by
5-9 the executive director; and
5-10 (C) an environmental assessment of the actual or
5-11 threatened release of the hazardous substance or contaminant at the
5-12 site;
5-13 (3) be accompanied by an application fee of $1,000;
5-14 and
5-15 (4) be submitted according to schedules set by
5-16 commission rule.
5-17 SECTION 5. Section 361.605(b), Health and Safety Code, is
5-18 amended to read as follows:
5-19 (b) If an application is rejected because it is not complete
5-20 or accurate, the executive director, not later than the 45th day
5-21 after receipt of the application, shall provide the person with a
5-22 list of all information needed to make the application complete or
5-23 accurate. A person may resubmit an application once without
5-24 submitting an additional application fee if the person resubmits
5-25 the application not later than the 45th day after the date the
5-26 executive director issues notice that the application has been
5-27 rejected.
6-1 SECTION 6. Sections 361.609(b), (c), and (d), Health and
6-2 Safety Code, are amended to read as follows:
6-3 (b) The certificate of completion shall:
6-4 (1) acknowledge the protection from liability provided
6-5 by Section 361.610;
6-6 (2) indicate the proposed future land use; and
6-7 (3) include a legal description of the site and the
6-8 name of the site's owner at the time the application to participate
6-9 in the voluntary cleanup program was filed.
6-10 (c) [The executive director shall file a copy of the
6-11 certificate of completion in the real property records of the
6-12 county in which the site is located.]
6-13 [(d)] If the executive director determines that the person
6-14 has not successfully completed a voluntary cleanup approved under
6-15 this subchapter, the executive director shall notify the person who
6-16 undertook the voluntary cleanup and the current owner of the site
6-17 that is the subject of the cleanup of this determination.
6-18 SECTION 7. Section 361.610, Health and Safety Code, is
6-19 amended to read as follows:
6-20 Sec. 361.610. PERSONS RELEASED FROM LIABILITY. (a) A
6-21 person who is not a responsible party under Section 361.271 or
6-22 361.275(g) at the time the person applies to perform a voluntary
6-23 cleanup:
6-24 (1) does not become a responsible party solely because
6-25 the person signs the application; and
6-26 (2) is released, on certification under Section
6-27 361.609, from all liability to the state for cleanup of areas of
7-1 the site covered by the certificate [certification], except for
7-2 releases and consequences that the person causes.
7-3 (b) A person who is not a responsible party under Section
7-4 361.271 or 361.275(g) at the time the commission issues a
7-5 certificate of completion under Section 361.609 is released, on
7-6 issuance of the certificate, from all liability to the state for
7-7 cleanup of areas of the site covered by the certificate, except for
7-8 releases and consequences that the person causes.
7-9 (c) The release from liability provided by this section does
7-10 not apply to a person who:
7-11 (1) acquires [is not effective if] a certificate of
7-12 completion [is acquired] by fraud, misrepresentation, or knowing
7-13 failure to disclose material information; [.]
7-14 (2) knows at the time the person [(c) If a
7-15 certificate of completion for a site is issued by the commission,
7-16 an owner who] acquires an interest in the [property on which the]
7-17 site for which the certificate of completion was issued that the
7-18 certificate was acquired in a manner provided by Subdivision (1);
7-19 or
7-20 (3) [is located or a lender who makes a loan secured
7-21 by that property after the date of issuance of the certificate is
7-22 released from all liability for cleanup of contamination released
7-23 before the date of the certificate for the areas covered by the
7-24 certificate unless the owner or lender was originally included as a
7-25 responsible party under Section 361.271 or 361.275(g). A release
7-26 of liability does not apply to a person who] changes land use from
7-27 the use specified in the certificate of completion if the new use
8-1 may result in increased risks to human health or the environment.
8-2 SECTION 8. Subchapter B, Chapter 312, Tax Code, is amended
8-3 by adding Section 312.211 to read as follows:
8-4 Sec. 312.211. AGREEMENT BY MUNICIPALITY RELATING TO PROPERTY
8-5 SUBJECT TO VOLUNTARY CLEANUP AGREEMENT. (a) This section applies
8-6 only to:
8-7 (1) real property:
8-8 (A) that is located in a reinvestment zone;
8-9 (B) that is not in an improvement project
8-10 financed by tax increment bonds;
8-11 (C) that is the subject of a voluntary cleanup
8-12 agreement under Section 361.606, Health and Safety Code; and
8-13 (D) the value of which is adversely affected by
8-14 the release of a hazardous substance or contaminant according to
8-15 the two preceding appraisals by the appraisal office; and
8-16 (2) tangible personal property located on the real
8-17 property.
8-18 (b) The governing body of a municipality eligible to enter
8-19 into a tax abatement agreement under Section 312.002 may agree in
8-20 writing with the owner of property described by Subsection (a) to
8-21 exempt from taxation a portion of the value of the property for a
8-22 period not to exceed four years. The agreement takes effect on
8-23 January 1 of the next tax year after the date the owner receives a
8-24 certificate of completion for the property under Section 361.609,
8-25 Health and Safety Code. The agreement may exempt from taxation:
8-26 (1) not more than 100 percent of the value of the
8-27 property in the first year covered by the agreement;
9-1 (2) not more than 75 percent of the value of the
9-2 property in the second year covered by the agreement;
9-3 (3) not more than 50 percent of the value of the
9-4 property in the third year covered by the agreement; and
9-5 (4) not more than 25 percent of the value of the
9-6 property in the fourth year covered by the agreement.
9-7 (c) A property owner may not receive a tax abatement under
9-8 this section for the first tax year covered by the agreement unless
9-9 the property owner includes with the application for an exemption
9-10 under Section 11.28 filed with the chief appraiser of the appraisal
9-11 district in which the property has situs a copy of the certificate
9-12 of completion for the property.
9-13 (d) A property owner who files a copy of the certificate of
9-14 completion for property for the first tax year covered by the
9-15 agreement is not required to refile the certificate in a subsequent
9-16 tax year to receive a tax abatement under this section for the
9-17 property for that tax year.
9-18 (e) The chief appraiser shall accept a certificate of
9-19 completion filed under Subsection (c) as conclusive evidence of the
9-20 facts stated in the certificate.
9-21 (f) The governing body of the municipality may cancel or
9-22 modify the agreement if:
9-23 (1) the use of the land is changed from the use
9-24 specified in the certificate of completion; and
9-25 (2) the governing body determines that the new use may
9-26 result in an increased risk to human health or the environment.
9-27 (g) A municipality may enter into a tax abatement agreement
10-1 covering property described by Subsection (a) under this section or
10-2 under Section 312.204, but not under both sections. Section
10-3 312.204 applies to an agreement entered into under this section
10-4 except as otherwise provided by this section.
10-5 (h) A school district may not enter into a tax abatement
10-6 agreement under this section.
10-7 SECTION 9. Section 312.002(a), Tax Code, is amended to read
10-8 as follows:
10-9 (a) A taxing unit may not enter into a tax abatement
10-10 agreement under this chapter and the governing body of a
10-11 municipality or county may not designate an area as a reinvestment
10-12 zone unless the governing body has established guidelines and
10-13 criteria governing tax abatement agreements by the taxing unit and
10-14 a resolution stating that the taxing unit elects to become eligible
10-15 to participate in tax abatement. The guidelines applicable to
10-16 property other than property described by Section 312.211(a) must
10-17 provide for the availability of tax abatement for both new
10-18 facilities and structures and for the expansion or modernization of
10-19 existing facilities and structures.
10-20 SECTION 10. Sections 312.201(c) and (d), Tax Code, are
10-21 amended to read as follows:
10-22 (c) Area of a reinvestment zone designated for residential
10-23 tax abatement or commercial-industrial tax abatement may be
10-24 included in an overlapping or coincidental residential or
10-25 commercial-industrial zone. In that event, the zone in which the
10-26 property is considered to be located for purposes of executing an
10-27 agreement under Section 312.204 or 312.211 is determined by the
11-1 comprehensive zoning ordinance, if any, of the municipality.
11-2 (d) The governing body may not adopt an ordinance
11-3 designating an area as a reinvestment zone until the governing body
11-4 has held a public hearing on the designation and has found that the
11-5 improvements sought are feasible and practical and would be a
11-6 benefit to the land to be included in the zone and to the
11-7 municipality after the expiration of an agreement entered into
11-8 under Section 312.204 or 312.211, as applicable. At the hearing,
11-9 interested persons are entitled to speak and present evidence for
11-10 or against the designation. Not later than the seventh day before
11-11 the date of the hearing, notice of the hearing must be:
11-12 (1) published in a newspaper having general
11-13 circulation in the municipality; and
11-14 (2) delivered in writing to the presiding officer of
11-15 the governing body of each taxing unit that includes in its
11-16 boundaries real property that is to be included in the proposed
11-17 reinvestment zone.
11-18 SECTION 11. Section 312.2041(a), Tax Code, is amended to
11-19 read as follows:
11-20 (a) Not later than the seventh day before the date on which
11-21 a municipality enters into an agreement under Section 312.204 or
11-22 312.211, the governing body of the municipality or a designated
11-23 officer or employee of the municipality shall deliver to the
11-24 presiding officer of the governing body of each other taxing unit
11-25 in which the property to be subject to the agreement is located a
11-26 written notice that the municipality intends to enter into the
11-27 agreement. The notice must include a copy of the proposed
12-1 agreement.
12-2 SECTION 12. Section 312.205, Tax Code, is amended to read
12-3 as follows:
12-4 Sec. 312.205. SPECIFIC TERMS OF TAX ABATEMENT AGREEMENT.
12-5 (a) An agreement made under Section 312.204 or 312.211 must:
12-6 (1) list the kind, number, and location of all
12-7 proposed improvements of the property;
12-8 (2) provide access to and authorize inspection of the
12-9 property by municipal employees to ensure that the improvements or
12-10 repairs are made according to the specifications and conditions of
12-11 the agreement;
12-12 (3) limit the uses of the property consistent with the
12-13 general purpose of encouraging development or redevelopment of the
12-14 zone during the period that property tax exemptions are in effect;
12-15 (4) provide for recapturing property tax revenue lost
12-16 as a result of the agreement if the owner of the property fails to
12-17 make the improvements or repairs as provided by the agreement;
12-18 (5) contain each term agreed to by the owner of the
12-19 property;
12-20 (6) require the owner of the property to certify
12-21 annually to the governing body of each taxing unit that the owner
12-22 is in compliance with each applicable term of the agreement; and
12-23 (7) provide that the governing body of the
12-24 municipality may cancel or modify the agreement if the property
12-25 owner fails to comply with the agreement.
12-26 (b) An agreement made under Section 312.204 or 312.211 may
12-27 include, at the option of the governing body of the municipality,
13-1 provisions for:
13-2 (1) improvements or repairs by the municipality to
13-3 streets, sidewalks, and utility services or facilities associated
13-4 with the property, except that the agreement may not provide for
13-5 lower charges or rates than are made for other services or
13-6 properties of a similar character;
13-7 (2) an economic feasibility study, including a
13-8 detailed list of estimated improvement costs, a description of the
13-9 methods of financing all estimated costs, and the time when related
13-10 costs or monetary obligations are to be incurred;
13-11 (3) a map showing existing uses and conditions of real
13-12 property in the reinvestment zone;
13-13 (4) a map showing proposed improvements and uses in
13-14 the reinvestment zone; and
13-15 (5) proposed changes of zoning ordinances, the master
13-16 plan, the map, building codes, and city ordinances.
13-17 SECTION 13. Sections 312.206(a) and (c), Tax Code, are
13-18 amended to read as follows:
13-19 (a) If property taxes on property located in the taxing
13-20 jurisdiction of a municipality are abated under an agreement made
13-21 under Section 312.204 or 312.211, the governing body of each other
13-22 taxing unit eligible to enter into tax abatement agreements under
13-23 Section 312.002 in which the property is located may execute a
13-24 written agreement with the owner of the property not later than the
13-25 90th day after the date the municipal agreement is executed. The
13-26 agreement must contain terms identical to those contained in the
13-27 agreement with the municipality providing for the portion of the
14-1 property that is to be exempt from taxation under the agreement,
14-2 the duration of the agreement, and the provisions included in the
14-3 agreement under Section 312.205, even if the value of the property
14-4 at the time the agreement is executed is not the same as its value
14-5 when the municipal agreement was executed and even if improvements
14-6 or repairs have been made to the property since the municipal
14-7 agreement was executed. If the governing body of the taxing unit
14-8 by official action at any time before the execution of the
14-9 municipal agreement expresses an intent to enter into an agreement
14-10 with the owner of property under this subsection or to be bound by
14-11 the terms of the municipal agreement if the municipality enters
14-12 into an agreement under Section 312.204 or 312.211 with the owner
14-13 relating to the property, the terms of the municipal agreement
14-14 regarding the share of the property to be exempt in each year of
14-15 the municipal agreement apply to the taxation of the property by
14-16 the taxing unit. If the taxing unit that expressed its intent to
14-17 enter into an agreement or to be bound by the municipal agreement
14-18 is a county, those terms of the municipal agreement also apply to
14-19 the taxation of the property by a taxing unit in the county to
14-20 which a county tax abatement agreement would apply under Section
14-21 312.004.
14-22 (c) If the governing body of a municipality designates a
14-23 reinvestment zone that includes property in the extraterritorial
14-24 jurisdiction of the municipality, the governing body of a taxing
14-25 unit eligible to enter into tax abatement agreements under Section
14-26 312.002 in which the property is located may execute a written
14-27 agreement with the owner of the property to exempt from its
15-1 property taxes all or part of the value of the property in the same
15-2 manner and subject to the same restrictions as provided by Section
15-3 312.204 or 312.211 for a municipality. The taxing unit may execute
15-4 an agreement even if the municipality does not execute an agreement
15-5 for the property, and the terms of the agreement are not required
15-6 to be identical to the terms of a municipal agreement. However, if
15-7 the governing body of another eligible taxing unit has previously
15-8 executed an agreement to exempt all or part of the value of the
15-9 property and that agreement is still in effect, the terms of the
15-10 subsequent agreement relating to the share of the property that is
15-11 to be exempt in each year that the existing agreement remains in
15-12 effect must be identical to those of the existing agreement.
15-13 SECTION 14. Section 312.402(a), Tax Code, is amended to
15-14 read as follows:
15-15 (a) The commissioners court may execute a tax abatement
15-16 agreement with the owner of taxable real property located in a
15-17 reinvestment zone designated under this subchapter. The execution,
15-18 duration, and other terms of an agreement made under this section
15-19 are governed by the provisions of Sections 312.204, [and] 312.205,
15-20 and 312.211 applicable to a municipality. Section 312.2041
15-21 applies to an agreement made by a county under this section in the
15-22 same manner as it applies to an agreement made by a municipality
15-23 under Section 312.204 or 312.211.
15-24 SECTION 15. A tax abatement agreement under Section 312.211,
15-25 Tax Code, applies only to ad valorem taxes imposed on or after
15-26 January 1, 1998.
15-27 SECTION 16. (a) Except as provided by Subsection (b) of
16-1 this section, this Act takes effect September 1, 1997.
16-2 (b) Sections 2-4 of this Act take effect on the later of:
16-3 (1) September 1, 1997; or
16-4 (2) the date the Texas Natural Resource Conservation
16-5 Commission enters into a memorandum of agreement with the United
16-6 States Environmental Protection Agency, Region 6, authorizing the
16-7 inclusion of certain potentially responsible parties to the group
16-8 of persons eligible to participate in the voluntary cleanup program
16-9 established by Subchapter S, Chapter 361, Health and Safety Code,
16-10 as added by Chapter 986, Acts of the 74th Legislature, Regular
16-11 Session, 1995.
16-12 (c) The Texas Natural Resource Conservation Commission shall
16-13 publish the memorandum of agreement described by Subsection (b) of
16-14 this section in the Texas Register.
16-15 (d) A person to whom notice of rejection of an application
16-16 is issued under Section 361.605, Health and Safety Code, before
16-17 September 1, 1997, may resubmit the application once without
16-18 submitting an additional application fee if the person resubmits
16-19 the application not later than October 15, 1997.
16-20 SECTION 17. The importance of this legislation and the
16-21 crowded condition of the calendars in both houses create an
16-22 emergency and an imperative public necessity that the
16-23 constitutional rule requiring bills to be read on three several
16-24 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1239 was passed by the House on April
11, 1997, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 1239 on May 25, 1997, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1239 was passed by the Senate, with
amendments, on May 23, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor