1-1     By:  Jackson (Senate Sponsor - Brown)                 H.B. No. 1239

 1-2           (In the Senate - Received from the House April 14, 1997;

 1-3     April 16, 1997, read first time and referred to Committee on

 1-4     Natural Resources; May 15, 1997, reported adversely, with favorable

 1-5     Committee Substitute by the following vote:  Yeas 6, Nays 0;

 1-6     May 15, 1997, sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 1239                   By:  Brown

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to the voluntary cleanup program.

1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-12           SECTION 1.  Sections 361.133(b) and (c), Health and Safety

1-13     Code, are amended to read as follows:

1-14           (b)  The fund consists of money collected by the commission

1-15     from:

1-16                 (1)  fees imposed on the owner or operator of an

1-17     industrial solid waste or hazardous waste facility for commercial

1-18     and noncommercial management or disposal of hazardous waste or

1-19     commercial disposal of industrial solid waste under Section 361.136

1-20     and fees imposed under Section 361.138;

1-21                 (2)  interest and penalties imposed under Section

1-22     361.140 for late payment of a fee or late filing of a report;

1-23                 (3)  money paid by a person liable for facility cleanup

1-24     and maintenance under Section 361.197;

1-25                 (4)  the interest received from the investment of this

1-26     fund, in accounts under the charge of the treasurer, to be credited

1-27     pro rata to the hazardous and solid waste remediation fee fund;

1-28                 (5)  monies transferred from other agencies under

1-29     provisions of this code or grants or other payments from any person

1-30     made for the purpose of remediation of facilities under this

1-31     chapter or the investigation, cleanup, or removal of a spill or

1-32     release of a hazardous substance;

1-33                 (6)  fees imposed under Section 361.604;  and

1-34                 (7)  federal grants received for the implementation or

1-35     administration of state voluntary cleanup programs or federal

1-36     brownfields initiatives.

1-37           (c)  The commission may use the money collected and deposited

1-38     to the credit of the fund under this section, including interest

1-39     credited under Subsection (b)(4), only for:

1-40                 (1)  necessary and appropriate removal and remedial

1-41     action at sites at which solid waste or hazardous substances have

1-42     been disposed if funds from a liable person, independent third

1-43     person, or the federal government are not sufficient for the

1-44     removal or remedial action;

1-45                 (2)  necessary and appropriate maintenance of removal

1-46     and remedial actions for the expected life of those actions if:

1-47                       (A)  funds from a liable person have been

1-48     collected and deposited to the credit of the fund for that purpose;

1-49     or

1-50                       (B)  funds from a liable person, independent

1-51     third person, or the federal government are not sufficient for the

1-52     maintenance;

1-53                 (3)  expenses concerning compliance with:

1-54                       (A)  the Comprehensive Environmental Response,

1-55     Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et

1-56     seq.) as amended;

1-57                       (B)  the federal Superfund Amendments and

1-58     Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.);  and

1-59                       (C)  Subchapters F and I;

1-60                 (4)  expenses concerning the regulation and management

1-61     of household hazardous substances and the prevention of pollution

1-62     of the water resources of the state from the uncontrolled release

1-63     of hazardous substances;

1-64                 (5)  expenses concerning the cleanup or removal of a

 2-1     spill, release, or potential threat of release of a hazardous

 2-2     substance where immediate action is appropriate to protect human

 2-3     health and the environment;  and

 2-4                 (6)  expenses concerning implementation of the

 2-5     voluntary cleanup program under Subchapter S or federal brownfields

 2-6     initiatives.

 2-7           SECTION 2.  Section 361.603, Health and Safety Code, is

 2-8     amended by adding Subsection (c) to read as follows:

 2-9           (c)  Notwithstanding Subsection (a), a site or portion of a

2-10     site that is subject to a commission permit or order is eligible

2-11     for participation in the voluntary cleanup program on dismissal of

2-12     the permit or order.  An administrative penalty paid to the general

2-13     revenue fund under the permit or order is nonrefundable.

2-14           SECTION 3.  Subchapter S, Chapter 361, Health and Safety

2-15     Code, as added by Chapter 986, Acts of the 74th Legislature,

2-16     Regular Session, 1995, is amended by adding Section 361.6035 to

2-17     read as follows:

2-18           Sec. 361.6035.  ELIGIBILITY OF CERTAIN PERSONS FOR RELEASE

2-19     FROM LIABILITY.  (a)  A person who purchased a site before

2-20     September 1, 1995, is released, on certification under Section

2-21     361.609, from all liability to the state for cleanup of

2-22     contamination that was released at the site covered by the

2-23     certificate before the purchase date, except for releases or

2-24     consequences that the person contributed to or caused, if:

2-25                 (1)  the person did not operate the site, or any

2-26     portion of the site, before the purchase date; and

2-27                 (2)  another person that is a responsible party under

2-28     Section 361.271 or 361.275(g) successfully completes a voluntary

2-29     cleanup of the site under this subchapter.

2-30           (b)  A person described by Subsection (a)(2):

2-31                 (1)  remains liable to the state for any contamination

2-32     that was released at the site before the date the certificate is

2-33     issued; and

2-34                 (2)  is not liable to the state for any contamination

2-35     that was released at the site after the date the certificate is

2-36     issued unless the person:

2-37                       (A)  contributes to or causes the release of

2-38     contamination; or

2-39                       (B)  changes the land use from the use specified

2-40     in the certificate of completion if the new use may result in

2-41     increased risks to human health or the environment.

2-42           SECTION 4.  Section 361.604(b), Health and Safety Code, is

2-43     amended to read as follows:

2-44           (b)  An application submitted under this section must:

2-45                 (1)  be on a form provided by the executive director;

2-46                 (2)  contain:

2-47                       (A)  general information concerning:

2-48                             (i)  the person and the person's

2-49     capability, including the person's financial capability, to perform

2-50     the voluntary cleanup;  [and]

2-51                             (ii)  the site; and

2-52                             (iii)  whether the voluntary cleanup is

2-53     subject to Section 361.6035;

2-54                       (B)  other background information requested by

2-55     the executive director; and

2-56                       (C)  an environmental assessment of the actual or

2-57     threatened release of the hazardous substance or contaminant at the

2-58     site;

2-59                 (3)  be accompanied by an application fee of $1,000;

2-60     and

2-61                 (4)  be submitted according to schedules set by

2-62     commission rule.

2-63           SECTION 5.  Section 361.605(b), Health and Safety Code, is

2-64     amended to read as follows:

2-65           (b)  If an application is rejected because it is not complete

2-66     or accurate, the executive director, not later than the 45th day

2-67     after receipt of the application, shall provide the person with a

2-68     list of all information needed to make the application complete or

2-69     accurate.  A person may resubmit an application once without

 3-1     submitting an additional application fee if the person resubmits

 3-2     the application not later than the 45th day after the date the

 3-3     executive director issues notice that the application has been

 3-4     rejected.

 3-5           SECTION 6.  Sections 361.609(b), (c), and (d), Health and

 3-6     Safety Code, are amended to read as follows:

 3-7           (b)  The certificate of completion shall:

 3-8                 (1)  acknowledge the protection from liability provided

 3-9     by Section 361.610;

3-10                 (2)  indicate the proposed future land use;  and

3-11                 (3)  include a legal description of the site and the

3-12     name of the site's owner at the time the application to participate

3-13     in the voluntary cleanup program was filed.

3-14           (c)  [The executive director shall file a copy of the

3-15     certificate of completion in the real property records of the

3-16     county in which the site is located.]

3-17           [(d)]  If the executive director determines that the person

3-18     has not successfully completed a voluntary cleanup approved under

3-19     this subchapter, the executive director shall notify the person who

3-20     undertook the voluntary cleanup and the current owner of the site

3-21     that is the subject of the cleanup of this determination.

3-22           SECTION 7.  Section 361.610, Health and Safety Code, is

3-23     amended to read as follows:

3-24           Sec. 361.610.  PERSONS RELEASED FROM LIABILITY.  (a)  A

3-25     person who is not a responsible party under Section 361.271 or

3-26     361.275(g) at the time the person applies to perform a voluntary

3-27     cleanup:

3-28                 (1)  does not become a responsible party solely because

3-29     the person signs the application; and

3-30                 (2)  is released, on certification under Section

3-31     361.609, from all liability to the state for cleanup of areas of

3-32     the site covered by the certificate [certification], except for

3-33     releases and consequences that the person causes.

3-34           (b)  A person who is not a responsible party under Section

3-35     361.271 or 361.275(g) at the time the commission issues a

3-36     certificate of completion under Section 361.609 is released, on

3-37     issuance of the certificate, from all liability to the state for

3-38     cleanup of areas of the site covered by the certificate, except for

3-39     releases and consequences that the person causes.

3-40           (c)  The release from liability provided by this section does

3-41     not apply to a person who:

3-42                 (1)  acquires [is not effective if] a certificate of

3-43     completion [is acquired] by fraud, misrepresentation, or knowing

3-44     failure to disclose material information; [.]

3-45                 (2)  knows at the time the person [(c)  If a

3-46     certificate of completion for a site is issued by the commission,

3-47     an owner who] acquires an interest in the [property on which the]

3-48     site for which the certificate of completion was issued that the

3-49     certificate was acquired in a manner provided by Subdivision (1);

3-50     or

3-51                 (3)  [is located or a lender who makes a loan secured

3-52     by that property after the date of issuance of the certificate is

3-53     released from all liability for cleanup of contamination released

3-54     before the date of the certificate for the areas covered by the

3-55     certificate unless the owner or lender was originally included as a

3-56     responsible party under Section 361.271 or 361.275(g).  A release

3-57     of liability does not apply to a person who] changes land use from

3-58     the use specified in the certificate of completion if the new use

3-59     may result in increased risks to human health or the environment.

3-60           SECTION 8.  (a)  Except as provided by Subsection (b) of this

3-61     section, this Act takes effect September 1, 1997.

3-62           (b)  Sections 2-4  of this Act take effect on the later of:

3-63                 (1)  September 1, 1997; or

3-64                 (2)  the date the Texas Natural Resource Conservation

3-65     Commission enters into a memorandum of agreement with the United

3-66     States Environmental Protection Agency, Region 6, authorizing the

3-67     inclusion of certain potentially responsible parties to the group

3-68     of persons eligible to participate in the voluntary cleanup program

3-69     established by Subchapter S, Chapter 361, Health and Safety Code,

 4-1     as added by Chapter 986, Acts of the 74th Legislature, Regular

 4-2     Session, 1995.

 4-3           (c)  The Texas Natural Resource Conservation Commission shall

 4-4     publish the memorandum of agreement described by Subsection (b)  of

 4-5     this section in the Texas Register.

 4-6           (d)  A person to whom notice of rejection of an application

 4-7     is issued under Section 361.605, Health and Safety Code, before

 4-8     September 1, 1997, may resubmit the application once without

 4-9     submitting an additional application fee if the person resubmits

4-10     the application not later than October 15, 1997.

4-11           SECTION 9.  The importance of this legislation and the

4-12     crowded condition of the calendars in both houses create an

4-13     emergency and an imperative public necessity that the

4-14     constitutional rule requiring bills to be read on three several

4-15     days in each house be suspended, and this rule is hereby suspended.

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