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.
4-16 * * * * *