Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Chisum H.B. No. 2705
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the voluntary cleanup program for solid and hazardous
1-3 wastes.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 361.602, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Section 361.602. PURPOSE. The purpose of the voluntary
1-8 cleanup program is to provide incentive to remediate property by
1-9 removing liability of lenders, [and] future landowners, who would
1-10 otherwise be a responsible party under Section 361.271 or
1-11 361.275(g). The program does not replace other voluntary actions
1-12 and is restricted to voluntary actions.
1-13 SECTION 2. Sec. 361.603, Health and Safety Code, is amended
1-14 to read as follows:
1-15 (a) Any site is eligible for participation in the voluntary
1-16 cleanup program except the portion of a site that is subject to a
1-17 commission permit or order.
1-18 (b) A person electing to participate in the voluntary
1-19 cleanup program must:
1-20 (1) enter into a voluntary clean up agreement as
1-21 provided by Section 361.606; and
1-22 (2) pay all costs of commission oversight of the
1-23 voluntary cleanup.
1-24 (c) Notwithstanding Subsection (a), the commission may
2-1 transfer the site or portion of a site subject to a permit or order
2-2 into the voluntary cleanup program at any time, subject to the
2-3 negotiation of an agreement pursuant to Section 361.606, by
2-4 dismissing the permit or order affecting a site or portion of a
2-5 site. Any administrative penalties that have been paid to the
2-6 general revenue fund pursuant to the earlier order or permit
2-7 affecting the site or portion of the site shall not be refunded.
2-8 (d) A person who is a responsible party under Section
2-9 361.271 or 361.275(g) is eligible to participate in the voluntary
2-10 cleanup program, and will be released from further liability upon
2-11 the issuance of a certificate of completion pursuant to this
2-12 subchapter.
2-13 SECTION 3. Sections 361.604(b) and (c), Health and Safety
2-14 Code, are amended to read as follows:
2-15 (b) An application submitted under this section must:
2-16 (1) be on a form provided by the executive director;
2-17 (2) contain:
2-18 (A) general information concerning:
2-19 (i) the person and the person's
2-20 capability, including the person's financial capability, to perform
2-21 the voluntary cleanup; [and]
2-22 (ii) the site; and
2-23 (iii) the person's right to perform the
2-24 voluntary cleanup if the site is owned by a different person;
2-25 (B) other background information requested by
2-26 the executive director; and
2-27 (c) an environmental assessment of the actual or threatened
2-28 release of the hazardous substance or contaminant at the site;
2-29 (3) be accompanied by an application fee of $1,000;
2-30 and
3-1 (4) be submitted according to schedules set by
3-2 commission rule.
3-3 (c) The environmental assessment required by Subsection (b)
3-4 must include:
3-5 (1) a legal description of the site;
3-6 (2) a description of the physical characteristics of
3-7 the site;
3-8 (3) the operational history of the site to the extent
3-9 that history is known by the applicant;
3-10 (4) information of which the applicant is aware
3-11 concerning the nature and extent of any relevant contamination or
3-12 release at the site and immediately contiguous to the site, or
3-13 wherever the contamination came to be located; [and]
3-14 (5) relevant information of which the applicant is
3-15 aware concerning the potential for human exposure to contamination
3-16 at the site; and
3-17 (6) information of any pending administrative, state,
3-18 or federal enforcement action of which the applicant is aware.
3-19 SECTION 4. Section 361.605, Health and Safety Code, is
3-20 amended to read as follows:
3-21 (a) The executive director may reject an application
3-22 submitted under Section 361.604 if:
3-23 (1) an administrative, state, or federal enforcement
3-24 action is pending that concerns the remediation of the hazardous
3-25 substance or contaminant described in the application;
3-26 (2) a federal grant requires an enforcement action at
3-27 the site;
3-28 (3) the application is not complete or accurate; or
3-29 (4) the site is ineligible under Section 361.603.
3-30 (b) If an application is rejected because it is not complete
4-1 or accurate, the executive director, not later than the 45th day
4-2 after receipt of the application, shall provide the person with a
4-3 list of all information needed to make the application complete or
4-4 accurate. A person may resubmit an application once without
4-5 submitting an additional application fee if the person resubmits
4-6 the application not later than the 45th day after the date the
4-7 executive director issues notice that the application has been
4-8 rejected.
4-9 (c) If the executive director rejects the application, the
4-10 executive director shall:
4-11 (1) notify the person that the application has been
4-12 rejected;
4-13 (2) explain the reasons for rejection of the
4-14 application; and
4-15 (3) inform the person that the commission will refund
4-16 half the person's application fee unless the person indicates a
4-17 desire to resubmit an application; and
4-18 (d) If an application is rejected because of a pending
4-19 administrative, state, or federal enforcement action that concerns
4-20 the remediation of the hazardous substance or contaminant described
4-21 in the application, the applicant may resubmit the application upon
4-22 completion, termination, or dismissal of the enforcement action and
4-23 the site or portion of the site covered by an order issued as a
4-24 result of the enforcement action shall be eligible for
4-25 participation in the voluntary cleanup program for any remediation
4-26 that is necessary beyond the requirements of the enforcement order.
4-27 SECTION 5. Sections 361.606(b) and (c), Health and Safety
4-28 Code, are amended to read as follows:
4-29 (b) A voluntary cleanup agreement must provide for:
4-30 (1) recovery by the commission of all reasonable
5-1 costs:
5-2 (A) incurred by the commission in review and
5-3 oversight of the person's work plan and reports and as a result of
5-4 the commission's field activities;
5-5 (B) attributable to the voluntary cleanup
5-6 agreement; and
5-7 (C) in excess of the amount of fees submitted by
5-8 the applicant under Section 361.604;
5-9 (2) a schedule of payments to the commission to be
5-10 made by the person for recovery of all commission costs fairly
5-11 attributable to the voluntary cleanup program, including direct and
5-12 indirect costs of overhead, salaries, equipment, and utilities, an
5-13 legal, management, and support costs; [and]
5-14 (3) appropriate tasks, deliverables, and schedules;
5-15 and
5-16 (4) the identification of all persons to be relieved
5-17 of liability under Section 361.610. In the event of a sale or
5-18 transfer of ownership of the site covered by a voluntary cleanup
5-19 agreement after the application is approved pursuant to Section
5-20 361.606 but before the issuance of a certificate of completion
5-21 pursuant to Section 361.609, the voluntary cleanup agreement may be
5-22 amended by the applicant to identify the new owner as a person to
5-23 be released upon the issuance of the certificate. The
5-24 identification of the new owner as a party to be released, however,
5-25 shall not relieve the applicant of or transfer responsibility for
5-26 the successful completion of the voluntary cleanup without the
5-27 express written approval of the commission evidenced by a formal
5-28 amendment of the voluntary cleanup agreement.
5-29 (c) The voluntary cleanup agreement shall:
5-30 (1) identify all statutes and rules that must be
6-1 complied with;
6-2 (2) described any work plan or report to be submitted
6-3 for review by the executive director, including a final report that
6-4 provides all information necessary to verify that all work
6-5 contemplated by the voluntary cleanup agreement has been completed;
6-6 (3) include a schedule for submitting the information
6-7 required by Subdivision (2); [and]
6-8 (4) state the technical standards to be applied in
6-9 evaluating the work plans and reports, with reference to the
6-10 proposed future land use to be achieved; and
6-11 (5) identify all persons to be relieved of liability
6-12 under Section 361.610 who otherwise would be a responsible party
6-13 under Section 361.271 or 361.275(g).
6-14 SECTION 6. Section 361.609, Health and Safety Code, is
6-15 amended to read as follows:
6-16 (a) If the executive director determines that a person has
6-17 successfully completed a voluntary cleanup approved under this
6-18 subchapter, the executive director shall certify that the action
6-19 has been completed by issuing the person a certificate of
6-20 completion.
6-21 (b) The certificate of completion shall:
6-22 (1) acknowledge the protection from liability provided
6-23 by Section 361.610;
6-24 (2) indicate the proposed future land use; and
6-25 (3) include a legal description of the site and the
6-26 name of the site's owner at the time the application to participate
6-27 in the voluntary cleanup program was filed, the name of the owner
6-28 of the property at the time the certificate is issued, and the name
6-29 of any known persons released from liability.
6-30 (c) The executive director shall file or direct the
7-1 applicant to file a copy of the certificate of completion in the
7-2 real property records of the county in which the site is located.
7-3 (d) If the executive director determines that the person has
7-4 not successfully completed a voluntary cleanup approved under this
7-5 subchapter, the executive director shall notify the person who
7-6 undertook the voluntary cleanup and the current owner of the site
7-7 that is the subject of the cleanup of this determination in
7-8 writing. Such notice shall specifically describe all deficiencies
7-9 in the cleanup effort, and provide the applicant and/or current
7-10 owner of the site with an opportunity to cure such deficiencies.
7-11 In the event that the applicant and/or current owner are unable to
7-12 reach an agreement with the executive director on a remedy to cure
7-13 the deficiencies within 30 days from the date of receipt of the
7-14 notice, the applicant and/or current owner shall be entitled to
7-15 petition the commission for review of the determination and the
7-16 proposed remedy to cure the alleged deficiencies.
7-17 SECTION 7. Section 361.610, Health and Safety Code, is
7-18 amended to read as follows:
7-19 (a) At the time the commission issues a certificate of
7-20 completion under Section 361.609, a [A] person identified in the
7-21 application, who is [not] a responsible party under Section 361.271
7-22 or 361.275(g) at the time the application [person applies] to
7-23 perform a voluntary cleanup is approved, is released [, on
7-24 certification under Section 361.609,] from all liability to the
7-25 state for cleanup of areas of the site covered by the certificate
7-26 [certification], except for releases and consequences that either
7-27 result from or are directly caused by the subsequent acts of the
7-28 person released [causes].
7-29 (b) The release from liability provided by this section does
7-30 not apply to a person who:
8-1 (1) acquires [is not effective if] a certificate of
8-2 completion [is acquired] by fraud, misrepresentation, or knowing
8-3 failure to disclose material information;
8-4 (2) knows at the time the person acquires an interest
8-5 in the site for which the certificate of completion was issued that
8-6 the certificate was acquired in a manner provided in Subdivision
8-7 (1);
8-8 (3) changes land use from the use specified in the
8-9 certificate of completion if the new use may result in increased
8-10 risks to human health or the environment; or
8-11 (4) causes or takes any action which disturbs or
8-12 modifies the remediation accomplished during the voluntary cleanup
8-13 in a manner that may result in increased risks to human health or
8-14 the environment.
8-15 (c) If a certificate of completion for a site is issued by
8-16 the commission, an owner who acquires the property on which the
8-17 site is located or a lender who makes a loan secured by that
8-18 property after the date of the approval of a voluntary cleanup
8-19 agreement [issuance of the certificate] is released from all
8-20 liability for cleanup of contamination released before the date of
8-21 the certificate for the areas covered by the certificate [unless
8-22 the owner or lender was originally included as a responsible party
8-23 under Section 361.271 or 361.275(g)]. A release of liability does
8-24 not apply to a person who changes land use from the use specified
8-25 in the certificate of completion if the new use may result in
8-26 increased risks to human health or the environment.
8-27 (d) A person released from liability pursuant to this
8-28 section, other than a person described in Subsection (b), shall not
8-29 be liable to the state for any increased risk to human health or
8-30 the environment subsequent to the issuance of a certificate of
9-1 completion.
9-2 SECTION 8. Section 361.275(a), Health and Safety Code, is
9-3 amended to read as follows:
9-4 (a) A person responsible for solid waste under
9-5 Section 361.271 is liable under Section 361.272 or 361.273 unless:
9-6 (1) the person can establish by a preponderance of the
9-7 evidence that the release or threatened release was caused solely
9-8 by:
9-9 (A) [(1)] an act of God;
9-10 (B) [(2)] an act of war;
9-11 (C) [(3)] an act or omission of a third person;
9-12 or
9-13 (D) [(4)] any combination of Paragraphs (A),
9-14 (B), and (C) [Subdivisions (1), (2), and (3)] ; or
9-15 (2) the person was released from liability pursuant to
9-16 Section 361.610.
9-17 SECTION 9. (a) This Act takes effect September 1, 1997.
9-18 (b) A person to whom notice of rejection of an application is
9-19 issued under Section 361.605, Health and Safety Code, before the
9-20 effective date of this Act may resubmit the application once
9-21 without submitting an additional application fee if the person
9-22 resubmits the application not later than October 15, 1997.
9-23 SECTION 10. The importance of this legislation and the
9-24 crowded condition of the calendars in both houses create an
9-25 emergency and an imperative public necessity that the
9-26 constitutional rule requiring bills to be read on three several
9-27 days in each house be suspended, and this rule is hereby suspended.