By Jackson H.B. No. 2776
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of state superfund sites.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 361.133, Health and Safety Code, is
1-5 amended by adding Subsections (g)-(i) to read as follows:
1-6 (g) Notwithstanding Subsection (c), the executive director
1-7 may use money in the fund, including interest credited under
1-8 Subsection (b)(4), for expenses concerning a cleanup or removal of
1-9 a spill, release, or potential threat of release of a hazardous
1-10 substance if the site is eligible for listing under Subchapter F,
1-11 proposed for listing under Subchapter F, or listed under the state
1-12 registry before September 1, 1989, and:
1-13 (1) immediate action is appropriate to protect human
1-14 health or the environment and there is a substantial likelihood
1-15 that the cleanup or removal will prevent the site from needing to
1-16 be listed under Subchapter F; or
1-17 (2) a cleanup or removal:
1-18 (A) can be completed without extensive
1-19 investigation and planning; and
1-20 (B) will achieve a significant cost reduction
1-21 for the site.
1-22 (h) If the commission collects a fee that is deposited in a
1-23 dedicated fund established for the purpose of cleaning up a
1-24 facility, tank, or site described by this subsection, the
2-1 commission may not use money in the hazardous and solid waste
2-2 remediation fee fund to clean up a:
2-3 (1) waste tire recycling facility;
2-4 (2) municipal solid waste facility;
2-5 (3) petroleum storage tank; or
2-6 (4) used oil collection and recycling site that
2-7 received used oil after August 31, 1995.
2-8 (i) Not later than the 31st day before the date the
2-9 commission begins a cleanup or removal under Subsection (g) the
2-10 commission must publish notice of its intent to perform the cleanup
2-11 or removal in the Texas Register.
2-12 SECTION 2. Section 361.136(i), Health and Safety Code, is
2-13 amended to read as follows:
2-14 (i) The storage, processing, or disposal of industrial solid
2-15 wastes or hazardous wastes generated in a removal or remedial
2-16 action accomplished through the expenditure of money [public funds]
2-17 from the hazardous and solid waste remediation fee fund or
2-18 generated in a removal or remedial action in this state conducted
2-19 by the United States Environmental Protection Agency shall be
2-20 exempt from the assessment of a waste management fee under this
2-21 section.
2-22 SECTION 3. Section 361.183(a), Health and Safety Code, is
2-23 amended to read as follows:
2-24 (a) Before [the] listing [of] a facility on the state
2-25 registry, the executive director shall determine whether the
2-26 potential endangerment to public health and safety or the
2-27 environment at the facility can be resolved by:
3-1 (1) the present owner or operator under the federal
3-2 Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section
3-3 6901);
3-4 (2) [or by] some or all of the potentially responsible
3-5 parties identified in Subchapter I, under an agreed administrative
3-6 order issued by the commission; or
3-7 (3) an agreement under Subchapter S, as added by
3-8 Chapter 986, Acts of the 74th Legislature, Regular Session, 1995.
3-9 SECTION 4. Subchapter F, Chapter 361, Health and Safety
3-10 Code, is amended by adding Section 361.1855 to read as follows:
3-11 Sec. 361.1855. PROPOSAL OF LAND USE OTHER THAN RESIDENTIAL.
3-12 (a) The executive director shall hold a public meeting to obtain
3-13 public input and information regarding the appropriate use of land
3-14 on which a facility is located that is the subject of a remedial
3-15 investigation/feasibility study if:
3-16 (1) a land use other than residential is proposed as
3-17 appropriate for the land by:
3-18 (A) the executive director; or
3-19 (B) a potentially responsible party who has
3-20 entered into an agreed order with the commission;
3-21 (2) the proposal is made before the study is
3-22 completed; and
3-23 (3) a local government has not zoned the land as
3-24 residential only.
3-25 (b) Any interested person may comment at the meeting.
3-26 (c) The meeting is legislative in nature and not a contested
3-27 case hearing under Chapter 2001, Government Code.
4-1 (d) Not later than the 31st day before the date of the
4-2 meeting, the commission shall:
4-3 (1) publish notice of the meeting in the Texas
4-4 Register and in a newspaper of general circulation in the county in
4-5 which the facility is located;
4-6 (2) mail notice of the meeting to each potentially
4-7 responsible party by certified mail, return receipt requested, at
4-8 the party's most recent address as shown on the records of the
4-9 commission; and
4-10 (3) make the commission's records regarding the
4-11 facility available to any interested person.
4-12 (e) The notice shall:
4-13 (1) state the date, time, and place of the meeting;
4-14 and
4-15 (2) provide information regarding the proposed land
4-16 use.
4-17 (f) The failure of a potentially responsible party to
4-18 receive a notice under this section does not affect the
4-19 responsibilities, duties, or liabilities of the party.
4-20 (g) After the meeting, the executive director shall select
4-21 the appropriate land use for purposes of selecting a proposed
4-22 remedial action.
4-23 SECTION 5. Section 361.187(b), Health and Safety Code, is
4-24 amended to read as follows:
4-25 (b) The commission shall publish notice of the meeting in
4-26 the Texas Register and in a newspaper of general circulation in the
4-27 county in which the facility is located at least 30 [45] days
5-1 before the date of the public meeting. The notice shall provide
5-2 information regarding the proposed remedial action and the date,
5-3 time, and place of the meeting. The commission shall also mail the
5-4 same information to each potentially responsible party by certified
5-5 mail, return receipt requested, at the party's last known address
5-6 at least 30 [45] days before the public meeting. Contemporaneously
5-7 with the issuance of notice of the public meeting, the executive
5-8 director shall make available to all interested parties the public
5-9 records the executive director has regarding the facility. For
5-10 purposes of providing this information, the executive director
5-11 shall provide a brief summary of those public records and make
5-12 those public records available for inspection and copying during
5-13 regular business hours. Nonreceipt of any notice mailed to a
5-14 potentially responsible party under this section does not affect
5-15 the responsibilities, duties, or liabilities imposed on the party.
5-16 SECTION 6. Section 361.188(a), Health and Safety Code, is
5-17 amended to read as follows:
5-18 (a) After consideration of all good faith offers to perform
5-19 a remedial action, the commission shall issue a final
5-20 administrative order that must:
5-21 (1) list the facility on the state registry, thus
5-22 determining that the facility poses an imminent and substantial
5-23 endangerment to public health and safety or the environment;
5-24 (2) specify the appropriate land use for purposes of
5-25 selecting the appropriate remedial action;
5-26 (3) specify the selected remedial action;
5-27 (4) [(3)] list the parties determined to be
6-1 responsible for remediating the facility;
6-2 (5) [(4)] make findings of fact describing actions
6-3 voluntarily undertaken by responsible parties;
6-4 (6) [(5)] order the responsible parties to remediate
6-5 the facility and, if appropriate, reimburse the hazardous waste
6-6 disposal fee fund for remedial investigation/feasibility study and
6-7 remediation costs;
6-8 (7) [(6)] establish a schedule for completion of the
6-9 remedial action;
6-10 (8) [(7)] state any determination of divisibility of
6-11 responsible party liability; and
6-12 (9) [(8)] give notice of the duties and restrictions
6-13 imposed by Section 361.190.
6-14 SECTION 7. Section 361.189, Health and Safety Code, is
6-15 amended to read as follows:
6-16 Sec. 361.189. Deletions from Registry. (a) The executive
6-17 director or an [Any] owner or operator or other named responsible
6-18 party of a facility listed or to be listed on the state registry
6-19 may request the commission to delete the facility from the state
6-20 registry, modify the facility's priority within the state registry,
6-21 or modify any information regarding the facility by submitting a
6-22 written statement setting forth the grounds of the request in the
6-23 form the commission may by rule require.
6-24 (b) The commission by rule shall establish procedures,
6-25 including public meetings [hearings], for review of requests
6-26 submitted under this section.
6-27 (c) If the commission deletes a facility from the state
7-1 registry because the cleanup of the facility is being addressed
7-2 under Subchapter S, as added by Chapter 986, Acts of the 74th
7-3 Legislature, Regular Session, 1995, the facility automatically
7-4 reverts to the status the facility had immediately before the
7-5 facility was deleted from the registry on the date of the executive
7-6 director's determination that the cleanup of the facility is not
7-7 being addressed adequately. A public meeting is not required for
7-8 an action under this subsection.
7-9 SECTION 8. Sections 361.194(b) and (c), Health and Safety
7-10 Code, are amended to read as follows:
7-11 (b) The lien imposed by this section arises and attaches to
7-12 the real property subject to or affected by a remedial action at
7-13 the time an affidavit is recorded and indexed in accordance with
7-14 this section in the county in which the real property is located.
7-15 The executive director shall determine whether to prepare an
7-16 affidavit. In making the determination, the executive director
7-17 shall proceed in the manner that the executive director determines
7-18 will most likely result in the least overall costs to the state
7-19 after any cost recovery action. For the purpose of determining
7-20 rights of all affected parties, the lien does not relate back to a
7-21 time before the date on which the affidavit is recorded, which date
7-22 is the lien inception date. The lien continues until the liability
7-23 for the costs is satisfied or becomes unenforceable through
7-24 operation of law.
7-25 (c) An authorized representative of the commission must
7-26 [shall] execute the affidavit. The affidavit must show:
7-27 (1) the names and addresses of the persons liable for
8-1 the costs;
8-2 (2) a description of the real property that is subject
8-3 to or affected by the remediation action for the costs or claims;
8-4 and
8-5 (3) the amount of the costs and the balance due.
8-6 SECTION 9. Section 361.197, Health and Safety Code, is
8-7 amended by adding Subsection (d) to read as follows:
8-8 (d) The commission shall file a cost recovery action against
8-9 each responsible party for the total costs of an action taken under
8-10 Section 361.133(c)(1), (2), (3), (5), or (6) or Section 361.133(g).
8-11 SECTION 10. Section 361.200, Health and Safety Code, is
8-12 amended to read as follows:
8-13 Sec. 361.200. [DE MINIMIS] SETTLEMENT. The commission shall
8-14 assess and by rule may develop and implement a [de minimis]
8-15 settlement program. Under the program, the commission shall
8-16 consider the advantages of developing a final settlement with
8-17 potentially responsible parties that are responsible for [only a
8-18 minor portion of the] response costs at a facility because of [the]
8-19 hazardous substances. The settlement program may include:
8-20 (1) de minimis settlements;
8-21 (2) covenants not to sue;
8-22 (3) mixed funding; and
8-23 (4) partial settlements [the party is responsible for
8-24 are minimal in amount or in hazardous effect by comparison with the
8-25 hazardous substances attributable to other parties].
8-26 SECTION 11. Section 361.271, Health and Safety Code, is
8-27 amended by adding Subsections (e) and (f) to read as follows:
9-1 (e) A fiduciary's responsibility for solid waste is subject
9-2 to Subchapter T.
9-3 (f) A lender's responsibility for solid waste is subject to
9-4 Subchapter U.
9-5 SECTION 12. Section 361.277, Health and Safety Code, is
9-6 amended to read as follows:
9-7 Sec. 361.277. EFFECT OF SETTLEMENT AGREEMENT WITH STATE
9-8 [JUDGMENT BY STATE AGAINST NONSETTLING PARTY; ACTION FOR
9-9 CONTRIBUTION BY NONSETTLING PARTY]. (a) If fewer than all of the
9-10 persons identified as liable under this subchapter agree with the
9-11 state to take remedial action to abate an actual or threatened
9-12 release of solid waste that is an imminent and substantial
9-13 endangerment to the public health and safety or the environment
9-14 under an administrative order issued under Section 361.272 or an
9-15 action filed by the state under this subchapter, the state may seek
9-16 a judgment against a nonsettling person for the total amount of the
9-17 cost of the remedial action minus that amount the settling persons
9-18 agree to pay or spend.
9-19 (b) A person who enters a settlement agreement with the
9-20 state that resolves all liability of the person to the state for a
9-21 site subject to Subchapter F is released from liability to a person
9-22 described by Section 361.344(a) for cost recovery, contribution, or
9-23 indemnity under Section 361.344 regarding a matter addressed in the
9-24 settlement agreement.
9-25 (c) A settlement agreement does not discharge the liability
9-26 of a nonsettling person to the state unless the agreement provides
9-27 otherwise.
10-1 (d) Notwithstanding Subsection (c), a settlement agreement
10-2 reduces the potential liability to the state of the nonsettling
10-3 persons by the amount of the settlement [In an action for
10-4 contribution brought by a nonsettling person against a settling
10-5 person, the nonsettling person has the burden to prove that the
10-6 amount of cleanup costs that a settling person agreed to pay under
10-7 an agreement with the state is unreasonable considering the factors
10-8 under Section 361.343 and the need to undertake timely cleanup
10-9 action concerning the release or threatened release].
10-10 SECTION 13. Section 361.343, Health and Safety Code, is
10-11 amended by amending Subsection (b) and adding Subsection (c) to
10-12 read as follows:
10-13 (b) In apportioning costs under Subsection (a), the court
10-14 shall credit against a responsible party's share of the costs of
10-15 eliminating a release or threatened release of solid waste the
10-16 party's expenditures related to the cleanup at issue if the
10-17 commission or the executive director approves the cleanup. If the
10-18 expenditures were made before the property was proposed to be
10-19 listed on the state registry and the commission or the executive
10-20 director approves the cleanup, the court shall also reduce in an
10-21 equitable and just manner the party's proportionate share of the
10-22 costs.
10-23 (c) The apportionment of costs only adjusts the rights of
10-24 parties identified by Section 361.271 and does not affect a
10-25 person's liability to the state.
10-26 SECTION 14. Section 361.344(a), Health and Safety Code, is
10-27 amended to read as follows:
11-1 (a) A person [subject to a court injunction or an
11-2 administrative order issued under this chapter, or a third person
11-3 identified by Section 361.192(c)] who, with commission approval,
11-4 acts to eliminate a release or threatened release, in addition to
11-5 having the right to file an action for contribution or indemnity,
11-6 or both, in an appeal proceeding or in an action brought by the
11-7 attorney general, may bring suit in a district court to recover
11-8 costs incurred to eliminate the release or threatened release and
11-9 other costs as the court, in its discretion, considers reasonable.
11-10 SECTION 15. Chapter 361, Health and Safety Code, is amended
11-11 by adding Subchapters T, U, and V to read as follows:
11-12 SUBCHAPTER T. FIDUCIARY LIABILITY
11-13 Sec. 361.651. DEFINITIONS. In this subchapter:
11-14 (1) "Fiduciary":
11-15 (A) means a person acting for the benefit of
11-16 another party as a bona fide:
11-17 (i) trustee;
11-18 (ii) executor;
11-19 (iii) administrator;
11-20 (iv) custodian;
11-21 (v) guardian of an estate or guardian ad
11-22 litem;
11-23 (vi) receiver;
11-24 (vii) conservator;
11-25 (viii) committee of the estate of an
11-26 incapacitated person;
11-27 (ix) personal representative;
12-1 (x) trustee, including a successor to a
12-2 trustee, under an indenture agreement, trust agreement, lease, or
12-3 similar financing agreement, for debt securities, certificates of
12-4 interest or certificates of participation in debt securities, or
12-5 other forms of indebtedness as to which the trustee is not, in the
12-6 capacity of trustee, the lender; or
12-7 (xi) representative in any other capacity
12-8 that the commission, after providing public notice, determines to
12-9 be similar to the capacities described in Subparagraphs (i)-(x);
12-10 and
12-11 (B) does not include:
12-12 (i) a person that is acting as a fiduciary
12-13 with respect to a trust or other fiduciary estate that was
12-14 organized for the primary purpose of, or is engaged in, actively
12-15 carrying on a trade or business for profit, unless the trust or
12-16 other fiduciary estate was created as part of, or to facilitate,
12-17 one or more estate plans or because of the incapacity of a natural
12-18 person; or
12-19 (ii) a person that acquires ownership or
12-20 control of a solid waste facility with the objective purpose of
12-21 avoiding liability of the person or of any other person.
12-22 (2) "Fiduciary capacity" means the capacity of a
12-23 person in holding title to a solid waste facility or otherwise
12-24 having control of or an interest in the solid waste facility
12-25 pursuant to the exercise of the responsibilities of the person as a
12-26 fiduciary.
12-27 (3) "Solid waste facility":
13-1 (A) means:
13-2 (i) all contiguous land, including
13-3 structures, appurtenances, and other improvements on the land, used
13-4 for processing, storing, or disposing of solid waste, including a
13-5 publicly or privately owned solid waste facility consisting of
13-6 several processing, storage, or disposal operational units such as
13-7 one or more landfills, surface impoundments, or a combination of
13-8 units; and
13-9 (ii) any building, structure,
13-10 installation, equipment, pipe, or pipeline, including any pipe into
13-11 a sewer or publicly owned treatment works, well, pit, pond, lagoon,
13-12 impoundment, ditch, landfill, storage container, motor vehicle,
13-13 rolling stock, or aircraft, or any site or area where a hazardous
13-14 substance has been deposited, stored, disposed of, placed, or
13-15 otherwise come to be located; and
13-16 (B) does not include a:
13-17 (i) consumer product in consumer use; or
13-18 (ii) vessel.
13-19 Sec. 361.652. LIABILITY OF FIDUCIARIES. (a) Except as
13-20 otherwise provided by Subchapter I, Chapter 26, Water Code, or
13-21 rules adopted under that subchapter, the liability of a fiduciary
13-22 under this code or the Water Code for the release or threatened
13-23 release of solid waste at, from, or in connection with a solid
13-24 waste facility held in a fiduciary capacity does not exceed the
13-25 assets held in the fiduciary capacity.
13-26 (b) Subsection (a) does not apply to the extent that a
13-27 person is liable independently of the person's ownership of a solid
14-1 waste facility as a fiduciary or actions taken in a fiduciary
14-2 capacity.
14-3 (c) Subsections (a) and (d) do not limit the liability
14-4 pertaining to a release or threatened release of solid waste if
14-5 negligence of a fiduciary causes or contributes to the release or
14-6 threatened release.
14-7 (d) Except as otherwise provided by Subchapter I, Chapter
14-8 26, Water Code, or rules adopted under that subchapter, a fiduciary
14-9 is not liable in the fiduciary's personal capacity under this code
14-10 or the Water Code for:
14-11 (1) undertaking or directing another person to
14-12 undertake a response action under the national contingency plan
14-13 adopted under 42 U.S.C. Section 9605, under a commission-approved
14-14 cleanup plan, or under the direction of an on-scene coordinator
14-15 designated under the national contingency plan or a
14-16 commission-approved cleanup plan;
14-17 (2) undertaking or directing another person to
14-18 undertake any other lawful means of addressing solid waste in
14-19 connection with the solid waste facility;
14-20 (3) terminating the fiduciary relationship;
14-21 (4) including in the terms of the fiduciary agreement
14-22 a covenant, warranty, or other term or condition that relates to
14-23 compliance with an environmental law or monitoring or enforcing the
14-24 term or condition;
14-25 (5) monitoring or undertaking one or more inspections
14-26 of the solid waste facility;
14-27 (6) providing financial or other advice or counseling
15-1 to other parties to the fiduciary relationship, including the
15-2 settlor or beneficiary;
15-3 (7) restructuring, renegotiating, or otherwise
15-4 altering the terms and conditions of the fiduciary relationship;
15-5 (8) administering, as a fiduciary, a solid waste
15-6 facility that was contaminated before the fiduciary relationship
15-7 began; or
15-8 (9) declining to take an action described by
15-9 Subdivisions (2)-(8).
15-10 (e) This section does not:
15-11 (1) affect a right, immunity, or defense available
15-12 under this code or the Water Code that is applicable to a person
15-13 subject to this section;
15-14 (2) create any liability for a person; or
15-15 (3) create a private right of action against a
15-16 fiduciary or any other person.
15-17 (f) This section does not apply to a person if the person:
15-18 (1) acts in a capacity other than that of a fiduciary
15-19 or in a beneficiary capacity and, in that capacity, directly or
15-20 indirectly benefits from a trust or fiduciary relationship; or
15-21 (2) is a beneficiary and a fiduciary with respect to
15-22 the same fiduciary estate and, as a fiduciary, receives benefits
15-23 that exceed customary or reasonable compensation, and incidental
15-24 benefits, permitted under other applicable law.
15-25 (g) This section does not preclude a claim under this code
15-26 or the Water Code against:
15-27 (1) the assets of the estate or trust administered by
16-1 the fiduciary; or
16-2 (2) a nonemployee agent or independent contractor
16-3 retained by a fiduciary.
16-4 (Sections 361.653-361.700 reserved for expansion)
16-5 SUBCHAPTER U. LENDER LIABILITY
16-6 Sec. 361.701. DEFINITIONS. In this subchapter:
16-7 (1) "Extension of credit" includes a lease finance
16-8 transaction:
16-9 (A) in which the lessor does not initially
16-10 select the leased solid waste facility and does not during the
16-11 lease term control the daily operations or maintenance of the solid
16-12 waste facility; or
16-13 (B) that conforms with, as appropriate,
16-14 regulations issued by:
16-15 (i) the appropriate federal banking agency
16-16 or the appropriate state bank supervisor, as those terms are
16-17 defined by Section 3, Federal Deposit Insurance Act (12 U.S.C.
16-18 Section 1813); or
16-19 (ii) the National Credit Union
16-20 Administration Board.
16-21 (2) "Financial or administrative function" includes a
16-22 function such as a function of a credit manager, accounts payable
16-23 officer, accounts receivable officer, personnel manager,
16-24 comptroller, or chief financial officer, or a similar function.
16-25 (3) "Foreclosure" and "foreclose" mean, respectively,
16-26 acquiring, and to acquire, a solid waste facility through:
16-27 (A) purchase at sale under a judgment or decree,
17-1 power of sale, or nonjudicial foreclosure sale;
17-2 (B) a deed in lieu of foreclosure, or similar
17-3 conveyance from a trustee;
17-4 (C) repossession, if the solid waste facility
17-5 was security for an extension of credit previously contracted;
17-6 (D) conveyance under an extension of credit
17-7 previously contracted, including the termination of a lease
17-8 agreement; or
17-9 (E) any other formal or informal manner by which
17-10 the person acquires, for subsequent disposition, title to or
17-11 possession of a solid waste facility in order to protect the
17-12 security interest of the person.
17-13 (4) "Lender" means:
17-14 (A) an insured depository institution, as that
17-15 term is defined by Section 3, Federal Deposit Insurance Act (12
17-16 U.S.C. Section 1813);
17-17 (B) an insured credit union, as that term is
17-18 defined by Section 101, Federal Credit Union Act (12 U.S.C. Section
17-19 1752);
17-20 (C) a bank or association chartered under the
17-21 Farm Credit Act of 1971 (12 U.S.C. Section 2001 et seq.);
17-22 (D) a leasing or trust company that is an
17-23 affiliate of an insured depository institution;
17-24 (E) any person, including a successor or
17-25 assignee of any such person, that makes a bona fide extension of
17-26 credit to or takes or acquires a security interest from a
17-27 nonaffiliated person;
18-1 (F) the Federal National Mortgage Association,
18-2 the Federal Home Loan Mortgage Corporation, the Federal
18-3 Agricultural Mortgage Corporation, or any other entity that in a
18-4 bona fide manner buys or sells loans or interests in loans;
18-5 (G) a person that insures or guarantees against
18-6 a default in the repayment of an extension of credit, or acts as a
18-7 surety with respect to an extension of credit, to a nonaffiliated
18-8 person; and
18-9 (H) a person that provides title insurance and
18-10 that acquires a solid waste facility as a result of assignment or
18-11 conveyance in the course of underwriting claims and claims
18-12 settlement.
18-13 (5) "Operational function" includes a function such as
18-14 that of a facility or plant manager, operations manager, chief
18-15 operating officer, or chief executive officer.
18-16 (6) "Security interest" includes a right under a
18-17 mortgage, deed of trust, assignment, judgment lien, pledge,
18-18 security agreement, factoring agreement, or lease and any other
18-19 right accruing to a person to secure the repayment of money, the
18-20 performance of a duty, or any other obligation by a nonaffiliated
18-21 person.
18-22 (7) "Solid waste facility":
18-23 (A) means:
18-24 (i) all contiguous land, including
18-25 structures, appurtenances, and other improvements on the land, used
18-26 for processing, storing, or disposing of solid waste, including a
18-27 publicly or privately owned solid waste facility consisting of
19-1 several processing, storage, or disposal operational units such as
19-2 one or more landfills, surface impoundments, or a combination of
19-3 units; and
19-4 (ii) any building, structure,
19-5 installation, equipment, pipe, or pipeline, including any pipe into
19-6 a sewer or publicly owned treatment works, well, pit, pond, lagoon,
19-7 impoundment, ditch, landfill, storage container, motor vehicle,
19-8 rolling stock, or aircraft, or any site or area where a hazardous
19-9 substance has been deposited, stored, disposed of, placed, or
19-10 otherwise come to be located; and
19-11 (B) does not include a:
19-12 (i) consumer product in consumer use; or
19-13 (ii) vessel.
19-14 Sec. 361.702. EXCLUSION OF LENDERS NOT PARTICIPANTS IN
19-15 MANAGEMENT. (a) In Section 361.271, the term "owner or operator"
19-16 does not include a person that is a lender that:
19-17 (1) without participating in the management of a solid
19-18 waste facility, holds a security interest in or with regard to the
19-19 solid waste facility; or
19-20 (2) did not participate in management of a solid waste
19-21 facility before foreclosure, notwithstanding the fact that the
19-22 person:
19-23 (A) forecloses on the solid waste facility; and
19-24 (B) after foreclosure, sells, re-leases, in the
19-25 case of a lease finance transaction, or liquidates the solid waste
19-26 facility, maintains business activities, winds up operations,
19-27 undertakes a response action with respect to the solid waste
20-1 facility under the national contingency plan adopted under 42
20-2 U.S.C. Section 9605, under a commission-approved cleanup plan, or
20-3 under the direction of an on-scene coordinator appointed under the
20-4 national contingency plan or a commission-approved cleanup plan, or
20-5 takes any other measure to preserve, protect, or prepare the solid
20-6 waste facility before sale or disposition, if the person seeks to
20-7 sell, re-lease, in the case of a finance transaction, or otherwise
20-8 divest the person of the facility at the earliest practicable,
20-9 commercially reasonable time, on commercially reasonable terms,
20-10 taking into account market conditions and legal and regulatory
20-11 requirements.
20-12 (b) For purposes of Subsection (a)(2)(B), a lender is
20-13 presumed to divest the lender of the solid waste facility at the
20-14 earliest practicable, commercially reasonable time if, within 12
20-15 months after foreclosure, the lender:
20-16 (1) lists the solid waste facility with a broker,
20-17 dealer, or agent who deals in that type of property; or
20-18 (2) advertises the solid waste facility for sale or
20-19 other disposition at least monthly in:
20-20 (A) a real estate publication;
20-21 (B) a trade or other publication appropriate for
20-22 the solid waste facility being advertised; or
20-23 (C) a newspaper of general circulation in the
20-24 area in which the solid waste facility is located.
20-25 (c) For purposes of Subsection (b), the 12-month period
20-26 begins:
20-27 (1) when the lender acquires marketable title if the
21-1 lender, after the expiration of any redemption period or other
21-2 waiting period required by law, was acting diligently to acquire
21-3 marketable title; or
21-4 (2) on the date of foreclosure or its equivalent if
21-5 the lender does not act diligently to acquire marketable title.
21-6 (d) Except as otherwise provided by Subchapter I, Chapter
21-7 26, Water Code, or rules adopted under that subchapter, a lender is
21-8 not liable under this code or the Water Code to undertake a removal
21-9 or remedial action or to pay a fine or penalty arising from the
21-10 release or threatened release of solid waste at, from, or in
21-11 connection with the solid waste facility in which the lender
21-12 maintains a security interest or that the lender has acquired
21-13 through foreclosure if:
21-14 (1) the lender has not participated in management
21-15 before foreclosure;
21-16 (2) the conditions giving rise to the release or
21-17 threat of release existed before foreclosure; and
21-18 (3) the lender seeks to divest the lender of the
21-19 property under Subsections (a)(2)(B) and (b).
21-20 (e) Notwithstanding Subsection (d), if a lender after
21-21 foreclosure operates, directs the operation of, or maintains the
21-22 operation of business activities, this section does not exempt or
21-23 excuse the lender from compliance with legal requirements
21-24 applicable to the operation of that business. Those operational
21-25 requirements include permitting, reporting, monitoring, compliance
21-26 with emission limitations, financial responsibility and assurance
21-27 requirements, payment of fees, and payment of fines and penalties
22-1 for noncompliance with those requirements.
22-2 Sec. 361.703. PARTICIPATION IN MANAGEMENT. (a) For
22-3 purposes of Section 361.702, the term "participate in management":
22-4 (1) means actually participating in the management or
22-5 operational affairs of a solid waste facility; and
22-6 (2) does not include merely having the capacity to
22-7 influence, or the unexercised right to control, a solid waste
22-8 facility or facility operations.
22-9 (b) A person that is a lender that holds a security interest
22-10 in or with regard to a solid waste facility is considered to
22-11 participate in management only if, while the borrower is still in
22-12 possession of the solid waste facility encumbered by the security
22-13 interest, the person:
22-14 (1) exercises decision-making control over the
22-15 environmental compliance related to the solid waste facility such
22-16 that the person has undertaken responsibility for the solid waste
22-17 handling or disposal practices related to the solid waste facility;
22-18 or
22-19 (2) exercises control at a level comparable to that of
22-20 a manager of the solid waste facility such that the person has
22-21 assumed or manifested responsibility:
22-22 (A) for the overall management of the solid
22-23 waste facility encompassing day-to-day decisionmaking with respect
22-24 to environmental compliance; or
22-25 (B) over all or substantially all of the
22-26 operational functions, as distinguished from financial or
22-27 administrative functions, of the solid waste facility other than
23-1 the function of environmental compliance.
23-2 (c) The term "participate in management" does not include:
23-3 (1) performing an act or failing to act before the
23-4 time at which a security interest is created in a solid waste
23-5 facility;
23-6 (2) holding a security interest or abandoning or
23-7 releasing a security interest;
23-8 (3) including in the terms of an extension of credit,
23-9 or in a contract or security agreement relating to the extension, a
23-10 covenant, warranty, or other term or condition that relates to
23-11 environmental compliance;
23-12 (4) monitoring or enforcing the terms and conditions
23-13 of the extension of credit or security interest;
23-14 (5) monitoring or undertaking one or more inspections
23-15 of the solid waste facility;
23-16 (6) requiring a response action or other lawful means
23-17 of addressing the release or threatened release of solid waste in
23-18 connection with the solid waste facility before, during, or on the
23-19 expiration of the term of the extension of credit;
23-20 (7) providing financial or other advice or counseling
23-21 in an effort to mitigate, prevent, or cure default or diminution in
23-22 the value of the solid waste facility;
23-23 (8) restructuring, renegotiating, or otherwise
23-24 agreeing to alter the terms and conditions of the extension of
23-25 credit or security interest, exercising forbearance;
23-26 (9) exercising other remedies that may be available
23-27 under applicable law for the breach of a term or condition of the
24-1 extension of credit or security agreement; or
24-2 (10) conducting a response action under the national
24-3 contingency plan adopted under 42 U.S.C. Section 9605, under a
24-4 commission-approved cleanup plan, or under the direction of an
24-5 on-scene coordinator appointed under the national contingency plan
24-6 or a commission-approved cleanup plan, if the actions do not rise
24-7 to the level of participating in management within the meaning of
24-8 Subsections (a) and (b).
24-9 (Sections 361.704-361.750 reserved for expansion
24-10 SUBCHAPTER V. IMMUNITY FROM LIABILITY OF INNOCENT OWNER OR
24-11 OPERATOR
24-12 Sec. 361.751. DEFINITIONS. In this subchapter:
24-13 (1) "Contaminant" includes only a contaminant,
24-14 pollutant, or other substance regulated under this code or the
24-15 Water Code.
24-16 (2) "Innocent owner or operator" means a person that:
24-17 (A) is an owner or operator of property that has
24-18 become contaminated as a result of a release or migration of
24-19 contaminants from a source or sources not located on or at the
24-20 property; and
24-21 (B) did not cause or contribute to the
24-22 contamination.
24-23 Sec. 361.752. IMMUNITY FROM LIABILITY; ACCESS TO PROPERTY.
24-24 (a) An innocent owner or operator of property is not liable under
24-25 this code or the Water Code for investigation, monitoring,
24-26 remediation, or corrective or other response action regarding the
24-27 conditions attributable to a release or migration of a contaminant
25-1 or otherwise liable regarding those conditions.
25-2 (b) To be eligible for immunity under Subsection (a), an
25-3 owner or operator must grant reasonable access to the property for
25-4 purposes of investigation or remediation to a person designated by
25-5 the executive director. An agreement for reasonable access may
25-6 provide that:
25-7 (1) the designated person may not unreasonably
25-8 interfere with the use of the property; or
25-9 (2) the owner or operator is indemnified from
25-10 liability for an intentional or negligent act of the designated
25-11 person arising from the person's access to and use of the property.
25-12 (c) An agreement under this section does not limit any right
25-13 of the commission under another provision of this code or the Water
25-14 Code to obtain access to the property.
25-15 Sec. 361.753. CERTIFICATION. (a) A person may apply to the
25-16 commission for a certificate confirming that the person is an
25-17 innocent owner or operator. The application must include a
25-18 complete site investigation report that demonstrates that:
25-19 (1) the property has become contaminated as a result
25-20 of a release or migration of contaminants from a source or sources
25-21 not located on or at the property; and
25-22 (2) the owner or operator has not caused or
25-23 contributed to the contamination.
25-24 (b) The commission may charge an application fee in an
25-25 amount not to exceed the cost of reviewing the application.
25-26 (c) Not later than the 45th day after the date the
25-27 commission receives the application, the commission shall notify
26-1 the applicant whether the application is complete.
26-2 (d) Not later than the 90th day after the date the
26-3 commission receives the application, the commission shall:
26-4 (1) issue or deny the certificate; or
26-5 (2) notify the applicant of any additional information
26-6 needed to review the application.
26-7 (e) Not later than the 45th day after the date the
26-8 commission receives the additional information requested under
26-9 Subsection (d)(2), the commission shall issue or deny the
26-10 certificate.
26-11 (f) The certificate evidences the immunity from liability of
26-12 the applicant as provided by Section 361.752.
26-13 (g) The commission may condition the issuance of the
26-14 certificate on the placement of restrictions on the use of the
26-15 property that are reasonably necessary to protect the public
26-16 health, including:
26-17 (1) institutional controls such as deed restrictions
26-18 or municipal zoning restrictions; or
26-19 (2) at the owner's or operator's option, other control
26-20 measures.
26-21 Sec. 361.754. RIGHTS OF INNOCENT OWNER OR OPERATOR REGARDING
26-22 CONTAMINATION FROM SOURCE NOT LOCATED ON OR AT PROPERTY. This
26-23 subchapter does not limit the right of an innocent owner or
26-24 operator to pursue any remedy available at law or in equity for
26-25 conditions attributable to the release or migration of contaminants
26-26 from a source or sources that are not located on or at the
26-27 property.
27-1 SECTION 16. Subchapter C, Chapter 2155, Government Code, is
27-2 amended by adding Section 2155.145 to read as follows:
27-3 Sec. 2155.145. CERTAIN PURCHASES BY TEXAS NATURAL RESOURCE
27-4 CONSERVATION COMMISSION. The Texas Natural Resource Conservation
27-5 Commission is delegated all purchasing functions relating to the
27-6 administration of Subchapters F and I, Chapter 361, Health and
27-7 Safety Code, subject to the rules adopted by the commission under
27-8 Section 2155.132(c).
27-9 SECTION 17. Section 2166.003(a), Government Code, is amended
27-10 to read as follows:
27-11 (a) Unless otherwise provided, this chapter does not apply
27-12 to:
27-13 (1) a project constructed by and for the Texas
27-14 Department of Transportation;
27-15 (2) a project constructed by and for a state
27-16 institution of higher education;
27-17 (3) a pen, shed, or ancillary building constructed by
27-18 and for the Department of Agriculture for the processing of
27-19 livestock before export;
27-20 (4) a project constructed by the Parks and Wildlife
27-21 Department;
27-22 (5) a repair or rehabilitation project, except a major
27-23 renovation, of buildings and grounds on the commission inventory;
27-24 (6) a repair and rehabilitation project of another
27-25 using agency, if all labor for the project is provided by the
27-26 regular maintenance force of the using agency under specific
27-27 legislative authorization and the project does not require the
28-1 advance preparation of working plans or drawings; [or]
28-2 (7) a repair and rehabilitation project involving the
28-3 use of contract labor, if the project has been excluded from this
28-4 chapter by commission rule and does not require the advance
28-5 preparation of working plans or drawings; or
28-6 (8) an action taken by the Texas Natural Resource
28-7 Conservation Commission under Subchapter F or I, Chapter 361,
28-8 Health and Safety Code.
28-9 SECTION 18. Subchapter A, Chapter 2253, Government Code, is
28-10 amended by adding Section 2253.002 to read as follows:
28-11 Sec. 2253.002. EXEMPTION. This chapter does not apply to a
28-12 public work contract entered into by a state agency relating to an
28-13 action taken under Subchapter F or I, Health and Safety Code, or
28-14 Subchapter I, Chapter 26, Water Code.
28-15 SECTION 19. Section 26.265, Water Code, is amended by adding
28-16 Subsections (h), (i), and (j) to read as follows:
28-17 (h) Notwithstanding Subsection (g), a responsible person who
28-18 enters into a settlement agreement with the state that resolves all
28-19 liability of the person to the state for a site subject to
28-20 Subchapter F, Chapter 361, Health and Safety Code, is released from
28-21 liability to a person described by Section 361.344(a), Health and
28-22 Safety Code, for contribution or indemnity under this code
28-23 regarding a matter addressed in the settlement agreement.
28-24 (i) A settlement agreement does not discharge the liability
28-25 of a nonsettling person to the state unless the agreement provides
28-26 otherwise.
28-27 (j) Notwithstanding Subsection (i), a settlement agreement
29-1 reduces the potential liability to the state of the nonsettling
29-2 persons by the amount of the settlement.
29-3 SECTION 20. This Act takes effect September 1, 1997.
29-4 SECTION 21. The importance of this legislation and the
29-5 crowded condition of the calendars in both houses create an
29-6 emergency and an imperative public necessity that the
29-7 constitutional rule requiring bills to be read on three several
29-8 days in each house be suspended, and this rule is hereby suspended.