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 conducts a removal or
11-4 remedial action that is approved by the commission and is necessary
11-5 to address [acts to eliminate] a release or threatened release[,
11-6 in addition to having the right to file an action for contribution
11-7 or indemnity, or both, in an appeal proceeding or in an action
11-8 brought by the attorney general,] may bring suit in a district
11-9 court to recover the reasonable and necessary costs of that action
11-10 [incurred to eliminate the release or threatened release] and other
11-11 costs as the court, in its discretion, considers reasonable. This
11-12 right is in addition to the right to file an action for
11-13 contribution, indemnity, or both in an appeal proceeding or in an
11-14 action brought by the attorney general.
11-15 SECTION 15. Chapter 361, Health and Safety Code, is amended
11-16 by adding Subchapters T, U, and V to read as follows:
11-17 SUBCHAPTER T. FIDUCIARY LIABILITY
11-18 Sec. 361.651. DEFINITIONS. In this subchapter:
11-19 (1) "Fiduciary":
11-20 (A) means a person acting for the benefit of
11-21 another party as a bona fide:
11-22 (i) trustee;
11-23 (ii) executor;
11-24 (iii) administrator;
11-25 (iv) custodian;
11-26 (v) guardian of an estate or guardian ad
11-27 litem;
12-1 (vi) receiver;
12-2 (vii) conservator;
12-3 (viii) committee of the estate of an
12-4 incapacitated person;
12-5 (ix) personal representative;
12-6 (x) trustee, including a successor to a
12-7 trustee, under an indenture agreement, trust agreement, lease, or
12-8 similar financing agreement, for debt securities, certificates of
12-9 interest or certificates of participation in debt securities, or
12-10 other forms of indebtedness as to which the trustee is not, in the
12-11 capacity of trustee, the lender; or
12-12 (xi) representative in any other capacity
12-13 that the commission, after providing public notice, determines to
12-14 be similar to the capacities described in Subparagraphs (i)-(x);
12-15 and
12-16 (B) does not include:
12-17 (i) a person that is acting as a fiduciary
12-18 with respect to a trust or other fiduciary estate that was
12-19 organized for the primary purpose of, or is engaged in, actively
12-20 carrying on a trade or business for profit, unless the trust or
12-21 other fiduciary estate was created as part of, or to facilitate,
12-22 one or more estate plans or because of the incapacity of a natural
12-23 person; or
12-24 (ii) a person that acquires ownership or
12-25 control of a solid waste facility with the objective purpose of
12-26 avoiding liability of the person or of any other person.
12-27 (2) "Fiduciary capacity" means the capacity of a
13-1 person in holding title to a solid waste facility or otherwise
13-2 having control of or an interest in the solid waste facility
13-3 pursuant to the exercise of the responsibilities of the person as a
13-4 fiduciary.
13-5 (3) "Solid waste facility":
13-6 (A) means:
13-7 (i) all contiguous land, including
13-8 structures, appurtenances, and other improvements on the land, used
13-9 for processing, storing, or disposing of solid waste, including a
13-10 publicly or privately owned solid waste facility consisting of
13-11 several processing, storage, or disposal operational units such as
13-12 one or more landfills, surface impoundments, or a combination of
13-13 units; and
13-14 (ii) any building, structure,
13-15 installation, equipment, pipe, or pipeline, including any pipe into
13-16 a sewer or publicly owned treatment works, well, pit, pond, lagoon,
13-17 impoundment, ditch, landfill, storage container, motor vehicle,
13-18 rolling stock, or aircraft, or any site or area where a hazardous
13-19 substance has been deposited, stored, disposed of, placed, or
13-20 otherwise come to be located; and
13-21 (B) does not include a:
13-22 (i) consumer product in consumer use; or
13-23 (ii) vessel.
13-24 Sec. 361.652. LIABILITY OF FIDUCIARIES. (a) Except as
13-25 otherwise provided by Subchapter I, Chapter 26, Water Code, or
13-26 rules adopted under that subchapter, the liability of a fiduciary
13-27 under this code or the Water Code for the release or threatened
14-1 release of solid waste at, from, or in connection with a solid
14-2 waste facility held in a fiduciary capacity does not exceed the
14-3 assets held in the fiduciary capacity.
14-4 (b) Subsection (a) does not apply to the extent that a
14-5 person is liable independently of the person's ownership of a solid
14-6 waste facility as a fiduciary or actions taken in a fiduciary
14-7 capacity.
14-8 (c) Subsections (a) and (d) do not limit the liability
14-9 pertaining to a release or threatened release of solid waste if
14-10 negligence, gross negligence, or wilful misconduct of a fiduciary
14-11 causes or contributes to the release or threatened release.
14-12 (d) Except as otherwise provided by Subchapter I, Chapter
14-13 26, Water Code, or rules adopted under that subchapter, a fiduciary
14-14 is not liable in the fiduciary's personal capacity under this code
14-15 or the Water Code for:
14-16 (1) undertaking or directing another person to
14-17 undertake a response action under the national contingency plan
14-18 adopted under 42 U.S.C. Section 9605, under a commission-approved
14-19 cleanup plan, or under the direction of an on-scene coordinator
14-20 designated under the national contingency plan or a
14-21 commission-approved cleanup plan;
14-22 (2) undertaking or directing another person to
14-23 undertake any other lawful means of addressing solid waste in
14-24 connection with the solid waste facility;
14-25 (3) terminating the fiduciary relationship;
14-26 (4) including in the terms of the fiduciary agreement
14-27 a covenant, warranty, or other term or condition that relates to
15-1 compliance with an environmental law or monitoring or enforcing the
15-2 term or condition;
15-3 (5) monitoring or undertaking one or more inspections
15-4 of the solid waste facility;
15-5 (6) providing financial or other advice or counseling
15-6 to other parties to the fiduciary relationship, including the
15-7 settlor or beneficiary;
15-8 (7) restructuring, renegotiating, or otherwise
15-9 altering the terms and conditions of the fiduciary relationship;
15-10 (8) administering, as a fiduciary, a solid waste
15-11 facility that was contaminated before the fiduciary relationship
15-12 began; or
15-13 (9) declining to take an action described by
15-14 Subdivisions (2)-(8).
15-15 (e) This section does not:
15-16 (1) affect a right, immunity, or defense available
15-17 under this code or the Water Code that is applicable to a person
15-18 subject to this section;
15-19 (2) create any liability for a person; or
15-20 (3) create a private right of action against a
15-21 fiduciary or any other person.
15-22 (f) This section does not apply to a person if the person:
15-23 (1) acts in a capacity other than that of a fiduciary
15-24 or in a beneficiary capacity and, in that capacity, directly or
15-25 indirectly benefits from a trust or fiduciary relationship; or
15-26 (2) is a beneficiary and a fiduciary with respect to
15-27 the same fiduciary estate and, as a fiduciary, receives benefits
16-1 that exceed customary or reasonable compensation, and incidental
16-2 benefits, permitted under other applicable law.
16-3 (g) This section does not preclude a claim under this code
16-4 or the Water Code against:
16-5 (1) the assets of the estate or trust administered by
16-6 the fiduciary; or
16-7 (2) a nonemployee agent or independent contractor
16-8 retained by a fiduciary.
16-9 (Sections 361.653-361.700 reserved for expansion)
16-10 SUBCHAPTER U. LENDER LIABILITY
16-11 Sec. 361.701. DEFINITIONS. In this subchapter:
16-12 (1) "Extension of credit" includes a lease finance
16-13 transaction:
16-14 (A) in which the lessor does not initially
16-15 select the leased solid waste facility and does not during the
16-16 lease term control the daily operations or maintenance of the solid
16-17 waste facility; or
16-18 (B) that conforms with, as appropriate,
16-19 regulations issued by:
16-20 (i) the appropriate federal banking agency
16-21 or the appropriate state bank supervisor, as those terms are
16-22 defined by Section 3, Federal Deposit Insurance Act (12 U.S.C.
16-23 Section 1813); or
16-24 (ii) the National Credit Union
16-25 Administration Board.
16-26 (2) "Financial or administrative function" includes a
16-27 function such as a function of a credit manager, accounts payable
17-1 officer, accounts receivable officer, personnel manager,
17-2 comptroller, or chief financial officer, or a similar function.
17-3 (3) "Foreclosure" and "foreclose" mean, respectively,
17-4 acquiring, and to acquire, a solid waste facility through:
17-5 (A) purchase at sale under a judgment or decree,
17-6 power of sale, or nonjudicial foreclosure sale;
17-7 (B) a deed in lieu of foreclosure, or similar
17-8 conveyance from a trustee;
17-9 (C) repossession, if the solid waste facility
17-10 was security for an extension of credit previously contracted;
17-11 (D) conveyance under an extension of credit
17-12 previously contracted, including the termination of a lease
17-13 agreement; or
17-14 (E) any other formal or informal manner by which
17-15 the person acquires, for subsequent disposition, title to or
17-16 possession of a solid waste facility in order to protect the
17-17 security interest of the person.
17-18 (4) "Lender" means:
17-19 (A) an insured depository institution, as that
17-20 term is defined by Section 3, Federal Deposit Insurance Act (12
17-21 U.S.C. Section 1813);
17-22 (B) an insured credit union, as that term is
17-23 defined by Section 101, Federal Credit Union Act (12 U.S.C. Section
17-24 1752);
17-25 (C) a bank or association chartered under the
17-26 Farm Credit Act of 1971 (12 U.S.C. Section 2001 et seq.);
17-27 (D) a leasing or trust company that is an
18-1 affiliate of an insured depository institution;
18-2 (E) any person, including a successor or
18-3 assignee of any such person, that makes a bona fide extension of
18-4 credit to or takes or acquires a security interest from a
18-5 nonaffiliated person;
18-6 (F) the Federal National Mortgage Association,
18-7 the Federal Home Loan Mortgage Corporation, the Federal
18-8 Agricultural Mortgage Corporation, or any other entity that in a
18-9 bona fide manner buys or sells loans or interests in loans;
18-10 (G) a person that insures or guarantees against
18-11 a default in the repayment of an extension of credit, or acts as a
18-12 surety with respect to an extension of credit, to a nonaffiliated
18-13 person;
18-14 (H) a person that provides title insurance and
18-15 that acquires a solid waste facility as a result of assignment or
18-16 conveyance in the course of underwriting claims and claims
18-17 settlement; and
18-18 (I) an agency of this state that makes an
18-19 extension of credit to or acquires a security interest from:
18-20 (i) a federal or state agency;
18-21 (ii) a county, municipality, or other body
18-22 politic or corporate of this state, including:
18-23 (a) a district or authority
18-24 created under Section 52, Article III, or Section 59, Article XVI,
18-25 Texas Constitution;
18-26 (b) an interstate compact
18-27 commission to which this state is a party; or
19-1 (c) a nonprofit water
19-2 supply corporation created and operating under Chapter 76, Acts of
19-3 the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
19-4 Vernon's Texas Civil Statutes); or
19-5 (iii) another person.
19-6 (5) "Operational function" includes a function such as
19-7 that of a facility or plant manager, operations manager, chief
19-8 operating officer, or chief executive officer.
19-9 (6) "Security interest" includes a right under a
19-10 mortgage, deed of trust, assignment, judgment lien, pledge,
19-11 security agreement, factoring agreement, or lease and any other
19-12 right accruing to a person to secure the repayment of money, the
19-13 performance of a duty, or any other obligation by a nonaffiliated
19-14 person.
19-15 (7) "Solid waste facility":
19-16 (A) means:
19-17 (i) all contiguous land, including
19-18 structures, appurtenances, and other improvements on the land, used
19-19 for processing, storing, or disposing of solid waste, including a
19-20 publicly or privately owned solid waste facility consisting of
19-21 several processing, storage, or disposal operational units such as
19-22 one or more landfills, surface impoundments, or a combination of
19-23 units; and
19-24 (ii) any building, structure,
19-25 installation, equipment, pipe, or pipeline, including any pipe into
19-26 a sewer or publicly owned treatment works, well, pit, pond, lagoon,
19-27 impoundment, ditch, landfill, storage container, motor vehicle,
20-1 rolling stock, or aircraft, or any site or area where a hazardous
20-2 substance has been deposited, stored, disposed of, placed, or
20-3 otherwise come to be located; and
20-4 (B) does not include a:
20-5 (i) consumer product in consumer use; or
20-6 (ii) vessel.
20-7 Sec. 361.702. EXCLUSION OF LENDERS NOT PARTICIPANTS IN
20-8 MANAGEMENT. (a) In Section 361.271, the term "owner or operator"
20-9 does not include a person that is a lender that:
20-10 (1) without participating in the management of a solid
20-11 waste facility, holds a security interest in or with regard to the
20-12 solid waste facility; or
20-13 (2) did not participate in management of a solid waste
20-14 facility before foreclosure, notwithstanding the fact that the
20-15 person:
20-16 (A) forecloses on the solid waste facility; and
20-17 (B) after foreclosure, sells, re-leases, in the
20-18 case of a lease finance transaction, or liquidates the solid waste
20-19 facility, maintains business activities, winds up operations,
20-20 undertakes a response action with respect to the solid waste
20-21 facility under the national contingency plan adopted under 42
20-22 U.S.C. Section 9605, under a commission-approved cleanup plan, or
20-23 under the direction of an on-scene coordinator appointed under the
20-24 national contingency plan or a commission-approved cleanup plan, or
20-25 takes any other measure to preserve, protect, or prepare the solid
20-26 waste facility before sale or disposition, if the person seeks to
20-27 sell, re-lease, in the case of a finance transaction, or otherwise
21-1 divest the person of the facility at the earliest practicable,
21-2 commercially reasonable time, on commercially reasonable terms,
21-3 taking into account market conditions and legal and regulatory
21-4 requirements.
21-5 (b) For purposes of Subsection (a)(2)(B), a lender is
21-6 presumed to divest the lender of the solid waste facility at the
21-7 earliest practicable, commercially reasonable time if, within 12
21-8 months after foreclosure, the lender:
21-9 (1) lists the solid waste facility with a broker,
21-10 dealer, or agent who deals in that type of property; or
21-11 (2) advertises the solid waste facility for sale or
21-12 other disposition at least monthly in:
21-13 (A) a real estate publication;
21-14 (B) a trade or other publication appropriate for
21-15 the solid waste facility being advertised; or
21-16 (C) a newspaper of general circulation in the
21-17 area in which the solid waste facility is located.
21-18 (c) For purposes of Subsection (b), the 12-month period
21-19 begins:
21-20 (1) when the lender acquires marketable title if the
21-21 lender, after the expiration of any redemption period or other
21-22 waiting period required by law, was acting diligently to acquire
21-23 marketable title; or
21-24 (2) on the date of foreclosure or its equivalent if
21-25 the lender does not act diligently to acquire marketable title.
21-26 (d) Except as otherwise provided by Subchapter I, Chapter
21-27 26, Water Code, or rules adopted under that subchapter, a lender is
22-1 not liable under this code or the Water Code to undertake a removal
22-2 or remedial action or to pay a fine or penalty arising from the
22-3 release or threatened release of solid waste at, from, or in
22-4 connection with the solid waste facility in which the lender
22-5 maintains a security interest or that the lender has acquired
22-6 through foreclosure if:
22-7 (1) the lender has not participated in management
22-8 before foreclosure;
22-9 (2) the conditions giving rise to the release or
22-10 threat of release existed before foreclosure; and
22-11 (3) the lender seeks to divest the lender of the
22-12 property under Subsections (a)(2)(B) and (b).
22-13 (e) Notwithstanding Subsection (d), if a lender after
22-14 foreclosure operates, directs the operation of, or maintains the
22-15 operation of business activities, this section does not exempt or
22-16 excuse the lender from compliance with legal requirements
22-17 applicable to the operation of that business. Those operational
22-18 requirements include permitting, reporting, monitoring, compliance
22-19 with emission limitations, financial responsibility and assurance
22-20 requirements, payment of fees, and payment of fines and penalties
22-21 for noncompliance with those requirements.
22-22 Sec. 361.703. PARTICIPATION IN MANAGEMENT. (a) For
22-23 purposes of Section 361.702, the term "participate in management":
22-24 (1) means actually participating in the management or
22-25 operational affairs of a solid waste facility; and
22-26 (2) does not include merely having the capacity to
22-27 influence, or the unexercised right to control, a solid waste
23-1 facility or facility operations.
23-2 (b) A person that is a lender that holds a security interest
23-3 in or with regard to a solid waste facility is considered to
23-4 participate in management only if, while the borrower is still in
23-5 possession of the solid waste facility encumbered by the security
23-6 interest, the person:
23-7 (1) exercises decision-making control over the
23-8 environmental compliance related to the solid waste facility such
23-9 that the person has undertaken responsibility for the solid waste
23-10 handling or disposal practices related to the solid waste facility;
23-11 or
23-12 (2) exercises control at a level comparable to that of
23-13 a manager of the solid waste facility such that the person has
23-14 assumed or manifested responsibility:
23-15 (A) for the overall management of the solid
23-16 waste facility encompassing day-to-day decisionmaking with respect
23-17 to environmental compliance; or
23-18 (B) over all or substantially all of the
23-19 operational functions, as distinguished from financial or
23-20 administrative functions, of the solid waste facility other than
23-21 the function of environmental compliance.
23-22 (c) The term "participate in management" does not include:
23-23 (1) performing an act or failing to act before the
23-24 time at which a security interest is created in a solid waste
23-25 facility;
23-26 (2) holding a security interest or abandoning or
23-27 releasing a security interest;
24-1 (3) including in the terms of an extension of credit,
24-2 or in a contract or security agreement relating to the extension, a
24-3 covenant, warranty, or other term or condition that relates to
24-4 environmental compliance;
24-5 (4) monitoring or enforcing the terms and conditions
24-6 of the extension of credit or security interest;
24-7 (5) monitoring or undertaking one or more inspections
24-8 of the solid waste facility;
24-9 (6) requiring a response action or other lawful means
24-10 of addressing the release or threatened release of solid waste in
24-11 connection with the solid waste facility before, during, or on the
24-12 expiration of the term of the extension of credit;
24-13 (7) providing financial or other advice or counseling
24-14 in an effort to mitigate, prevent, or cure default or diminution in
24-15 the value of the solid waste facility;
24-16 (8) restructuring, renegotiating, or otherwise
24-17 agreeing to alter the terms and conditions of the extension of
24-18 credit or security interest, exercising forbearance;
24-19 (9) exercising other remedies that may be available
24-20 under applicable law for the breach of a term or condition of the
24-21 extension of credit or security agreement; or
24-22 (10) conducting a response action under the national
24-23 contingency plan adopted under 42 U.S.C. Section 9605, under a
24-24 commission-approved cleanup plan, or under the direction of an
24-25 on-scene coordinator appointed under the national contingency plan
24-26 or a commission-approved cleanup plan, if the actions do not rise
24-27 to the level of participating in management within the meaning of
25-1 Subsections (a) and (b).
25-2 (Sections 361.704-361.750 reserved for expansion
25-3 SUBCHAPTER V. IMMUNITY FROM LIABILITY OF INNOCENT OWNER OR
25-4 OPERATOR
25-5 Sec. 361.751. DEFINITIONS. In this subchapter:
25-6 (1) "Contaminant" has the meaning assigned by Section
25-7 361.601.
25-8 (2) "Innocent owner or operator" means a person that:
25-9 (A) is an owner or operator of property that has
25-10 become contaminated as a result of a release or migration of
25-11 contaminants from a source or sources not located on or at the
25-12 property; and
25-13 (B) did not cause or contribute to the source or
25-14 sources of the contamination referred to in Paragraph (A).
25-15 Sec. 361.752. IMMUNITY FROM LIABILITY; ACCESS TO PROPERTY.
25-16 (a) An innocent owner or operator of property is not liable under
25-17 this code or the Water Code for investigation, monitoring,
25-18 remediation, or corrective or other response action regarding the
25-19 conditions attributable to a release or migration of a contaminant
25-20 or otherwise liable regarding those conditions.
25-21 (b) A person that acquires a portion of the tract on which
25-22 the source of a release of contaminants is located from the person
25-23 that caused the release is eligible for immunity under Subsection
25-24 (a) only if, after appropriate inquiry consistent with good
25-25 commercial or customary practice, the person did not know or have
25-26 reason to know of the contamination at the time the person acquired
25-27 the property.
26-1 (c) To be eligible for immunity under Subsection (a), an
26-2 owner or operator must grant reasonable access to the property for
26-3 purposes of investigation or remediation to a person designated by
26-4 the executive director. An agreement for reasonable access may
26-5 provide:
26-6 (1) that the designated person may not unreasonably
26-7 interfere with the use of the property;
26-8 (2) for payment of reasonable compensation for access
26-9 to the property; or
26-10 (3) that the owner or operator is indemnified from
26-11 liability for an intentional or negligent act of the designated
26-12 person arising from the person's access to and use of the property.
26-13 (d) This section does not limit any right of the commission
26-14 under another provision of this code or the Water Code to obtain
26-15 access to the property.
26-16 Sec. 361.753. CERTIFICATION. (a) A person may apply to the
26-17 commission for a certificate confirming that the person is an
26-18 innocent owner or operator. The application must include a
26-19 complete site investigation report that demonstrates that:
26-20 (1) the property has become contaminated as a result
26-21 of a release or migration of contaminants from a source or sources
26-22 not located on or at the property;
26-23 (2) the owner or operator has not caused or
26-24 contributed to the source or sources of the contamination referred
26-25 to in Subdivision (1); and
26-26 (3) the owner or operator is eligible for immunity
26-27 under Section 361.752(b).
27-1 (b) The commission may charge an application fee in an
27-2 amount not to exceed the cost of reviewing the application. The
27-3 commission shall deposit a fee collected under this subsection to
27-4 the credit of the hazardous and solid waste remediation fee fund.
27-5 (c) Not later than the 45th day after the date the
27-6 commission receives the application, the commission shall notify
27-7 the applicant whether the application is complete.
27-8 (d) Not later than the 90th day after the date the
27-9 commission receives the application, the commission shall:
27-10 (1) issue or deny the certificate; or
27-11 (2) notify the applicant of any additional information
27-12 needed to review the application.
27-13 (e) Not later than the 45th day after the date the
27-14 commission receives the additional information requested under
27-15 Subsection (d)(2), the commission shall issue or deny the
27-16 certificate.
27-17 (f) The certificate evidences the immunity from liability of
27-18 the applicant as provided by Section 361.752.
27-19 (g) The commission may condition the issuance of the
27-20 certificate on the placement of restrictions on the use of the
27-21 property that are reasonably necessary to protect the public
27-22 health, including:
27-23 (1) institutional controls such as deed restrictions
27-24 or municipal zoning restrictions; or
27-25 (2) at the owner's or operator's option, other control
27-26 measures.
27-27 Sec. 361.754. RIGHTS OF INNOCENT OWNER OR OPERATOR REGARDING
28-1 CONTAMINATION FROM SOURCE NOT LOCATED ON OR AT PROPERTY. This
28-2 subchapter does not limit the right of an innocent owner or
28-3 operator to pursue any remedy available at law or in equity for
28-4 conditions attributable to the release or migration of contaminants
28-5 from a source or sources that are not located on or at the
28-6 property.
28-7 SECTION 16. Subchapter C, Chapter 2155, Government Code, is
28-8 amended by adding Section 2155.145 to read as follows:
28-9 Sec. 2155.145. CERTAIN PURCHASES BY TEXAS NATURAL RESOURCE
28-10 CONSERVATION COMMISSION. The Texas Natural Resource Conservation
28-11 Commission is delegated all purchasing functions relating to the
28-12 administration of Subchapters F and I, Chapter 361, Health and
28-13 Safety Code, subject to the rules adopted by the commission under
28-14 Section 2155.132(c).
28-15 SECTION 17. Section 2166.003(a), Government Code, is amended
28-16 to read as follows:
28-17 (a) Unless otherwise provided, this chapter does not apply
28-18 to:
28-19 (1) a project constructed by and for the Texas
28-20 Department of Transportation;
28-21 (2) a project constructed by and for a state
28-22 institution of higher education;
28-23 (3) a pen, shed, or ancillary building constructed by
28-24 and for the Department of Agriculture for the processing of
28-25 livestock before export;
28-26 (4) a project constructed by the Parks and Wildlife
28-27 Department;
29-1 (5) a repair or rehabilitation project, except a major
29-2 renovation, of buildings and grounds on the commission inventory;
29-3 (6) a repair and rehabilitation project of another
29-4 using agency, if all labor for the project is provided by the
29-5 regular maintenance force of the using agency under specific
29-6 legislative authorization and the project does not require the
29-7 advance preparation of working plans or drawings; [or]
29-8 (7) a repair and rehabilitation project involving the
29-9 use of contract labor, if the project has been excluded from this
29-10 chapter by commission rule and does not require the advance
29-11 preparation of working plans or drawings; or
29-12 (8) an action taken by the Texas Natural Resource
29-13 Conservation Commission under Subchapter F or I, Chapter 361,
29-14 Health and Safety Code.
29-15 SECTION 18. Subchapter A, Chapter 2253, Government Code, is
29-16 amended by adding Section 2253.002 to read as follows:
29-17 Sec. 2253.002. EXEMPTION. This chapter does not apply to a
29-18 public work contract entered into by a state agency relating to an
29-19 action taken under Subchapter F or I, Chapter 361, Health and
29-20 Safety Code, or Subchapter I, Chapter 26, Water Code.
29-21 SECTION 19. Section 26.265, Water Code, is amended by adding
29-22 Subsections (h)-(j) to read as follows:
29-23 (h) Notwithstanding Subsection (g), a responsible person who
29-24 enters into a settlement agreement with the state that resolves all
29-25 liability of the person to the state for a site subject to
29-26 Subchapter F, Chapter 361, Health and Safety Code, is released from
29-27 liability to a person described by Section 361.344(a), Health and
30-1 Safety Code, for contribution or indemnity under this code
30-2 regarding a matter addressed in the settlement agreement.
30-3 (i) A settlement agreement does not discharge the liability
30-4 of a nonsettling person to the state unless the agreement provides
30-5 otherwise.
30-6 (j) Notwithstanding Subsection (i), a settlement agreement
30-7 reduces the potential liability to the state of the nonsettling
30-8 persons by the amount of the settlement.
30-9 SECTION 20. This Act takes effect September 1, 1997.
30-10 SECTION 21. The importance of this legislation and the
30-11 crowded condition of the calendars in both houses create an
30-12 emergency and an imperative public necessity that the
30-13 constitutional rule requiring bills to be read on three several
30-14 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. 2776 was passed by the House on May
8, 1997, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 2776 on May 22, 1997, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2776 was passed by the Senate, with
amendments, on May 20, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor