By: Brown S.B. No. 1341
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the voluntary cleanup program for solid and hazardous
1-2 wastes.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 361.602, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Section 361.602. PURPOSE. The purpose of the voluntary
1-7 cleanup program is to provide incentive to remediate property by
1-8 removing liability of lenders, [and] future landowners, and persons
1-9 who would otherwise be a responsible party under Section 361.271 or
1-10 361.275(g). The program does not replace other voluntary actions
1-11 and is restricted to voluntary actions.
1-12 SECTION 2. Sec. 361.603, Health and Safety Code, is amended
1-13 to read as follows:
1-14 (a) Any site is eligible for participation in the voluntary
1-15 cleanup program except the portion of a site that is subject to a
1-16 commission permit or order.
1-17 (b) A person electing to participate in the voluntary
1-18 cleanup program must:
1-19 (1) enter into a voluntary cleanup agreement as
1-20 provided by Section 361.606; and
1-21 (2) pay all costs of commission oversight of the
2-1 voluntary cleanup.
2-2 (c) Notwithstanding Subsection (a), the commission may
2-3 transfer the site or portion of a site subject to a permit or order
2-4 into the voluntary cleanup program at any time, subject to the
2-5 negotiation of an agreement pursuant to Section 361.606, by
2-6 dismissing the permit or order affecting a site or portion of a
2-7 site. Any administrative penalties that have been paid to the
2-8 general revenue fund pursuant to the earlier order or permit
2-9 affecting the site or portion of the site shall not be refunded.
2-10 (d) A person who is a responsible party under Section
2-11 361.271 or 361.275(g) is eligible to participate in the voluntary
2-12 cleanup program, and will be released from further liability upon
2-13 the issuance of a certificate of completion pursuant to this
2-14 subchapter.
2-15 SECTION 3. Sections 361.604(b) and (c), Health and Safety
2-16 Code, are amended to read as follows:
2-17 (b) An application submitted under this section must:
2-18 (1) be on a form provided by the executive director;
2-19 (2) contain:
2-20 (A) general information concerning:
2-21 (i) the person and the person's
2-22 capability, including the person's financial capability, to perform
2-23 the voluntary cleanup; [and]
2-24 (ii) the site; and
2-25 (iii) the person's right to perform the
3-1 voluntary cleanup if the site is owned by a different person;
3-2 (B) other background information requested by
3-3 the executive director; and
3-4 (C) an environmental assessment of the actual or
3-5 threatened release of the hazardous substance or contaminant at the
3-6 site;
3-7 (3) be accompanied by an application fee of $1,000;
3-8 and
3-9 (4) be submitted according to schedules set by
3-10 commission rule.
3-11 (c) The environmental assessment required by Subsection (b)
3-12 must include:
3-13 (1) a legal description of the site;
3-14 (2) a description of the physical characteristics of
3-15 the site;
3-16 (3) the operational history of the site to the extent
3-17 that history is known by the applicant;
3-18 (4) information of which the applicant is aware
3-19 concerning the nature and extent of any relevant contamination or
3-20 release at the site and immediately contiguous to the site, or
3-21 wherever the contamination came to be located; [and]
3-22 (5) relevant information of which the applicant is
3-23 aware concerning the potential for human exposure to contamination
3-24 at the site; and
3-25 (6) information of any pending administrative, state,
4-1 or federal enforcement action of which the applicant is aware.
4-2 SECTION 4. Section 361.605, Health and Safety Code, is
4-3 amended to read as follows:
4-4 (a) The executive director may reject an application
4-5 submitted under Section 361.604 if:
4-6 (1) an administrative, state, or federal enforcement
4-7 action is pending that concerns the remediation of the hazardous
4-8 substance or contaminant described in the application;
4-9 (2) a federal grant requires an enforcement action at
4-10 the site;
4-11 (3) the application is not complete or accurate; or
4-12 (4) the site is ineligible under Section 361.603.
4-13 (b) If an application is rejected because it is not complete
4-14 or accurate, the executive director, not later than the 45th day
4-15 after receipt of the application, shall provide the person with a
4-16 list of all information needed to make the application complete or
4-17 accurate. A person may resubmit an application once without
4-18 submitting an additional application fee if the person resubmits
4-19 the application not later than the 45th day after the date the
4-20 executive director issues notice that the application has been
4-21 rejected.
4-22 (c) If the executive director rejects the application, the
4-23 executive director shall:
4-24 (1) notify the person that the application has been
4-25 rejected;
5-1 (2) explain the reasons for rejection of the
5-2 application; and
5-3 (3) inform the person that the commission will refund
5-4 half the person's application fee unless the person indicates a
5-5 desire to resubmit an application; and
5-6 (d) If an application is rejected because of a pending
5-7 administrative, state, or federal enforcement action that concerns
5-8 the remediation of the hazardous substance or contaminant described
5-9 in the application, the applicant may resubmit the application upon
5-10 completion, termination, or dismissal of the enforcement action and
5-11 the site or portion of the site covered by an order issued as a
5-12 result of the enforcement action shall be eligible for
5-13 participation in the voluntary cleanup program for any remediation
5-14 that is necessary beyond the requirements of the enforcement order.
5-15 SECTION 5. Sections 361.606(b) and (c), Health and Safety
5-16 Code, are amended to read as follows:
5-17 (b) A voluntary cleanup agreement must provide for:
5-18 (1) recovery by the commission of all reasonable
5-19 costs:
5-20 (A) incurred by the commission in review and
5-21 oversight of the person's work plan and reports and as a result of
5-22 the commission's field activities;
5-23 (B) attributable to the voluntary cleanup
5-24 agreement; and
5-25 (C) in excess of the amount of fees submitted by
6-1 the applicant under Section 361.604;
6-2 (2) a schedule of payments to the commission to be
6-3 made by the person for recovery of all commission costs fairly
6-4 attributable to the voluntary cleanup program, including direct and
6-5 indirect costs of overhead, salaries, equipment, and utilities, and
6-6 legal, management, and support costs; [and]
6-7 (3) appropriate tasks, deliverables, and schedules;
6-8 and
6-9 (4) the identification of all persons to be relieved
6-10 of liability under Section 361.610. In the event of a sale or
6-11 transfer of ownership of the site covered by a voluntary cleanup
6-12 agreement after the application is approved pursuant to Section
6-13 361.606 but before the issuance of a certificate of completion
6-14 pursuant to Section 361.609, the voluntary cleanup agreement may be
6-15 amended by the applicant to identify the new owner as a person to
6-16 be released upon the issuance of the certificate. The
6-17 identification of the new owner as a party to be released, however,
6-18 shall not relieve the applicant of or transfer responsibility for
6-19 the successful completion of the voluntary cleanup without the
6-20 express written approval of the commission evidenced by a formal
6-21 amendment of the voluntary cleanup agreement.
6-22 (c) The voluntary cleanup agreement shall:
6-23 (1) identify all statutes and rules that must be
6-24 complied with;
6-25 (2) describe any work plan or report to be submitted
7-1 for review by the executive director, including a final report that
7-2 provides all information necessary to verify that all work
7-3 contemplated by the voluntary cleanup agreement has been completed;
7-4 (3) include a schedule for submitting the information
7-5 required by Subdivision (2); [and]
7-6 (4) state the technical standards to be applied in
7-7 evaluating the work plans and reports, with reference to the
7-8 proposed future land use to be achieved; and
7-9 (5) identify all persons to be relieved of liability
7-10 under Section 361.610 who otherwise would be a responsible party
7-11 under Section 361.271 or 361.275(g).
7-12 SECTION 6. Section 361.609, Health and Safety Code, is
7-13 amended to read as follows:
7-14 (a) If the executive director determines that a person has
7-15 successfully completed a voluntary cleanup approved under this
7-16 subchapter, the executive director shall certify that the action
7-17 has been completed by issuing the person a certificate of
7-18 completion.
7-19 (b) The certificate of completion shall:
7-20 (1) acknowledge the protection from liability provided
7-21 by Section 361.610;
7-22 (2) indicate the proposed future land use; and
7-23 (3) include a legal description of the site and the
7-24 name of the site's owner at the time the application to participate
7-25 in the voluntary cleanup program was filed, the name of the owner
8-1 of the property at the time the certificate is issued, and the name
8-2 of any known persons released from liability.
8-3 (c) The executive director shall file or direct the
8-4 applicant to file a copy of the certificate of completion in the
8-5 real property records of the county in which the site is located.
8-6 (d) If the executive director determines that the person has
8-7 not successfully completed a voluntary cleanup approved under this
8-8 subchapter, the executive director shall notify the person who
8-9 undertook the voluntary cleanup and the current owner of the site
8-10 that is the subject of the cleanup of this determination in
8-11 writing. Such notice shall specifically describe all deficiencies
8-12 in the cleanup effort, and provide the applicant and/or current
8-13 owner of the site with an opportunity to cure such deficiencies.
8-14 In the event that the applicant and/or current owner are unable to
8-15 reach an agreement with the executive director on a remedy to cure
8-16 the deficiencies within 30 days from the date of receipt of the
8-17 notice, the applicant and/or current owner shall be entitled to
8-18 petition the commission for review of the determination and the
8-19 proposed remedy to cure the alleged deficiencies.
8-20 SECTION 7. Section 361.610, Health and Safety Code, is
8-21 amended to read as follows:
8-22 (a) At the time the commission issues a certificate of
8-23 completion under Section 361.609, a [A] person identified in the
8-24 application, who is [not] a responsible party under Section 361.271
8-25 or 361.275(g) at the time the application [person applies] to
9-1 perform a voluntary cleanup is approved, is released [, on
9-2 certification under Section 361.609,] from all liability to the
9-3 state for cleanup of areas of the site covered by the certificate
9-4 [certification], except for releases and consequences that either
9-5 result from or are directly caused by the subsequent acts of the
9-6 person released [causes].
9-7 (b) The release from liability provided by this section does
9-8 not apply to a person who:
9-9 (1) acquires [is not effective if] a certificate of
9-10 completion [is acquired] by fraud, misrepresentation, or knowing
9-11 failure to disclose material information;
9-12 (2) knows at the time the person acquires an interest
9-13 in the site for which the certificate of completion was issued that
9-14 the certificate was acquired in a manner provided in Subdivision
9-15 (1);
9-16 (3) changes land use from the use specified in the
9-17 certificate of completion if the new use may result in increased
9-18 risks to human health or the environment; or
9-19 (4) causes or takes any action which disturbs or
9-20 modifies the remediation accomplished during the voluntary cleanup
9-21 in a manner that may result in increased risks to human health or
9-22 the environment.
9-23 (c) If a certificate of completion for a site is issued by
9-24 the commission, an owner who acquires the property on which the
9-25 site is located or a lender who makes a loan secured by that
10-1 property after the date of the approval of a voluntary cleanup
10-2 agreement [issuance of the certificate] is released from all
10-3 liability for cleanup of contamination released before the date of
10-4 the certificate for the areas covered by the certificate [unless
10-5 the owner or lender was originally included as a responsible party
10-6 under Section 361.271 or 361.275(g)]. A release of liability does
10-7 not apply to a person who changes land use from the use specified
10-8 in the certificate of completion if the new use may result in
10-9 increased risks to human health or the environment.
10-10 (d) A person released from liability pursuant to this
10-11 section, other than a person described in Subsection (b), shall not
10-12 be liable to the state for any increased risk to human health or
10-13 the environment subsequent to the issuance of a certificate of
10-14 completion.
10-15 SECTION 8. Section 361.275(a), Health and Safety Code, is
10-16 amended to read as follows:
10-17 (a) A person responsible for solid waste under
10-18 Section 361.271 is liable under Section 361.272 or 361.273 unless:
10-19 (1) the person can establish by a preponderance of the
10-20 evidence that the release or threatened release was caused solely
10-21 by:
10-22 (A) [(1)] an act of God;
10-23 (B) [(2)] an act of war;
10-24 (C) [(3)] an act or omission of a third person;
10-25 or
11-1 (D) [(4)] any combination of Paragraphs (A),
11-2 (B), and (C) [Subdivisions (1), (2), and (3)] ; or
11-3 (2) the person was released from liability pursuant to
11-4 Section 361.610.
11-5 SECTION 9. (a) This Act takes effect September 1, 1997.
11-6 (b) A person to whom notice of rejection of an application is
11-7 issued under Section 361.605, Health and Safety Code, before the
11-8 effective date of this Act may resubmit the application once
11-9 without submitting an additional application fee if the person
11-10 resubmits the application not later than October 15, 1997.
11-11 SECTION 10. The importance of this legislation and the
11-12 crowded condition of the calendars in both houses create an
11-13 emergency and an imperative public necessity that the
11-14 constitutional rule requiring bills to be read on three several
11-15 days in each house be suspended, and this rule is hereby suspended.