C.S.H.B. 2252 78(R) BILL ANALYSIS
C.S.H.B. 2252
By: Flores
Environmental Regulation
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Current law allows the Texas Commission on Environmental Quality to place
a lien against certain landowners without considering an individual's
ability to satisfy the lien.
As proposed, CSHB 2252 grants more flexibility to the executive director
in determining whether to place a lien on a property and to do so in a
way which better benefits the owner of the property. It avoids placing a
hardship on certain "innocent homeowners" in situations where TCEQ has the
authority to place a lien.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is expressly
granted to the Texas Commission on Environmental Quality in SECTION 4,
{Section 361.201 (e)}, and SECTION 5 (c) of this bill.
ANALYSIS
SECTION 1. Amends Section 361.181 (c) of the Health and Safety Code to
read as follows:
(c) In this subchapter:
(1) defines "Facility."
(2) Provides "Homestead" has the meaning designated by Section 51,
Article XVI, Texas Constitution.
SECTION 2. Amends Section 361.194 (b) is amended to read as follows:
Subsection (a) is deleted and replaced with Subsection (b) adding the
following language:
Requires the executive director to prepare an affidavit and in determining
whether to prepare an affidavit or whether a lien is satisfied, the
executive director:
(1) is required to proceed in the manner that the executive director
determines will most likely result in the least overall costs to the state
after any cost recovery action; and
(2) the executive director is authorized to take into account a
landowner's financial ability to satisfy the lien, including the
consideration of whether the landowner received financial compensation for
the disposal of any substance addressed by the remedial action and whether
the real property that is the subject of the lien:
(A) is a homestead and is being occupied as a home by the landowner; and
(B) has a fair market value of $250,000 or less.
SECTION 3. Amends Section 361.197 of the Health and Safety Code, by
adding Subsection (e) as follows:
(e) Prohibits the commission from filing a cost recovery action under
this section against an individual if the individual's only significant
asset is a homestead that:
(1) includes the facility subject to or affected by a remedial action;
(2) is occupied by the individual as a home;
(3) has a fair market value of $250,000 or less.
SECTION 4. Amends section 361.201 of the Health and Safety Code, by
adding Subsections (d) and (e) as follows:
(d) Requires the commission to determine whether a potentially
responsible party is financially capable of conducting any necessary
remediation studies or remedial action if the responsible party is an
individual whose homestead includes the facility subject to or affected by
a remedial action.
(e) Requires the commission by rule to adopt criteria for determining the
financial capability of an individual under Subsection (d). Provides that
the rules must provide that the value of the individual's homestead may
not be included in the total amount of the individual's assets if:
(1) the individual is occupying the homestead as a home; and
(2) the fair market value of the homestead is $250,000 or less.
SECTION 5.
(a) Applies to the change in law amended in Sections 2 and 3 applying to
a lien affidavit and a cost recovery action filed under the Health and
Safety Code. This subsection recovers money spent by the Texas Commission
on Environmental Quality for a hazardous waste remediation project which
begins on or after the effective date of this Act.
(b) Applies to the change in law amended in Section 4 which refers to a
potential remediation project for which a remedial investigation or
feasibility study under Section 361.185 of the Health and Safety Code
which is on or after the effective date of this Act.
(c) Requires the Texas Commission on Environmental Quality to adopt rules
and implement the changes made by this bill no later than December 1,
2003.
SECTION 6. Effective Date: September 1, 2003.
EFFECTIVE DATE
September 1, 2003.
COMPARISON OF ORIGINAL TO SUBSTITUTE
CSHB 2252 modifies the original version by deleting Subsection (a) in
SECTION 2 which deals with all remediation costs for which a person is
liable to the state and constitutes a lien in favor of the state on the
real property and the rights to the real property that are subject to or
affected by a remedial action. Remediation costs for which a person would
otherwise be liable to the state under this chapter do not constitute a
lien in favor of the state against an individual's homestead that is the
individual's only significant asset if the homestead includes the facility
subject to or affected by a remedial action and is occupied by the
individual as a home.
CSHB 2252 clarifies the original version by adding Subsection (b) in
SECTION 2 which stipulates that a lien imposed by this section arises and
is attached to the real property subject to or affected by a remedial
action at the time an affidavit is recorded and indexed in accordance with
this section in the county in which the real property is located. In
order to determine rights for all affected parties, the lien does not
relate back to a time before the date on which the affidavit is recorded,
which is the beginning date of the lien. By law, the lien continues until
the liability for the costs is satisfied or unenforceable. CSHB 2252
requires the executive director of TCEQ to prepare an affidavit and to
determine whether the lien is satisfied. The executive director is
required to take action in a manner which will most likely result in the
least overall costs to the state after any recovery action; and is
authorized to take into account a landowner's financial ability to satisfy
the lien. The committee substitute provides that the executive director
must consider whether the landowner received financial compensation for
the disposal of any substance addressed by the remedial action and whether
the real property that is the subject of the lien is a homestead and is
being occupied as a home by the landowner.