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A BILL TO BE ENTITLED
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AN ACT
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relating to the environmental regulation and remediation of dry |
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cleaning facilities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Section 374.102, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 374.102. DRY CLEANING FACILITY OR DROP STATION |
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REGISTRATION; FEE; POSTING. |
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SECTION 2. Subchapter C, Chapter 374, Health and Safety |
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Code, is amended by adding Sections 374.1022 and 374.1023 to read as |
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follows: |
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Sec. 374.1022. REGISTRATION OF PROPERTY OWNER OR PRECEDING |
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PROPERTY OWNER. (a) The following persons may participate in the |
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fund benefits by registering as provided by this section: |
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(1) a person who owns real property on which a dry |
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cleaning facility or drop station is or was located; or |
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(2) a preceding owner of real property on which a dry |
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cleaning facility or drop station is or was located who entered into |
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an agreement with the current owner associated with the sale of the |
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real property to the current owner that requires the person to be |
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responsible for any costs associated with cleaning up contamination |
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covered under this chapter. |
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(b) For a person described by Subsection (a) to participate |
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in fund benefits, the person must: |
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(1) register with the commission on or before December |
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31, 2007, using a form prescribed by the commission; |
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(2) include on the registration form information |
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identifying the person as a: |
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(A) property owner; or |
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(B) preceding property owner; and |
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(3) pay the annual registration fee of $1,500. |
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(c) A person described by Subsection (a) may participate in |
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the fund benefits by registering after December 31, 2007, in the |
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same manner as provided by Subsection (b). A person registering |
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after that date must also pay: |
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(1) all past annual registration fees; and |
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(2) a late fee of $100 for each month or partial month |
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that has elapsed between December 2007 and the date of the |
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registration. |
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(d) The annual registration fee may be divided into |
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quarterly payments due over the year on dates established by the |
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commission. |
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Sec. 374.1023. LIEN. (a) In addition to other remedies |
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available under other law, a lien is imposed against the real |
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property that is subject to a corrective action taken under this |
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chapter if the person does not pay a registration fee under Section |
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374.1022 that is due while the corrective action is ongoing. The |
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amount of the lien is the sum of: |
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(1) the costs of the action; and |
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(2) the fees due but not paid during the period of the |
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corrective action. |
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(b) The lien imposed by this section arises and attaches to |
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the real property subject to the corrective action at the time an |
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affidavit is recorded and indexed in accordance with this section |
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in the county in which the real property is located. For the |
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purpose of determining rights of all affected parties, the lien |
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does not relate back to a time before the date on which the |
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affidavit is recorded, which date is the lien inception date. The |
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lien continues until the liability for the corrective action costs |
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and registration fees is satisfied or becomes unenforceable through |
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operation of law. The executive director shall determine whether |
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to prepare an affidavit. In determining whether to prepare an |
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affidavit or whether a lien is satisfied, the executive director: |
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(1) shall proceed in the manner that the executive |
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director determines will most likely result in the least overall |
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costs to the state after any cost and fee recovery action; and |
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(2) may take into account a landowner's financial |
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ability to satisfy the lien, including consideration of whether the |
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real property that is the subject of the lien: |
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(A) is a homestead and is being occupied as a home |
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by the landowner; and |
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(B) has a fair market value of $250,000 or less. |
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(c) An authorized representative of the commission must |
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execute the affidavit. The affidavit must show: |
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(1) the names and addresses of the persons liable for |
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the corrective action costs and registration fees; |
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(2) a description of the real property that is subject |
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to or affected by the corrective action; and |
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(3) the amount of the corrective action costs and |
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registration fees and the balance due. |
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(d) The county clerk shall record the affidavit in records |
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kept for that purpose and shall index the affidavit under the names |
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of the persons liable for the corrective action costs and |
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registration fees. |
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(e) The commission shall record a relinquishment or |
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satisfaction of the lien when the lien is paid or satisfied. |
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(f) The lien may be foreclosed only on judgment of a court of |
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competent jurisdiction foreclosing the lien and ordering the sale |
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of the property subject to the lien. |
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(g) The lien imposed by this section is not valid or |
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enforceable if real property, an interest in real property, or a |
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mortgage, lien, or other encumbrance on or against real property is |
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acquired before the affidavit is recorded, unless the person |
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acquiring the real property, an interest in the property, or the |
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mortgage, lien, or other encumbrance on the property had or |
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reasonably should have had actual notice or knowledge that the real |
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property is subject to or affected by a corrective action or has |
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knowledge that the state has incurred corrective action costs and |
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is owed registration fees. |
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(h) If a lien is fixed or attempted to be fixed as provided |
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by this section, the owner of the real property affected by the lien |
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may file a bond to indemnify against the lien. The bond must be |
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filed with the county clerk of the county in which the real property |
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subject to the lien is located. An action to establish, enforce, or |
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foreclose any lien or claim of lien covered by the bond must be |
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brought not later than the 30th day after the date of service of |
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notice of the bond. The bond must: |
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(1) describe the real property on which the lien is |
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claimed; |
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(2) refer to the lien claimed in a manner sufficient to |
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identify it; |
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(3) be in an amount double the amount of the lien |
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referred to; |
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(4) be payable to the commission; |
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(5) be executed by the party filing the bond as |
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principal and a corporate surety authorized under the law of this |
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state to execute the bond as surety; and |
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(6) be conditioned substantially that the principal |
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and sureties will pay to the commission the amount of the lien |
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claimed, plus costs, if the claim is proved to be a lien on the real |
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property. |
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(i) After the bond is filed, the county clerk shall issue |
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notice of the bond to the named obligee. A copy of the bond must be |
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attached to the notice. The notice may be served on each obligee by |
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having a copy delivered to the obligee by any person competent to |
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make oath of the delivery. The original notice shall be returned to |
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the office of the county clerk, and the person making service of |
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copy shall make an oath on the back of the copies showing on whom and |
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on what date the copies were served. The county clerk shall record |
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the bond notice and return in records kept for that purpose. In |
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acquiring an interest in real property, a purchaser or lender may |
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rely on and is absolutely protected by the record of the bond, |
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notice, and return. |
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(j) The commission may sue on the bond after the 30th day |
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after the date on which the notice is served but may not sue on the |
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bond later than one year after the date on which the notice is |
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served. The commission is entitled to recover reasonable |
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attorney's fees if the commission recovers in a suit on the lien or |
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on the bond. |
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SECTION 3. Section 374.103(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) Except as provided by Subsection (b) and Section |
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374.104(d), a fee of $20 [$15] per gallon is imposed on the purchase |
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of the dry cleaning solvent perchloroethylene and $3 [$5] per |
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gallon on the purchase of any other dry cleaning solvent by an owner |
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of a dry cleaning facility. The person who distributes the solvent |
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shall collect the fees and shall pay to the commission the amount |
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due, in accordance with Subsection (a-1). |
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SECTION 4. Section 374.104, Health and Safety Code, is |
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amended by amending Subsection (b-1) and adding Subsection (g) to |
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read as follows: |
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(b-1) An owner of a dry cleaning facility or drop station who |
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files an option not to participate in accordance with Subsection |
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(b) is entitled to a refund of [credit against future] registration |
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fees paid under Section 374.102[, Health and Safety Code,] to the |
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extent that a registration fee paid under that section in 2004 or |
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2005 exceeded the amount due for a nonparticipating dry cleaning |
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facility or drop station. |
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(g) A person who is the owner of a dry cleaning drop station |
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who timely files an option not to participate in fund benefits under |
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this section may, as provided by this subsection, retain the status |
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of the drop station as nonparticipating if the person moves the drop |
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station to a new location. A person to whom this section applies |
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must: |
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(1) provide to the commission the written consent of |
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the property owner at the new location; and |
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(2) continue to comply with the other requirements of |
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this section. |
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SECTION 5. Subchapter D, Chapter 374, Health and Safety |
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Code, is amended by adding Section 374.1535 to read as follows: |
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Sec. 374.1535. SITE RESTRICTIONS AFTER CORRECTIVE ACTION. |
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(a) If the commission has completed corrective action at a dry |
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cleaning site, perchloroethylene may not be used at that site. |
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(b) If the owner of a dry cleaning site uses |
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perchloroethylene at the site after the completion of corrective |
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action at that site, the site is not eligible for future corrective |
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action using money from the fund. |
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SECTION 6. Sections 374.154(b) and (c), Health and Safety |
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Code, are amended to read as follows: |
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(b) The following persons are eligible to apply for a site |
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to be ranked under Subsection (a): |
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(1) a person who is an owner of the dry cleaning |
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facility or drop station; and |
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(2) a person who is registered with the commission |
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under Section 374.1022 [an owner of the real property on which the
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dry cleaning facility or drop station is or was located; or
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[(3)
a person who was the preceding owner of the real
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property on which the dry cleaning facility or drop station is or
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was located if the person entered into an agreement with the current
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owner associated with the sale of the real property to the current
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owner that requires the person to be responsible for any costs
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associated with the clean up of contamination covered under this
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chapter]. |
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(c) If the applicant for ranking: |
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(1) is not an owner of the real property, the |
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application must include proof that an owner of the real property |
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has been notified of the application; |
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(2) is an owner of the real property and the dry |
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cleaning facility or drop station is leased, the application must |
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include proof that a lessee has been notified of the application; or |
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(3) is a person described by Section 374.1022(a)(2) |
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[Subsection (b)(3)], the application must include proof that the |
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owner of the real property and any lessee have been notified of the |
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application. |
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SECTION 7. Section 374.207, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 374.207. ELIGIBLE OWNER OR REGISTERED PERSON EXEMPT |
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FROM CERTAIN CLAIMS. If an owner or a [other] person registered |
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under Section 374.1022 is eligible under this chapter to have |
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corrective action costs paid by the fund, an administrative or |
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judicial claim may not be made under state law against the owner or |
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other person by or on behalf of this state or by any other person, |
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except a political subdivision, to compel corrective action or seek |
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recovery of the costs of corrective action that result from the |
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release. |
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SECTION 8. The Texas Commission on Environmental Quality |
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shall provide the comptroller with a list of persons eligible for a |
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refund under Section 374.104(b-1), Health and Safety Code, as |
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amended by this Act not later than November 30, 2007, and the |
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comptroller shall pay each refund not later than December 31, 2007. |
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The amount of a refund paid to a person under this section is the |
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current credit balance for that person at the time the list is |
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completed. |
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SECTION 9. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2007. |
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