H.B. No. 2776

LIMITS FIDUCIARY'S ENVIRONMENTAL LIABILITY

Effective Date: September 1, 1997

AN ACT

relating to the regulation of state superfund sites.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Section 361.133, Health and Safety Code, is amended by adding Subsections (g)-(i) to read as follows:

(g)  Notwithstanding Subsection (c), the executive director may use money in the fund, including interest credited under Subsection (b)(4), for expenses concerning a cleanup or removal of a spill, release, or potential threat of release of a hazardous substance if the site is eligible for listing under Subchapter F, proposed for listing under Subchapter F, or listed under the state registry before September 1, 1989, and:

(1)  immediate action is appropriate to protect human health or the environment and there is a substantial likelihood that the cleanup or removal will prevent the site from needing to be listed under Subchapter F; or

(2)  a cleanup or removal:

(A)  can be completed without extensive investigation and planning; and

(B)  will achieve a significant cost reduction for the site.

(h)  If the commission collects a fee that is deposited in a dedicated fund established for the purpose of cleaning up a facility, tank, or site described by this subsection, the commission may not use money in the hazardous and solid waste remediation fee fund to clean up a:

(1)  waste tire recycling facility;

(2)  municipal solid waste facility;

(3)  petroleum storage tank; or

(4)  used oil collection and recycling site that received used oil after August 31, 1995.

(i)  Not later than the 31st day before the date the commission begins a cleanup or removal under Subsection (g), the commission must publish notice of its intent to perform the cleanup or removal in the Texas Register.

SECTION 2.  Section 361.136(i), Health and Safety Code, is amended to read as follows:

(i)  The storage, processing, or disposal of industrial solid wastes or hazardous wastes generated in a removal or remedial action accomplished through the expenditure of money [public funds] from the hazardous and solid waste remediation fee fund or generated in a removal or remedial action in this state conducted by the United States Environmental Protection Agency shall be exempt from the assessment of a waste management fee under this section.

SECTION 3.  Section 361.183(a), Health and Safety Code, is amended to read as follows:

(a)  Before [the] listing [of] a facility on the state registry, the executive director shall determine whether the potential endangerment to public health and safety or the environment at the facility can be resolved by:

(1)  the present owner or operator under the federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901);

(2)  [or by] some or all of the potentially responsible parties identified in Subchapter I, under an agreed administrative order issued by the commission; or

(3)  an agreement under Subchapter S, as added by Chapter 986, Acts of the 74th Legislature, Regular Session, 1995.

SECTION 4.  Subchapter F, Chapter 361, Health and Safety Code, is amended by adding Section 361.1855 to read as follows:

Sec. 361.1855.  PROPOSAL OF LAND USE OTHER THAN RESIDENTIAL. (a) The executive director shall hold a public meeting to obtain public input and information regarding the appropriate use of land on which a facility is located that is the subject of a remedial investigation/feasibility study if:

(1)  a land use other than residential is proposed as appropriate for the land by:

(A)  the executive director; or

(B)  a potentially responsible party who has entered into an agreed order with the commission;

(2)  the proposal is made before the study is completed; and

(3)  a local government has not zoned the land as residential only.

(b)  Any interested person may comment at the meeting.

(c)  The meeting is legislative in nature and not a contested case hearing under Chapter 2001, Government Code.

(d)  Not later than the 31st day before the date of the meeting, the commission shall:

(1)  publish notice of the meeting in the Texas Register and in a newspaper of general circulation in the county in which the facility is located;

(2)  mail notice of the meeting to each potentially responsible party by certified mail, return receipt requested, at the party's most recent address as shown on the records of the commission; and

(3)  make the commission's records regarding the facility available to any interested person.

(e)  The notice shall:

(1)  state the date, time, and place of the meeting; and

(2)  provide information regarding the proposed land use.

(f)  The failure of a potentially responsible party to receive a notice under this section does not affect the responsibilities, duties, or liabilities of the party.

(g)  After the meeting, the executive director shall select the appropriate land use for purposes of selecting a proposed remedial action.

SECTION 5.  Section 361.187(b), Health and Safety Code, is amended to read as follows:

(b)  The commission shall publish notice of the meeting in the Texas Register and in a newspaper of general circulation in the county in which the facility is located at least 30 [45] days before the date of the public meeting. The notice shall provide information regarding the proposed remedial action and the date, time, and place of the meeting. The commission shall also mail the same information to each potentially responsible party by certified mail, return receipt requested, at the party's last known address at least 30 [45] days before the public meeting. Contemporaneously with the issuance of notice of the public meeting, the executive director shall make available to all interested parties the public records the executive director has regarding the facility. For purposes of providing this information, the executive director shall provide a brief summary of those public records and make those public records available for inspection and copying during regular business hours. Nonreceipt of any notice mailed to a potentially responsible party under this section does not affect the responsibilities, duties, or liabilities imposed on the party.

SECTION 6.  Section 361.188(a), Health and Safety Code, is amended to read as follows:

(a)  After consideration of all good faith offers to perform a remedial action, the commission shall issue a final administrative order that must:

(1)  list the facility on the state registry, thus determining that the facility poses an imminent and substantial endangerment to public health and safety or the environment;

(2)  specify the appropriate land use for purposes of selecting the appropriate remedial action;

(3)  specify the selected remedial action;

(4) [(3)]  list the parties determined to be responsible for remediating the facility;

(5) [(4)]  make findings of fact describing actions voluntarily undertaken by responsible parties;

(6) [(5)]  order the responsible parties to remediate the facility and, if appropriate, reimburse the hazardous waste disposal fee fund for remedial investigation/feasibility study and remediation costs;

(7) [(6)]  establish a schedule for completion of the remedial action;

(8) [(7)]  state any determination of divisibility of responsible party liability; and

(9) [(8)]  give notice of the duties and restrictions imposed by Section 361.190.

SECTION 7.  Section 361.189, Health and Safety Code, is amended to read as follows:

Sec. 361.189.  Deletions from Registry. (a)  The executive director or an [Any] owner or operator or other named responsible party of a facility listed or to be listed on the state registry may request the commission to delete the facility from the state registry, modify the facility's priority within the state registry, or modify any information regarding the facility by submitting a written statement setting forth the grounds of the request in the form the commission may by rule require.

(b)  The commission by rule shall establish procedures, including public meetings [hearings], for review of requests submitted under this section.

(c)  If the commission deletes a facility from the state registry because the cleanup of the facility is being addressed under Subchapter S, as added by Chapter 986, Acts of the 74th Legislature, Regular Session, 1995, the facility automatically reverts to the status the facility had immediately before the facility was deleted from the registry on the date of the executive director's determination that the cleanup of the facility is not being addressed adequately. A public meeting is not required for an action under this subsection.

SECTION 8.  Sections 361.194(b) and (c), Health and Safety Code, are amended to read as follows:

(b)  The lien imposed by this section arises and attaches 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. The executive director shall determine whether to prepare an affidavit. In making the determination, the executive director shall 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. For the purpose of determining rights of all affected parties, the lien does not relate back to a time before the date on which the affidavit is recorded, which date is the lien inception date. The lien continues until the liability for the costs is satisfied or becomes unenforceable through operation of law.

(c)  An authorized representative of the commission must [shall] execute the affidavit. The affidavit must show:

(1)  the names and addresses of the persons liable for the costs;

(2)  a description of the real property that is subject to or affected by the remediation action for the costs or claims; and

(3)  the amount of the costs and the balance due.

SECTION 9.  Section 361.197, Health and Safety Code, is amended by adding Subsection (d) to read as follows:

(d)  The commission shall file a cost recovery action against each responsible party for the total costs of an action taken under Section 361.133(c)(1), (2), (3), (5), or (6) or Section 361.133(g).

SECTION 10.  Section 361.200, Health and Safety Code, is amended to read as follows:

Sec. 361.200.  [DE MINIMIS] SETTLEMENT. The commission shall assess and by rule may develop and implement a [de minimis] settlement program. Under the program, the commission shall consider the advantages of developing a final settlement with potentially responsible parties that are responsible for [only a minor portion of the] response costs at a facility because of [the] hazardous substances. The settlement program may include:

(1)  de minimis settlements;

(2)  covenants not to sue;

(3)  mixed funding; and

(4)  partial settlements [the party is responsible for are minimal in amount or in hazardous effect by comparison with the hazardous substances attributable to other parties].

SECTION 11.  Section 361.271, Health and Safety Code, is amended by adding Subsections (e) and (f) to read as follows:

(e)  A fiduciary's responsibility for solid waste is subject to Subchapter T.

(f)  A lender's responsibility for solid waste is subject to Subchapter U.

SECTION 12.  Section 361.277, Health and Safety Code, is amended to read as follows:

Sec. 361.277.  EFFECT OF SETTLEMENT AGREEMENT WITH STATE [JUDGMENT BY STATE AGAINST NONSETTLING PARTY; ACTION FOR CONTRIBUTION BY NONSETTLING PARTY]. (a) If fewer than all of the persons identified as liable under this subchapter agree with the state to take remedial action to abate an actual or threatened release of solid waste that is an imminent and substantial endangerment to the public health and safety or the environment under an administrative order issued under Section 361.272 or an action filed by the state under this subchapter, the state may seek a judgment against a nonsettling person for the total amount of the cost of the remedial action minus that amount the settling persons agree to pay or spend.

(b)  A person who enters a settlement agreement with the state that resolves all liability of the person to the state for a site subject to Subchapter F is released from liability to a person described by Section 361.344(a) for cost recovery, contribution, or indemnity under Section 361.344 regarding a matter addressed in the settlement agreement.

(c)  A settlement agreement does not discharge the liability of a nonsettling person to the state unless the agreement provides otherwise.

(d)  Notwithstanding Subsection (c), a settlement agreement reduces the potential liability to the state of the nonsettling persons by the amount of the settlement [In an action for contribution brought by a nonsettling person against a settling person, the nonsettling person has the burden to prove that the amount of cleanup costs that a settling person agreed to pay under an agreement with the state is unreasonable considering the factors under Section 361.343 and the need to undertake timely cleanup action concerning the release or threatened release].

SECTION 13.  Section 361.343, Health and Safety Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b)  In apportioning costs under Subsection (a), the court shall credit against a responsible party's share of the costs of eliminating a release or threatened release of solid waste the party's expenditures related to the cleanup at issue if the commission or the executive director approves the cleanup. If the expenditures were made before the property was proposed to be listed on the state registry and the commission or the executive director approves the cleanup, the court shall also reduce in an equitable and just manner the party's proportionate share of the costs.

(c)  The apportionment of costs only adjusts the rights of parties identified by Section 361.271 and does not affect a person's liability to the state.

SECTION 14.  Section 361.344(a), Health and Safety Code, is amended to read as follows:

(a)  A person [subject to a court injunction or an administrative order issued under this chapter, or a third person identified by Section 361.192(c)] who conducts a removal or remedial action that is approved by the commission and is necessary to address [acts to eliminate] a release or threatened release[, in addition to having the right to file an action for contribution or indemnity, or both, in an appeal proceeding or in an action brought by the attorney general,] may bring suit in a district court to recover the reasonable and necessary costs of that action [incurred to eliminate the release or threatened release] and other costs as the court, in its discretion, considers reasonable. This right is in addition to the right to file an action for contribution, indemnity, or both in an appeal proceeding or in an action brought by the attorney general.

SECTION 15.  Chapter 361, Health and Safety Code, is amended by adding Subchapters T, U, and V to read as follows:

SUBCHAPTER T. FIDUCIARY LIABILITY

Sec. 361.651.  DEFINITIONS. In this subchapter:

(1)  "Fiduciary":

(A)  means a person acting for the benefit of another party as a bona fide:

(i)  trustee;

(ii)  executor;

(iii)  administrator;

(iv)  custodian;

(v)  guardian of an estate or guardian ad litem;

(vi)  receiver;

(vii)  conservator;

(viii)  committee of the estate of an incapacitated person;

(ix)  personal representative;

(x)  trustee, including a successor to a trustee, under an indenture agreement, trust agreement, lease, or similar financing agreement, for debt securities, certificates of interest or certificates of participation in debt securities, or other forms of indebtedness as to which the trustee is not, in the capacity of trustee, the lender; or

(xi)  representative in any other capacity that the commission, after providing public notice, determines to be similar to the capacities described in Subparagraphs (i)-(x); and

(B)  does not include:

(i)  a person that is acting as a fiduciary with respect to a trust or other fiduciary estate that was organized for the primary purpose of, or is engaged in, actively carrying on a trade or business for profit, unless the trust or other fiduciary estate was created as part of, or to facilitate, one or more estate plans or because of the incapacity of a natural person; or

(ii)  a person that acquires ownership or control of a solid waste facility with the objective purpose of avoiding liability of the person or of any other person.

(2)  "Fiduciary capacity" means the capacity of a person in holding title to a solid waste facility or otherwise having control of or an interest in the solid waste facility pursuant to the exercise of the responsibilities of the person as a fiduciary.

(3)  "Solid waste facility":

(A)  means:

(i)  all contiguous land, including structures, appurtenances, and other improvements on the land, used for processing, storing, or disposing of solid waste, including a publicly or privately owned solid waste facility consisting of several processing, storage, or disposal operational units such as one or more landfills, surface impoundments, or a combination of units; and

(ii)  any building, structure, installation, equipment, pipe, or pipeline, including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, placed, or otherwise come to be located; and

(B)  does not include a:

(i)  consumer product in consumer use; or

(ii)  vessel.

Sec. 361.652.  LIABILITY OF FIDUCIARIES. (a) Except as otherwise provided by Subchapter I, Chapter 26, Water Code, or rules adopted under that subchapter, the liability of a fiduciary under this code or the Water Code for the release or threatened release of solid waste at, from, or in connection with a solid waste facility held in a fiduciary capacity does not exceed the assets held in the fiduciary capacity.

(b)  Subsection (a) does not apply to the extent that a person is liable independently of the person's ownership of a solid waste facility as a fiduciary or actions taken in a fiduciary capacity.

(c)  Subsections (a) and (d) do not limit the liability pertaining to a release or threatened release of solid waste if negligence, gross negligence, or wilful misconduct of a fiduciary causes or contributes to the release or threatened release.

(d)  Except as otherwise provided by Subchapter I, Chapter 26, Water Code, or rules adopted under that subchapter, a fiduciary is not liable in the fiduciary's personal capacity under this code or the Water Code for:

(1)  undertaking or directing another person to undertake a response action under the national contingency plan adopted under 42 U.S.C. Section 9605, under a commission-approved cleanup plan, or under the direction of an on-scene coordinator designated under the national contingency plan or a commission-approved cleanup plan;

(2)  undertaking or directing another person to undertake any other lawful means of addressing solid waste in connection with the solid waste facility;

(3)  terminating the fiduciary relationship;

(4)  including in the terms of the fiduciary agreement a covenant, warranty, or other term or condition that relates to compliance with an environmental law or monitoring or enforcing the term or condition;

(5)  monitoring or undertaking one or more inspections of the solid waste facility;

(6)  providing financial or other advice or counseling to other parties to the fiduciary relationship, including the settlor or beneficiary;

(7)  restructuring, renegotiating, or otherwise altering the terms and conditions of the fiduciary relationship;

(8)  administering, as a fiduciary, a solid waste facility that was contaminated before the fiduciary relationship began; or

(9)  declining to take an action described by Subdivisions (2)-(8).

(e)  This section does not:

(1)  affect a right, immunity, or defense available under this code or the Water Code that is applicable to a person subject to this section;

(2)  create any liability for a person; or

(3)  create a private right of action against a fiduciary or any other person.

(f)  This section does not apply to a person if the person:

(1)  acts in a capacity other than that of a fiduciary or in a beneficiary capacity and, in that capacity, directly or indirectly benefits from a trust or fiduciary relationship; or

(2)  is a beneficiary and a fiduciary with respect to the same fiduciary estate and, as a fiduciary, receives benefits that exceed customary or reasonable compensation, and incidental benefits, permitted under other applicable law.

(g)  This section does not preclude a claim under this code or the Water Code against:

(1)  the assets of the estate or trust administered by the fiduciary; or

(2)  a nonemployee agent or independent contractor retained by a fiduciary.

[Sections 361.653-361.700 reserved for expansion]

SUBCHAPTER U. LENDER LIABILITY

Sec. 361.701.  DEFINITIONS. In this subchapter:

(1)  "Extension of credit" includes a lease finance transaction:

(A)  in which the lessor does not initially select the leased solid waste facility and does not during the lease term control the daily operations or maintenance of the solid waste facility; or

(B)  that conforms with, as appropriate, regulations issued by:

(i)  the appropriate federal banking agency or the appropriate state bank supervisor, as those terms are defined by Section 3, Federal Deposit Insurance Act (12 U.S.C. Section 1813); or

(ii)  the National Credit Union Administration Board.

(2)  "Financial or administrative function" includes a function such as a function of a credit manager, accounts payable officer, accounts receivable officer, personnel manager, comptroller, or chief financial officer, or a similar function.

(3)  "Foreclosure" and "foreclose" mean, respectively, acquiring, and to acquire, a solid waste facility through:

(A)  purchase at sale under a judgment or decree, power of sale, or nonjudicial foreclosure sale;

(B)  a deed in lieu of foreclosure, or similar conveyance from a trustee;

(C)  repossession, if the solid waste facility was security for an extension of credit previously contracted;

(D)  conveyance under an extension of credit previously contracted, including the termination of a lease agreement; or

(E)  any other formal or informal manner by which the person acquires, for subsequent disposition, title to or possession of a solid waste facility in order to protect the security interest of the person.

(4)  "Lender" means:

(A)  an insured depository institution, as that term is defined by Section 3, Federal Deposit Insurance Act (12 U.S.C. Section 1813);

(B)  an insured credit union, as that term is defined by Section 101, Federal Credit Union Act (12 U.S.C. Section 1752);

(C)  a bank or association chartered under the Farm Credit Act of 1971 (12 U.S.C. Section 2001 et seq.);

(D)  a leasing or trust company that is an affiliate of an insured depository institution;

(E)  any person, including a successor or assignee of any such person, that makes a bona fide extension of credit to or takes or acquires a security interest from a nonaffiliated person;

(F)  the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Agricultural Mortgage Corporation, or any other entity that in a bona fide manner buys or sells loans or interests in loans;

(G)  a person that insures or guarantees against a default in the repayment of an extension of credit, or acts as a surety with respect to an extension of credit, to a nonaffiliated person;

(H)  a person that provides title insurance and that acquires a solid waste facility as a result of assignment or conveyance in the course of underwriting claims and claims settlement; and

(I)  an agency of this state that makes an extension of credit to or acquires a security interest from:

(i)  a federal or state agency;

(ii)  a county, municipality, or other body politic or corporate of this state, including:

(a)  a district or authority created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution;

(b)  an interstate compact commission to which this state is a party; or

(c)  a nonprofit water supply corporation created and operating under Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's Texas Civil Statutes); or

(iii)  another person.

(5)  "Operational function" includes a function such as that of a facility or plant manager, operations manager, chief operating officer, or chief executive officer.

(6)  "Security interest" includes a right under a mortgage, deed of trust, assignment, judgment lien, pledge, security agreement, factoring agreement, or lease and any other right accruing to a person to secure the repayment of money, the performance of a duty, or any other obligation by a nonaffiliated person.

(7)  "Solid waste facility":

(A)  means:

(i)  all contiguous land, including structures, appurtenances, and other improvements on the land, used for processing, storing, or disposing of solid waste, including a publicly or privately owned solid waste facility consisting of several processing, storage, or disposal operational units such as one or more landfills, surface impoundments, or a combination of units; and

(ii)  any building, structure, installation, equipment, pipe, or pipeline, including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, placed, or otherwise come to be located; and

(B)  does not include a:

(i)  consumer product in consumer use; or

(ii)  vessel.

Sec. 361.702.  EXCLUSION OF LENDERS NOT PARTICIPANTS IN MANAGEMENT. (a) In Section 361.271, the term "owner or operator" does not include a person that is a lender that:

(1)  without participating in the management of a solid waste facility, holds a security interest in or with regard to the solid waste facility; or

(2)  did not participate in management of a solid waste facility before foreclosure, notwithstanding the fact that the person:

(A)  forecloses on the solid waste facility; and

(B)  after foreclosure, sells, re-leases, in the case of a lease finance transaction, or liquidates the solid waste facility, maintains business activities, winds up operations, undertakes a response action with respect to the solid waste facility under the national contingency plan adopted under 42 U.S.C. Section 9605, under a commission-approved cleanup plan, or under the direction of an on-scene coordinator appointed under the national contingency plan or a commission-approved cleanup plan, or takes any other measure to preserve, protect, or prepare the solid waste facility before sale or disposition, if the person seeks to sell, re-lease, in the case of a finance transaction, or otherwise divest the person of the facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market conditions and legal and regulatory requirements.

(b)  For purposes of Subsection (a)(2)(B), a lender is presumed to divest the lender of the solid waste facility at the earliest practicable, commercially reasonable time if, within 12 months after foreclosure, the lender:

(1)  lists the solid waste facility with a broker, dealer, or agent who deals in that type of property; or

(2)  advertises the solid waste facility for sale or other disposition at least monthly in:

(A)  a real estate publication;

(B)  a trade or other publication appropriate for the solid waste facility being advertised; or

(C)  a newspaper of general circulation in the area in which the solid waste facility is located.

(c)  For purposes of Subsection (b), the 12-month period begins:

(1)  when the lender acquires marketable title if the lender, after the expiration of any redemption period or other waiting period required by law, was acting diligently to acquire marketable title; or

(2)  on the date of foreclosure or its equivalent if the lender does not act diligently to acquire marketable title.

(d)  Except as otherwise provided by Subchapter I, Chapter 26, Water Code, or rules adopted under that subchapter, a lender is not liable under this code or the Water Code to undertake a removal or remedial action or to pay a fine or penalty arising from the release or threatened release of solid waste at, from, or in connection with the solid waste facility in which the lender maintains a security interest or that the lender has acquired through foreclosure if:

(1)  the lender has not participated in management before foreclosure;

(2)  the conditions giving rise to the release or threat of release existed before foreclosure; and

(3)  the lender seeks to divest the lender of the property under Subsections (a)(2)(B) and (b).

(e)  Notwithstanding Subsection (d), if a lender after foreclosure operates, directs the operation of, or maintains the operation of business activities, this section does not exempt or excuse the lender from compliance with legal requirements applicable to the operation of that business. Those operational requirements include permitting, reporting, monitoring, compliance with emission limitations, financial responsibility and assurance requirements, payment of fees, and payment of fines and penalties for noncompliance with those requirements.

Sec. 361.703.  PARTICIPATION IN MANAGEMENT. (a) For purposes of Section 361.702, the term "participate in management":

(1)  means actually participating in the management or operational affairs of a solid waste facility; and

(2)  does not include merely having the capacity to influence, or the unexercised right to control, a solid waste facility or facility operations.

(b)  A person that is a lender that holds a security interest in or with regard to a solid waste facility is considered to participate in management only if, while the borrower is still in possession of the solid waste facility encumbered by the security interest, the person:

(1)  exercises decision-making control over the environmental compliance related to the solid waste facility such that the person has undertaken responsibility for the solid waste handling or disposal practices related to the solid waste facility; or

(2)  exercises control at a level comparable to that of a manager of the solid waste facility such that the person has assumed or manifested responsibility:

(A)  for the overall management of the solid waste facility encompassing day-to-day decisionmaking with respect to environmental compliance; or

(B)  over all or substantially all of the operational functions, as distinguished from financial or administrative functions, of the solid waste facility other than the function of environmental compliance.

(c)  The term "participate in management" does not include:

(1)  performing an act or failing to act before the time at which a security interest is created in a solid waste facility;

(2)  holding a security interest or abandoning or releasing a security interest;

(3)  including in the terms of an extension of credit, or in a contract or security agreement relating to the extension, a covenant, warranty, or other term or condition that relates to environmental compliance;

(4)  monitoring or enforcing the terms and conditions of the extension of credit or security interest;

(5)  monitoring or undertaking one or more inspections of the solid waste facility;

(6)  requiring a response action or other lawful means of addressing the release or threatened release of solid waste in connection with the solid waste facility before, during, or on the expiration of the term of the extension of credit;

(7)  providing financial or other advice or counseling in an effort to mitigate, prevent, or cure default or diminution in the value of the solid waste facility;

(8)  restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of the extension of credit or security interest, exercising forbearance;

(9)  exercising other remedies that may be available under applicable law for the breach of a term or condition of the extension of credit or security agreement; or

(10)  conducting a response action under the national contingency plan adopted under 42 U.S.C. Section 9605, under a commission-approved cleanup plan, or under the direction of an on-scene coordinator appointed under the national contingency plan or a commission-approved cleanup plan, if the actions do not rise to the level of participating in management within the meaning of Subsections (a) and (b).

[Sections 361.704-361.750 reserved for expansion]

SUBCHAPTER V. IMMUNITY FROM LIABILITY OF INNOCENT OWNER OR

OPERATOR

Sec. 361.751.  DEFINITIONS. In this subchapter:

(1)  "Contaminant" has the meaning assigned by Section 361.601.

(2)  "Innocent owner or operator" means a person that:

(A)  is an owner or operator of property that has become contaminated as a result of a release or migration of contaminants from a source or sources not located on or at the property; and

(B)  did not cause or contribute to the source or sources of the contamination referred to in Paragraph (A).

Sec. 361.752.  IMMUNITY FROM LIABILITY; ACCESS TO PROPERTY. (a) An innocent owner or operator of property is not liable under this code or the Water Code for investigation, monitoring, remediation, or corrective or other response action regarding the conditions attributable to a release or migration of a contaminant or otherwise liable regarding those conditions.

(b)  A person that acquires a portion of the tract on which the source of a release of contaminants is located from the person that caused the release is eligible for immunity under Subsection (a) only if, after appropriate inquiry consistent with good commercial or customary practice, the person did not know or have reason to know of the contamination at the time the person acquired the property.

(c)  To be eligible for immunity under Subsection (a), an owner or operator must grant reasonable access to the property for purposes of investigation or remediation to a person designated by the executive director. An agreement for reasonable access may provide:

(1)  that the designated person may not unreasonably interfere with the use of the property;

(2)  for payment of reasonable compensation for access to the property; or

(3)  that the owner or operator is indemnified from liability for an intentional or negligent act of the designated person arising from the person's access to and use of the property.

(d)  This section does not limit any right of the commission under another provision of this code or the Water Code to obtain access to the property.

Sec. 361.753.  CERTIFICATION. (a)  A person may apply to the commission for a certificate confirming that the person is an innocent owner or operator. The application must include a complete site investigation report that demonstrates that:

(1)  the property has become contaminated as a result of a release or migration of contaminants from a source or sources not located on or at the property;

(2)  the owner or operator has not caused or contributed to the source or sources of the contamination referred to in Subdivision (1); and

(3)  the owner or operator is eligible for immunity under Section 361.752(b).

(b)  The commission may charge an application fee in an amount not to exceed the cost of reviewing the application. The commission shall deposit a fee collected under this subsection to the credit of the hazardous and solid waste remediation fee fund.

(c)  Not later than the 45th day after the date the commission receives the application, the commission shall notify the applicant whether the application is complete.

(d)  Not later than the 90th day after the date the commission receives the application, the commission shall:

(1)  issue or deny the certificate; or

(2)  notify the applicant of any additional information needed to review the application.

(e)  Not later than the 45th day after the date the commission receives the additional information requested under Subsection (d)(2), the commission shall issue or deny the certificate.

(f)  The certificate evidences the immunity from liability of the applicant as provided by Section 361.752.

(g)  The commission may condition the issuance of the certificate on the placement of restrictions on the use of the property that are reasonably necessary to protect the public health, including:

(1)  institutional controls such as deed restrictions or municipal zoning restrictions; or

(2)  at the owner's or operator's option, other control measures.

Sec. 361.754.  RIGHTS OF INNOCENT OWNER OR OPERATOR REGARDING CONTAMINATION FROM SOURCE NOT LOCATED ON OR AT PROPERTY. This subchapter does not limit the right of an innocent owner or operator to pursue any remedy available at law or in equity for conditions attributable to the release or migration of contaminants from a source or sources that are not located on or at the property.

SECTION 16.  Subchapter C, Chapter 2155, Government Code, is amended by adding Section 2155.145 to read as follows:

Sec. 2155.145.  CERTAIN PURCHASES BY TEXAS NATURAL RESOURCE CONSERVATION COMMISSION. The Texas Natural Resource Conservation Commission is delegated all purchasing functions relating to the administration of Subchapters F and I, Chapter 361, Health and Safety Code, subject to the rules adopted by the commission under Section 2155.132(c).

SECTION 17.  Section 2166.003(a), Government Code, is amended to read as follows:

(a)  Unless otherwise provided, this chapter does not apply to:

(1)  a project constructed by and for the Texas Department of Transportation;

(2)  a project constructed by and for a state institution of higher education;

(3)  a pen, shed, or ancillary building constructed by and for the Department of Agriculture for the processing of livestock before export;

(4)  a project constructed by the Parks and Wildlife Department;

(5)  a repair or rehabilitation project, except a major renovation, of buildings and grounds on the commission inventory;

(6)  a repair and rehabilitation project of another using agency, if all labor for the project is provided by the regular maintenance force of the using agency under specific legislative authorization and the project does not require the advance preparation of working plans or drawings; [or]

(7)  a repair and rehabilitation project involving the use of contract labor, if the project has been excluded from this chapter by commission rule and does not require the advance preparation of working plans or drawings; or

(8)  an action taken by the Texas Natural Resource Conservation Commission under Subchapter F or I, Chapter 361, Health and Safety Code.

SECTION 18.  Subchapter A, Chapter 2253, Government Code, is amended by adding Section 2253.002 to read as follows:

Sec. 2253.002.  EXEMPTION. This chapter does not apply to a public work contract entered into by a state agency relating to an action taken under Subchapter F or I, Chapter 361, Health and Safety Code, or Subchapter I, Chapter 26, Water Code.

SECTION 19.  Section 26.265, Water Code, is amended by adding Subsections (h)-(j) to read as follows:

(h)  Notwithstanding Subsection (g), a responsible person who enters into a settlement agreement with the state that resolves all liability of the person to the state for a site subject to Subchapter F, Chapter 361, Health and Safety Code, is released from liability to a person described by Section 361.344(a), Health and Safety Code, for contribution or indemnity under this code regarding a matter addressed in the settlement agreement.

(i)  A settlement agreement does not discharge the liability of a nonsettling person to the state unless the agreement provides otherwise.

(j)  Notwithstanding Subsection (i), a settlement agreement reduces the potential liability to the state of the nonsettling persons by the amount of the settlement.

SECTION 20.  This Act takes effect September 1, 1997.

SECTION 21.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised on May 26, 1997.