HBA-NIK C.S.S.B. 509 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 509 By: Brown Civil Practices 5/8/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, the state provides for the Texas Innocent Owner/Operator Program at the Texas Natural Resource Conservation Commission (commission). Participants in the program can obtain a certificate as an innocent owner or operator, under the Health and Safety Code or Water Code, if their property has become contaminated as a result of a release or migration of contaminants from a source or sources of contamination. The certificate provides immunity from cost-recovery by the state for such contamination on the holder's property. C.S.S.B. 509 modifies provisions concerning eligibility for such a certificate. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 361.752, Health and Safety Code, by amending Subsections (c) and (d) and adding Subsection (e), as follows: (c) Adds text to include that to be eligible for immunity under Subsection (a) (relating to release or migration of a contaminant), an owner or operator must also use and maintain the property in a manner that is protective of human health and the environment, consistent with any municipal zoning restrictions relating to protection of human health and the environment. (d) Authorizes an agreement for reasonable access under Subsection (c), to provide that the designated person may not unreasonably interfere with the use of the property; for payment of reasonable compensation for access to the property; or 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. (e) Redesignated from Subsection (d). SECTION 2. Amends Section 361.753, Health and Safety Code, as follows: (a) Deletes the provision that the application for a certificate confirming that a person is an innocent owner or operator must include a complete site investigation report that the owner or operator is eligible for immunity under Section 361.752(b) (Immunity from Liability; Access to Property). (b) Adds text providing that if the applicant acquired the property for which immunity is sought in the manner described by Section 361.752(b), the application must also demonstrate that the applicant meets the requirements for eligibility for immunity provided by that subsection. (c) Created from existing text. (d)-(g) Redesignated from Subsections (c)-(f), respectively. (h) Authorizes the Texas Natural Resource Conservation Commission to condition the immunity of the certificate on the placement of control measures, rather than restrictions, on the use of the property that are reasonably necessary to protect the public health, including institutional controls such as deed notices, rather than restrictions, or municipal zoning restrictions; or at the owner's or operator's option, other control measures. SECTION 3. Emergency clause. Effective date: upon passage. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 509 adds a new SECTION 1 (amending Section 361.752, Health and Safety Code). For a complete analysis, please see the Section-by-Section Analysis in this document. C.S.S.B. 509 redesignates SECTION 1 (Section 361.753, Health and Safety Code) of the original, to SECTION 2 of the substitute. The substitute modifies the proposed amendment to Subsection (a)(3) by moving the text to Subsection (b), reorganizing text for the purpose of clarity, and adding text to provide that if the applicant acquired the property for which immunity is sought in the manner described by Section 361.752(b), the application must also demonstrate that the applicant meets the requirements for eligibility for immunity provided by that subsection. The substitute amends Section 361.753(a), to remove the provision from existing law that the application for a certificate confirming that a person is an innocent owner or operator must include a complete site investigation report that the owner or operator is eligible for immunity under Section 361.752(b) (Immunity from Liability; Access to Property). The substitute redesignates Sections 361.753(c)-(g) as (d)-(h), respectively. The substitute also authorizes the commission to condition the immunity of the certificate on the placement of control measures, rather than restrictions, on the use of the property that are reasonably necessary to protect the public health, including institutional controls such as deed notices, rather than restrictions, or municipal zoning restrictions; or at the owner's or operator's option, other control measures. This was not addressed in the original. C.S.S.B. 509 redesignates SECTION 2 (emergency clause) of the original to SECTION 3 of the substitute.