USA – TEXAS Law and Practice Contributed by: Gerald J. Pels, Elizabeth E. Mack, Gerald D. Higdon, Susan Rainey, Elizabeth Corey and Brett A. Miller, Troutman Pepper Locke LLP
law, arranger and transporter liability also exists. The Texas SWDA, however, specifically authorises liabil- ity apportionment. Regarding liability for environmen- tal contamination, plaintiffs may also seek common law recovery of property damages by alleging private causes of action such as negligence, nuisance and trespass. Personal injury claims may also seek recov- ery based on alleged exposure to environmental con- taminants. 5.2 Liability for Historical Environmental Incidents or Damage In Texas, current landowners and operators can be held liable for historical contamination based upon their status as current owners or operators. Prior owners and operators may be held liable if a release occurred during their tenure at the facility. The Texas SWDA specifically recognises liability apportionment if a release is “divisible.” Divisibility generally assesses whether the waste released can be managed sepa- rately under a remedial action plan. Clean-up liability can also exist under other Texas statutes, depending on the nature of the substance or source of material released. Statutes to consider include the Texas Water Code, the Texas Natural Resources Code, and the Oil Spill Prevention and Response Act, among others. 5.3 Key Defences Texas provides for clean-up and incident response liability, as well as potential civil liability for injured par- ties. Enforcement liability exists for non-compliance and releases. Defences are fact-specific and may, among other things, focus on causation, the party with a duty to comply, and the divisibility of the harm. The SWDA incorporates defences that are similar, but not identical to those found in the federal CERCLA statute. In Texas, an innocent operator defence to contami- nation liability requires the property owner to provide evidence, usually in the form of environmental site assessments, demonstrating that the contamination came from an off-site source. The Texas Innocent Operator Programme (IOP) provides an avenue for an innocent owner or operator to receive an IOP cer- tificate if their property is contaminated because of a
release or migration of contaminants from a source not located on the property, provided the owner or operator did not cause or contribute to the source of contamination. The IOP serves as a defence to state clean-up liability. The TCEQ also has specific procedures for entities claiming affirmative defences to unauthorised air emission events. 6. Corporate Liability 6.1 Liability for Environmental Damage or Breaches of Environmental Law Generally, statutory laws in Texas do not differentiate liability based on corporate status. Regarding pen- alties, some differentiation exists under Texas statu- tory law, and it is a factor that may be considered in agency penalty policies. For instance, corporations that are “repeat violators” with “unsatisfactory” com- pliance history scores may receive increased penalty adjustments. 6.2 Environmental Taxes Texas does not impose a specific environmental tax (for example, there is no carbon or greenhouse gas (GHG) tax in Texas). Although these are not technically classified as “taxes,” the state does collect substantial fees related to air emissions and air inspections. Annu- al air emission fees apply to major sources, based on tons of pollution emitted. Air investigation fees are based on the Standard Industrial Classification (SIC) code of a regulated entity. Other activity-specific envi- ronmental fees, which relate to other environmental programmes, are also assessed by the TCEQ. 6.3 Incentives, Exemptions and Penalties While Texas does not impose material environmental taxes, it does offer broad incentives for the utilisation of property or equipment for pollution control. Under Texas law, a tax exemption may be obtained for real or personal property used wholly or partly as a facility, device, or method for controlling air, water, or land pol- lution, based on a “positive use determination.” The nature of “qualifying property” is listed by rule. Other important property tax exemptions are available for certain renewable projects.
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