Since at least the late Eighties, the Texas Legislature and the Texas Commission on Environmental Quality (TCEQ) have encouraged the cleanup of contaminated properties in a myriad of ways. For example, the Petroleum Storage Tank Responsible Party Lead Program, the Voluntary Cleanup Program, the Innocent Owner Program, and the Dry Cleaner Remediation Program, to name a few, are legislative initiatives designed to promote the remediation of property that has been impacted by industrial and other commercial activities over the course of time. Often these historically contaminated sites occur because, in the past, on-site disposal was authorized or was accepted practice at the time the site was impacted. In many instances, the legislative and regulatory initiatives seek to relieve the concerns of potential new owners/developers contemplating owning or utilizing the impacted property by way of cleaning up sites through these programs. It is unquestionable that these programs have led to the restoration of commercially valuable property and promoted economic development in the State. Furthermore, encouraging private parties to purchase and voluntarily remediate contaminated property has relieved the State of Texas and its taxpayers from bearing the significant costs of remediation for these often abandoned tracts.
For its part, the TCEQ and its predecessor agencies have competently administered remediation programs such as those mentioned above, and conscientiously exercised appropriate discretion in their enforcement programs to avoid sending mixed messages to the regulated community. In short, whether due to some legislative incentive program or not, the TCEQ has generally not sought a penalty from owners of contaminated property if the owner was addressing the environmental issues. The basic reason is that the TCEQ reserves its penalty actions to punish non-compliance and recalcitrant owners. Thus, contamination that occurs as a result of legal, authorized disposal or other activity has been seen as appropriate for remediation but not penalty, unless the owner of the property is not willing to engage in remediation. While the TCEQ is not reluctant to exercise its enforcement authority when appropriate, in historical contamination cases, it recognizes the value of allowing these entities to clean up these sites without the additional financial burden of a penalty, which can take funds away from the cleanup efforts.
Thus, the State has acknowledged that assessing penalties against innocent landowners, subsequent purchasers, or successors in interest would deter persons from taking on contaminated properties and remediating them. While entities have shown a willingness to take on the cost of remediation of contaminated property, there is very little likelihood that anyone would take on such a property if they were subject to per diem penalties. As mentioned above, the State has also recognized that penalty dollars that are paid to the State are better spent on addressing the contamination. This is particularly true in cases where prior legal disposal activities left chemicals behind and only over the course of time has contamination occurred or been identified. In sum, these “historical contamination” cases have not resulted in penalty actions brought by the State when actions have been or are being taken to remediate the site.