(a) Prior to certificate issuance, the applicant and any coapplicant shall submit to the executive director an affidavit affirming that neither the applicant nor any coapplicant caused or contributed to the off-site source or sources of contamination that have been released or have migrated onto the site and is otherwise eligible for an innocent owner/operator certificate.
(b) In the case of a sale, transfer, or other change in the ownership or operation of the site, the applicant and any coapplicant shall submit to the executive director an affidavit from the certificate holder or, if an affidavit is unobtainable, other documentation prior to certificate issuance. The affidavit or other documentation shall affirm that the current certificate holder has not, during the period since issuance of the most recent certificate, caused or contributed to the source or sources of off-site contamination that have released or migrated onto the site; and during the period since issuance of the most recent certificate, has not discharged or released on the site any contaminants covered by a prior certificate; and is otherwise eligible for an innocent owner/operator certificate. The executive director, in its discretion, may require a site investigation report.
(c) If the executive director determines that a person is an innocent owner/operator based upon the application submitted pursuant to §333.35 of this title (relating to Application), and upon the affidavit(s) submitted by applicant(s) and/or the certificate holder, the executive director will issue the person an innocent owner/operator certificate.
(d) The innocent owner/operator certificate shall specify the contaminant(s) and the media for which the executive director has confirmed the applicant's innocent owner/operator status.
(e) The innocent owner/operator certificate will acknowledge the protection from liability provided by Texas Health and Safety Code, §361.752.
(f) If the application of a prospective owner or operator satisfies the requirements of §333.35 of this title, the executive director will issue an innocent owner/operator certificate to the prospective owner or operator only after the executive director has received proof of ownership or operation.
(g) Institutional or engineering controls for a site shall be described in a restrictive covenant in favor of the agency and the State of Texas to be filed in the real property records in the county in which the site is located. The executive director will issue an innocent owner/operator certificate only after the executive director has received proof of the filing of the restrictive covenant. In the event the applicant is an operator, the applicant must obtain written concurrence from the owner of the property before a restrictive covenant is filed in the real property records for that property.

Source Note: The provisions of this §333.38 adopted to be effective August 30, 1998, 23 TexReg 8684.