(a) Financial capability general. The executive director may make a determination of whether any potentially responsible party (PRP) is financially capable of participating in any facility investigation or remediation. Such a determination may be based on some or all of the following financial information:
  (1) a PRP's audited financial statements;
  (2) a PRP's federal or state income tax returns;
  (3) a PRP's gross and net income for each of the preceding three years;
  (4) a PRP's net worth for each of the preceding three years;
  (5) a PRP's current cash flow position;
  (6) a PRP's long-term liabilities;
  (7) the liquidity of a PRP's assets; and
  (8) any other data requested under §335.345 of this title (relating to Requests for Information or Production of Documents), which in the opinion of the executive director is relevant to a determination of the ability of the PRP to participate in a facility investigation or remediation.
(b) Homesteads. The executive director shall determine whether a PRP is financially capable of conducting any necessary remediation studies or remedial action if the PRP is an individual whose homestead includes the facility subject to, or affected by, a remedial action. The value of an individual's homestead may not be included in the total amount of the individual's assets if:
  (1) the individual is occupying the homestead as a home; and
  (2) the fair market value of the homestead is $250,000 or less.
(c) Liens under Texas Health and Safety Code, §361.194.
  (1) Filing of lien. If the executive director files a lien on property, the executive director shall send a copy of the filed lien to the last known address of the owner of the property.
  (2) Financial ability to satisfy lien. In making a determination whether to prepare an affidavit for lien or whether a lien is satisfied, the executive director may take into account a landowner's financial ability to satisfy the lien, including consideration of whether the landowner received financial compensation for the disposal of any substance addressed by the remedial action and whether the real property that is the subject of the lien:
    (A) is a homestead and is being occupied as a home by the landowner; and
    (B) has a fair market value of $250,000 or less.
(d) Cost recovery actions.
  (1) Homesteads. The executive director may not file a cost recovery action under Texas Health and Safety Code, §361.197, against an individual if the individual's only significant asset is a homestead that:
    (A) includes the facility subject to, or affected by, a remedial action;
    (B) is occupied by the individual as a home; and
    (C) has a fair market value of $250,000 or less.
  (2) Limitation on filing. A cost recovery action against the responsible parties that have not complied with the terms of an administrative order under Texas Health and Safety Code, §361.188, may be filed by the agency no later than one year after all remedial action has been completed.
(e) Fair market value. For the purposes of this section, the fair market value of a homestead is the market value ascribed to a property by the tax appraisal authority of the county or counties in which the property is located, exclusive of any downward adjustment related to contamination. If this information is unavailable, the executive director may determine the fair market value of the property, which excludes any downward adjustment related to contamination, from information available at the time.
(f) PRP information.
  (1) The PRP shall provide the following information within 90 days after receipt of a written request by the executive director so that the executive director may conduct the determinations under subsections (b) - (d) of this section:
    (A) information listed in subsection (a) of this section;
    (B) evidence that the subject property is the individual's homestead; and
    (C) evidence that the individual is occupying the property as a home.
  (2) The PRP may request an extension of the required time frame for providing documents if the extension is requested by the PRP within the initial 90-day time frame.
  (3) For the purposes of this section, the executive director may determine that the property is not a homestead that is occupied by the individual as a home if the PRP does not provide the information requested in paragraph (1) of this subsection within the required time frame, including any extensions granted by the executive director. The executive director shall provide any such determination in writing to the PRP. The executive director's determination that the property is not a homestead that is occupied by the individual as a home is final and appealable under Texas Health and Safety Code, §361.321.

Source Note: The provisions of this §335.347 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective June 3, 2004, 29 TexReg 5407