By Earley H.B. No. 2016
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the storage of hazardous liquids in
1-3 salt dome storage facilities; providing civil and administrative
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. The Natural Resources Code is amended by adding
1-7 Title 11 to read as follows:
1-8 TITLE 11. MISCELLANEOUS USES OF NATURAL RESOURCES
1-9 CHAPTER 211. HAZARDOUS LIQUID SALT
1-10 DOME STORAGE FACILITIES
1-11 SUBCHAPTER A. GENERAL PROVISIONS
1-12 Sec. 211.001. DEFINITIONS. In this chapter:
1-13 (1) "Commission" means the Railroad Commission of
1-14 Texas.
1-15 (2) "Hazardous liquid" means any liquid which is not
1-16 defined as a solid or hazardous waste by Section 361.003, Health
1-17 and Safety Code, and which is:
1-18 (A) petroleum or any petroleum or liquid natural
1-19 gas product; or
1-20 (B) any hydrocarbon in a liquid state, other
1-21 than liquified natural gas, that has been determined by the United
1-22 States secretary of transportation to be a hazardous liquid.
1-23 (3) "Salt dome storage of hazardous liquids" means the
1-24 storage of a hazardous liquid in any salt formation or bedded salt
2-1 formation storage facility, but does not include a facility that
2-2 has been defined by the federal Department of Transportation as
2-3 part of an interstate pipeline facility and that is subject to
2-4 federal minimum standards adopted under the Hazardous Liquid
2-5 Pipeline Safety Act of 1979 (49 U.S.C. Section 2001 et seq.).
2-6 (4) "Salt dome storage facility" includes any new or
2-7 existing salt formation or bedded salt formation storage cavern and
2-8 any equipment, facility, or building used or intended for use in
2-9 the storage of a hazardous liquid in the salt formation cavern.
2-10 Sec. 211.002. POWERS OF LOCAL GOVERNMENTS. (a) This
2-11 chapter does not reduce, limit, or impair the authority provided by
2-12 law to any municipality, except as provided by Subsection (b) of
2-13 this section.
2-14 (b) A municipality or county may not adopt or enforce an
2-15 ordinance or other regulation that establishes safety standards or
2-16 practices applicable to hazardous liquid salt formation storage
2-17 facilities that are subject to regulation by federal or state law.
2-18 SUBCHAPTER B. REGULATION OF FACILITIES
2-19 Sec. 211.011. JURISDICTION. The commission has jurisdiction
2-20 over all salt dome storage of hazardous liquids and over salt dome
2-21 storage facilities used for the storage of hazardous liquids.
2-22 Sec. 211.012. RULES AND STANDARDS. (a) The commission by
2-23 rule shall adopt safety standards and practices for the salt dome
2-24 storage of hazardous liquids and the facilities used for that
2-25 purpose. Safety standards and practices adopted by the commission
2-26 for a storage facility that is part of an intrastate pipeline
2-27 facility, as defined by the federal Department of Transportation
3-1 under the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C.
3-2 Section 2001 et seq.), must be compatible with federal minimum
3-3 standards. The rules shall require:
3-4 (1) the installation and periodic testing of safety
3-5 devices at a salt dome storage facility;
3-6 (2) the establishment of emergency notification
3-7 procedures in the event of a release of a hazardous substance that
3-8 the operator of the facility determines poses a substantial risk to
3-9 the public;
3-10 (3) fire prevention and response procedures;
3-11 (4) employee and third-party contractor safety
3-12 training with respect to the operation of the facility; and
3-13 (5) other requirements that the commission finds
3-14 necessary and reasonable for the safe construction, operation, and
3-15 maintenance of salt dome storage facilities.
3-16 (b) The commission may grant exceptions to its rules or
3-17 impose additional requirements in any permit or amended permit
3-18 issued to a facility if the facility, as permitted, will not cause
3-19 an unreasonable danger to the public.
3-20 Sec. 211.013. RECORDS AND REPORTS. (a) Each owner or
3-21 operator of a hazardous liquid salt dome storage facility shall
3-22 maintain records, make reports, and provide any information the
3-23 commission may require with respect to the construction, operation,
3-24 or maintenance of the facility. The operator of a hazardous liquid
3-25 salt dome storage facility shall report or make available for
3-26 inspection the results of any commission-required test of a safety
3-27 device installed at the facility to the commission within 10 days
4-1 after the day of the test.
4-2 (b) The commission by rule shall designate the records
4-3 required to be maintained and the reports required to be filed by
4-4 the owner or operator and shall provide forms for reports if
4-5 necessary.
4-6 (c) The commission may require the owner or operator of a
4-7 hazardous liquid salt dome storage facility to prepare a safety
4-8 procedural manual for the facility. The commission may require the
4-9 owner or operator to file the manual with the commission for
4-10 approval or to make the manual available for inspection by an
4-11 employee or agent of the commission.
4-12 Sec. 211.014. INSPECTIONS AND EXAMINATIONS. (a) The
4-13 commission or its employee or designated agent may enter property
4-14 on which a hazardous liquid salt dome storage facility is located
4-15 or any other property relating to salt dome storage of a hazardous
4-16 liquid and may inspect and examine the property and any records
4-17 located on the property to the extent relevant to determine if a
4-18 person is acting in compliance with this chapter and any rules
4-19 adopted by the commission under this chapter.
4-20 (b) Before the commission or its employees or agents enter
4-21 the premises of a storage facility with on-site personnel, proper
4-22 credentials must be presented to the on-site person in charge of
4-23 the property.
4-24 (c) An entry, examination, or inspection under this section
4-25 must be made only at a reasonable time and in a reasonable manner.
4-26 SUBCHAPTER C. ENFORCEMENT
4-27 Sec. 211.031. CIVIL PENALTY. A person who violates this
5-1 chapter or a rule adopted or order or permit issued under this
5-2 chapter is subject to a civil penalty of not more than $25,000 for
5-3 each act of violation and for each day of violation. The total
5-4 amount of penalties that may be assessed under this section for a
5-5 related series of violations may not exceed $500,000.
5-6 Sec. 211.032. ENFORCEMENT BY COMMISSION AND ATTORNEY
5-7 GENERAL. (a) If it appears that a person has been or is violating
5-8 this chapter or a rule of the commission adopted under this
5-9 chapter, the commission may institute a civil suit in a district
5-10 court for injunctive relief to restrain the person from continuing
5-11 the violation or for the assessment and recovery of a civil penalty
5-12 under Section 211.031 of this code, or for both the injunctive
5-13 relief and the civil penalty.
5-14 (b) On application for injunctive relief and a finding that
5-15 a person has violated or is violating this chapter or a rule of the
5-16 commission under this chapter, the district court shall grant the
5-17 injunctive relief that the facts warrant.
5-18 (c) At the request of the commission, the attorney general
5-19 shall institute and conduct a suit under this section in the name
5-20 of the state.
5-21 Sec. 211.033. ADMINISTRATIVE PENALTY. (a) The commission
5-22 may impose an administrative penalty against a person who:
5-23 (1) violates this chapter or a rule adopted or order
5-24 or permit issued under this chapter;
5-25 (2) intentionally or knowingly destroys or damages or
5-26 attempts to destroy or damage a hazardous liquid salt dome storage
5-27 facility; or
6-1 (3) intentionally or knowingly disables a safety
6-2 device in a hazardous liquid salt dome storage facility, except to
6-3 facilitate a repair; maintain, repair, or test the device; or
6-4 conduct an activity reasonably necessary for the safe operation of
6-5 the facility.
6-6 (b) The penalty may be in an amount not to exceed $25,000.
6-7 Each day a violation occurs or continues constitutes a separate
6-8 violation for the purpose of this section.
6-9 (c) In determining the amount of the penalty, the commission
6-10 shall consider:
6-11 (1) the seriousness of the violation, including the
6-12 nature, circumstances, extent, and gravity of any prohibited acts,
6-13 and the hazard or potential hazard created to the health, safety,
6-14 or welfare of the public;
6-15 (2) the economic harm to property or the environment
6-16 caused by the violation;
6-17 (3) the history of previous violations;
6-18 (4) the amount necessary to deter future violations;
6-19 (5) efforts to correct the violation; and
6-20 (6) any other matter that justice may require.
6-21 (d) A civil penalty may be assessed only after the person
6-22 charged under this section has been given an opportunity for a
6-23 public hearing.
6-24 (e) If a public hearing has been held, the commission shall
6-25 make findings of fact and issue a written decision as to the
6-26 occurrence of the violation and the amount of the penalty that is
6-27 warranted, incorporating, when appropriate, an order requiring that
7-1 the penalty be paid.
7-2 (f) If appropriate, the commission shall consolidate the
7-3 hearings with other proceedings.
7-4 (g) If a person charged under this section fails to take
7-5 advantage of the opportunity for a public hearing, a civil penalty
7-6 may be assessed by the commission after it has determined that a
7-7 violation occurred and the amount of the penalty that is warranted.
7-8 (h) The commission shall then issue an order requiring the
7-9 penalty to be paid.
7-10 (i) The notice of the commission's order given to the person
7-11 under the Administrative Procedure and Texas Register Act (Article
7-12 6252-13a, Vernon's Texas Civil Statutes) must include a statement
7-13 of the right of the person to judicial review of the order.
7-14 (j) Not later than the 30th day after the date the
7-15 commission's order is final as provided by Section 16(c),
7-16 Administrative Procedure and Texas Register Act (Article 6252-13a,
7-17 Vernon's Texas Civil Statutes), the person shall:
7-18 (1) pay the amount of the penalty;
7-19 (2) pay the amount of the penalty and file a petition
7-20 for judicial review contesting the occurrence of the violation, the
7-21 amount of the penalty, or both the occurrence of the violation and
7-22 the amount of the penalty; or
7-23 (3) without paying the amount of the penalty, file a
7-24 petition for judicial review contesting the occurrence of the
7-25 violation, the amount of the penalty, or both the occurrence of the
7-26 violation and the amount of the penalty.
7-27 (k) Within the 30-day period, a person who acts under
8-1 Subsection (j)(3) of this section may:
8-2 (1) stay enforcement of the penalty by:
8-3 (A) paying the amount of the penalty to the
8-4 court for placement in an escrow account; or
8-5 (B) giving to the court a supersedeas bond
8-6 approved by the court for the amount of the penalty and that is
8-7 effective until all judicial review of the board's order is final;
8-8 or
8-9 (2) request the court to stay enforcement of the
8-10 penalty by:
8-11 (A) filing with the court a sworn affidavit of
8-12 the person stating that the person is financially unable to pay the
8-13 amount of the penalty and is financially unable to give the
8-14 supersedeas bond; and
8-15 (B) giving a copy of the affidavit to the
8-16 executive director by certified mail.
8-17 (l) If the commission receives a copy of an affidavit under
8-18 Subsection (k)(2) of this section, the commission may file with the
8-19 court, within five days after the date the copy is received, a
8-20 contest to the affidavit. The court shall hold a hearing on the
8-21 facts alleged in the affidavit as soon as practicable and shall
8-22 stay the enforcement of the penalty on finding that the alleged
8-23 facts are true. The person who files an affidavit has the burden
8-24 of proving that the person is financially unable to pay the amount
8-25 of the penalty and to give a supersedeas bond.
8-26 (m) If the person does not pay the amount of the penalty and
8-27 the enforcement of the penalty is not stayed, the commission may
9-1 refer the matter to the attorney general for collection of the
9-2 amount of the penalty.
9-3 (n) Judicial review of the order of the commission:
9-4 (1) is instituted by filing a petition as provided by
9-5 Section 19, Administrative Procedure and Texas Register Act
9-6 (Article 6252-13a, Vernon's Texas Civil Statutes); and
9-7 (2) is under the substantial evidence rule.
9-8 (o) If the court sustains the occurrence of the violation,
9-9 the court may uphold or reduce the amount of the penalty and order
9-10 the person to pay the full or reduced amount of the penalty. If
9-11 the court does not sustain the occurrence of the violation, the
9-12 court shall order that no penalty is owed.
9-13 (p) When the judgment of the court becomes final, the court
9-14 shall proceed under this subsection. If the person paid the amount
9-15 of the penalty and if that amount is reduced or is not upheld by
9-16 the court, the court shall order that the appropriate amount plus
9-17 accrued interest be remitted to the person. The rate of the
9-18 interest is the rate charged on loans to depository institutions by
9-19 the New York Federal Reserve Bank, and the interest shall be paid
9-20 for the period beginning on the date the penalty was paid and
9-21 ending on the date the penalty is remitted. If the person gave a
9-22 supersedeas bond and if the amount of the penalty is not upheld by
9-23 the court, the court shall order the release of the bond. If the
9-24 person gave a supersedeas bond and if the amount of the penalty is
9-25 reduced, the court shall order the release of the bond after the
9-26 person pays the amount.
9-27 (q) A penalty collected under this section shall be remitted
10-1 to the comptroller for the deposit to the credit of the oil-field
10-2 cleanup fund.
10-3 (r) All proceedings under this section are subject to the
10-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-5 Vernon's Texas Civil Statutes).
10-6 Sec. 211.034. NOTICES OF NONCOMPLIANCE. In addition to
10-7 other authority specifically granted to the commission under this
10-8 chapter, the commission may enforce this chapter or any rule
10-9 adopted or order or permit issued under this chapter as provided by
10-10 Section 91.207 of this code.
10-11 SECTION 2. (a) This Act takes effect September 1, 1993,
10-12 except as provided by Subsection (b) of this section.
10-13 (b) Subchapter C, Chapter 211, Natural Resources Code, as
10-14 added by this Act, takes effect January 1, 1994.
10-15 (c) The Railroad Commission of Texas shall adopt rules for
10-16 the administration of Chapter 211, Natural Resources Code, as added
10-17 by this Act, before December 1, 1993.
10-18 SECTION 3. The importance of this legislation and the
10-19 crowded condition of the calendars in both houses create an
10-20 emergency and an imperative public necessity that the
10-21 constitutional rule requiring bills to be read on three several
10-22 days in each house be suspended, and this rule is hereby suspended.