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