By Earley H.B. No. 2016
Substitute the following for H.B. No. 2016:
By Earley C.S.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. 211.011. 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 of the Water
1-17 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 the
2-2 regulation of which has been preempted by regulations adopted under
2-3 the Hazardous Liquid Pipeline Safety Act of 1979 (49 App. U.S.C.
2-4 Section 2001 et seq.) or the Natural Gas Pipeline Safety Act of
2-5 1968 (49 App. U.S.C. Section 1671 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 facilities
2-21 used for the storage of hazardous liquids in salt domes.
2-22 Sec. 211.012. RULES AND STANDARDS. (a) The commission
2-23 shall adopt rules to establish safety standards for and practices
2-24 applicable to the storage of hazardous liquid in salt domes and the
2-25 facilities used for such storage. The rules shall require:
2-26 (1) the installation and periodic testing of safety
2-27 devices at a salt dome storage facility;
3-1 (2) the establishment of emergency notification
3-2 procedures in the event of a release of a hazardous substance that
3-3 the operator of the facility determines poses a substantial risk to
3-4 the public;
3-5 (3) fire prevention and response procedures;
3-6 (4) employee and third-party contractor safety
3-7 training with respect to the operation of the facility; and
3-8 (5) other requirements that the commission finds
3-9 necessary and reasonable for the safe construction, operation, and
3-10 maintenance of salt dome storage facilities.
3-11 (b) The commission may grant exceptions to its rules or
3-12 impose additional requirements in any permit or amended permit
3-13 issued to a facility if the facility, as permitted, will not cause
3-14 an unreasonable danger to the public.
3-15 Sec. 211.013. RECORDS AND REPORTS. (a) Each owner or
3-16 operator of a hazardous liquid salt dome storage facility shall
3-17 maintain records, make reports, and provide any information the
3-18 commission may require with respect to the construction, operation,
3-19 or maintenance of the facility. The operator of a hazardous liquid
3-20 salt dome storage facility shall report or make available for
3-21 inspection the results of any commission required test of a safety
3-22 device installed at the facility to the commission within 10 days
3-23 after the day of the test.
3-24 (b) The commission by rule shall designate the records
3-25 required to be maintained and the reports required to be filed by
3-26 the owner or operator and shall provide forms for reports if
3-27 necessary.
4-1 (c) The commission may require the owner or operator of a
4-2 hazardous liquid salt dome storage facility to prepare a safety
4-3 procedural manual for the facility. The commission may require the
4-4 owner or operator to file the manual with the commission for
4-5 approval or to make the manual available for inspection by an
4-6 employee or agent of the commission.
4-7 Sec. 211.014. INSPECTIONS AND EXAMINATIONS. (a) The
4-8 commission or its employee or designated agent may enter property
4-9 on which a hazardous liquid salt dome storage facility is located
4-10 or any other property relating to the storage of a hazardous liquid
4-11 in a salt dome and may inspect and examine the property and any
4-12 records located on the property to the extent relevant to determine
4-13 if a person is acting in compliance with this chapter and any rules
4-14 adopted by the commission under this chapter.
4-15 (b) Before the commission or its employee or agent enters
4-16 manned property for the purposes of this section, the person
4-17 requesting entry must present proper credentials to the person in
4-18 charge of the property.
4-19 (c) An entry, examination, or inspection under this section
4-20 must be made only at a reasonable time and in a reasonable manner.
4-21 SUBCHAPTER C. ENFORCEMENT
4-22 Sec. 211.031. CIVIL PENALTY. A person who violates this
4-23 chapter or a rule adopted by the commission under this chapter is
4-24 subject to a civil penalty of not more than $1,000 for each act of
4-25 violation and for each day of violation. The total amount of
4-26 penalties that may be assessed under this section for a related
4-27 series of violations may not exceed $200,000.
5-1 Sec. 211.032. ENFORCEMENT BY COMMISSION AND ATTORNEY
5-2 GENERAL. (a) If it appears that a person has been or is violating
5-3 this chapter or a rule of the commission adopted under this
5-4 chapter, the commission may institute a civil suit in a district
5-5 court for injunctive relief to restrain the person from continuing
5-6 the violation or for the assessment and recovery of a civil penalty
5-7 under Section 211.031 of this code, or for both the injunctive
5-8 relief and the civil penalty.
5-9 (b) On application for injunctive relief and a finding that
5-10 a person has violated or is violating this chapter or a rule of the
5-11 commission under this chapter, the district court shall grant the
5-12 injunctive relief that the facts warrant.
5-13 (c) At the request of the commission, the attorney general
5-14 shall institute and conduct a suit under this section in the name
5-15 of the state.
5-16 (d) The provisions of this section are in addition to and do
5-17 not preempt the commission's authority under Sections 91.201-7 of
5-18 this code.
5-19 Sec. 211.033. ADMINISTRATIVE PENALTY. (a) The commission
5-20 may impose an administrative penalty against a person who:
5-21 (1) violates this chapter or a rule or order adopted
5-22 under this chapter;
5-23 (2) intentionally or knowingly destroys or damages or
5-24 attempts to destroy or damage a hazardous liquid salt dome storage
5-25 facility; or
5-26 (3) intentionally or knowingly disables a safety
5-27 device in a hazardous liquid salt dome storage facility, except to
6-1 facilitate a repair; maintain, repair, or test the device; or
6-2 conduct an activity reasonably necessary for the safe operation of
6-3 the facility.
6-4 (b) The penalty may be in an amount not to exceed $25,000.
6-5 Each day a violation occurs or continues constitutes a separate
6-6 violation for the purpose of this section.
6-7 (c) In determining the amount of the penalty, the commission
6-8 shall consider:
6-9 (1) the seriousness of the violation, including the
6-10 nature, circumstances, extent, and gravity of any prohibited acts,
6-11 and the hazard or potential hazard created to the health, safety,
6-12 or welfare of the public;
6-13 (2) the economic harm to property or the environment
6-14 caused by the violation;
6-15 (3) the history of previous violations;
6-16 (4) the amount necessary to deter future violations;
6-17 (5) efforts to correct the violation; and
6-18 (6) any other matter that justice may require.
6-19 (d) If the commission after investigation determines that a
6-20 violation has occurred, the commission shall issue a preliminary
6-21 report that states the facts on which the determination is based
6-22 and the amount of the penalty.
6-23 (e) Not later than the 14th day after the date the report is
6-24 issued, the commission shall give written notice of the report to
6-25 the person charged with the violation. The notice may be given by
6-26 certified mail. The notice must include a brief summary of the
6-27 alleged violation and a statement of the amount of the penalty and
7-1 must inform the person that the person has a right to a hearing on
7-2 the occurrence of the violation, the amount of the penalty, or both
7-3 the occurrence of the violation and the amount of the penalty.
7-4 (f) Not later than the 20th day after the date the person
7-5 receives the notice, the person in writing may accept the
7-6 determination and penalty of the commission or may make a written
7-7 request for a hearing on the occurrence of the violation, the
7-8 amount of the penalty, or both the occurrence of the violation and
7-9 the amount of the penalty.
7-10 (g) The commission by order may impose the penalty if the
7-11 person accepts the determination and the penalty.
7-12 (h) If the person requests a hearing or fails to respond
7-13 timely to the notice, the commission shall set a hearing and give
7-14 notice of the hearing to the person. The hearing shall be held by
7-15 a hearing examiner designated by the commission. The hearing
7-16 examiner shall make findings of fact and conclusions of law and
7-17 promptly issue to the commission a proposal for a decision about
7-18 the occurrence of the violation and the amount of the penalty.
7-19 Based on the findings of fact, conclusions of law, and proposal for
7-20 a decision, the commission by order may find that a violation has
7-21 occurred and impose a penalty or may find that no violation
7-22 occurred.
7-23 (i) The notice of the commission's order given to the person
7-24 under the Administrative Procedure and Texas Register Act (Article
7-25 6252-13a, Vernon's Texas Civil Statutes) must include a statement
7-26 of the right of the person to judicial review of the order.
7-27 (j) Not later than the 30th day after the date the
8-1 commission's order is final as provided by Section 16(c),
8-2 Administrative Procedure and Texas Register Act (Article 6252-13a,
8-3 Vernon's Texas Civil Statutes), the person shall:
8-4 (1) pay the amount of the penalty;
8-5 (2) pay the amount of the penalty and file a petition
8-6 for judicial review contesting the occurrence of the violation, the
8-7 amount of the penalty, or both the occurrence of the violation and
8-8 the amount of the penalty; or
8-9 (3) without paying the amount of the penalty, file a
8-10 petition for judicial review contesting the occurrence of the
8-11 violation, the amount of the penalty, or both the occurrence of the
8-12 violation and the amount of the penalty.
8-13 (k) Within the 30-day period, a person who acts under
8-14 Subsection (j)(3) of this section may:
8-15 (1) stay enforcement of the penalty by:
8-16 (A) paying the amount of the penalty to the
8-17 court for placement in an escrow account; or
8-18 (B) giving to the court a supersedeas bond
8-19 approved by the court for the amount of the penalty and that is
8-20 effective until all judicial review of the board's order is final;
8-21 or
8-22 (2) request the court to stay enforcement of the
8-23 penalty by:
8-24 (A) filing with the court a sworn affidavit of
8-25 the person stating that the person is financially unable to pay the
8-26 amount of the penalty and is financially unable to give the
8-27 supersedeas bond; and
9-1 (B) giving a copy of the affidavit to the
9-2 executive director by certified mail.
9-3 (l) If the commission receives a copy of an affidavit
9-4 under Subsection (k)(2) of this section, the commission may file
9-5 with the court, within five days after the date the copy is
9-6 received, a contest to the affidavit. The court shall hold a
9-7 hearing on the facts alleged in the affidavit as soon as
9-8 practicable and shall stay the enforcement of the penalty on
9-9 finding that the alleged facts are true. The person who files an
9-10 affidavit has the burden of proving that the person is financially
9-11 unable to pay the amount of the penalty and to give a supersedeas
9-12 bond.
9-13 (m) If the person does not pay the amount of the penalty and
9-14 the enforcement of the penalty is not stayed, the commission may
9-15 refer the matter to the attorney general for collection of the
9-16 amount of the penalty.
9-17 (n) Judicial review of the order of the commission:
9-18 (1) is instituted by filing a petition as provided by
9-19 Section 19, Administrative Procedure and Texas Register Act
9-20 (Article 6252-13a, Vernon's Texas Civil Statutes); and
9-21 (2) is under the substantial evidence rule.
9-22 (o) If the court sustains the occurrence of the violation,
9-23 the court may uphold or reduce the amount of the penalty and order
9-24 the person to pay the full or reduced amount of the penalty. If
9-25 the court does not sustain the occurrence of the violation, the
9-26 court shall order that no penalty is owed.
9-27 (p) When the judgment of the court becomes final, the court
10-1 shall proceed under this subsection. If the person paid the amount
10-2 of the penalty and if that amount is reduced or is not upheld by
10-3 the court, the court shall order that the appropriate amount plus
10-4 accrued interest be remitted to the person. The rate of the
10-5 interest is the rate charged on loans to depository institutions by
10-6 the New York Federal Reserve Bank, and the interest shall be paid
10-7 for the period beginning on the date the penalty was paid and
10-8 ending on the date the penalty is remitted. If the person gave a
10-9 supersedeas bond and if the amount of the penalty is not upheld by
10-10 the court, the court shall order the release of the bond. If the
10-11 person gave a supersedeas bond and if the amount of the penalty is
10-12 reduced, the court shall order the release of the bond after the
10-13 person pays the amount.
10-14 (q) A penalty collected under this section shall be remitted
10-15 to the comptroller for the deposit to the credit of the oil-field
10-16 cleanup fund.
10-17 (r) All proceedings under this section are subject to the
10-18 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-19 Vernon's Texas Civil Statutes).
10-20 SECTION 2. (a) This Act takes effect September 1, 1993,
10-21 except as provided by Subsection (b) of this section.
10-22 (b) Subchapter C, Chapter 211, Natural Resources Code, as
10-23 added by this Act, takes effect January 1, 1994.
10-24 (c) The Railroad Commission of Texas shall adopt rules for
10-25 the administration of Chapter 211, Natural Resources Code, as added
10-26 by this Act, before December 1, 1993.
10-27 SECTION 3. The importance of this legislation and the
11-1 crowded condition of the calendars in both houses create an
11-2 emergency and imperative public necessity that the constitutional
11-3 rule requiring bills to be read on three several days in each house
11-4 be suspended, and this rule is hereby suspended.