1-1 By: Earley (Senate Sponsor - Turner) H.B. No. 2016
1-2 (In the Senate - Received from the House May 3, 1993;
1-3 May 4, 1993, read first time and referred to Committee on Natural
1-4 Resources; May 21, 1993, reported favorably by the following vote:
1-5 Yeas 9, Nays 0; May 21, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Sims x
1-9 Truan x
1-10 Armbrister x
1-11 Barrientos x
1-12 Bivins x
1-13 Brown x
1-14 Carriker x
1-15 Lucio x
1-16 Montford x
1-17 Ratliff x
1-18 Shelley x
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of the storage of hazardous liquids in
1-22 salt dome storage facilities; providing civil and administrative
1-23 penalties.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. The Natural Resources Code is amended by adding
1-26 Title 11 to read as follows:
1-27 TITLE 11. MISCELLANEOUS USES OF NATURAL RESOURCES
1-28 CHAPTER 211. HAZARDOUS LIQUID SALT
1-29 DOME STORAGE FACILITIES
1-30 SUBCHAPTER A. GENERAL PROVISIONS
1-31 Sec. 211.001. DEFINITIONS. In this chapter:
1-32 (1) "Commission" means the Railroad Commission of
1-33 Texas.
1-34 (2) "Hazardous liquid" means any liquid which is not
1-35 defined as a solid or hazardous waste by Section 361.003, Health
1-36 and Safety Code, and which is:
1-37 (A) petroleum or any petroleum or liquid natural
1-38 gas product; or
1-39 (B) any hydrocarbon in a liquid state, other
1-40 than liquified natural gas, that has been determined by the United
1-41 States secretary of transportation to be a hazardous liquid.
1-42 (3) "Salt dome storage of hazardous liquids" means the
1-43 storage of a hazardous liquid in any salt formation or bedded salt
1-44 formation storage facility, but does not include a facility that
1-45 has been defined by the federal Department of Transportation as
1-46 part of an interstate pipeline facility and that is subject to
1-47 federal minimum standards adopted under the Hazardous Liquid
1-48 Pipeline Safety Act of 1979 (49 U.S.C. Section 2001 et seq.).
1-49 (4) "Salt dome storage facility" includes any new or
1-50 existing salt formation or bedded salt formation storage cavern and
1-51 any equipment, facility, or building used or intended for use in
1-52 the storage of a hazardous liquid in the salt formation cavern.
1-53 Sec. 211.002. POWERS OF LOCAL GOVERNMENTS. (a) This
1-54 chapter does not reduce, limit, or impair the authority provided by
1-55 law to any municipality, except as provided by Subsection (b) of
1-56 this section.
1-57 (b) A municipality or county may not adopt or enforce an
1-58 ordinance or other regulation that establishes safety standards or
1-59 practices applicable to hazardous liquid salt formation storage
1-60 facilities that are subject to regulation by federal or state law.
1-61 SUBCHAPTER B. REGULATION OF FACILITIES
1-62 Sec. 211.011. JURISDICTION. The commission has jurisdiction
1-63 over all salt dome storage of hazardous liquids and over salt dome
1-64 storage facilities used for the storage of hazardous liquids.
1-65 Sec. 211.012. RULES AND STANDARDS. (a) The commission by
1-66 rule shall adopt safety standards and practices for the salt dome
1-67 storage of hazardous liquids and the facilities used for that
1-68 purpose. Safety standards and practices adopted by the commission
2-1 for a storage facility that is part of an intrastate pipeline
2-2 facility, as defined by the federal Department of Transportation
2-3 under the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C.
2-4 Section 2001 et seq.), must be compatible with federal minimum
2-5 standards. The rules shall require:
2-6 (1) the installation and periodic testing of safety
2-7 devices at a salt dome storage facility;
2-8 (2) the establishment of emergency notification
2-9 procedures in the event of a release of a hazardous substance that
2-10 the operator of the facility determines poses a substantial risk to
2-11 the public;
2-12 (3) fire prevention and response procedures;
2-13 (4) employee and third-party contractor safety
2-14 training with respect to the operation of the facility; and
2-15 (5) other requirements that the commission finds
2-16 necessary and reasonable for the safe construction, operation, and
2-17 maintenance of salt dome storage facilities.
2-18 (b) The commission may grant exceptions to its rules or
2-19 impose additional requirements in any permit or amended permit
2-20 issued to a facility if the facility, as permitted, will not cause
2-21 an unreasonable danger to the public.
2-22 Sec. 211.013. RECORDS AND REPORTS. (a) Each owner or
2-23 operator of a hazardous liquid salt dome storage facility shall
2-24 maintain records, make reports, and provide any information the
2-25 commission may require with respect to the construction, operation,
2-26 or maintenance of the facility. The operator of a hazardous liquid
2-27 salt dome storage facility shall report or make available for
2-28 inspection the results of any commission-required test of a safety
2-29 device installed at the facility to the commission within 10 days
2-30 after the day of the test.
2-31 (b) The commission by rule shall designate the records
2-32 required to be maintained and the reports required to be filed by
2-33 the owner or operator and shall provide forms for reports if
2-34 necessary.
2-35 (c) The commission may require the owner or operator of a
2-36 hazardous liquid salt dome storage facility to prepare a safety
2-37 procedural manual for the facility. The commission may require the
2-38 owner or operator to file the manual with the commission for
2-39 approval or to make the manual available for inspection by an
2-40 employee or agent of the commission.
2-41 Sec. 211.014. INSPECTIONS AND EXAMINATIONS. (a) The
2-42 commission or its employee or designated agent may enter property
2-43 on which a hazardous liquid salt dome storage facility is located
2-44 or any other property relating to salt dome storage of a hazardous
2-45 liquid and may inspect and examine the property and any records
2-46 located on the property to the extent relevant to determine if a
2-47 person is acting in compliance with this chapter and any rules
2-48 adopted by the commission under this chapter.
2-49 (b) Before the commission or its employees or agents enter
2-50 the premises of a storage facility with on-site personnel, proper
2-51 credentials must be presented to the on-site person in charge of
2-52 the property.
2-53 (c) An entry, examination, or inspection under this section
2-54 must be made only at a reasonable time and in a reasonable manner.
2-55 SUBCHAPTER C. ENFORCEMENT
2-56 Sec. 211.031. CIVIL PENALTY. A person who violates this
2-57 chapter or a rule adopted or order or permit issued under this
2-58 chapter is subject to a civil penalty of not more than $25,000 for
2-59 each act of violation and for each day of violation. The total
2-60 amount of penalties that may be assessed under this section for a
2-61 related series of violations may not exceed $500,000.
2-62 Sec. 211.032. ENFORCEMENT BY COMMISSION AND ATTORNEY
2-63 GENERAL. (a) If it appears that a person has been or is violating
2-64 this chapter or a rule of the commission adopted under this
2-65 chapter, the commission may institute a civil suit in a district
2-66 court for injunctive relief to restrain the person from continuing
2-67 the violation or for the assessment and recovery of a civil penalty
2-68 under Section 211.031 of this code, or for both the injunctive
2-69 relief and the civil penalty.
2-70 (b) On application for injunctive relief and a finding that
3-1 a person has violated or is violating this chapter or a rule of the
3-2 commission under this chapter, the district court shall grant the
3-3 injunctive relief that the facts warrant.
3-4 (c) At the request of the commission, the attorney general
3-5 shall institute and conduct a suit under this section in the name
3-6 of the state.
3-7 Sec. 211.033. ADMINISTRATIVE PENALTY. (a) The commission
3-8 may impose an administrative penalty against a person who:
3-9 (1) violates this chapter or a rule adopted or order
3-10 or permit issued under this chapter;
3-11 (2) intentionally or knowingly destroys or damages or
3-12 attempts to destroy or damage a hazardous liquid salt dome storage
3-13 facility; or
3-14 (3) intentionally or knowingly disables a safety
3-15 device in a hazardous liquid salt dome storage facility, except to
3-16 facilitate a repair; maintain, repair, or test the device; or
3-17 conduct an activity reasonably necessary for the safe operation of
3-18 the facility.
3-19 (b) The penalty may be in an amount not to exceed $25,000.
3-20 Each day a violation occurs or continues constitutes a separate
3-21 violation for the purpose of this section.
3-22 (c) In determining the amount of the penalty, the commission
3-23 shall consider:
3-24 (1) the seriousness of the violation, including the
3-25 nature, circumstances, extent, and gravity of any prohibited acts,
3-26 and the hazard or potential hazard created to the health, safety,
3-27 or welfare of the public;
3-28 (2) the economic harm to property or the environment
3-29 caused by the violation;
3-30 (3) the history of previous violations;
3-31 (4) the amount necessary to deter future violations;
3-32 (5) efforts to correct the violation; and
3-33 (6) any other matter that justice may require.
3-34 (d) A civil penalty may be assessed only after the person
3-35 charged under this section has been given an opportunity for a
3-36 public hearing.
3-37 (e) If a public hearing has been held, the commission shall
3-38 make findings of fact and issue a written decision as to the
3-39 occurrence of the violation and the amount of the penalty that is
3-40 warranted, incorporating, when appropriate, an order requiring that
3-41 the penalty be paid.
3-42 (f) If appropriate, the commission shall consolidate the
3-43 hearings with other proceedings.
3-44 (g) If a person charged under this section fails to take
3-45 advantage of the opportunity for a public hearing, a civil penalty
3-46 may be assessed by the commission after it has determined that a
3-47 violation occurred and the amount of the penalty that is warranted.
3-48 (h) The commission shall then issue an order requiring the
3-49 penalty to be paid.
3-50 (i) The notice of the commission's order given to the person
3-51 under the Administrative Procedure and Texas Register Act (Article
3-52 6252-13a, Vernon's Texas Civil Statutes) must include a statement
3-53 of the right of the person to judicial review of the order.
3-54 (j) Not later than the 30th day after the date the
3-55 commission's order is final as provided by Section 16(c),
3-56 Administrative Procedure and Texas Register Act (Article 6252-13a,
3-57 Vernon's Texas Civil Statutes), the person shall:
3-58 (1) pay the amount of the penalty;
3-59 (2) pay the amount of the penalty and file a petition
3-60 for judicial review contesting the occurrence of the violation, the
3-61 amount of the penalty, or both the occurrence of the violation and
3-62 the amount of the penalty; or
3-63 (3) without paying the amount of the penalty, file a
3-64 petition for judicial review contesting the occurrence of the
3-65 violation, the amount of the penalty, or both the occurrence of the
3-66 violation and the amount of the penalty.
3-67 (k) Within the 30-day period, a person who acts under
3-68 Subsection (j)(3) of this section may:
3-69 (1) stay enforcement of the penalty by:
3-70 (A) paying the amount of the penalty to the
4-1 court for placement in an escrow account; or
4-2 (B) giving to the court a supersedeas bond
4-3 approved by the court for the amount of the penalty and that is
4-4 effective until all judicial review of the board's order is final;
4-5 or
4-6 (2) request the court to stay enforcement of the
4-7 penalty by:
4-8 (A) filing with the court a sworn affidavit of
4-9 the person stating that the person is financially unable to pay the
4-10 amount of the penalty and is financially unable to give the
4-11 supersedeas bond; and
4-12 (B) giving a copy of the affidavit to the
4-13 executive director by certified mail.
4-14 (l) If the commission receives a copy of an affidavit under
4-15 Subsection (k)(2) of this section, the commission may file with the
4-16 court, within five days after the date the copy is received, a
4-17 contest to the affidavit. The court shall hold a hearing on the
4-18 facts alleged in the affidavit as soon as practicable and shall
4-19 stay the enforcement of the penalty on finding that the alleged
4-20 facts are true. The person who files an affidavit has the burden
4-21 of proving that the person is financially unable to pay the amount
4-22 of the penalty and to give a supersedeas bond.
4-23 (m) If the person does not pay the amount of the penalty and
4-24 the enforcement of the penalty is not stayed, the commission may
4-25 refer the matter to the attorney general for collection of the
4-26 amount of the penalty.
4-27 (n) Judicial review of the order of the commission:
4-28 (1) is instituted by filing a petition as provided by
4-29 Section 19, Administrative Procedure and Texas Register Act
4-30 (Article 6252-13a, Vernon's Texas Civil Statutes); and
4-31 (2) is under the substantial evidence rule.
4-32 (o) If the court sustains the occurrence of the violation,
4-33 the court may uphold or reduce the amount of the penalty and order
4-34 the person to pay the full or reduced amount of the penalty. If
4-35 the court does not sustain the occurrence of the violation, the
4-36 court shall order that no penalty is owed.
4-37 (p) When the judgment of the court becomes final, the court
4-38 shall proceed under this subsection. If the person paid the amount
4-39 of the penalty and if that amount is reduced or is not upheld by
4-40 the court, the court shall order that the appropriate amount plus
4-41 accrued interest be remitted to the person. The rate of the
4-42 interest is the rate charged on loans to depository institutions by
4-43 the New York Federal Reserve Bank, and the interest shall be paid
4-44 for the period beginning on the date the penalty was paid and
4-45 ending on the date the penalty is remitted. If the person gave a
4-46 supersedeas bond and if the amount of the penalty is not upheld by
4-47 the court, the court shall order the release of the bond. If the
4-48 person gave a supersedeas bond and if the amount of the penalty is
4-49 reduced, the court shall order the release of the bond after the
4-50 person pays the amount.
4-51 (q) A penalty collected under this section shall be remitted
4-52 to the comptroller for the deposit to the credit of the oil-field
4-53 cleanup fund.
4-54 (r) All proceedings under this section are subject to the
4-55 Administrative Procedure and Texas Register Act (Article 6252-13a,
4-56 Vernon's Texas Civil Statutes).
4-57 Sec. 211.034. NOTICES OF NONCOMPLIANCE. In addition to
4-58 other authority specifically granted to the commission under this
4-59 chapter, the commission may enforce this chapter or any rule
4-60 adopted or order or permit issued under this chapter as provided by
4-61 Section 91.207 of this code.
4-62 SECTION 2. (a) This Act takes effect September 1, 1993,
4-63 except as provided by Subsection (b) of this section.
4-64 (b) Subchapter C, Chapter 211, Natural Resources Code, as
4-65 added by this Act, takes effect January 1, 1994.
4-66 (c) The Railroad Commission of Texas shall adopt rules for
4-67 the administration of Chapter 211, Natural Resources Code, as added
4-68 by this Act, before December 1, 1993.
4-69 SECTION 3. The importance of this legislation and the
4-70 crowded condition of the calendars in both houses create an
5-1 emergency and an imperative public necessity that the
5-2 constitutional rule requiring bills to be read on three several
5-3 days in each house be suspended, and this rule is hereby suspended.
5-4 * * * * *
5-5 Austin,
5-6 Texas
5-7 May 21, 1993
5-8 Hon. Bob Bullock
5-9 President of the Senate
5-10 Sir:
5-11 We, your Committee on Natural Resources to which was referred H.B.
5-12 No. 2016, have had the same under consideration, and I am
5-13 instructed to report it back to the Senate with the recommendation
5-14 that it do pass and be printed.
5-15 Sims,
5-16 Chairman
5-17 * * * * *
5-18 WITNESSES
5-19 FOR AGAINST ON
5-20 ___________________________________________________________________
5-21 Name: James Mann x
5-22 Representing: TX Natural Gas Pipeline
5-23 City: Austin
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