73R8923 MI-F
By Uher H.B. No. 2742
Substitute the following for H.B. No. 2742:
By Lewis C.S.H.B. No. 2742
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the petroleum storage tank program.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 26.342, Water Code, is amended by
1-5 amending Subsections (9), (10), and (12) to read as follows:
1-6 (9) "Petroleum product" means a regulated substance
1-7 <petroleum product> that is obtained from distilling and processing
1-8 crude oil and that is capable of being used as a fuel for the
1-9 propulsion of a motor vehicle or aircraft, including motor
1-10 gasoline, gasohol, other alcohol blended fuels, aviation gasoline,
1-11 kerosene, distillate fuel oil, and #1 and #2 diesel. The term does
1-12 not include naphtha-type jet fuel, kerosene-type jet fuel, <or> a
1-13 petroleum product destined for use in chemical manufacturing or as
1-14 a feedstock of that manufacturing, or a petroleum product consumed
1-15 at an electric generating facility.
1-16 (10) "Petroleum storage tank" means:
1-17 (A) any one or combination of aboveground
1-18 storage tanks and any connecting pipes that contain petroleum
1-19 products and that are regulated by the commission; or
1-20 (B) any one or combination of underground
1-21 storage tanks and any connecting underground pipes that contain
1-22 petroleum products and that are regulated by the commission.
1-23 (12) "Release" means any spilling (including
2-1 overfills), leaking, emitting, discharging, escaping, leaching, or
2-2 disposing from an underground storage tank or aboveground storage
2-3 tank into groundwater, surface water, <or> subsurface soils, or
2-4 onto the surface of the ground.
2-5 SECTION 2. Sections 26.344(b), (e), (f), and (g), Water
2-6 Code, are amended to read as follows:
2-7 (b) A storage tank is exempt from regulation under this
2-8 subchapter if the sole or principal substance in the tank is a
2-9 hazardous substance and the tank is located:
2-10 (1) in an underground area, including a basement,
2-11 cellar, mineworking, drift, shaft, or tunnel; and
2-12 (2) on or above the surface of a substantially
2-13 impervious, nonearthen <the> floor of that area.
2-14 (e) Except for Section 26.351 and Sections 26.3573(d)(3) and
2-15 (e) of this subchapter, in-ground hydraulic lifts that use a
2-16 compressed air/hydraulic fluid system and hold less than 100
2-17 gallons of hydraulic fluid <oil>, if exempt by the federal
2-18 Environmental Protection Agency, are exempt under this subchapter.
2-19 (f) An aboveground storage tank that is located at or is
2-20 part of a petrochemical plant, a petroleum refinery, an electric
2-21 generating facility, or a bulk facility <as that term is defined by
2-22 Section 26.3574(a) of this code> is exempt from regulation under
2-23 this subchapter but is not exempt for purposes of the delivery fee
2-24 imposed under Section 26.3574 of this code. An aboveground storage
2-25 tank at a bulk facility is exempt under this subsection only if the
3-1 bulk facility meets the definition in Section 26.3574(a) of this
3-2 code and if the bulk facility is properly permitted by the
3-3 comptroller under Section 26.3574(g) of this code.
3-4 (g) Costs incurred as a result of a release from a storage
3-5 tank system owned, operated, or maintained by a common carrier
3-6 railroad are not reimbursable pursuant to the provisions of this
3-7 subchapter <section>. Common carrier railroads are exempt from the
3-8 delivery fees collected pursuant to the provisions of Section
3-9 26.3574 of this code <Act>.
3-10 SECTION 3. Section 26.351, Water Code, is amended by
3-11 amending Subsection (d) and adding Subsections (f) and (g) to read
3-12 as follows:
3-13 (d) The commission may adopt rules concerning circumstances
3-14 under which the commission will perform corrective action under
3-15 this subchapter. The rules may include:
3-16 (1) a reasonable limitation on the extent and nature
3-17 of the corrective action that the commission will undertake, which
3-18 may be based on site-specific risks to human health or the
3-19 environment;
3-20 (2) minimum requirements, including demonstration of
3-21 financial need and other requirements, that must be met by an owner
3-22 or operator, or by others, before the commission will undertake
3-23 corrective action; and
3-24 (3) procedures for pursuing enforcement and cost
3-25 recovery against owners or operators, and others, who fail or
4-1 refuse to demonstrate compliance with requirements adopted by the
4-2 commission under Subdivision (2) of this subsection <The commission
4-3 may retain agents to take corrective action it considers necessary
4-4 under this section. The agents shall operate under the direction
4-5 of the executive director. Any expenses arising from corrective
4-6 action taken by the commission or the executive director may be
4-7 paid from the storage tank fund>.
4-8 (f) The commission shall adopt rules to regulate the
4-9 handling, transportation, and storage of waste generated from a
4-10 site where aboveground or underground storage tanks are located and
4-11 for the registration of facilities where those waste materials are
4-12 disposed of after treatment. The rules shall not allow any waste
4-13 materials that have contaminant levels greater than 0.5 mg./kg. for
4-14 each component of benzene, toluene, ethylbenzene, and total xylenes
4-15 and greater than 10.0 mg./kg. total petroleum hydrocarbons to be
4-16 disposed of at a land disposal facility.
4-17 (g) The commission may adopt rules authorizing the storage,
4-18 treatment, or disposal of media and debris from sources other than
4-19 petroleum storage tanks that have been contaminated by petroleum
4-20 substance and have physical and chemical properties similar in
4-21 nature to waste materials generated from a site where aboveground
4-22 or underground tanks are located at facilities registered pursuant
4-23 to Subsection (f) of this section. The rules shall prohibit media
4-24 and debris that contain contaminant levels greater than 0.5 mg./kg.
4-25 for each component of benzene, toluene, ethylbenzene, and total
5-1 xylenes and greater than 10.0 mg./kg. total petroleum hydrocarbons
5-2 to be treated or reused at a facility registered under Subsection
5-3 (f) of this section unless the facility has:
5-4 (1) provisions for measuring volatile organic
5-5 compounds;
5-6 (2) demonstrated that the treatment, reuse, or
5-7 disposal will not make a significant contribution of air
5-8 contaminants to the atmosphere; and
5-9 (3) demonstrated that as a result of reuse contaminant
5-10 levels have been reduced to less than 0.5 mg./kg. for each
5-11 component of benzene, toluene, ethylbenzene, and total xylenes and
5-12 greater than 500.0 mg./kg. total petroleum hydrocarbons.
5-13 SECTION 4. Section 26.3511, Water Code, is amended by adding
5-14 Subsection (c) to read as follows:
5-15 (c) In cases in which the commission undertakes corrective
5-16 action under this section, the state, the commission, and their
5-17 agents and employees may enter properties where contamination has
5-18 resulted from releases of regulated substances from underground
5-19 storage tanks or aboveground storage tanks and may conduct
5-20 corrective action activities on those properties.
5-21 SECTION 5. Section 26.3512(e), Water Code, is amended to
5-22 read as follows:
5-23 (e) An owner or operator shall pay under Subsection (b)(1)
5-24 of this section the first expenses for corrective action taken for
5-25 each occurrence as follows:
6-1 (1) a person who owns or operates 1,000 or more single
6-2 petroleum storage tanks, the first $15,000 <$10,000>;
6-3 (2) a person who owns or operates not fewer than 100
6-4 or more than 999 single petroleum storage tanks, the first $10,000
6-5 <$5,000>;
6-6 (3) a person who owns or operates not fewer than 13 or
6-7 more than 99 single petroleum storage tanks, the first $5,000
6-8 <$2,500>; and
6-9 (4) a person who owns or operates fewer than 13 single
6-10 petroleum storage tanks, the first $1,000.
6-11 SECTION 6. Section 26.353, Water Code, is amended to read as
6-12 follows:
6-13 Sec. 26.353. COMMISSION ORDERS. (a) The commission may
6-14 issue orders to enforce this subchapter and rules adopted under
6-15 this subchapter in accordance with the procedures applicable to
6-16 orders issued under Section 26.019 of this code. The commission's
6-17 authority in issuing orders under this section includes the
6-18 authority granted under this chapter, including Subchapter D.
6-19 (b) The groundwater protection cleanup program established
6-20 under Section 26.3572 of this code does not affect the commission's
6-21 right to pursue enforcement orders with or without administrative
6-22 penalties if any person <an owner or operator> violates this code,
6-23 an order issued under this subchapter, or a rule adopted by the
6-24 commission.
6-25 SECTION 7. Section 26.354(e), Water Code, is amended to read
7-1 as follows:
7-2 (e) The executive director may issue orders under this
7-3 section to the following persons:
7-4 (1) the owner of an underground storage tank or
7-5 aboveground storage tank; <or>
7-6 (2) the operator of an underground storage tank or
7-7 aboveground storage tank; or
7-8 (3) any other person who is determined by the
7-9 executive director to be responsible for a release of a regulated
7-10 substance from an underground storage tank or an aboveground
7-11 storage tank.
7-12 SECTION 8. Section 26.355, Water Code, is amended to read as
7-13 follows:
7-14 Sec. 26.355. RECOVERY OF COSTS. (a) If the commission has
7-15 incurred any costs in undertaking corrective action or enforcement
7-16 action with respect to the release of regulated substances from an
7-17 underground or aboveground storage tank, the owner or the operator
7-18 of the tank, or any other person determined by the commission to be
7-19 responsible for the release, is liable to the state for all
7-20 reasonable costs of those corrective and enforcement actions and
7-21 for court costs and reasonable attorney's fees.
7-22 (b) An owner or operator of an underground or aboveground
7-23 storage tank from which there is a release of a regulated substance
7-24 <is released> is liable to the state unless the release was caused
7-25 by:
8-1 (1) an act of God;
8-2 (2) an act of war;
8-3 (3) the negligence of the State of Texas or the United
8-4 States; or
8-5 (4) an act or omission of a third party.
8-6 (c) The state's right to recover under this section arises
8-7 whether or not the commission:
8-8 (1) uses funds from the storage tank fund, <or> the
8-9 petroleum storage tank remediation fund, or any other appropriate
8-10 source of funds; or
8-11 (2) receives or will receive funds from the state, the
8-12 federal government, or any other source for the purpose of
8-13 corrective action or enforcement.
8-14 (d) Except as provided by Subsections (e)-(g) of this
8-15 section, if <If> the commission uses money from the petroleum
8-16 storage tank remediation fund for corrective action or enforcement
8-17 and if the costs are recovered under this section, the commission
8-18 may not recover more than the amount of the applicable owner or
8-19 operator contribution described by Section 26.3512(e) of this code
8-20 from an eligible owner or operator for corrective action for each
8-21 occurrence.
8-22 (e) Notwithstanding the limitations on cost recovery under
8-23 Subsection (d) of this section, if the commission has used money
8-24 from any source for the costs of enforcement action or corrective
8-25 action in response to a release of regulated substances from an
9-1 underground or aboveground storage tank, the eligibility of the
9-2 owner, operator, or other person for reimbursement under this
9-3 subchapter may be limited or denied by the commission, and the
9-4 commission may pursue recovery of the costs under this subsection
9-5 and Subsections (f) and (g) of this section.
9-6 (f) If the owner or operator of the tank, or any other
9-7 person determined to be responsible for the release, fails or
9-8 refuses to comply with the commission's requirements established
9-9 under Section 26.351(d) of this code, the commission is entitled to
9-10 recover up to the amount spent by the commission and any
9-11 enforcement action costs and any administrative and civil penalties
9-12 applicable to the release.
9-13 (g) If the owner or operator of the tank, or any other
9-14 person determined to be responsible for the release, has submitted
9-15 signed or certified documentation indicating compliance with the
9-16 commission's requirements established under Section 26.351(d) of
9-17 this code and this documentation is subsequently determined by the
9-18 commission to be fraudulent, knowingly inaccurate, or otherwise
9-19 intentionally not in conformance with the requirements established
9-20 under Section 26.351(d), the commission is entitled to recover up
9-21 to the total amount spent by the commission and any enforcement
9-22 action costs and any administrative and civil penalties applicable
9-23 to the release.
9-24 (h) An indemnification, hold harmless, or similar agreement
9-25 or conveyance is not effective to transfer the liability imposed
10-1 under this section from the owner or operator of an underground or
10-2 aboveground storage tank or from a person who may be liable for a
10-3 release or threat of release to any other person. This section
10-4 does not bar any agreement to insure, hold harmless, or indemnify a
10-5 party to the agreement for any liability under this section.
10-6 (i) <(f)> This section does not bar a cause of action that
10-7 an owner or operator or any other person subject to liability under
10-8 this section or a guarantor has or would have by reason of
10-9 subrogation or otherwise against any person.
10-10 (j) <(g)> At the request of the commission, the attorney
10-11 general shall initiate court proceedings to recover costs under
10-12 this section.
10-13 (k) <(h)> Except as provided by Subsection (l) <(i)> of this
10-14 section, money recovered in a court proceeding under this section
10-15 shall be deposited in the State Treasury to the credit of the
10-16 storage tank fund.
10-17 (l) <(i)> If the commission uses money from the petroleum
10-18 storage tank remediation fund for corrective action or enforcement
10-19 as provided by this subchapter, money recovered in a court
10-20 proceeding under this section shall be deposited in the state
10-21 treasury to the credit of the petroleum storage tank remediation
10-22 fund.
10-23 SECTION 9. Sections 26.356(a), (b), and (c), Water Code, are
10-24 amended to read as follows:
10-25 (a) For the purposes of developing or assisting in the
11-1 development of a regulation, conducting a study, or enforcing this
11-2 subchapter, an owner or operator of an underground storage tank or
11-3 aboveground storage tank, on the request of the commission, shall:
11-4 (1) furnish information relating to the tank,
11-5 including tank equipment and contents; and
11-6 (2) permit a designated agent or employee of the
11-7 commission at all reasonable times to have access to and to copy
11-8 all records relating to the tank.
11-9 (b) For the purposes of developing or assisting in the
11-10 development of a regulation, conducting a study, conducting
11-11 corrective action activities, or enforcing this subchapter, the
11-12 commission, its designated agent, or employee may:
11-13 (1) enter at reasonable times an establishment or
11-14 place in which an underground storage tank or aboveground storage
11-15 tank is located or any property that has been or is suspected to be
11-16 contaminated by either a release from the tank or waste generated
11-17 from the tank;
11-18 (2) inspect and obtain samples of any <a> regulated
11-19 substance contained in the tank, or of any waste generated from the
11-20 use of the tank, from any person; <and>
11-21 (3) conduct monitoring or testing of the tank,
11-22 associated equipment, contents, or surrounding soils, air, surface
11-23 water, or groundwater; and
11-24 (4) perform any corrective action authorized by this
11-25 subchapter.
12-1 (c) The commission may order an owner or an operator of an
12-2 underground storage tank or aboveground storage tank to conduct
12-3 monitoring, <and> testing, corrective action, and other activities
12-4 consistent with the purposes of this subchapter if the commission
12-5 finds that there is reasonable cause to believe that a release has
12-6 occurred or could occur in the area in which the underground or
12-7 aboveground storage tank is located.
12-8 SECTION 10. Section 26.3571(d), Water Code, is amended to
12-9 read as follows:
12-10 (d) In determining whether an owner or operator is in
12-11 compliance with this subchapter, the commission may consider such
12-12 factors as the owner's or operator's compliance with tank
12-13 registration, annual facility fee payments, financial
12-14 responsibility, tank standards, release detection, closure
12-15 standards, release <and> reporting, and corrective action
12-16 requirements.
12-17 SECTION 11. Sections 26.3573(d), (f), (g), (h), (i), and
12-18 (k), Water Code, are amended to read as follows:
12-19 (d) The commission may use the money in the petroleum
12-20 storage tank remediation fund to pay:
12-21 (1) necessary expenses associated with the
12-22 administration of the petroleum storage tank remediation fund and
12-23 the groundwater protection cleanup program, not to exceed an amount
12-24 equal to five <three> percent of the gross receipts of that fund,
12-25 provided that the increment between two and three percent of the
13-1 gross receipts may be used only to pay administrative expenses
13-2 associated with regulating petroleum storage tanks, reimbursing
13-3 eligible owners and operators, and disposing of contaminated soils;
13-4 (2) expenses associated with investigation, cleanup,
13-5 or corrective action measures performed in response to a release or
13-6 threatened release from a petroleum storage tank, whether those
13-7 expenses are incurred by the commission or pursuant to a contract
13-8 between a contractor and an eligible owner or operator as
13-9 authorized by this subchapter; and
13-10 (3) subject to the conditions of Subsection (e) of
13-11 this section, expenses associated with investigation, cleanup, or
13-12 corrective action measures performed in response to a release or
13-13 threatened release of hydraulic fluid or spent oil from hydraulic
13-14 lift systems or tanks located at a vehicle service and fueling
13-15 facility and used as part of the operations of that facility.
13-16 (f) The commission, in accordance with this subchapter and
13-17 rules adopted under this subchapter, may:
13-18 (1) contract directly with a person to perform
13-19 corrective action and pay the contractor from the petroleum storage
13-20 tank remediation fund;
13-21 (2) reimburse an eligible owner or operator from the
13-22 petroleum storage tank remediation fund for the reasonable and
13-23 allowable expenses of corrective action performed on or after
13-24 September 1, 1987; or
13-25 (3) pay the reasonable and allowable portions of the
14-1 claim of a person who has contracted with an eligible owner or
14-2 operator to perform corrective action with funds from the petroleum
14-3 storage tank remediation fund, provided that the eligible owner or
14-4 operator has authorized the payment in writing.
14-5 (g) The commission shall administer the petroleum storage
14-6 tank remediation fund and by rule adopt guidelines and procedures
14-7 for the use of and eligibility for that fund as the commission
14-8 finds necessary to:
14-9 (1) make the most efficient use of the money
14-10 available, including:
14-11 (A) establishing priorities for payments from
14-12 the fund; and
14-13 (B) suspending payments from the fund if
14-14 necessary; and
14-15 (2) provide the most effective protection to the
14-16 environment and provide for the public health and safety.
14-17 (h) Consistent with the objectives provided under Subsection
14-18 (g) of this section and this subchapter, the commission may by rule
14-19 adopt:
14-20 (1) requirements or guidelines the commission
14-21 considers necessary for determining the amounts that may be paid
14-22 from the petroleum storage tank remediation fund, which may include
14-23 criteria for determining and establishing the eligibility,
14-24 allowability, and reasonableness of various types of corrective
14-25 action expenses as a condition for reimbursement;
15-1 (2) requirements or guidelines concerning the
15-2 procedures, forms, and documentation required for the processing of
15-3 claims and reimbursements <reimbursement> for expenses incurred by
15-4 an eligible owner or operator and covered under Section 26.3512(d)
15-5 of this code; <and>
15-6 (3) procedures for reviewing and evaluating claims for
15-7 reimbursement from the petroleum storage tank remediation fund and
15-8 criteria for denying reimbursement for all or portions of a claim;
15-9 and
15-10 (4) procedures and criteria for reviewing, evaluating,
15-11 and auditing any prior payments made from the petroleum storage
15-12 tank remediation fund, either on petition or on the commission's
15-13 own motion, and for the cost recovery of any overpayments or
15-14 erroneous payments made after the fiscal year beginning September
15-15 1, 1992, the audit procedures to be based on the rules and law in
15-16 effect at the time the work for which payment was made was
15-17 performed <minimum qualifications the commission considers
15-18 necessary for a person with whom an eligible owner or operator may
15-19 contract to participate in corrective action>.
15-20 (i)(1) The commission shall ensure that corrective action
15-21 activities under this subchapter are conducted in accordance with
15-22 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
15-23 Civil Statutes) and that plans and specifications, as appropriate,
15-24 are prepared by a registered professional engineer. The commission
15-25 may:
16-1 (A) implement by rule a registration program for
16-2 persons who contract with an owner or operator of an underground
16-3 storage tank or aboveground storage tank, or with any other person,
16-4 to perform corrective action construction activities <and may
16-5 require registration and the use of registered contractors as a
16-6 prerequisite to receiving money from the petroleum storage tank
16-7 remediation fund for corrective action> under this subchapter;
16-8 (B) adopt minimum qualifications that the
16-9 commission considers necessary for a person with whom an eligible
16-10 owner or operator may contract to participate in corrective action
16-11 construction activities;
16-12 (C) require registration and the use of
16-13 registered contractors and may require the use of qualified
16-14 registered professional engineers as a prerequisite to the payment
16-15 of money from the petroleum storage tank remediation fund for
16-16 corrective action under this subchapter; and
16-17 (D) establish by rule a schedule of fees and
16-18 charges to cover the costs of administering the registration
16-19 program, including fees for application processing, printing
16-20 certificates, conducting examinations, and other similar
16-21 activities, subject to Section 26.438 of this code, and the funds
16-22 collected from the fees and charges shall be deposited in the state
16-23 treasury to the credit of the storage tank fund.
16-24 (2) A person who violates an order or rule adopted by
16-25 the commission under this subsection is subject to Section 26.353
17-1 of this code.
17-2 (3) The registration program and the provision for
17-3 establishment of minimum qualifications established under this
17-4 subsection do not apply to registered professional engineers.
17-5 (k)(1) The commission shall satisfy a claim for payment that
17-6 is eligible to be paid under this subchapter and the rules adopted
17-7 under this subchapter made by a contractor, from the petroleum
17-8 storage tank remediation fund as provided by Chapter 82, Acts of
17-9 the 69th Legislature, Regular Session, 1985 (Article 601f, Vernon's
17-10 Texas Civil Statutes), regardless of whether the commission:
17-11 (A) <(1)> contracts directly for the goods or
17-12 services; or
17-13 (B) <(2)> pays a claim under a contract executed
17-14 by a petroleum storage tank owner or operator.
17-15 (2) If at any time the petroleum storage tank
17-16 remediation fund has insufficient balances to satisfy claims
17-17 presented against the fund, Chapter 82, Acts of the 69th
17-18 Legislature, Regular Session, 1985 (Article 601f, Vernon's Texas
17-19 Civil Statutes), is suspended until there are sufficient funds to
17-20 pay the claims or until September 1, 1995, whichever is earlier.
17-21 SECTION 12. Subchapter I, Chapter 26, Water Code, is amended
17-22 by adding Section 26.35735 to read as follows:
17-23 Sec. 26.35735. CLAIMS AUDIT. (a) The commission may
17-24 conduct audits of claims for payment from the petroleum storage
17-25 tank remediation fund made after the fiscal year beginning
18-1 September 1, 1992. The audits shall be based on the rules and law
18-2 in effect at the time the work for which payment was made was
18-3 performed.
18-4 (b) The commission shall conduct the audits in accordance
18-5 with generally accepted accounting standards as prescribed by the
18-6 American Institute of Certified Public Accountants, the
18-7 Governmental Accounting Standards Board, the United States General
18-8 Accounting Office, or other professionally recognized entities that
18-9 prescribe auditing standards.
18-10 (c) The commission may use generally recognized sampling
18-11 techniques to audit claims if the commission determines that the
18-12 use of those techniques would be cost effective and would promote
18-13 greater efficiency in administering claims for payment from the
18-14 petroleum storage tank remediation fund.
18-15 (d) The commission may adopt rules necessary to implement
18-16 this section.
18-17 SECTION 13. Section 26.3574(a)(1), Water Code, is amended to
18-18 read as follows:
18-19 (1) "Bulk facility" means a <facility, including>
18-20 pipeline terminal <terminals>, refinery terminal <terminals>, rail,
18-21 <and> barge terminal <terminals>, all <and> associated underground
18-22 and aboveground tanks, whether connected or separate, where
18-23 petroleum products are stored in bulk and from which petroleum
18-24 products are withdrawn from bulk for delivery directly <and
18-25 delivered> into a cargo tank or a barge for <used to> transport to
19-1 another location for distribution or sale in this state <those
19-2 products. This term does not include petroleum products consumed
19-3 at an electric generating facility>.
19-4 SECTION 14. Section 26.358(b), Water Code, is amended to
19-5 read as follows:
19-6 (b) The storage tank fund consists of money collected by the
19-7 commission from:
19-8 (1) fees imposed on facilities with underground or
19-9 aboveground storage tanks used for the storage of regulated
19-10 substances;
19-11 (2) the interest and penalties imposed under this
19-12 section for the late payment of those fees;
19-13 (3) funds received from cost recovery for corrective
19-14 and enforcement actions taken under this subchapter, except as
19-15 provided by Subsection (c) of this section;
19-16 (4) funds received from insurers, guarantors, or other
19-17 sources of financial responsibility; <and>
19-18 (5) funds from the federal government and other
19-19 sources for use in connection with the storage tank program;
19-20 (6) fees collected under the commission's program for
19-21 the registration of underground storage tank contractors and for
19-22 the licensing of underground storage tank installers and on-site
19-23 supervisors, as provided by Subchapter K of this code;
19-24 (7) fees collected under the commission's program for
19-25 the registration of contractors who contract to perform corrective
20-1 action, and the individuals who supervise corrective action
20-2 activities, as provided in Section 26.3573(i)(1)(C) of this
20-3 subchapter;
20-4 (8) fees collected under the commission's waste
20-5 management program, as provided by Section 26.351(f) of this
20-6 subchapter; and
20-7 (9) administrative penalties collected under Sections
20-8 26.136 and 26.353 of this code.
20-9 SECTION 15. Chapter 26, Water Code, is amended by adding
20-10 Subchapter K to read as follows:
20-11 SUBCHAPTER K. UNDERGROUND STORAGE TANK INSTALLERS
20-12 Sec. 26.431. REGISTRATION AND LICENSING OF UNDERGROUND
20-13 STORAGE TANK INSTALLERS. For the purposes of assuring that the
20-14 standards adopted under Sections 26.347, 26.348, and 26.350 of this
20-15 code are implemented, the commission may establish a regulatory
20-16 program for the registration of contractors who engage in the
20-17 business of underground storage tank installation, repair, or
20-18 removal and for the licensing of individuals who perform or
20-19 supervise the installation, repair, or removal of underground
20-20 storage tanks.
20-21 Sec. 26.432. DEFINITIONS. In this subchapter:
20-22 (1) "Certificate of registration" means the document
20-23 issued to an underground storage tank contractor under Section
20-24 26.433 of this code authorizing the contractor to engage in the
20-25 underground storage tank business in this state.
21-1 (2) "Critical juncture" means, in the case of an
21-2 installation, repair, or removal, any of the following steps:
21-3 (A) preparation of the tank bedding immediately
21-4 prior to receiving the tank;
21-5 (B) setting of the tank and the piping,
21-6 including placement of any anchoring devices, backfill to the level
21-7 of the tank, and strapping, if any;
21-8 (C) connection of piping systems to the tank;
21-9 (D) all pressure testing of the underground
21-10 storage tank, including associated piping, performed during the
21-11 installation;
21-12 (E) completion of backfill and filling of the
21-13 excavation;
21-14 (F) any time during the repair in which the
21-15 piping system is connected or reconnected to the tank;
21-16 (G) any time during the repair in which the tank
21-17 or its associated piping is tested; or
21-18 (H) any time during the removal of the tank.
21-19 (3) "Installation" means the installation of
21-20 underground storage tanks and ancillary equipment.
21-21 (4) "Installer" means a person who participates in or
21-22 supervises the installation, repair, or removal of underground
21-23 storage tanks.
21-24 (5) "License" means the document issued to an
21-25 installer or on-site supervisor under Section 26.434 of this code
22-1 authorizing the installer or supervisor to engage in the
22-2 underground storage tank business in this state.
22-3 (6) "On-site supervisor" means:
22-4 (A) a professional engineer registered to
22-5 practice in this state who has met the licensing requirements under
22-6 this subchapter; or
22-7 (B) an individual with at least two years of
22-8 active experience in the vocation of installation of underground
22-9 storage tanks, underground utilities, or other engineering
22-10 construction in this state and who meets the licensing requirements
22-11 under this subchapter.
22-12 (7) "Removal" means the process of removing and
22-13 disposing of an underground storage tank that is no longer in
22-14 service, or the process of abandoning an underground storage tank
22-15 in place after purging the tank of vapors and filling the vessel of
22-16 the tank with an inert material.
22-17 (8) "Repair" means the modification or correction of
22-18 an underground storage tank and ancillary equipment. The term does
22-19 not include:
22-20 (A) relining an underground storage tank through
22-21 the application of epoxy resins or similar materials;
22-22 (B) the performance of a tightness test to
22-23 ascertain the integrity of the tank;
22-24 (C) the maintenance and inspection of cathodic
22-25 protection devices by a corrosion expert or corrosion technician;
23-1 (D) emergency actions to halt or prevent leaks
23-2 or ruptures; or
23-3 (E) minor maintenance on ancillary aboveground
23-4 equipment.
23-5 (9) "Underground storage tank" has the meaning
23-6 assigned by Section 26.342 of this code.
23-7 Sec. 26.433. CERTIFICATE OF REGISTRATION. (a) An
23-8 underground storage tank contractor must apply to the commission
23-9 for a certificate of registration on a form prescribed by the
23-10 commission. If the contractor is a partnership or joint venture,
23-11 the contractor need not register in its own name if each partner or
23-12 joint venture is registered.
23-13 (b) A certificate of registration is valid for one year
23-14 after the date it is issued and is renewable annually on payment of
23-15 the annual fee.
23-16 (c) A certificate of registration must be posted in a
23-17 conspicuous place in the contractor's place of business.
23-18 (d) All bids, proposals, offers, and installation drawing
23-19 must prominently display the contractor's certificate of
23-20 registration number.
23-21 (e) A certificate of registration issued under this section
23-22 is not transferable.
23-23 Sec. 26.434. LICENSE REQUIRED. (a) Except as provided by
23-24 Subsection (b) of this section, an underground storage tank may not
23-25 be installed, repaired, or removed except by an underground storage
24-1 tank contractor who has an installer or an on-site supervisor who
24-2 is licensed by the commission under Section 26.437 at the site at
24-3 all times during the critical junctures of the installation,
24-4 repair, or removal.
24-5 (b) This section does not apply to the installation of a
24-6 storage tank or other facility exempt from regulation under Section
24-7 26.344, Water Code.
24-8 Sec. 26.435. POWERS AND DUTIES OF COMMISSION. (a) The
24-9 commission shall prescribe application forms for original and
24-10 renewal licenses.
24-11 (b) The commission shall adopt rules for the licensing of
24-12 installers and on-site supervisors.
24-13 (c) The commission may adopt rules relating to continuing
24-14 education requirements for installers and on-site supervisors.
24-15 Sec. 26.436. EXAMINATION. (a) At times and places
24-16 designated by the commission, the commission shall conduct an
24-17 examination of applicants for licensing as installers and on-site
24-18 supervisors.
24-19 (b) The commission shall prescribe the contents of the
24-20 examination. Questions used in the examination must be derived
24-21 from standards, instructions, and recommended practices published
24-22 by organizations with expertise in various aspects of
24-23 installation, removal, and repair of underground storage tanks,
24-24 including the:
24-25 (1) Petroleum Equipment Institute;
25-1 (2) American Petroleum Institute;
25-2 (3) Steel Tank Institute;
25-3 (4) National Association of Corrosion Engineers;
25-4 (5) Fiberglass Petroleum Tank and Pipe Institute; and
25-5 (6) National Fire Protection Association.
25-6 (c) The commission shall determine standards for acceptable
25-7 performance on the examination.
25-8 (d) If requested by a license applicant who fails the
25-9 examination, the commission shall provide to the applicant an
25-10 analysis of the applicant's performance on the examination.
25-11 Sec. 26.437. LICENSE. (a) The commission shall issue an
25-12 installer or on-site supervisor license to an applicant who:
25-13 (1) is at least 18 years of age;
25-14 (2) meets the application requirements prescribed by
25-15 commission rule, including experience in installation of
25-16 underground storage tanks, underground utilities, or other
25-17 engineering construction in this state, not to exceed two years of
25-18 active experience;
25-19 (3) passes the licensing examination;
25-20 (4) pays the application, examination, and licensing
25-21 fees; and
25-22 (5) meets reasonable training requirements as
25-23 determined by the commission.
25-24 (b) A license issued under this section is valid throughout
25-25 this state but is not assignable or transferable.
26-1 (c) A license is valid for one year and may be renewed
26-2 annually on or before February 1 on payment of the required renewal
26-3 fee and presentation of evidence satisfactory to the commission of
26-4 compliance with any continuing education requirements adopted by
26-5 the commission.
26-6 (d) If a licensee fails to renew the license by the required
26-7 date, the licensee may renew the license on payment of the renewal
26-8 fee and a late fee set by the commission. If the license is not
26-9 renewed earlier than one year after the date on which the license
26-10 expired, the licensee must retake the licensing examination
26-11 administered by the commission.
26-12 Sec. 26.438. FEES. The commission shall charge necessary
26-13 fees to defray the costs of administering this subchapter, which
26-14 shall be deposited in the state treasury to the credit of the
26-15 storage tank fund and shall be used by the commission in
26-16 administering this subchapter. The fees shall be established by
26-17 rule of the commission in an amount sufficient to recover the
26-18 reasonable costs of administering this section but not to exceed
26-19 the following fee schedule:
26-20 (1) examination ................................. $ 50
26-21 (2) initial license application ................. $200
26-22 (3) annual license renewal ...................... $175
26-23 (4) late renewal ................................ $ 25
26-24 (5) duplicate license ........................... $ 10
26-25 (6) certificate of registration application ..... $ 50
27-1 (7) certificate of registration issuance ........ $100
27-2 (8) certificate of registration issuance
27-3 renewal ................................... $ 75
27-4 (9) duplicate certificate or license ............ $ 10
27-5 (10) application to change certificate .......... $ 70
27-6 Sec. 26.439. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR
27-7 CERTIFICATION OF REGISTRATION; REINSTATEMENT. (a) The commission
27-8 may deny, suspend, revoke, or reinstate a license or certificate of
27-9 registration.
27-10 (b) The commission shall adopt rules establishing the ground
27-11 for denial, suspension, revocation, or reinstatement of a license
27-12 or certificate of registration, and establishing procedures for
27-13 disciplinary actions.
27-14 (c) Proceedings relating to the suspension or revocation of
27-15 a license or certificate of registration issued under this section
27-16 are subject to the Administrative Procedure and Texas Register Act
27-17 (Article 6252-13a, Vernon's Texas Civil Statutes).
27-18 (d) A person whose license or certificate of registration
27-19 has been revoked may apply for a new license or certificate of
27-20 registration after the expiration of one year from the date of the
27-21 revocation.
27-22 Sec. 26.440. Penalties. (a) A person commits an offense if
27-23 the person supervises the installation, repair, or removal of an
27-24 underground storage tank in a manner that fails to comply with
27-25 Section 26.434 of this code.
28-1 (b) An offense under Subsection (a) of this section is a
28-2 Class A misdemeanor.
28-3 (c) A person committing an offense under Subsection (a) of
28-4 this section may be assessed a civil penalty by the commission in
28-5 an amount not to exceed $2,500 for each day of violation.
28-6 (d) If an owner fails to comply with Section 26.434 of this
28-7 code, or a rule adopted by the commission to implement this
28-8 subchapter, the person may be assessed a civil penalty by the
28-9 commission in an amount not to exceed $2,500 for each day of the
28-10 violation.
28-11 SECTION 16. Chapter 244, Acts of the 71st Legislature,
28-12 Regular Session, 1989 (Article 8900, Vernon's Texas Civil
28-13 Statutes), is repealed.
28-14 SECTION 17. A license or registration issued under Chapter
28-15 244, Acts of the 71st Legislature, Regular Session, 1989 (Article
28-16 8900, Vernon's Texas Civil Statutes), is valid for the term of the
28-17 license or registration under that law on and after the effective
28-18 date of this Act.
28-19 SECTION 18. The change in law made by Section 26.3512(e),
28-20 Water Code, as amended by this Act, applies only to an owner or
28-21 operator who undertakes corrective action under Subchapter I, Water
28-22 Code, on or after the effective date of this Act.
28-23 SECTION 19. The importance of this legislation and the
28-24 crowded condition of the calendars in both houses create an
28-25 emergency and an imperative public necessity that the
29-1 constitutional rule requiring bills to be read on three several
29-2 days in each house be suspended, and this rule is hereby suspended,
29-3 and that this Act take effect and be in force from and after its
29-4 passage, and it is so enacted.