By Uher                                               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 Subsection (9), (10) and (12) 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.  Section 26.344, Water Code, is amended by
    2-6  amending subsections (b), (e), (f) and (g) 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, non-earthen <the> floor of that area.
   2-14        (e)  Except for Section 26.351, and Subsections
   2-15  26.3573(d)(3), and 26.3573(e) of this subchapter, in-ground
   2-16  hydraulic lifts that use a compressed air/hydraulic fluid system
   2-17  and hold less than 100 gallons of hydraulic fluid <oil>, if exempt
   2-18  by the federal Environmental Protection Agency, are exempt under
   2-19  this subchapter.
   2-20        (f)  An aboveground storage tank that is located at or is
   2-21  part of a petrochemical plant, a petroleum refinery, an electric
   2-22  generating facility, or a bulk facility <as that term is defined by
   2-23  Section 26.3574(a) of this code> is exempt from regulation under
   2-24  this subchapter but is not exempt for purposes of the delivery fee
   2-25  imposed under Section 26.3574 of this code.  An aboveground storage
    3-1  tank at a bulk facility is exempt under this subsection only when
    3-2  the bulk facility meets the definition in Section 26.3574(a) of
    3-3  this subchapter, and when such bulk facility is properly permitted
    3-4  by the comptroller pursuant to Section 26.3574(g) of this
    3-5  subchapter.
    3-6        (g)  Costs incurred as a result of a release from a storage
    3-7  tank system owned, operated, or maintained by a common carrier
    3-8  railroad are not reimbursable pursuant to the provisions of this
    3-9  subchapter <section>.  Common carrier railroads are exempt from the
   3-10  delivery fees collected pursuant to the provisions of Section
   3-11  26.3574 of this subchapter <Act>.
   3-12        SECTION 3.  Subchapter I, Chapter 26, Water Code, is amended
   3-13  by adding Sections 26.361 through 26.369 to read as follows:
   3-14        Sec. 26.361.  UNDERGROUND STORAGE TANK INSTALLERS.  For the
   3-15  purposes of assuring that the standards adopted pursuant to
   3-16  Sections 26.347, 26.348, and 26.350 of this Subchapter are
   3-17  implemented, the commission is authorized to establish a regulatory
   3-18  program for the registration of contractors who engage in the
   3-19  business of underground storage tank installations, repairs, or
   3-20  removals, and for the licensing of individuals who perform or
   3-21  supervise the installations, repairs, or removals of underground
   3-22  storage tanks.
   3-23        Sec. 26.362.  DEFINITIONS.  In Sections 26.361 through
   3-24  26.369:
   3-25              (1)  "Installation" means the installation of
    4-1  underground storage tanks and ancillary equipment.
    4-2              (2)  "Installer" means a person who participates in or
    4-3  supervises the installation, repair, or removal of underground
    4-4  storage tanks.
    4-5              (3)  "Removal" mean the process of removing and
    4-6  disposing of an underground storage tank that is no longer in
    4-7  service, or the process of abandoning an underground storage tank
    4-8  in place after purging the tank of vapors and filling the vessel of
    4-9  the tank with an inert material.
   4-10              (4)  "Repair" means the modification or correction of
   4-11  an underground storage tank and ancillary equipment.  The term does
   4-12  not include:
   4-13                    (A)  relining an underground storage tank through
   4-14  the application of epoxy resins or similar materials;
   4-15                    (B)  the performance of a tightness test to
   4-16  ascertain the integrity of the tank;
   4-17                    (C)  the maintenance and inspection of cathodic
   4-18  protection devices by a corrosion expert or corrosion technician;
   4-19                    (D)  emergency actions to halt or prevent leaks
   4-20  or ruptures; or
   4-21                    (E)  minor maintenance on ancillary aboveground
   4-22  equipment.
   4-23              (5)  "On-site supervisor" means:
   4-24                    (A)  a professional engineer registered to
   4-25  practice in this state who has met the licensing requirements under
    5-1  this section; or
    5-2                    (B)  an individual with at least two years of
    5-3  active experience in the vocation of installation of underground
    5-4  storage tanks, underground utilities, or other engineering
    5-5  construction in the State of Texas and who meets the licensing
    5-6  requirements under this section.
    5-7              (6)  "Certificate of registration" means the document
    5-8  issued to an underground storage tank contractor authorizing same
    5-9  to engage in the underground storage tank business in this state.
   5-10              (7)  "License" means the document issued to an
   5-11  installer or on-site supervisor authorizing same to engage in the
   5-12  underground storage tank business in this state.
   5-13              (8)  "Critical junctures" means, in the case of an
   5-14  installation, repair, or removal, all of the following steps:
   5-15                    (A)  preparation of the tank bedding immediately
   5-16  prior to receiving the tank;
   5-17                    (B)  setting of the tank and the piping,
   5-18  including placement of any anchoring devices, backfill to the level
   5-19  of the tank, and strapping, if any;
   5-20                    (C)  connection of piping systems to the tank;
   5-21                    (D)  all pressure testing of the underground
   5-22  storage tank, including associated piping, performed during the
   5-23  installation;
   5-24                    (E)  completion of backfill and filling of the
   5-25  excavation;
    6-1                    (F)  any time during the repair in which the
    6-2  piping system is connected or reconnected to the tank;
    6-3                    (G)  any time during the repair in which the tank
    6-4  or its associated piping is tested; and
    6-5                    (H)  any time during the removal of the tank.
    6-6        Sec. 26.363.  CERTIFICATE OF REGISTRATION.  (a)  An
    6-7  underground storage tank contractor must apply to the commission
    6-8  for a certificate of registration on a form prescribed by the
    6-9  commission.  If the contractor is a partnership or joint venture,
   6-10  it need not register in its own name if each partner or joint
   6-11  venture is registered.
   6-12        (b)  A certificate of registration is valid for one year from
   6-13  the date of issue and is renewable annually on payment of the
   6-14  annual fee; provided, however, that the initial certification of
   6-15  registration issued on or after September 1, 1989, may be issued
   6-16  for periods of less than one year and the annual fee shall be
   6-17  prorate proportionally.
   6-18        (c)  Each certificate of registration must be posted in a
   6-19  conspicuous place in the contractor's place of business.
   6-20        (d)  All bids, proposals, offers, and installation drawing
   6-21  must prominently display the contractor's certificate of
   6-22  registration number.
   6-23        (e)  A certificate of registration issued under this section
   6-24  is not transferable.
   6-25        Sec. 26.364.  LICENSE REQUIRED.  (a)  Except as provided for
    7-1  by Subsection (c), an underground storage tank may not be
    7-2  installed, repaired, or removed except by an underground storage
    7-3  tank contractor who has an installer or an on-site supervisor who
    7-4  is licensed by the commission under Section 26.367 at the site at
    7-5  all times during the critical junctures of the installation,
    7-6  repair, or removal.
    7-7        (b)  This section does not apply to the installation of a
    7-8  storage tank or other facility exempt from regulation under Section
    7-9  26.344, Water Code.
   7-10        Sec. 26.365.  POWERS AND DUTIES OF COMMISSION.  (a)  The
   7-11  commission shall:
   7-12              (1)  prescribe application forms for original and
   7-13  renewal licenses; and
   7-14              (2)  take other action necessary to enforce this
   7-15  section.
   7-16              (b)  The commission shall adopt rules for the licensing
   7-17  of installers and on-site supervisors.
   7-18              (c)  The commission may adopt rules relating to
   7-19  continuing education requirements for installers and on-site
   7-20  supervisors.
   7-21        Sec. 26.366.  EXAMINATION.  (a)  At times and places
   7-22  designated by the commission, the commission shall conduct an
   7-23  examination of applicants for licensing as installers and on-site
   7-24  supervisors.
   7-25              (b)  The commission shall prescribe the contents of the
    8-1  examination.  Questions used in the examination must be derived
    8-2  from standards, instructions, and recommended practices published
    8-3  by  organizations with expertise in various aspects of
    8-4  installation, removal, and repair of underground storage tanks,
    8-5  including the:
    8-6                    (1)  Petroleum Equipment Institute;
    8-7                    (2)  American Petroleum Institute;
    8-8                    (3)  Steel Tank Institute;
    8-9                    (4)  National Association of Corrosion Engineers;
   8-10                    (5)  Fiberglass Petroleum Tank and Pipe
   8-11  Institute; and
   8-12                    (6)  National Fire Protection Association.
   8-13              (c)  The commission shall determine standards for
   8-14  acceptable performance on the examination.
   8-15              (d)  If required by a license applicant who fails the
   8-16  examination, the commission shall provide to the applicant an
   8-17  analysis of the applicant's performance on the examination.
   8-18        Sec. 26.367.  LICENSE.  (a)  The commission shall issue an
   8-19  installer or on-site supervisor license to an applicant who:
   8-20              (1)  is at least 18 years of age;
   8-21              (2)  meets the application requirements prescribed by
   8-22  commission rule, including experience in installation of
   8-23  underground storage tanks, underground utilities, or other
   8-24  engineering construction in the State of Texas, not to exceed two
   8-25  years of active experience;
    9-1              (3)  passes the licensing examination
    9-2              (4)  pays the application, examination, and licensing
    9-3  fees; and
    9-4              (5)  meets reasonable training requirements as
    9-5  determines by the commission.
    9-6        (b)  A license issued under this section is valid throughout
    9-7  this state but is not assignable or transferable.
    9-8        (c)  A license is valid for one year and may be renewed
    9-9  annually on or before February 1 on payment of the required renewal
   9-10  fee and presentation of evidence satisfactory to the commission of
   9-11  compliance with any continuing education requirements adopted by
   9-12  the commission.
   9-13        (d)  If a licensee fails to renew the license by the required
   9-14  date, the licensee may renew the license on payment of the renewal
   9-15  fee and a late fee set by the commission.  If the license is not
   9-16  renewed earlier than one year after the date on which the license
   9-17  expired, the licensee must retake the licensing examination
   9-18  administered by the commission.
   9-19        Sec. 26.368.  FEES.  The commission shall charge necessary
   9-20  fees to defray the costs of administering the provisions of this
   9-21  section, which shall be deposited in the state treasury to the
   9-22  credit of the storage tank fund and shall be used by the commission
   9-23  in administering the provisions of this section.  The fees shall be
   9-24  established by rule of the commission in an amount sufficient to
   9-25  recover the reasonable costs of administering the provisions of
   10-1  this section.
   10-2        Sec. 26.369.  DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR
   10-3  CERTIFICATION OF REGISTRATION; REINSTATEMENT.  (a)  The commission
   10-4  may deny, suspend, revoke or reinstate a license or certificate of
   10-5  registration.
   10-6        (b)  The commission shall adopt rules establishing the ground
   10-7  for denial, suspension, revocation, or reinstatement of a license
   10-8  or certificate of registration, and establishing procedures for
   10-9  disciplinary actions.
  10-10        (c)  Proceedings relating to the suspension or revocation of
  10-11  a license or certificate of registration issued under this section
  10-12  are subject to the Administrative Procedure and Texas Register Act
  10-13  (Article 6252-13a, Vernon's Texas Civil Statutes).
  10-14        (d)  A person whose license or certificate of registration
  10-15  has been revoked may apply for a new license or certificate of
  10-16  registration after the expiration of one year from the date of the
  10-17  revocation.
  10-18        SECTION 4.  Section 26.3571, Water Code, is amended by adding
  10-19  Subsection (k) to read as follows:
  10-20        (k)  Pursuant to Section 26.353 of this chapter, the
  10-21  commission is authorized to issue appropriate orders, assess
  10-22  administrative and civil penalties, and pursue or initiate criminal
  10-23  prosecution, as determined by the commission to be appropriate,
  10-24  for:
  10-25              (1)  any person or business entity who engages in a
   11-1  project or activity involving the installation, repair, or removal
   11-2  of an underground storage tank without possessing a valid
   11-3  certificate of registration issued by the commission under this
   11-4  section;
   11-5              (2)  any individual who performs or supervises a
   11-6  project or activity involving the installation, repair, or removal
   11-7  of an underground storage tank without possessing a valid license
   11-8  issued by the commission under this section;
   11-9              (3)  any owner or operator of an underground storage
  11-10  tank, or any other person, who allows or authorizes an underground
  11-11  storage tank installation, repair, or removal to be conducted by
  11-12  anyone who does not possess a valid certificate of registration
  11-13  issued by the commission under this section, or who allows or
  11-14  authorizes such activities to be performed or supervised by an
  11-15  individual who does not possess a valid license issued by the
  11-16  commission; and
  11-17              (4)  any registered contractor, licensed installer or
  11-18  on-site supervisor, tank owner, tank operator, or any other person
  11-19  who is determined by the commission to be responsible for violation
  11-20  of any of the provisions of this code or of any orders of any
  11-21  orders or rules adopted by the commission pursuant to this code.
  11-22        SECTION 5.  Chapter 244, Acts of the 71st Legislature,
  11-23  Regular Session, 1989 (Article 8900, Vernon's Annotated Civil
  11-24  Statutes), is repealed.
  11-25        SECTION 6.  Section 26.351, Water Code, is amended by
   12-1  amending Subsections (d) and adding subsection (g) as follows:
   12-2        (d)  The commission is authorized to adopt rules concerning
   12-3  circumstances under which the commission will perform corrective
   12-4  action under this subchapter.  Such rules may include:
   12-5              (1)  a reasonable limitation on the extent and nature
   12-6  of the corrective action that the commission will undertake, which
   12-7  may be based on site-specific risks to human health or the
   12-8  environment and the availability of funds and resources;
   12-9              (2)  minimum requirements, including demonstration of
  12-10  financial need and other requirements, that must be met by an owner
  12-11  or operator, or by others, before the commission will undertake
  12-12  corrective action; and
  12-13              (3)  procedures for pursuing enforcement and cost
  12-14  recovery against owners or operators, and others, who fail or
  12-15  refuse to demonstrate compliance with the requirements developed by
  12-16  the commission pursuant to paragraph (2) of this subsection.
  12-17        (g)  The commission may adopt rules for the implementation
  12-18  and administration of a waste management program to regulate the
  12-19  handling, transportation, storage, and treatment of waste generated
  12-20  from a site where aboveground or underground storage tanks are
  12-21  located, and for the registration of facilities where such waste
  12-22  materials are stored, treated, or disposed.
  12-23              (1)  For the purposes of this subsection, "waste
  12-24  materials" shall include:
  12-25                    (A)  soils or backfill materials that have been
   13-1  contaminated as a result of a release of regulated substances from
   13-2  an aboveground or underground storage tank;
   13-3                    (B)  contaminated groundwater, surface water,
   13-4  waters used for cleaning or treatment purposes, or water removed
   13-5  from the tanks, which has originated at a site where underground or
   13-6  aboveground tanks are located;
   13-7                    (C)  removed, scrapped, or junked tanks, piping,
   13-8  or other materials or equipment that was previously part of an
   13-9  underground or aboveground storage tank system, but which is now
  13-10  destined for disposal;
  13-11                    (D)  regulated substances, including residues and
  13-12  sludges in the tank bottoms, which are removed from aboveground or
  13-13  underground storage tank systems, but which are not destined for
  13-14  reuse, reprocessing, or recycling; and
  13-15                    (E)  other materials designated by the
  13-16  commission.
  13-17              (2)  A regulatory program implemented by the commission
  13-18  under this subsection shall not conflict with or duplicate other
  13-19  programs administered by the commission or other agencies relating
  13-20  to the handling, storage, transportation, treatment, or disposal of
  13-21  municipal and industrial hazardous wastes, other municipal and
  13-22  industrial solid wastes, and other wastes regulated by other
  13-23  sections of this code or by other statutes.
  13-24              (3)  The commission may establish by rule a schedule of
  13-25  fees and charges to cover the costs of administering this waste
   14-1  management program, including fees for application processing,
   14-2  issuing permits or authorizations, and any other similar
   14-3  activities, and the funds collected from such fees and charges
   14-4  shall be deposited in the State Treasury to the credit of the
   14-5  storage tank fund.
   14-6              (4)  Any person who violates any order or rule adopted
   14-7  by the commission pursuant to this subsection is subject to the
   14-8  provisions of Section 26.353 of this subchapter.
   14-9        SECTION 7.  Section 26.3511, Water Code, is amended by the
  14-10  addition of subsection (c) as follows:
  14-11        (c)  In cases in which the commission undertakes corrective
  14-12  action pursuant to this section, the state, the commission and
  14-13  their agents and employees are authorized to enter properties where
  14-14  contamination has resulted from releases of regulated substances
  14-15  from underground storage tanks or aboveground storage tanks and to
  14-16  conduct corrective action activities on such properties.
  14-17        SECTION 8.  Section 26.3512(e), Water Code, is amended to
  14-18  read as follows:
  14-19        (e)  An owner or operator shall pay under Subsection (b)(1)
  14-20  of this section an amount equal to 10 percent of the total expenses
  14-21  of corrective action taken for each occurrence that is eligible for
  14-22  payment from the petroleum storage tank remediation fund <the first
  14-23  expenses for corrective action taken for each occurrence as
  14-24  follows:>
  14-25              <(1)  a person who owns or operates 1,000 or more
   15-1  single petroleum storage tanks, the first $10,000;>
   15-2              <(2)  a person who owns or operates fewer than 100 or
   15-3  more than 999 single petroleum storage tanks, the first $5,000;>
   15-4              <(3)  a person who owns or operates not fewer than 13
   15-5  or more than 99 single petroleum storage tanks, the first $2,500;
   15-6  and>
   15-7              <(4)  a person who owns or operates fewer than 13
   15-8  single petroleum storage tanks, the first $1,000>.
   15-9        SECTION 9.  Section 26.353, Water Code, is amended by
  15-10  amending Subsections (a) and (b) to read as follows:
  15-11        (a)  The commission may issue orders to enforce this
  15-12  subchapter and rules adopted under this subchapter in accordance
  15-13  with the procedures applicable to orders issued under Section
  15-14  26.019 of this code.  The commission's authority in issuing orders
  15-15  under this section includes the authority granted under Chapter 26,
  15-16  including Subchapter D, concerning Prohibition against Pollution,
  15-17  and Subchapter F, concerning Criminal Prosecution.
  15-18        (b)  The groundwater protection cleanup program established
  15-19  under Section 26.3572 of this code does not affect the commission's
  15-20  right to pursue enforcement orders with or without administrative
  15-21  penalties if any person <an owner or operator> violates this code,
  15-22  an order issued under this subchapter, or a rule adopted by the
  15-23  commission.
  15-24        SECTION 10.  Section 26.354(e), Water Code, is amended to
  15-25  read as follows:
   16-1        (e)  The executive director may issue orders under this
   16-2  section to the following persons:
   16-3              (1)  the owner of an underground storage tank or
   16-4  aboveground storage tank; <or>
   16-5              (2)  the operator of an underground storage tank or
   16-6  aboveground storage tank; or
   16-7              (3)  any other person who is determined by the
   16-8  executive director to be responsible for a release or threatened
   16-9  release of a regulated substance from an underground storage tank
  16-10  or an aboveground storage tank.
  16-11        SECTION 11.  Section 26.355, Water Code, is amended to read
  16-12  as follows:
  16-13        (a)  If the commission has incurred any costs in undertaking
  16-14  corrective action or enforcement action with respect to the release
  16-15  or threatened release of regulated substances from an underground
  16-16  or aboveground storage tank, the owner or the operator of the tank,
  16-17  or any other person determined by the commission to be responsible
  16-18  for the release or threatened release, is liable to the state for
  16-19  all reasonable costs of those corrective and enforcement actions
  16-20  and for court costs and reasonable attorney's fees.
  16-21        (b)  An owner or operator of an underground or aboveground
  16-22  storage tank from which there is a release or a threat of release
  16-23  of a regulated substance <is released> is liable to the state
  16-24  unless the release or threatened release was caused by:
  16-25              (1)  an act of God;
   17-1              (2)  an act of war;
   17-2              (3)  the negligence of the State of Texas or the United
   17-3  States; or
   17-4              (4)  an act or omission of a third party.
   17-5        (c)  The state's right to recover under this section arises
   17-6  whether or not the commission:
   17-7              (1)  uses funds from the storage tank fund, <or> the
   17-8  petroleum storage tank remediation fund, or any other appropriate
   17-9  source of funds; or
  17-10              (2)  receives or will receive funds from the state, the
  17-11  federal government, or any other source for the purpose of
  17-12  corrective action or enforcement.
  17-13        (d)  Except as provided under subsection (e) of this section,
  17-14  if <If> the commission uses money from the petroleum storage tank
  17-15  remediation fund for corrective action or enforcement and if the
  17-16  costs are recovered under this section, the commission may not
  17-17  recover more than the amount of the applicable owner or operator
  17-18  contribution described by Section 26.3512(e) of this code from an
  17-19  eligible owner or operator for corrective action for each
  17-20  occurrence.
  17-21        (e)  Notwithstanding the limitations on cost recovery under
  17-22  subsection (d) of this section, if the commission has used monies
  17-23  from any source for the costs of enforcement action or corrective
  17-24  action in response to a release or threatened release of regulated
  17-25  substances from an underground or aboveground storage tank, the
   18-1  eligibility of the owner, operator, or other person for
   18-2  reimbursement under this subchapter may be limited or denied by the
   18-3  commission, and the commission is authorized to pursue recovery of
   18-4  such costs, as provided in this subsection.
   18-5              (1)  When the owner or operator of the tank, or any
   18-6  other person determined to be responsible for the release or
   18-7  threatened release, has failed or refused to comply with the
   18-8  commission's requirements established pursuant to Section 26.351(b)
   18-9  of this subchapter, the commission shall be entitled to recover up
  18-10  to the amount expended by the commission, plus any enforcement
  18-11  action costs and any administrative and civil penalties applicable
  18-12  to the release or threatened release.
  18-13              (2)  When the owner or operator of the tank, or any
  18-14  other person determined to be responsible for the release or
  18-15  threatened release, has submitted signed or certified documentation
  18-16  indicating compliance with the commission's requirements
  18-17  established pursuant to Section 26.351(b) of this subchapter, and
  18-18  this documentation is subsequently determined by the commission to
  18-19  be fraudulent, inaccurate, or otherwise not in conformance
  18-20  established pursuant to Section 26.351(b), then the commission
  18-21  shall be entitled to recover up to twice the total amount expended
  18-22  by the commission, plus any enforcement action costs and any
  18-23  administrative and civil penalties applicable to the release or
  18-24  threatened release.
  18-25        (f) <(e)>  An indemnification, hold harmless, or similar
   19-1  agreement or conveyance is not effective to transfer the liability
   19-2  imposed under this section from the owner or operator of an
   19-3  underground or aboveground storage tank or from a person who may be
   19-4  liable for a release or threat of release to any other person.
   19-5  This section does not bar any agreement to insure, hold harmless,
   19-6  or indemnify a party to the agreement for any liability under this
   19-7  section.
   19-8        (g) <(f)>  This section does not bar a cause of action that
   19-9  an owner or operator or any other person subject to liability under
  19-10  this section or a guarantor has or would have by reason of
  19-11  subrogation or otherwise against any person.
  19-12        (h) <(g)>  At the request of the commission, the attorney
  19-13  general shall initiate court proceedings to recover costs under
  19-14  this section.
  19-15        (i) <(h)>  Except as provided by Subsection (j) <(i)> of this
  19-16  section, money recovered in a court proceeding under this section
  19-17  shall be deposited in the State Treasury to the credit of the
  19-18  storage tank fund.
  19-19        (j) <(i)>  If the commission uses money from the petroleum
  19-20  storage tank remediation fund for corrective action or enforcement
  19-21  as provided by this subchapter, the money recovered in a court
  19-22  proceeding under this section shall be deposited in the state
  19-23  treasury to the credit of the petroleum storage tank remediation
  19-24  fund.
  19-25        SECTION 12.  Section 26.356, Water Code, is amended by
   20-1  amending Subsections (a), (b), and (c) to read as follows:
   20-2        Sec. 26.356.  Inspections, Monitoring, and Testing.  (a)  For
   20-3  the purposes of developing or assisting in the development of a
   20-4  regulation, conducting a study, or enforcing this subchapter, an
   20-5  owner or operator of an underground storage tank or aboveground
   20-6  storage tank, on the request of the commission, shall:
   20-7              (1)  furnish information relating to the tank,
   20-8  including tank equipment and contents; and
   20-9              (2)  permit a designated agent or employee of the
  20-10  commission at all reasonable times to have access to and to copy
  20-11  all records relating to the tank.
  20-12        (b)  For the purposes of developing or assisting in the
  20-13  development of a regulation, conducting a study, conducting
  20-14  corrective action activities, or enforcing this subchapter, the
  20-15  commission, its designated agent, or employee may:
  20-16              (1)  enter at reasonable times an establishment or
  20-17  place in which an underground or aboveground storage tank is
  20-18  located, or any property that has or is suspected to be
  20-19  contaminated by either a release from such tank or any waste
  20-20  generated from such tank;
  20-21              (2)  inspect and obtain samples of any <a> regulated
  20-22  substance contained in the tank, or of any waste generated from the
  20-23  use of such tank, from any person; <and>
  20-24              (3)  conduct monitoring or testing of the tank,
  20-25  associated equipment, contents, or surrounding soils, air, surface
   21-1  water, or groundwater; and
   21-2              (4)  perform any corrective action authorized under
   21-3  this subchapter.
   21-4        (c)  The commission may order an owner or an operator of an
   21-5  underground storage tank or aboveground storage tank to conduct
   21-6  monitoring, <and> testing, corrective action, and other activities
   21-7  consistent with the purposes of this subchapter if the commission
   21-8  finds that there is reasonable cause to believe that a release has
   21-9  occurred or could occur in the area in which the underground or
  21-10  aboveground storage tank is located.
  21-11        SECTION 13.  Section 26.3571(d), Water Code, is amended to
  21-12  read as follows:
  21-13        (d)  In determining whether an owner or operator is in
  21-14  compliance with this subchapter, the commission may consider such
  21-15  factors as the owner's or operator's compliance with tank
  21-16  registration, annual facility fee payments, financial
  21-17  responsibility, tank standards, release detection, <and> closure
  21-18  standards, release reporting, and corrective action requirements.
  21-19        SECTION 14.  Section 26.3573, Water Code, is amended by
  21-20  amending Subsections (f), (g), (h), (i), and (k) to read as
  21-21  follows:
  21-22        (f)  The commission, in accordance with this subchapter and
  21-23  rules adopted under this subchapter, may:
  21-24              (2)  reimburse an eligible owner or operator from the
  21-25  petroleum storage tank remediation fund for the reasonable and
   22-1  allowable expenses of corrective action performed on or after
   22-2  September 1, 1987; or
   22-3              (3)  pay the reasonable and allowable portions of the
   22-4  claim of a person who has contracted with an eligible owner or
   22-5  operator to perform corrective action with funds from the petroleum
   22-6  storage tank remediation fund, provided that the eligible owner or
   22-7  operator has authorized such payment in writing.
   22-8        (g)  The commission shall administer the petroleum storage
   22-9  tank remediation fund and by rule adopt guidelines and procedures
  22-10  for the use of and eligibility for that fund, subject to the
  22-11  availability of money in the fund, as the commission finds
  22-12  necessary to:
  22-13              (1)  make the most efficient use of the money
  22-14  available, including:
  22-15                    (A)  establishing priorities for payments from
  22-16  the fund; and
  22-17                    (B)  suspending payments from the fund, if
  22-18  necessary; and
  22-19              (2)  provide the most effective protection to the
  22-20  environment and provide for the public health and safety.
  22-21        (h)  Consistent with the objectives provided under Subsection
  22-22  (g) of this section and this subchapter, the commission may by rule
  22-23  adopt:
  22-24              (1)  requirements or guidelines the commission
  22-25  considers necessary for determining the amounts that may be paid
   23-1  from the petroleum storage tank remediation fund, which may include
   23-2  criteria for determining and establishing the eligibility,
   23-3  allowability, and reasonableness of various types of corrective
   23-4  action expenses as a condition for reimbursement;
   23-5              (2)  requirements or guidelines concerning the
   23-6  procedures, forms, and documentation required for the processing of
   23-7  claims and reimbursements <reimbursement> for expenses incurred by
   23-8  an eligible owner or operator and covered under Section 26.3512(d)
   23-9  of this code; <and>
  23-10              (3)  procedures for reviewing and evaluating any claims
  23-11  for reimbursement from the petroleum storage tank remediation fund,
  23-12  and criteria for denying reimbursement for all or portions of such
  23-13  claims; and
  23-14              (4)  procedures and criteria for reviewing, evaluating,
  23-15  and auditing any prior payments made from the petroleum storage
  23-16  tank remediation fund, either upon petition or on the commission's
  23-17  own motion, and for the cost recovery of any overpayments or
  23-18  erroneous payments which:
  23-19                    (A)  were made as a result of inaccurate or
  23-20  misleading information included in the claim filed by an owner or
  23-21  operator (or any agent of such owner or operator);
  23-22                    (B)  exceed the maximum reimbursable amounts
  23-23  authorized under this subchapter; or
  23-24                    (C)  are otherwise determined by the commission
  23-25  to be unlawful or excessive <minimum qualifications the commission
   24-1  considers necessary for a person with whom an eligible owner or
   24-2  operator may contract to participate in corrective action>.
   24-3        (i)  The commission may implement by rule a registration
   24-4  program for persons who contract with an owner or operator of an
   24-5  underground storage tank or an aboveground storage tank, or with
   24-6  any other person, to perform corrective action under this
   24-7  subchapter. <and>
   24-8              (1)  The commission may adopt minimum qualifications
   24-9  that the commission considers necessary for a person with whom an
  24-10  eligible owner or operator may contract to participate in
  24-11  corrective action, and for individuals who perform or supervise
  24-12  such corrective action.
  24-13              (2)  The commission may require registration and the
  24-14  use of registered contractors and registered supervisors by an
  24-15  eligible owner or operator (or by an agent of the eligible owner or
  24-16  operator) as a prerequisite to the payment of <receiving> money
  24-17  from the petroleum storage tank remediation fund for corrective
  24-18  action under this subchapter.
  24-19              (3)  The commission may establish by rule a schedule of
  24-20  fees and charges to cover the costs of administering this
  24-21  registration program, including fees for application processing,
  24-22  printing certificates, conducting examinations, and any other
  24-23  similar activities, and the funds collected from such fees and
  24-24  charges shall be deposited in the state treasury to the credit of
  24-25  the storage tank fund.
   25-1              (4)  Any person who violates any order or rule
   25-2  developed by the commission pursuant to this subsection is subject
   25-3  to the provisions of Section 26.353 of this subchapter.
   25-4        (k)  The commission may not pay interest to an owner or
   25-5  operator on any claim for payment from the petroleum storage tank
   25-6  remediation fund.
   25-7        (k)  <The commission shall satisfy a claim for payment that
   25-8  is eligible to be paid under this subchapter and the rules adopted
   25-9  under this subchapter made by a contractor, from the petroleum
  25-10  storage tank remediation fund as provided by Chapter 82, Acts of
  25-11  the 69th Legislature, Regular Session, 1985 (Article 601f, Vernon's
  25-12  Texas Civil Statutes), regardless of whether the commission:>
  25-13              <(1)  contracts directly for the goods or services; or>
  25-14              <(2)  pays a claim under a contract executed by a
  25-15  petroleum storage tank owner or operator.>
  25-16        SECTION 15.  Subchapter I, Chapter 26, Water Code, is amended
  25-17  by adding Section 26.3575 to read as follows:
  25-18        Sec. 26.35735.  CLAIMS AUDIT.  (a)  The commission may
  25-19  conduct audits of claims for payment from the petroleum storage
  25-20  tank remediation fund.
  25-21        (b)  The commission shall conduct the audits in accordance
  25-22  with generally accepted accounting standards as prescribed by the
  25-23  American Institute of Certified Public Accountants, the
  25-24  Governmental Accounting Standards Board, the United States General
  25-25  Accounting Office, or other professionally recognized entities that
   26-1  prescribe auditing standards.
   26-2        (c)  The commission may use generally recognized sampling
   26-3  techniques to audit claims if the commission determines that the
   26-4  use of those techniques would be cost-effective and would promote
   26-5  greater efficiency in administering claims for payment from the
   26-6  petroleum storage tanks remediation fund.
   26-7        (d)  The commission may adopt rules necessary to implement
   26-8  this section.
   26-9        SECTION 16.  Section 26.3574(a)(1), Water Code, is amended to
  26-10  read as follows:
  26-11              (1)  "Bulk facility" means a <facility, including>
  26-12  pipeline terminal<s>, refinery terminal<s>, rail terminal, <and>
  26-13  barge terminal<s>, or similar terminal facility (including <and>
  26-14  all <any> associated underground and aboveground tanks, whether
  26-15  connected or separate)<,> where petroleum products are stored in
  26-16  bulk, and from which petroleum products are withdrawn from bulk for
  26-17  delivery directly <and delivered> into a cargo tank or a barge for
  26-18  <used to> transport <those products> to another location for
  26-19  distribution or sale in this state.  <This term does not include
  26-20  petroleum products consumed at an electric generating facility.>
  26-21        SECTION 17.  Section 26.358, Water Code, is amended by
  26-22  amending Subsection (b) by adding paragraphs (6), (7), (8), and
  26-23  (9), as follows:
  26-24        (b)  The storage tank fund consists of money collected by the
  26-25  commission from:
   27-1              (4)  funds received from insurers, guarantors, or other
   27-2  sources of financial responsibility; <and>
   27-3              (5)  funds from the federal government and other
   27-4  sources for use in connection with the storage tank program;<.>
   27-5              (6)  fees collected pursuant to the commission's
   27-6  program for the registration of underground storage tank
   27-7  contractors and for the licensing of underground storage tank
   27-8  installers and on-site supervisors, as provided by this subchapter;
   27-9              (7)  fees collected pursuant to the commission's
  27-10  program for the registration of contractors who contract to perform
  27-11  corrective action, and the individuals who supervise corrective
  27-12  action activities, as provided in Section 26.3573(i)(3) of this
  27-13  subchapter;
  27-14              (8)  fees collected pursuant to the commission's waste
  27-15  management program, as provided in Section 26.351(f) of this
  27-16  subchapter; and
  27-17              (9)  administrative penalties collected pursuant to
  27-18  Section 26.353 of this subchapter.
  27-19        SECTION 18.  Section 26.3573, Water Code, is amended by
  27-20  amending Subsection (d) as follows:
  27-21        (d)  The commission may use the money in the petroleum
  27-22  storage tank remediation fund to pay:
  27-23              (1)  necessary expenses associated with the
  27-24  administration of the petroleum storage tank remediation fund and
  27-25  the groundwater protection cleanup program, not to exceed an amount
   28-1  equal to five <three> percent of the gross receipts of that fund,
   28-2  provided that the increment between two and three percent of the
   28-3  gross receipts may be used only to pay administrative expenses
   28-4  associated with regulating petroleum storage tanks, reimbursing
   28-5  eligible owners and operators, and disposing of contaminated soils;
   28-6        SECTION 19.  The importance of this legislation and the
   28-7  crowded condition of the calendars in both houses create an
   28-8  emergency and an imperative public necessity that the
   28-9  constitutional rule requiring bills to be read on three separate
  28-10  days in each house be suspended, and this rule is hereby suspended.