By: Parker S.B. No. 1279
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the petroleum storage tank program.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 26.342, Water Code, is amended by
1-4 amending Subsections (9), (10), and (12) as follows:
1-5 (9) "Petroleum product" means a regulated substance
1-6 <petroleum product> that is obtained from distilling and processing
1-7 crude oil and that is capable of being used as a fuel for the
1-8 propulsion of a motor vehicle or aircraft, including motor
1-9 gasoline, gasohol, other alcohol blended fuels, aviation gasoline,
1-10 kerosene, distillate fuel oil, and #1 and #2 diesel. The term does
1-11 not include naphtha-type jet fuel, kerosene-type jet fuel, <or> a
1-12 petroleum product destined for use in chemical manufacturing or as
1-13 a feedstock of that manufacturing, or a petroleum product consumed
1-14 at an electric generating facility.
1-15 (10) "Petroleum Storage Tank" means:
1-16 (A) any one or combination of aboveground storage
1-17 tanks and any connecting pipes that contain petroleum products and
1-18 that are regulated by the commission; or
1-19 (B) any one or combination of underground storage
1-20 tanks and any connecting underground pipes that contain petroleum
1-21 products and that are regulated by the commission.
1-22 (12) "Release" means any spilling (including overfills),
1-23 leaking, emitting, discharging, escaping, leaching, or disposing
2-1 from an underground storage tank or aboveground storage tank into
2-2 groundwater, surface water, <or> subsurface soils, or onto the
2-3 surface of the ground.
2-4 SECTION 2. Section 26.344, Water Code, is amended by
2-5 amending subsections (b), (e), (f) and (g) as follows:
2-6 (b) A storage tank is exempt from regulation under this
2-7 subchapter if the sole or principal substance in the tank is a
2-8 hazardous substance and the tank is located:
2-9 (1) in an underground area, including a basement,
2-10 cellar, mineworking, drift, shaft, or tunnel; and
2-11 (2) on or above the surface of a substantially
2-12 impervious, non-earthen <the> floor of that area.
2-13 (e) Except for Section 26.351, and Subsections
2-14 26.3573(d)(3), and 26.3573(e) of this subchapter, in-ground
2-15 hydraulic lifts that use a compressed air/hydraulic fluid system
2-16 and hold less than 100 gallons of hydraulic fluid <oil>, if exempt
2-17 by the federal Environmental Protection Agency, are exempt under
2-18 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 when
3-1 the bulk facility meets the definition in Section 26.3574(a) of
3-2 this subchapter, and when such bulk facility is properly permitted
3-3 by the comptroller pursuant to Section 26.3574(g) of this
3-4 subchapter.
3-5 (g) Costs incurred as a result of a release from a storage
3-6 tank system owned, operated, or maintained by a common carrier
3-7 railroad are not reimbursable pursuant to the provisions of this
3-8 subchapter <section>. Common carrier railroads are exempt from the
3-9 delivery fees collected pursuant to the provisions of Section
3-10 26.3574 of this subchapter <Act>.
3-11 SECTION 3. Subchapter I, Chapter 26, Water Code, is amended
3-12 by adding Sections 26.361 through 26.369 to read as follows:
3-13 Sec. 26.361. UNDERGROUND STORAGE TANK INSTALLERS. For the
3-14 purposes of assuring that the standards adopted pursuant to
3-15 Sections 26.347, 26.348, and 26.350 of this subchapter are
3-16 implemented, the commission is authorized to establish a regulatory
3-17 program for the registration of contractors who engage in the
3-18 business of underground storage tank installations, repairs, or
3-19 removals, and for the licensing of individuals who perform or
3-20 supervise the installations, repairs, or removals of underground
3-21 storage tanks.
3-22 Sec. 26.362. DEFINITIONS. In Sections 26.361 through
3-23 26.369:
3-24 (1) "Installation" means the installation of
3-25 underground storage tanks and ancillary equipment.
4-1 (2) "Installer" means a person who participates in or
4-2 supervises the installation, repair, or removal of underground
4-3 storage tanks.
4-4 (3) "Removal" mean the process of removing and
4-5 disposing of an underground storage tank that is no longer in
4-6 service, or the process of abandoning an underground storage tank
4-7 in place after purging the tank of vapors and filling the vessel of
4-8 the tank with an inert material.
4-9 (4) "Repair" means the modification or correction of
4-10 an underground storage tank and ancillary equipment. The term does
4-11 not include:
4-12 (A) relining an underground storage tank through
4-13 the application of epoxy resins or similar materials;
4-14 (B) the performance of a tightness test to
4-15 ascertain the integrity of the tank:
4-16 (C) the maintenance and inspection of cathodic
4-17 protection devices by a corrosion expert or corrosion technician;
4-18 (D) emergency actions to halt or prevent leaks
4-19 or ruptures; or
4-20 (E) minor maintenance on ancillary aboveground
4-21 equipment.
4-22 (5) "On-site supervisor" means:
4-23 (A) a professional engineer registered to
4-24 practice in this state who has met the licensing requirements under
4-25 this section; or
5-1 (B) an individual with at least two years of
5-2 active experience in the vocation of installation of underground
5-3 storage tanks, underground utilities, or other engineering
5-4 construction in the State of Texas and who meets the licensing
5-5 requirements under this section.
5-6 (6) "Certificate of registration" means the document
5-7 issued to an underground storage tank contractor authorizing same
5-8 to engage in the underground storage tank business in this state.
5-9 (7) "License" means the document issued to an
5-10 installer or on-site supervisor authorizing same to engage in the
5-11 underground storage tank business in this state.
5-12 (8) "Critical junctures" means, in the case of an
5-13 installation, repair, or removal, all of the following steps:
5-14 (A) preparation of the tank bedding immediately
5-15 prior to receiving the tank;
5-16 (B) setting of the tank and the piping,
5-17 including placement of any anchoring devices, backfill to the level
5-18 of the tank, and strapping, if any;
5-19 (C) connection of piping systems to the tank;
5-20 (D) all pressure testing of the underground
5-21 storage tank, including associated piping, performed during the
5-22 installation;
5-23 (E) completion of backfill and filling of the
5-24 excavation;
5-25 (F) any time during the repair in which the
6-1 piping system is connected or reconnected to the tank;
6-2 (G) any time during the repair in which the tank
6-3 or its associated piping is tested; and
6-4 (H) any time during the removal of the tank.
6-5 Sec. 26.363. CERTIFICATE OF REGISTRATION. (a) An
6-6 underground storage tank contractor must apply to the commission
6-7 for a certificate of registration on a form prescribed by the
6-8 commission. If the contractor is a partnership or joint venture,
6-9 it need not register in its own name if each partner or joint
6-10 venture is registered.
6-11 (b) A certificate of registration is valid for one year from
6-12 the date of issue and is renewable annually on payment of the
6-13 annual fee; provided, however, that the initial certification of
6-14 registration issued on or after September 1, 1989, may be issued
6-15 for periods of less than one year and the annual fee shall be
6-16 prorate proportionally.
6-17 (c) Each certificate of registration must be posted in a
6-18 conspicuous place in the contractor's place of business.
6-19 (d) All bids, proposals, offers, and installation drawing
6-20 must prominently display the contractor's certificate of
6-21 registration number.
6-22 (e) A certificate of registration issued under this section
6-23 is not transferable.
6-24 Sec. 26.364. LICENSE REQUIRED. (a) Except as provided for
6-25 by Subsection (c), an underground storage tank may not be
7-1 installed, repaired, or removed except by an underground storage
7-2 tank contractor who has an installer or an on-site supervisor who
7-3 is licensed by the commission under Section 26.367 at the site at
7-4 all times during the critical junctures of the installation,
7-5 repair, or removal.
7-6 (b) This section does not apply to the installation of a
7-7 storage tank or other facility exempt from regulation under Section
7-8 26.344, Water Code.
7-9 Sec. 26.365. POWERS AND DUTIES OF COMMISSION. (a) The
7-10 commission shall:
7-11 (1) prescribe application forms for original and
7-12 renewal licenses; and
7-13 (2) take other action necessary to enforce this
7-14 section.
7-15 (b) The commission shall adopt rules for the licensing of
7-16 installers and on-site supervisors.
7-17 (c) The commission may adopt rules relating to continuing
7-18 education requirements for installers and on-site supervisors.
7-19 Sec. 26.366. EXAMINATION. (a) At times and places
7-20 designated by the commission, the commission shall conduct an
7-21 examination of applicants for licensing as installers and on-site
7-22 supervisors.
7-23 (b) The commission shall prescribe the contents of the
7-24 examination. Questions used in the examination must be derived
7-25 from standards, instructions, and recommended practices published
8-1 by organizations with expertise in various aspects of installation,
8-2 removal, and repair of underground storage tanks, including the:
8-3 (1) Petroleum Equipment Institute;
8-4 (2) American Petroleum Institute;
8-5 (3) Steel Tank Institute;
8-6 (4) National Association of Corrosion Engineers;
8-7 (5) Fiberglass Petroleum Tank and Pipe
8-8 Institute; and
8-9 (6) National Fire Protection Association.
8-10 (c) The commission shall determine standards for
8-11 acceptable performance on the examination.
8-12 (d) If requested by a license applicant who fails the
8-13 examination, the commission shall provide to the applicant an
8-14 analysis of the applicant's performance on the examination.
8-15 Sec. 26.367. LICENSE. (a) The commission shall issue an
8-16 installer or on-site supervisor license to an applicant who:
8-17 (1) is at least 18 years of age;
8-18 (2) meets the application requirements prescribed by
8-19 commission rule, including experience in installation of
8-20 underground storage tanks, underground utilities, or other
8-21 engineering construction in the State of Texas, not to exceed two
8-22 years of active experience;
8-23 (3) passes the licensing examination
8-24 (4) pays the application, examination, and licensing
8-25 fees; and
9-1 (5) meets reasonable training requirements as
9-2 determines by the commission.
9-3 (b) A license issued under this section is valid throughout
9-4 this state but is not assignable or transferable.
9-5 (c) A license is valid for one year and may be renewed
9-6 annually on or before February 1 on payment of the required renewal
9-7 fee and presentation of evidence satisfactory to the commission of
9-8 compliance with any continuing education requirements adopted by
9-9 the commission.
9-10 (d) If a licensee fails to renew the license by the required
9-11 date, the licensee may renew the license on payment of the renewal
9-12 fee and a late fee set by the commission. If the license is not
9-13 renewed earlier than one year after the date on which the license
9-14 expired, the licensee must retake the licensing examination
9-15 administered by the commission.
9-16 Sec. 26.368. FEES. The commission shall charge necessary
9-17 fees to defray the costs of administering the provisions of this
9-18 section, which shall be deposited in the state treasury to the
9-19 credit of the storage tank fund and shall be used by the commission
9-20 in administering the provisions of this section. The fees shall be
9-21 established by rule of the commission in an amount sufficient to
9-22 recover the reasonable costs of administering the provisions of
9-23 this section.
9-24 Sec. 26.369. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR
9-25 CERTIFICATION OF REGISTRATION; REINSTATEMENT. (a) The commission
10-1 may deny, suspend, revoke or reinstate a license or certificate of
10-2 registration.
10-3 (b) The commission shall adopt rules establishing the ground
10-4 for denial, suspension, revocation, or reinstatement of a license
10-5 or certificate of registration, and establishing procedures for
10-6 disciplinary actions.
10-7 (c) Proceedings relating to the suspension or revocation of
10-8 a license or certificate of registration issued under this section
10-9 are subject to the Administrative Procedure and Texas Register Act
10-10 (Article 6252-13a, Vernon's Texas Civil Statutes).
10-11 (d) A person whose license or certificate of registration
10-12 has been revoked may apply for a new license or certificate of
10-13 registration after the expiration of one year from the date of the
10-14 revocation.
10-15 SECTION 4. Section 26.3571, Water Code, is amended by adding
10-16 Subsection (k) to read as follows:
10-17 (k) Pursuant to Section 26.353 of this chapter, the
10-18 commission is authorized to issue appropriate orders, assess
10-19 administrative and civil penalties, and pursue or initiate criminal
10-20 prosecution, as determined by the commission to be appropriate,
10-21 for:
10-22 (1) any person or business entity who engages in a
10-23 project or activity involving the installation, repair, or removal
10-24 of an underground storage tank without possessing a valid
10-25 certificate of registration issued by the commission under this
11-1 section;
11-2 (2) any individual who performs or supervises a
11-3 project or activity involving the installation, repair, or removal
11-4 of an underground storage tank without possessing a valid license
11-5 issued by the commission under this section;
11-6 (3) any owner or operator of an underground storage
11-7 tank, or any other person, who allows or authorizes an underground
11-8 storage tank installation, repair, or removal to be conducted by
11-9 anyone who does not possess a valid certificate of registration
11-10 issued by the commission under this section, or who allows or
11-11 authorizes such activities to be performed or supervised by an
11-12 individual who does not possess a valid license issued by the
11-13 commission; and
11-14 (4) any registered contractor, licensed installer or
11-15 on-site supervisor, tank owner, tank operator, or any other person
11-16 who is determined by the commission to be responsible for violation
11-17 of any of the provisions of this code or of any orders of any
11-18 orders or rules adopted by the commission pursuant to this code.
11-19 SECTION 5. Chapter 244, Acts of the 71st Legislature,
11-20 Regular Session, 1989 (Article 8900, Vernon's Annotated Civil
11-21 Statutes), is repealed.
11-22 SECTION 6. Section 26.351, Water Code, is amended by
11-23 amending Subsections (d) and adding subsection (g) as follows:
11-24 (d) The commission is authorized to adopt rules concerning
11-25 circumstances under which the commission will perform corrective
12-1 action under this subchapter. Such rules may include:
12-2 (1) a reasonable limitation on the extent and nature
12-3 of the corrective action that the commission will undertake, which
12-4 may be based on site-specific risks to human health or the
12-5 environment and the availability of funds and resources;
12-6 (2) minimum requirements, including demonstration of
12-7 financial need and other requirments, that must be met by an owner
12-8 or operator, or by others, before the commission will undertake
12-9 corrective action; and
12-10 (3) procedures for pursuing enforcement and cost
12-11 recovery against owners or operators, and others, who fail or
12-12 refuse to demonstrate compliance with the requirements developed by
12-13 the commission pursuant to paragraph (2) of this subsection.
12-14 (g) The commission may adopt rules for the implementation
12-15 and administration of a waste management program to regulate the
12-16 handling, transportation, storage, and treatment of waste generated
12-17 from a site where aboveground or underground storage tanks are
12-18 located, and for the registration of facilities where such waste
12-19 materials are stored, treated, or disposed.
12-20 (1) For the purposes of this subsection, "waste
12-21 materials" shall include:
12-22 (A) soils or backfill materials that have been
12-23 contaminated as a result of a release of regulated substances from
12-24 an aboveground or underground storage tank;
12-25 (B) contaminated groundwater, surface water,
13-1 waters used for cleaning or treatment purposes, or water removed
13-2 from the tanks, which has originated at a site where underground or
13-3 aboveground tanks are located;
13-4 (C) removed, scrapped, or junked tanks, piping,
13-5 or other materials or equipment that was previously part of an
13-6 underground or aboveground storage tank system, but which is now
13-7 destined for disposal;
13-8 (D) regulated substances, including residues and
13-9 sludges in the tank bottoms, which are removed from aboveground or
13-10 underground storage tank systems, but which are not destined for
13-11 reuse, reprocessing, or recycling; and
13-12 (E) other materials designated by the
13-13 commission.
13-14 (2) A regulatory program implemented by the commission
13-15 under this subsection shall not conflict with or duplicate other
13-16 programs administered by the commission or other agencies relating
13-17 to the handling, storage, transportation, treatment, or disposal of
13-18 municipal and industrial hazardous wastes, other municipal and
13-19 industrial solid wastes, and other wastes regulated by other
13-20 sections of this code or by other statutes.
13-21 (3) The commission may establish by rule a schedule of
13-22 fees and charges to cover the costs of administering this waste
13-23 management program, including fees for application processing,
13-24 issuing permits or authorizations, and any other similar
13-25 activities, and the funds collected from such fees and charges
14-1 shall be deposited in the State Treasury to the credit of the
14-2 storage tank fund.
14-3 (4) Any person who violates any order or rule adopted
14-4 by the commission pursuant to this subsection is subject to the
14-5 provisions of Section 26.353 of this subchapter.
14-6 SECTION 7. Section 26.3511, Water Code, is amended by the
14-7 addition of subsection (c) as follows:
14-8 (c) In cases in which the commission undertakes corrective
14-9 action pursuant to this section, the state, the commission and
14-10 their agents and employees are authorized to enter properties where
14-11 contamination has resulted from releases of regulated substances
14-12 from underground storage tanks or aboveground storage tanks and to
14-13 conduct corrective action activities on such properties.
14-14 SECTION 8. Section 26.3512(e), Water Code, is amended to
14-15 read as follows:
14-16 (e) An owner or operator shall pay under Subsection (b)(1)
14-17 of this section an amount equal to 10 percent of the total expenses
14-18 of corrective action taken for each occurrence that is eligible for
14-19 payment from the petroleum storage tank remediation fund <the first
14-20 expenses for corrective action taken for each occurrence as
14-21 follows:>
14-22 <(1) a person who owns or operates 1,000 or more
14-23 single petroleum storage tanks, the first $10,000;>
14-24 <(2) a person who owns or operates fewer than 100 or
14-25 more than 999 single petroleum storage tanks, the first $5,000;>
15-1 <(3) a person who owns or operates not fewer than 13
15-2 or more than 99 single petroleum storage tanks, the first $2,500;
15-3 and>
15-4 <(4) a person who owns or operates fewer than 13
15-5 single petroleum storage tanks, the first $1,000>.
15-6 SECTION 9. Section 26.353, Water Code, is amended by
15-7 amending Subsections (a) and (b) to read as follows:
15-8 (a) The commission may issue orders to enforce this
15-9 subchapter and rules adopted under this subchapter in accordance
15-10 with the procedures applicable to orders issued under Section
15-11 26.019 of this code. The commission's authority in issuing orders
15-12 under this section includes the authority granted under Chapter 26,
15-13 including Subchapter D, concerning Prohibition against Pollution,
15-14 and Subchapter F, concerning Criminal Prosecution.
15-15 (b) The groundwater protection cleanup program established
15-16 under Section 26.3572 of this code does not affect the commission's
15-17 right to pursue enforcement orders with or without administrative
15-18 penalties if any person <an owner or operator> violates this code,
15-19 an order issued under this subchapter, or a rule adopted by the
15-20 commission.
15-21 SECTION 10. Section 26.354(e), Water Code, is amended to
15-22 read as follows:
15-23 (e) The executive director may issue orders under this
15-24 section to the following persons:
15-25 (1) the owner of an underground storage tank or
16-1 aboveground storage tank; <or>
16-2 (2) the operator of an underground storage tank or
16-3 aboveground storage tank; or
16-4 (3) any other person who is determined by the
16-5 executive director to be responsible for a release or threatened
16-6 release of a regulated substance from an underground storage tank
16-7 or an aboveground storage tank.
16-8 SECTION 11. Section 26.355, Water Code, is amended to read
16-9 as follows:
16-10 (a) If the commission has incurred any costs in undertaking
16-11 corrective action or enforcement action with respect to the release
16-12 or threatened release of regulated substances from an underground
16-13 or aboveground storage tank, the owner or the operator of the tank,
16-14 or any other person determined by the commission to be responsible
16-15 for the release or threatened release, is liable to the state for
16-16 all reasonable costs of those corrective and enforcement actions
16-17 and for court costs and reasonable attorney's fees.
16-18 (b) An owner or operator of an underground or aboveground
16-19 storage tank from which there is a release or a threat of release
16-20 of a regulated substance <is released> is liable to the state
16-21 unless the release or threatened release was caused by:
16-22 (1) an act of God;
16-23 (2) an act of war;
16-24 (3) the negligence of the State of Texas or the United
16-25 States; or
17-1 (4) an act or omission of a third party.
17-2 (c) The state's right to recover under this section arises
17-3 whether or not the commission:
17-4 (1) uses funds from the storage tank fund, <or> the
17-5 petroleum storage tank remediation fund, or any other appropriate
17-6 source of funds; or
17-7 (2) receives or will receive funds from the state, the
17-8 federal government, or any other source for the purpose of
17-9 corrective action or enforcement.
17-10 (d) Except as provided under subsection (e) of this section,
17-11 if <If> the commission uses money from the petroleum storage tank
17-12 remediation fund for corrective action or enforcement and if the
17-13 costs are recovered under this section, the commission may not
17-14 recover more than the amount of the applicable owner or operator
17-15 contribution described by Section 26.3512(e) of this code from an
17-16 eligible owner or operator for corrective action for each
17-17 occurrence.
17-18 (e) Notwithstanding the limitations on cost recovery under
17-19 subsection (d) of this section, if the commission has used monies
17-20 from any source for the costs of enforcement action or corrective
17-21 action in response to a release or threatened release of regulated
17-22 substances from an underground or aboveground storage tank, the
17-23 eligibility of the owner, operator, or other person for
17-24 reimbursement under this subchapter may be limited or denied by the
17-25 commission, and the commission is authorized to pursue recovery of
18-1 such costs, as provided in this subsection.
18-2 (1) When the owner or operator of the tank, or any
18-3 other person determined to be responsible for the release or
18-4 threatened release, has failed or refused to comply with the
18-5 commission's requirements established pursuant to Section 26.351(b)
18-6 of this subchapter, the commission shall be entitled to recover up
18-7 to the amount expended by the commission, plus any enforcement
18-8 action costs and any administrative and civil penalties applicable
18-9 to the release or threatened release.
18-10 (2) When the owner or operator of the tank, or any
18-11 other person determined to be responsible for the release or
18-12 threatened release, has submitted signed or certified documentation
18-13 indicating compliance with the commission's requirements
18-14 established pursuant to Section 26.351(b) of this subchapter, and
18-15 this documentation is subsequently determined by the commission to
18-16 be fraudulent, inaccurate, or otherwise not in conformance with the
18-17 requirements established pursuant to Section 26.351(b), then the
18-18 commission shall be entitled to recover up to twice the total
18-19 amount expended by the commission, plus any enforcement action
18-20 costs and any administrative and civil penalties applicable to the
18-21 release or threatened release.
18-22 (f) <(e)> An indemnification, hold harmless, or similar
18-23 agreement or conveyance is not effective to transfer the liability
18-24 imposed under this section from the owner or operator of an
18-25 underground or aboveground storage tank or from a person who may be
19-1 liable for a release or threat of release to any other person.
19-2 This section does not bar any agreement to insure, hold harmless,
19-3 or indemnify a party to the agreement for any liability under this
19-4 section.
19-5 (g) <(f)> This section does not bar a cause of action that
19-6 an owner or operator or any other person subject to liability under
19-7 this section or a guarantor has or would have by reason of
19-8 subrogation or otherwise against any person.
19-9 (h) <(g)> At the request of the commission, the attorney
19-10 general shall initiate court proceedings to recover costs under
19-11 this section.
19-12 (i) <(h)> Except as provided by Subsection (j) <(i)> of this
19-13 section, money recovered in a court proceeding under this section
19-14 shall be deposited in the State Treasury to the credit of the
19-15 storage tank fund.
19-16 (j) <(i)> If the commission uses money from the petroleum
19-17 storage tank remediation fund for corrective action or enforcement
19-18 as provided by this subchapter, money recovered in a court
19-19 proceeding under this section shall be deposited in the state
19-20 treasury to the credit of the petroleum storage tank remediation
19-21 fund.
19-22 SECTION 12. Section 26.356, Water Code, is amended by
19-23 amending Subsections (a), (b), and (c) to read as follows:
19-24 Sec. 26.356. Inspections, Monitoring, and Testing. (a) For
19-25 the purposes of developing or assisting in the development of a
20-1 regulation, conducting a study, or enforcing this subchapter, an
20-2 owner or operator of an underground storage tank or aboveground
20-3 storage tank, on the request of the commission, shall:
20-4 (1) furnish information relating to the tank,
20-5 including tank equipment and contents; and
20-6 (2) permit a designated agent or employee of the
20-7 commission at all reasonable times to have access to and to copy
20-8 all records relating to the tank.
20-9 (b) For the purposes of developing or assisting in the
20-10 development of a regulation, conducting a study, conducting
20-11 corrective action activities, or enforcing this subchapter, the
20-12 commission, its designated agent, or employee may:
20-13 (1) enter at reasonable times an establishment or
20-14 place in which an underground or aboveground storage tank is
20-15 located, or any property that has or is suspected to be
20-16 contaminated by either a release from such tank or any waste
20-17 generated from such tank;
20-18 (2) inspect and obtain samples of any <a> regulated
20-19 substance contained in the tank, or of any waste generated from the
20-20 use of such tank, from any person; <and>
20-21 (3) conduct monitoring or testing of the tank,
20-22 associated equipment, contents, or surrounding soils, air, surface
20-23 water, or groundwater; and
20-24 (4) perform any corrective action authorized under
20-25 this subchapter.
21-1 (c) The commission may order an owner or an operator of an
21-2 underground storage tank or aboveground storage tank to conduct
21-3 monitoring, <and> testing, corrective action, and other activities
21-4 consistent with the purposes of this subchapter if the commission
21-5 finds that there is reasonable cause to believe that a release has
21-6 occurred or could occur in the area in which the underground or
21-7 aboveground storage tank is located.
21-8 SECTION 13. Section 26.3571(d), Water Code, is amended to
21-9 read as follows:
21-10 (d) In determining whether an owner or operator is in
21-11 compliance with this subchapter, the commission may consider such
21-12 factors as the owner's or operator's compliance with tank
21-13 registration, annual facility fee payments, financial
21-14 responsibility, tank standards, release detection, <and> closure
21-15 standards, release reporting, and corrective action requirements.
21-16 SECTION 14. Section 26.3573, Water Code, is amended by
21-17 amending Subsections (f), (g), (h), (i) and (k) to read as follows:
21-18 (f) The commission, in accordance with this subchapter and
21-19 rules adopted under this subchapter, may:
21-20 (2) reimburse an eligible owner or operator from the
21-21 petroleum storage tank remediation fund for the reasonable and
21-22 allowable expenses of corrective action performed on or after
21-23 September 1, 1987; or
21-24 (3) pay the reasonable and allowable portions of the
21-25 claim of a person who has contracted with an eligible owner or
22-1 operator to perform corrective action with funds from the petroleum
22-2 storage tank remediation fund, provided that the eligible owner or
22-3 operator has authorized such payment in writing.
22-4 (g) The commission shall administer the petroleum storage
22-5 tank remediation fund and by rule adopt guidelines and procedures
22-6 for the use of and eligibility for that fund, subject to the
22-7 availability of money in the fund, as the commission finds
22-8 necessary to:
22-9 (1) make the most efficient use of the money
22-10 available, including:
22-11 (A) establishing priorities for payments from
22-12 the fund; and
22-13 (B) suspending payments from the fund, if
22-14 necessary; and
22-15 (2) provide the most effective protection to the
22-16 environment and provide for the public health and safety.
22-17 (h) Consistent with the objectives provided under Subsection
22-18 (g) of this section and this subchapter, the commission may by rule
22-19 adopt:
22-20 (1) requirements or guidelines the commission
22-21 considers necessary for determining the amounts that may be paid
22-22 from the petroleum storage tank remediation fund, which may include
22-23 criteria for determining and establishing the eligibility,
22-24 allowability, and reasonableness of various types of corrective
22-25 action expenses as a condition for reimbursement;
23-1 (2) requirements or guidelines concerning the
23-2 procedures, forms, and documentation required for the processing of
23-3 claims and reimbursements <reimbursement> for expenses incurred by
23-4 an eligible owner or operator and covered under Section 26.3512(d)
23-5 of this code; <and>
23-6 (3) procedures for reviewing and evaluating any claims
23-7 for reimbursement from the petroleum storage tank remediation fund,
23-8 and criteria for denying reimbursement for all or portions of such
23-9 claims; and
23-10 (4) procedures and criteria for reviewing, evaluating,
23-11 and auditing any prior payments made from the petroleum storage
23-12 tank remediation fund, either upon petition or on the commission's
23-13 own motion, and for the cost recovery of any overpayments or
23-14 erroneous payments which:
23-15 (A) were made as a result of inaccurate or
23-16 misleading information included in the claim filed by an owner or
23-17 operator (or any agent of such owner or operator);
23-18 (B) exceed the maximum reimbursable amounts
23-19 authorized under this subchapter; or
23-20 (C) are otherwise determined by the commission
23-21 to be unlawful or excessive <minimum qualifications the commission
23-22 considers necessary for a person with whom an eligible owner or
23-23 operator may contract to participate in corrective action>.
23-24 (i) The commission may implement by rule a registration
23-25 program for persons who contract with an owner or operator of an
24-1 underground storage tank or an aboveground storage tank, or with
24-2 any other person, to perform corrective action under this
24-3 subchapter. <and>
24-4 (1) The commission may adopt minimum qualifications
24-5 that the commission considers necessary for a person with whom an
24-6 eligible owner or operator may contract to participate in
24-7 corrective action, and for individuals who perform or supervise
24-8 such corrective action.
24-9 (2) The commission may require registration and the
24-10 use of registered contractors and registered supervisors by an
24-11 eligible owner or operator (or by an agent of the eligible owner or
24-12 operator) as a prerequisite to the payment of <receiving> money
24-13 from the petroleum storage tank remediation fund for corrective
24-14 action under this subchapter.
24-15 (3) The commission may establish by rule a schedule of
24-16 fees and charges to cover the costs of administering this
24-17 registration program, including fees for application processing,
24-18 printing certificates, conducting examinations, and any other
24-19 similar activities, and the funds collected from such fees and
24-20 charges shall be deposited in the state treasury to the credit of
24-21 the storage tank fund.
24-22 (4) Any person who violates any order or rule
24-23 developed by the commission pursuant to this subsection is subject
24-24 to the provisions of Section 26.353 of this subchapter.
24-25 (k) The commission may not pay interest to an owner or
25-1 operator on any claim for payment from the petroleum storage tank
25-2 remediation fund.
25-3 (k) <The commission shall satisfy a claim for payment that
25-4 is eligible to be paid under this subchapter and the rules adopted
25-5 under this subchapter made by a contractor, from the petroleum
25-6 storage tank remediation fund as provided by Chapter 82, Acts of
25-7 the 69th Legislature, regular Session, 1985 (Article 601f, Vernon's
25-8 Texas Civil Statutes), regardless of whether the commission:>
25-9 <(1) contracts directly for the goods or services; or>
25-10 <(2) pays a claim under a contract executed by a
25-11 petroleum storage tank owner or operator.>
25-12 SECTION 15. Subchapter I, Chapter 26, Water Code, is amended
25-13 by adding Section 26.3575 to read as follows:
25-14 Sec. 26.3575. CLAIMS AUDIT. (a) The commission may conduct
25-15 audits of claims for payment from the petroleum storage tank
25-16 remediation fund.
25-17 (b) The commission shall conduct the audits in accordance
25-18 with generally accepted accounting standards as prescribed by the
25-19 American Institute of Certified Public Accountants, the
25-20 Governmental Accounting Standards Board, the United States General
25-21 Accounting Office, or other professionally recognized entities that
25-22 prescribe auditing standards.
25-23 (c) The commission may use generally recognized sampling
25-24 techniques to audit claims if the commission determines that the
25-25 use of those techniques would be cost-effective and would promote
26-1 greater efficiency in administering claims for payment from the
26-2 petroleum storage tanks remediation fund.
26-3 (d) The commission may adopt rules necessary to implement
26-4 this section.
26-5 SECTION 16. Section 26.3574(a)(1), Water Code, is amended to
26-6 read as follows:
26-7 (1) "Bulk facility" means a <facility, including>
26-8 pipeline terminal<s>, refinery terminal<s>, rail terminal, <and>
26-9 barge terminal<s>, or similar terminal facility (including <and>
26-10 all <any> associated underground and aboveground tanks, whether
26-11 connected or separate)<,> where petroleum products are stored in
26-12 bulk, and from which petroleum products are withdrawn from bulk for
26-13 delivery directly <and delivered> into a cargo tank or a barge for
26-14 <used to> transport <those products> to another location for
26-15 distribution or sale in this state. <This term does not include
26-16 petroleum products consumed at an electric generating facility.>
26-17 SECTION 17. Section 26.358, Water Code, is amended by
26-18 amending Subsection (b) by adding paragraphs (6), (7), (8), and
26-19 (9), as follows:
26-20 (b) The storage tank fund consists of money collected by the
26-21 commission from:
26-22 (4) funds received from insurers, guarantors, or other
26-23 sources of financial responsibility; <and>
26-24 (5) funds from the federal government and other
26-25 sources for use in connection with the storage tank program;<.>
27-1 (6) fees collected pursuant to the commission's
27-2 program for the registration of underground storage tank
27-3 contractors and for the licensing of underground storage tank
27-4 installers and on-site supervisors, as provided by this subchapter;
27-5 (7) fees collected pursuant to the commission's
27-6 program for the registration of contractors who contract to perform
27-7 corrective action, and the individuals who supervise corrective
27-8 action activities, as provided in Section 26.3573(i)(3) of this
27-9 subchapter;
27-10 (8) fees collected pursuant to the commission's waste
27-11 management program, as provided in Section 26.351(f) of this
27-12 subchapter; and
27-13 (9) administrative penalties collected pursuant to
27-14 Section 26.353 of this subchapter.
27-15 SECTION 18. Section 26.3573, Water Code is amended by
27-16 amending Subsection (d) as follows:
27-17 (d) The commission may use the money in the petroleum
27-18 storage tank remediation fund to pay:
27-19 (1) necessary expenses associated with the
27-20 administration of the petroleum storage tank remediation fund and
27-21 the groundwater protection cleanup program, not to exceed an amount
27-22 equal to five <three> percent of the gross receipts of that fund,
27-23 provided that the increment between two and three percent of the
27-24 gross receipts may be used only to pay administrative expenses
27-25 associated with regulating petroleum storage tanks, reimbursing
28-1 eligible owners and operators, and disposing of contaminated soils;
28-2 SECTION 19. The importance of this legislation and the
28-3 crowded condition of the calendars in both houses create an
28-4 emergency and an imperative public necessity that the
28-5 constitutional rule requiring bills to be read on three separate
28-6 days in each house be suspended, and this rule is hereby suspended.