By: Sims S.B. No. 1475
73R10228 MI-F
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
1-24 overfills), leaking, emitting, discharging, escaping, leaching, or
2-1 disposing from an underground storage tank or aboveground storage
2-2 tank into groundwater, surface water, <or> subsurface soils, or
2-3 onto the surface of the ground.
2-4 SECTION 2. Sections 26.344(b), (e), (f), and (g), Water
2-5 Code, are amended to read 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, nonearthen <the> floor of that area.
2-13 (e) Except for Section 26.351 and Sections 26.3573(d)(3) and
2-14 (e) of this subchapter, in-ground hydraulic lifts that use a
2-15 compressed air/hydraulic fluid system and hold less than 100
2-16 gallons of hydraulic fluid <oil>, if exempt by the federal
2-17 Environmental Protection Agency, are exempt under this subchapter.
2-18 (f) An aboveground storage tank that is located at or is
2-19 part of a petrochemical plant, a petroleum refinery, an electric
2-20 generating facility, or a bulk facility <as that term is defined by
2-21 Section 26.3574(a) of this code> is exempt from regulation under
2-22 this subchapter but is not exempt for purposes of the delivery fee
2-23 imposed under Section 26.3574 of this code. An aboveground storage
2-24 tank at a bulk facility is exempt under this subsection only if the
2-25 bulk facility meets the definition in Section 26.3574(a) of this
2-26 code and if the bulk facility is properly permitted by the
2-27 comptroller under Section 26.3574(g) of this code.
3-1 (g) Costs incurred as a result of a release from a storage
3-2 tank system owned, operated, or maintained by a common carrier
3-3 railroad are not reimbursable pursuant to the provisions of this
3-4 subchapter <section>. Common carrier railroads are exempt from the
3-5 delivery fees collected pursuant to the provisions of Section
3-6 26.3574 of this code <Act>.
3-7 SECTION 3. Section 26.351, Water Code, is amended by
3-8 amending Subsection (d) and adding Subsections (f) and (g) to read
3-9 as follows:
3-10 (d) The commission may adopt rules concerning circumstances
3-11 under which the commission will perform corrective action under
3-12 this subchapter. The rules may include:
3-13 (1) a reasonable limitation on the extent and nature
3-14 of the corrective action that the commission will undertake, which
3-15 may be based on site-specific risks to human health or the
3-16 environment;
3-17 (2) minimum requirements, including demonstration of
3-18 financial need and other requirements, that must be met by an owner
3-19 or operator, or by others, before the commission will undertake
3-20 corrective action; and
3-21 (3) procedures for pursuing enforcement and cost
3-22 recovery against owners or operators, and others, who fail or
3-23 refuse to demonstrate compliance with requirements adopted by the
3-24 commission under Subdivision (2) of this subsection <The commission
3-25 may retain agents to take corrective action it considers necessary
3-26 under this section. The agents shall operate under the direction
3-27 of the executive director. Any expenses arising from corrective
4-1 action taken by the commission or the executive director may be
4-2 paid from the storage tank fund>.
4-3 (f) The commission shall adopt rules to regulate the
4-4 handling, transportation, and storage of waste generated from a
4-5 site where aboveground or underground storage tanks are located and
4-6 for the registration of facilities where those waste materials are
4-7 disposed of after treatment. The rules shall not allow any waste
4-8 materials that have contaminant levels greater than 0.5 mg./kg. for
4-9 each component of benzene, toluene, ethylbenzene, and total xylenes
4-10 and greater than 10.0 mg./kg. total petroleum hydrocarbons to be
4-11 disposed of at a land disposal facility.
4-12 (g) The commission may adopt rules authorizing the storage,
4-13 treatment, or disposal of media and debris from sources other than
4-14 petroleum storage tanks that have been contaminated by petroleum
4-15 substance and have physical and chemical properties similar in
4-16 nature to waste materials generated from a site where aboveground
4-17 or underground tanks are located at facilities registered pursuant
4-18 to Subsection (f) of this section. The rules shall prohibit media
4-19 and debris that contain contaminant levels greater than 0.5 mg./kg.
4-20 for each component of benzene, toluene, ethylbenzene, and total
4-21 xylenes and greater than 10.0 mg./kg. total petroleum hydrocarbons
4-22 to be treated or reused at a facility registered under Subsection
4-23 (f) of this section unless the facility has:
4-24 (1) provisions for measuring volatile organic
4-25 compounds;
4-26 (2) demonstrated that the treatment, reuse, or
4-27 disposal will not make a significant contribution of air
5-1 contaminants to the atmosphere; and
5-2 (3) demonstrated that as a result of reuse contaminant
5-3 levels have been reduced to less than 0.5 mg./kg. for each
5-4 component of benzene, toluene, ethylbenzene, and total xylenes and
5-5 greater than 500.0 mg./kg. total petroleum hydrocarbons.
5-6 SECTION 4. Section 26.3511, Water Code, is amended by adding
5-7 Subsection (c) to read as follows:
5-8 (c) In cases in which the commission undertakes corrective
5-9 action under this section, the state, the commission, and their
5-10 agents and employees may enter properties where contamination has
5-11 resulted from releases of regulated substances from underground
5-12 storage tanks or aboveground storage tanks and may conduct
5-13 corrective action activities on those properties.
5-14 SECTION 5. Section 26.3512(e), Water Code, is amended to
5-15 read as follows:
5-16 (e) An owner or operator shall pay under Subsection (b)(1)
5-17 of this section the first expenses for corrective action taken for
5-18 each occurrence as follows:
5-19 (1) a person who owns or operates 1,000 or more single
5-20 petroleum storage tanks, the first $15,000 <$10,000>;
5-21 (2) a person who owns or operates not fewer than 100
5-22 or more than 999 single petroleum storage tanks, the first $10,000
5-23 <$5,000>;
5-24 (3) a person who owns or operates not fewer than 13 or
5-25 more than 99 single petroleum storage tanks, the first $5,000
5-26 <$2,500>; and
5-27 (4) a person who owns or operates fewer than 13 single
6-1 petroleum storage tanks, the first $1,000.
6-2 SECTION 6. Section 26.353, Water Code, is amended to read as
6-3 follows:
6-4 Sec. 26.353. COMMISSION ORDERS. (a) The commission may
6-5 issue orders to enforce this subchapter and rules adopted under
6-6 this subchapter in accordance with the procedures applicable to
6-7 orders issued under Section 26.019 of this code. The commission's
6-8 authority in issuing orders under this section includes the
6-9 authority granted under this chapter, including Subchapter D.
6-10 (b) The groundwater protection cleanup program established
6-11 under Section 26.3572 of this code does not affect the commission's
6-12 right to pursue enforcement orders with or without administrative
6-13 penalties if any person <an owner or operator> violates this code,
6-14 an order issued under this subchapter, or a rule adopted by the
6-15 commission.
6-16 SECTION 7. Section 26.354(e), Water Code, is amended to read
6-17 as follows:
6-18 (e) The executive director may issue orders under this
6-19 section to the following persons:
6-20 (1) the owner of an underground storage tank or
6-21 aboveground storage tank; <or>
6-22 (2) the operator of an underground storage tank or
6-23 aboveground storage tank; or
6-24 (3) any other person who is determined by the
6-25 executive director to be responsible for a release of a regulated
6-26 substance from an underground storage tank or an aboveground
6-27 storage tank.
7-1 SECTION 8. Section 26.355, Water Code, is amended to read as
7-2 follows:
7-3 Sec. 26.355. RECOVERY OF COSTS. (a) If the commission has
7-4 incurred any costs in undertaking corrective action or enforcement
7-5 action with respect to the release of regulated substances from an
7-6 underground or aboveground storage tank, the owner or the operator
7-7 of the tank, or any other person determined by the commission to be
7-8 responsible for the release, is liable to the state for all
7-9 reasonable costs of those corrective and enforcement actions and
7-10 for court costs and reasonable attorney's fees.
7-11 (b) An owner or operator of an underground or aboveground
7-12 storage tank from which there is a release of a regulated substance
7-13 <is released> is liable to the state unless the release was caused
7-14 by:
7-15 (1) an act of God;
7-16 (2) an act of war;
7-17 (3) the negligence of the State of Texas or the United
7-18 States; or
7-19 (4) an act or omission of a third party.
7-20 (c) The state's right to recover under this section arises
7-21 whether or not the commission:
7-22 (1) uses funds from the storage tank fund, <or> the
7-23 petroleum storage tank remediation fund, or any other appropriate
7-24 source of funds; or
7-25 (2) receives or will receive funds from the state, the
7-26 federal government, or any other source for the purpose of
7-27 corrective action or enforcement.
8-1 (d) Except as provided by Subsections (e)-(g) of this
8-2 section, if <If> the commission uses money from the petroleum
8-3 storage tank remediation fund for corrective action or enforcement
8-4 and if the costs are recovered under this section, the commission
8-5 may not recover more than the amount of the applicable owner or
8-6 operator contribution described by Section 26.3512(e) of this code
8-7 from an eligible owner or operator for corrective action for each
8-8 occurrence.
8-9 (e) Notwithstanding the limitations on cost recovery under
8-10 Subsection (d) of this section, if the commission has used money
8-11 from any source for the costs of enforcement action or corrective
8-12 action in response to a release of regulated substances from an
8-13 underground or aboveground storage tank, the eligibility of the
8-14 owner, operator, or other person for reimbursement under this
8-15 subchapter may be limited or denied by the commission, and the
8-16 commission may pursue recovery of the costs under this subsection
8-17 and Subsections (f) and (g) of this section.
8-18 (f) If the owner or operator of the tank, or any other
8-19 person determined to be responsible for the release, fails or
8-20 refuses to comply with the commission's requirements established
8-21 under Section 26.351(d) of this code, the commission is entitled to
8-22 recover up to the amount spent by the commission and any
8-23 enforcement action costs and any administrative and civil penalties
8-24 applicable to the release.
8-25 (g) If the owner or operator of the tank, or any other
8-26 person determined to be responsible for the release, has submitted
8-27 signed or certified documentation indicating compliance with the
9-1 commission's requirements established under Section 26.351(d) of
9-2 this code and this documentation is subsequently determined by the
9-3 commission to be fraudulent, knowingly inaccurate, or otherwise
9-4 intentionally not in conformance with the requirements established
9-5 under Section 26.351(d), the commission is entitled to recover up
9-6 to the total amount spent by the commission and any enforcement
9-7 action costs and any administrative and civil penalties applicable
9-8 to the release.
9-9 (h) An indemnification, hold harmless, or similar agreement
9-10 or conveyance is not effective to transfer the liability imposed
9-11 under this section from the owner or operator of an underground or
9-12 aboveground storage tank or from a person who may be liable for a
9-13 release or threat of release to any other person. This section
9-14 does not bar any agreement to insure, hold harmless, or indemnify a
9-15 party to the agreement for any liability under this section.
9-16 (i) <(f)> This section does not bar a cause of action that
9-17 an owner or operator or any other person subject to liability under
9-18 this section or a guarantor has or would have by reason of
9-19 subrogation or otherwise against any person.
9-20 (j) <(g)> At the request of the commission, the attorney
9-21 general shall initiate court proceedings to recover costs under
9-22 this section.
9-23 (k) <(h)> Except as provided by Subsection (l) <(i)> of this
9-24 section, money recovered in a court proceeding under this section
9-25 shall be deposited in the State Treasury to the credit of the
9-26 storage tank fund.
9-27 (l) <(i)> If the commission uses money from the petroleum
10-1 storage tank remediation fund for corrective action or enforcement
10-2 as provided by this subchapter, money recovered in a court
10-3 proceeding under this section shall be deposited in the state
10-4 treasury to the credit of the petroleum storage tank remediation
10-5 fund.
10-6 SECTION 9. Sections 26.356(a), (b), and (c), Water Code, are
10-7 amended to read as follows:
10-8 (a) For the purposes of developing or assisting in the
10-9 development of a regulation, conducting a study, or enforcing this
10-10 subchapter, an owner or operator of an underground storage tank or
10-11 aboveground storage tank, on the request of the commission, shall:
10-12 (1) furnish information relating to the tank,
10-13 including tank equipment and contents; and
10-14 (2) permit a designated agent or employee of the
10-15 commission at all reasonable times to have access to and to copy
10-16 all records relating to the tank.
10-17 (b) For the purposes of developing or assisting in the
10-18 development of a regulation, conducting a study, conducting
10-19 corrective action activities, or enforcing this subchapter, the
10-20 commission, its designated agent, or employee may:
10-21 (1) enter at reasonable times an establishment or
10-22 place in which an underground storage tank or aboveground storage
10-23 tank is located or any property that has been or is suspected to be
10-24 contaminated by either a release from the tank or waste generated
10-25 from the tank;
10-26 (2) inspect and obtain samples of any <a> regulated
10-27 substance contained in the tank, or of any waste generated from the
11-1 use of the tank, from any person; <and>
11-2 (3) conduct monitoring or testing of the tank,
11-3 associated equipment, contents, or surrounding soils, air, surface
11-4 water, or groundwater; and
11-5 (4) perform any corrective action authorized by this
11-6 subchapter.
11-7 (c) The commission may order an owner or an operator of an
11-8 underground storage tank or aboveground storage tank to conduct
11-9 monitoring, <and> testing, corrective action, and other activities
11-10 consistent with the purposes of this subchapter if the commission
11-11 finds that there is reasonable cause to believe that a release has
11-12 occurred or could occur in the area in which the underground or
11-13 aboveground storage tank is located.
11-14 SECTION 10. Section 26.3571(d), Water Code, is amended to
11-15 read as follows:
11-16 (d) In determining whether an owner or operator is in
11-17 compliance with this subchapter, the commission may consider such
11-18 factors as the owner's or operator's compliance with tank
11-19 registration, annual facility fee payments, financial
11-20 responsibility, tank standards, release detection, closure
11-21 standards, release <and> reporting, and corrective action
11-22 requirements.
11-23 SECTION 11. Sections 26.3573(d), (f), (g), (h), (i), and
11-24 (k), Water Code, are amended to read as follows:
11-25 (d) The commission may use the money in the petroleum
11-26 storage tank remediation fund to pay:
11-27 (1) necessary expenses associated with the
12-1 administration of the petroleum storage tank remediation fund and
12-2 the groundwater protection cleanup program, not to exceed an amount
12-3 equal to five <three> percent of the gross receipts of that fund,
12-4 provided that the increment between two and three percent of the
12-5 gross receipts may be used only to pay administrative expenses
12-6 associated with regulating petroleum storage tanks, reimbursing
12-7 eligible owners and operators, and disposing of contaminated soils;
12-8 (2) expenses associated with investigation, cleanup,
12-9 or corrective action measures performed in response to a release or
12-10 threatened release from a petroleum storage tank, whether those
12-11 expenses are incurred by the commission or pursuant to a contract
12-12 between a contractor and an eligible owner or operator as
12-13 authorized by this subchapter; and
12-14 (3) subject to the conditions of Subsection (e) of
12-15 this section, expenses associated with investigation, cleanup, or
12-16 corrective action measures performed in response to a release or
12-17 threatened release of hydraulic fluid or spent oil from hydraulic
12-18 lift systems or tanks located at a vehicle service and fueling
12-19 facility and used as part of the operations of that facility.
12-20 (f) The commission, in accordance with this subchapter and
12-21 rules adopted under this subchapter, may:
12-22 (1) contract directly with a person to perform
12-23 corrective action and pay the contractor from the petroleum storage
12-24 tank remediation fund;
12-25 (2) reimburse an eligible owner or operator from the
12-26 petroleum storage tank remediation fund for the reasonable and
12-27 allowable expenses of corrective action performed on or after
13-1 September 1, 1987; or
13-2 (3) pay the reasonable and allowable portions of the
13-3 claim of a person who has contracted with an eligible owner or
13-4 operator to perform corrective action with funds from the petroleum
13-5 storage tank remediation fund, provided that the eligible owner or
13-6 operator has authorized the payment in writing.
13-7 (g) The commission shall administer the petroleum storage
13-8 tank remediation fund and by rule adopt guidelines and procedures
13-9 for the use of and eligibility for that fund as the commission
13-10 finds necessary to:
13-11 (1) make the most efficient use of the money
13-12 available, including:
13-13 (A) establishing priorities for payments from
13-14 the fund; and
13-15 (B) suspending payments from the fund if
13-16 necessary; and
13-17 (2) provide the most effective protection to the
13-18 environment and provide for the public health and safety.
13-19 (h) Consistent with the objectives provided under Subsection
13-20 (g) of this section and this subchapter, the commission may by rule
13-21 adopt:
13-22 (1) requirements or guidelines the commission
13-23 considers necessary for determining the amounts that may be paid
13-24 from the petroleum storage tank remediation fund, which may include
13-25 criteria for determining and establishing the eligibility,
13-26 allowability, and reasonableness of various types of corrective
13-27 action expenses as a condition for reimbursement;
14-1 (2) requirements or guidelines concerning the
14-2 procedures, forms, and documentation required for the processing of
14-3 claims and reimbursements <reimbursement> for expenses incurred by
14-4 an eligible owner or operator and covered under Section 26.3512(d)
14-5 of this code; <and>
14-6 (3) procedures for reviewing and evaluating claims for
14-7 reimbursement from the petroleum storage tank remediation fund and
14-8 criteria for denying reimbursement for all or portions of a claim;
14-9 and
14-10 (4) procedures and criteria for reviewing, evaluating,
14-11 and auditing any prior payments made from the petroleum storage
14-12 tank remediation fund, either on petition or on the commission's
14-13 own motion, and for the cost recovery of any overpayments or
14-14 erroneous payments made after the fiscal year beginning September
14-15 1, 1992, the audit procedures to be based on the rules and law in
14-16 effect at the time the work for which payment was made was
14-17 performed <minimum qualifications the commission considers
14-18 necessary for a person with whom an eligible owner or operator may
14-19 contract to participate in corrective action>.
14-20 (i)(1) The commission shall ensure that corrective action
14-21 activities under this subchapter are conducted in accordance with
14-22 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
14-23 Civil Statutes) and that plans and specifications, as appropriate,
14-24 are prepared by a registered professional engineer. The commission
14-25 may:
14-26 (A) implement by rule a registration program for
14-27 persons who contract with an owner or operator of an underground
15-1 storage tank or aboveground storage tank, or with any other person,
15-2 to perform corrective action construction activities <and may
15-3 require registration and the use of registered contractors as a
15-4 prerequisite to receiving money from the petroleum storage tank
15-5 remediation fund for corrective action> under this subchapter;
15-6 (B) adopt minimum qualifications that the
15-7 commission considers necessary for a person with whom an eligible
15-8 owner or operator may contract to participate in corrective action
15-9 construction activities;
15-10 (C) require registration and the use of
15-11 registered contractors and may require the use of qualified
15-12 registered professional engineers as a prerequisite to the payment
15-13 of money from the petroleum storage tank remediation fund for
15-14 corrective action under this subchapter; and
15-15 (D) establish by rule a schedule of fees and
15-16 charges to cover the costs of administering the registration
15-17 program, including fees for application processing, printing
15-18 certificates, conducting examinations, and other similar
15-19 activities, subject to Section 26.438 of this code, and the funds
15-20 collected from the fees and charges shall be deposited in the state
15-21 treasury to the credit of the storage tank fund.
15-22 (2) A person who violates an order or rule adopted by
15-23 the commission under this subsection is subject to Section 26.353
15-24 of this code.
15-25 (3) The registration program and the provision for
15-26 establishment of minimum qualifications established under this
15-27 subsection do not apply to registered professional engineers.
16-1 (k)(1) The commission shall satisfy a claim for payment that
16-2 is eligible to be paid under this subchapter and the rules adopted
16-3 under this subchapter made by a contractor, from the petroleum
16-4 storage tank remediation fund as provided by Chapter 82, Acts of
16-5 the 69th Legislature, Regular Session, 1985 (Article 601f, Vernon's
16-6 Texas Civil Statutes), regardless of whether the commission:
16-7 (A) <(1)> contracts directly for the goods or
16-8 services; or
16-9 (B) <(2)> pays a claim under a contract executed
16-10 by a petroleum storage tank owner or operator.
16-11 (2) If at any time the petroleum storage tank
16-12 remediation fund has insufficient balances to satisfy claims
16-13 presented against the fund, Chapter 82, Acts of the 69th
16-14 Legislature, Regular Session, 1985 (Article 601f, Vernon's Texas
16-15 Civil Statutes), is suspended until there are sufficient funds to
16-16 pay the claims or until September 1, 1995, whichever is earlier.
16-17 SECTION 12. Subchapter I, Chapter 26, Water Code, is amended
16-18 by adding Section 26.35735 to read as follows:
16-19 Sec. 26.35735. CLAIMS AUDIT. (a) The commission may
16-20 conduct audits of claims for payment from the petroleum storage
16-21 tank remediation fund made after the fiscal year beginning
16-22 September 1, 1992. The audits shall be based on the rules and law
16-23 in effect at the time the work for which payment was made was
16-24 performed.
16-25 (b) The commission shall conduct the audits in accordance
16-26 with generally accepted accounting standards as prescribed by the
16-27 American Institute of Certified Public Accountants, the
17-1 Governmental Accounting Standards Board, the United States General
17-2 Accounting Office, or other professionally recognized entities that
17-3 prescribe auditing standards.
17-4 (c) The commission may use generally recognized sampling
17-5 techniques to audit claims if the commission determines that the
17-6 use of those techniques would be cost effective and would promote
17-7 greater efficiency in administering claims for payment from the
17-8 petroleum storage tank remediation fund.
17-9 (d) The commission may adopt rules necessary to implement
17-10 this section.
17-11 SECTION 13. Section 26.3574(a)(1), Water Code, is amended to
17-12 read as follows:
17-13 (1) "Bulk facility" means a <facility, including>
17-14 pipeline terminal <terminals>, refinery terminal <terminals>, rail,
17-15 <and> barge terminal <terminals>, all <and> associated underground
17-16 and aboveground tanks, whether connected or separate, where
17-17 petroleum products are stored in bulk and from which petroleum
17-18 products are withdrawn from bulk for delivery directly <and
17-19 delivered> into a cargo tank or a barge for <used to> transport to
17-20 another location for distribution or sale in this state <those
17-21 products. This term does not include petroleum products consumed
17-22 at an electric generating facility>.
17-23 SECTION 14. Section 26.358(b), Water Code, is amended to
17-24 read as follows:
17-25 (b) The storage tank fund consists of money collected by the
17-26 commission from:
17-27 (1) fees imposed on facilities with underground or
18-1 aboveground storage tanks used for the storage of regulated
18-2 substances;
18-3 (2) the interest and penalties imposed under this
18-4 section for the late payment of those fees;
18-5 (3) funds received from cost recovery for corrective
18-6 and enforcement actions taken under this subchapter, except as
18-7 provided by Subsection (c) of this section;
18-8 (4) funds received from insurers, guarantors, or other
18-9 sources of financial responsibility; <and>
18-10 (5) funds from the federal government and other
18-11 sources for use in connection with the storage tank program;
18-12 (6) fees collected under the commission's program for
18-13 the registration of underground storage tank contractors and for
18-14 the licensing of underground storage tank installers and on-site
18-15 supervisors, as provided by Subchapter K of this code;
18-16 (7) fees collected under the commission's program for
18-17 the registration of contractors who contract to perform corrective
18-18 action, and the individuals who supervise corrective action
18-19 activities, as provided in Section 26.3573(i)(1)(C) of this
18-20 subchapter;
18-21 (8) fees collected under the commission's waste
18-22 management program, as provided by Section 26.351(f) of this
18-23 subchapter; and
18-24 (9) administrative penalties collected under Sections
18-25 26.136 and 26.353 of this code.
18-26 SECTION 15. Chapter 26, Water Code, is amended by adding
18-27 Subchapter K to read as follows:
19-1 SUBCHAPTER K. UNDERGROUND STORAGE TANK INSTALLERS
19-2 Sec. 26.431. REGISTRATION AND LICENSING OF UNDERGROUND
19-3 STORAGE TANK INSTALLERS. For the purposes of assuring that the
19-4 standards adopted under Sections 26.347, 26.348, and 26.350 of this
19-5 code are implemented, the commission may establish a regulatory
19-6 program for the registration of contractors who engage in the
19-7 business of underground storage tank installation, repair, or
19-8 removal and for the licensing of individuals who perform or
19-9 supervise the installation, repair, or removal of underground
19-10 storage tanks.
19-11 Sec. 26.432. DEFINITIONS. In this subchapter:
19-12 (1) "Certificate of registration" means the document
19-13 issued to an underground storage tank contractor under Section
19-14 26.433 of this code authorizing the contractor to engage in the
19-15 underground storage tank business in this state.
19-16 (2) "Critical juncture" means, in the case of an
19-17 installation, repair, or removal, any of the following steps:
19-18 (A) preparation of the tank bedding immediately
19-19 prior to receiving the tank;
19-20 (B) setting of the tank and the piping,
19-21 including placement of any anchoring devices, backfill to the level
19-22 of the tank, and strapping, if any;
19-23 (C) connection of piping systems to the tank;
19-24 (D) all pressure testing of the underground
19-25 storage tank, including associated piping, performed during the
19-26 installation;
19-27 (E) completion of backfill and filling of the
20-1 excavation;
20-2 (F) any time during the repair in which the
20-3 piping system is connected or reconnected to the tank;
20-4 (G) any time during the repair in which the tank
20-5 or its associated piping is tested; or
20-6 (H) any time during the removal of the tank.
20-7 (3) "Installation" means the installation of
20-8 underground storage tanks and ancillary equipment.
20-9 (4) "Installer" means a person who participates in or
20-10 supervises the installation, repair, or removal of underground
20-11 storage tanks.
20-12 (5) "License" means the document issued to an
20-13 installer or on-site supervisor under Section 26.434 of this code
20-14 authorizing the installer or supervisor to engage in the
20-15 underground storage tank business in this state.
20-16 (6) "On-site supervisor" means:
20-17 (A) a professional engineer registered to
20-18 practice in this state who has met the licensing requirements under
20-19 this subchapter; or
20-20 (B) an individual with at least two years of
20-21 active experience in the vocation of installation of underground
20-22 storage tanks, underground utilities, or other engineering
20-23 construction in this state and who meets the licensing requirements
20-24 under this subchapter.
20-25 (7) "Removal" means the process of removing and
20-26 disposing of an underground storage tank that is no longer in
20-27 service, or the process of abandoning an underground storage tank
21-1 in place after purging the tank of vapors and filling the vessel of
21-2 the tank with an inert material.
21-3 (8) "Repair" means the modification or correction of
21-4 an underground storage tank and ancillary equipment. The term does
21-5 not include:
21-6 (A) relining an underground storage tank through
21-7 the application of epoxy resins or similar materials;
21-8 (B) the performance of a tightness test to
21-9 ascertain the integrity of the tank;
21-10 (C) the maintenance and inspection of cathodic
21-11 protection devices by a corrosion expert or corrosion technician;
21-12 (D) emergency actions to halt or prevent leaks
21-13 or ruptures; or
21-14 (E) minor maintenance on ancillary aboveground
21-15 equipment.
21-16 (9) "Underground storage tank" has the meaning
21-17 assigned by Section 26.342 of this code.
21-18 Sec. 26.433. CERTIFICATE OF REGISTRATION. (a) An
21-19 underground storage tank contractor must apply to the commission
21-20 for a certificate of registration on a form prescribed by the
21-21 commission. If the contractor is a partnership or joint venture,
21-22 the contractor need not register in its own name if each partner or
21-23 joint venture is registered.
21-24 (b) A certificate of registration is valid for one year
21-25 after the date it is issued and is renewable annually on payment of
21-26 the annual fee.
21-27 (c) A certificate of registration must be posted in a
22-1 conspicuous place in the contractor's place of business.
22-2 (d) All bids, proposals, offers, and installation drawing
22-3 must prominently display the contractor's certificate of
22-4 registration number.
22-5 (e) A certificate of registration issued under this section
22-6 is not transferable.
22-7 Sec. 26.434. LICENSE REQUIRED. (a) Except as provided by
22-8 Subsection (b) of this section, an underground storage tank may not
22-9 be installed, repaired, or removed except by an underground storage
22-10 tank contractor who has an installer or an on-site supervisor who
22-11 is licensed by the commission under Section 26.437 at the site at
22-12 all times during the critical junctures of the installation,
22-13 repair, or removal.
22-14 (b) This section does not apply to the installation of a
22-15 storage tank or other facility exempt from regulation under Section
22-16 26.344, Water Code.
22-17 Sec. 26.435. POWERS AND DUTIES OF COMMISSION. (a) The
22-18 commission shall prescribe application forms for original and
22-19 renewal licenses.
22-20 (b) The commission shall adopt rules for the licensing of
22-21 installers and on-site supervisors.
22-22 (c) The commission may adopt rules relating to continuing
22-23 education requirements for installers and on-site supervisors.
22-24 Sec. 26.436. EXAMINATION. (a) At times and places
22-25 designated by the commission, the commission shall conduct an
22-26 examination of applicants for licensing as installers and on-site
22-27 supervisors.
23-1 (b) The commission shall prescribe the contents of the
23-2 examination. Questions used in the examination must be derived
23-3 from standards, instructions, and recommended practices published
23-4 by organizations with expertise in various aspects of
23-5 installation, removal, and repair of underground storage tanks,
23-6 including the:
23-7 (1) Petroleum Equipment Institute;
23-8 (2) American Petroleum Institute;
23-9 (3) Steel Tank Institute;
23-10 (4) National Association of Corrosion Engineers;
23-11 (5) Fiberglass Petroleum Tank and Pipe Institute; and
23-12 (6) National Fire Protection Association.
23-13 (c) The commission shall determine standards for acceptable
23-14 performance on the examination.
23-15 (d) If requested by a license applicant who fails the
23-16 examination, the commission shall provide to the applicant an
23-17 analysis of the applicant's performance on the examination.
23-18 Sec. 26.437. LICENSE. (a) The commission shall issue an
23-19 installer or on-site supervisor license to an applicant who:
23-20 (1) is at least 18 years of age;
23-21 (2) meets the application requirements prescribed by
23-22 commission rule, including experience in installation of
23-23 underground storage tanks, underground utilities, or other
23-24 engineering construction in this state, not to exceed two years of
23-25 active experience;
23-26 (3) passes the licensing examination;
23-27 (4) pays the application, examination, and licensing
24-1 fees; and
24-2 (5) meets reasonable training requirements as
24-3 determined by the commission.
24-4 (b) A license issued under this section is valid throughout
24-5 this state but is not assignable or transferable.
24-6 (c) A license is valid for one year and may be renewed
24-7 annually on or before February 1 on payment of the required renewal
24-8 fee and presentation of evidence satisfactory to the commission of
24-9 compliance with any continuing education requirements adopted by
24-10 the commission.
24-11 (d) If a licensee fails to renew the license by the required
24-12 date, the licensee may renew the license on payment of the renewal
24-13 fee and a late fee set by the commission. If the license is not
24-14 renewed earlier than one year after the date on which the license
24-15 expired, the licensee must retake the licensing examination
24-16 administered by the commission.
24-17 Sec. 26.438. FEES. The commission shall charge necessary
24-18 fees to defray the costs of administering this subchapter, which
24-19 shall be deposited in the state treasury to the credit of the
24-20 storage tank fund and shall be used by the commission in
24-21 administering this subchapter. The fees shall be established by
24-22 rule of the commission in an amount sufficient to recover the
24-23 reasonable costs of administering this section but not to exceed
24-24 the following fee schedule:
24-25 (1) examination ................................. $ 50
24-26 (2) initial license application ................. $200
24-27 (3) annual license renewal ...................... $175
25-1 (4) late renewal ................................ $ 25
25-2 (5) duplicate license ........................... $ 10
25-3 (6) certificate of registration application ..... $ 50
25-4 (7) certificate of registration issuance ........ $100
25-5 (8) certificate of registration issuance
25-6 renewal ................................... $ 75
25-7 (9) duplicate certificate or license ............ $ 10
25-8 (10) application to change certificate .......... $ 70
25-9 Sec. 26.439. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR
25-10 CERTIFICATION OF REGISTRATION; REINSTATEMENT. (a) The commission
25-11 may deny, suspend, revoke, or reinstate a license or certificate of
25-12 registration.
25-13 (b) The commission shall adopt rules establishing the ground
25-14 for denial, suspension, revocation, or reinstatement of a license
25-15 or certificate of registration, and establishing procedures for
25-16 disciplinary actions.
25-17 (c) Proceedings relating to the suspension or revocation of
25-18 a license or certificate of registration issued under this section
25-19 are subject to the Administrative Procedure and Texas Register Act
25-20 (Article 6252-13a, Vernon's Texas Civil Statutes).
25-21 (d) A person whose license or certificate of registration
25-22 has been revoked may apply for a new license or certificate of
25-23 registration after the expiration of one year from the date of the
25-24 revocation.
25-25 Sec. 26.440. Penalties. (a) A person commits an offense if
25-26 the person supervises the installation, repair, or removal of an
25-27 underground storage tank in a manner that fails to comply with
26-1 Section 26.434 of this code.
26-2 (b) An offense under Subsection (a) of this section is a
26-3 Class A misdemeanor.
26-4 (c) A person committing an offense under Subsection (a) of
26-5 this section may be assessed a civil penalty by the commission in
26-6 an amount not to exceed $2,500 for each day of violation.
26-7 (d) If an owner fails to comply with Section 26.434 of this
26-8 code, or a rule adopted by the commission to implement this
26-9 subchapter, the person may be assessed a civil penalty by the
26-10 commission in an amount not to exceed $2,500 for each day of the
26-11 violation.
26-12 SECTION 16. Chapter 244, Acts of the 71st Legislature,
26-13 Regular Session, 1989 (Article 8900, Vernon's Texas Civil
26-14 Statutes), is repealed.
26-15 SECTION 17. A license or registration issued under Chapter
26-16 244, Acts of the 71st Legislature, Regular Session, 1989 (Article
26-17 8900, Vernon's Texas Civil Statutes), is valid for the term of the
26-18 license or registration under that law on and after the effective
26-19 date of this Act.
26-20 SECTION 18. The change in law made by Section 26.3512(e),
26-21 Water Code, as amended by this Act, applies only to an owner or
26-22 operator who undertakes corrective action under Subchapter I, Water
26-23 Code, on or after the effective date of this Act.
26-24 SECTION 19. The importance of this legislation and the
26-25 crowded condition of the calendars in both houses create an
26-26 emergency and an imperative public necessity that the
26-27 constitutional rule requiring bills to be read on three several
27-1 days in each house be suspended, and this rule is hereby suspended,
27-2 and that this Act take effect and be in force from and after its
27-3 passage, and it is so enacted.