1-1 By: Sims S.B. No. 1475
1-2 (In the Senate - Filed May 4, 1993; May 5, 1993, read first
1-3 time and referred to Committee on Natural Resources; May 14, 1993,
1-4 reported adversely, with favorable Committee Substitute by the
1-5 following vote: Yeas 8, Nays 0; May 14, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Sims x
1-9 Truan x
1-10 Armbrister x
1-11 Barrientos x
1-12 Bivins x
1-13 Brown x
1-14 Carriker x
1-15 Lucio x
1-16 Montford x
1-17 Ratliff x
1-18 Shelley x
1-19 COMMITTEE SUBSTITUTE FOR S.B. No. 1475 By: Sims
1-20 A BILL TO BE ENTITLED
1-21 AN ACT
1-22 relating to the petroleum storage tank program; creating an offense
1-23 and providing penalties.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Section 26.342, Water Code, is amended by
1-26 amending Subsdivisions (9), (10), and (12) to read as follows:
1-27 (9) "Petroleum product" means a regulated substance
1-28 <petroleum product> that is obtained from distilling and processing
1-29 crude oil and that is capable of being used as a fuel for the
1-30 propulsion of a motor vehicle or aircraft, including motor
1-31 gasoline, gasohol, other alcohol blended fuels, aviation gasoline,
1-32 kerosene, distillate fuel oil, and #1 and #2 diesel. The term does
1-33 not include naphtha-type jet fuel, kerosene-type jet fuel, <or> a
1-34 petroleum product destined for use in chemical manufacturing or as
1-35 a feedstock of that manufacturing, or a petroleum product consumed
1-36 at an electric generating facility.
1-37 (10) "Petroleum storage tank" means:
1-38 (A) any one or combination of aboveground
1-39 storage tanks and any connecting pipes that contain petroleum
1-40 products and that are regulated by the commission; or
1-41 (B) any one or combination of underground
1-42 storage tanks and any connecting underground pipes that contain
1-43 petroleum products and that are regulated by the commission.
1-44 (12) "Release" means any spilling (including
1-45 overfills), leaking, emitting, discharging, escaping, leaching, or
1-46 disposing from an underground storage tank or aboveground storage
1-47 tank into groundwater, surface water, <or> subsurface soils, or
1-48 onto the surface of the ground.
1-49 SECTION 2. Subsections (b), (e), (f), and (g), Section
1-50 26.344, Water Code, are amended to read as follows:
1-51 (b) A storage tank is exempt from regulation under this
1-52 subchapter if the sole or principal substance in the tank is a
1-53 hazardous substance and the tank is located:
1-54 (1) in an underground area, including a basement,
1-55 cellar, mineworking, drift, shaft, or tunnel; and
1-56 (2) on or above the surface of a substantially
1-57 impervious, nonearthen <the> floor of that area.
1-58 (e) Except for Section 26.351 and Sections 26.3573(d)(3) and
1-59 (e) of this subchapter, in-ground hydraulic lifts that use a
1-60 compressed air/hydraulic fluid system and hold less than 100
1-61 gallons of hydraulic fluid <oil>, if exempt by the federal
1-62 Environmental Protection Agency, are exempt under this subchapter.
1-63 (f) An aboveground storage tank that is located at or is
1-64 part of a petrochemical plant, a petroleum refinery, an electric
1-65 generating facility, or a bulk facility <as that term is defined by
1-66 Section 26.3574(a) of this code> is exempt from regulation under
1-67 this subchapter but is not exempt for purposes of the delivery fee
1-68 imposed under Section 26.3574 of this code. An aboveground storage
2-1 tank at a bulk facility is exempt under this subsection only if the
2-2 bulk facility meets the definition in Section 26.3574(a) of this
2-3 code and if the bulk facility is properly permitted by the
2-4 comptroller under Section 26.3574(g) of this code.
2-5 (g) Costs incurred as a result of a release from a storage
2-6 tank system owned, operated, or maintained by a common carrier
2-7 railroad are not reimbursable pursuant to the provisions of this
2-8 subchapter <section>. Common carrier railroads are exempt from the
2-9 delivery fees collected pursuant to the provisions of Section
2-10 26.3574 of this code <Act>.
2-11 SECTION 3. Section 26.351, Water Code, is amended by
2-12 amending Subsection (d) and adding Subsections (f), (g), and (h) to
2-13 read as follows:
2-14 (d) The commission may adopt rules concerning circumstances
2-15 under which the commission will perform corrective action under
2-16 this subchapter. The rules may include:
2-17 (1) a reasonable limitation on the extent and nature
2-18 of the corrective action that the commission will undertake, which
2-19 may be based on site-specific risks to human health or the
2-20 environment;
2-21 (2) minimum requirements, including demonstration of
2-22 financial need and other requirements, that must be met by an owner
2-23 or operator, or by others, before the commission will undertake
2-24 corrective action; and
2-25 (3) procedures for pursuing enforcement and cost
2-26 recovery against owners or operators, and others, who fail or
2-27 refuse to demonstrate compliance with requirements adopted by the
2-28 commission under Subdivision (2) of this subsection <retain agents
2-29 to take corrective action it considers necessary under this
2-30 section. The agents shall operate under the direction of the
2-31 executive director. Any expenses arising from corrective action
2-32 taken by the commission or the executive director may be paid from
2-33 the storage tank fund>.
2-34 (f) The commission shall adopt rules for the registration
2-35 and regulation of the handling, transportation, treatment, storage,
2-36 and disposal of waste, media, and debris generated from the cleanup
2-37 of a site where petroleum storage tanks are located. Such rules
2-38 shall establish appropriate limitations to assure that the waste,
2-39 media, and debris will be managed in a manner adequate to protect
2-40 human health and the environment. In addition, the commission will
2-41 take all possible action to assure the cost-effectiveness of all
2-42 aspects of the management of the waste, media, and debris.
2-43 (g) The commission may adopt rules authorizing the storage,
2-44 treatment, or disposal of nonhazardous waste, media, and debris
2-45 from sources other than petroleum storage tank sites when such
2-46 waste, media, and debris consist only of petroleum contamination
2-47 with similar chemical and physical properties to the materials
2-48 authorized for handling by registrations issued pursuant to
2-49 Subsection (f) of this section. The commission shall require
2-50 notification and shall impose restrictions sufficient to assure
2-51 that such waste management is protective of human health and the
2-52 environment.
2-53 (h) The commission may establish by rule a schedule of fees
2-54 to cover the costs of administering the program of registration of
2-55 persons involved in waste management activities under this section,
2-56 including applications processing. The funds collected from the
2-57 fees shall be deposited in the state treasury to the credit of the
2-58 storage tank fund.
2-59 SECTION 4. Section 26.3511, Water Code, is amended by adding
2-60 Subsection (c) to read as follows:
2-61 (c) In cases in which the commission undertakes corrective
2-62 action under this section, the state, the commission, and their
2-63 agents and employees may enter properties where contamination has
2-64 resulted from releases of regulated substances from underground
2-65 storage tanks or aboveground storage tanks and may conduct
2-66 corrective action activities on those properties.
2-67 SECTION 5. Section 26.353, Water Code, is amended to read as
2-68 follows:
2-69 Sec. 26.353. COMMISSION ORDERS. (a) The commission may
2-70 issue orders to enforce this subchapter and rules adopted under
3-1 this subchapter in accordance with the procedures applicable to
3-2 orders issued under Section 26.019 of this code. The commission's
3-3 authority in issuing orders under this section includes the
3-4 authority granted under this chapter, including Subchapter D.
3-5 (b) The groundwater protection cleanup program established
3-6 under Section 26.3572 of this code does not affect the commission's
3-7 right to pursue enforcement orders with or without administrative
3-8 penalties if any person <an owner or operator> violates this code,
3-9 an order issued under this subchapter, or a rule adopted by the
3-10 commission.
3-11 SECTION 6. Subsection (e), Section 26.354, Water Code, is
3-12 amended to read as follows:
3-13 (e) The executive director may issue orders under this
3-14 section to the following persons:
3-15 (1) the owner of an underground storage tank or
3-16 aboveground storage tank; <or>
3-17 (2) the operator of an underground storage tank or
3-18 aboveground storage tank; or
3-19 (3) any other person who is determined by the
3-20 executive director to be responsible for a release of a regulated
3-21 substance from an underground storage tank or an aboveground
3-22 storage tank.
3-23 SECTION 7. Section 26.355, Water Code, is amended to read as
3-24 follows:
3-25 Sec. 26.355. RECOVERY OF COSTS. (a) If the commission has
3-26 incurred any costs in undertaking corrective action or enforcement
3-27 action with respect to the release of regulated substances from an
3-28 underground or aboveground storage tank, the owner or the operator
3-29 of the tank, or any other person determined by the commission to be
3-30 responsible for the release, is liable to the state for all
3-31 reasonable costs of those corrective and enforcement actions and
3-32 for court costs and reasonable attorney's fees.
3-33 (b) An owner or operator of an underground or aboveground
3-34 storage tank from which there is a release of a regulated substance
3-35 <is released> is liable to the state unless the release was caused
3-36 by:
3-37 (1) an act of God;
3-38 (2) an act of war;
3-39 (3) the negligence of the State of Texas or the United
3-40 States; or
3-41 (4) an act or omission of a third party.
3-42 (c) The state's right to recover under this section arises
3-43 whether or not the commission:
3-44 (1) uses funds from the storage tank fund, <or> the
3-45 petroleum storage tank remediation fund, or any other appropriate
3-46 source of funds; or
3-47 (2) receives or will receive funds from the state, the
3-48 federal government, or any other source for the purpose of
3-49 corrective action or enforcement.
3-50 (d) Except as provided by Subsections (e)-(g) of this
3-51 section, if <If> the commission uses money from the petroleum
3-52 storage tank remediation fund for corrective action or enforcement
3-53 and if the costs are recovered under this section, the commission
3-54 may not recover more than the amount of the applicable owner or
3-55 operator contribution described by Section 26.3512(e) of this code
3-56 from an eligible owner or operator for corrective action for each
3-57 occurrence.
3-58 (e) Notwithstanding the limitations on cost recovery under
3-59 Subsection (d) of this section, if the commission has used money
3-60 from any source for the costs of enforcement action or corrective
3-61 action in response to a release of regulated substances from an
3-62 underground or aboveground storage tank, the eligibility of the
3-63 owner, operator, or other person for reimbursement under this
3-64 subchapter may be limited or denied by the commission, and the
3-65 commission may pursue recovery of the costs under this subsection
3-66 and Subsections (f) and (g) of this section.
3-67 (f) If the owner or operator of the tank, or any other
3-68 person determined to be responsible for the release, fails or
3-69 refuses to comply with the commission's requirements established
3-70 under Section 26.351(d) of this code, the commission is entitled to
4-1 recover up to the amount spent by the commission and any
4-2 enforcement action costs and any administrative and civil penalties
4-3 applicable to the release.
4-4 (g) If the owner or operator of the tank, or any other
4-5 person determined to be responsible for the release, has submitted
4-6 signed or certified documentation indicating compliance with the
4-7 commission's requirements established under Section 26.351(d) of
4-8 this code and this documentation is subsequently determined by the
4-9 commission to be fraudulent, knowingly inaccurate, or otherwise
4-10 intentionally not in conformance with the requirements established
4-11 under Section 26.351(d) of this code, the commission is entitled to
4-12 recover up to double the total amount spent by the commission and
4-13 any enforcement action costs and any administrative and civil
4-14 penalties applicable to the release.
4-15 (h) An indemnification, hold harmless, or similar agreement
4-16 or conveyance is not effective to transfer the liability imposed
4-17 under this section from the owner or operator of an underground or
4-18 aboveground storage tank or from a person who may be liable for a
4-19 release or threat of release to any other person. This section
4-20 does not bar any agreement to insure, hold harmless, or indemnify a
4-21 party to the agreement for any liability under this section.
4-22 (i) <(f)> This section does not bar a cause of action that
4-23 an owner or operator or any other person subject to liability under
4-24 this section or a guarantor has or would have by reason of
4-25 subrogation or otherwise against any person.
4-26 (j) <(g)> At the request of the commission, the attorney
4-27 general shall initiate court proceedings to recover costs under
4-28 this section.
4-29 (k) <(h)> Except as provided by Subsection (l) <(i)> of this
4-30 section, money recovered in a court proceeding under this section
4-31 shall be deposited in the State Treasury to the credit of the
4-32 storage tank fund.
4-33 (l) <(i)> If the commission uses money from the petroleum
4-34 storage tank remediation fund for corrective action or enforcement
4-35 as provided by this subchapter, money recovered in a court
4-36 proceeding under this section shall be deposited in the state
4-37 treasury to the credit of the petroleum storage tank remediation
4-38 fund.
4-39 SECTION 8. Subsections (a), (b), and (c), Section 26.356,
4-40 Water Code, are amended to read as follows:
4-41 (a) For the purposes of developing or assisting in the
4-42 development of a regulation, conducting a study, or enforcing this
4-43 subchapter, an owner or operator of an underground storage tank or
4-44 aboveground storage tank, on the request of the commission, shall:
4-45 (1) furnish information relating to the tank,
4-46 including tank equipment and contents; and
4-47 (2) permit a designated agent or employee of the
4-48 commission at all reasonable times to have access to and to copy
4-49 all records relating to the tank.
4-50 (b) For the purposes of developing or assisting in the
4-51 development of a regulation, conducting a study, conducting
4-52 corrective action activities, or enforcing this subchapter, the
4-53 commission, its designated agent, or employee may:
4-54 (1) enter at reasonable times an establishment or
4-55 place in which an underground storage tank or aboveground storage
4-56 tank is located or any property that has been or is suspected to be
4-57 contaminated by either a release from the tank or waste generated
4-58 from the tank;
4-59 (2) inspect and obtain samples of any <a> regulated
4-60 substance contained in the tank or of any waste generated from the
4-61 use of the tank from any person; <and>
4-62 (3) conduct monitoring or testing of the tank,
4-63 associated equipment, contents, or surrounding soils, air, surface
4-64 water, or groundwater; and
4-65 (4) perform any corrective action authorized by this
4-66 subchapter.
4-67 (c) The commission may order an owner or an operator of an
4-68 underground storage tank or aboveground storage tank to conduct
4-69 monitoring, <and> testing, corrective action, and other activities
4-70 consistent with the purposes of this subchapter if the commission
5-1 finds that there is reasonable cause to believe that a release has
5-2 occurred or could occur in the area in which the underground or
5-3 aboveground storage tank is located.
5-4 SECTION 9. Subsection (d), Section 26.3571, Water Code, is
5-5 amended to read as follows:
5-6 (d) In determining whether an owner or operator is in
5-7 compliance with this subchapter, the commission may consider such
5-8 factors as the owner's or operator's compliance with tank
5-9 registration, annual facility fee payments, financial
5-10 responsibility, tank standards, release detection, closure
5-11 standards, release <and> reporting, and corrective action
5-12 requirements.
5-13 SECTION 10. Subsections (d), (f), (g), (h), (i), and (k),
5-14 Section 26.3573, Water Code, are amended to read as follows:
5-15 (d) The commission may use the money in the petroleum
5-16 storage tank remediation fund to pay:
5-17 (1) necessary expenses associated with the
5-18 administration of the petroleum storage tank remediation fund and
5-19 the groundwater protection cleanup program, not to exceed an amount
5-20 equal to five <three> percent of the gross receipts of that fund,
5-21 provided that the increment between two and three percent of the
5-22 gross receipts may be used only to pay administrative expenses
5-23 associated with regulating petroleum storage tanks, reimbursing
5-24 eligible owners and operators, and disposing of contaminated soils;
5-25 (2) expenses associated with investigation, cleanup,
5-26 or corrective action measures performed in response to a release or
5-27 threatened release from a petroleum storage tank, whether those
5-28 expenses are incurred by the commission or pursuant to a contract
5-29 between a contractor and an eligible owner or operator as
5-30 authorized by this subchapter; and
5-31 (3) subject to the conditions of Subsection (e) of
5-32 this section, expenses associated with investigation, cleanup, or
5-33 corrective action measures performed in response to a release or
5-34 threatened release of hydraulic fluid or spent oil from hydraulic
5-35 lift systems or tanks located at a vehicle service and fueling
5-36 facility and used as part of the operations of that facility.
5-37 (f) The commission, in accordance with this subchapter and
5-38 rules adopted under this subchapter, may:
5-39 (1) contract directly with a person to perform
5-40 corrective action and pay the contractor from the petroleum storage
5-41 tank remediation fund;
5-42 (2) reimburse an eligible owner or operator from the
5-43 petroleum storage tank remediation fund for the reasonable and
5-44 allowable expenses of corrective action performed on or after
5-45 September 1, 1987; or
5-46 (3) pay the reasonable and allowable portions of the
5-47 claim of a person who has contracted with an eligible owner or
5-48 operator to perform corrective action with funds from the petroleum
5-49 storage tank remediation fund, provided that the eligible owner or
5-50 operator has authorized the payment in writing.
5-51 (g) The commission shall administer the petroleum storage
5-52 tank remediation fund and by rule adopt guidelines and procedures
5-53 for the use of and eligibility for that fund as the commission
5-54 finds necessary to:
5-55 (1) make the most efficient use of the money
5-56 available, including:
5-57 (A) establishing priorities for payments from
5-58 the fund; and
5-59 (B) suspending payments from the fund if
5-60 necessary; and
5-61 (2) provide the most effective protection to the
5-62 environment and provide for the public health and safety.
5-63 (h) Consistent with the objectives provided under Subsection
5-64 (g) of this section and this subchapter, the commission may by rule
5-65 adopt:
5-66 (1) requirements or guidelines the commission
5-67 considers necessary for determining the amounts that may be paid
5-68 from the petroleum storage tank remediation fund, which may include
5-69 criteria for determining and establishing the eligibility,
5-70 allowability, and reasonableness of various types of corrective
6-1 action expenses as a condition for reimbursement;
6-2 (2) requirements or guidelines concerning the
6-3 procedures, forms, and documentation required for the processing of
6-4 claims and reimbursements <reimbursement> for expenses incurred by
6-5 an eligible owner or operator and covered under Section 26.3512(d)
6-6 of this code; <and>
6-7 (3) procedures for reviewing and evaluating claims for
6-8 reimbursement from the petroleum storage tank remediation fund and
6-9 criteria for denying reimbursement for all or portions of a claim;
6-10 and
6-11 (4) procedures and criteria for reviewing, evaluating,
6-12 and auditing any prior payments made from the petroleum storage
6-13 tank remediation fund, either on petition or on the commission's
6-14 own motion, and for the cost recovery of any overpayments or
6-15 erroneous payments made after the fiscal year beginning September
6-16 1, 1992, the audit procedures to be based on the rules and law in
6-17 effect at the time the work for which payment was made was
6-18 performed <minimum qualifications the commission considers
6-19 necessary for a person with whom an eligible owner or operator may
6-20 contract to participate in corrective action>.
6-21 (i)(1) The commission shall ensure that corrective action
6-22 activities under this subchapter are conducted in accordance with
6-23 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
6-24 Civil Statutes) and that plans and specifications, as appropriate,
6-25 are prepared by a registered professional engineer. The commission
6-26 may:
6-27 (A) implement by rule a registration program for
6-28 persons who contract with an owner or operator of an underground
6-29 storage tank or aboveground storage tank, or with any other person,
6-30 to perform corrective action construction activities <and may
6-31 require registration and the use of registered contractors as a
6-32 prerequisite to receiving money from the petroleum storage tank
6-33 remediation fund for corrective action> under this subchapter;
6-34 (B) adopt minimum professional qualifications
6-35 that the commission considers necessary for a person with whom an
6-36 eligible owner or operator may contract to participate in
6-37 corrective action construction activities;
6-38 (C) require registration and the use of
6-39 registered contractors and may require the use of qualified
6-40 registered professional engineers as a prerequisite to the payment
6-41 of money from the petroleum storage tank remediation fund for
6-42 corrective action under this subchapter; and
6-43 (D) establish by rule a schedule of fees and
6-44 charges to cover the costs of administering the registration
6-45 program, including fees for application processing, printing
6-46 certificates, conducting examinations, and other similar
6-47 activities, subject to Section 26.438 of this code, and the funds
6-48 collected from the fees and charges shall be deposited in the state
6-49 treasury to the credit of the storage tank fund.
6-50 (2) A person who violates an order or rule adopted by
6-51 the commission under this subsection is subject to Section 26.353
6-52 of this code.
6-53 (3) The registration program and the provision for
6-54 establishment of minimum professional qualifications established
6-55 under this subsection do not apply to registered professional
6-56 engineers.
6-57 (k)(1) The commission shall satisfy a claim for payment that
6-58 is eligible to be paid under this subchapter and the rules adopted
6-59 under this subchapter made by a contractor, from the petroleum
6-60 storage tank remediation fund as provided by Chapter 82, Acts of
6-61 the 69th Legislature, Regular Session, 1985 (Article 601f, Vernon's
6-62 Texas Civil Statutes), regardless of whether the commission:
6-63 (A) <(1)> contracts directly for the goods or
6-64 services; or
6-65 (B) <(2)> pays a claim under a contract executed
6-66 by a petroleum storage tank owner or operator.
6-67 (2) If at any time the petroleum storage tank
6-68 remediation fund has insufficient balances to satisfy claims
6-69 presented against the fund, Chapter 82, Acts of the 69th
6-70 Legislature, Regular Session, 1985 (Article 601f, Vernon's Texas
7-1 Civil Statutes), is suspended until there are sufficient funds to
7-2 pay the claims or until September 1, 1995, whichever is earlier.
7-3 SECTION 11. Subdivision (1), Subsection (a), Section
7-4 26.3574, Water Code, is amended to read as follows:
7-5 (1) "Bulk facility" means a <facility, including>
7-6 pipeline terminal <terminals>, refinery terminal <terminals>, rail
7-7 terminal, or <and> barge terminal <terminals>, including all <and
7-8 associated underground and aboveground tanks, whether connected or
7-9 separate, where petroleum products are stored in bulk and from
7-10 which petroleum products are withdrawn from bulk for delivery
7-11 directly <and delivered> into a cargo tank or a barge for <used to>
7-12 transport to another location for distribution or sale in this
7-13 state <those products>. This term does not include petroleum
7-14 products consumed at an electric generating facility.
7-15 SECTION 12. Subsection (b), Section 26.358, Water Code, is
7-16 amended to read as follows:
7-17 (b) The storage tank fund consists of money collected by the
7-18 commission from:
7-19 (1) fees imposed on facilities with underground or
7-20 aboveground storage tanks used for the storage of regulated
7-21 substances;
7-22 (2) the interest and penalties imposed under this
7-23 section for the late payment of those fees;
7-24 (3) funds received from cost recovery for corrective
7-25 and enforcement actions taken under this subchapter, except as
7-26 provided by Subsection (c) of this section;
7-27 (4) funds received from insurers, guarantors, or other
7-28 sources of financial responsibility; <and>
7-29 (5) funds from the federal government and other
7-30 sources for use in connection with the storage tank program;
7-31 (6) fees collected under the commission's program for
7-32 the registration of underground storage tank contractors and for
7-33 the licensing of underground storage tank installers and on-site
7-34 supervisors, as provided by Subchapter K of this chapter;
7-35 (7) fees collected under the commission's program for
7-36 the registration of contractors who contract to perform corrective
7-37 action, and the individuals who supervise corrective action
7-38 activities, as provided in Section 26.3573(i)(1)(C) of this code;
7-39 (8) fees collected under the commission's waste
7-40 management program, as provided by Sections 26.351(f) and (h) of
7-41 this code; and
7-42 (9) administrative penalties collected under Sections
7-43 26.136 and 26.353 of this code.
7-44 SECTION 13. Chapter 26, Water Code, is amended by adding
7-45 Subchapter K to read as follows:
7-46 SUBCHAPTER K. UNDERGROUND STORAGE TANK INSTALLERS
7-47 Sec. 26.431. REGISTRATION AND LICENSING OF UNDERGROUND
7-48 STORAGE TANK INSTALLERS. For the purposes of assuring that the
7-49 standards adopted under Sections 26.347, 26.348, and 26.350 of this
7-50 code are implemented, the commission may establish a regulatory
7-51 program for the registration of contractors who engage in the
7-52 business of underground storage tank installation, repair, or
7-53 removal and for the licensing of individuals who perform or
7-54 supervise the installation, repair, or removal of underground
7-55 storage tanks.
7-56 Sec. 26.432. DEFINITIONS. In this subchapter:
7-57 (1) "Certificate of registration" means the document
7-58 issued to an underground storage tank contractor under Section
7-59 26.433 of this code authorizing the contractor to engage in the
7-60 underground storage tank business in this state.
7-61 (2) "Critical juncture" means, in the case of an
7-62 installation, repair, or removal, any of the following steps:
7-63 (A) preparation of the tank bedding immediately
7-64 prior to receiving the tank;
7-65 (B) setting of the tank and the piping,
7-66 including placement of any anchoring devices, backfill to the level
7-67 of the tank, and strapping, if any;
7-68 (C) connection of piping systems to the tank;
7-69 (D) all pressure testing of the underground
7-70 storage tank, including associated piping, performed during the
8-1 installation;
8-2 (E) completion of backfill and filling of the
8-3 excavation;
8-4 (F) any time during the repair in which the
8-5 piping system is connected or reconnected to the tank;
8-6 (G) any time during the repair in which the tank
8-7 or its associated piping is tested; or
8-8 (H) any time during the removal of the tank.
8-9 (3) "Installation" means the installation of
8-10 underground storage tanks and ancillary equipment.
8-11 (4) "Installer" means a person who participates in or
8-12 supervises the installation, repair, or removal of underground
8-13 storage tanks.
8-14 (5) "License" means the document issued to an
8-15 installer or on-site supervisor under Section 26.437 of this code
8-16 authorizing the installer or supervisor to engage in the
8-17 underground storage tank business in this state.
8-18 (6) "On-site supervisor" means:
8-19 (A) a professional engineer registered to
8-20 practice in this state who has met the licensing requirements under
8-21 this subchapter; or
8-22 (B) an individual with at least two years of
8-23 active experience in the vocation of installation of underground
8-24 storage tanks, underground utilities, or other engineering
8-25 construction in this state and who meets the licensing requirements
8-26 under this subchapter.
8-27 (7) "Removal" means the process of removing and
8-28 disposing of an underground storage tank that is no longer in
8-29 service or the process of abandoning an underground storage tank in
8-30 place after purging the tank of vapors and filling the vessel of
8-31 the tank with an inert material.
8-32 (8) "Repair" means the modification or correction of
8-33 an underground storage tank and ancillary equipment. The term does
8-34 not include:
8-35 (A) relining an underground storage tank through
8-36 the application of epoxy resins or similar materials;
8-37 (B) the performance of a tightness test to
8-38 ascertain the integrity of the tank;
8-39 (C) the maintenance and inspection of cathodic
8-40 protection devices by a corrosion expert or corrosion technician;
8-41 (D) emergency actions to halt or prevent leaks
8-42 or ruptures; or
8-43 (E) minor maintenance on ancillary aboveground
8-44 equipment.
8-45 (9) "Underground storage tank" has the meaning
8-46 assigned by Section 26.342 of this code.
8-47 Sec. 26.433. CERTIFICATE OF REGISTRATION. (a) An
8-48 underground storage tank contractor must apply to the commission
8-49 for a certificate of registration on a form prescribed by the
8-50 commission. If the contractor is a partnership or joint venture,
8-51 the contractor need not register in its own name if each partner or
8-52 joint venture is registered.
8-53 (b) A certificate of registration is valid for one year
8-54 after the date it is issued and is renewable annually on payment of
8-55 the annual fee.
8-56 (c) A certificate of registration must be posted in a
8-57 conspicuous place in the contractor's place of business.
8-58 (d) All bids, proposals, offers, and installation drawings
8-59 must prominently display the contractor's certificate of
8-60 registration number.
8-61 (e) A certificate of registration issued under this section
8-62 is not transferable.
8-63 Sec. 26.434. LICENSE REQUIRED. (a) Except as provided by
8-64 Subsection (b) of this section, an underground storage tank may not
8-65 be installed, repaired, or removed except by an underground storage
8-66 tank contractor who has an installer or an on-site supervisor who
8-67 is licensed by the commission under Section 26.437 of this code at
8-68 the site at all times during the critical junctures of the
8-69 installation, repair, or removal.
8-70 (b) This section does not apply to the installation of a
9-1 storage tank or other facility exempt from regulation under Section
9-2 26.344 of this code.
9-3 Sec. 26.435. POWERS AND DUTIES OF COMMISSION. (a) The
9-4 commission shall prescribe application forms for original and
9-5 renewal licenses.
9-6 (b) The commission shall adopt rules for the licensing of
9-7 installers and on-site supervisors.
9-8 (c) The commission may adopt rules relating to continuing
9-9 education requirements for installers and on-site supervisors.
9-10 Sec. 26.436. EXAMINATION. (a) At times and places
9-11 designated by the commission, the commission shall conduct an
9-12 examination of applicants for licensing as installers and on-site
9-13 supervisors.
9-14 (b) The commission shall prescribe the contents of the
9-15 examination. Questions used in the examination must be derived
9-16 from standards, instructions, and recommended practices published
9-17 by organizations with expertise in various aspects of
9-18 installation, removal, and repair of underground storage tanks,
9-19 including the:
9-20 (1) Petroleum Equipment Institute;
9-21 (2) American Petroleum Institute;
9-22 (3) Steel Tank Institute;
9-23 (4) National Association of Corrosion Engineers;
9-24 (5) Fiberglass Petroleum Tank and Pipe Institute; and
9-25 (6) National Fire Protection Association.
9-26 (c) The commission shall determine standards for acceptable
9-27 performance on the examination.
9-28 (d) If requested by a license applicant who fails the
9-29 examination, the commission shall provide to the applicant an
9-30 analysis of the applicant's performance on the examination.
9-31 Sec. 26.437. LICENSE. (a) The commission shall issue an
9-32 installer or on-site supervisor license to an applicant who:
9-33 (1) is at least 18 years of age;
9-34 (2) meets the application requirements prescribed by
9-35 commission rule, including experience in installation of
9-36 underground storage tanks, underground utilities, or other
9-37 engineering construction in this state, not to exceed two years of
9-38 active experience;
9-39 (3) passes the licensing examination;
9-40 (4) pays the application, examination, and licensing
9-41 fees; and
9-42 (5) meets reasonable training requirements as
9-43 determined by the commission.
9-44 (b) A license issued under this section is valid throughout
9-45 this state but is not assignable or transferable.
9-46 (c) A license is valid for one year and may be renewed
9-47 annually on or before February 1 on payment of the required renewal
9-48 fee and presentation of evidence satisfactory to the commission of
9-49 compliance with any continuing education requirements adopted by
9-50 the commission.
9-51 (d) If a licensee fails to renew the license by the required
9-52 date, the licensee may renew the license on payment of the renewal
9-53 fee and a late fee set by the commission. If the license is not
9-54 renewed earlier than one year after the date on which the license
9-55 expired, the licensee must retake the licensing examination
9-56 administered by the commission.
9-57 Sec. 26.438. FEES. The commission shall charge necessary
9-58 fees to defray the costs of administering this subchapter, which
9-59 shall be deposited in the state treasury to the credit of the
9-60 storage tank fund and shall be used by the commission in
9-61 administering this subchapter. The fees shall be established by
9-62 rule of the commission in an amount sufficient to recover the
9-63 reasonable costs of administering this section but not to exceed
9-64 the following fee schedule:
9-65 (1) examination ................................. $ 50
9-66 (2) initial license application ................. $200
9-67 (3) annual license renewal ...................... $175
9-68 (4) late renewal ................................ $ 25
9-69 (5) duplicate license ........................... $ 10
9-70 (6) certificate of registration application ..... $ 50
10-1 (7) certificate of registration issuance ........ $100
10-2 (8) certificate of registration issuance
10-3 renewal ................................... $ 75
10-4 (9) duplicate certificate or license ............ $ 10
10-5 (10) application to change certificate .......... $ 70
10-6 Sec. 26.439. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR
10-7 CERTIFICATION OF REGISTRATION; REINSTATEMENT. (a) The commission
10-8 may deny, suspend, revoke, or reinstate a license or certificate of
10-9 registration.
10-10 (b) The commission shall adopt rules establishing the ground
10-11 for denial, suspension, revocation, or reinstatement of a license
10-12 or certificate of registration, and establishing procedures for
10-13 disciplinary actions.
10-14 (c) Proceedings relating to the suspension or revocation of
10-15 a license or certificate of registration issued under this section
10-16 are subject to the Administrative Procedure and Texas Register Act
10-17 (Article 6252-13a, Vernon's Texas Civil Statutes).
10-18 (d) A person whose license or certificate of registration
10-19 has been revoked may apply for a new license or certificate of
10-20 registration after the expiration of one year from the date of the
10-21 revocation.
10-22 Sec. 26.440. Penalties. (a) A person commits an offense if
10-23 the person supervises the installation, repair, or removal of an
10-24 underground storage tank in a manner that fails to comply with
10-25 Section 26.434 of this code.
10-26 (b) An offense under Subsection (a) of this section is a
10-27 Class A misdemeanor.
10-28 (c) A person committing an offense under Subsection (a) of
10-29 this section may be assessed a civil penalty by the commission in
10-30 an amount not to exceed $2,500 for each day of violation.
10-31 (d) If an owner fails to comply with Section 26.434 of this
10-32 code or a rule adopted by the commission to implement this
10-33 subchapter, the person may be assessed a civil penalty by the
10-34 commission in an amount not to exceed $2,500 for each day of the
10-35 violation.
10-36 SECTION 14. Chapter 244, Acts of the 71st Legislature,
10-37 Regular Session, 1989 (Article 8900, Vernon's Texas Civil
10-38 Statutes), is repealed.
10-39 SECTION 15. A license or registration issued under Chapter
10-40 244, Acts of the 71st Legislature, Regular Session, 1989 (Article
10-41 8900, Vernon's Texas Civil Statutes), is valid for the term of the
10-42 license or registration under that law on and after the effective
10-43 date of this Act.
10-44 SECTION 16. The importance of this legislation and the
10-45 crowded condition of the calendars in both houses create an
10-46 emergency and an imperative public necessity that the
10-47 constitutional rule requiring bills to be read on three several
10-48 days in each house be suspended, and this rule is hereby suspended,
10-49 and that this Act take effect and be in force from and after its
10-50 passage, and it is so enacted.
10-51 * * * * *
10-52 Austin,
10-53 Texas
10-54 May 14, 1993
10-55 Hon. Bob Bullock
10-56 President of the Senate
10-57 Sir:
10-58 We, your Committee on Natural Resources to which was referred S.B.
10-59 No. 1475, have had the same under consideration, and I am
10-60 instructed to report it back to the Senate with the recommendation
10-61 that it do not pass, but that the Committee Substitute adopted in
10-62 lieu thereof do pass and be printed.
10-63 Sims,
10-64 Chairman
10-65 * * * * *
10-66 WITNESSES
10-67 FOR AGAINST ON
10-68 ___________________________________________________________________
10-69 Name: Jim Shillingburg x
10-70 Representing: TX Oil Marketers Assn
11-1 City: Austin
11-2 -------------------------------------------------------------------
11-3 Name: Jim Haley x
11-4 Representing: TX Water Commission
11-5 City: Austin
11-6 -------------------------------------------------------------------