BILL ANALYSIS


                                                    C.S.H.B. 2587
                                            By: Alexander (Brown)
                                                Natural Resources
                                                         05-10-95
                            Senate Committee Report (Substituted)
BACKGROUND

Chapter 26I of the Water Code was enacted by the legislature to
regulate the use of underground and aboveground storage tanks.  At
the time of passage, the legislature found that leaking underground
storage tanks storing hazardous, toxic, or otherwise harmful
substances have caused and continue to pose groundwater
contamination problems.  The purpose of Subchapter I is to protect
groundwater and surface water resources from certain substances in
underground and aboveground storage tanks that could pollute
groundwater and surface water resources.

PURPOSE

As proposed, C.S.H.B. 2587 amends certifying, licensing, and
regulation of underground petroleum storage tank owners, operators,
and installers; amends regulation of certain above ground storage
tanks; provides penalties for violations by a person or business
entity of rules adopted or orders issued to perform the regulation.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the Texas Natural Resource Conservation Commission under
SECTIONS 5, 8, 9, 10, and 14 (Sections 26.3512(e) and (f),
26.352(a), 26.3572(b) and (c), 26.3573(i), 26.360, and 26.362,
Water Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 26.341(b), Water Code, to provide that
the legislature declares that it is the state's policy and the
purpose of this subchapter to require the use of all reasonable
methods, including risk-based corrective action, to implement this
policy, among other purposes.

SECTION 2. Amends Section 26.342, Water Code, by adding Subdivision
(13) and renumbering subsequent subdivisions, to define "risk-based
corrective action."  Redesignates existing Subdivisions (13)-(15)
as Subdivisions (14)-(16).

SECTION 3. Amends Section 26.346, Water Code, by adding Subsections
(e) and (f), as follows:

     (e) Provides that the owner or operator of an underground or
     aboveground storage tank installed before December 1, 1995,
     that is required to be registered, and that has not been
     registered by December 31, 1995, is not eligible to receive
     reimbursement for that tank from the petroleum storage tank
     remediation fund (fund) except for an owner of a registered
     facility who discovers an unregistered tank; a state or local
     government agency that discovers the unregistered tank; or a
     property owner who did not know that the tank was located on
     the property.
     
     (f) Requires the owner of an underground or aboveground
     storage tank installed on or after December 1, 1995, to
     register the tank by the 30th day after the installation is
     completed to be eligible for reimbursement for the new tank.
     
     SECTION 4.     Amends Chapter 26I, Water Code, by adding Section
26.3475, as follows:

     Sec.  26.3475.  RELEASE DETECTION REQUIREMENTS; SPILL AND
     OVERFILL PROTECTION; CORROSION PROTECTION; NOTICE OF
     VIOLATION; SHUTDOWN.  (a) Requires all piping in an
     underground storage tank (tank) system that conveys regulated
     substances under pressure to comply with Texas Natural
     Resource Conservation Commission (commission) requirements for
     pressurized piping release detection equipment.
     
     (b) Requires all piping in a tank system that conveys
       regulated substances under suction to comply with commission
       requirements for suction-type piping release detection
       equipment.
     (c) Sets forth commission requirements for a tank in a tank
       system.
     (d) Requires a tank system to comply with commission
       requirements for applicable tank integrity assessment and
       corrosion protection by December 22, 1998.
     (e) Authorizes the commission to issue a notice of violation
       to the owner or operator (owner) of a tank system that does
       not comply with this section, informing the owner of the
       violation and that the commission may order the noncomplying
       tank system placed out of service if the owner does not
       correct the violation within 30 days after the notice was
       received.  Authorizes the commission to order the
       noncomplying tank system out of service if the owner does
       not correct the violation within the prescribed time.
SECTION 5. Amends Section 26.3512, Water Code, by amending
Subsections (b) and (e) and by adding Subsections (f)-(k), as
follows:

     (b) Provides that the owner of a petroleum storage tank
     ordered by the commission to take corrective action is
     responsible for the payment of, among others, the owner
     contribution prescribed by Subsections (e)-(k), rather than
     only Subsection (e); any expenses for corrective action
     exceeding the applicable amount specified by Section
     26.3573(l), rather than that exceed $1 million for each
     occurrence; any expenses for corrective action incurred for
     confirmed releases initially discovered and reported to the
     commission after December 22, 1998.
     (e) Provides a schedule for the required payment of expenses
     by the owner for corrective action taken for each occurrence
     if an owner submits to a site assessment in accordance with
     commission rules by December 23, 1996.
     (f) Provides a schedule for the required payment of expenses
     by the owner for corrective action taken for each occurrence,
     if an owner does not submit to a site assessment in accordance
     with commission rules by December 23, 1996.
     (g) Requires the owner to pay under Subsection (b)(1) the
     amount provided by Subsection (e) for the first expenses for
     corrective action taken for each occurrence if an owner's
     corrective action plan is approved by the commission before
     December 23, 1997.
     (h) Provides a schedule for the required payment of expenses
     by the owner for corrective action taken for each occurrence
     if an owner's corrective action plan is not approved by the
     commission before December 23, 1997.
     (i) Requires the owner to pay under Subsection (b)(1) the
     amount specified by Subsection (e) for the first expenses for
     corrective action taken for each occurrence if an owner has a
     corrective action plan approved by the commission before
     December 23, 1998, that has met the goals specified in the
     plan to be met by that date.
     (j) Provides a schedule for the required payment of expenses
     by the owner for corrective action taken for each occurrence
     if an owner does not have a corrective action plan approved by
     the commission or, on December 23, 1998, has not met the goals
     specified in the plan to be met by that date.
     (k) Requires an owner of a site for which a closure letter has
     been issued under Section 26.3572 to pay under Subsection
     (b)(1) the first $50,000 of expenses for corrective action for
     each occurrence.
SECTION 6. Amends Section 26.3513, Water Code, by adding Subsection
(m), to require the commission to consider the person who is in
day-to-day control of a petroleum storage tank system at a site
that is in violation to be the primary person responsible for
taking corrective action and receiving the notice; and to be the
primary subject of enforcement action.

SECTION 7. Amends Section 26.3514, Water Code, by adding
Subsections (f)-(i), as follows:

     (f) Provides that a lender is not liable as an owner because
     the lender sells, re-leases, liquidates, or winds up
     operations and preserves, protects, or prepares the secured
     aboveground or underground storage tank before the sale or
     other disposition of the storage tank or the property if the
     lender meets certain criteria.
     
     (g) Authorizes a lender to establish that the ownership
     indicia maintained after the foreclosure continue to be held
     to protect a security interest if the lender performs certain
     actions within 12 months after foreclosure.
     
     (h) Provides that the 12-month period begins, for the purposes
     of Subsection (g), when the lender acquires marketable title;
     or on the date of foreclosure or its equivalent.
     
     (i) Provides that if a lender outbids, rejects, or does not
     act on an offer for the aboveground or underground storage
     tank or the facility or property on which the tank is located,
     it is presumed that the lender is not holding the ownership
     indicia primarily to protect the security interest unless the
     lender is required to take a certain action in order to avoid
     liability under federal or state law.
     
     SECTION 8.     Amends Section 26.352, Water Code, as follows:

     Sec.  26.352.  FINANCIAL RESPONSIBILITY.  (a) Requires the
     commission, by rule, to adopt requirements for maintaining
     evidence of financial responsibility for taking corrective
     action and compensating third parties for bodily injury and
     property damages resulting from certain causes.
     
     (b) Requires the rules to require, after December 22, 1998,
       the owner of a site for which a closure letter has been
       issued to have insurance coverage or evidence of financial
       responsibility to satisfy all financial responsibility
       requirements under federal law or regulations.  Requires the
       rules to require an owner of a site that has been issued a
       closure letter and who is eligible to have a portion of any
       future paid corrective action costs to have insurance
       coverage or evidence of financial responsibility to satisfy
       the first expenses for corrective action as provided by
       Section 26.3512(k).
     (c) Requires the commission to seek the assistance of the
       Texas Department of Insurance in developing the minimum
       requirements for insurance coverage required under this
       section.
     (d) Authorizes an owner of a tank to submit the registration
       certificate issued by the commission to the U.S.
       Environmental Protection Agency as evidence of the owner's
       eligibility for funds for any expenses for corrective action
       incurred for confirmed releases initially discovered and
       reported to the commission on or before December 22, 1998,
       rather than a corrective action from the fund.
     (e) Provides that a registration certificate is not
       accessible evidence of financial responsibility for a tank
       that contains certain petroleum substances, among others. 
       Makes a conforming change.
     (f) Requires the commission to enforce this section. 
       Authorizes the commission to impose administrative and civil
       penalties on the owners of tanks if evidence of financial
       responsibility is not maintained.  Provides that an owner
       commits an offense if the owner operates a tank knowing that
       evidence of financial responsibility does not exist and is
       subject to criminal prosecution.  Authorizes the commission
       to seek injunctive relief in Travis County district courts
       to force temporary or permanent closure of an underground
       storage tank for which evidence of financial responsibility
       is not maintained.
SECTION 9. Amends Section 26.3572, Water Code, by amending
Subsections (b) and (c) and by adding Subsection (d), as follows:

     (b) Requires the commission, in administering the groundwater
     protection cleanup program (program), to perform certain acts,
     including negotiating with or directing parties in site
     assessment and remediation matters using risk-based corrective
     action; approving site-specific corrective action plans for
     each site as necessary using risk-based corrective action;
     using risk-based corrective action procedures as determined by
     commission rule to establish cleanup levels; adopt, by rule,
     criteria for assigning a priority to each site using risk-based corrective action and assign a priority to each site
     according to those criteria; and adopt, by rule, criteria for
     risk-based corrective action site closures and for the
     issuance of a closure letter.
     
     (c) Authorizes the commission, by rule, to approve its site
     assessment methods.  Requires the commission to approve or
     disapprove a site assessment or corrective action plan, as
     defined by commission rule, by the 30th day after the
     commission receives the assessment or plan.
     
     (d) Prohibits the commission from approving a corrective
     action plan until the commission and the owner of the site by
     agreement set specific goals in the plan for completing
     discrete corrective action tasks before specified dates. 
     Provides that the owner or operator is responsible for meeting
     the goals.
     
     SECTION 10.    Amends Sections 26.3573(d), (f), (h), (i), (k), and
(p), Water Code, as follows:

     (d)(1) Authorizes the increment between two and five percent,
     rather than between two and three percent, of the gross
     receipts of the fund to be used only to pay administrative
     expenses associated with regulating the petroleum storage
     tanks, reimbursing eligible owners, disposing of contaminated
     soils, and conducting claims audits.  Deletes language
     authorizing between three and five percent of the gross
     receipts to be used for conducting claims audits, reimbursing
     eligible owners, and disposing of contaminated soils.
     
     (2) and (3) Make no change.
       
       (f) Authorizes the commission to perform certain acts
     including reimbursing an eligible owner from the fund for
     expenses of a corrective action that was performed on or after
     September 1, 1987; and conducted in response to a confirmed
     release that was initially discovered and reported to the
     commission on or before December 22, 1998.
     
     (h) Deletes language authorizing the commission, by rule, to
     adopt minimum qualifications the commission considers
     necessary for a person with whom an eligible owner may
     contract to participate in corrective action.
     
     (i) Authorizes the commission, by rule, to implement a
     registration program for persons who contract with an owner of
     a tank or an aboveground storage tank, or with any person, to
     perform corrective action.  Requires the commission, on the
     request of an appropriately licensed or registered
     professional engineer, to register the engineer in the
     program.  Authorizes an engineer registered in the program to
     contract to perform corrective action unless the State Board
     of Registration for Professional Engineers (SBRPE) determines
     the engineer is not qualified to perform a corrective action. 
     Subjects an engineer registered in the program only to
     examination requirements, continuing education requirements,
     fees, and disciplinary procedures adopted by SBRPE. 
     Authorizes the commission to adopt minimum qualifications for
     a person, other than an appropriately licensed or registered
     professional engineer,  with whom an owner may contract to
     participate in corrective action and for a person, other than
     an appropriately licensed or registered professional engineer, 
     who performs or supervises the corrective action.  Authorizes
     the commission to require the use, rather than registration
     and the use, of registered contractors and registered
     corrective action supervisors by an eligible owner as a
     prerequisite to the payment of, rather than receiving, money
     from the fund for corrective action.  Authorizes any qualified
     registered contractor to conduct the characterization, study,
     appraisal, or investigation of a site.  Provides that if a
     site remediation involves the installation or construction of
     on-site equipment, structures, or systems used in the
     extraction or management of wastes, except for soil excavation
     and landfill disposal or well sampling and monitoring, the
     owner is not eligible for reimbursement from the fund unless
     the plans and specifications for the equipment, structures, or
     systems are sealed by an appropriately licensed or registered
     professional engineer and the equipment, structures or systems
     are constructed under the supervision of an appropriately
     licensed or registered professional engineer.  Authorizes the
     commission, by rule, to establish a fee schedule and charge
     fees to defray the costs of administering the registration
     program including certain fees.  Requires the fees collected
     to be deposited in the state treasury to the credit of the
     storage tank fund.  Provides that a person who violates a rule
     or order adopted by the commission is subject to the
     appropriate sanctions and penalties.
     
     (k) Requires the commission to satisfy a claim for payment
     that is eligible to be paid under this subchapter, and rules
     adopted under this subchapter made by a contractor, from the
     fund as provided by this section and rules adopted by the
     commission under this section, rather than Chapter 82, Article
     601f, V.T.C.S.
     
     (p) Provides that an owner, or any agent of an owner, is not
     entitled to and may not be paid interest on any claim for
     payment from the fund.  Makes nonsubstantive changes.
     
     SECTION 11.    Amends Chapter 26I, Water Code, by adding Section
26.35731, as follows:

     Sec.  26.35731.  CONSIDERATION AND PROCESSING OF APPLICATIONS
     FOR REIMBURSEMENT.  (a) Requires the commission, except as
     provided by Subsection (b), to consider and process a claim by
     an eligible owner for reimbursement from the fund in the order
     it is received. Requires the commission to consider and
     process all claims by eligible owners for reimbursement from
     the fund that were received by September 1, 1995, before the
     commission considers a claim received after that date.
     
     (b) Prohibits the commission from considering, processing,
       or paying a claim for reimbursement from the fund for
       corrective action work begun after September 1, 1993, and
       without prior commission approval until all claims for
       reimbursement for corrective action work preapproved by the
       commission have been considered, processed, or paid.
       
SECTION 12.    Amends Section 26.35735, Water Code, by adding
Subsections (e) and (f), as follows:

     (e) Authorizes the commission to audit a claim for payment as
     required by this section only under certain guidelines or in
     a case of suspected fraud.
     
     (f) Requires the commission, by the 90th day after an audit
     has been completed, to send a copy of the audit to the person
     whose claim for payment is the subject of the audit.
     
SECTION 13.    Amends Sections 26.3574(b), (x), and (y), Water
Code, as follows:

     (b) Doubles the required fee paid by a person ordering a
     withdrawal and collected by the operator of a bulk facility
     for delivery of a petroleum product on withdrawal from bulk of
     that product.
     
     (x) Prohibits the fee imposed under this section from being
     collected on or after the first day of the second month
     following notification by the commission of the date on which
     the unobligated balance in the fund is $125 million or more,
     after the deposits have been made to the credit of the general
     revenue fund.
     
     (y) Requires the fee to be reinstated if the unobligated
     balance is less than $25 million.  Provides that the fees be
     $12.50 for each delivery into a cargo tank of less than 2,500
     gallons, $25 for each delivery of 2,500 to less than 5,000
     gallons, $37.50 for each delivery of 5,000 to less than 8,000
     gallons, $50 for each delivery of 8,000 to less than 10,000
     gallons, and $25 for each increment of 5,000 gallons or any
     part thereof delivered into a cargo tank of 10,000 gallons or
     more.
     
     SECTION 14.    Amends Chapter 26I, Water Code, by adding Sections
26.360-26.363, as follows:

     Sec.  26.360.  PRIVATIZATION OF PROGRAM.  Authorizes the
     commission, by rule, to authorize the privatization of any
     part of the program.
     
     Sec.  26.361.   EXPIRATION OF REIMBURSEMENT PROGRAM.  Provides
     that the reimbursement program established under this
     subchapter expires September 1, 2001.  Prohibits the
     commission, on or after September 1, 2001, from using money
     from the fund to reimburse eligible owners for corrective
     action; or collecting a fee under Section 26.3574.
     
     Sec.  26.362.  SUIT TO TEST VALIDITY OF CLOSURE LETTER. 
     Provides that the commission is immune from liability in any
     action against the commission to test the validity of a
     closure letter if the letter is issued in accordance with
     commission rules.
     
     Sec.  26.363.  RELIANCE ON CLOSURE LETTER.  Prohibits an owner
     to whom a closure letter for a site has been issued from being
     held liable for the owner's conduct taken in reliance on and
     within the scope of the closure letter.
     
SECTION 15.    Redesignates Article 8900, V.T.C.S., as Chapter 26K,
Water Code, as follows:

 SUBCHAPTER K.  New heading: UNDERGROUND STORAGE TANK INSTALLERS
               (Redesignates existing Article 8900)

     Sec.  26.451.  DEFINITIONS.  Redesignates existing Section 1. 
     Redefines "certificate of registration," "critical junctures,"
     "license," and "on-site supervisor."  Deletes the definition
     of "commission."  Makes a nonsubstantive change.  Redesignates
     existing Subdivisions (4), (5)-(10), and (12) as Subdivisions
     (5), (8)-(13), and (14).
     
     Sec.  26.452.  CERTIFICATE OF REGISTRATION.  Redesignates
     existing Section 2.  (a) Makes no change.
     
     (b) Authorizes an initial certificate of registration
       authorizing a tank contractor to engage in tank business
       (certificate of registration) to be issued for a period of
       less than one year.  Deletes language authorizing initial
       certificates of registration issued on or after September 1,
       1989, to be issued for periods of less than one year.
       
       (c) and (d) Make no change.
       
       (e) Provides that a certificate of registration issued under
       this subchapter, rather than Act, is not transferrable.
       
       Sec.  26.453.  LICENSE REQUIRED.  Redesignates existing
     Section 3.  (a) Deletes language providing Subsection (b) as
     an exception to prohibiting a tank from being installed,
     repaired, or removed by an tank contractor.  Makes a
     conforming change.
     
     (b) Deletes existing Subsection (b) providing that licenses
       issued to installers or on-site supervisors authorizing that
       person to engage in tank business (license) under this Act
       are not transferrable.  Redesignates existing Subsection (c)
       to make a conforming and nonsubstantive change.
       
       Sec.  26.454.  POWERS AND DUTIES OF COMMISSION.  Redesignates
     existing Section 4.  (a) Makes a conforming change.
     
     (b) and (c) Make no change.
       
       Sec.  26.455.  EXAMINATION.  Redesignates existing Section 5. 
     (a)-(d) Make no change.
     
     Sec.  26.456.  LICENSE.  Redesignates existing Section 6.  (a)
     Makes a nonsubstantive change.
     
     (b) Makes a conforming change.
       
       Sec.  26.457.  LICENSE RENEWAL.  Redesignates existing Section
     7.  (a) and (b) Make no change.
     
     Sec.  26.458.  FEES.  Redesignates existing Section 8.  (a)
     Requires fees collected by the commission to defray the costs
     of administering this subchapter, rather than provisions of
     this Act, to be deposited in the state treasury to the credit
     of the storage tank account, instead of the underground
     storage tank fund.  Makes a conforming change.
     
     (b) Makes a nonsubstantive change.
       
       Sec.  26.459.  DENIAL, SUSPENSION, OR REVOCATION OF LICENSE OR
     CERTIFICATE OF REGISTRATION; REINSTATEMENT.  Redesignates
     existing Section 9.  (a) and (b) Make no change.
     
     (c) Makes conforming changes.
       
       (d) Authorizes a person or business entity whose license or
       certificate of registration has been revoked to apply for a
       new license or certificate of registration after the passage
       of one year after the date of the revocation.
       
       Sec.  26.460.  New heading: CRIMINAL, CIVIL, AND
     ADMINISTRATIVE PENALTIES.  Deletes existing Section 10
     establishing the Petroleum Advisory Committee.  Redesignates
     existing Section 11.  (a) Provides that a person or business
     entity commits an offense if the person or business entity
     engages in certain acts.
     
     (b) Provides that a person commits an offense if the person
       performs or supervises the installation, repair, or removal
       of a tank unless the person has a license or another person
       who holds a license is substantially responsible for the
       performance or supervision of the installation, repair, or
       removal.
       
       (c) Provides that a person or business entity commits an
       offense if the person or business entity authorizes certain
       installations, repairs, or removal of a tank.
       
       (d) Provides that the person or business entity commits an
       offense if the conduct of the person or business entity
       makes the person or business entity responsible for a
       violation of this subchapter or of a rule adopted or an
       order issued under this subchapter.  Deletes language
       regarding conduct resulting in the commission of an offense.
       
       (e) Provides that an offense under this section, rather than
       Subsection (a), is a Class A misdemeanor.  Redesignates
       existing Subsection (b).
       
       (f) Authorizes a person or business entity who commits an
       offense under this section to be assessed a civil penalty by
       the commission in an amount not to exceed $2,500 for each
       day of violation.  Redesignates existing Subsection (c).
       
       (g) Subjects a person or business entity who commits an
       offense under this section or who violates Subchapter I or
       a rule adopted or order issued under Subchapter I to an
       administrative penalty in addition to the criminal and civil
       penalties.  Deletes existing Subsection (d) authorizing an
       owner to be assessed a penalty for not complying with the
       requirements of Section 3 or a rule adopted by the
       commission to implement this Act.  Deletes existing Section
       12 regarding initial appointments to the committee.  Deletes
       existing Section 13 regarding the effective date for the
       license requirement.
       
       SECTION 16.  Amends Section 403.092(c), Government Code, as added
by Section 1, Chapter 533, Acts of the 73rd Legislature, 1993, as
follows:

     (c)(1) Authorizes the comptroller to transfer cash from the
     general revenue fund to the fund during the 1996-1997 biennium
     to pay reimbursement claims against the fund that are filed
     with the commission on or before August 31, 1995.  Requires
     the transfer to be on September 1, 1995.
            (2) Requires $80 million of the fees collected under Section
       26.3574, Water Code, to be deposited to the general revenue
       fund by August 31, 1996.  Requires $40 million of those fees
       to be deposited to the credit of the fund by May 31, 1997. 
       Requires the remaining fees collected in excess of the
       amounts required by this subdivision to be deposited to the
       credit of the general revenue fund to be deposited to the
       fund.  Deletes language regarding the deposit of the fees
       collected.
            (3) Makes no change.
            (4) Provides that this subsection expires on the latter of
       August 31, 1997, or the date of full repayment to the
       general revenue fund of the amount required under
       Subdivision (2).
SECTION 17.    Makes application of this Act prospective.

SECTION 18.    Effective date: September 1, 1995.

SECTION 19.    Emergency clause.