H.B. No. 2587
1-1 AN ACT
1-2 relating to the regulation of certain aboveground and underground
1-3 storage tanks and the regulation of underground storage tank
1-4 installers; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 26.341(b), Water Code, is amended to read
1-7 as follows:
1-8 (b) The legislature declares that it is the policy of this
1-9 state and the purpose of this subchapter to:
1-10 (1) maintain and protect the quality of groundwater
1-11 and surface water resources in the state from certain substances in
1-12 underground and aboveground storage tanks that may pollute
1-13 groundwater and surface water resources; and
1-14 (2) require the use of all reasonable methods,
1-15 including risk-based corrective action, to implement this policy.
1-16 SECTION 2. Section 26.342, Water Code, is amended by adding
1-17 a new Subdivision (13) and renumbering subsequent subdivisions to
1-18 read as follows:
1-19 (13) "Risk-based corrective action" means site
1-20 assessment or site remediation, the timing, type, and degree of
1-21 which is determined according to case-by-case consideration of
1-22 actual or potential risk to public health from environmental
1-23 exposure to a regulated substance released from a leaking
1-24 underground or aboveground storage tank.
2-1 (14) <(13)> "Spent oil" means a regulated substance
2-2 that is a lubricating oil or similar petroleum substance which has
2-3 been refined from crude oil, used for its designed or intended
2-4 purposes, and contaminated as a result of that use by physical or
2-5 chemical impurities, including spent motor vehicle lubricating
2-6 oils, transmission fluid, or brake fluid.
2-7 (15) <(14)> "Underground storage tank" means any one
2-8 or combination of underground tanks and any connecting underground
2-9 pipes used to contain an accumulation of regulated substances, the
2-10 volume of which, including the volume of the connecting underground
2-11 pipes, is 10 percent or more beneath the surface of the ground.
2-12 (16) <(15)> "Vehicle service and fueling facility"
2-13 means a facility where motor vehicles are serviced or repaired and
2-14 where petroleum products are stored and dispensed from fixed
2-15 equipment into the fuel tanks of motor vehicles.
2-16 SECTION 3. Section 26.346, Water Code, is amended by adding
2-17 Subsections (e) and (f) to read as follows:
2-18 (e) The owner or operator of an underground or aboveground
2-19 storage tank installed before December 1, 1995, that is required to
2-20 be registered under this section and that has not been registered
2-21 on or before December 31, 1995, is not eligible to receive
2-22 reimbursement for that tank from the petroleum storage tank
2-23 remediation fund except for:
2-24 (1) an owner of a registered facility who discovers an
2-25 unregistered tank while removing, upgrading, or replacing a tank or
2-26 while performing a site assessment;
2-27 (2) a state or local governmental agency that
3-1 purchases a right-of-way and discovers during construction an
3-2 unregistered tank in the right-of-way; or
3-3 (3) a property owner who reasonably could not have
3-4 known that a tank was located on the property because a title
3-5 search or the previous use of the property does not indicate a tank
3-6 on the property.
3-7 (f) The owner or operator of an underground or aboveground
3-8 storage tank installed on or after December 1, 1995, must register
3-9 the tank under this section not later than the 30th day after the
3-10 date the installation is completed to be eligible for reimbursement
3-11 for the new tank.
3-12 SECTION 4. Subchapter I, Chapter 26, Water Code, is amended
3-13 by adding Section 26.3475 to read as follows:
3-14 Sec. 26.3475. RELEASE DETECTION REQUIREMENTS; SPILL AND
3-15 OVERFILL PREVENTION; CORROSION PROTECTION; NOTICE OF VIOLATION;
3-16 SHUTDOWN. (a) All piping in an underground storage tank system
3-17 that routinely conveys regulated substances under pressure must
3-18 comply with commission requirements for pressurized piping release
3-19 detection equipment.
3-20 (b) All piping in an underground storage tank system that
3-21 routinely conveys regulated substances under suction must comply
3-22 with commission requirements for suction-type piping release
3-23 detection equipment.
3-24 (c) A tank in an underground storage tank system must comply
3-25 with commission requirements for:
3-26 (1) tank release detection equipment; and
3-27 (2) spill and overfill equipment.
4-1 (d) An underground storage tank system must comply with
4-2 commission requirements for applicable tank integrity assessment
4-3 and corrosion protection not later than December 22, 1998.
4-4 (e) The commission may issue a notice of violation to the
4-5 owner or operator of an underground storage tank system that does
4-6 not comply with this section, informing the owner or operator of
4-7 the nature of the violation and that the commission may order the
4-8 noncomplying underground storage tank system placed out of service
4-9 if the owner or operator does not correct the violation within 30
4-10 days after the date the notice is received. If the owner or
4-11 operator does not correct the violation within the prescribed time,
4-12 the commission may order the noncomplying underground storage tank
4-13 system out of service.
4-14 SECTION 5. Section 26.3512, Water Code, is amended by
4-15 amending Subsections (b) and (e) and by adding Subsections (f)-(k)
4-16 to read as follows:
4-17 (b) Funds from the petroleum storage tank remediation fund
4-18 may not be used to pay, and the owner or operator of a petroleum
4-19 storage tank ordered by the commission to take corrective action is
4-20 responsible for payment of, the following:
4-21 (1) the owner or operator contribution described by
4-22 Subsections (e)-(k) <Subsection (e) of this section>;
4-23 (2) any expenses for corrective action that exceed the
4-24 applicable amount specified by Section 26.3573(l) <$1 million for
4-25 each occurrence>;
4-26 (3) any expenses for corrective action that are not
4-27 covered by payment from the petroleum storage tank remediation fund
5-1 under the rules or decisions of the commission under this
5-2 subchapter; <or>
5-3 (4) any expenses for corrective action not ordered or
5-4 agreed to by the commission; or
5-5 (5) any expenses for corrective action incurred for
5-6 confirmed releases initially discovered and reported to the
5-7 commission after December 22, 1998.
5-8 (e) If an owner or operator submits a site assessment in
5-9 accordance with commission rules before December 23, 1996, the <An>
5-10 owner or operator shall pay under Subsection (b)(1) <of this
5-11 section> the first expenses for corrective action taken for each
5-12 occurrence as follows:
5-13 (1) a person who owns or operates 1,000 or more single
5-14 petroleum storage tanks, the first $10,000;
5-15 (2) a person who owns or operates not fewer than 100
5-16 or more than 999 single petroleum storage tanks, the first $5,000;
5-17 (3) a person who owns or operates not fewer than 13 or
5-18 more than 99 single petroleum storage tanks, the first $2,500; and
5-19 (4) a person who owns or operates fewer than 13 single
5-20 petroleum storage tanks, the first $1,000.
5-21 (f) If an owner or operator does not submit a site
5-22 assessment in accordance with commission rules before December 23,
5-23 1996, the owner or operator shall pay under Subsection (b)(1) the
5-24 first expenses for corrective action taken for each occurrence as
5-25 follows:
5-26 (1) a person who owns or operates 1,000 or more single
5-27 petroleum storage tanks, the first $20,000;
6-1 (2) a person who owns or operates not fewer than 100
6-2 or more than 999 single petroleum storage tanks, the first $10,000;
6-3 (3) a person who owns or operates not fewer than 13 or
6-4 more than 99 single petroleum storage tanks, the first $5,000; and
6-5 (4) a person who owns or operates fewer than 13 single
6-6 petroleum storage tanks, the first $2,000.
6-7 (g) If an owner or operator's corrective action plan is
6-8 approved by the commission under Section 26.3572 before December
6-9 23, 1997, the owner or operator shall pay under Subsection (b)(1)
6-10 the amount provided by Subsection (e) for the first expenses for
6-11 corrective action taken for each occurrence.
6-12 (h) If an owner or operator's corrective action plan is not
6-13 approved by the commission under Section 26.3572 before December
6-14 23, 1997, the owner or operator shall pay under Subsection (b)(1)
6-15 the first expenses for corrective action taken for each occurrence
6-16 as follows:
6-17 (1) a person who owns or operates 1,000 or more single
6-18 petroleum storage tanks, the first $40,000;
6-19 (2) a person who owns or operates not fewer than 100
6-20 or more than 999 single petroleum storage tanks, the first $20,000;
6-21 (3) a person who owns or operates not fewer than 13 or
6-22 more than 99 single petroleum storage tanks, the first $10,000; and
6-23 (4) a person who owns or operates fewer than 13 single
6-24 petroleum storage tanks, the first $4,000.
6-25 (i) If an owner or operator has a corrective action plan
6-26 approved by the commission under Section 26.3572 and before
6-27 December 23, 1998, has met the goals specified in the plan to be
7-1 met by that date, the owner or operator shall pay under Subsection
7-2 (b)(1) the amount specified by Subsection (e) for the first
7-3 expenses for corrective action taken for each occurrence.
7-4 (j) If an owner or operator does not have a corrective
7-5 action plan approved by the commission under Section 26.3572 or, on
7-6 December 23, 1998, has not met the goals specified in the plan to
7-7 be met by that date, the owner or operator shall pay under
7-8 Subsection (b)(1) the first expenses for corrective action taken
7-9 for each occurrence as follows:
7-10 (1) a person who owns or operates 1,000 or more single
7-11 petroleum storage tanks, the first $80,000;
7-12 (2) a person who owns or operates not fewer than 100
7-13 or more than 999 single petroleum storage tanks, the first $40,000;
7-14 (3) a person who owns or operates not fewer than 13 or
7-15 more than 99 single petroleum storage tanks, the first $20,000; and
7-16 (4) a person who owns or operates fewer than 13 single
7-17 petroleum storage tanks, the first $8,000.
7-18 (k) An owner or operator of a site for which a closure
7-19 letter has been issued under Section 26.3572 shall pay under
7-20 Subsection (b)(1) the first $50,000 of expenses for corrective
7-21 action for each occurrence.
7-22 SECTION 6. Section 26.3513, Water Code, is amended by adding
7-23 Subsection (m) to read as follows:
7-24 (m) The commission shall consider the person who is in
7-25 day-to-day control of a petroleum storage tank system at a site
7-26 that is in violation of this subchapter to be the:
7-27 (1) person primarily responsible for taking corrective
8-1 action, for corrective action costs, for receiving a notice of
8-2 violation, or for paying a penalty assessed; and
8-3 (2) primary subject of an enforcement action or order
8-4 under this subchapter.
8-5 SECTION 7. Section 26.3514, Water Code, is amended by adding
8-6 Subsections (f), (g), (h), and (i) to read as follows:
8-7 (f) A lender described by Subsection (a) is not liable as an
8-8 owner or operator under this subchapter because the lender sells,
8-9 re-leases, liquidates, or winds up operations and takes measures to
8-10 preserve, protect, or prepare the secured aboveground or
8-11 underground storage tank before sale or other disposition of the
8-12 storage tank or the property if the lender:
8-13 (1) did not participate in the management of an
8-14 aboveground or underground storage tank or real or personal
8-15 property described by Subsection (a) before foreclosure or its
8-16 equivalent on the storage tank or the property; and
8-17 (2) establishes, as provided by Subsection (g), that
8-18 the ownership indicia maintained after foreclosure continue to be
8-19 held primarily to protect a security interest.
8-20 (g) A lender may establish that the ownership indicia
8-21 maintained after foreclosure continue to be held primarily to
8-22 protect a security interest if, within 12 months after foreclosure,
8-23 the lender:
8-24 (1) lists the aboveground or underground storage tank,
8-25 or the facility or property on which the tank is located, with a
8-26 broker, dealer, or agent who deals in that type of property; or
8-27 (2) advertises the aboveground or underground storage
9-1 tank for sale or other disposition, at least monthly, in:
9-2 (A) a real estate publication;
9-3 (B) a trade or other publication appropriate for
9-4 the aboveground or underground storage tank being advertised; or
9-5 (C) a newspaper of general circulation in the
9-6 area in which the aboveground or underground storage tank is
9-7 located.
9-8 (h) For purposes of Subsection (g), the 12-month period
9-9 begins:
9-10 (1) when the lender acquires marketable title, if the
9-11 lender, after the expiration of any redemption period or other
9-12 waiting period required by law, was acting diligently to acquire
9-13 marketable title; or
9-14 (2) on the date of foreclosure or its equivalent, if
9-15 the lender does not act diligently to acquire marketable title.
9-16 (i) If a lender outbids, rejects, or does not act on an
9-17 offer of fair consideration for the aboveground or underground
9-18 storage tank or the facility or property on which the storage tank
9-19 is located, it is presumed that the lender is not holding the
9-20 ownership indicia primarily to protect the security interest unless
9-21 the lender is required, in order to avoid liability under federal
9-22 or state law, to make the higher bid, obtain the higher offer, or
9-23 seek or obtain an offer in a different manner.
9-24 SECTION 8. Section 26.352, Water Code, is amended to read as
9-25 follows:
9-26 Sec. 26.352. FINANCIAL RESPONSIBILITY. (a) The commission
9-27 by rule shall adopt requirements for maintaining evidence of
10-1 financial responsibility for taking corrective action and
10-2 compensating third parties for bodily injury and property damage
10-3 caused by sudden and nonsudden accidental releases arising from
10-4 operating an underground storage tank.
10-5 (b) The rules must require that, after December 22, 1998,
10-6 the owner or operator of a site for which a closure letter has been
10-7 issued under Section 26.3572 shall have insurance coverage or
10-8 evidence of financial responsibility sufficient to satisfy all
10-9 financial responsibility requirements under federal law or
10-10 regulations. The rules must require that an owner or operator of a
10-11 site that has been issued a closure letter and who is eligible to
10-12 have a portion of any future corrective action costs paid under
10-13 Section 26.3512 shall have insurance coverage or evidence of
10-14 financial responsibility sufficient to satisfy the first expenses
10-15 for corrective action as provided by Section 26.3512(k).
10-16 (c) The commission shall seek the assistance of the Texas
10-17 Department of Insurance in developing the minimum requirements for
10-18 insurance coverage required under this section.
10-19 (d) An owner or operator of an underground storage tank may
10-20 submit the registration certificate issued by the commission to the
10-21 owner or operator under Section 26.346 of this code to the United
10-22 States Environmental Protection Agency as evidence of the owner's
10-23 or operator's eligibility for funds for any expense for corrective
10-24 action incurred for confirmed releases initially discovered and
10-25 reported to the commission on or before December 22, 1998 <from the
10-26 petroleum storage tank remediation fund>.
10-27 (e) A registration certificate issued under Section 26.346
11-1 is not acceptable evidence of financial responsibility for:
11-2 (1) an underground storage tank that contains a
11-3 petroleum substance other than:
11-4 (A) a petroleum product; or
11-5 (B) spent oil or hydraulic fluid if the tank is
11-6 located at a vehicle service and fueling facility and is used as
11-7 part of the operations of that facility; or
11-8 (2) any expenses for corrective action for confirmed
11-9 releases initially discovered and reported to the commission after
11-10 December 22, 1998.
11-11 (f) The commission shall enforce this section and may impose
11-12 administrative and civil penalties on the owners or operators of
11-13 underground storage tanks if acceptable evidence of financial
11-14 responsibility is not maintained. An owner or operator commits an
11-15 offense if the owner or operator operates an underground storage
11-16 tank knowing that acceptable evidence of financial responsibility
11-17 does not exist and is subject to criminal prosecution as provided
11-18 by Subchapter F. The commission may seek injunctive relief in the
11-19 district courts of Travis County to force the temporary or
11-20 permanent closure of an underground storage tank for which
11-21 acceptable evidence of financial responsibility is not maintained.
11-22 SECTION 9. Section 26.3572, Water Code, is amended by
11-23 amending Subsections (b) and (c) and by adding Subsection (d) to
11-24 read as follows:
11-25 (b) In administering the program, the commission shall:
11-26 (1) negotiate with or direct responsible parties in
11-27 site assessment and remediation matters using risk-based corrective
12-1 action;
12-2 (2) approve site-specific corrective action plans for
12-3 each site as necessary, using risk-based corrective action;
12-4 (3) review and inspect site assessment and remedial
12-5 activities and reports; <and>
12-6 (4) use risk-based corrective action procedures as
12-7 determined by commission rule to establish cleanup levels;
12-8 (5) adopt by rule criteria for assigning a priority to
12-9 each site using risk-based corrective action and assign a priority
12-10 to each site according to those criteria;
12-11 (6) adopt by rule criteria for:
12-12 (A) risk-based corrective action site closures;
12-13 and
12-14 (B) the issuance of a closure letter to the
12-15 owner or operator of a tank site on completion of the commission's
12-16 corrective action requirements; and
12-17 (7) process claims for petroleum storage tank
12-18 remediation fund disbursement.
12-19 (c) The commission by rule may approve site assessment
12-20 methodologies. The commission shall approve or disapprove a site
12-21 assessment or corrective action plan, as defined by commission
12-22 rule, on or before the 30th day after the commission receives the
12-23 assessment or plan. The commission shall adopt by rule criteria to
12-24 be used to determine:
12-25 (1) the necessity for site assessment; and
12-26 (2) the nature of the site assessment required.
12-27 (d) The commission may not approve a corrective action plan
13-1 until the commission and the owner or operator of the site by
13-2 agreement set specific goals in the plan for completing discrete
13-3 corrective action tasks before specified dates. The owner or
13-4 operator is responsible for meeting the goals.
13-5 SECTION 10. Sections 26.3573(d), (f), (h), (i), (k), and
13-6 (p), Water Code, are amended to read as follows:
13-7 (d) The commission may use the money in the petroleum
13-8 storage tank remediation fund to pay:
13-9 (1) necessary expenses associated with the
13-10 administration of the petroleum storage tank remediation fund and
13-11 the groundwater protection cleanup program, not to exceed an amount
13-12 equal to five percent of the gross receipts of that fund, provided
13-13 that the increment between two and five <three> percent of the
13-14 gross receipts may be used only to pay administrative expenses
13-15 associated with regulating petroleum storage tanks, reimbursing
13-16 eligible owners and operators, <and> disposing of contaminated
13-17 soils, and <further provided that the increment between three and
13-18 five percent of the gross receipts may be used only to pay
13-19 administrative expenses associated with> conducting claims audits
13-20 in accordance with Section 26.35735 of this code<, reimbursing
13-21 eligible owners and operators, and disposing of contaminated
13-22 soils>;
13-23 (2) expenses associated with investigation, cleanup,
13-24 or corrective action measures performed in response to a release or
13-25 threatened release from a petroleum storage tank, whether those
13-26 expenses are incurred by the commission or pursuant to a contract
13-27 between a contractor and an eligible owner or operator as
14-1 authorized by this subchapter; and
14-2 (3) subject to the conditions of Subsection (e) of
14-3 this section, expenses associated with investigation, cleanup, or
14-4 corrective action measures performed in response to a release or
14-5 threatened release of hydraulic fluid or spent oil from hydraulic
14-6 lift systems or tanks located at a vehicle service and fueling
14-7 facility and used as part of the operations of that facility.
14-8 (f) The commission, in accordance with this subchapter and
14-9 rules adopted under this subchapter, may:
14-10 (1) contract directly with a person to perform
14-11 corrective action and pay the contractor from the petroleum storage
14-12 tank remediation fund;
14-13 (2) reimburse an eligible owner or operator from the
14-14 petroleum storage tank remediation fund for the expenses of a
14-15 corrective action that was:
14-16 (A) performed on or after September 1, 1987; and
14-17 (B) conducted in response to a confirmed release
14-18 that was initially discovered and reported to the commission on or
14-19 before December 22, 1998; or
14-20 (3) pay the claim of a person who has contracted with
14-21 an eligible owner or operator to perform corrective action with
14-22 funds from the petroleum storage tank remediation fund.
14-23 (h) Consistent with the objectives provided under Subsection
14-24 (g) of this section and this subchapter, the commission may by rule
14-25 adopt:
14-26 (1) guidelines the commission considers necessary for
14-27 determining the amounts that may be paid from the petroleum storage
15-1 tank remediation fund; and
15-2 (2) guidelines concerning reimbursement for expenses
15-3 incurred by an eligible owner or operator and covered under Section
15-4 26.3512(d) of this code<; and>
15-5 <(3) minimum qualifications the commission considers
15-6 necessary for a person with whom an eligible owner or operator may
15-7 contract to participate in corrective action>.
15-8 (i) The commission by rule may implement a registration
15-9 program for persons who contract with an owner or operator of an
15-10 underground storage tank or an aboveground storage tank, or with
15-11 any other person, to perform corrective action under this
15-12 subchapter. The commission, on the request of an appropriately
15-13 licensed or registered professional engineer, shall register the
15-14 engineer in the program. An engineer registered in the program may
15-15 contract to perform corrective action under this subchapter unless
15-16 the State Board of Registration for Professional Engineers
15-17 determines the engineer is not qualified to perform a corrective
15-18 action. An engineer registered in the program is subject only to
15-19 the examination requirements, continuing education requirements,
15-20 fees, and disciplinary procedures adopted by the State Board of
15-21 Registration for Professional Engineers. The commission may adopt
15-22 minimum qualifications for a person, other than an appropriately
15-23 licensed or registered professional engineer, with whom an eligible
15-24 owner or operator <and> may contract to participate in a corrective
15-25 action and for a person, other than an appropriately licensed or
15-26 registered professional engineer, who performs or supervises the
15-27 corrective action. The commission may require <registration and>
16-1 the use of registered contractors and registered corrective action
16-2 supervisors by an eligible owner or operator as a prerequisite to
16-3 the payment of <receiving> money from the petroleum storage tank
16-4 remediation fund for corrective action under this subchapter. Any
16-5 qualified registered contractor may conduct the characterization,
16-6 study, appraisal, or investigation of a site. If a site
16-7 remediation involves the installation or construction of on-site
16-8 equipment, structures, or systems used in the extraction or
16-9 management of wastes, except for soil excavation and landfill
16-10 disposal or well sampling and monitoring, the owner or operator is
16-11 not eligible for reimbursement from the petroleum storage tank
16-12 remediation fund unless the plans and specifications for the
16-13 equipment, structures, or systems are sealed by an appropriately
16-14 licensed or registered professional engineer and the equipment,
16-15 structures, or systems are constructed under the supervision of an
16-16 appropriately licensed or registered professional engineer. The
16-17 commission by rule may establish a fee schedule and charge fees
16-18 necessary to defray the costs of administering the registration
16-19 program, including fees for processing applications, printing
16-20 certificates, conducting examinations, and similar activities.
16-21 Fees collected under this subsection shall be deposited in the
16-22 state treasury to the credit of the storage tank fund. A person
16-23 who violates a rule or order adopted by the commission under this
16-24 subsection is subject to the appropriate sanctions and penalties
16-25 imposed under this chapter.
16-26 (k) The commission shall satisfy a claim for payment that is
16-27 eligible to be paid under this subchapter and the rules adopted
17-1 under this subchapter made by a contractor, from the petroleum
17-2 storage tank remediation fund as provided by this section and rules
17-3 adopted by the commission under this section <Chapter 82, Acts of
17-4 the 69th Legislature, Regular Session, 1985 (Article 601f, Vernon's
17-5 Texas Civil Statutes)>, regardless of whether the commission:
17-6 (1) contracts directly for the goods or services; or
17-7 (2) pays a claim under a contract executed by a
17-8 petroleum storage tank owner or operator.
17-9 (p) Notwithstanding any other law to the contrary, an <An>
17-10 owner or operator, or an agent of an owner or operator, is <shall>
17-11 not <be> entitled to and may not<, nor shall> be paid<,> interest
17-12 on any claim for payment from the petroleum storage tank
17-13 remediation fund.
17-14 SECTION 11. Subchapter I, Chapter 26, Water Code, is amended
17-15 by adding Section 26.35731 to read as follows:
17-16 Sec. 26.35731. CONSIDERATION AND PROCESSING OF APPLICATIONS
17-17 FOR REIMBURSEMENT. (a) Except as provided by Subsection (b), the
17-18 commission shall consider and process a claim by an eligible owner
17-19 or operator for reimbursement from the petroleum storage tank
17-20 remediation fund in the order in which it is received. The
17-21 commission shall consider and process all claims by eligible owners
17-22 and operators for reimbursement from the fund that were received
17-23 before September 1, 1995, before the commission considers a claim
17-24 received after that date.
17-25 (b) The commission may not consider, process, or pay a claim
17-26 for reimbursement from the petroleum storage tank remediation fund
17-27 for corrective action work begun after September 1, 1993, and
18-1 without prior commission approval until all claims for
18-2 reimbursement for corrective action work preapproved by the
18-3 commission have been considered, processed, and paid.
18-4 SECTION 12. Section 26.35735, Water Code, is amended by
18-5 adding Subsections (e) and (f) to read as follows:
18-6 (e) The commission may audit a claim for payment as required
18-7 by this section only:
18-8 (1) under guidelines adopted by commission rule that
18-9 relate to conducting an audit under this section and denying a
18-10 claim as a result of that audit and that are in effect when the
18-11 audit is conducted; or
18-12 (2) in a case of suspected fraud.
18-13 (f) Not later than the 90th day after an audit under this
18-14 section has been completed, the commission shall send a copy of the
18-15 audit to the person whose claim for payment is the subject of the
18-16 audit.
18-17 SECTION 13. Sections 26.3574(b), (x), and (y), Water Code,
18-18 are amended to read as follows:
18-19 (b) A fee is imposed on the delivery of a petroleum product
18-20 on withdrawal from bulk of that product as provided by this
18-21 subsection. Each operator of a bulk facility on withdrawal from
18-22 bulk of a petroleum product shall collect from the person who
18-23 orders the withdrawal a fee in an amount determined as follows:
18-24 (1) $25 <$12.50> for each delivery into a cargo tank
18-25 having a capacity of less than 2,500 gallons;
18-26 (2) $50 <$25> for each delivery into a cargo tank
18-27 having a capacity of 2,500 gallons or more but less than 5,000
19-1 gallons;
19-2 (3) $75 <$37.50> for each delivery into a cargo tank
19-3 having a capacity of 5,000 gallons or more but less than 8,000
19-4 gallons;
19-5 (4) $100 <$50> for each delivery into a cargo tank
19-6 having a capacity of 8,000 gallons or more but less than 10,000
19-7 gallons; and
19-8 (5) a $50 <$25> fee for each increment of 5,000
19-9 gallons or any part thereof delivered into a cargo tank having a
19-10 capacity of 10,000 gallons or more.
19-11 (x) After the deposits have been made to the credit of the
19-12 general revenue fund as required by Section 403.092(c)(1),
19-13 Government Code, as added by Chapter 533, Acts of the 73rd
19-14 Legislature, 1993, the <The> fee imposed under this section may not
19-15 be collected or required to be paid on or after the first day of
19-16 the second month following notification by the commission of the
19-17 date on which the unobligated balance in the petroleum storage tank
19-18 remediation fund equals or exceeds $125 million <during the
19-19 1990-1991 state fiscal biennium or $100 million thereafter>. The
19-20 commission shall notify the comptroller in writing of the date on
19-21 which the unobligated balance equals or exceeds $125 million
19-22 <during the 1990-1991 state fiscal biennium or $100 million
19-23 thereafter>.
19-24 (y) If the unobligated balance in the petroleum storage tank
19-25 remediation fund falls below <$50 million during the 1990-1991
19-26 state fiscal biennium or> $25 million <thereafter>, the fee shall
19-27 be reinstated, effective on the first day of the second month
20-1 following notification by the commission, in amounts determined as
20-2 follows:
20-3 (1) $12.50 for each delivery into a cargo tank having
20-4 a capacity of less than 2,500 gallons;
20-5 (2) $25 for each delivery into a cargo tank having a
20-6 capacity of 2,500 gallons or more but less than 5,000 gallons;
20-7 (3) $37.50 for each delivery into a cargo tank having
20-8 a capacity of 5,000 gallons or more but less than 8,000 gallons;
20-9 (4) $50 for each delivery into a cargo tank having a
20-10 capacity of 8,000 gallons or more but less than 10,000 gallons; and
20-11 (5) a $25 fee for each increment of 5,000 gallons or
20-12 any part thereof delivered into a cargo tank having a capacity of
20-13 10,000 gallons or more.
20-14 SECTION 14. Subchapter I, Chapter 26, Water Code, is amended
20-15 by adding Sections 26.360-26.363 to read as follows:
20-16 Sec. 26.360. PRIVATIZATION OF PROGRAM. Notwithstanding
20-17 other provisions of this subchapter, the commission by rule may
20-18 authorize the privatization of any part of the program established
20-19 under this subchapter.
20-20 Sec. 26.361. EXPIRATION OF REIMBURSEMENT PROGRAM.
20-21 Notwithstanding any other provision of this subchapter, the
20-22 reimbursement program established under this subchapter expires
20-23 September 1, 2001. On or after September 1, 2001, the commission
20-24 may not:
20-25 (1) use money from the petroleum storage tank
20-26 remediation fund to reimburse an eligible owner or operator for any
20-27 expenses of corrective action or to pay the claim of a person who
21-1 has contracted with an eligible owner or operator to perform
21-2 corrective action; or
21-3 (2) collect a fee under Section 26.3574 of this code.
21-4 Sec. 26.362. SUIT TO TEST VALIDITY OF CLOSURE LETTER. The
21-5 commission is immune from liability in any action against the
21-6 commission to test the validity of a closure letter issued under
21-7 Section 26.3572 if the letter is issued in accordance with
21-8 commission rules.
21-9 Sec. 26.363. RELIANCE ON CLOSURE LETTER. An owner or
21-10 operator to whom a closure letter for a site has been issued under
21-11 Section 26.3572 may not be held liable for the owner's or
21-12 operator's conduct taken in reliance on and within the scope of the
21-13 closure letter.
21-14 SECTION 15. Chapter 244, Acts of the 71st Legislature,
21-15 Regular Session, 1989 (Article 8900, Vernon's Texas Civil
21-16 Statutes), is redesignated as Subchapter K, Chapter 26, Water Code,
21-17 and amended to read as follows:
21-18 SUBCHAPTER K <Art. 8900>. UNDERGROUND STORAGE TANK
21-19 INSTALLERS<; REGULATIONS; PENALTIES>
21-20 Sec. 26.451 <1>. DEFINITIONS. In this subchapter <Act>:
21-21 (1) "Certificate of registration" means the document
21-22 issued to an underground storage tank contractor authorizing that
21-23 contractor to engage in the underground storage tank business in
21-24 this state. <"Commission" means the Texas Water Commission.>
21-25 (2) "Committee" means the Petroleum Storage Tank
21-26 Advisory Committee.
21-27 (3) "Critical junctures" means, in the case of an
22-1 installation, repair, or removal, all of the following steps:
22-2 (A) preparation of the tank bedding immediately
22-3 before receiving the tank;
22-4 (B) setting of the tank and the piping,
22-5 including placement of any anchoring devices, backfill to the level
22-6 of the tank, and strapping, if any;
22-7 (C) connection of piping systems to the tank;
22-8 (D) all pressure testing of the underground
22-9 storage tank, including associated piping, performed during the
22-10 installation;
22-11 (E) completion of backfill and filling of the
22-12 excavation;
22-13 (F) any time during the repair in which the
22-14 piping system is connected or reconnected to the tank;
22-15 (G) any time during the repair in which the tank
22-16 or its associated piping is tested; and
22-17 (H) any time during the removal of the tank.
22-18 (4) "Installation" means the installation of
22-19 underground storage tanks and ancillary equipment.
22-20 (5) <(4)> "Installer" means a person who participates
22-21 in or supervises the installation, repair, or removal of
22-22 underground storage tanks.
22-23 (6) "License" means the document issued to an
22-24 installer or on-site supervisor authorizing that person to engage
22-25 in the underground storage tank business in this state.
22-26 (7) "On-site supervisor" means:
22-27 (A) a professional engineer registered to
23-1 practice in this state who has met the licensing requirements under
23-2 Section 26.456; or
23-3 (B) a person who has at least two years of
23-4 active experience in the vocation of installation of underground
23-5 storage tanks, underground utilities, or other engineering
23-6 construction in this state and who meets the licensing requirements
23-7 under Section 26.456.
23-8 (8) <(5)> "Operator" means any person in control of,
23-9 or having responsibility for, the daily operation of the
23-10 underground storage tank system.
23-11 (9) <(6)> "Owner" means any person who owns an
23-12 underground storage tank system used for storage, use, or
23-13 dispensing of regulated substances.
23-14 (10) <(7)> "Person" means a natural person, including
23-15 an owner, manager, officer, employee, or occupant.
23-16 (11) <(8)> "Removal" means the process of removing and
23-17 disposing of an underground storage tank that is no longer in
23-18 service, or the process of abandoning an underground storage tank
23-19 in place after purging the tank of vapors and filling the vessel of
23-20 the tank with an inert material.
23-21 (12) <(9)> "Repair" means the modification or
23-22 correction of an underground storage tank and ancillary equipment.
23-23 The term does not include:
23-24 (A) relining an underground storage tank through
23-25 the application of epoxy resins or similar materials;
23-26 (B) the performance of a tightness test to
23-27 ascertain the integrity of the tank;
24-1 (C) the maintenance and inspection of cathodic
24-2 protection devices by a corrosion expert or corrosion technician;
24-3 (D) emergency actions to halt or prevent leaks
24-4 or ruptures; or
24-5 (E) minor maintenance on ancillary aboveground
24-6 equipment.
24-7 (13) <(10)> "Underground storage tank" has the meaning
24-8 assigned by Section 26.342<, Water Code>.
24-9 <(11) "On-site supervisor" means:>
24-10 <(A) a professional engineer registered to
24-11 practice in this state who has met the licensing requirements under
24-12 Section 6 of this Act; or>
24-13 <(B) an individual with at least two years of
24-14 active experience in the vocation of installation of underground
24-15 storage tanks, underground utilities, or other engineering
24-16 construction in the State of Texas and who meets the licensing
24-17 requirements under Section 6 of this Act.>
24-18 (14) <(12)> "Underground storage tank contractor"
24-19 means a person or business entity who <that> offers to undertake,
24-20 represents itself as being able to undertake, or does undertake to
24-21 install, repair, or remove underground storage tanks.
24-22 <(13) "Certificate of registration" means the document
24-23 issued to an underground storage tank contractor authorizing same
24-24 to engage in the underground storage tank business in this state.>
24-25 <(14) "License" means the document issued to an
24-26 installer or on-site supervisor authorizing same to engage in the
24-27 underground storage tank business in this state.>
25-1 <(15) "Critical junctures" means, in the case of an
25-2 installation, repair, or removal, all of the following steps:>
25-3 <(A) preparation of the tank bedding immediately
25-4 prior to receiving the tank;>
25-5 <(B) setting of the tank and the piping,
25-6 including placement of any anchoring devices, backfill to the level
25-7 of the tank, and strapping, if any;>
25-8 <(C) connection of piping systems to the tank;>
25-9 <(D) all pressure testing of the underground
25-10 storage tank, including associated piping, performed during the
25-11 installation;>
25-12 <(E) completion of backfill and filling of the
25-13 excavation;>
25-14 <(F) any time during the repair in which the
25-15 piping system is connected or reconnected to the tank;>
25-16 <(G) any time during the repair in which the
25-17 tank or its associated piping is tested; and>
25-18 <(H) any time during the removal of the tank.>
25-19 Sec. 26.452 <2>. Certificate of registration. (a) An
25-20 underground storage tank contractor must apply to the commission
25-21 for a certificate of registration on a form prescribed by the
25-22 commission. If the contractor is a partnership or joint venture,
25-23 it need not register in its own name if each partner or joint
25-24 venture is registered.
25-25 (b) A certificate of registration is valid for one year from
25-26 the date of issue and is renewable annually on payment of the
25-27 annual fee. An<; provided, however, that the> initial
26-1 certification of registration <issued on or after September 1,
26-2 1989,> may be issued for a period <periods> of less than one year
26-3 and the annual fee shall be prorated proportionally.
26-4 (c) Each certificate of registration must be posted in a
26-5 conspicuous place in the contractor's place of business.
26-6 (d) All bids, proposals, offers, and installation drawings
26-7 must prominently display the contractor's certificate of
26-8 registration number.
26-9 (e) A certificate of registration issued under this
26-10 subchapter <Act> is not transferable.
26-11 Sec. 26.453 <3>. License required. (a) An <Except as
26-12 provided for by Subsection (b) of this section, an> underground
26-13 storage tank may not be installed, repaired, or removed except by
26-14 an underground storage tank contractor who has an installer or an
26-15 on-site supervisor who is licensed by the commission under Section
26-16 26.456 <6 of this Act> at the site at all times during the critical
26-17 junctures of the installation, repair, or removal.
26-18 (b) <A license issued under this Act is not transferable.>
26-19 <(c)> This subchapter <Act> does not apply to the
26-20 installation of a storage tank or other facility exempt from
26-21 regulation under Section 26.344<, Water Code>.
26-22 Sec. 26.454 <4>. Powers and duties of commission. (a) The
26-23 commission shall:
26-24 (1) prescribe application forms for original and
26-25 renewal licenses; and
26-26 (2) take other action necessary to enforce this
26-27 subchapter <Act>.
27-1 (b) With the advice of the committee, the commission shall
27-2 adopt rules for the licensing of installers and on-site
27-3 supervisors.
27-4 (c) The commission may adopt rules relating to continuing
27-5 education requirements for installers and on-site supervisors.
27-6 Sec. 26.455 <5>. Examination. (a) At times and places
27-7 designated by the commission, the commission shall conduct an
27-8 examination of applicants for licensing as installers and on-site
27-9 supervisors.
27-10 (b) The commission shall prescribe the contents of the
27-11 examination. Questions used in the examination must be derived
27-12 from standards, instructions, and recommended practices published
27-13 by organizations with expertise in various aspects of installation,
27-14 removal, and repair of underground storage tanks, including the:
27-15 (1) Petroleum Equipment Institute;
27-16 (2) American Petroleum Institute;
27-17 (3) Steel Tank Institute;
27-18 (4) National Association of Corrosion Engineers;
27-19 (5) Fiberglass Petroleum Tank and Pipe Institute; and
27-20 (6) National Fire Protection Association.
27-21 (c) The commission shall determine standards for acceptable
27-22 performance on the examination.
27-23 (d) If requested by a license applicant who fails the
27-24 examination, the commission shall provide to the applicant an
27-25 analysis of the applicant's performance on the examination.
27-26 Sec. 26.456 <6>. License. (a) The commission shall issue
27-27 an installer or on-site supervisor license to an applicant who:
28-1 (1) is at least 18 years of age;
28-2 (2) meets the application requirements prescribed by
28-3 commission rule, including experience in installation of
28-4 underground storage tanks, underground utilities, or other
28-5 engineering construction in this state <the State of Texas>, not to
28-6 exceed two years of active experience;
28-7 (3) passes the licensing examination;
28-8 (4) pays the application, examination, and licensing
28-9 fees; and
28-10 (5) meets reasonable training requirements as
28-11 determined by the commission.
28-12 (b) A license issued under this subchapter <Act> is valid
28-13 throughout this state but is not assignable or transferable.
28-14 Sec. 26.457 <7>. License renewal. (a) A license is valid
28-15 for one year and may be renewed annually on or before February 1 on
28-16 payment of the required renewal fee and presentation of evidence
28-17 satisfactory to the commission of compliance with any continuing
28-18 education requirements adopted by the commission.
28-19 (b) If a licensee fails to renew the license by the required
28-20 date, the licensee may renew the license on payment of the renewal
28-21 fee and a late fee set by the commission. If the license is not
28-22 renewed earlier than one year after the date on which the license
28-23 expired, the licensee must retake the licensing examination
28-24 administered by the commission.
28-25 Sec. 26.458 <8>. Fees. (a) The commission shall charge
28-26 necessary fees to defray the costs of administering this subchapter
28-27 <the provisions of this Act>, which shall be deposited in the state
29-1 treasury to the credit of the <underground> storage tank account
29-2 <fund> and shall be used by the commission in administering <the
29-3 provisions of> this subchapter <Act>. The fees may not exceed the
29-4 following amounts:
29-5 (1) examination fee..............................$ 50;
29-6 (2) initial license application..................$200;
29-7 (3) annual license renewal fee...................$175;
29-8 (4) late renewal fee.............................$ 25;
29-9 (5) duplicate license fee........................$ 10;
29-10 (6) certification of registration application
29-11 fee...........................................................$ 50;
29-12 (7) certification of registration issuance fee...$100;
29-13 (8) certification of registration annual renewal
29-14 fee...........................................................$ 75;
29-15 (9) duplicate certification of registration or
29-16 license.......................................................$ 10;
29-17 (10) application to change certificate of
29-18 registration.................................................$ 70.
29-19 (b) If a person remits an examination fee and initial
29-20 license application fee, the examination fee shall be applied to
29-21 the license application fee so that an applicant does not <no
29-22 person shall> pay more than $200 for an initial application and
29-23 examination.
29-24 Sec. 26.459 <9>. Denial, suspension, or revocation of
29-25 license or certificate of registration; reinstatement. (a) The
29-26 commission may deny, suspend, revoke, or reinstate a license or
29-27 certificate of registration.
30-1 (b) The commission shall adopt rules establishing the
30-2 grounds for denial, suspension, revocation, or reinstatement of a
30-3 license or certificate of registration, and establishing procedures
30-4 for disciplinary actions.
30-5 (c) Proceedings relating to the suspension or revocation of
30-6 a license or certificate of registration issued under this
30-7 subchapter <Act> are subject to Chapter 2001, Government Code <the
30-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
30-9 Vernon's Texas Civil Statutes)>.
30-10 (d) A person or business entity whose license or certificate
30-11 of registration has been revoked may apply for a new license or
30-12 certificate of registration after the expiration of one year from
30-13 the date of the revocation.
30-14 Sec. 26.460 <10. ADVISORY COMMITTEE. (a) The Petroleum
30-15 Storage Tank Advisory Committee is established.>
30-16 <(b) The committee is composed of nine members appointed by
30-17 the governor with the advice and consent of the senate. Committee
30-18 members serve for staggered six-year terms, with the terms of three
30-19 members expiring February 1 of each odd-numbered year. A member is
30-20 not eligible for appointment to successive terms.>
30-21 <(c) The governor shall appoint all members of the
30-22 committee, of whom:>
30-23 <(1) no more than three members may be appointed from
30-24 a single metropolitan area;>
30-25 <(2) three members must be persons with experience in
30-26 the operation of underground storage tanks;>
30-27 <(3) one member must be a professional engineer
31-1 registered to practice in this state;>
31-2 <(4) one member must be a person who is not eligible
31-3 for a license under this Act but who has demonstrated experience in
31-4 environmental protection, fire protection, or the operation and
31-5 maintenance of underground storage tanks;>
31-6 <(5) three members must be persons who own
31-7 construction firms engaged in installation of underground petroleum
31-8 storage tanks in the State of Texas; and>
31-9 <(6) one member must be a representative of the
31-10 financial industry with experience in underground storage tank
31-11 corrective action.>
31-12 <(d) The governor annually shall designate one member to
31-13 serve as chairman. The committee, at a minimum, shall meet
31-14 quarterly, at the call of the chairman, or at the call of the
31-15 chairman of the commission.>
31-16 <(e) The committee shall provide technical expertise to the
31-17 commission regarding petroleum storage tanks and shall advise the
31-18 commission in the adoption of rules pertaining to the commission's
31-19 petroleum storage tank program (31 TAC Chapter 334) and for the
31-20 licensing and regulation of installers and corrective action
31-21 specialists.>
31-22 <Sec. 11>. Criminal, Civil, and Administrative Penalties.
31-23 (a) A person or business entity commits an offense if the person
31-24 or business entity engages in <supervises> the installation,
31-25 repair, or removal of an underground storage tank and the person or
31-26 business entity:
31-27 (1) does not hold a certificate of registration issued
32-1 under Section 26.452; and
32-2 (2) is not under the substantial control of a person
32-3 or business entity who holds a certificate of registration issued
32-4 under Section 26.452.
32-5 (b) A person commits an offense if the person performs or
32-6 supervises the installation, repair, or removal of an underground
32-7 storage tank unless:
32-8 (1) the person holds a license issued under Section
32-9 26.456; or
32-10 (2) another person who holds a license issued under
32-11 Section 26.456 is substantially responsible for the performance or
32-12 supervision of the installation, repair, or removal.
32-13 (c) A person or business entity commits an offense if the
32-14 person or business entity:
32-15 (1) authorizes or allows the installation, repair, or
32-16 removal of an underground storage tank to be conducted by a person
32-17 or business entity who does not hold a certificate of registration
32-18 issued under Section 26.452; or
32-19 (2) authorizes or allows the installation, repair, or
32-20 removal of an underground storage tank to be performed or
32-21 supervised by a person or business entity who does not hold a
32-22 license issued under Section 26.456.
32-23 (d) A person or business entity commits an offense if the
32-24 conduct of the person or business entity makes the person or
32-25 business entity responsible for a violation of this subchapter or
32-26 of a rule adopted or order issued under this subchapter. <in a
32-27 manner that fails to comply with the requirements of Section 3 of
33-1 this Act.>
33-2 (e) <(b)> An offense under <Subsection (a) of> this section
33-3 is a Class A misdemeanor.
33-4 (f) <(c)> A person or business entity who commits
33-5 <committing> an offense under <Subsection (a) of> this section may
33-6 be assessed a civil penalty by the commission in an amount not to
33-7 exceed $2,500 for each day of violation.
33-8 (g) In addition to the criminal and civil penalties imposed
33-9 under this section, a person or business entity who commits an
33-10 offense under this section or who violates Subchapter I or a rule
33-11 adopted or order issued under Subchapter I is subject to an
33-12 administrative penalty as provided by Section 26.136. <(d) If an
33-13 owner fails to comply with the requirements of Section 3 of this
33-14 Act, or a rule adopted by the commission to implement this Act, the
33-15 person may be assessed a civil penalty by the commission in an
33-16 amount not to exceed $2,500 for each day of the violation.>
33-17 <Sec. 12. ><Initial appointments><. In making the initial
33-18 appointments to the advisory committee, the governor shall
33-19 designate three members for terms expiring in 1991, three members
33-20 for terms expiring in 1993, and three members for terms expiring in
33-21 1995.>
33-22 <Sec. 13. ><Effective date for license requirement><. A person
33-23 is not required to obtain a license under this Act until February
33-24 1, 1990.>
33-25 SECTION 16. Section 403.092(c), Government Code, as added by
33-26 Section 1, Chapter 533, Acts of the 73rd Legislature, 1993, is
33-27 amended to read as follows:
34-1 (c)(1) The comptroller may temporarily transfer cash from
34-2 the general revenue fund to the petroleum storage tank remediation
34-3 fund during the 1996-1997 <1994-1995> biennium for the purpose of
34-4 paying reimbursement claims against that fund that are filed with
34-5 the Texas Natural Resource Conservation Commission on or before
34-6 August 31, 1995, and for paying the necessary expenses associated
34-7 with the administration of that fund. The amount of cash to be
34-8 transferred shall not exceed $120 million. The transfer shall be
34-9 made on September 1, 1995 <1993>, or as soon as practicable
34-10 thereafter.
34-11 (2) Notwithstanding other law, $80 million of the fees
34-12 collected under Section 26.3574, Water Code, shall be deposited to
34-13 the credit of the general revenue fund not later than August 31,
34-14 1996, and $40 million of those fees shall be deposited to the
34-15 credit of that fund not later than May 31, 1997 <until the amount
34-16 of the fee collections so deposited to the credit of the general
34-17 revenue fund equals the amount of the temporary cash transfer
34-18 authorized in Subdivision (1)>. The remaining fees <Fees>
34-19 collected under that section in excess of the amounts <amount>
34-20 required by this subdivision to be deposited to the credit of the
34-21 general revenue fund shall be deposited to the credit of the
34-22 petroleum storage tank remediation fund.
34-23 (3) The amount transferred under Subdivision (1) is a
34-24 receivable of the general revenue fund for the purpose of
34-25 statements that the comptroller submits under Article III, Section
34-26 49a, of the Texas Constitution. The transferred amount is
34-27 available for appropriation by the legislature.
35-1 (4) This subsection expires on the latter of August
35-2 31, 1997 <1995>, or the date of full repayment to the general
35-3 revenue fund of the amount required under Subdivision (2).
35-4 SECTION 17. (a) The change in law made by Section 26.460,
35-5 Water Code, as added by this Act, applies only to an offense
35-6 committed or violation that occurs on or after the effective date
35-7 of this Act. For purposes of this section, an offense is committed
35-8 before the effective date of this Act if any element of the offense
35-9 occurred before that date.
35-10 (b) An offense committed or violation that occurred before
35-11 the effective date of this Act is governed by the law in effect
35-12 when the offense was committed or violation occurred, and the
35-13 former law is continued in effect for that purpose.
35-14 SECTION 18. This Act takes effect September 1, 1995.
35-15 SECTION 19. The importance of this legislation and the
35-16 crowded condition of the calendars in both houses create an
35-17 emergency and an imperative public necessity that the
35-18 constitutional rule requiring bills to be read on three several
35-19 days in each house be suspended, and this rule is hereby suspended.