Floor Packet Page No. 98
Amend CSHB 2912 on page 73, between lines 16 and 17, by
inserting the following article, with the article and sections
appropriately numbered, and renumbering the subsequent articles and
sections accordingly:
ARTICLE __. REGULATION AND REMEDIATION OF UNDERGROUND AND
ABOVEGROUND STORAGE TANKS
SECTION __. Section 26.342, Water Code, is amended by
amending Subdivisions (9)-(17) and adding Subdivision (18) to read
as follows:
(9) "Owner" means a person who holds legal possession
or ownership of an interest in an underground storage tank system
or an aboveground storage tank. If the actual ownership of an
underground storage tank system or an aboveground storage tank is
uncertain, unknown, or in dispute, the fee simple owner of the
surface estate of the tract on which the tank system is located is
considered the owner of the system unless that person can
demonstrate by appropriate documentation, including a deed
reservation, invoice, or bill of sale, or by other legally
acceptable means that the underground storage tank system or
aboveground storage tank is owned by another person. A person that
has registered as an owner of an underground storage tank system or
aboveground storage tank with the commission under Section 26.346
after September 1, 1987, shall be considered the tank system owner
until such time as documentation demonstrates to the executive
director's satisfaction that the legal interest in the tank system
was transferred to a different person subsequent to the date of the
tank registration. This definition is subject to the limitations
found in Water Code Section 26.3514 (Limits on Liability of
Lender), Section 26.3515 (Limits on Liability of Corporate
Fiduciary), and Section 26.3516 (Limits on Liability of Taxing
Unit).
(10) "Person" means an individual, trust, firm,
joint-stock company, corporation, government corporation,
partnership, association, state, municipality, commission,
political subdivision of a state, an interstate body, a consortium,
joint venture, commercial entity, or the United States government.
(11) <(10)> "Petroleum product" means a petroleum
product that is obtained from distilling and processing crude oil
and that is capable of being used as a fuel for the propulsion of a
motor vehicle or aircraft, including motor gasoline, gasohol, other
alcohol blended fuels, aviation gasoline, kerosene, distillate fuel
oil, and #1 and #2 diesel. The term does not include naphtha-type
jet fuel, kerosene-type jet fuel, or a petroleum product destined
for use in chemical manufacturing or feedstock of that
manufacturing.
(12) <(11)> "Petroleum storage tank" means:
(A) any one or combination of aboveground
storage tanks that contain petroleum products and that are
regulated by the commission; or
(B) any one or combination of underground
storage tanks and any connecting underground pipes that contain
petroleum products and that are regulated by the commission.
(13) <(12)> "Regulated substance" means an element,
compound, mixture, solution, or substance that, when released into
the environment, may present substantial danger to the public
health, welfare, or the environment.
(14) <(13)> "Release" means any spilling including
overfills, leaking, emitting, discharging, escaping, leaching, or
disposing from an underground or aboveground storage tank into
groundwater, surface water, or subsurface soils.
(15) <(14)> "Risk-based corrective action" means site
assessment or site remediation, the timing, type, and degree of
which is determined according to case-by-case consideration of
actual or potential risk to public health from environmental
exposure to a regulated substance released from a leaking
underground or aboveground storage tank.
(16) <(15)> "Spent oil" means a regulated substance
that is a lubricating oil or similar petroleum substance which has
been refined from crude oil, used for its designed or intended
purposes, and contaminated as a result of that use by physical or
chemical impurities, including spent motor vehicle lubricating
oils, transmission fluid, or brake fluid.
(17) <(16)> "Underground storage tank" means any one
or combination of underground tanks and any connecting underground
pipes used to contain an accumulation of regulated substances, the
volume of which, including the volume of the connecting underground
pipes, is 10 percent or more beneath the surface of the ground.
(18) <(17)> "Vehicle service and fueling facility"
means a facility where motor vehicles are serviced or repaired and
where petroleum products are stored and dispensed from fixed
equipment into the fuel tanks of motor vehicles.
SECTION __. Sections 26.346(a) and (c), Water Code, are
amended to read as follows:
(a) An underground or aboveground storage tank must be
registered with the commission unless the tank is exempt from
regulation under Section 26.344 of this code or the tank is covered
under Subsection (b) of this section. The commission by rule shall
establish the procedures and requirements for establishing and
maintaining current registration information concerning underground
and aboveground storage tanks. The commission shall also require
that an owner or operator of an underground storage tank used for
storing motor fuels (as defined in commission rule) complete an
annual underground storage tank compliance certification form.
(c) The commission shall issue to each person who owns or
operates a petroleum storage tank that is registered under this
section a registration and compliance confirmation certificate that
includes a brief description of:
(1) the responsibility of the owner or operator under
Section 26.3512 of this code;
(2) the rights of the owner or operator to participate
in the petroleum storage tank remediation account and the
groundwater protection cleanup program established under this
subchapter; and
(3) the responsibility of the owner or operator of an
underground storage tank to accurately complete the part of the
registration form pertaining to the certification of compliance
with underground storage tank administrative requirements and
technical standards if the tank is used for storing motor fuels (as
defined in commission rule).
SECTION __. Section 26.351, Water Code, is amended by adding
Subsections (f), (g), and (h) to read as follows:
(f) The person performing corrective action under this
section, if the release was reported to the commission on or before
December 22, 1998, shall meet the following deadlines:
(1) a complete site assessment and risk assessment
(including, but not limited to, risk-based criteria for
establishing target concentrations), as determined by the executive
director, must be received by the agency no later than September 1,
2002;
(2) a complete Corrective Action Plan, as determined
by the executive director and including, but not limited to,
completion of pilot studies and recommendation of a cost-effective
and technically appropriate remediation methodology, must be
received by the agency no later than September 1, 2003. The person
may, in lieu of this requirement, submit by this same deadline a
demonstration that a Corrective Action Plan is not required for the
site in question under commission rules. Such demonstration must
be to the executive director's satisfaction;
(3) for those sites found under Subdivision (2) to
require a Corrective Action Plan, that plan must be initiated and
proceeding according to the requirements and deadlines in the
approved plan no later than March 1, 2004;
(4) for sites which require either a Corrective Action
Plan or groundwater monitoring, a comprehensive and accurate annual
status report concerning those activities must be submitted to the
agency;
(5) for sites which require either a Corrective Action
Plan or groundwater monitoring, all deadlines set by the executive
director concerning the Corrective Action Plan or approved
groundwater monitoring plan shall be met; and
(6) site closure requests for all sites where the
executive director agreed in writing that no Corrective Action Plan
was required must be received by the agency no later than September
1, 2005. The request must be complete, as judged by the executive
director.
(g) For persons regulated under Subsection (f), their
failure to comply with any deadline listed in Subsection (f) is a
violation of this section and the executive director may enforce
such a violation under Chapter 7 of this Code. A missed deadline
that is the fault of the person, his agent, or contractor shall
also eliminate reimbursement eligibility as described at Section
26.3571(b). If it can be established to the executive director's
satisfaction that the deadline was not missed at the fault of the
person, his agent, or contractor, then reimbursement eligibility is
not affected under this subsection.
(h) A person's liability to perform corrective action under
this chapter is unrelated to any possible reimbursements the person
may be eligible for under Section 26.3571.
SECTION __. Section 26.3512(b), Water Code, is amended to
read as follows:
(b) Funds from the petroleum storage tank remediation
account may not be used to pay, and the owner or operator of a
petroleum storage tank ordered by the commission to take corrective
action is responsible for payment of, the following:
(1) the owner or operator contribution described by
Subsections (e)-(k);
(2) any expenses for corrective action that exceed the
applicable amount specified by Section 26.3573(m);
(3) any expenses for corrective action that are not
covered by payment from the petroleum storage tank remediation
account under the rules or decisions of the commission under this
subchapter;
(4) any expenses for corrective action not ordered or
agreed to by the commission; <or>
(5) any expenses for corrective action incurred for
confirmed releases initially discovered and reported to the
commission after December 22, 1998; and
(6) any corrective action expenses for which
reimbursement is prohibited under Sections 26.3571, 26.3573, or
26.361.
SECTION __. Section 26.355(d), Water Code, is amended to read
as follows:
(d) If the commission uses money from the petroleum storage
tank remediation account for corrective action or enforcement and
if the costs are recovered under this section, the commission may
not recover more than the amount of the applicable owner or
operator contribution described by Section 26.3512<(e)> of this
code from an eligible owner or operator for corrective action for
each occurrence. However, this limitation is not applicable to
cost recovery actions initiated by the executive director at sites
where the executive director has determined that the owner or
operator is in violation of Section 26.351(f).
SECTION__. Section 26.3571, Water Code, is amended by
amending Subsection (b) and adding Subsections (g) and (h) to read
as follows:
(b) To be an eligible owner or operator for purposes of this
subchapter, a person must not have missed any of the deadlines
described in Section 26.351(f) and must:
(1) be one of the following:
(A) an owner or operator of a petroleum storage
tank that is subject to regulation under this subchapter;
(B) an owner of land that can clearly prove that
the land has been contaminated by a release of petroleum products
from a petroleum storage tank that is subject to regulation under
this subchapter, whether or not the tank is still attached to that
land; or
(C) a lender that has a bona fide security or
lienhold interest in or mortgage lien on any property contaminated
by the release of petroleum products from a petroleum storage tank
subject to regulation under this subchapter, or that forecloses on
or receives an assignment or deed in lieu of foreclosure and
becomes the owner of such property;
(2) be in compliance with this subchapter as
determined by the commission; and
(3) meet qualifying criteria established by the
commission under Subsection (a) of this section.
(g) An otherwise eligible owner or operator who misses a
deadline referenced in Subsection (b) shall be considered
ineligible for reimbursement under this subchapter.
(h) Nothing in this section reduces the liability to perform
corrective action created under Section 26.351 and other parts of
this subchapter.
SECTION __. Section 26.3572(b), Water Code, is amended to
read as follows:
(b) In administering the program, the commission shall:
(1) negotiate with or direct responsible parties in
site assessment and remediation matters using risk-based corrective
action;
(2) approve site-specific corrective action plans for
each site as necessary, using risk-based corrective action;
(3) review and inspect site assessment and remedial
activities and reports;
(4) use risk-based corrective action procedures as
determined by commission rule to establish cleanup levels;
(5) 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;
(6) adopt by rule criteria for:
(A) risk-based corrective action site closures;
and
(B) the issuance of a closure letter to the
owner or operator of a tank site on completion of the commission's
corrective action requirements; and
(7) process claims for petroleum storage tank
remediation account disbursement in accordance with this
subchapter.
SECTION __. Section 26.3573, Water Code, is amended by
amending Subsection (d) and by adding Subsections (r) and (s) to
read as follows:
(d) The commission may use the money in the petroleum
storage tank remediation account to pay:
(1) necessary expenses associated with the
administration of the petroleum storage tank remediation account
and the groundwater protection cleanup program, not to exceed an
amount equal to: 11.8 <6.7> percent of the gross receipts of that
account for FY 02/03; 16.40 percent of the gross receipts of that
account for FY 04/05; and 21.1 percent of the gross receipts of
that account for FY 06/07;
(2) expenses associated with investigation, cleanup,
or corrective action measures performed in response to a release or
threatened release from a petroleum storage tank, whether those
expenses are incurred by the commission or pursuant to a contract
between a contractor and an eligible owner or operator as
authorized by this subchapter; and
(3) subject to the conditions of Subsection (e) of
this section, expenses associated with investigation, cleanup, or
corrective action measures performed in response to a release or
threatened release of hydraulic fluid or spent oil from hydraulic
lift systems or tanks located at a vehicle service and fueling
facility and used as part of the operations of that facility.
(r) The petroleum storage tank remediation account may not
be used to reimburse any person for corrective action performed
after September 1, 2005.
(s) The petroleum storage tank remediation account may not
be used to reimburse any person for corrective action contained in
a reimbursement claim filed with the commission after March 1,
2006.
SECTION __. Sections 26.3574(b), (x), (y), (z), and (aa),
Water Code, are amended to read as follows:
(b) A fee is imposed on the delivery of a petroleum product
on withdrawal from bulk of that product as provided by this
subsection. Each operator of a bulk facility on withdrawal from
bulk of a petroleum product shall collect from the person who
orders the withdrawal a fee in an amount determined as follows:
(1) $12.50 <$18.75> for each delivery into a cargo
tank having a capacity of less than 2,500 gallons for FY 02 and FY
03; $10.00 for each delivery into a cargo tank having a capacity of
less than 2,500 gallons for FY 04 and FY 05; $5.00 for each
delivery into a cargo tank having a capacity of less than 2,500
gallons for FY 06; and $2.00 for each delivery into a cargo tank
having a capacity of less than 2,500 gallons for FY 07;
(2) $25.00 <$37.50> for each delivery into a cargo
tank having a capacity of 2,500 gallons or more but less than 5,000
gallons for FY 02 and FY 03; $20.00 for each delivery into a cargo
tank having a capacity of 2,500 gallons or more but less than 5,000
gallons for FY 04 and FY 05; $10.00 for each delivery into a cargo
tank having a capacity of 2,500 gallons or more but less than 5,000
gallons for FY 06; and $4.00 for each delivery into a cargo tank
having a capacity of 2,500 gallons or more but less than 5,000
gallons for FY 07;
(3) $37.50 <$56.25> for each delivery into a cargo
tank having a capacity of 5,000 gallons or more but less than 8,000
gallons for FY 02 and FY 03; $30.00 for each delivery into a cargo
tank having a capacity of 5,000 gallons or more but less than 8,000
gallons for FY 04 and FY 05; $15.00 for each delivery into a cargo
tank having a capacity of 5,000 gallons or more but less than 8,000
gallons for FY 06; and $6.00 for each delivery into a cargo tank
having a capacity of 5,000 gallons or more but less than 8,000
gallons for FY 07;
(4) $50.00 <$75> for each delivery into a cargo tank
having a capacity of 8,000 gallons or more but less than 10,000
gallons for FY 02 and FY 03; $40.00 for each delivery into a cargo
tank having a capacity of 8,000 gallons or more but less than
10,000 gallons for FY 04 and FY 05; $20.00 for each delivery into a
cargo tank having a capacity of 8,000 gallons or more but less than
10,000 gallons for FY 06; and $8.00 for each delivery into a cargo
tank having a capacity of 8,000 gallons or more but less than
10,000 gallons for FY 07; and
(5) a $25.00 <$37.50> fee for each increment of 5,000
gallons or any part thereof delivered into a cargo tank having a
capacity of 10,000 gallons or more for FY 02 and FY 03; $20.00 for
each increment of 5,000 gallons or any part thereof delivered into
a cargo tank having a capacity of 10,000 gallons or more for FY 04
and FY 05; $10.00 for each increment of 5,000 gallons or any part
thereof delivered into a cargo tank having a capacity of 10,000
gallons or more for FY 06; and $4.00 for each increment of 5,000
gallons or any part thereof delivered into a cargo tank having a
capacity of 10,000 gallons or more for FY 07.
(x) <After the deposits have been made to the credit of the
general revenue fund under Section 403.092(c)(1), Government Code,
as added by Chapter 533, Acts of the 73rd Legislature, 1993, the
fee imposed under this section may not be collected or required to
be paid 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 petroleum storage tank remediation account equals or
exceeds $100 million. The commission shall notify the comptroller
in writing of the date on which the unobligated balance equals or
exceeds $100 million.>
<(y) If the unobligated balance in the petroleum storage
tank remediation account falls below $25 million, the fee shall be
reinstated, effective on the first day of the second month
following notification by the commission, in amounts determined as
follows:>
<(1) $9.38 for each delivery into a cargo tank having
a capacity of less than 2,500 gallons;>
<(2) $18.75 for each delivery into a cargo tank having
a capacity of 2,500 gallons or more but less than 5,000 gallons;>
<(3) $28.13 for each delivery into a cargo tank having
a capacity of 5,000 gallons or more but less than 8,000 gallons;>
<(4) $37.50 for each delivery into a cargo tank having
a capacity of 8,000 gallons or more but less than 10,000 gallons;
and>
<(5) an $18.75 fee for each increment of 5,000 gallons
or any part thereof delivered into a cargo tank having a capacity
of 10,000 gallons or more.>
<(z) For purposes of Subsections (x) and (y) of this
section, the unobligated balance in the petroleum storage tank
remediation account shall be determined by subtracting from the
cash balance of the account at the end of each month the sum of the
total balances remaining on all contracts entered by the commission
or an eligible owner for corrective action plus the total estimates
made by the commission of allowable costs for corrective action
that are unpaid relating to all commission orders issued before
that date to enforce this subchapter.>
<(aa)> The commission shall report to the Legislative Budget
Board at the end of each fiscal quarter on the financial status of
the petroleum storage tank remediation account.
SECTION __. Sections 26.359 and 26.361, Water Code, are
amended to read as follows:
Sec. 26.359. LOCAL REGULATION OR ORDINANCE. (a) In this
section, "local government" means a school district, county,
municipality, junior college district, river authority, water
district or other special district, or other political subdivision
created under the constitution or a statute of this state.
(b) A <This subchapter establishes a unified statewide
program for underground and surface water protection, and any
local> regulation or ordinance adopted by a local government that
imposes standards <is effective only to the extent the regulation
or ordinance does not conflict with the standards adopted> for the
design, construction, installation, or operation of underground
storage tanks is not valid <under this subchapter>.
(c) This section does not apply to a regulation or ordinance
in effect as of January 1, 2001.
Sec. 26.361. EXPIRATION OF REIMBURSEMENT PROGRAM. <(a)>
Notwithstanding any other provision of this subchapter, the
reimbursement program established under this subchapter expires
September 1, 2006 <2003>. On or after September 1, 2006 <2003>, the
commission may not use money from the petroleum storage tank
remediation account to reimburse an eligible owner or operator for
any expenses of corrective action or to pay the claim of a person
who has contracted with an eligible owner or operator to perform
corrective action.
<(b) On or after March 1, 2002, the commission may not
collect a fee under Section 26.3574 of this code.>