77R12032 T                           
         By Junell, Flores                                     H.B. No. 2687
         Substitute the following for H.B. No. 2687:
         By Counts                                         C.S.H.B. No. 2687
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the program for the regulation and remediation of
 1-3     underground and aboveground storage tanks.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 26.342, Water Code, is amended by amending
 1-6     Subdivisions (9)-(17) and adding Subdivision (18) to read as
 1-7     follows:
 1-8                 (9)  "Owner" means a person who holds legal possession
 1-9     or ownership of an interest in an underground storage tank system
1-10     or an aboveground storage tank.  If the actual ownership of an
1-11     underground storage tank system or an aboveground storage tank is
1-12     uncertain, unknown, or in dispute, the fee simple owner of the
1-13     surface estate of the tract on which the tank system is located is
1-14     considered the owner of the system unless that person can
1-15     demonstrate by appropriate documentation, including a deed
1-16     reservation, invoice, or bill of sale, or by other legally
1-17     acceptable means that the underground storage tank system or
1-18     aboveground storage tank is owned by another person.  A person that
1-19     has registered as an owner of an underground storage tank system or
1-20     aboveground storage tank with the commission under Section 26.346
1-21     after September 1, 1987, shall be considered the tank system owner
1-22     until such time as documentation demonstrates to the executive
1-23     director's satisfaction that the legal interest in the tank system
1-24     was transferred to a different person subsequent to the date of the
 2-1     tank registration.  This definition is subject to the limitations
 2-2     found in Water Code Section 26.3514 (Limits on Liability of
 2-3     Lender), Section 26.3515 (Limits on Liability of Corporate
 2-4     Fiduciary), and Section 26.3516 (Limits on Liability of Taxing
 2-5     Unit).
 2-6                 (10)  "Person" means an individual, trust, firm,
 2-7     joint-stock company, corporation, government corporation,
 2-8     partnership, association, state, municipality, commission,
 2-9     political subdivision of a state, an interstate body, a consortium,
2-10     joint venture, commercial entity, or the United States government.
2-11                 (11) [(10)]  "Petroleum product" means a petroleum
2-12     product that is obtained from distilling and processing crude oil
2-13     and that is capable of being used as a fuel for the propulsion of a
2-14     motor vehicle or aircraft, including motor gasoline, gasohol, other
2-15     alcohol blended fuels, aviation gasoline, kerosene, distillate fuel
2-16     oil, and #1 and #2 diesel.  The term does not include naphtha-type
2-17     jet fuel, kerosene-type jet fuel, or a petroleum product destined
2-18     for use in chemical manufacturing or feedstock of that
2-19     manufacturing.
2-20                 (12) [(11)]  "Petroleum storage tank" means:
2-21                       (A)  any one or combination of aboveground
2-22     storage tanks that contain petroleum products and that are
2-23     regulated by the commission; or
2-24                       (B)  any one or combination of underground
2-25     storage tanks and any connecting underground pipes that contain
2-26     petroleum products and that are regulated by the commission.
2-27                 (13) [(12)]  "Regulated substance" means an element,
 3-1     compound, mixture, solution, or substance that, when released into
 3-2     the environment, may present substantial danger to the public
 3-3     health, welfare, or the environment.
 3-4                 (14) [(13)]  "Release" means any spilling including
 3-5     overfills, leaking, emitting, discharging, escaping, leaching, or
 3-6     disposing from an underground or aboveground storage tank into
 3-7     groundwater, surface water, or subsurface soils.
 3-8                 (15) [(14)]  "Risk-based corrective action" means site
 3-9     assessment or site remediation, the timing, type, and degree of
3-10     which is determined according to case-by-case consideration of
3-11     actual or potential risk to public health from environmental
3-12     exposure to a regulated substance released from a leaking
3-13     underground or aboveground storage tank.
3-14                 (16) [(15)]  "Spent oil" means a regulated substance
3-15     that is a lubricating oil or similar petroleum substance which has
3-16     been refined from crude oil, used for its designed or intended
3-17     purposes, and contaminated as a result of that use by physical or
3-18     chemical impurities, including spent motor vehicle lubricating
3-19     oils, transmission fluid, or brake fluid.
3-20                 (17) [(16)]  "Underground storage tank" means any one
3-21     or combination of underground tanks and any connecting underground
3-22     pipes used to contain an accumulation of regulated substances, the
3-23     volume of which, including the volume of the connecting underground
3-24     pipes, is 10 percent or more beneath the surface of the ground.
3-25                 (18) [(17)]  "Vehicle service and fueling facility"
3-26     means a facility where motor vehicles are serviced or repaired and
3-27     where petroleum products are stored and dispensed from fixed
 4-1     equipment into the fuel tanks of motor vehicles.
 4-2           SECTION 2. Sections 26.346(a) and (c), Water Code, are
 4-3     amended to read as follows:
 4-4           (a)  An underground or aboveground storage tank must be
 4-5     registered with the commission unless the tank is exempt from
 4-6     regulation under Section 26.344 of this code or the tank is covered
 4-7     under Subsection (b) of this section.  The commission by rule shall
 4-8     establish the procedures and requirements for establishing and
 4-9     maintaining current registration information concerning underground
4-10     and aboveground storage tanks.  The commission shall also require
4-11     that an owner or operator of an underground storage tank used for
4-12     storing motor fuels (as defined in commission rule) complete an
4-13     annual underground storage tank compliance certification form.
4-14           (c)  The commission shall issue to each person who owns or
4-15     operates a petroleum storage tank that is registered under this
4-16     section a registration and compliance confirmation certificate that
4-17     includes a brief description of:
4-18                 (1)  the responsibility of the owner or operator under
4-19     Section 26.3512 of this code;
4-20                 (2)  the rights of the owner or operator to participate
4-21     in the petroleum storage tank remediation account and the
4-22     groundwater protection cleanup program established under this
4-23     subchapter; and
4-24                 (3)  the responsibility of the owner or operator of an
4-25     underground storage tank to accurately complete the part of the
4-26     registration form pertaining to the certification of compliance
4-27     with underground storage tank administrative requirements and
 5-1     technical standards if the tank is used for storing motor fuels (as
 5-2     defined in commission rule).
 5-3           SECTION 3.  Section 26.351, Water Code, is amended by adding
 5-4     Subsections (f), (g), and (h) to read as follows:
 5-5           (f)  The person performing corrective action under this
 5-6     section, if the release was reported to the commission on or before
 5-7     December 22, 1998, shall meet the following deadlines:
 5-8                 (1)  a complete site assessment and risk assessment
 5-9     (including, but not limited to, risk-based criteria for
5-10     establishing target concentrations), as determined by the executive
5-11     director, must be received by the agency no later than September 1,
5-12     2002;
5-13                 (2)  a complete Corrective Action Plan, as determined
5-14     by the executive director and including, but not limited to,
5-15     completion of pilot studies and recommendation of a cost-effective
5-16     and technically appropriate remediation methodology, must be
5-17     received by the agency no later than September 1, 2003.  The person
5-18     may, in lieu of this requirement, submit by this same deadline a
5-19     demonstration that a Corrective Action Plan is not required for the
5-20     site in question under commission rules.  Such demonstration must
5-21     be to the executive director's satisfaction;
5-22                 (3)  for those sites found under Subdivision (2) to
5-23     require a Corrective Action Plan, that plan must be initiated and
5-24     proceeding according to the requirements and deadlines in the
5-25     approved plan no later than March 1, 2004;
5-26                 (4)  for sites which require either a Corrective Action
5-27     Plan or groundwater monitoring, a comprehensive and accurate annual
 6-1     status report concerning those activities must be submitted to the
 6-2     agency;
 6-3                 (5)  for sites which require either a Corrective Action
 6-4     Plan or groundwater monitoring, all deadlines set by the executive
 6-5     director concerning the Corrective Action Plan or approved
 6-6     groundwater monitoring plan shall be met; and
 6-7                 (6)  site closure requests for all sites where the
 6-8     executive director agreed in writing that no Corrective Action Plan
 6-9     was required must be received by the agency no later than September
6-10     1, 2005.  The request must be complete, as judged by the executive
6-11     director.
6-12           (g)  For persons regulated under Subsection (f), their
6-13     failure to comply with any deadline listed in Subsection (f) is a
6-14     violation of this section and the executive director may enforce
6-15     such a violation under Chapter 7 of this Code.  A missed deadline
6-16     that is the fault of the person, his agent, or contractor shall
6-17     also eliminate reimbursement eligibility as described at Section
6-18     26.3571(b).  If it can be established to the executive director's
6-19     satisfaction that the deadline was not missed at the fault of the
6-20     person, his agent, or contractor, then reimbursement eligibility is
6-21     not affected under this subsection.
6-22           (h)  A person's liability to perform corrective action under
6-23     this chapter is unrelated to any possible reimbursements the person
6-24     may be eligible for under Section 26.3571.
6-25           SECTION 4.  Section 26.3512(b), Water Code, is amended to
6-26     read as follows:
6-27           (b)  Funds from the petroleum storage tank remediation
 7-1     account may not be used to pay, and the owner or operator of a
 7-2     petroleum storage tank ordered by the commission to take corrective
 7-3     action is responsible for payment of, the following:
 7-4                 (1)  the owner or operator contribution described by
 7-5     Subsections (e)-(k);
 7-6                 (2)  any expenses for corrective action that exceed the
 7-7     applicable amount specified by Section 26.3573(m);
 7-8                 (3)  any expenses for corrective action that are not
 7-9     covered by payment from the petroleum storage tank remediation
7-10     account under the rules or decisions of the commission under this
7-11     subchapter;
7-12                 (4)  any expenses for corrective action not ordered or
7-13     agreed to by the commission; [or]
7-14                 (5)  any expenses for corrective action incurred for
7-15     confirmed releases initially discovered and reported to the
7-16     commission after December 22, 1998; and
7-17                 (6)  any corrective action expenses for which
7-18     reimbursement is prohibited under Sections 26.3571, 26.3573, or
7-19     26.361.
7-20           SECTION 5.  Section 26.355(d), Water Code, is amended to read
7-21     as follows:
7-22           (d)  If the commission uses money from the petroleum storage
7-23     tank remediation account for corrective action or enforcement and
7-24     if the costs are recovered under this section, the commission may
7-25     not recover more than the amount of the applicable owner or
7-26     operator contribution described by Section 26.3512[(e)] of this
7-27     code from an eligible owner or operator for corrective action for
 8-1     each occurrence.  However, this limitation is not applicable to
 8-2     cost recovery actions initiated by the executive director at sites
 8-3     where the executive director has determined that the owner or
 8-4     operator is in violation of Section 26.351(f).
 8-5           SECTION 6.  Section 26.3571, Water Code, is amended by
 8-6     amending Subsection (b) and adding Subsections (g) and (h) to read
 8-7     as follows:
 8-8           (b)  To be an eligible owner or operator for purposes of this
 8-9     subchapter, a person must not have missed any of the deadlines
8-10     described in Section 26.351(f) and must:
8-11                 (1)  be one of the following:
8-12                       (A)  an owner or operator of a petroleum storage
8-13     tank that is subject to regulation under this subchapter;
8-14                       (B)  an owner of land that can clearly prove that
8-15     the land has been contaminated by a release of petroleum products
8-16     from a petroleum storage tank that is subject to regulation under
8-17     this subchapter, whether or not the tank is still attached to that
8-18     land; or
8-19                       (C)  a lender that has a bona fide security or
8-20     lienhold interest in or mortgage lien on any property contaminated
8-21     by the release of petroleum products from a petroleum storage tank
8-22     subject to regulation under this subchapter, or that forecloses on
8-23     or receives an assignment or deed in lieu of foreclosure and
8-24     becomes the owner of such property;
8-25                 (2)  be in compliance with this subchapter as
8-26     determined by the commission; and
8-27                 (3)  meet qualifying criteria established by the
 9-1     commission under Subsection (a) of this section.
 9-2           (c)  The commission by rule may prescribe special conditions,
 9-3     consistent with the objective of formulating an overall plan for
 9-4     remediation of an entire contaminated site, for designating as an
 9-5     eligible owner:
 9-6                 (1)  a person described by Subsection (b)(1)(B) of this
 9-7     section who owns land contaminated by a release of petroleum
 9-8     products from a tank that was or is located on property the person
 9-9     does not own; or
9-10                 (2)  a lender described by Subsection (b)(1)(C) of this
9-11     section.
9-12           (d)  In determining whether an owner or operator is in
9-13     compliance with this subchapter, the commission may consider such
9-14     factors as the owner's or operator's compliance with tank
9-15     registration, release detection and reporting, and corrective
9-16     action requirements.
9-17           (e)  The commission shall designate a person as an eligible
9-18     owner or operator for purposes of this subchapter as provided by
9-19     this section.
9-20           (f)  The commission may not establish any requirements for
9-21     eligibility under this section that are not consistent with this
9-22     subchapter or with federal law and federal regulations.
9-23           (g)  An otherwise eligible owner or operator who misses a
9-24     deadline referenced in Subsection (b) shall be considered
9-25     ineligible for reimbursement under this subchapter.
9-26           (h)  Nothing in this section reduces the liability to perform
9-27     corrective action created under Section 26.351 and other parts of
 10-1    this subchapter.
 10-2          SECTION 7.  Section 26.3572(b), Water Code, is amended to
 10-3    read as follows:
 10-4          (b)  In administering the program, the commission shall:
 10-5                (1)  negotiate with or direct responsible parties in
 10-6    site assessment and remediation matters using risk-based corrective
 10-7    action;
 10-8                (2)  approve site-specific corrective action plans for
 10-9    each site as necessary, using risk-based corrective action;
10-10                (3)  review and inspect site assessment and remedial
10-11    activities and reports;
10-12                (4)  use risk-based corrective action procedures as
10-13    determined by commission rule to establish cleanup levels;
10-14                (5)  adopt by rule criteria for assigning a priority to
10-15    each site using risk-based corrective action and assign a priority
10-16    to each site according to those criteria;
10-17                (6)  adopt by rule criteria for:
10-18                      (A)  risk-based corrective action site closures;
10-19    and
10-20                      (B)  the issuance of a closure letter to the
10-21    owner or operator of a tank site on completion of the commission's
10-22    corrective action requirements; and
10-23                (7)  process claims for petroleum storage tank
10-24    remediation account disbursement in accordance with this
10-25    subchapter.
10-26          SECTION 8.  Section 26.3573, Water Code, is amended by
10-27    amending Subsection (d) and by adding Subsections (r) and (s) to
 11-1    read as follows:
 11-2          (d)  The commission may use the money in the petroleum
 11-3    storage tank remediation account to pay:
 11-4                (1)  necessary expenses associated with the
 11-5    administration of the petroleum storage tank remediation account
 11-6    and the groundwater protection cleanup program, not to exceed an
 11-7    amount equal to:  11.8 [6.7] percent of the gross receipts of that
 11-8    account for FY 02/03; 16.40 percent of the gross receipts of that
 11-9    account for FY 04/05; and 21.1 percent of the gross receipts of
11-10    that account for FY 06/07;
11-11                (2)  expenses associated with investigation, cleanup,
11-12    or corrective action measures performed in response to a release or
11-13    threatened release from a petroleum storage tank, whether those
11-14    expenses are incurred by the commission or pursuant to a contract
11-15    between a contractor and an eligible owner or operator as
11-16    authorized by this subchapter; and
11-17                (3)  subject to the conditions of Subsection (e) of
11-18    this section, expenses associated with investigation, cleanup, or
11-19    corrective action measures performed in response to a release or
11-20    threatened release of hydraulic fluid or spent oil from hydraulic
11-21    lift systems or tanks located at a vehicle service and fueling
11-22    facility and used as part of the operations of that facility.
11-23          (r)  The petroleum storage tank remediation account may not
11-24    be used to reimburse any person for corrective action performed
11-25    after September 1, 2005.
11-26          (s)  The petroleum storage tank remediation account may not
11-27    be used to reimburse any person for corrective action contained in
 12-1    a reimbursement claim filed with the commission after March 1,
 12-2    2006.
 12-3          SECTION 9.  Sections 26.3574(b), (x), (y), (z), and (aa),
 12-4    Water Code, are amended to read as follows:
 12-5          (b)  A fee is imposed on the delivery of a petroleum product
 12-6    on withdrawal from bulk of that product as provided by this
 12-7    subsection.  Each operator of a bulk facility on withdrawal from
 12-8    bulk of a petroleum product shall collect from the person who
 12-9    orders the withdrawal a fee in an amount determined as follows:
12-10                (1)  $12.50 [$18.75] for each delivery into a cargo
12-11    tank having a capacity of less than 2,500 gallons for FY 02 and FY
12-12    03; $10.00 for each delivery into a cargo tank having a capacity of
12-13    less than 2,500 gallons for FY 04 and FY 05; $5.00 for each
12-14    delivery into a cargo tank having a capacity of less than 2,500
12-15    gallons for FY 06; and $2.00 for each delivery into a cargo tank
12-16    having a capacity of less than 2,500 gallons for FY 07;
12-17                (2)  $25.00 [$37.50] for each delivery into a cargo
12-18    tank having a capacity of 2,500 gallons or more but less than 5,000
12-19    gallons for FY 02 and FY 03; $20.00 for each delivery into a cargo
12-20    tank having a capacity of 2,500 gallons or more but less than 5,000
12-21    gallons for FY 04 and FY 05; $10.00 for each delivery into a cargo
12-22    tank having a capacity of 2,500 gallons or more but less than 5,000
12-23    gallons for FY 06; and $4.00 for each delivery into a cargo tank
12-24    having a capacity of 2,500 gallons or more but less than 5,000
12-25    gallons for FY 07;
12-26                (3)  $37.50 [$56.25] for each delivery into a cargo
12-27    tank having a capacity of 5,000 gallons or more but less than 8,000
 13-1    gallons for FY 02 and FY 03; $30.00 for each delivery into a cargo
 13-2    tank having a capacity of 5,000 gallons or more but less than 8,000
 13-3    gallons for FY 04 and FY 05; $15.00 for each delivery into a cargo
 13-4    tank having a capacity of 5,000 gallons or more but less than 8,000
 13-5    gallons for FY 06; and $6.00 for each delivery into a cargo tank
 13-6    having a capacity of 5,000 gallons or more but less than 8,000
 13-7    gallons for FY 07;
 13-8                (4)  $50.00 [$75] for each delivery into a cargo tank
 13-9    having a capacity of 8,000 gallons or more but less than 10,000
13-10    gallons for FY 02 and FY 03; $40.00 for each delivery into a cargo
13-11    tank having a capacity of 8,000 gallons or more but less than
13-12    10,000 gallons for FY 04 and FY 05; $20.00 for each delivery into a
13-13    cargo tank having a capacity of 8,000 gallons or more but less than
13-14    10,000 gallons for FY 06; and $8.00 for each delivery into a cargo
13-15    tank having a capacity of 8,000 gallons or more but less than
13-16    10,000 gallons for FY 07; and
13-17                (5)  a $25.00 [$37.50] fee for each increment of 5,000
13-18    gallons or any part thereof delivered into a cargo tank having a
13-19    capacity of 10,000 gallons or more for FY 02 and FY 03; $20.00 for
13-20    each increment of 5,000 gallons or any part thereof delivered into
13-21    a cargo tank having a capacity of 10,000 gallons or more for FY 04
13-22    and FY 05; $10.00 for each increment of 5,000 gallons or any part
13-23    thereof delivered into a cargo tank having a capacity of 10,000
13-24    gallons or more for FY 06; and $4.00 for each increment of 5,000
13-25    gallons or any part thereof delivered into a cargo tank having a
13-26    capacity of 10,000 gallons or more for FY 07.
13-27          (x)  [After the deposits have been made to the credit of the
 14-1    general revenue fund under Section 403.092(c)(1), Government Code,
 14-2    as added by Chapter 533, Acts of the 73rd Legislature, 1993, the
 14-3    fee imposed under this section may not be collected or required to
 14-4    be paid on or after the first day of the second month following
 14-5    notification by the commission of the date on which the unobligated
 14-6    balance in the petroleum storage tank remediation account equals or
 14-7    exceeds $100 million.  The commission shall notify the comptroller
 14-8    in writing of the date on which the unobligated balance equals or
 14-9    exceeds $100 million.]
14-10          [(y)  If the unobligated balance in the petroleum storage
14-11    tank remediation account falls below $25 million, the fee shall be
14-12    reinstated, effective on the first day of the second month
14-13    following notification by the commission, in amounts determined as
14-14    follows:]
14-15                [(1)  $9.38 for each delivery into a cargo tank having
14-16    a capacity of less than 2,500 gallons;]
14-17                [(2)  $18.75 for each delivery into a cargo tank having
14-18    a capacity of 2,500 gallons or more but less than 5,000 gallons;]
14-19                [(3)  $28.13 for each delivery into a cargo tank having
14-20    a capacity of 5,000 gallons or more but less than 8,000 gallons;]
14-21                [(4)  $37.50 for each delivery into a cargo tank having
14-22    a capacity of 8,000 gallons or more but less than 10,000 gallons;
14-23    and]
14-24                [(5)  an $18.75 fee for each increment of 5,000 gallons
14-25    or any part thereof delivered into a cargo tank having a capacity
14-26    of 10,000 gallons or more.]
14-27          [(z)  For purposes of Subsections (x) and (y) of this
 15-1    section, the unobligated balance in the petroleum storage tank
 15-2    remediation account shall be determined by subtracting from the
 15-3    cash balance of the account at the end of each month the sum of the
 15-4    total balances remaining on all contracts entered by the commission
 15-5    or an eligible owner for corrective action plus the total estimates
 15-6    made by the commission of allowable costs for corrective action
 15-7    that are unpaid relating to all  commission orders issued before
 15-8    that date to enforce this subchapter.]
 15-9          [(aa)]  The commission shall report to the Legislative Budget
15-10    Board at the end of each fiscal quarter on the financial status of
15-11    the petroleum storage tank remediation account.
15-12          SECTION 10. Section 26.361, Water Code, is amended to read as
15-13    follows:
15-14          Sec. 26.361.  EXPIRATION OF REIMBURSEMENT PROGRAM. [(a)]
15-15    Notwithstanding any other provision of this subchapter, the
15-16    reimbursement program established under this subchapter expires
15-17    September 1, 2006 [2003]. On or after September 1, 2006 [2003], the
15-18    commission may not use money from the petroleum storage tank
15-19    remediation account to reimburse an eligible owner or operator for
15-20    any expenses of corrective action or to pay the claim of a person
15-21    who has contracted with an eligible owner or operator to perform
15-22    corrective action.
15-23          [(b)  On or after March 1, 2002, the commission may not
15-24    collect a fee under Section 26.3574 of this code.]
15-25          SECTION 11. Section 26.361(b), Water Code, is repealed.
15-26          SECTION 12. This Act takes effect September 1, 2001.