1-1 By: Junell, Flores (Senate Sponsor - Duncan) H.B. No. 2687
1-2 (In the Senate - Received from the House May 11, 2001;
1-3 May 11, 2001, read first time and referred to Committee on Natural
1-4 Resources; May 11, 2001, reported favorably by the following vote:
1-5 Yeas 6, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the program for the regulation and remediation of
1-9 underground and aboveground storage tanks.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 26.342, Water Code, is amended by amending
1-12 Subdivisions (9)-(17) and adding Subdivision (18) to read as
1-13 follows:
1-14 (9) "Owner" means a person who holds legal possession
1-15 or ownership of an interest in an underground storage tank system
1-16 or an aboveground storage tank. If the actual ownership of an
1-17 underground storage tank system or an aboveground storage tank is
1-18 uncertain, unknown, or in dispute, the fee simple owner of the
1-19 surface estate of the tract on which the tank system is located is
1-20 considered the owner of the system unless that person can
1-21 demonstrate by appropriate documentation, including a deed
1-22 reservation, invoice, or bill of sale, or by other legally
1-23 acceptable means that the underground storage tank system or
1-24 aboveground storage tank is owned by another person. A person that
1-25 has registered as an owner of an underground storage tank system or
1-26 aboveground storage tank with the commission under Section 26.346
1-27 after September 1, 1987, shall be considered the tank system owner
1-28 until such time as documentation demonstrates to the executive
1-29 director's satisfaction that the legal interest in the tank system
1-30 was transferred to a different person subsequent to the date of the
1-31 tank registration. This definition is subject to the limitations
1-32 found in Water Code Section 26.3514 (Limits on Liability of
1-33 Lender), Section 26.3515 (Limits on Liability of Corporate
1-34 Fiduciary), and Section 26.3516 (Limits on Liability of Taxing
1-35 Unit).
1-36 (10) "Person" means an individual, trust, firm,
1-37 joint-stock company, corporation, government corporation,
1-38 partnership, association, state, municipality, commission,
1-39 political subdivision of a state, an interstate body, a consortium,
1-40 joint venture, commercial entity, or the United States government.
1-41 (11) [(10)] "Petroleum product" means a petroleum
1-42 product that is obtained from distilling and processing crude oil
1-43 and that is capable of being used as a fuel for the propulsion of a
1-44 motor vehicle or aircraft, including motor gasoline, gasohol, other
1-45 alcohol blended fuels, aviation gasoline, kerosene, distillate fuel
1-46 oil, and #1 and #2 diesel. The term does not include naphtha-type
1-47 jet fuel, kerosene-type jet fuel, or a petroleum product destined
1-48 for use in chemical manufacturing or feedstock of that
1-49 manufacturing.
1-50 (12) [(11)] "Petroleum storage tank" means:
1-51 (A) any one or combination of aboveground
1-52 storage tanks that contain petroleum products and that are
1-53 regulated by the commission; or
1-54 (B) any one or combination of underground
1-55 storage tanks and any connecting underground pipes that contain
1-56 petroleum products and that are regulated by the commission.
1-57 (13) [(12)] "Regulated substance" means an element,
1-58 compound, mixture, solution, or substance that, when released into
1-59 the environment, may present substantial danger to the public
1-60 health, welfare, or the environment.
1-61 (14) [(13)] "Release" means any spilling including
1-62 overfills, leaking, emitting, discharging, escaping, leaching, or
1-63 disposing from an underground or aboveground storage tank into
1-64 groundwater, surface water, or subsurface soils.
2-1 (15) [(14)] "Risk-based corrective action" means site
2-2 assessment or site remediation, the timing, type, and degree of
2-3 which is determined according to case-by-case consideration of
2-4 actual or potential risk to public health from environmental
2-5 exposure to a regulated substance released from a leaking
2-6 underground or aboveground storage tank.
2-7 (16) [(15)] "Spent oil" means a regulated substance
2-8 that is a lubricating oil or similar petroleum substance which has
2-9 been refined from crude oil, used for its designed or intended
2-10 purposes, and contaminated as a result of that use by physical or
2-11 chemical impurities, including spent motor vehicle lubricating
2-12 oils, transmission fluid, or brake fluid.
2-13 (17) [(16)] "Underground storage tank" means any one
2-14 or combination of underground tanks and any connecting underground
2-15 pipes used to contain an accumulation of regulated substances, the
2-16 volume of which, including the volume of the connecting underground
2-17 pipes, is 10 percent or more beneath the surface of the ground.
2-18 (18) [(17)] "Vehicle service and fueling facility"
2-19 means a facility where motor vehicles are serviced or repaired and
2-20 where petroleum products are stored and dispensed from fixed
2-21 equipment into the fuel tanks of motor vehicles.
2-22 SECTION 2. Sections 26.346(a) and (c), Water Code, are
2-23 amended to read as follows:
2-24 (a) An underground or aboveground storage tank must be
2-25 registered with the commission unless the tank is exempt from
2-26 regulation under Section 26.344 of this code or the tank is covered
2-27 under Subsection (b) of this section. The commission by rule shall
2-28 establish the procedures and requirements for establishing and
2-29 maintaining current registration information concerning underground
2-30 and aboveground storage tanks. The commission shall also require
2-31 that an owner or operator of an underground storage tank used for
2-32 storing motor fuels (as defined in commission rule) complete an
2-33 annual underground storage tank compliance certification form.
2-34 (c) The commission shall issue to each person who owns or
2-35 operates a petroleum storage tank that is registered under this
2-36 section a registration and compliance confirmation certificate that
2-37 includes a brief description of:
2-38 (1) the responsibility of the owner or operator under
2-39 Section 26.3512 of this code;
2-40 (2) the rights of the owner or operator to participate
2-41 in the petroleum storage tank remediation account and the
2-42 groundwater protection cleanup program established under this
2-43 subchapter; and
2-44 (3) the responsibility of the owner or operator of an
2-45 underground storage tank to accurately complete the part of the
2-46 registration form pertaining to the certification of compliance
2-47 with underground storage tank administrative requirements and
2-48 technical standards if the tank is used for storing motor fuels (as
2-49 defined in commission rule).
2-50 SECTION 3. Section 26.351, Water Code, is amended by adding
2-51 Subsections (f), (g), and (h) to read as follows:
2-52 (f) The person performing corrective action under this
2-53 section, if the release was reported to the commission on or before
2-54 December 22, 1998, shall meet the following deadlines:
2-55 (1) a complete site assessment and risk assessment
2-56 (including, but not limited to, risk-based criteria for
2-57 establishing target concentrations), as determined by the executive
2-58 director, must be received by the agency no later than September 1,
2-59 2002;
2-60 (2) a complete corrective action plan, as determined
2-61 by the executive director and including, but not limited to,
2-62 completion of pilot studies and recommendation of a cost-effective
2-63 and technically appropriate remediation methodology, must be
2-64 received by the agency no later than September 1, 2003. The person
2-65 may, in lieu of this requirement, submit by this same deadline a
2-66 demonstration that a corrective action plan is not required for the
2-67 site in question under commission rules. Such demonstration must
2-68 be to the executive director's satisfaction;
2-69 (3) for those sites found under Subdivision (2) to
3-1 require a corrective action plan, that plan must be initiated and
3-2 proceeding according to the requirements and deadlines in the
3-3 approved plan no later than March 1, 2004;
3-4 (4) for sites which require either a corrective action
3-5 plan or groundwater monitoring, a comprehensive and accurate annual
3-6 status report concerning those activities must be submitted to the
3-7 agency;
3-8 (5) for sites which require either a corrective action
3-9 plan or groundwater monitoring, all deadlines set by the executive
3-10 director concerning the corrective action plan or approved
3-11 groundwater monitoring plan shall be met; and
3-12 (6) site closure requests for all sites where the
3-13 executive director agreed in writing that no corrective action plan
3-14 was required must be received by the agency no later than September
3-15 1, 2005. The request must be complete, as judged by the executive
3-16 director.
3-17 (g) For persons regulated under Subsection (f), their
3-18 failure to comply with any deadline listed in Subsection (f) is a
3-19 violation of this section and the executive director may enforce
3-20 such a violation under Chapter 7 of this code. A missed deadline
3-21 that is the fault of the person, his agent, or contractor shall
3-22 also eliminate reimbursement eligibility as described at Section
3-23 26.3571(b). If it can be established to the executive director's
3-24 satisfaction that the deadline was not missed at the fault of the
3-25 person, his agent, or contractor, then reimbursement eligibility is
3-26 not affected under this subsection.
3-27 (h) A person's liability to perform corrective action under
3-28 this chapter is unrelated to any possible reimbursements the person
3-29 may be eligible for under Section 26.3571.
3-30 SECTION 4. Section 26.3512(b), Water Code, is amended to
3-31 read as follows:
3-32 (b) Funds from the petroleum storage tank remediation
3-33 account may not be used to pay, and the owner or operator of a
3-34 petroleum storage tank ordered by the commission to take corrective
3-35 action is responsible for payment of, the following:
3-36 (1) the owner or operator contribution described by
3-37 Subsections (e)-(k);
3-38 (2) any expenses for corrective action that exceed the
3-39 applicable amount specified by Section 26.3573(m);
3-40 (3) any expenses for corrective action that are not
3-41 covered by payment from the petroleum storage tank remediation
3-42 account under the rules or decisions of the commission under this
3-43 subchapter;
3-44 (4) any expenses for corrective action not ordered or
3-45 agreed to by the commission; [or]
3-46 (5) any expenses for corrective action incurred for
3-47 confirmed releases initially discovered and reported to the
3-48 commission after December 22, 1998; and
3-49 (6) any corrective action expenses for which
3-50 reimbursement is prohibited under Section 26.3571, 26.3573, or
3-51 26.361.
3-52 SECTION 5. Section 26.355(d), Water Code, is amended to read
3-53 as follows:
3-54 (d) If the commission uses money from the petroleum storage
3-55 tank remediation account for corrective action or enforcement and
3-56 if the costs are recovered under this section, the commission may
3-57 not recover more than the amount of the applicable owner or
3-58 operator contribution described by Section 26.3512 [26.3512(e)] of
3-59 this code from an eligible owner or operator for corrective action
3-60 for each occurrence. However, this limitation is not applicable to
3-61 cost recovery actions initiated by the executive director at sites
3-62 where the executive director has determined that the owner or
3-63 operator is in violation of Section 26.351(f).
3-64 SECTION 6. Section 26.3571, Water Code, is amended by
3-65 amending Subsection (b) and adding Subsections (g) and (h) to read
3-66 as follows:
3-67 (b) To be an eligible owner or operator for purposes of this
3-68 subchapter, a person must not have missed any of the deadlines
3-69 described in Section 26.351(f) and must:
4-1 (1) be one of the following:
4-2 (A) an owner or operator of a petroleum storage
4-3 tank that is subject to regulation under this subchapter;
4-4 (B) an owner of land that can clearly prove that
4-5 the land has been contaminated by a release of petroleum products
4-6 from a petroleum storage tank that is subject to regulation under
4-7 this subchapter, whether or not the tank is still attached to that
4-8 land; or
4-9 (C) a lender that has a bona fide security or
4-10 lienhold interest in or mortgage lien on any property contaminated
4-11 by the release of petroleum products from a petroleum storage tank
4-12 subject to regulation under this subchapter, or that forecloses on
4-13 or receives an assignment or deed in lieu of foreclosure and
4-14 becomes the owner of such property;
4-15 (2) be in compliance with this subchapter as
4-16 determined by the commission; and
4-17 (3) meet qualifying criteria established by the
4-18 commission under Subsection (a) of this section.
4-19 (g) An otherwise eligible owner or operator who misses a
4-20 deadline referenced in Subsection (b) shall be considered
4-21 ineligible for reimbursement under this subchapter.
4-22 (h) Nothing in this section reduces the liability to perform
4-23 corrective action created under Section 26.351 and other parts of
4-24 this subchapter.
4-25 SECTION 7. Section 26.3572(b), Water Code, is amended to
4-26 read as follows:
4-27 (b) In administering the program, the commission shall:
4-28 (1) negotiate with or direct responsible parties in
4-29 site assessment and remediation matters using risk-based corrective
4-30 action;
4-31 (2) approve site-specific corrective action plans for
4-32 each site as necessary, using risk-based corrective action;
4-33 (3) review and inspect site assessment and remedial
4-34 activities and reports;
4-35 (4) use risk-based corrective action procedures as
4-36 determined by commission rule to establish cleanup levels;
4-37 (5) adopt by rule criteria for assigning a priority to
4-38 each site using risk-based corrective action and assign a priority
4-39 to each site according to those criteria;
4-40 (6) adopt by rule criteria for:
4-41 (A) risk-based corrective action site closures;
4-42 and
4-43 (B) the issuance of a closure letter to the
4-44 owner or operator of a tank site on completion of the commission's
4-45 corrective action requirements; and
4-46 (7) process claims for petroleum storage tank
4-47 remediation account disbursement in accordance with this
4-48 subchapter.
4-49 SECTION 8. Section 26.3573, Water Code, is amended by
4-50 amending Subsection (d) and by adding Subsections (r) and (s) to
4-51 read as follows:
4-52 (d) The commission may use the money in the petroleum
4-53 storage tank remediation account to pay:
4-54 (1) necessary expenses associated with the
4-55 administration of the petroleum storage tank remediation account
4-56 and the groundwater protection cleanup program, not to exceed an
4-57 amount equal to: 11.8 [6.7] percent of the gross receipts of that
4-58 account for FY 02/03; 16.40 percent of the gross receipts of that
4-59 account for FY 04/05; and 21.1 percent of the gross receipts of
4-60 that account for FY 06/07;
4-61 (2) expenses associated with investigation, cleanup,
4-62 or corrective action measures performed in response to a release or
4-63 threatened release from a petroleum storage tank, whether those
4-64 expenses are incurred by the commission or pursuant to a contract
4-65 between a contractor and an eligible owner or operator as
4-66 authorized by this subchapter; and
4-67 (3) subject to the conditions of Subsection (e) of
4-68 this section, expenses associated with investigation, cleanup, or
4-69 corrective action measures performed in response to a release or
5-1 threatened release of hydraulic fluid or spent oil from hydraulic
5-2 lift systems or tanks located at a vehicle service and fueling
5-3 facility and used as part of the operations of that facility.
5-4 (r) The petroleum storage tank remediation account may not
5-5 be used to reimburse any person for corrective action performed
5-6 after September 1, 2005.
5-7 (s) The petroleum storage tank remediation account may not
5-8 be used to reimburse any person for corrective action contained in
5-9 a reimbursement claim filed with the commission after March 1,
5-10 2006.
5-11 SECTION 9. Sections 26.3574(b), (x), (y), (z), and (aa),
5-12 Water Code, are amended to read as follows:
5-13 (b) A fee is imposed on the delivery of a petroleum product
5-14 on withdrawal from bulk of that product as provided by this
5-15 subsection. Each operator of a bulk facility on withdrawal from
5-16 bulk of a petroleum product shall collect from the person who
5-17 orders the withdrawal a fee in an amount determined as follows:
5-18 (1) $12.50 [$18.75] for each delivery into a cargo
5-19 tank having a capacity of less than 2,500 gallons for FY 02 and FY
5-20 03; $10.00 for each delivery into a cargo tank having a capacity of
5-21 less than 2,500 gallons for FY 04 and FY 05; $5.00 for each
5-22 delivery into a cargo tank having a capacity of less than 2,500
5-23 gallons for FY 06; and $2.00 for each delivery into a cargo tank
5-24 having a capacity of less than 2,500 gallons for FY 07;
5-25 (2) $25.00 [$37.50] for each delivery into a cargo
5-26 tank having a capacity of 2,500 gallons or more but less than 5,000
5-27 gallons for FY 02 and FY 03; $20.00 for each delivery into a cargo
5-28 tank having a capacity of 2,500 gallons or more but less than 5,000
5-29 gallons for FY 04 and FY 05; $10.00 for each delivery into a cargo
5-30 tank having a capacity of 2,500 gallons or more but less than 5,000
5-31 gallons for FY 06; and $4.00 for each delivery into a cargo tank
5-32 having a capacity of 2,500 gallons or more but less than 5,000
5-33 gallons for FY 07;
5-34 (3) $37.50 [$56.25] for each delivery into a cargo
5-35 tank having a capacity of 5,000 gallons or more but less than 8,000
5-36 gallons for FY 02 and FY 03; $30.00 for each delivery into a cargo
5-37 tank having a capacity of 5,000 gallons or more but less than 8,000
5-38 gallons for FY 04 and FY 05; $15.00 for each delivery into a cargo
5-39 tank having a capacity of 5,000 gallons or more but less than 8,000
5-40 gallons for FY 06; and $6.00 for each delivery into a cargo tank
5-41 having a capacity of 5,000 gallons or more but less than 8,000
5-42 gallons for FY 07;
5-43 (4) $50.00 [$75] for each delivery into a cargo tank
5-44 having a capacity of 8,000 gallons or more but less than 10,000
5-45 gallons for FY 02 and FY 03; $40.00 for each delivery into a cargo
5-46 tank having a capacity of 8,000 gallons or more but less than
5-47 10,000 gallons for FY 04 and FY 05; $20.00 for each delivery into a
5-48 cargo tank having a capacity of 8,000 gallons or more but less than
5-49 10,000 gallons for FY 06; and $8.00 for each delivery into a cargo
5-50 tank having a capacity of 8,000 gallons or more but less than
5-51 10,000 gallons for FY 07; and
5-52 (5) a $25.00 [$37.50] fee for each increment of 5,000
5-53 gallons or any part thereof delivered into a cargo tank having a
5-54 capacity of 10,000 gallons or more for FY 02 and FY 03; $20.00 for
5-55 each increment of 5,000 gallons or any part thereof delivered into
5-56 a cargo tank having a capacity of 10,000 gallons or more for FY 04
5-57 and FY 05; $10.00 for each increment of 5,000 gallons or any part
5-58 thereof delivered into a cargo tank having a capacity of 10,000
5-59 gallons or more for FY 06; and $4.00 for each increment of 5,000
5-60 gallons or any part thereof delivered into a cargo tank having a
5-61 capacity of 10,000 gallons or more for FY 07.
5-62 (x) [After the deposits have been made to the credit of the
5-63 general revenue fund under Section 403.092(c)(1), Government Code,
5-64 as added by Chapter 533, Acts of the 73rd Legislature, 1993, the
5-65 fee imposed under this section may not be collected or required to
5-66 be paid on or after the first day of the second month following
5-67 notification by the commission of the date on which the unobligated
5-68 balance in the petroleum storage tank remediation account equals or
5-69 exceeds $100 million. The commission shall notify the comptroller
6-1 in writing of the date on which the unobligated balance equals or
6-2 exceeds $100 million.]
6-3 [(y) If the unobligated balance in the petroleum storage
6-4 tank remediation account falls below $25 million, the fee shall be
6-5 reinstated, effective on the first day of the second month
6-6 following notification by the commission, in amounts determined as
6-7 follows:]
6-8 [(1) $9.38 for each delivery into a cargo tank having
6-9 a capacity of less than 2,500 gallons;]
6-10 [(2) $18.75 for each delivery into a cargo tank having
6-11 a capacity of 2,500 gallons or more but less than 5,000 gallons;]
6-12 [(3) $28.13 for each delivery into a cargo tank having
6-13 a capacity of 5,000 gallons or more but less than 8,000 gallons;]
6-14 [(4) $37.50 for each delivery into a cargo tank having
6-15 a capacity of 8,000 gallons or more but less than 10,000 gallons;
6-16 and]
6-17 [(5) an $18.75 fee for each increment of 5,000 gallons
6-18 or any part thereof delivered into a cargo tank having a capacity
6-19 of 10,000 gallons or more.]
6-20 [(z) For purposes of Subsections (x) and (y) of this
6-21 section, the unobligated balance in the petroleum storage tank
6-22 remediation account shall be determined by subtracting from the
6-23 cash balance of the account at the end of each month the sum of the
6-24 total balances remaining on all contracts entered by the commission
6-25 or an eligible owner for corrective action plus the total estimates
6-26 made by the commission of allowable costs for corrective action
6-27 that are unpaid relating to all commission orders issued before
6-28 that date to enforce this subchapter.]
6-29 [(aa)] The commission shall report to the Legislative Budget
6-30 Board at the end of each fiscal quarter on the financial status of
6-31 the petroleum storage tank remediation account.
6-32 SECTION 10. Section 26.361, Water Code, is amended to read as
6-33 follows:
6-34 Sec. 26.361. EXPIRATION OF REIMBURSEMENT PROGRAM. [(a)]
6-35 Notwithstanding any other provision of this subchapter, the
6-36 reimbursement program established under this subchapter expires
6-37 September 1, 2006 [2003]. On or after September 1, 2006 [2003], the
6-38 commission may not use money from the petroleum storage tank
6-39 remediation account to reimburse an eligible owner or operator for
6-40 any expenses of corrective action or to pay the claim of a person
6-41 who has contracted with an eligible owner or operator to perform
6-42 corrective action.
6-43 [(b) On or after March 1, 2002, the commission may not
6-44 collect a fee under Section 26.3574 of this code.]
6-45 SECTION 11. Section 26.361(b), Water Code, is repealed.
6-46 SECTION 12. This Act takes effect September 1, 2001.
6-47 * * * * *