By: Alvarado S.B. No. 900
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the safety of bulk storage vessels.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 26.341(b), Water Code, is amended to
  read as follows:
         (b)  The legislature declares that it is the policy of this
  state and the purpose of this subchapter to:
               (1)  maintain and protect the quality of groundwater
  and surface water resources in the state from certain substances in
  underground and aboveground storage tanks that may pollute
  groundwater and surface water resources; [and]
               (2)  require the use of all reasonable methods,
  including risk-based corrective action, to implement this policy;
  and
               (3)  promote the safety of bulk storage vessels as
  defined in Section 26.3442, by adopting requirements for the
  design, construction, operation, and maintenance of bulk storage
  vessels, with the objective of protecting groundwater and surface
  water resources in the event of accidents and natural disasters.
         SECTION 2.  Subchapter I, Chapter 26, Water Code, is amended
  by adding Sections 26.3442, 26.3443, and 26.3444 to read as
  follows:
         Section 26.3442  BULK STORAGE VESSEL PERFORMANCE STANDARDS
  PROGRAM.  (a)  Definitions:
               (1)  "Bulk storage vessel" means a stationary,
  nonvehicular device that:
                     (A)  is made of nonearthen materials;
                     (B)  is located on or above the surface of the
  ground;
                     (C)  has a capacity of 8,000 barrels or more;
                     (D)  contains a regulated substance:
                           (i)  listed under Section 101(14) of the
  Comprehensive Environmental Response, Compensation, and Liability
  Act of 1980 (42 U.S.C. Section 9601 et seq.), but does not include a
  substance regulated as a hazardous waste under the federal Solid
  Waste Disposal Act (42 U.S.C. Section 6921 et seq.); or
                           (ii)  listed under Environmental Protection
  Agency 40 C.F.R. 68.130; and
                     (E)  is located at or is part of a petrochemical
  plant, a petroleum refinery, or a bulk storage terminal as that term
  is defined by Subsection (a)(2).
               (2)  "Bulk storage terminal" means a site in this
  state, including end-of-line pipeline storage terminals (excluding
  breakout tanks), refinery storage terminals, for-hire storage
  terminals, and rail and barge storage terminals.
               (3)  "National consensus standards" means any
  performance standard for storage tanks, or a modification thereof,
  that:
                     (A)  has been adopted and promulgated by a
  nationally recognized standards-producing organization under
  procedures whereby it can be determined by the commission that
  persons interested and affected by the scope or provisions of the
  standard have reached substantial agreement on its adoption; and
                     (B)  was formulated in a manner that afforded an
  opportunity for diverse views to be considered.
         (b)  The following aboveground storage tanks, including any
  pipe that is connected to the tank, are not considered to be a bulk
  storage vessel and are exempt from regulation under the Bulk
  Storage Vessel Performance Standards Program requirements in
  Sections 26.3442, 26.3443, and 26.3444:
               (1)  a tank used in or associated with the production of
  crude oil or natural gas;
               (2)  a tank that is part of a stormwater or wastewater
  collection system;
               (3)  a flow-through process tank, including a pressure
  vessel or process vessel and oil and water separators;
               (4)  a storage vessel operating above 0.5 Pounds per
  Square Inch Gauge;
               (5)  heated tanks;
               (6)  an intermediate bulk container or similar tank
  that may be moved within a facility;
               (7)  a tank regulated under the federal Surface Mining
  Control and Reclamation Act (30 U.S.C. Sec. 1201 et seq.);
               (8)  a tank used for the storage of products regulated
  under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301
  et seq.);
               (9)  a tank, including piping and collection and
  treatment systems, that is used in the management of leachate,
  methane gas, or methane gas condensate, unless the tank is used for
  storage of a regulated substance;
               (10)  a tank or pressure vessel that is used to store
  liquid petroleum gas; and
               (11)  a tank regulated under the U.S. Department of
  Transportation's (DOT's) Pipeline and Hazardous Materials Safety
  Administration (PHMSA) (49 U.S.C. 60101 et seq.).
         (c)  Not later than September 1, 2023, the commission shall
  establish a Bulk Storage Vessel Performance Standards Program as
  described in this section to provide for the protection of
  groundwater and surface water resources from a release of
  substances from a storage vessel in the event of an accident or
  natural disaster.
         (d)  In establishing the portion of the Bulk Storage Vessel
  Performance Standards Program governed by this subsection, the
  commission shall, except as provided by Section 26.3443, include
  all and only those critical safety elements that are applicable to a
  storage vessel, and that the commission determines to be critical
  in this state for the protection described by Subsection (c), from
  the following federal statutes and regulations, ensuring that the
  correct critical safety elements are applied to the correct types
  of storage vessel as delineated in the applicability section of
  each cited federal statute and regulation:
               (1)  Clean Air Act Risk Management Plan Rule and
  Maximum Achievable Control Technology/National Emission Standards
  for Hazardous Air Pollutants program requirements;
               (2)  Resource Conservation and Recovery Act
  requirements for Treatment, Storage, and Disposal Facilities (40
  C.F.R. Parts 264/265, Subparts A-E);
               (3)  Spill Prevention, Control, and Countermeasure
  Regulations (40 C.F.R. Part 112); and
               (4)  EPA Risk Management Plan Rules regarding accident
  prevention at facilities that use certain hazardous substances.
         (e)  In establishing the portion of the Bulk Storage Vessel
  Performance Standards Program governed by this subsection, the
  commission shall, except as provided by Section 26.3443, include
  all and only those critical safety elements that are applicable to a
  storage vessel, and that the commission determines to be critical
  in this state for the protection described by Subsection (c), from
  the following national consensus standards, ensuring that the
  correct critical safety elements are applied to the correct types
  of storage vessel as delineated in the applicability section of
  each cited national consensus standard:
               (1)  for in-service bulk storage vessels constructed on
  or before September 1, 2027:
                     (A)  from American Petroleum Institute (API)
  Standard 653: Tank Inspection, Repairs, Alteration, and
  Reconstruction, the commission shall require adherence to the
  protocol to applicable tanks included in this standard for the
  following:
                           (i)  Section 4.3: Tank Shell Evaluation;
                           (ii)  Section 4.4: Tank Bottom Evaluation;
                           (iii)  Section 4.5: Tank Foundation
  Evaluation;
                           (iv)  Section 6.2: Inspection Frequency
  Considerations;
                           (v)  Section 6.3: Inspections from the
  Outside of the Tank;
                           (vi)  Section 6.4: Internal Inspection, if
  applicable in accordance with Section 6.3;
                           (vii)  Section 8: Design Considerations for
  Reconstructed Tanks; and
                           (viii)  Section 9: Tank Repair and
  Alteration;
                     (B)  from API Standard 2350: Overfill Protection
  for Storage Tanks in Petroleum Facilities, the commission shall
  include the following critical safety elements for bulk storage
  vessels included in this standard:
                           (i)  Section 4: Overfill Prevention
  Systems, including management systems and operational procedures
  before and after product receipt as applicable;
                           (ii)  Section 5: Overfill Prevention
  Systems, including requirements for manual or automated overfill
  prevention systems as applicable, including use of remote operated
  shutoff valves;
                           (iii)  the requirements referenced in
  Subparagraphs (i) and (ii) only apply to atmospheric tanks as
  specified in API Standard 2350; and
                           (iv)  API 2350 assessment protocol to
  determine how to manage overfill through engineered controls,
  administrative controls, and hazard class in applicable
  quantities; and
                     (C)  from either National Fire Protection
  Association (NFPA) 30 Ch. 22 or API Recommended Practice 2001, the
  commission shall require fire suppression systems on bulk storage
  vessels subject to the protocol in the applicable standard; and
               (2)  for in-service bulk storage vessels constructed
  after September 1, 2027:
                     (A)  all of the standards listed in Subdivision
  (1); and
                     (B)  API 650: Welded Tanks for Oil Storage and
  NFPA 30, Chapter 22 location standards.
         (f)  The applicable standard chosen by the commission under
  Subsection (e)(1)(C) only applies to material stored at atmospheric
  pressure with a flashpoint less than or equal to 100 Fahrenheit as
  defined by OSHA Process Safety Management.
         (g)  The applicable standard in Subsection (e)(2)(B) only
  applies to atmospheric bulk storage vessels as defined in API 650.
         (h)  The commission may require a plan to control spills from
  atmospheric bulk storage vessels that includes recommended
  practices in NFPA 30.
         (i)  An owner or operator of a bulk storage vessel shall
  register with the commission, assess and report to the commission
  its current compliance status with the Bulk Storage Vessel
  Performance Standards Program no later than September 1, 2027. For
  bulk storage vessels constructed and brought into service after
  September 1, 2027, an owner or operator of a bulk storage vessel
  shall register and certify its compliance status to the commission
  with the Bulk Storage Vessel Performance Standards Program no later
  than 30 days after start of operation.
         (j)  An owner or operator of a bulk storage vessel shall
  comply with the Bulk Storage Vessel Performance Standards Program
  requirements on completion of the next regularly scheduled
  out-of-service maintenance of the bulk storage vessel by the owner
  or operator that occurs after September 1, 2027. However, all
  facilities must certify compliance status by no later than
  September 1, 2037. Any modifications or retrofits necessary for
  compliance with the Bulk Storage Vessel Performance Standards
  Program should be made during these out-of-service maintenance
  periods as identified by the owner or operator unless the owner or
  operator makes and records with the commission a demonstration of
  technical impracticability that the commission approves.
         (k)  The commission in implementing the Bulk Storage Vessel
  Performance Standards Program shall require an owner or operator of
  a bulk storage vessel or a designated third party as assigned by the
  owner or operator to certify compliance status every 10 years with
  the standards referenced in Subsections (d) and (e) as applicable.
         (l)  The commission shall keep confidential information
  reported to, obtained by, or otherwise submitted to the commission
  that:
               (1)  is subject to restrictions on dissemination under
  federal law, including off-site consequence analysis information
  subject to Title 40, Part 1400, C.F.R.; or
               (2)  may otherwise present a security risk, if
  disclosed publicly.
         (m)  The commission shall conduct on-site inspections of the
  registered/certified facilities at least once every five years to
  determine compliance with the Bulk Storage Vessel Performance
  Standards Program. This subsection does not limit the commission's
  ability to inspect a facility under other state or federal
  regulations.
         Sec. 26.3443.  CERTAIN COMMISSION EXEMPTIONS AND RULES;
  AMENDMENTS AND ALTERNATIVE STANDARDS. (a) The commission, in
  implementing the Bulk Storage Vessel Performance Standards Program
  under Section 26.3442, may approve exemption of specific bulk
  storage vessels otherwise subject to Section 26.3442 from
  regulation under the program if the legal owner or operator submits
  a request to the commission demonstrating that the vessel presents
  a sufficiently low risk of floods, storm surges, hurricanes,
  accidents, fires, explosions, or other hazards such that it does
  not warrant regulation under the program.
         (b)  The commission shall establish through rulemaking the
  effective date of a federal law or regulation that the commission is
  implementing under Section 26.3442(d), or a national consensus
  standard that the commission is implementing under Section
  26.3442(e). The commission shall amend through rulemaking changes
  if a federal law, regulation, or national consensus standard is
  amended in a way that materially conflicts with the commission's
  current implementation of the Bulk Storage Vessel Performance
  Standards Program except to the extent that the commission
  determines, after a cost-benefit analysis and if not prohibited
  under federal law, that the program as currently implemented by the
  commission is sufficiently effective for protection of the health,
  safety, and welfare of the citizens of this state.
         (c)  Notwithstanding the requirement of Section 26.3442(e)
  that the commission include only critical safety elements from
  specified national consensus standards, the commission may
  initiate a rulemaking proceeding to determine whether, for certain
  vessels in certain situations, an alternative national consensus
  standard would be at least as effective for public health and safety
  but more cost effective for the persons affected to implement. The
  commission may by rule apply the alternative national consensus
  standard in circumstances under which it has determined the
  alternative standard is as effective for public health and safety
  but more cost effective.
         Sec. 26.3444.  CERTIFICATION FEE. (a) The commission by
  rule shall establish fees in amounts sufficient to recover the
  reasonable costs to:
               (1)  implement a registration program for affected
  facilities;
               (2)  review initial and ten-year certifications;
               (3)  amend certifications;
               (4)  inspect certified facilities; and
               (5)  enforce compliance with applicable standards of
  Section 26.3442 and rules and orders adopted under those
  subsections.
         (b)  The certification fee under Subsection (a) shall be
  deposited to the credit of an account to be named the Bulk Storage
  Vessel Performance Standards Program Account.
         (c)  The commission may use the money in the Bulk Storage
  Vessel Performance Standards Program Account to pay:
               (1)  necessary expenses associated with the
  administration of the Bulk Storage Vessel Performance Standards
  Program; and
               (2)  expenses associated with the review and amendment
  of certifications, inspection of certified facilities, and
  enforcement of the applicable standards of Section 26.3442 and the
  rules and orders adopted by the Bulk Storage Vessel Performance
  Standards Program.
         SECTION 3.  This Act takes effect September 1, 2021.