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 Section 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 [26.3512(e)] of
7-27 this code from an eligible owner or operator for corrective action
8-1 for 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 (g) An otherwise eligible owner or operator who misses a
9-3 deadline referenced in Subsection (b) shall be considered
9-4 ineligible for reimbursement under this subchapter.
9-5 (h) Nothing in this section reduces the liability to perform
9-6 corrective action created under Section 26.351 and other parts of
9-7 this subchapter.
9-8 SECTION 7. Section 26.3572(b), Water Code, is amended to
9-9 read as follows:
9-10 (b) In administering the program, the commission shall:
9-11 (1) negotiate with or direct responsible parties in
9-12 site assessment and remediation matters using risk-based corrective
9-13 action;
9-14 (2) approve site-specific corrective action plans for
9-15 each site as necessary, using risk-based corrective action;
9-16 (3) review and inspect site assessment and remedial
9-17 activities and reports;
9-18 (4) use risk-based corrective action procedures as
9-19 determined by commission rule to establish cleanup levels;
9-20 (5) adopt by rule criteria for assigning a priority to
9-21 each site using risk-based corrective action and assign a priority
9-22 to each site according to those criteria;
9-23 (6) adopt by rule criteria for:
9-24 (A) risk-based corrective action site closures;
9-25 and
9-26 (B) the issuance of a closure letter to the
9-27 owner or operator of a tank site on completion of the commission's
10-1 corrective action requirements; and
10-2 (7) process claims for petroleum storage tank
10-3 remediation account disbursement in accordance with this
10-4 subchapter.
10-5 SECTION 8. Section 26.3573, Water Code, is amended by
10-6 amending Subsection (d) and by adding Subsections (r) and (s) to
10-7 read as follows:
10-8 (d) The commission may use the money in the petroleum
10-9 storage tank remediation account to pay:
10-10 (1) necessary expenses associated with the
10-11 administration of the petroleum storage tank remediation account
10-12 and the groundwater protection cleanup program, not to exceed an
10-13 amount equal to: 11.8 [6.7] percent of the gross receipts of that
10-14 account for FY 02/03; 16.40 percent of the gross receipts of that
10-15 account for FY 04/05; and 21.1 percent of the gross receipts of
10-16 that account for FY 06/07;
10-17 (2) expenses associated with investigation, cleanup,
10-18 or corrective action measures performed in response to a release or
10-19 threatened release from a petroleum storage tank, whether those
10-20 expenses are incurred by the commission or pursuant to a contract
10-21 between a contractor and an eligible owner or operator as
10-22 authorized by this subchapter; and
10-23 (3) subject to the conditions of Subsection (e) of
10-24 this section, expenses associated with investigation, cleanup, or
10-25 corrective action measures performed in response to a release or
10-26 threatened release of hydraulic fluid or spent oil from hydraulic
10-27 lift systems or tanks located at a vehicle service and fueling
11-1 facility and used as part of the operations of that facility.
11-2 (r) The petroleum storage tank remediation account may not
11-3 be used to reimburse any person for corrective action performed
11-4 after September 1, 2005.
11-5 (s) The petroleum storage tank remediation account may not
11-6 be used to reimburse any person for corrective action contained in
11-7 a reimbursement claim filed with the commission after March 1,
11-8 2006.
11-9 SECTION 9. Sections 26.3574(b), (x), (y), (z), and (aa),
11-10 Water Code, are amended to read as follows:
11-11 (b) A fee is imposed on the delivery of a petroleum product
11-12 on withdrawal from bulk of that product as provided by this
11-13 subsection. Each operator of a bulk facility on withdrawal from
11-14 bulk of a petroleum product shall collect from the person who
11-15 orders the withdrawal a fee in an amount determined as follows:
11-16 (1) $12.50 [$18.75] for each delivery into a cargo
11-17 tank having a capacity of less than 2,500 gallons for FY 02 and FY
11-18 03; $10.00 for each delivery into a cargo tank having a capacity of
11-19 less than 2,500 gallons for FY 04 and FY 05; $5.00 for each
11-20 delivery into a cargo tank having a capacity of less than 2,500
11-21 gallons for FY 06; and $2.00 for each delivery into a cargo tank
11-22 having a capacity of less than 2,500 gallons for FY 07;
11-23 (2) $25.00 [$37.50] for each delivery into a cargo
11-24 tank having a capacity of 2,500 gallons or more but less than 5,000
11-25 gallons for FY 02 and FY 03; $20.00 for each delivery into a cargo
11-26 tank having a capacity of 2,500 gallons or more but less than 5,000
11-27 gallons for FY 04 and FY 05; $10.00 for each delivery into a cargo
12-1 tank having a capacity of 2,500 gallons or more but less than 5,000
12-2 gallons for FY 06; and $4.00 for each delivery into a cargo tank
12-3 having a capacity of 2,500 gallons or more but less than 5,000
12-4 gallons for FY 07;
12-5 (3) $37.50 [$56.25] for each delivery into a cargo
12-6 tank having a capacity of 5,000 gallons or more but less than 8,000
12-7 gallons for FY 02 and FY 03; $30.00 for each delivery into a cargo
12-8 tank having a capacity of 5,000 gallons or more but less than 8,000
12-9 gallons for FY 04 and FY 05; $15.00 for each delivery into a cargo
12-10 tank having a capacity of 5,000 gallons or more but less than 8,000
12-11 gallons for FY 06; and $6.00 for each delivery into a cargo tank
12-12 having a capacity of 5,000 gallons or more but less than 8,000
12-13 gallons for FY 07;
12-14 (4) $50.00 [$75] for each delivery into a cargo tank
12-15 having a capacity of 8,000 gallons or more but less than 10,000
12-16 gallons for FY 02 and FY 03; $40.00 for each delivery into a cargo
12-17 tank having a capacity of 8,000 gallons or more but less than
12-18 10,000 gallons for FY 04 and FY 05; $20.00 for each delivery into a
12-19 cargo tank having a capacity of 8,000 gallons or more but less than
12-20 10,000 gallons for FY 06; and $8.00 for each delivery into a cargo
12-21 tank having a capacity of 8,000 gallons or more but less than
12-22 10,000 gallons for FY 07; and
12-23 (5) a $25.00 [$37.50] fee for each increment of 5,000
12-24 gallons or any part thereof delivered into a cargo tank having a
12-25 capacity of 10,000 gallons or more for FY 02 and FY 03; $20.00 for
12-26 each increment of 5,000 gallons or any part thereof delivered into
12-27 a cargo tank having a capacity of 10,000 gallons or more for FY 04
13-1 and FY 05; $10.00 for each increment of 5,000 gallons or any part
13-2 thereof delivered into a cargo tank having a capacity of 10,000
13-3 gallons or more for FY 06; and $4.00 for each increment of 5,000
13-4 gallons or any part thereof delivered into a cargo tank having a
13-5 capacity of 10,000 gallons or more for FY 07.
13-6 (x) [After the deposits have been made to the credit of the
13-7 general revenue fund under Section 403.092(c)(1), Government Code,
13-8 as added by Chapter 533, Acts of the 73rd Legislature, 1993, the
13-9 fee imposed under this section may not be collected or required to
13-10 be paid on or after the first day of the second month following
13-11 notification by the commission of the date on which the unobligated
13-12 balance in the petroleum storage tank remediation account equals or
13-13 exceeds $100 million. The commission shall notify the comptroller
13-14 in writing of the date on which the unobligated balance equals or
13-15 exceeds $100 million.]
13-16 [(y) If the unobligated balance in the petroleum storage
13-17 tank remediation account falls below $25 million, the fee shall be
13-18 reinstated, effective on the first day of the second month
13-19 following notification by the commission, in amounts determined as
13-20 follows:]
13-21 [(1) $9.38 for each delivery into a cargo tank having
13-22 a capacity of less than 2,500 gallons;]
13-23 [(2) $18.75 for each delivery into a cargo tank having
13-24 a capacity of 2,500 gallons or more but less than 5,000 gallons;]
13-25 [(3) $28.13 for each delivery into a cargo tank having
13-26 a capacity of 5,000 gallons or more but less than 8,000 gallons;]
13-27 [(4) $37.50 for each delivery into a cargo tank having
14-1 a capacity of 8,000 gallons or more but less than 10,000 gallons;
14-2 and]
14-3 [(5) an $18.75 fee for each increment of 5,000 gallons
14-4 or any part thereof delivered into a cargo tank having a capacity
14-5 of 10,000 gallons or more.]
14-6 [(z) For purposes of Subsections (x) and (y) of this
14-7 section, the unobligated balance in the petroleum storage tank
14-8 remediation account shall be determined by subtracting from the
14-9 cash balance of the account at the end of each month the sum of the
14-10 total balances remaining on all contracts entered by the commission
14-11 or an eligible owner for corrective action plus the total estimates
14-12 made by the commission of allowable costs for corrective action
14-13 that are unpaid relating to all commission orders issued before
14-14 that date to enforce this subchapter.]
14-15 [(aa)] The commission shall report to the Legislative Budget
14-16 Board at the end of each fiscal quarter on the financial status of
14-17 the petroleum storage tank remediation account.
14-18 SECTION 10. Section 26.361, Water Code, is amended to read as
14-19 follows:
14-20 Sec. 26.361. EXPIRATION OF REIMBURSEMENT PROGRAM. [(a)]
14-21 Notwithstanding any other provision of this subchapter, the
14-22 reimbursement program established under this subchapter expires
14-23 September 1, 2006 [2003]. On or after September 1, 2006 [2003], the
14-24 commission may not use money from the petroleum storage tank
14-25 remediation account to reimburse an eligible owner or operator for
14-26 any expenses of corrective action or to pay the claim of a person
14-27 who has contracted with an eligible owner or operator to perform
15-1 corrective action.
15-2 [(b) On or after March 1, 2002, the commission may not
15-3 collect a fee under Section 26.3574 of this code.]
15-4 SECTION 11. Section 26.361(b), Water Code, is repealed.
15-5 SECTION 12. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2687 was passed by the House on May
10, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2687 was passed by the Senate on May
23, 2001, by the following vote: Yeas 30, Nays 0, 1 present, not
voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor