The Wise Report
Henry M. Wise, P.G.
November 19, 2011
The TCEQ Sunset legislation, House Bill (HB) 2694, was adopted during the 82nd Legislature, 2011, and signed by the Governor on June 17, 2011. Included in the legislation were statutory changes addressing petroleum storage tank (PST) regulation. This rulemaking is required to address several of the statutory changes: underground storage tank (UST) delivery prohibition; State Lead tank removal authorization; and the setting of the PST delivery fee. The most interesting change of the three is that the TCEQ PST State Lead will now be able to remove UST systems at facilities which meet certain criteria, including a determination of financial inability of the tank owner or operator to remove the tank and the assessment of the potential risk of contamination from the site. This change is being made to implement HB 2694, §4.17 and §4.18. The statutory change to TWC, §26.351 was intended to clarify that section of the statute. Under that section, the commission was clearly authorized to undertake corrective action "in response to a release or a threatened release" under certain conditions. The conditions were: if the owner or operator "is unwilling," "cannot be found," "is unable" or "more expeditious corrective action is necessary." However, the term "threatened release" was not defined. In addition, TWC, §26.351(a), the subsection defining corrective action to include tank removal, referred only to corrective action being done "in response to a release." This subsection did not mention "threatened release." One interpretation was that the TCEQ State Lead program was authorized to remove tanks only as part of corrective action where a release had already been confirmed (by another party). However, additional ambiguity existed since the statute already defined, "risk-based corrective action" in TWC, §26.342(15) as including "site assessment or site remediation (emphasis added)." Thus, it was questionable whether "corrective action" by State Lead could include "assessment" to determine whether tanks had leaked. The TCEQ Sunset legislation clarified the authorization for the TCEQ to undertake corrective action to remove an underground or aboveground storage tank.
In accordance with the legislation, rules will authorize tank system removal when the tank: 1) is not in compliance with the requirements of this chapter; 2) is temporarily out of service or out of operation; 3) presents a contamination risk; and 4) is owned or operated by a person who is financially unable to remove the tank. The proposed rules describe the factors for determining financial inability and for the assessment of the potential risk of contamination from the site. Also, the term "out of service" in the statute is being clarified in the rule as referring to "temporarily out of service as described in 30 TAC §334.54(a) or out of operation as defined in 30 TAC §334.2(71)." This language is intended to avoid confusion because the phrase "out of service" is not defined; however, commission rules already have several defined terms relating to tank status, such as "in operation," "in service," "out of operation," "temporary removal from service," and "permanent removal from service." For more information go to: http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALIT...
Henry M. Wise, P.G.
The Wise Report
11/19/2011