Sec. 26.351. CORRECTIVE ACTION. (a) The commission shall use risk-based corrective action for taking corrective action in response to a release from an underground or aboveground storage tank. Corrective action may include:

(1) site cleanup, including the removal, treatment, and disposal of surface and subsurface contamination;

(2) removal of underground or aboveground storage tanks;

(3) measures to halt a release in progress or to prevent future or threatened releases of regulated substances;

(4) well monitoring, taking of soil borings, and any other actions reasonably necessary to determine the extent of contamination caused by a release;

(5) providing alternate water supplies; and

(6) any other action reasonably necessary to protect the public health and safety or the environment from harm or threatened harm due to releases of regulated substances from underground or aboveground storage tanks.

(b) The owner or operator of an underground or aboveground storage tank shall immediately take all reasonable actions to prevent a threatened release of regulated substances from an underground or aboveground storage tank and to abate and remove any releases subject to applicable federal and state requirements. The owner or operator may be ordered to take corrective action under this subchapter.

(c) The commission may undertake corrective action in response to a release or a threatened release if:

(1) the owner or operator of the underground or aboveground storage tank is unwilling to take corrective action;

(2) the owner or operator of the underground or aboveground storage tank cannot be found;

(3) the owner or operator of the underground or aboveground storage tank, in the opinion of the executive director, is unable to take the corrective action necessary to protect the public health and safety or the environment; or

(4) notwithstanding any other provision of this chapter, the executive director determines that more expeditious corrective action than is provided by this chapter is necessary to protect the public health and safety or the environment from harm.

(c-1) The commission may undertake corrective action to remove an underground or aboveground storage tank that:

(1) is not in compliance with the requirements of this chapter;

(2) is out of service;

(3) presents a contamination risk; and

(4) is owned or operated by a person who is financially unable to remove the tank.

(c-2) The commission shall adopt rules to implement Subsection (c-1), including rules regarding:

(1) the determination of the financial ability of the tank owner or operator to remove the tank; and

(2) the assessment of the potential risk of contamination from the site.

(d) The commission may retain agents to take corrective action it considers necessary under this section. The agents shall operate under the direction of the executive director. Any expenses arising from corrective action taken by the commission or the executive director may be paid from the waste management account.

(e) The commission has the primary regulatory authority to direct the remediation of a release from an underground or aboveground storage tank that contains petroleum if the release does not present an immediate or imminent threat of fire or explosion.

(f) The person performing corrective action under this section, if the release was reported to the commission on or before December 22, 1998, shall meet the following deadlines:

(1) a complete site assessment and risk assessment (including, but not limited to, risk-based criteria for establishing target concentrations), as determined by the executive director, must be received by the agency no later than September 1, 2002;

(2) a complete corrective action plan, as determined by the executive director and including, but not limited to, completion of pilot studies and recommendation of a cost-effective and technically appropriate remediation methodology, must be received by the agency no later than September 1, 2003. The person may, in lieu of this requirement, submit by this same deadline a demonstration that a corrective action plan is not required for the site in question under commission rules. Such demonstration must be to the executive director's satisfaction;

(3) for those sites found under Subdivision (2) to require a corrective action plan, that plan must be initiated and proceeding according to the requirements and deadlines in the approved plan no later than March 1, 2004;

(4) for sites which require either a corrective action plan or groundwater monitoring, a comprehensive and accurate annual status report concerning those activities must be submitted to the agency;

(5) for sites which require either a corrective action plan or groundwater monitoring, all deadlines set by the executive director concerning the corrective action plan or approved groundwater monitoring plan shall be met; and

(6) for sites that require either a corrective action plan or groundwater monitoring, have met all other deadlines under this subsection, and have submitted annual progress reports that demonstrate progress toward meeting closure requirements, a site closure request must be submitted to the executive director no later than September 1, 2011. The request must be complete, as judged by the executive director.

(g) For persons regulated under Subsection (f), their failure to comply with any deadline listed in Subsection (f) is a violation of this section and the executive director may enforce such a violation under Chapter 7 of this code. A missed deadline that is the fault of the person, his agent, or contractor shall also eliminate reimbursement eligibility as described at Section 26.3571(b). If it can be established to the executive director's satisfaction that the deadline was not missed at the fault of the person, his agent, or contractor, then reimbursement eligibility is not affected under this subsection.

(h) A person's liability to perform corrective action under this chapter is unrelated to any possible reimbursements the person may be eligible for under Section 26.3571.

(i) The commission shall by rule define "risk-based corrective action" for purposes of this section.

Added by Acts 1987, 70th Leg., ch. 277, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 228, Sec. 7, eff. May 31, 1989; Acts 1997, 75th Leg., ch. 333, Sec. 17, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 965, Sec. 14.03, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1135, Sec. 3, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 722 (S.B. 485), Sec. 4, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 899 (S.B. 1863), Sec. 5.01, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 1256 (H.B. 1987), Sec. 4, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 1109 (H.B. 3554), Sec. 1, eff. August 27, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 4.17, eff. September 1, 2011.