| (a) The agency may undertake corrective action in response
to a release or a threatened release if:
(1) the owner or operator of the aboveground storage
tank (AST) or underground storage tank (UST) is unwilling to take
appropriate corrective action;
(2) the owner or operator of the AST or UST cannot
be found;
(3) the owner or operator of the AST or UST, in the
opinion of the agency, is unable to take the corrective action necessary
to protect the public health and safety and/or the environment;
(4) the owner or operator is eligible for an extension
for corrective action reimbursement under Texas Water Code, §26.3571;
has been granted such extension by the executive director; has applied
to the agency in writing on an agency application form not later than
July 1, 2011, to have an eligible corrective action site placed in
the Petroleum Storage Tank State Lead Program administered by the
commission; and has agreed on the application form to allow access
to that site to state personnel and state contractors. Once the executive
director places such a site in the state lead program, the eligible
owner or operator of that site is not liable to the commission for
any corrective action costs incurred by the state lead program with
regard to the site, unless the statutorily allowable maximum cost
per site is exceeded; or
(5) notwithstanding any other provision of this subchapter,
the executive director determines that more expeditious corrective
action than is provided by this subchapter is necessary to protect
the public health and safety or the environment.
(b) The agency may retain agents to perform corrective
action it considers necessary to carry out the provisions of this
chapter. The agents shall operate under the direction of the executive
director.
(c) The agency shall generate a written response either
accepting or denying the application of an eligible owner or operator,
who has applied to the agency in accordance with the requirements
of subsection (a)(4) of this section to have an eligible corrective
action site placed in the Petroleum Storage Tank State Lead Program,
within 30 calendar days, as practicable, of the date that application
is received by the agency's state lead program.
(d) The commission may undertake corrective action
to remove a UST or AST that:
(1) is not in compliance with the requirements of this
chapter;
(2) is temporarily out of service as described in §334.54(a)
of this title (relating to Temporary Removal from Service) or out
of operation as defined in §334.2(71) of this title (relating
to Definitions);
(3) presents a contamination risk. A determination
of the potential risk of contamination from a site may be made by
the executive director based on such factors including, but not limited
to, estimated age of the tank system; status as secured or non-secured;
presence, absence, whether known or unknown, of regulated substances
in the tank system; length of time the tank system has been out of
service; location, including proximity to sensitive receptors; and
any other relevant information regarding the UST system; and
(4) is owned or operated by a person who is financially
unable to remove the tank. A determination of financial inability
under this section may be made by the executive director based on
such factors including, but not limited to, a tank owner or operator's
financial statements; federal or state income tax returns; gross and
net income for each of the three preceding years; net worth for each
of the three preceding years; current cash flow position; long-term
liabilities; the liquidity of assets; and any other data requested
by the executive director, which in the opinion of the executive director
is relevant to a determination of the ability of the tank owner or
operator to fund proper removal of UST systems from service pursuant
to §334.55 of this title (relating to Permanent Removal from
Service).
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| Source Note: The provisions of this §334.84 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective April 19, 2012, 37 TexReg 2674 |
