Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 334. Underground and Aboveground Storage Tanks Subchapter H. Interim Reimbursement Program 31 TAC sec.sec.334.302, 334.306, 334.308, 334.310, 334.313, 334.314, 334. 19, 334.322 The Texas Water Commission adopts on an emergency basis amendments to sec.sec.334.302, 334.306, 334.308, 334.310, 334.313, 334.314, 334.19 and 334.322, concerning interim reimbursement program. The sections are adopted on an emergency basis to implement changes in the reimbursement program including limitations and requirements for eligibility, form and contents of applications, review of applications, fund payment reports, and allowable costs. The reason for the adoption of the sections on an emergency basis is the depletion of the petroleum storage tank remediation fund which ultimately can result in an imminent peril to public health, safety, and welfare. Section 334.302 has been amended to: change the current general conditions and limitations for eligibility for reimbursement from stating that a release must penetrate beyond the excavation zone of a tank system and the resulting contamination must be above "background" levels to state contamination must be above "action" levels as established by the executive director; eliminate sites deemed eligible for reimbursement with only minor amounts of contamination from being eligible for reimbursement, thus protecting the petroleum storage tank remediation (PSTR) fund for sites with more serious environmental problems that will require corrective action; require the application preparer, prime contractor, and/or prime corrective action specialist (consultant), and the owner and/or operator sign each application submitted for reimbursement; eliminate inadvertent, inappropriate claims and commit the legitimacy of each claim on both the owner and/or operator and their consultant/contractor; allow a person other than the owner or operator payment of funds who holds a security interest in a personal property or in a fixture that is not attached to the real estate or lienhold interest on the real estate or fixture that is attached to the real estate; and require the execution of a contract of subrogation prior to the disbursement of payment. Section 334.306 has been amended to state that an application for reimbursement must contain the signature of all of the following: the applicant, the application preparer, and the prime contractor and/or prime corrective action specialist, unless otherwise approved by the executive director. Section 334.308 has been amended to: allow for reimbursement the cost to remove associated piping, pumps, and dispensers in accordance with applicable law when connected with a corrective action measure and conducted on or after October 1, 1992; not allow for reimbursement costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common carrier railroad; and specify that a spent oil tank and/or hydraulic lift system must have been used in conjunction with and contemporaneously with a vehicle service and fueling facility to be eligible for reimbursement. Section 334.310 has been amended to require corrective plans to be preapproved in writing by the executive director prior to implementation of the plan to be eligible for reimbursement. Section 334.313 has been amended to state that an application for reimbursement or supplemental application shall be subject to an audit by the executive director. Section 334.314 has been amended to state that the applicant's consent form for the executive director's fund payment report may include the submission of a signed subrogation contract. Section 334.319 has been amended to state a lender is not liable as an owner or operator if the lender has a security interest in a personal property or in a fixture that is not attached to the real estate or a lienhold interest on the real estate or fixture that is attached to the real estate. Section 334.322 has been amended to define application preparer, contract of subrogation, corrective action plan, initial abatement measures, prime contractor, and prime corrective action specialist. The amendments are adopted on an emergency basis under House Bill 1588 (71st Legislature, 1989) and House Bill 1214 (72nd Legislature, 1991), which require TWC to establish a groundwater protection program, and to implement a reimbursement program to responsible parties who clean-up sites on their own initiative; and the Texas Water Code, sec.5.103 and sec.5.105, which provides TWC with the authority to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.334.302. General Conditions and Limitations Regarding Reimbursement- Interim Period. (a) In order to be considered for reimbursement under this subchapter, corrective action must be performed either as provided in subsection (b) of this section or in response to a release which: (1) results in contamination which penetrates beyond the excavation zone of the tank system and which is above action levels established by the executive director
    [background levels]; and (2) (No change.) (b)-(c) (No change.) (d) No expenses for which reimbursement is claimed under this subchapter and no expenses which are to be applied to the owner/operator contribution shall be subject to reimbursement or applied to the owner/operator contribution unless the following conditions have been met. (1) (No change.) (2) Unless otherwise approved by the executive director, a certification affidavit as provided in the application for reimbursement must be signed by all of the following: owner or operator of a petroleum storage tank, the application preparer, and the prime contractor and/or the prime corrective action specialist, as defined in sec.334.322 of this title (relating to Subchapter H Definitions). (3)
      [(2)] The application has been filed within the time prescribed in sec.334.303 of this title (relating to Time to File Application-Interim Period). (4)
        [(3)] the person seeking reimbursement must be an eligible owner or operator, as defined in sec.334.322 and sec.334.310 of this title (relating to Subchapter H Definitions and Requirements for Eligibility-Interim Period) or they must be authorized by an eligible owner or eligible operator to receive such payment pursuant to subsections (i), (j), and (k) of this section. (5)
          [(4)] the expenses for which reimbursement is sought, and those which are to be applied to the owner/operator contribution must be allowable costs, as defined in sec.334.308 of this title (relating to Allowable Costs- Interim Period). (6)
            [(5)] The allowable costs for which reimbursement is sought and those which are to be applied to the owner/operator contribution must be reasonable, as defined in sec.334.309 of this title (relating to Reasonable Costs-Interim Period). (7)
              [(6)] An application for reimbursement has been filed in accordance with this subchapter which contains the information required by this subchapter. (e)-(j) (No change.) (k) No payment of funds will be made to any person other than the owner or operator under this subchapter except as follows: (1) the person authorized to accept payment on behalf of an owner or operator is: (A) (No change.) (B) a person who holds a security interest in personal property or in fixture that is not attached to the real estate or lienhold interest on the real estate or fixture that is attached to the real estate
                [security interest in the property] where the release occurred and on which the claim for payment is based; (C)-(D) (No change.) (2) (No change.) (1) The executive director may require the execution of a contract of subrogation prior to the disbursement of payment. sec.334.306. Form and Contents of Application-Interim Period. (a) (No change.) (b) The application shall contain the following: (1) the name, address, [and] telephone number, and signature
                  of all of
                    the following: the
                      applicant , the application preparer, and the prime contractor and/or prime corrective action specialist required by s334.302, of this title (relating to General Conditions and Limitations Regarding Reimbursement-Interim Period), unless otherwise approved by the executive director; (2)-(9) (No change.) (c)-(f) (No change.) sec.334.308. Allowable Costs-Interim Period. (a)-(b) (No change.) (c) Allowable costs shall include, but not be limited to, the following: (1)-(11) (No change.) (12) removal, transport, and disposal of the components of the underground or aboveground tank, excluding associated piping, pumps, and dispensers, in accordance with applicable law when connected with a corrective action measure and conducted prior to October 1, 1992; (13) removal, transport, and disposal of the underground or aboveground tank, including associated piping, pumps, and dispensers, in accordance with applicable law when connected with a corrective action measure and conducted on or after October 1, 1992; (14)
                        [(13)] permanent abandonment in place of a tank system where abandonment in place rather than tank system removal is deemed by the executive director to be necessary to avoid destruction of substantial or significant surface improvements; (15)
                          [(14)] temporary relocation of utility structures when necessary to the performance of corrective action; (16)
                            [(15)] preparation of technical reports required pursuant to the requirements of Subchapter D of this chapter (relating to Reporting of Releases and Corrective Action); (17)
                              [(16)] the fair market value of access to property outside of the facility boundaries where such access is necessary for the performance of corrective action; (18)
                                [(17)] the reasonable value of necessary time spent by the applicant in planning and administering his own corrective action plan; (19)
                                  [(18)] performance of any corrective action measure which is specifically required by an order of the commission or a written request or confirmation of the executive director on or after September 1, 1987; (20)
                                    [(19)] state and federal sales taxes applicable to items which are otherwise allowable costs under this section; (21)
                                      [(20)] interest on the monies expended for an item of corrective action, provided that: (A) the interest costs were incurred on expenses which themselves are allowable costs under this section; (B) the interest costs were incurred on expenses which themselves are reasonable costs under sec.334.309 of this title (relating to Reasonable Costs- Interim Period); (C) the rate of interest which may be reimbursed shall be the lesser of: (i) the actual rate of interest incurred; or (ii) a rate which does not exceed an amount that is 2.0% higher than the New York prime rate on the date which the corrective action item for which interest is claimed is approved for payment under sec.334.314 of this title (relating to Executive Director's Fund Payment Report-Interim Period); (D) the only interest allowable is the interest which accrues on a corrective action item on or after the day on which the item itself is approved for payment under sec.334.314 of this title (relating to Executive Director's Fund Payment Report-Interim Period); and (E) any interest claim for an item under this subsection shall be in lieu of all interest which may be claimed under the Texas Water Code, sec.26. 3573, and Texas Civil Statues, Article 601f on that same item; and (22)
                                        [(21)] any other costs determined by the executive director to be allowable in accordance with the provisions of this sub- chapter. (d) The following types of costs are those which will not be considered allowable costs under this subchapter: (1)-(2) (No change.) (3) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when removed prior to October 1, 1992; (4)
                                          [(3)] loss of income or profits, including without limitation, the loss of business income arising out of the review, processing, or payment of an application or request for assistance under this subchapter; (5)
                                            [(4)] decreased property values; (6)
                                              [(5)] bodily injury or property damage; (7)
                                                [(6)] attorney's fees; (8)
                                                  [(7)] any costs associated with preparing, filing, and prosecuting an application for reimbursement or assistance under this subchapter; (9)
                                                    [(8)] the costs of making improvements to the facility beyond those that are required for corrective action; (10)
                                                      [(9)] costs associated with contamination assessments performed for any purpose where no release of petroleum is discovered, except when the contamination assessment has been ordered by the commission; (11)
                                                        [(10)] costs of compiling and storing records relating to costs of corrective action; (12)
                                                          [(11)] costs of corrective action taken in response to the release of a substance which is not a petroleum product as defined in sec.334.322 of this title (relating to Subchapter H Definitions); (13)
                                                            [(12)] costs of tank integrity testing when it is not specifically required by this chapter, requested by the executive director, or ordered by the commission; (14)
                                                              [(13)] costs of any corrective action incurred by an owner or operator on or after the date that the executive director commences corrective action at the owner's or the operator's facility pursuant to sec.334.321 of this title (relating to Corrective Action by the Commission-Interim Period); unless authorized in writing by the executive director; [and] (15) costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common carrier railroad; and (16)
                                                                [(14)] any activities, including those required by this chapter, which are not conducted in compliance with applicable state and federal environmental laws or laws relating to the transport and disposal of waste. (e)-(f) (No change.) (g) The costs of abating the release from the spent oil tank and the costs of removal, transport, and disposal of the tank, including (on or after October 1, 1992)
                                                                  [excluding] associated piping and equipment, are the only allowable costs in situations where: (1)-(2) (No change.) (h) In addition to other requirements, no corrective action costs connected with the release of spent oil shall be allowable unless the spent oil was released from a tank located at a vehicle service and fueling facility, nor shall any costs connected with the release of hydraulic fluid be allowable unless the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility. The spent oil tank and/or hydraulic lift system must have been used in conjunction with and contemporaneously with a vehicle service and fueling facility. sec.334.310. Requirements for Eligibility-Interim Period. (a) In order for a person to be an eligible owner or operator under this subchapter the following requirements must be met. (1) He/she [The Person] must meet the other requirements of this chapter and must be: (A) -(F) (No change.) (2)-(4) (No change.) (b)-(e) (No change.) (f) Unless otherwise approved by the executive director, all remedial activities proposed in corrective action plans must be approved in writing by the executive director prior to implementation of the plan. Reimbursement claims submitted for preapproved corrective action plans will receive priority over reimbursement claims submitted for corrective action plans which were implemented without preapproval. For reimbursement of emergency, initial abatement measures and free-product recovery as required by sec.334.77 of this title (relating to Initial Abatement Measures and Site Check) , approval by the executive director is not required prior to implementation, unless the emergency action extends beyond 48 hours, then written approval will be required for all activities with the exception of continuous free-product recovery. sec.334.313. Review of Application by Executive Director-Interim Period. (a)-(d) (No change.) (e) An application for reimbursement or supplemental application filed under this subchapter shall be subject to audit by the executive director. sec.334.314. Executive Director's Fund Payment Report-Interim Period. (a) (No change.) (b) The applicant shall review the fund payment report and shall file a written response with the executive director within 45 days of receipt of the report. The response shall be on a form provided or approved by the executive director. The applicant may consent or object to all or any part of the report. If the executive director has not received a response from the applicant within 45 days from the date on which the applicant received the report, the following shall occur: (1) all claims approved for reimbursement in the fund payment report shall be eligible for payment, provided a signed subrogation contract is submitted, when required; (2)-(3) (No change.) (c) (No change.) (d) Any item recommended for payment in the fund payment report to which the applicant consents by filing a timely response to the fund payment report shall be eligible for reimbursement when the executive director receives the applicant's consent form, which may include the submission of a signed subrogation contract
                                                                    . The consent of the applicant to any item recommended for payment shall mean that any claim covered by that item is considered satisfied in full. (e)-(f) (No change.) sec.334.319. Administrative Penalties and Other Actions-Initial Period. (a) (No change.) (b) Notwithstanding subsection (a) of this section, a lender, as defined in sec.334.322 of this title (relating to Subchapter H Definitions), is not liable as an owner or operator under this subchapter solely because the lender holds indicia of ownership to protect a security or lienhold interest in property. A lender is not liable under this subsection if: (1) the lender has a security interest in a personal property or in a fixture that is not attached to the real estate or a lienhold interest on the real estate or fixture that is attached to the real estate
                                                                      [or lienhold interest] as security for a loan to finance the acquisition or development of property, to finance the removal, repair, replacement, or upgrading of a regulated tank, or to finance the performance of corrective action in response to a release of a regulated substance from a tank, and the security or lienhold interest is in: (A)-(C) (No change. ) (2) (No change.) (c)-(g) (No change.) sec.334.322. Subchapter H Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Application preparer -As used in this subchapter means any person responsible for preparing the application for reimbursement. Contract of subrogation-As used in this subchapter means a document of agreement between the executive director and the eligible tank owner and operator which authorizes the executive director to recover costs reimbursed from persons who performed corrective action activities at LPST sites. Corrective action plan (remedial action plan) -As used in this subchapter means a detailed plan developed to address site remediation of soil and/or groundwater contamination that provides for adequate protection of human health, safety, and the environment. The selection of the most effective and efficient remedial method will be dictated by the nature and location of the release, the site soils, hydrogeological conditions, and the required degree of remediation. The remedial method selection should take into consideration such factors as cost, time, liabilities, and state compliance requirements with each method. The title of any report which contains a corrective action plan must include the designation "remedial action plan." Initial abatement measures-As used in this subchapter means the mitigation of all existing or potential fire, explosion, or vapor hazards including the removal of free product to provide adequate protection of human health, safety, and the environment in emergency situations or other situations where emergency actions must be implemented to prevent further impacts to the environment. Prime contractor -As used in this subchapter means any natural person, firm, or any entity responsible for the contracting of any corrective action services. Prime corrective action specialist-As used in this subchapter means a natural person, consulting firm, or any entity engaging in corrective action services, or acting as coordinator of others engaged in corrective action services. Issued in Austin, Texas, on September 25, 1992. TRD-9213052 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: September 25, 1992 Expiration date: January 23, 1993 For further information, please call: (512) 463-8069 Subchapter K. Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Media 31 TAC sec.sec.334.481-334.506 The Texas Water Commission adopts on an emergency basis the repeal of sec.sec.334.481-334.482 and new sec.sec.334.481-334.506, concerning storage, treatment and reuse procedures for petroleum-substance contaminated soils. This amended subchapter is adopted on an emergency basis; in the near future the TWC intends to propose the permanent adoption of these rules. The new rules will replace the present Subchapter K. Their purpose is to enhance the implementation of House Bills 1588, adopted by the 71st Legislature in 1989, and 1214, adopted by the 72nd Legislature in 1991. Pursuant to House Bill 1588 and House Bill 1214, the Texas Water Commission established a program to regulate underground and aboveground storage tanks. The new rules will provide guidance for persons responsible for contamination resulting from underground and aboveground storage tanks, as well as for persons who are in the business of operating soil treatment, storage, and recycling facilities. Subchapter K establishes criteria for the registration of such facilities, and prescribes minimum operating standards for the facilities. Today's new rules are written under authority of the Texas Water Code, Chapter 26 et seq (Vernon Pamphlet 1992) (Code). They were prompted by three concerns. First, there is a growing problem statewide concerning the ultimate disposition of the contaminated soils left behind when a responsible party performs corrective action at a leaking petroleum storage tank site. The soil left in the ground after an underground tank or aboveground tank is removed is almost always contaminated. TWC rules normally require cleanup of contaminated soils. If cleanup cannot be accomplished by treating the contaminated soil in place, then the soil is usually hauled to a landfill. But merely taking the problem from point A to point B is no solution. Not only are the costs of hauling soil to landfills increasing (and further draining an already depleted Petroleum Storage Tank Remediation Fund), once at the landfill, the contaminated soil is not treated. Thus the environmental hazard remains. Subchapter K provides a mechanism for eliminating the environmental hazard by allowing responsible parties to clean the contaminated soil. With the adoption of these rules, thousands of tons of heretofore harmful waste will be converted into nearly harmless dirt. Second, at present there are very few standards in place to govern the operation of soil treatment, storage, and recycling facilities. Because so many individuals and organizations conduct treatment, storage and recycling operations without substantial guidance from the agency, wide variations in treatment techniques, treatment effectiveness, and facility standards exist. Tank owners and operators often find it difficult to locate responsible, competent soil treatment services. With the adoption of these rules, the staff of the TWC hopes to provide the mechanism that will allow owners and operators to evaluate the many treatment, storage, and recycling facilities on the market, for the benefit not only of the owners/operators, but for all Texans and the environment. Third, this subchapter is intended to allow public input into the process by which soil treatment, storage and recycling facilities are registered. Members of the public have legitimate concerns about the location of soil treatment facilities and the standards to which such facilities must adhere. The new Subchapter K rules require persons who apply for registration certificates for soil treatment facilities to hold public meetings prior to commission consideration of their applications. The purpose of the public meeting is twofold: it is informational, intending to give interested individuals background on the nature of the problem associated with petroleum contaminated soils, and a description of the proposed solution; and, the public meeting is also an open forum, where citizens may voice their concerns about the applicant's facility, including the treatment standards, and the impact of the facility on their community. Because there are few standards in place to govern the operations of soil treatment and storage facilities, an imminent threat or peril to human health and the environment exists from facilities that are not operated safely and efficiently. As of this writing there are approximately 85 facilities registered under commission rules to treat petroleum-substance contaminated waste. The staff regularly receives new applications. These facilities present an imminent threat to the environment not only because there are no standards to regulate their storage and treatment processes; but also because the TWC currently has no mechanism for tracking the origin or transportation of soils received and treated by facilities in Texas. In other words, there is currently no provision for the cradle to grave tracking of potentially harmful and sometimes ineligible wastes that are received by soil treatment facilities. It must be stressed that this subchapter is intended to regulate facilities that are authorized only to treat petroleum-substance contaminated soils. These facilities are prohibited from receiving and treating hazardous wastes. As more and more landfills close their doors to PST waste, and the need for alternative means of disposing and remediating contaminated soils becomes apparent, the staff anticipates that the number of applications for registration under this subchapter will increase dramatically. These new rules are necessary to implement a viable, efficient, and environmentally safe program for treating and recycling petroleum contaminated soils. Consequently, the commission has decided to adopt these rules on an emergency basis. The new sections are adopted on an emergency basis under the Texas Water Code, sec.sec.26.341-26.359, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish a program to regulate underground and aboveground storage tanks and to assess and collect fees for deposit to the storage tank fund, and under the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. sec.334.481. Definitions. sec.334.482. General Prohibitions. sec.334.483. Disposal by Generator. sec.334.484. Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities. sec.334.485. Authorization for Class C and Class D Facilities. sec.334.486. Exemptions. sec.334.487. Notification and Mobilization Requirements for Class B Facilities. sec.334.488. Effect on Existing Facilities. sec.334.489. Public Notice. sec.334.490. Public Meetings. sec.334.491. Closure and Facility Expansion. sec.334.492. Location Standards for Class A Petroleum-Substance Waste Storage or Treatment Facilities. sec.334.493. Shipping Procedures Applicable to Generators of Petroleum- Substance Waste. sec.334.494. Recordkeeping and Reporting Procedures Applicable to Generators. sec.334.495. Shipping Requirements for Transporters of Petroleum- Substance Waste. sec.334.496. Shipping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities. sec.334.497. Recordkeeping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities. sec.334.498. Additional Reports. sec.334.499. Design and Operating Requirements of Stockpiles and Land Surface Treatment Units. sec.334.500. Reuse of Petroleum-Substance Waste. sec.334.501. Contaminant Assessment Program and Corrective Action. sec.334.502. Security. sec.334.503. Contingency Plan. sec.334.504. Emergency Procedures. sec.334.505. Closure for Class A and Class B Facilities. sec.334.506. Financial Assurance. Issued in Austin, Texas, on September 25, 1992. TRD-9213053 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: September 25, 1992 Expiration date: January 23, 1993 For further information, please call: (512) 463-8069 The new sections are adopted on an emergency basis under the Texas Water Code, sec.sec.26.341-26.359, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish a program to regulate underground and aboveground storage tanks and to assess and collect fees for deposit to the storage tank fund, and under the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. sec.334.481. Definitions. Except as provided in this subsection, the words and terms used in this subchapter, shall have the meanings prescribed in sec.334.2 of this title (relating to Definitions), unless the word or term is redefined in this subchapter, or unless the context clearly indicates otherwise. Aboveground storage tank-A nonvehicular device (including any associated piping) that is made of nonearthen materials: located on or above the surface of the ground, or on or above the surface of the floor of a structure below ground, such as a mineworking, basement, or vault; and designed to contain an accumulation of petroleum products. Active life-The period from the initial receipt of waste at the facility until the executive director receives certification of final closure. Active portion -That portion of a facility where treatment, or storage operations are being or have been conducted and which is not a closed portion. (See also "closed portion" and "inactive portion.") Activities associated with the exploration, development, and production of oil or gas or geothermal resources-Activities associated with: (A) the drilling of exploratory wells, oil wells, gas wells, or geothermal resource wells; (B) the production of oil or gas or geothermal resources, including: (i) activities associated with the drilling of injection water source wells that penetrate the base of usable quality water; (ii) activities associated with the drilling of cathodic protection holes associated with the cathodic protection of wells and pipelines subject to the jurisdiction of the commission to regulate the production of oil or gas or geothermal resources; (iii) activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants; (iv) activities associated with any underground natural gas storage facility, provided the terms "natural gas" and "storage facility" shall have the meanings set out in the Texas Natural Resources Code, sec.91.173; (v) activities associated with any underground hydrocarbon storage facility, provided the terms "hydrocarbons" and "underground hydrocarbon storage facility" shall have the meanings set out in the Texas Natural Resources Code, sec.91.173; and (vi) activities associated with the storage, handling, reclamation, gathering, transportation, or distribution of oil or gas prior to the refining of such oil or prior to the use of such gas in any manufacturing process or as a residential or industrial fuel; (C) the operation, abandonment, and proper plugging of wells subject to the jurisdiction of the Texas Railroad Commission to regulate the exploration, development, and production of oil or gas or geothermal resources; and (D) the discharge, storage, handling, transportation, reclamation, or disposal of waste or any other substance or material associated with any activity listed in subparagraphs (A)-(C) of this paragraph, except for waste generated in connection with activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants if that waste is a hazardous waste as defined by the administrator of the United State Environmental Protection Agency pursuant to the Federal Solid Waste Disposal Act, as amended (42 United State Code, sec.6901 et seq) Active geologic processes-Any natural process which alters the surface and/or subsurface of the earth, including, but not limited to, erosion (including shoreline erosion along the coast), submergence, subsidence, faulting, karst formation, flooding in alluvial flood wash zones, meandering river bank cutting, and earthquakes. Affidavit-The petroleum-substance waste affidavit form furnished by the executive director to accompany shipments of petroleum-substance waste in order to track the movement and transference of petroleum-substance waste. Application-Commission forms or other commission-approved writing on which an executive director registration is requested. Aquifer-A geologic formation, group of formations, or part of a formation capable of yielding groundwater to wells or springs. Area subject to active shoreline erosion -A coastal area where shoreline erosion has been documented within historic time. Areal expansion of an existing facility -The enlargement of a land surface area of an existing petroleum-substance waste management facility from that described in a petroleum-substance waste registration. Areas of direct drainage-Those land areas from which surface water runoff could flow into a lake or other surface water used to supply public drinking water. Authorized-Allowed in writing, by executive director registration, by order, by permit, by license, or by rule. Authorized Representative -The person designated by the owner or operator to represent the facility or the person designated by the waste generator as the generator's representative. Class A facility -A facility which will at any time store or treat petroleum- substance contaminated soils generated from more than one LPST site. Class B facility -A mobile treatment unit which will treat petroleum- substance waste from only one LPST site at a time at that LPST site. The petroleum-substance wastes treated at that site shall have originated from that site. Class C facility -A facility located elsewhere than the LPST site but which will store or treat petroleum-substance waste generated from only that one LPST site. Class D facility -A facility located at the LPST site which will store or treat the petroleum-substance waste generated from only that site. Closed portion -That portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements. (See also "active portion" and "inactive portion.") Contingency plan -A document setting out an organized, planned, and coordinated course of action to be followed in case of a fire, explosion, or release of waste or waste constituents which could threaten human health and safety or the environment. Critical habitat of a endangered species -An area that is determined by the United States Fish and Wildlife Service to be a critical habitat for an endangered species. Designated facility -The authorized storage, treatment, or disposal facility that has been designated on the petroleum-substance waste affidavit by the generator. Discharge-The accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of waste into or on any land or water. Disposal-The discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste (whether containerized or noncontainerized) into or on any land or water so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into or adjacent to any waters, including groundwater. Disposal facility -A facility or part of a facility at which waste is intentionally placed into or on any land or water or adjacent to any water, and at which such wastelremain. Effective substitute -A substance which may be used in the place of another substance for the same purpose without creating adverse environmental conditions. Erosion-The group of natural processes, including weathering, deterioration, detachment, dissolution, abrasion, corrosion, wearing away, and transportation, by which earthen or rock material is removed from any part of the earth's surface. Existing portion -That land surface area of an existing waste management unit, on which wastes have been placed prior to the issuance of a registration. Existing petroleum -Substance waste management facility -Any facility used for the storage or treatment of petroleum-substance waste and which is subject to authorization by a TWC registration prior to the effective date of this subchapter. Facility-Includes structures, other appurtenances, and improvements on the land for storing or treating petroleum-substance waste. A facility may consist of several storage or treatment operational units. A facility may also be a mobile treatment unit. Facility Operator -The person responsible for the overall operation of a facility or an operation unit (i.e., part of facility), e.g., the plant manager, superintendent, or person of equivalent responsibility for the regulated activity. Facility owner -The person who owns a facility or part of a facility. Final closure-The closure of all waste management units at the facility in accordance with all applicable closure requirements so that waste management activities are no longer conducted at the facility unless subject to the provisions of this title. Generator-Any person who produces petroleum-substance waste; any person who stores or treats petroleum-substance waste; any person who possesses petroleum- substance waste to be shipped to any other person; or any person whose act first causes the petroleum-substance waste to become subject to regulation under this subchapter. Groundwater-Water below the land surface in a zone of saturation. Hazardous waste -Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency (EPA) pursuant to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 United States Code 6901 et seq, as amended. Inactive portion -That portion of a facility which is not operated. (See also "active portion" and "closed portion".) In operation-Refers to a facility which is treating or storing petroleum- substance waste. In-situ treatment -The reduction of contaminant levels in soil or groundwater which is conducted without removing the contaminated media from the ground. Interim registration -Authorization for a storage or treatment facility received by the facility up to the effective date of this subchapter. Land disposal facility-Any landfill, surface impoundment, waste pile, injection well, or other facility at which waste is finally disposed. Land surface treatment facility-A facility, unit, or part of a facility at which waste is applied onto a liner on the soil surface during treatment. Leaking petroleum storage tank (LPST) site -A site at which a confirmed release of a petroleum substance from an underground or aboveground storage tank has occurred. Petroleum-substance contamination which results from multiple sources may be deemed as one LPST site by the executive director. Liner-A continuous layer of man-made materials, beneath and on the sides of a surface area which restricts the downward and lateral escape of waste, waste constituents, or leachate. Management-The systematic control of the collection, storage, transportation, processing, reuse, treatment, recovery, and disposal of waste. New petroleum-substance waste management facility-Any facility to be used for the storage or treatment of petroleum-substance waste and which is not an existing petroleum substance waste management facility. One hundred-year floodplain-Any land area which is subject to a 1.0% or greater chance of flooding in any given year from any source. On-site-The same or geographically contiguous property which may be divided by public or private rights-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which that person controls and to which the public does not have access, is also considered on-site property. Operator-Any person in control of or having responsibility for, the daily operation of an underground or aboveground storage tank system. Owner-Any person who currently holds legal possession or ownership of a total or partial interest in the underground storage tank system. For the purposes of this chapter, where the actual ownership of an UST system is either uncertain, unknown, or in dispute, the fee simple owner of the surface estate where the UST is located shall be considered the UST system owner, unless the owner of the surface estate can demonstrate by appropriate documentation (deed reservation, invoice, bill of sale, etc.) or by other legally-acceptable means that the UST system is owned by others. "Owner" does not include a person who holds an interest in an UST system solely for financial security purposes unless, through foreclosure or other related actions, the holder of such security interest has taken legal possession of the UST system. Partial closure -The closure of a petroleum-substance waste management unit in accordance with the applicable closure requirements at a facility that contains other active petroleum-substance waste management units. Person-Any individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association or any other legal entity. Personnel or facility personnel-All persons who work at or oversee the operations of a waste management facility, and whose actions or failure to act may result in noncompliance with the requirements of this subchapter. Petroleum substance -A crude oil or any refined or unrefined fraction or derivative or crude oil which is liquid at standard conditions of temperature and pressure. For the purposes of this subchapter, a "petroleum substance" shall be limited to one or a combination of the substances or mixtures in the following list except for any listed substance regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42 United States Code, sec.6921, et seq): (A) basic petroleum substances-Crude oils, crude oil fractions, petroleum feedstocks, and petroleum fractions; (B) motor fuels-see definition for "motor fuel" in sec.334.2 of this chapter (relating to Definitions); (C) aviation gasolines-Grade 80, Grade 100, and Grade 100-LL; (D) aviation jet fuels-Jet A, Jet A-1, Jet B, JP-4, JP-5, and JP-8; (E) distillate fuel oils-Number 1-D, Number 1, Number 2-D, and Number 2; (F) residual fuel oils-Number 4-D, Number 4-light, Number 4, Number 5-light, Number 5-heavy, and Number 6; (G) gas-turbine fuel oils-Grade O-GT, Grade 1-GT, Grade 2-GT, Grade 3-GT, and Grade 4-GT; (H) illuminating oils-Kerosene, mineral seal oil, longtime burning oils, 300 oil, and mineral colza oil; (I) solvents-Stoddard solvent, petroleum spirits, mineral spirits, petroleum ether, varnish makers' and painters' naphthas, petroleum extender oils, and commercial hexane; (J) lubricants-Automotive and industrial lubricants; (K) building materials-Liquid asphalt and dust-laying oils; (L) insulating and waterproofing materials-Transformer oils and cable oils; (M) used oils-See definition for "used oil" in s334.2 of this chapter (relating to Definitions); (N) any other petroleum-based material having physical and chemical properties similar to the above materials and receiving approval by the executive director for designation as a petroleum substance. Petroleum substance waste-Any waste, excluding hazardous waste and liquid wastes, which is generated as a result of a release of a petroleum substance from an underground storage tank or a petroleum product from an aboveground storage tank regulated by the commission pursuant to the Texas Water Code, Chapter 26, Subchapter I. Public water system-A system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly services an average of at least 25 individuals daily at least 60 days out of the year. Registration-Written authorization issued by the executive director, which, by its conditions, may authorize the registrant to construct, install, modify, or operate a petroleum-substance waste storage or treatment facility or unit in accordance with specified limitations. Representative sample -A sample of a universe or whole (e. g., waste pile, groundwater) which can be expected to exhibit the average properties of the universe or whole. Reuse of petroleum-substance wastes-The process by which a petroleum- substance waste is utilized as an effective substitute for a commercial product, such as the proper use as a component of stabilized road base or use as fill for LPST tankholds. Run-off-Any rainwater, leachate, or other liquid that drains over or into land from any part of a facility, land surface treatment unit, or stockpile. Run-on-Any rainwater, leachate, or other liquid that drains over land onto or into any part of a facility, land surface treatment unit, or stockpile. Saturated zone or zone of saturation-That part of the earth's crust in which all voids are filled with water. Secondary containment -A system designed and constructed to collect rainfall run-on and to contain spills, leaks, or discharges within the facility until such waste can be removed. Shipment-Any action involving the conveyance of petroleum-substance waste by any means off-site from the generating site. Sole-source aquifer -An aquifer designated pursuant to the Safe Drinking Water Act of 1974, s1424(e), which solely or principally supplies drinking water to an area, and which, if contaminated, would create a significant hazard to public health. The Edwards Aquifer has been designated a sole-source aquifer by the United States Environmental Protection Agency. The Edwards Aquifer Recharge and Transition Zones are specifically those areas delineated on maps in the offices of the executive director. Spill-The spilling, leaking, pumping, emitting, emptying, or dumping of wastes or materials which, when spilled, become wastes into or on any land or water. Storage-The holding of petroleum-substance waste for a temporary period, prior to the final treatment, disposal of, reuse, or storing of the waste elsewhere. Stockpile-A soil storage area from which all petroleum- substance wastes are removed for treatment or final disposition and from which all wastes are removed at the time of closure of the facility. Thermal treatment unit-An enclosed device using controlled flame combustion, microwave, UV, infrared, or other thermal treatment process. Treatment-Methods which are designed to change, by physical, chemical, or biological means, the levels of contamination of the waste in order to render the waste suitable for reuse or disposal. The term treatment does not include the reduction of contaminant levels by dilution. Treatment facility -A facility or unit which treats or reuses petroleum- substance wastes. Transporter-Any person who conveys or transports petroleum-substance waste by truck, ship, pipeline, or other means. Underground storage tank-Any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is ten percent or more beneath the surface of the ground. Unsaturated zone or zone of aeration-The zone between the land surface and the water table. Uppermost aquifer -The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected within the facility's property boundary. Waste management area-Any area on which one or more waste management units resides. Waste management unit-A contiguous area of land on or in which waste is placed, or a structure or machine used to store or treat waste. Examples of waste management units include a waste stockpile, a land surface treatment area, a thermal treatment unit, a stockpile, a tank and its associated piping and underlying containment system, and a container storage area. Wetlands-Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. sec.334.482. General Prohibitions. (a) No person may cause, suffer, allow, or permit the storage, treatment or disposal of petroleum-substance waste in such a manner so as to cause: (1) the discharge or imminent threat of discharge into or adjacent to the waters in the state without obtaining specific written authorization for such discharge from the Texas Water Commission; (2) the creation and maintenance of a nuisance; (3) unauthorized releases of contaminants to the air; or (4) the endangerment of the public health and welfare. (b) No person may conduct storage or treatment of contaminated media that is not a petroleum-substance waste at a Class A or Class B facility except as authorized by the executive director or by other appropriate regulations. sec.334.483. Disposal by Generator. A generator of petroleum-substance waste may not finally dispose of petroleum-substance waste at a site or facility unless the site or facility is authorized to receive such wastes pursuant to one of the following: (1) permit issued by the commission pursuant to Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) or Chapter 330 (relating to Municipal Solid Waste Management); (2) authorization issued jointly by the Texas Railroad Commission and the commission for a facility currently permitted by the Railroad Commission; or (3) sec.334.500 (relating to Reuse of Petroleum-Substance Waste) sec.334.484. Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities. (a) A person shall submit the required application and receive the appropriate registration issued after the effective date of these rules prior to storing or treating petroleum-substance wastes at a new Class A facility or treating soil utilizing a new Class B waste management facility. (b) A person may not commence physical construction of a new Class A or utilize a Class B petroleum-substance waste management facility without first having submitted the required application and received the appropriate registration unless otherwise authorized by the executive director. (c) Any person who intends to store or treat petroleum-substance waste at a Class A or Class B facility after the effective date of this subchapter shall submit an application for registration on a form approved by the executive director. Such person shall submit information to the executive director which is sufficiently detailed and complete to enable the commission to determine whether such storage or treatment is compliant with the terms of this subchapter. Such information shall include, at a minimum: (1) information concerning the location of the facility; (2) identification of the facility owner, facility operator, and landowner; (3) the job descriptions of all key operating personnel; (4) documentation on the proposed access routes to the facility, proposed daily volumes of traffic associated with the facility, and confirmation on the suitability of roads leading to the facility; (5) waste storage, management, handling, and shipping methods; (6) waste treatment methods; (7) waste sampling and analytical methods; (8) disposition or reuse documentation; (9) recordkeeping requirements; (10) security and emergency procedures; (11) facility closure specifications; (12) facility plans and specifications; (13) site maps and vicinity maps; (14) documentation on the land use in the vicinity of the facility; (15) identification of all potential contaminant receptors in the vicinity; (16) documentation on the financial assurance required; (17) documentation on all required restrictive easements; (18) the geology and hydrogeology where the facility is located; (19) documentation on the effectiveness of the treatment method; (20) documentation of the receipt of any additional authorization required by any other federal, state, or local regulatory agency; and (21) any other information as the executive director may deem necessary to determine whether the facility and operation thereof will comply with the requirements of this subchapter. (d) If the applicant is other than an individual, the application shall be notarized and signed by the owner or operator of the facility, the president or chief executive officer of the company, or all the partners of the company. (e) Any person who stores or treats petroleum-substance waste shall have the continuing obligation to immediately provide written notice to the executive director of any changes or additional information concerning the information submitted to the commission or activities authorized in any registration within fifteen days of the change or from acquiring the additional information. (f) Any information provided under this subsection shall be submitted to the executive director's office in Austin and to the appropriate district office. (g) The duration of a registration shall be no longer than five years. (h) The facility owner or operator shall submit a renewal application at least sixty days prior to the end of the five-year registration period on forms approved by the executive director. (i) The registration is not transferable to any other facility or facility owner. Any transfer of ownership shall require re-registration of the facility. However, re-registration of a facility shall not relieve the transferor of any liability. sec.334.485. Authorization for Class C and Class D Facilities. Authorization for Class C and Class D facilities is issued by the executive director when the LPST site is subject to a corrective action plan involving storage and treatment activities pursuant to sec.334.81 of this title (relating to Corrective Action Plan). Executive director approval of the corrective action plan for the storage or treatment activities shall constitute authorization for the Class C or Class D facility. A Class C or Class D storage or treatment facility shall remain in operation only as long as is necessary to store or treat the soil from that one LPST site and it shall not accept soil from any other site at any time. The underground or aboveground storage tank owner or operator shall ensure that the approved storage and treatment activities comply with the following applicable provisions of this title: sec.334.482 of this title (relating to General Prohibitions); sec.334.483 of this title (relating to Disposal by Generator); s334.487 of this title (relating to Notification and Mobilization Requirements for Class B Facilities); sec.334.491 of this title (relating to Closure and Facility Expansion); s334.493 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste); sec.334.494 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators); sec.334.495 of this title (relating to Shipping Requirements for Transporters of Petroleum-Substance Waste); sec.334.496 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); sec.334.497 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); sec.334.498 of this title (relating to Additional Reports); sec.334.499 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units); sec.334. 500 of this title (relating to Reuse of Petroleum-Substance Waste); sec.334.502 of this title (relating to Security); sec.334.503 of this title (relating to Contingency Plan); and sec.334.504 of this title (relating to Emergency Procedures). sec.334.486. Exemptions. The following are exempt from the requirements of this subchapter: (1) facilities which operate under the jurisdiction of the Texas Railroad Commission or facilities permitted or regulated by rules promulgated under the Solid Waste Disposal Act, Chapter 361, Texas Health and Safety Code (Vernon Supplement); and (2) LPST sites which treat petroleum-substance contaminated media if the media is treated in-situ in accordance with the provisions of Subchapter D of this chapter (relating to Release Reporting and Corrective Action.) Such sites, however, are not exempt from the provisions of sec.334.482 of this title (relating to General Prohibitions). sec.334.487. Notification and Mobilization Requirements for Class B Facilities. In addition to the required registration pursuant to sec.334. 484 of this title (relating to Registration Required for Petroleum-Substance Waste Storage and Treatment Facilities). (1) The owner or operator of a Class B facility shall notify the appropriate commission district field office at least 48 hours in advance of moving the treatment unit to the LPST site. (2) The owner or operator of the Class B facility shall notify the local fire marshal or other appropriate fire official at least 48 hours in advance of moving the treatment unit to the LPST site. (3) The owner or operator of the underground or aboveground storage tank who intends to utilize a Class B facility at a particular LPST site shall obtain executive director approval pursuant to sec.334.81 of this title (relating to Corrective Action Plan). (4) The Class B facility shall remain at the LPST site for only the time period necessary to complete the treatment, but no longer than thirty days unless written authorization is obtained from the executive director. (5) The facility owner or operator shall provide notice to the public by means of posting signs at the LPST site at least fourteen days prior to moving the treatment unit onto the LPST site or within another timeframe as approved by the executive director. The signs shall be legible from a distance of at least 25 feet and shall be posted at all entrances to the facility. The signs shall state "Public Notice of Petroleum-Substance Contaminated Soil Treatment", the name and phone number of the treatment facility owner, the name and phone number of the tank owner or operator, the registration number of the treatment facility, the type of soil treatment to be conducted, and the date(s) the treatment will be conducted. sec.334.488. Effect on Existing Facilities. (a) Any Class A or Class B facility which possesses or was required to possess an interim registration to store or treat petroleum-substance wastes shall apply for registration as specified in this subchapter within 90 days from the effective date of this subchapter. The owner or operator of a Class A facility shall comply with the provisions of providing public notice and a public meeting pursuant to sec.334.489 of this title (relating to Public Notice) and sec.334. 490 of this title (relating to Public Meetings) within 90 days following the submittal of the application for registration. The owner or operator of the facility may continue the storage or treatment of petroleum-substance waste in accordance with the rules and regulations of the commission until such time as the executive director approves or denies the registration application. (b) If in the opinion of the executive director, circumstances indicate the need for more expeditious action, the executive director may insist on submission of the application sooner than 90 days. If the applicant cannot accommodate specified compliance deadlines, a written extension request shall be filed with the executive director at least 15 days prior to the compliance deadline. The extension request shall contain the reasons for the need for additional compliance time and an estimate of the additional time needed. The executive director may either grant the requested additional time, grant an extension which is less than the requested additional time, or reject the request depending upon the severity of the deficiency and the demonstrated compliance of the applicant. If storage or treatment facilities have not met the provisions of the registration and this subchapter on or before the established compliance deadline, the facility shall not receive or treat any additional petroleum-substance wastes for storage or treatment until the stated registration provisions have been fully met. sec.334.489. Public Notice.
                                                                        The facility owner or operator shall provide notice to the general public regarding the location, construction, operation, and potential impacts of the storage or treatment facility. (1) The facility owner or operator shall provide notice of the facility to the general public by means of a notice by publication and a notice by mail. (2) The notice shall contain, at a minimum, the following information in accordance with forms approved by the executive director: (A) the name, address, phone number, and contact person for the owner of the facility; (B) the name, address, phone number, and contact person for the operator of the facility; (C) the name, address, phone number, and contact person for the landowner (if different from the facility owner); (D) the address and the legal description for the location of the facility; (E) the date, time, and location of the public meeting to be held pursuant to sec.334.490 of this title (relating to Public Meetings); (F) notice that an application for registration has been filed with the Texas Water Commission and notice of the application for any necessary permits or exemptions with the Texas Air Control Board; (G) a complete description of the activities which will be conducted at the facility, including details on the construction of the facility, the soil storage methods, the soil treatment methods, the final disposition of the treated soils, and documentation on any points of discharge; (H) the method for obtaining additional information on the facility. (3) The notice by publication shall be published in a newspaper published daily, if available, and generally circulated in the county or area where the proposed facility is to be located and within each county or area wherein persons reside who would be affected by the facility. The notice shall be published at least 10 calendar days prior to the public meeting utilizing the form provided by the executive director. (4) The notice by mail shall be sent to the following persons at least 10 calendar days prior to the public meeting: (A) all adjacent landowners and all owners of property within 1,000 feet of the facility; (B) the mayor and health authorities of the city in which the facility will be located, if applicable; (C) the county judge and county health authority of the county in which the facility will be located; (D) the appropriate state senator and representative for the area encompassing the facility; and (E) all persons or organizations who have requested the notice or expressed interest in the facility. The executive director may designate persons or organizations in addition to those specified by the facility owner or operator. (5) The facility owner or operator shall provide copies of each notice by mail and by publication and copies of the signed affidavits for the notices to the commission's Austin office, to the appropriate commission district field office, to the Texas Air Control Board, and to any other applicable governing agencies within five calendar days of publication and mailing. sec.334.490. Public Meetings.
                                                                          The facility owner or operator, at their expense, shall schedule and hold a public meeting at a time and place which are convenient for the general public affected by the facility. The owner or operator shall coordinate the scheduling of the meeting with commission personnel to ensure the availability of commission personnel for the meeting. The meeting shall be open to the public to provide information on the proposed facility and to allow for comments by the public. The executive director will consider all comments relating to the requirements of this subchapter when determining the outcome of the registration application. The facility owner or operator shall confirm with the executive director on the time and place of the meeting at least 10 calendar days prior to the meeting. sec.334.491. Closure and Facility Expansion. A person who stores or treats petroleum-substance waste at a Class A or B facility shall notify the executive director in writing of any closure activity or facility expansion not specifically stated in the original application for registration at least 90 days prior to conducting such activity. Such person shall submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether such activity is compliant with this subchapter and whether additional public notice should be conducted. Any information provided under this subsection shall be submitted to the executive director's office in Austin and to the appropriate district field office. sec.334.492. Location Standards for Class A Petroleum-Substance Waste Storage or Treatment Facilities. (a) The commission shall not issue a registration for a Class A petroleum- substance waste management facility unless it finds that the proposed site, when evaluated in light of proposed design, construction and operational features, reasonably minimizes possible contamination of surface water and groundwater. In making this determination, the commission shall consider the following factors: (1) flooding or active geologic processes such as erosion, subsidence, submergence and faulting; (2) groundwater conditions such as groundwater flow rate, groundwater quality, length of flow path to points of discharge and aquifer recharge or discharge conditions; (3) soil conditions such as stratigraphic profile, stratigraphic complexity, and hydraulic conductivity of strata; (4) separation distance from the facility to the aquifer and to points of discharge to surface water; and (5) climatological conditions. (b) Class A storage or treatment facilities shall not be located: (1) in the 100-year floodplain; (2) in wetlands; (3) on the recharge or transition zone of a sole-source aquifer; (4) within 1,000 feet of an established residence, church, hospital, school, licensed day-care center, or dedicated public park; (5) within 1,000 feet of any property owned by a person other than the facility owner unless a restrictive easement is obtained by the facility owner on the adjacent property to ensure that no residences, schools, churches, hospitals, licensed day-care centers, or dedicated public parks will be constructed within the easement. (6) in areas of direct drainage within one-half mile of any surface water if the surface water is used to supply public drinking water through a public water system, unless it is designed, constructed, operated, and maintained to prevent any releases of contaminants from the facility; (7) in the critical habitat of an endangered species of plant or animal; (8) in an area where the roads leading to the facility which will be utilized to transport soil are not adequate to handle the anticipated traffic volume and load; or (9) in an area where the roads leading to the facility are not designated public roads. (c) The executive director shall determine whether the provisions of this subsection have been met. Nothing in this subchapter shall be construed to require the executive director to issue a registration notwithstanding a finding that the proposed facility would satisfy the requirement of sec.334.492 of this title (relating to Location Standards for Class A Petroleum-Substance Waste Storage or Treatment Facilities) and notwithstanding the absence of site characteristics which would disqualify the site from registration under this section. (d) The executive director, may in his discretion, grant a variance for existing facilities of the requirements of subsection (b) of this section, relating to location requirements for Class A facilities. Before the executive director may grant a variance under this subsection, he shall require the applicant to demonstrate that the provisions of subsection (b) of this section are not necessary to ensure adequate protection of human health and the environment. sec.334.493. Shipping Procedures Applicable to Generators of Petroleum- Substance Waste. (a) No generator shall transport petroleum-substance waste from the generating site unless the waste has been properly sampled in order to determine the levels of all possible contaminants in the waste. Necessary documentation shall, at a minimum, consist of documentation on the sampling, handling, chain-of-custody documentation and copies of signed laboratory reports on samples collected from the specified wastes that contain results of analysis for: (1) the major components of the petroleum-substance waste such as benzene, toluene, ethylbenzene, total xylenes, and total petroleum hydrocarbons or the major components of total petroleum hydrocarbons; and (2) any other contaminants as specified by the executive director based on specific conditions of the generating site. (b) No generator of petroleum-substance waste shall allow the transport of such wastes to an off-site waste storage, treatment, reuse, or disposal facility or area within the United States unless the following requirements are met: (1) a Texas Water Commission (TWC) petroleum-substance affidavit is prepared with all applicable information by the generator; (2) the receiving state's manifest or a TWC waste affidavit if the receiving state does not provide a manifest is prepared; (3) the generator designates on the affidavit at least one facility or area legally authorized to receive the waste. A generator may also designate one alternate facility or area which is legally authorized to receive the waste in the event an emergency prevents delivery of the waste to the primary designated facility. If the transporter is unable to deliver the waste to either the designated facility or the alternate facility, the generator shall either immediately designate another facility for receipt or instruct the transporter to immediately return the waste. Upon such redesignation by the generator, the generator shall immediately prepare an amended waste affidavit. (c) At the time of waste transfer, the generator or generator's authorized representative shall: (1) sign the affidavit by hand; (2) obtain the handwritten signature of the initial transporter and date of acceptance on the affidavit; (3) retain one copy, in accordance with sec.334.494 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators); and (4) give the transporter the remaining copies of the affidavit. sec.334.494. Recordkeeping and Reporting Procedures Applicable to Generators. Each generator, excluding transporters and shippers, of petroleum-substance waste shall comply with the following. (1) The generator shall keep records of all petroleum-substance waste activities regarding the quantities generated and shipped off-site for storage, treatment, or disposal and which, at a minimum, includes the information described in subparagraphs (A)-(D) of this section. The maintained records shall be retrievable, legible, and immediately available for inspection and copying by commission personnel. The required records shall be sufficiently detailed and complete to support any contentions or claims made by the generator with respect to the following: (A) the description, character and classification of each waste; (B) the quantity of waste and the date(s) it was generated; (C) identification of the generating location and the tank owner or operator; (D) the methods of storage, treatment, or disposal; (E) the quantity and date(s) the waste was shipped off-site for storage, treatment, or disposal including the name, address and location of each off-site facility and transporter receiving shipments. (2) The generator shall retain a legible copy of each waste affidavit required by sec.334.493 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste) for a minimum of five years from the date of shipment by the generator. (3) A generator of petroleum-substance waste shall keep records of all test results, waste analyses, or other determinations made for at least five years from the date that the waste was last sent to an off-site storage, treatment, disposal, or reuse area or facility. (4) A generator who does not receive a copy of the affidavit with the handwritten signature of the owner or operator of the designated facility within 35 days from the date the waste was accepted by the initial transporter shall contact the transporter and/or the owner or operator of the designated facility to determine the status of the petroleum-substance waste. (5) A generator shall submit an exception report to the executive director if the generator has not received a copy of the affidavit with the handwritten signature of the owner or operator of the designated facility within 45 days of the date that the waste was accepted by the initial transporter. The exception report shall be retained by the generator for at least five years from the date the waste was accepted by the initial transporter and shall include: (A) a legible copy of the affidavit for which the generator does not have confirmation of delivery; and (B) a legible copy of a letter signed by the generator or his authorized representative explaining the efforts taken to locate the waste and the results of those efforts. (6) The periods of record retention required by this subsection may be extended by the executive director during the course of any unresolved enforcement action regarding the regulated activity. sec.334.495. Shipping Requirements for Transporters of Petroleum-Substance Waste. (a) No transporter shall ship petroleum-substance waste to an off-site storage, treatment, or disposal facility, unless the transporter: (1) obtains an affidavit completed by the generator where appropriate in accordance with sec.334.493 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste); and (2) upon receipt and prior to shipment, signs and dates the affidavit acknowledging the acceptance of waste from the generator where appropriate. (b) The transporter shall ensure that the affidavit accompanies the petroleum- substance waste. (c) No transporter shall deliver a shipment of petroleum-substance waste to another transporter designated on the affidavit, unless the transporter: (1) obtains the date of delivery and the handwritten signature of the accepting transporter on the affidavit; and (2) gives the legible copies of the affidavit to the accepting transporter. (d) No transporter shall deliver a shipment of petroleum-substance waste to a storage, treatment, or disposal facility, unless the transporter: (1) obtains the date of delivery and the handwritten signature on the affidavit of the owner or operator of the facility designated on the affidavit; and (2) gives the copies of the affidavit to the owner or operator of the storage or treatment facility designated on the affidavit, or for shipments to disposal facilities, returns the copies to the generator. (e) The transporter shall deliver the entire quantity of petroleum-substance waste which the transporter has accepted from a generator or a transporter to: (1) the designated facility listed on the affidavit; (2) the alternate designated facility if the waste cannot be delivered to the designated facility because an emergency prevents delivery; or (3) the next designated transporter. (f) If the transporter cannot deliver the waste in accordance with subsection (e) of this section, the transporter shall immediately contact the generator for further directions and shall revise the affidavit according to the generator's instructions. sec.334.496. Shipping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities. (a) No owner or operator of a storage or treatment facility may accept delivery of petroleum-substance waste for storage or treatment unless: (1) a PST-waste affidavit accompanies the shipment which designates that facility to receive the waste; (2) the facility owner or operator signs the affidavit and immediately gives at least one copy of the signed affidavit to the transporter; (3) retains one copy of the affidavit in accordance with sec.334.497 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); and (4) within 30 days after receipt of the waste, sends a copy of the affidavit to the generator; (b) When a facility or reuse area receives petroleum-substance waste accompanied by a affidavit, the facility owner or operator, or his agent, or the owner of the property designated for the reuse area shall note any significant discrepancies on each copy of the affidavit. (1) Significant discrepancies are differences between the quantity or type of waste designated on the affidavit and the quantity or type of waste a facility actually received. Significant discrepancies in type are obvious differences which can be discovered by inspection or waste analysis. (2) Upon discovering a significant discrepancy, the facility owner or operator shall attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the facility owner or operator shall, within five days, submit to the executive director a letter describing the discrepancy and attempts to reconcile it, and a copy of the affidavit at issue. The facility owner or operator shall ensure that the waste is a petroleum-substance waste acceptable by the facility and shall report any unreconciled discrepancies discovered during any analyses or evaluation. (c) No owner or operator of a storage or treatment facility shall accept wastes from an out-of-state generator or location unless the following requirements are met: (1) the waste is accompanied by legible copies of the signed TWC waste affidavits for all wastes received pursuant to sec.334. 493 (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Wastes) or legible copies of the signed manifests issued by the generating state which clearly document the generator, the generating facility, the waste type, the contaminant levels, and the waste classification; (2) the facility owner or operator obtains documentation that the wastes contain only petroleum-substance contamination. This documentation shall consist of documentation on the sampling methods, sample handling, chain-of-custody documents, and legible copies of signed laboratory reports on samples collected from the specified wastes. The number of samples shall be sufficient to characterize the entire quantity of wastes. The analyses shall include: (A) Volatiles and Semi-Volatiles by EPA Methods 8240 and 8250; (B) TC-listed constituents as specified in 40 Code of Federal Regulations, Part 261; (C) Organichlorine Pesticides and PCBs by EPA Method 8080; and (D) any other analyses necessary to characterize the wastes or as specified by the executive director. (3) The facility owner or operator obtains documentation from the appropriate governing agency in the originating state that the wastes are classified as nonhazardous and meet the definition of petroleum-substance wastes. (e) The facility owner or operator shall not accept any wastes for storage or treatment from an in-state generator or location which contain any other contaminants above natural background levels other than petroleum substances as defined in this subchapter. Documentation of the contaminants in the waste shall consist of a sufficient number of samples to characterize the waste and the samples shall be analyzed for all constituents that may occur in that waste. sec.334.497. Recordkeeping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities. (a) All records required by this subchapter shall be retained by the facility owner or operator for a minimum of five years from the date of receipt of the waste. The records shall be maintained in a secure location on the premises of the storage or treatment facility and shall be immediately accessible by the facility owner and operator. In the event that copies of the required records cannot reasonably be maintained on the premises of the facility, then such records may be maintained at a readily-accessible alternate site, provided that the following conditions are met: (1) if the facility is in operation, the records shall be readily accessible for reference by the facility owner and operator; (2) the records shall be readily accessible and available for inspection and copying upon request by commission personnel; (3) the facility owner or operator shall provide the following information in writing to the executive director and to the commission's appropriate district office: (A) the specific location where the required records are maintained; and (B) the name, address, and telephone number of the authorized custodian of the records; (4) the written information required in paragraph (3) of this subparagraph shall be submitted with the application for registration and within 15 days after the records are moved to an alternate site from that specified in the registration. (b) For facilities which have completed the closure requirements and are no longer in service, the facility owner may submit the appropriate records required by this subchapter to the executive director in lieu of maintaining the records on the premises or at an alternate site, provided that the following conditions are met: (1) the facility owner shall provide written justification adequate to explain why the records cannot be maintained at a readily-accessible alternate site; and (2) the records shall be submitted at one time in one package for each facility, and the records shall be appropriately labeled with the facility identification number and location information. (c) A facility owner or operator who initiates a shipment of petroleum- substance waste from a treatment or storage facility shall comply with the generator standards contained in sec.334.493 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste) and sec.334.494 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators) and this subsection. (d) The periods of record retention required by this subsection may be extended by the executive director during the course of any unresolved enforcement action regarding the regulated activity. (e) The following information, at a minimum, shall be maintained by the facility owner or operator: (1) documentation on all shipments of contaminated media received at the facility as specified on the waste affidavit; (2) the method(s) of storage or treatment for all media received; (3) the method of reuse or disposal of all wastes removed from the facility including: (A) the location of final disposition; (B) the quantity and contaminant levels of wastes placed at any and every location; (C) the name, work address, and work phone number of the authorized representative for the receiving facility or location. If the receiving facility cannot be identified by street address, then other specifics shall be included to adequately identify the exact location; (D) the name, work address, and work phone number of the authorized representative for the landowner at the receiving location; (E) documentation on the soil sampling and analytical methods, chain-of- custody, and all analytical results for the soil received at the facility and transported off-site or reused on-site; (F) a detailed description of the reuse methods; (G) the date(s) of transport off-site and the dates of reuse; (H) legible copies of the authorization from the landowner at the receiving location pursuant to sec.334. 500 of this title (relating to Reuse of Petroleum- Substance Waste). (4) documentation on the operations at the facility, including: (A) information on the actual treatment efficiency of the unit; (B) documentation on the results of all air emissions monitoring; (C) any changes in the operations at the facility; (D) documentation on any releases, fires, or explosions and the measures taken to abate the situation; (5) monitoring data under sec.334.501 of this title (relating to Contaminant Assessment Program and Corrective Action) when required; (6) a summary of the types and volumes of any petroleum-substance waste received without affidavits. This documentation shall include the following information: (A) the dates the facility received the wastes; (B) the LPST or other identification number of the generating facility, and the names and addresses of the tank owner or operator and the transporter, if available; (C) a description and the quantity of each petroleum-substance waste the facility received which was not accompanied by a PST-waste affidavit; (D) the method of storage and/or treatment for each petroleum-substance waste; (7) any other information deemed necessary by the executive director. sec.334.498. Additional Reports.
                                                                            The owner or operator of a Class A or Class B facility shall report to the executive director within 24 hours of the occurrence any releases, fires, explosions, breakdowns, shutdowns, releases, or spills which result or may result in the discharge of any contaminants to the ground, surface water, or groundwater. sec.334.499. Design and Operating Requirements of Stockpiles and Land Surface Treatment Units. (a) A stockpile or land surface treatment unit located at any storage or treatment facility or at any LPST site shall have an appropriate means of preventing any discharge or release of petroleum-substance waste or petroleum- substance waste constituents into any media. This shall be accomplished with: (1) a synthetic, impermeable liner that is designed, constructed, and installed to prevent any migration of petroleum-substance wastes out of the stockpile or land surface treatment unit into the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the stockpile, or land surface treatment unit. The liner shall be constructed of materials that do not allow petroleum-substance waste or petroleum-substance waste constituents to migrate into the liner itself or into the adjacent subsurface soil, groundwater, or surface water during the active life of the facility. The liner shall: (A) be constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the hydrocarbons or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operations; (B) be placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, tearing, or uplift; (C) be installed to cover all surrounding earth likely to be in contact with the petroleum-substance waste or leachate; and (D) contain a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate and rainwater from the stockpile or land surface treatment unit. The facility owner and operator shall specify the design and operating conditions which will ensure that the leachate depth over the liner does not exceed the depth of soil on the liner. The leachate collection and removal system shall be constructed of materials that are: (i) chemically resistant to the hydrocarbons managed in the pile and the leachate expected to be generated; and (ii) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying petroleum-substance wastes, petroleum-substance waste cover materials, and any equipment used at the stockpile or treatment unit; and (iii) designed and operated to function without clogging through the scheduled life of the stockpile or land surface treatment unit; or (2) an alternate design or operating practice that is effective in preventing any release or discharge and is approved by the executive director. The facility owner or operator shall demonstrate that the alternate design or operating practices, together with location characteristics, will prevent the migration of any petroleum-substance waste constituents into the soil, groundwater, or surface water at any future time. In deciding whether to approve the alternate design, the executive director will consider: (A) the nature and quantity of the wastes; (B) the proposed alternate design and operation; (C) the hydrogeologic setting of the facility, including a tentative capacity and thickness of the liners and soils present between the stockpile or land surface treatment unit and groundwater or surface water; and (D) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to soil, groundwater or surface water. (b) The facility owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the stockpile or land surface treatment unit. (c) The facility owner or operator shall design, construct, operate, and maintain a run-off management system to prevent flow from a stockpile or land surface treatment unit. (d) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems shall be emptied and managed expeditiously in accordance with applicable state and federal requirements after storms to maintain design capacity of the system. (e) If the stockpile or land surface treatment unit contains any particulate matter which may be subject to wind dispersal, the facility owner or operator shall cover or otherwise manage the stockpile or land surface treatment unit to control wind dispersal. (f) The executive director may specify other design and operating practices that may be necessary to ensure that the requirements of this subsection are satisfied. (g) The facility owner or operator shall ensure that treatment is initiated on stockpiled soil within 90 days from the date of receipt at the facility. (h) In addition to the requirements specified in subsections (a)-(g) of this section, the facility owner or operator shall design, construct, operate, and maintain the land surface treatment unit to maximize the degradation, transformation, or immobilization of petroleum-substance waste constituents in the treatment area. At a minimum, the facility owner or operator shall specify the following items, if applicable, in the facility registration application: (1) the rate and method of petroleum-substance waste application to the treatment area; (2) measures to control soil Ph; (3) measures to enhance microbial or chemical reactions (e.g., fertilization); and (4) measures to control the moisture content of the treatment area. (i) The facility owner or operator shall inspect the unit weekly and after storms to detect evidence of: (1) deterioration, malfunctions, or improper operation of run-on and run-off control systems; and (2) improper functioning of wind dispersal control measures. sec.334.500. Reuse of Petroleum-Substance Waste. (a) Wastes that are intended for reuse are subject to all the applicable provisions of this subchapter, including but not limited to the following requirements: sec.334.482 of this title (relating to General Prohibitions); sec.334.493 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste); sec.334.494 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators); sec.334.495 of this title (relating to Shipping Requirements for Transporters of Petroleum- Substance Waste); sec.334.496 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); sec.334.497 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage or Treatment Facilities); and sec.334.499 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units). (b) Recordkeeping and reporting requirements. (1) Any person who intends to reuse petroleum-substance wastes shall maintain records and provide to the executive director when requested such information deemed necessary by the executive director to ensure compliance with the requirements of this subsection. This information may include, but is not limited to: (A) identification, address, and name of the authorized representative of the generating facility; (B) identification, address, and name of the authorized representative for the receiving facility or location; (C) identification of the landowner of the receiving location or facility; (D) the quantity, type, and contaminant levels of the reused wastes; (E) documentation of the reuse methods and dates of reuse; (F) documentation that asphalt mix or roadbase mix meets the specifications required by the final user; (G) documentation that the landowner of the receiving location has approved the use of the reused wastes on his property. (c) Reuse requirements. (1) Any person who intends to utilize petroleum-substance wastes for reuse shall obtain written approval from the landowner of the land on which the wastes will be placed. (2) Petroleum-substance wastes shall be reused only in manners which are in accordance with sec.334.482 of this title (relating to General Prohibitions) and at contaminant levels as specified by the executive director. (3) Petroleum-substance wastes may be reused under the following conditions. (A) Petroleum-substance wastes may be utilized in cold-mix-emulsion bituminous paving at a cold-mix asphalt-producing facility registered under the terms of this subchapter. The petroleum-substance waste shall be mixed with aggregate or other suitable materials at a rate which will result in a mixture meeting or exceeding the specifications required by the final user. The petroleum-substance waste shall contain less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes prior to mixing. Authorization for the facility shall also be obtained from all other appropriate federal, state, or local governing agencies. Authorization from the owner of the road or other area where the asphalt is to be utilized shall be obtained prior to laying the asphalt. (B) Petroleum-substance wastes with nonhazardous contaminant levels may be utilized in asphalt mix at hot-mix asphalt-producing facilities registered under this subchapter. The petroleum-substance waste shall contain less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes prior to mixing. The petroleum-substance waste shall be mixed with aggregate at a rate which will result in a mixture meeting or exceeding the specifications required by the final user. Authorization for the facility shall also be obtained from all other appropriate federal, state, or local governing agencies. Authorization from the owner of the road or other area where the asphalt is to be utilized shall be obtained prior to laying the asphalt. (C) Petroleum-substance wastes may be utilized in roadbase or parking lot stabilized base when the base will be covered with concrete or asphalt if the contaminant levels of the soil prior to mixing into the stabilized base are less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes, and less than 500.0 mg/kg total petroleum hydrocarbons or at contaminant levels otherwise specified by the executive director. The base shall be mixed according to the specifications required by the final user. Soil which is not mixed into stabilized roadbase shall meet the criteria for clean soil as specified by the executive director in order to be spread on a road or parking lot. The generator shall obtain prior written consent for the placement of the soil from the owner of the road (if different from the landowner). (D) Petroleum-substance wastes may be utilized in roadbase or parking lot stabilized base when the base will not be covered with asphalt or concrete if the contaminant levels are less than 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes, and less than 200 mg/kg of total petroleum hydrocarbons or at contaminant levels otherwise specified by the executive director. The base shall be mixed according to the specifications required by the final user. The base shall be professionally mixed by a facility registered under the terms of this subchapter. Soil which is not mixed into stabilized roadbase shall meet the criteria for clean soil in order to be spread on a road or parking lot. The generator shall obtain prior written consent for the placement of the soil from the owner of the road (if different from the landowner). (E) Petroleum-substance wastes may be used as fill in another LPST site tankhold if the contaminant levels do not exceed 0.5 mg/kg for each component of benzene, toluene, ethylbenzene, and total xylenes, and 10.0 mg/kg total petroleum hydrocarbons. Other contaminant levels may be considered by the executive director if documentation indicates that there is no threat to public health or safety and if there is no threat of groundwater contamination at the receiving site. The owner of the underground storage tanks at the receiving facility along with the landowner (if different from the tank owner) shall give written consent for this activity. The soil shall not be utilized in a tankhold in which a new tank installation will occur. (F) Petroleum-substance waste may be reused by alternative methods or contaminant levels deemed appropriate and as authorized by the executive director. The generator shall obtain authorization, including authorization pursuant to the requirements of this subchapter, from the executive director prior to reusing the waste by alternative methods. sec.334.501. Contaminant Assessment Program and Corrective Action. (a) The facility owner or operator shall conduct an assessment when, in the opinion of the executive director, there exists a possibility of migration of contaminants into or adjacent to waters in the state. The assessment shall be capable of determining: (1) whether petroleum-substance waste or petroleum-substance waste constituents have entered the groundwater, surface water, or soils; (2) the rate and extent of migration of any petroleum-substance waste or petroleum-substance waste constituents in the soil, groundwater, or surface water; and (3) the concentrations of petroleum-substance waste or petroleum-substance waste constituents in the soil, groundwater or surface water. (b) The owner or operator of the facility shall conduct corrective action at the facility when, in the opinion of the executive director, petroleum-substance waste constituents exist in the soil, groundwater, or nearby surface water at levels above those which are protective of human health and safety and the environment. (c) The corrective action program shall be capable of preventing the migration of contaminants and shall prevent the contaminants from exceeding the levels determined by the executive director. (d) The facility owner or operator shall ensure that the corrective action measures under this subsection shall be initiated and completed within a reasonable period of time as determined by the executive director considering the extent of contamination. The executive director may issue additional directives should the corrective action activities prove to not be effective in reducing the contaminant levels at a sufficient rate. (e) The facility owner or operator shall report in writing to the executive director the effectiveness of the corrective action program. The facility owner or operator shall submit these reports to the commission's Austin office and to the appropriate commission district office upon request by the executive director. sec.334.502. Security. (a) The facility owner or operator shall prevent the unknowing entry, and minimize the possibility for the unauthorized entry of persons or livestock (or other animals) onto the active portion of his facility, unless the facility owner or operator can demonstrate to the executive director that: (1) physical contact with the waste, structures, or equipment within the active portion of the facility will not injure unknowing or unauthorized persons or animals which may enter the active portion of a facility; and (2) disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or animals onto the active portion of a facility, will not cause a violation of the requirements of this paragraph. (b) Unless the facility owner or operator has made a successful demonstration under subsection (a)(1) and (2) of this section, a facility shall have: (1) a 24-hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or (2) an artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and (3) a means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility). (c) Unless exempt under subsection (a)(1) and (2) of this section, a sign with the legend, "Caution-Unauthorized Personnel Keep Out" shall be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend shall be written in English and in any other language predominant in the area surrounding the facility, and shall be legible from a distance of at least 25 feet. Existing signs with a legend other than "Caution-Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous. (d) The owner or operator of the facility shall submit details of the proposed security measures in the application for registration. sec.334.503. Contingency Plan. (a) Each facility owner or operator shall have a contingency plan for each facility. The contingency plan shall be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of petroleum-substance waste or petroleum-substance waste constituents to air, soil, groundwater, or surface water. (b) The provisions of the plan shall be carried out immediately whenever there is a fire, explosion, or release of petroleum-substance waste or petroleum- substance waste constituents which could threaten human health or the environment. (c) The contingency plan shall describe the actions facility personnel shall take in order to respond to fires, explosions, or any unplanned sudden or non- sudden release of petroleum-substance waste or petroleum-substance waste constituents to air, soil, or surface water at the facility. (d) The plan shall list names, addresses, and phone numbers (office and home) of all persons qualified to act as facility emergency coordinators and this list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and others shall be listed in the order in which they will assume responsibility as alternates. (e) The plan shall include a list of all emergency equipment at the facility, such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external). This list shall be kept up to date. In addition, the plan shall include the location and a physical description of each item on the list, and a brief outline of its capabilities. (f) The plan shall include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan shall describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by release of petroleum-substance waste or fires). (g) A legible copy of the contingency plan and all revisions to the plan shall be: (1) submitted to the executive director with the application for registration; (2) maintained at the facility; and (3) submitted to all local police departments, fire departments, hospitals, and state and local emergency response teams that may be called upon to provide emergency services. (h) The contingency plan shall be reviewed, and immediately amended, if necessary, whenever: (1) the facility registration is revised; (2) the plan fails in an emergency; (3) the facility changes its design, construction, operations, maintenance, or other circumstances in a way that materially increases the potential for fires, explosions, or release of petroleum-substance waste or petroleum-substance waste constituents, or changes the response necessary in an emergency; (4) the list of emergency coordinators changes; or (5) the list of emergency equipment changes. sec.334.504. Emergency Procedures. (a) At all times, there shall be at least one employee either on the facility premises or on call (i.e. , available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator shall be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person shall have the authority to commit the resources needed to carry out the contingency plan. (b) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) shall immediately: (1) activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and (2) notify appropriate state or local agencies with designed response roles if their help is needed. (c) Whenever there is a release, fire, or explosion, the emergency coordinator shall immediately identify the character, exact source, amount, and areal extent of any released materials. The emergency coordinator may do this by observation or review of facility records or affidavits, and, if necessary, by chemical analysis. (d) Concurrently, the emergency coordinator shall assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment shall consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that re-generated, or the effects of any surface water run- off from water or chemical agents used to control fire and heat-induced explosions). (e) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health or the environment outside the facility, the emergency coordinator shall report his findings as follows: (1) if the emergency coordinator's assessment indicates that evacuation of local areas may be advisable, the emergency coordinator shall immediately notify appropriate local authorities. The emergency coordinator shall be available to help appropriate officials decide whether local areas should be evacuated; and (2) the emergency coordinator shall immediately notify either the government official designated as the on-scene coordinator for that geographical area, the Texas Emergency Response Center at (512) 463-7727, or the National Response Center (using their 24-hour toll free number (800) 424-8802). The report shall include: (A) name and telephone number of reporter; (B) name and address of facility; (C) time and type of incident (e.g., release, fire); (D) name and quantity of material(s) involved, to the extent known; and (E) the possible hazards to human health or the environment outside the facility. (f) During an emergency, the emergency coordinator shall take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other petroleum-substance waste at the facility. These measures shall include, where applicable, stopping processes and operations, collecting and containing released waste, and removing or isolating containers. (g) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator shall monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate. (h) Immediately after an emergency, the emergency coordinator shall provide for treating, storing, and/or disposing of recovered water, contaminated soil and surface water, and any other material that results from a release, fire or explosion at the facility. (i) The emergency coordinator shall ensure that, in the affected area(s) of the facility, all emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed. (j) The facility owner or operator shall notify the executive director and appropriate State and local authorities that the facility is in compliance with subsection (h) of this section before operations are resumed in the affected areas(s) of the facility. (k) The facility owner or operator shall note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, the facility owner or operator shall submit a written report on the incident to the executive director. The report shall include: (1) name, address, and telephone number of the facility owner or operator; (2) name, address, and telephone number of the facility; (3) the facility's registration number; (4) date, time, and type of incident (e.g. fire, explosion); (5) name and quantity of material(s) involved; (6) the extent of injuries, if any; (7) an assessment of actual or potential hazards to human health or the environment, where this is applicable; and (8) estimated quantity and disposition of recovered material that resulted from the incident. sec.334.505. Closure for Class A and Class B Facilities. (a) An owner or operator of a Class A or Class B facility shall close the facility in accordance with the closure provisions of this subchapter. (b) Except as provided in this subsection, the facility owner or operator shall submit his closure plan to the executive director for approval with the application for registration. (c) In the closure plan the facility owner or operator shall address the following objectives and indicate how they will be achieved: (1) removal and decontamination of all structures, equipment, or improvements which will no longer be utilized at the facility; (2) removal and proper disposal or treatment and reuse of all petroleum- substance wastes from the facility; and (3) removal or treatment of any petroleum-substance waste and petroleum- substance waste constituents which exist above the established cleanup levels that have been released from the facility into the soil, groundwater, or surface water. (d) During the closure period the facility owner or operator of a petroleum- substance treatment facility shall: (1) continue the contaminant assessment or corrective action at the facility as directed by the executive director; (2) maintain the run-on and run-off control systems required under sec.334.499 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units); (3) control wind dispersal of particular matter which may be subject to wind dispersal. (e) When closure is completed the facility owner or operator shall submit to the executive director for approval certification both by the facility owner or operator and by an independent qualified hydrogeologist, geologist, or an independent registered professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan. (f) The facility owner or operator shall prepare a written estimate, in current dollars, of the cost of closing the facility in accordance with the closure plan as specified in sec.334.506 of this title (relating to Financial Assurance). The closure cost estimate shall equal the cost of closing at the point in the facility's operating life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan. The closure cost estimate shall be based on the costs to the facility owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary for the facility owner or operator. Notwithstanding other closure costs, such estimate shall also include the costs associated with third party removal, shipment off-site, and treatment or disposal off-site of the following wastes to an authorized storage, treatment, or disposal facility: (1) maximum inventory of wastes in storage and/or treatment units; (2) any contaminated soils, groundwater, or surface water generated as a result of releases at the site; (3) wastes generated as a result of closure activities; (4) contaminated stormwater or leachate. (g) The closure cost estimate may not incorporate any salvage value that may be realized by the sale of petroleum-substance wastes, facility structures or equipment, land or other facility assets at the time of partial or final closures. The facility owner or operator may not incorporate a zero cost for petroleum-substance waste that might have economic value. (h) The facility owner or operator shall adjust the closure cost estimate for inflation within 30 days after each anniversary of the date on which the first closure cost estimate was prepared. The adjustment shall be made as specified in paragraphs (1) and (2) of this subsection, using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business
                                                                              . The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year. (1) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate. (2) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor. (i) The facility owner or operator shall revise the closure cost estimate whenever a change in the closure plan increases the cost of closure. The revised closure cost estimate shall be adjusted for inflation as specified in this subsection. (j) The facility owner or operator shall keep the following at the facility during the operating life of the facility: the latest closure cost estimate prepared in accordance with subsections (f) and (g) of this section and, when this estimate has been adjusted in accordance with subsection (h) of this section, the latest adjusted closure cost estimate. sec.334.506. Financial Assurance.
                                                                                The owner or operator of a Class A or Class B facility shall establish financial assurance for the closure of each facility. Documentation of the completion of financial assurance shall be submitted with the registration application pursuant to sec.334.484 of this title (relating to Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities) and sec.334.488 of this title (relating to Effect on Existing Facilities). The financial assurance shall be in the amount specified in the cost estimate for closure pursuant to sec.334.505 of this title (relating to Closure for Class A and Class B Facilities). The financial assurance mechanisms shall consist of one or more of the following: (1) closure trust fund; (2) surety bond guaranteeing payment into a closure trust fund; (3) surety bond guaranteeing performance of closure; (4) closure letter of credit; (5) closure insurance; or (6) financial test and corporate guarantee for closure. Issued in Austin, Texas, on September 25, 1992. TRD-9213049 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: September 25, 1992 Expiration date: January 23, 1993 For further information, please call: (512) 463-8069