Texas Tank Truck Carriers Association, Inc.Texas Tank Truck Carriers Association, Inc.PROPOSED RULE FOR OWNER/OPERATOR CERTIFICATION OF COMPLIANCE OF UNDERGROUND STORAGE TANKS (USTS)
On January 30, 1998, we met with the General Counsel of the Senate Natural Resources Committee, Mr. M. Scott Norman, and the Committee Director, Carol McGarah, along with Mr. Chris Newton and Mr. Lynton Allred of the Texas Petroleum Marketers and Convenience Store Association. The issue discussed concerns, in part, how a motor carrier knows that it is delivering product into a certificated tank. Who is responsible for the enforcement of the TNRCC rules and who is liable for non-compliance?
The final draft of the Proposed Rule for Owner/Operator Certification of Compliance of Underground Storage Tanks (USTs) is available by request. At our October 15, 1997, Safety Meeting, we discussed this proposal as it relates to the tank truck carrier industry. The final proposed language is the same as the language we reviewed in October.
The sections of the proposed legislation which affect the tank truck carriers are Section VI, Verification of Registration Certificate by the Carrier, and Section VII, Enforcement. Please refer to this section when responding to the following questions.
Under Section VI, the motor carrier responsible for delivery of fuel into the PST system would be required to verify the existence of and maintain a record of the Registration Certificate by one of the following accepted methods:
A. Visual verification on site.
The driver representing the carrier could record the facility ID# and Registration Certificate expiration date of the delivery document.
B. Verification prior to delivery.
The carrier could verify a Registration Certificate by receipt of a copy of facsimile of the current Registration Certificate from the Owner/Operator. This type of verification could be kept on file and serve as verification for subsequent deliveries through the expiration date of the Registration Certificate.
Under the Section VII, Enforcement, the carrier would be a party subject to enforcement action from the TNRCC for non-compliance with the applicable rules.
Upon discovery of delivery of fuel into a facility without a Registration Certificate the TRNCC would:
1. Begin enforcement against the facility to put it Out of Service.
2. Notify the carrier (if known) that violation has been discovered.
3. Audit prior deliveries into the facility to determine carriers responsible for delivery to the facility.
These are the questions we would like you to answer.
1. Is the proposed language under Sections VI and VII acceptable to your company?
2. If you have reviewed the entire rule proposal, are there any sections of the rule that you would change.
3. Under Section VII, Enforcement, would you support a change making the third party that directs the delivery of fuel to be responsible for compliance? In other words, should the motor carrier be able to rely on an oil company customer directing a delivery to a certified tank only.
4. What are the practical problems that your company has under the current system of compliance?
5. What problems would your company have under the proposed rules, specifically Sections VI and VII.
We are very interested in your input because this proposal is on track to become law at the next Texas Legislative Session in 1999. Prompt attention to this matter now will ensure that a rule is instituted that is practical and workable without being a undue burden on the tank truck carrier industry. Please send back your reply as soon as possible.
Mail to: P.O. Box 2307
Austin, TX 78768
Fax to: (512) 479-8726
Email to: long@onr.com
BACKGROUND
The United States Environmental Protection Agency created rules in 1988 to regulate the operation of underground storage tanks. By federal law, the State of Texas was directed to implement and enforce these rules. The Texas Natural Resource Conservation Commission (TNRCC) is the designated state agency for implementation and enforcement of these rules. It is illegal since January 1, 1990, to put product into non-certificated tanks. The current rule is TNRCC Rule, §334.5(b), General Prohibitions, Delivery.
Because the TNRCC cannot physically inspect every UST facility in the state, it has implemented a certificate program which is currently in effect. The certificates must be given to the motor carrier and/or posted at the facility. The certificates would guarantee that the facility is in compliance.
Before this proposed legislation becomes law, we would like the officers and Safety Directors of each member carrier to review this language and to comment on whether or not this system is acceptable to your company.
Here are a few of my observations and questions. The certification process would, in effect, be equipment certification in three major areas: leak protection; corrosion protection (which is required to be completed by December 23, 1998); and spill protection.
Under the certificate process, the owner and operator of the UST system must have sufficient insurance and must certify that the UST is in compliance with the current TNRCC rules regarding the petroleum storage tank system. The TNRCC then issues a registration certificate which would identify the tank that is in compliance. Under the proposed rule, the owner of the tank system would have to annually obtain a certificate and make that certificate available to motor carriers. The motor carrier would be responsible for checking on the certificates each year.
The TNRCC database regarding tanks in compliance is not always current. An expiring annual certificate creates some type of paperwork nightmare which could be a problem. It was therefore discussed at our meeting that a 30-day grace period would be allowed each year. But the real problem for the motor carrier is that the motor carrier is put in the position of being an enforcement arm for TNRCC. The motor carrier may have civil liability, although only the owner and operator have criminal liability under the act. Civil liability may be too much of a burden for the motor carrier to shoulder.
We therefore have suggested that the third party ordering the delivery of the fuel should be liable also. In many cases, this will be the motor carrier's customer and a prominent oil company. There are approximately 35,000 facilities and 85,000 tanks in Texas and maybe 40% of them are not registered. So we still have a very serious enforcement problem at TNRCC.
Thank you for your assistance in this matter. If you have any questions,
please give me a call at (512) 472-6207.
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