SECTION 334.84. Corrective Action by the Agency

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

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

(2) the owner or operator of the AST or UST cannot be found;

(3) the owner or operator of the AST or UST, in the opinion of the agency, is unable to take the corrective action necessary to protect the public health and safety and/or the environment;

(4) the owner or operator is eligible for an extension for corrective action reimbursement under Texas Water Code, §26.3571; has been granted such extension by the executive director; has applied to the agency in writing on an agency application form not later than July 1, 2011, to have an eligible corrective action site placed in the Petroleum Storage Tank State Lead Program administered by the commission; and has agreed on the application form to allow access to that site to state personnel and state contractors. Once the executive director places such a site in the state lead program, the eligible owner or operator of that site is not liable to the commission for any corrective action costs incurred by the state lead program with regard to the site, unless the statutorily allowable maximum cost per site is exceeded; or

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

(b) The agency may retain agents to perform corrective action it considers necessary to carry out the provisions of this chapter. The agents shall operate under the direction of the executive director.

(c) The agency shall generate a written response either accepting or denying the application of an eligible owner or operator, who has applied to the agency in accordance with the requirements of subsection (a)(4) of this section to have an eligible corrective action site placed in the Petroleum Storage Tank State Lead Program, within 30 calendar days, as practicable, of the date that application is received by the agency's state lead program.

(d) The commission may undertake corrective action to remove a UST or AST that:

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

(2) is temporarily out of service as described in §334.54(a) of this title (relating to Temporary Removal from Service) or out of operation as defined in §334.2(71) of this title (relating to Definitions);

(3) presents a contamination risk. A determination of the potential risk of contamination from a site may be made by the executive director based on such factors including, but not limited to, estimated age of the tank system; status as secured or non-secured; presence, absence, whether known or unknown, of regulated substances in the tank system; length of time the tank system has been out of service; location, including proximity to sensitive receptors; and any other relevant information regarding the UST system; and

(4) is owned or operated by a person who is financially unable to remove the tank. A determination of financial inability under this section may be made by the executive director based on such factors including, but not limited to, a tank owner or operator's financial statements; federal or state income tax returns; gross and net income for each of the three preceding years; net worth for each of the three preceding years; current cash flow position; long-term liabilities; the liquidity of assets; and any other data requested by the executive director, which in the opinion of the executive director is relevant to a determination of the ability of the tank owner or operator to fund proper removal of UST systems from service pursuant to §334.55 of this title (relating to Permanent Removal from Service).

Source Note: The provisions of this §334.84 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective April 19, 2012, 37 TexReg 2674