(a) Definitions:
(1) Storage vessel:
(A) is made of nonearthen materials;
(B) is located on or above the surface of the ground;
(C) has a capacity of 21,000 gallons or more of a regulated substance as defined by § 26.343, Water Code; and
(D) is located at or is part of a petrochemical plant, a petroleum refinery, or a bulk storage terminal as that term is defined by Subsection (a)(2).
(2) “Bulk storage terminal” means a site in this state, including end-of-line pipeline storage terminals (excluding breakout tanks), refinery storage terminals, for-hire storage terminals, and rail and barge storage terminals.
(3) “National consensus standards” means any performance standard for storage tanks, or a modification thereof, that:
(A) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the commission that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption; and
(B) was formulated in a manner that afforded an opportunity for diverse views to be considered.
(b) The following tanks, including any pipe that is connected to the tank, are not considered to be storage vessels and are exempt from regulation under the Performance Standards for Safety at Storage Vessels requirements in Sections 26.3442, 26.3443, and 26.3444:
(1) a tank used in or associated with the production or gathering of crude oil or natural gas;
(2) a tank that is part of a stormwater or wastewater collection system;
(3) a flow-through process tank, including a pressure vessel or process vessel and oil and water separators;
(4) a storage vessel operating above 0.5 Pounds per Square Inch Gauge;
(5) heated tanks;
(6) an intermediate bulk container or similar tank that may be moved within a facility;
(7) a tank regulated under the federal Surface Mining Control and Reclamation Act (30 U.S.C. § 1201 et seq.);
(8) a tank used for the storage of products regulated under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.);
(9) a tank, including piping and collection and treatment systems, that is used in the management of leachate, methane gas, or methane gas condensate, unless the tank is used for storage of a regulated substance;
(10) a tank or pressure vessel that is used to store liquefied petroleum gas; and
(11) a tank regulated under the U.S. Department of Transportation’s (DOT’s) Pipeline and Hazardous Materials Safety Administration (PHMSA) (49 U.S.C. § 60101 et seq.).

(c) Not later than September 1, 2023, the commission shall establish a Performance Standards for Safety at Storage Vessels Program as described in this section to provide for the protection of groundwater and surface water resources from a release of substances from a storage vessel in the event of an accident or natural disaster.
(d) In establishing the portion of the Performance Standards for Safety at Storage Vessels Program governed by this subsection, the commission shall, except as provided by § 26.3443, include all and only those critical safety elements that are applicable to a storage vessel, and that the commission determines to be critical in this state for the protection described by Subsection (c), from the following federal statutes and regulations, ensuring that the correct critical safety elements are applied to the correct types of storage vessels as delineated in the applicability section of each cited federal statute and regulation:
(1) Clean Air Act Risk Management Plan Rule and Maximum Achievable Control Technology/National Emission Standards for Hazardous Air Pollutants program requirements;
(2) Resource Conservation and Recovery Act requirements for Treatment, Storage, and Disposal Facilities (40 C.F.R. Parts 264/265, Subparts A-E);
(3) Spill Prevention, Control, and Countermeasure Regulations (40 C.F.R. part 112); and
(4) EPA Risk Management Plan Rules regarding accident prevention at facilities that use certain hazardous substances.
(e) In establishing the portion of the Performance Standards for Safety at Storage Vessels Program governed by this subsection, the commission shall, except as provided by § 26.3443, include all and only those critical safety elements that are applicable to a storage vessel, and that the commission determines to be critical in this state for the protection described by Subsection (c), from the following national consensus standards, ensuring that the correct critical safety elements are applied to the correct types of storage vessels as delineated in the applicability section of each cited national consensus standard:
(1) for in-service storage vessels constructed on or before September 1, 2027:
(A) from American Petroleum Institute (API) Standard 653: Tank Inspection, Repairs, Alteration, and Reconstruction, the commission shall require adherence to the protocol to applicable tanks included in this standard for the following:
(i) Section 4.3: Tank Shell Evaluation;
(ii) Section 4.4: Tank Bottom Evaluation;
(iii) Section 4.5: Tank Foundation Evaluation;
(iv) Section 6.2: Inspection Frequency Considerations;
(v) Section 6.3: Inspections from the Outside of the Tank;
(vi) Section 6.4: Internal Inspection, if applicable in accordance with Section 6.3;
(vii) Section 8: Design Considerations for Reconstructed Tanks; and
(viii) Section 9: Tank Repair and Alteration;
(B) from API Standard 2350 or API Recommended Practices 2350: Overfill Protection for Storage Tanks in Petroleum Facilities, the commission shall include the following critical safety elements for storage vessels included in this standard:
(i) Section 4: Overfill Prevention Systems, including management systems and operational procedures before and after product receipt as applicable;
(ii) Section 5: Overfill Prevention Systems, including requirements for manual or automated overfill prevention systems as applicable, including use of remote operated shutoff valves;
(iii) the requirements referenced in Subparagraphs (i) and (ii) only apply to atmospheric tanks as specified in API Standard 2350; and
(iv) API 2350 assessment protocol to determine how to manage overfill through engineered controls, administrative controls, and hazard class in applicable quantities; and
(C) from either National Fire Protection Association (NFPA) 30 Ch. 22 or API Recommended Practice 2001, the commission shall require fire suppression systems on storage vessels subject to the protocol in the applicable standard; and
(2) for in-service storage vessels constructed after September 1, 2027:
(A) all of the standards listed in Subdivision (1); and
(B) API 650: Welded Tanks for Oil Storage and NFPA 30, Chapter 22 location standards; and
(C) NFPA 30, Chapter 22 location standards, except for reconstruction standards at an original storage vessel location.
(f) The applicable standard chosen by the commission under Subsection (e)(1)(C) only applies to material stored at atmospheric pressure with a flashpoint less than or equal to 100 Fahrenheit as defined by OSHA Process Safety Management.
(g) The applicable standard in Subsection (e)(2)(B) only applies to atmospheric storage vessels as defined in API 650.
(h) The commission may require a plan to control spills from atmospheric storage vessels that includes recommended practices in NFPA 30.
(i) An owner or operator of a storage vessel shall register with the commission, assess and report to the commission its current compliance status with the Performance Standards for Safety at Storage Vessels Program no later than September 1, 2027. For storage vessels constructed and brought into service after September 1, 2027, an owner or operator of a storage vessel shall register and certify its compliance status to the commission with the Performance Standards for Safety at Storage Vessels Program no later than 30 days after start of operation.
(j) An owner or operator of a storage vessel shall comply with the Performance Standards for Safety at Storage Vessels Program requirements on completion of the next regularly scheduled out-of-service maintenance of the storage vessel by the owner or operator that occurs after September 1, 2027. However, all facilities must certify compliance status by no later than September 1, 2037. Any modifications or retrofits necessary for compliance with the Performance Standards for Safety at Storage Vessels Program should be made during these out-of-service maintenance periods as identified by the owner or operator unless the owner or operator makes and records with the commission a demonstration of technical impracticability that the commission approves.
(k) The commission in implementing the Performance Standards for Safety at Storage Vessels Program shall require an owner or operator of a storage vessel or a designated third party as assigned by the owner or operator to certify compliance status every 10 years with the standards referenced in Subsections (d) and (e) as applicable.
(l) The commission shall keep confidential information reported to, obtained by, or otherwise submitted to the commission that:
(1) is subject to restrictions on dissemination under federal law, including off-site consequence analysis information subject to Title 40, Part 1400, C.F.R.; or
(2) may otherwise present a security risk, if disclosed publicly.
(m) The commission shall conduct on-site inspections of the registered/certified facilities at least once every five years to determine compliance with the Performance Standards for Safety at Storage Vessels Program. This subsection does not limit the commission’s ability to inspect a facility under other state or federal regulations.