Natural Resources Code
CHAPTER 40. OIL SPILL PREVENTION AND RESPONSE ACT OF 1991
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 40.001. Short Title.
This chapter may be cited as the Oil Spill Prevention and
Response Act of 1991.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.002. Policy.
(a) The legislature finds and declares that the preservation of
the Texas coast is a matter of the highest urgency and priority.
It is the policy of this state to keep its coastal waters,
rivers, lakes, estuaries, marshes, tidal flats, beaches, and
public lands as pristine as possible, taking into account
multiple use accommodations necessary to provide the broadest
possible promotion of public and private interests. Spills,
discharges, and escapes of crude oil, petroleum, and other such
substances resulting from their handling, storage, and
transportation, particularly by vessel, endanger the coastal
environment of the state, public and private property on the
coast, and the well-being of those deriving their livelihood from
marine-related activity in coastal waters. The hazards posed by
the handling, storage, and transportation of these substances in
the coastal waters are contrary to the paramount interests of the
state. These state interests outweigh the economic burdens
imposed under this chapter.
(b) The legislature finds and declares that the natural
resources of the state and particularly those in the coastal
waters of the state offer significant benefits to the citizens of
Texas. These natural resources are important for their existence
and their recreational, aesthetic, and commercial value. It is
the policy of the state to protect these natural resources and to
restore, rehabilitate, replace, and/or acquire the equivalent of
these natural resources with all deliberate speed when they have
been damaged. The legislature finds and declares that it is
difficult to assess the value of these natural resources and to
quantify injury to natural resources at a reasonable cost. The
procedures and protocols utilized by the trustees must therefore
consider the unique characteristics of each spill incident and
the location of the natural resources affected. It is the intent
of the legislature that natural resource damage assessment
methodologies be developed for the purpose of reasonably valuing
the natural resources of the State of Texas in the event of an
oil spill and that the state recover monetary damages or have
actions commenced by the spiller as early as possible to expedite
the restoration, rehabilitation, and/or replacement of injured
natural resources.
(c) The legislature intends by this chapter to exercise the
police power of the state to protect its coastal waters and
adjacent shorelines by conferring upon the Commissioner of the
General Land Office the power to:
(1) prevent spills and discharges of oil by requiring and
monitoring preventive measures and response planning;
(2) provide for prompt response to abate and contain spills
and discharges of oil and ensure the removal and cleanup of
pollution from such spills and discharges;
(3) provide for development of a state coastal discharge
contingency plan through planning and coordination with the
Texas Natural Resource Conservation Commission to protect
coastal waters from all types of spills and discharges; and
(4) administer a fund to provide for funding these
activities and to guarantee the prompt payment of certain
reasonable claims resulting from spills and discharges of oil.
(d) The legislature declares that it is the intent of this
chapter to support and complement the Oil Pollution Act of 1990
(Pub. L. 101-380) and other federal law, specifically those
provisions relating to the national contingency plan for cleanup
of oil and hazardous substance spills and discharges, including
provisions relating to the responsibilities of state agencies
designated as natural resources trustees. The legislature
intends this chapter to be interpreted and implemented in a
manner consistent with federal law.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 1, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.265, eff.
Sept. 1, 1995.
Sec. 40.003. Definitions.
In this chapter:
(1) "Barrel" means 42 United States gallons at 60 degrees
Fahrenheit.
(2) "Coastal waters" means the waters and bed of the Gulf of
Mexico within the jurisdiction of the State of Texas, including
the arms of the Gulf of Mexico subject to tidal influence, and
any other waters contiguous thereto that are navigable by
vessels with a capacity to carry 10,000 gallons or more of oil
as fuel or cargo.
(3) "Commissioner" means the Commissioner of the General
Land Office.
(4) "Comprehensive assessment method" means a method
including sampling, modeling, and other appropriate scientific
procedures to make a reasonable and rational determination of
injury to natural resources resulting from an unauthorized
discharge of oil.
(5) "Comptroller" means the comptroller of public accounts.
(6) "Crude oil" means any naturally occurring liquid
hydrocarbon at atmospheric temperature and pressure coming from
the earth, including condensate.
(7)(A) "Damages" means compensation:
(i) to an owner, lessee, or trustee for any
direct, documented loss of, injury to, or loss of use of any real
or personal property or natural resources injured by an
unauthorized discharge of oil;
(ii) to a state or local government for any
direct, documented net loss of taxes or net costs of increased
entitlements or public services; or
(iii) to persons, including but not limited
to holders of an oyster lease or permit; persons owning,
operating, or employed on commercial fishing, oystering,
crabbing, or shrimping vessels; persons owning, operating, or
employed by seafood processing concerns; and others similarly
economically reliant on the use or acquisition of natural
resources for any direct, documented loss of income, profits, or
earning capacity from the inability of the claimant to use or
acquire natural resources arising solely from injury to the
natural resources from an unauthorized discharge of oil.
(B) With respect to natural resources, "damages"
includes the cost to assess, restore, rehabilitate, or
replace injured natural resources, or to mitigate further
injury, and their diminution in value after such
restoration, rehabilitation, replacement, or mitigation.
(8) "Discharge of oil" means an intentional or unintentional
act or omission by which harmful quantities of oil are spilled,
leaked, pumped, poured, emitted, or dumped into or on coastal
waters or at a place adjacent to coastal waters where, unless
controlled or removed, an imminent threat of pollution to
coastal waters exists.
(9) "Discharge cleanup organization" means any group or
cooperative, incorporated or unincorporated, of owners or
operators of vessels or terminal facilities and any other
persons who may elect to join, organized for the purpose of
abating, containing, removing, or cleaning up pollution from
discharges of oil or rescuing and rehabilitating wildlife or
other natural resources through cooperative efforts and shared
equipment, personnel, or facilities. Any third-party cleanup
contractor, industry cooperative, volunteer organization, or
local government shall be recognized as a discharge cleanup
organization, provided the commissioner or the United States
properly certifies or classifies the organization.
(10) "Federal fund" means the federal Oil Spill Liability
Trust Fund.
(11) "Fund" means the coastal protection fund.
(12) "Harmful quantity" means that quantity of oil the
discharge of which is determined by the commissioner to be
harmful to the environment or public health or welfare or may
reasonably be anticipated to present an imminent and
substantial danger to the public health or welfare.
(13) "Hazardous substance" means any substance, except oil,
designated as hazardous by the Environmental Protection Agency
pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et
seq.) and designated by the Texas Natural Resource Conservation
Commission.
(14) "Marine terminal" means any terminal facility used for
transferring crude oil to or from vessels.
(15) "National contingency plan" means the plan prepared and
published, as revised from time to time, under the Federal
Water Pollution Control Act (33 U.S.C. Sec. 1321 et seq.) and
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.).
(16) "Natural resources" means all land, fish, shellfish,
fowl, wildlife, biota, vegetation, air, water, and other
similar resources owned, managed, held in trust, regulated, or
otherwise controlled by the state.
(17) "Oil" means oil of any kind or in any form, including
but not limited to crude oil, petroleum, fuel oil, sludge, oil
refuse, and oil mixed with wastes other than dredged spoil, but
does not include petroleum, including crude oil or any fraction
thereof, which is specifically listed or designated as a
hazardous substance under Subparagraphs (A) through (F) of
Section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et
seq.) and which is subject to the provisions of that Act, and
which is so designated by the Texas Natural Resource
Conservation Commission.
(18) "Owner" or "operator" means:
(A) any person owning, operating, or chartering by
demise a vessel; or
(B) any person owning a terminal facility or a person
operating a terminal facility by lease, contract, or other
form of agreement.
(19) "Person in charge" means the person on the scene who is
directly responsible for a terminal facility or vessel when a
discharge of oil occurs or a particular duty arises under this
chapter.
(20) "Person responsible" or "responsible person" means:
(A) the owner or operator of a vessel or terminal
facility from which an unauthorized discharge of oil
emanates or threatens to emanate;
(B) in the case of an abandoned vessel or terminal
facility, the person who would have been the responsible
person immediately prior to the abandonment; and
(C) any other person who causes, allows, or permits an
unauthorized discharge of oil or threatened unauthorized
discharge of oil.
(21) "Pollution" means the presence of harmful quantities of
oil from an unauthorized discharge in coastal waters or in or
on adjacent waters, shorelines, estuaries, tidal flats,
beaches, or marshes.
(22) "Response costs" means:
(A) with respect to an actual or threatened discharge of
oil, all costs incurred in an attempt to prevent, abate,
contain, and remove pollution from the discharge, including
costs of removing vessels or structures under this chapter,
and costs of any reasonable measures to prevent or limit
damage to the public health, safety, or welfare, public or
private property, or natural resources; or
(B) with respect to an actual or threatened discharge of
a hazardous substance, only costs incurred to supplement the
response operations of the Texas Natural Resource
Conservation Commission.
(23) "Terminal facility" or "facility" means any waterfront
or offshore pipeline, structure, equipment, or device used for
the purposes of drilling for, pumping, storing, handling, or
transferring oil and operating where a discharge of oil from
the facility could threaten coastal waters, including but not
limited to any such facility owned or operated by a public
utility or a governmental or quasi-governmental body, but does
not include any temporary storage facilities used only in
connection with the containment and cleanup of unauthorized
discharges of oil.
(24) "Trained personnel" means one or more persons who have
satisfactorily completed an appropriate course of instruction
developed under Section 40.302 of this code or all other
training requirements as determined by the commissioner.
(25) "Trustee" means a natural resources trustee of the
state as designated by the governor under federal law.
(26) "Unauthorized discharge of oil" means any discharge of
oil, or any discharge of oil emanating from a vessel into
waters adjoining and accessible from coastal waters, that is
not authorized by a federal or state permit.
(27) "Unauthorized discharge of hazardous substances" means
a spill or discharge subject to Subchapter G, Chapter 26, Water
Code.
(28) "Vessel" includes every description of watercraft or
other contrivance used or capable of being used as a means of
transportation on water, whether self-propelled or otherwise,
including barges.
(29) Repealed by Acts 1995, 74th Leg., ch. 76, art. 11, Sec.
11.334(a), eff. Sept. 1, 1995.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec.
1.054, eff. Aug. 12, 1991; Acts 1993, 73rd Leg., ch. 776, Sec. 2,
eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Secs. 11.266,
11.334(a), eff. Sept. 1, 1995.
Sec. 40.004. Administration of Oil Spill Response and Cleanup.
(a) The General Land Office, under the direction and control of
the commissioner, is the state's lead agency for response to
actual or threatened unauthorized discharges of oil and for
cleanup of pollution from unauthorized discharges of oil. The
commissioner shall administer this chapter and direct all state
discharge response and cleanup operations resulting from
unauthorized discharges of oil.
(b) All persons and all other officers, agencies, and
subdivisions of the state shall carry out response and cleanup
operations related to unauthorized discharges of oil subject to
the authority granted to the commissioner under this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.005. Administration of Hazardous Substance Spill Response and
Cleanup.
The General Land Office, under the direction and control of the
commissioner, is the state's lead agency for initiating response
to all actual or threatened unauthorized discharges of oil. In
the event of an unauthorized discharge of a hazardous substance,
nothing in this chapter shall preclude the Texas Natural Resource
Conservation Commission from at the earliest time practicable
assuming response and cleanup duties pursuant to Subchapter G,
Chapter 26, Water Code, and the state coastal discharge
contingency plan.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.267, eff.
Sept. 1, 1995.
Sec. 40.006. Interagency Council.
The commissioner shall from time to time convene a cooperative
council comprising the Texas Department of Health, the division
of emergency management in the office of the governor, the Parks
and Wildlife Department, the Texas Natural Resource Conservation
Commission, the Railroad Commission of Texas, the Texas Higher
Education Coordinating Board, and any other state agency
authorized to participate in unauthorized discharge response
operations under the state coastal discharge contingency plan.
The commissioner shall serve as chairperson. The council shall
consider matters relating to coordination of state prevention,
response, and cleanup operations related to unauthorized
discharges of oil and hazardous substances.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.267, eff.
Sept. 1, 1995.
Sec. 40.007. General Powers and Duties.
(a) The commissioner may promulgate rules necessary and
convenient to the administration of this chapter.
(b) The commissioner shall by rule establish procedures under
Chapter 2001, Government Code for all hearings required by this
chapter. The commissioner may administer oaths, receive
evidence, issue subpoenas to compel attendance of witnesses and
production of evidence related to hearings, and make findings of
fact and decisions with respect to administering this chapter.
(c) The commissioner may contract with any public agency or
private person or other entity, including entering into
cooperative agreements with the federal government, acquire and
dispose of real or personal property, delegate responsibility for
implementing the requirements of this chapter, and perform any
other act within or without the boundaries of this state
necessary to administer this chapter.
(d) If the commissioner finds it necessary to enter property to
conduct a vessel or terminal facility audit, inspection, or drill
authorized under this chapter or to respond to an actual or
threatened unauthorized discharge of oil, the commissioner may
enter the property after making a reasonable effort to obtain
consent to enter the property.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.
Sec. 40.008. Railroad Commission Authority.
The Railroad Commission of Texas shall continue to exercise its
authority pursuant to Section 91.101 of this code and Section
26.131, Water Code, to issue and enforce rules, permits, and
orders to prevent pollution of surface and subsurface waters in
the state by activities associated with the exploration,
development, or production of oil, gas, or geothermal resources,
including the transportation of oil or gas by pipeline. Nothing
in this chapter preempts the jurisdiction of the Railroad
Commission of Texas under Article 6053-1, Revised Statutes, and
Chapter 117, Natural Resources Code, over pipeline transportation
of gas and hazardous liquids and over gas and hazardous liquid
pipeline facilities.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
SUBCHAPTER B. DISCHARGE RESPONSE
Sec. 40.051. Notification.
On notification of an actual or threatened unauthorized discharge
of oil, the commissioner shall act to assess the discharge and
prevent, abate, or contain any pollution from the discharge.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.052. Hazardous Substances Discharges.
If the unauthorized discharge involves predominantly a
hazardous substance, the Texas Natural Resource Conservation
Commission shall carry out responsibility for abatement,
containment, removal, and cleanup of the hazardous substances
discharged, pursuant to Subchapter G, Chapter 26, Water Code, and
to the state coastal discharge contingency plan.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.267, eff.
Sept. 1, 1995.
Sec. 40.053. State Coastal Discharge Contingency Plan.
(a) The commissioner shall promulgate a state coastal discharge
contingency plan of response for actual or threatened
unauthorized discharges of oil and cleanup of pollution from such
discharges. In addition, the Texas Natural Resource Conservation
Commission, in cooperation with the commissioner, shall
promulgate provisions of the plan relating to unauthorized
discharges of hazardous substances, and the Parks and Wildlife
Department, in cooperation with the commissioner, shall
promulgate provisions of the plan relating to the rescue and
rehabilitation of aquatic life and wildlife and the habitats on
which they depend. The commissioner shall cooperate and consult
with the Railroad Commission of Texas in promulgating provisions
of the plan relating to the exercise of authority by the Railroad
Commission of Texas pursuant to Subsection (b) of this section to
direct an owner or operator to abate or prevent pollution as a
result of an unauthorized discharge of oil. The plan shall be
promulgated in a coordinate manner and adopted in an integrated
chapter of the Texas Administrative Code.
(b) In promulgating the plan, the commissioner and the Texas
Natural Resource Conservation Commission shall provide for clear
designation of responsibilities and avoid unnecessary duplication
and expense. The plan shall provide that, in the event of an
unauthorized discharge of 240 barrels or less of oil from an
activity associated with the exploration, development, or
production of oil or gas, including the transportation of oil or
gas by pipeline, the Railroad Commission of Texas shall act as
state-designated on-scene coordinator for abatement, containment,
removal, and cleanup of the discharge pursuant to Section 91.101
of this code, Section 26.131, Water Code, and this chapter.
(c) In promulgating the plan, the commissioner shall develop
response capabilities on a regional basis for all coastal waters,
incorporating to the greatest extent practicable existing plans
prepared for particular coastal areas.
(d) The commissioner shall establish regional response
committees or utilize the area committees established by federal
law to advise and provide input in the development of
site-specific discharge contingency response plans.
(1) Membership on these committees shall include broad-based
representation from local governments, industry, resource
agencies, and citizens groups and shall include staff from the
General Land Office.
(2) The committees shall develop regional response
recommendations and provide evaluation of response and
recommendations for improvement to the commissioner following
an actual or threatened unauthorized discharge.
(e) The state coastal discharge contingency plan shall include:
(1) designation of environmental and other priority zones to
determine the sequence and methods of response and cleanup and
a procedure for incident-specific response recommendations;
(2) evaluation of industry and federal government response
capabilities; and
(3) temporary storage locations for removed oil or hazardous
substances.
(f) In addition to the regional components, the plan shall also
include:
(1) detailed emergency operating procedures for initiating
actions in response to unauthorized discharges;
(2) persons constituting a response command structure and
state response team;
(3) an inventory of public and private equipment and its
location and a list of available sources of supplies necessary
for response;
(4) a table of organization with the names, addresses, and
telephone numbers of all persons and agencies responsible for
implementing every phase of the plan and provisions for
notifying such persons and agencies in the event of an
unauthorized discharge;
(5) practice drills for the response command structure and
the state response team;
(6) establishment of a single state hotline for reporting
incidents that will satisfy all state notification requirements
under this chapter and Subchapter G, Chapter 26, Water Code;
(7) provisions for notifying the Texas Natural Resource
Conservation Commission in the event of an unauthorized
discharge of a hazardous substance under the state coastal
discharge contingency plan;
(8) wildlife recovery team and volunteer coordination and
training;
(9) use of both proven and innovative response methods and
technologies;
(10) the circumstances under which an unauthorized discharge
has reached catastrophic proportions and may be declared to be
a state of disaster under applicable law;
(11) the circumstances under which the unauthorized
discharge may be declared to be abated and pollution may be
declared to be satisfactorily removed;
(12) designation of environmental and other priority zones
to determine the sequence and methods of response and cleanup;
(13) procedures for disposal of removed oil or hazardous
substances;
(14) procedures for assessment of natural resources damages
and plans for mitigation of damage to and restoration,
rehabilitation, or replacement of damaged natural resources,
including to the greatest extent practicable recommendations of
any regional response committee for the affected area; and
(15) any other matter necessary or appropriate to carry out
response activities.
(g) The plan shall be filed with all state agencies
participating in response operations and federal officials
responsible for federal discharge response within coastal waters.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 3, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.268, eff.
Sept. 1, 1995.
SUBCHAPTER C. OIL SPILL PREVENTION AND RESPONSE
Sec. 40.101. Notification and Response.
(a) Any person responsible for an unauthorized discharge of oil
or the person in charge of any vessel or a terminal facility from
or at which an unauthorized discharge of oil has occurred, as
soon as that person has knowledge of the discharge, shall:
(1) immediately notify the commissioner of the discharge; and
(2) undertake all reasonable actions to abate, contain, and
remove pollution from the discharge.
(b) If the persons responsible or in charge are unknown or appear
to the commissioner to be unwilling or unable to abate, contain,
and remove pollution from an unauthorized discharge of oil in an
adequate manner, the commissioner may abate, contain, and remove
pollution from the discharge and may contract with and appoint
agents who shall operate under the direction of the commissioner.
(c) In order to prevent duplication of effort among state
agencies, the commissioner shall utilize the expertise of the
Texas Natural Resource Conservation Commission on technical and
scientific actions, including but not limited to:
(1) taking samples in the spill area;
(2) monitoring meteorological conditions that may affect spill
response operations; and
(3) regulating disposal of spilled material.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.269, eff.
Sept. 1, 1995.
Sec. 40.102. Response Coordination.
(a) In responding to actual or threatened unauthorized
discharges of oil, the commissioner may appoint a
state-designated on-scene coordinator to act in the
commissioner's place.
(b) If the unauthorized discharge of oil is subject to the
national contingency plan, in responding to the discharge the
commissioner or the state-designated on-scene coordinator shall
to the greatest extent practicable act in accordance with the
national contingency plan and cooperate with the federal on-scene
coordinator or other federal agency or official exercising
authority under the national contingency plan.
(c) The commissioner or the state-designated on-scene
coordinator may act independently to the extent no federal
on-scene coordinator or authorized agency or official of the
federal government has assumed federal authority to oversee,
coordinate, and direct response operations.
(d) The state or federal on-scene coordinator may authorize the
decanting of recovered water during containment, cleanup, and
response activities resulting from an unauthorized discharge of
oil.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 4, eff.
Sept. 1, 1993.
Sec. 40.103. Assistance and Compensation.
(a) Subject to the commissioner's authority under this chapter,
any person or discharge cleanup organization may assist in
abating, containing, or removing pollution from any unauthorized
discharge of oil. This chapter does not affect any rights not
inconsistent with this chapter that any such person or
organization may have against any third party whose acts or
omissions caused or contributed to the unauthorized discharge.
(b) Any person or discharge cleanup organization that renders
assistance in abating, containing, or removing pollution from any
unauthorized discharge of oil may receive compensation from the
fund for response costs, provided the commissioner approves
compensation prior to the assistance being rendered. Prior
approval for compensation may be provided for in the state
coastal discharge contingency plan. The commissioner, on
petition and for good cause shown, may waive the prior approval
prerequisite.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.104. Qualified Immunity for Response Actions.
(a) No action taken by any person or discharge cleanup
organization to abate, contain, or remove pollution from an
unauthorized discharge of oil, whether such action is taken
voluntarily, or pursuant to the national contingency plan or
state coastal discharge contingency plan, or pursuant to a
discharge response plan required under this chapter, or pursuant
to the request of an authorized federal or state official, or
pursuant to the request of the responsible person, shall be
construed as an admission of responsibility or liability for the
discharge.
(b) No person or discharge cleanup organization that
voluntarily, or pursuant to the national contingency plan or the
state coastal discharge contingency plan, or pursuant to any
discharge response plan required under this chapter, or pursuant
to the request of an authorized federal or state official, or
pursuant to the request of the responsible person, renders
assistance or advice in abating, containing, or removing
pollution from an unauthorized discharge of oil is liable for
response costs, damages, or civil penalties resulting from acts
or omissions committed in rendering such assistance or advice,
except for acts or omissions of gross negligence or wilful
misconduct.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.105. Equipment and Personnel.
The commissioner may establish and maintain equipment and
trained personnel at places the commissioner determines may be
necessary to facilitate response operations.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.106. Refusal to Cooperate.
(a) If a responsible person, or a person or discharge cleanup
organization under the control of a responsible person,
participating in operations to abate, contain, and remove
pollution from any unauthorized discharge of oil, reasonably
believes that any directions or orders given by the commissioner
or the commissioner's designee under this chapter will
unreasonably endanger public safety or natural resources or
conflict with directions or orders of the federal on-scene
coordinator, the party may refuse to comply with the direction or
orders.
(b) The party shall state at the time of refusal the reason or
reasons why the party refuses to comply. The party shall give
the commissioner written notice of the reason or the reasons for
the refusal within 48 hours of the refusal.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.107. Natural Resources Damages.
(a)(1) In any action to recover natural resources damages, the
amount of damages established by the commissioner in conjunction
with the trustees, according to the procedures and plans
contained in the state coastal discharge contingency plan, shall
create a rebuttable presumption of the amount of such damages.
(2) The commissioner shall represent the consensus position
of the trustees whenever a collective decision or agreement is
required by this section.
(3) Whenever trustees cannot achieve a consensus, the
commissioner may invoke mediation to settle any disputed matter
related to this section. The mediation shall be immediately
commenced and shall be concluded within 10 days of its
commencement. The trustees shall abide by the consensus
achieved through mediation.
(4) The trustees shall enter into a memorandum of agreement
which describes the mediation process of Subdivision (3) of
this subsection.
(b) The commissioner may establish the rebuttable presumption
by submitting to the court a written report of the amounts
computed or expended according to the state plan. The written
report shall be admissible in evidence.
(c)(1) The commissioner, in conjunction with the trustees,
shall develop an inventory that identifies and catalogs the
physical locations, the seasonal variations in location, and the
current condition of natural resources; provides for data
collection related to coastal processes; and identifies the
recreational and commercial use areas that are most likely to
suffer injury from an unauthorized discharge of oil. The
inventory shall be completed by September 1, 1995, and shall be
incorporated into the state coastal discharge contingency plan
after public review and comment.
(2) The physical locations surveyed for the inventory of
natural resources shall include, at a minimum, the following
priority areas:
(A) the Galveston Bay system and the Houston Ship
Channel;
(B) the Corpus Christi Bay system;
(C) the lower Laguna Madre;
(D) Sabine Lake; and
(E) federal and state wildlife refuge areas.
(3) The current condition of selected natural resources
inventoried and cataloged shall be determined by, at a minimum,
a baseline sampling and analysis of current levels of
constituent substances selected after considering the types of
oil most frequently transported through and stored near coastal
waters.
(4) The commissioner shall adopt administrative procedures
and protocols for the assessment of natural resource damages
from an unauthorized discharge of oil. As developed through
negotiated rulemaking with the trustees and other interested
parties, the procedures and protocols shall require the
trustees to assess natural resource damages by considering the
unique characteristics of the spill incident and the location
of the natural resources affected. These procedures and
protocols shall be adopted by rule, by the trustee agencies
after negotiation, notice, and public comment, by June 1, 1994,
and shall be incorporated into the state coastal discharge
contingency plan.
(5) The administrative procedures and protocols shall
include provisions which address:
(A) notification by the commissioner to all trustees in
the event of an unauthorized discharge of oil;
(B) coordination with and among trustees, spill response
agencies, potentially responsible parties, experts in
science and economics, and the public; and
(C) participation in all stages of the assessment
process by the potentially responsible party, as consistent
with trustee responsibilities.
(6) The administrative procedures and protocols shall also
require the trustees to:
(A) assist the on-scene coordinator, during spill
response activities and prior to the time that the state
on-scene coordinator determines that the cleanup is
complete, in predicting the impact of the oil and in
devising the most effective methods of protection for the
natural resources at risk;
(B) identify appropriate sampling and data collection
techniques to efficiently determine the impact on natural
resources of the unauthorized discharge of oil;
(C) initiate, within 24 hours after approval for access
to the site by the on-scene coordinator, an actual field
investigation which may include sampling and data
collection; the protocols shall require that the responsible
party and the trustees be given, on request, split samples
and copies of each other's photographs utilized in assessing
the impact of the unauthorized discharge of oil; and
(D) establish plans, including alternatives that are
cost-effective and efficient, to satisfy the goal of
restoring, rehabilitating, replacing, and/or acquiring the
equivalent of the injured natural resources.
(7)(A) The administrative procedures and protocols shall
also include the following types of assessment procedures and
deadlines for their completion:
(i) an expedited assessment procedure which
may be used in situations in which the spill has limited
observable mortality and restoration activities can be speedily
initiated and/or in which the quantity of oil discharged does not
exceed 1,000 gallons; the purpose of utilizing the expedited
assessment procedure is to allow prompt initiation of
restoration, rehabilitation, replacement, and/or acquisition of
an equivalent natural resource without lengthy analysis of the
impact on affected natural resources; this procedure shall, at a
minimum, require that the trustees consider the following items:
(aa) the quantity and quality of oil
discharged;
(bb) the time period during which
coastal waters are affected by the oil and the physical extent of
the impact;
(cc) the condition of the natural
resources prior to the unauthorized discharge of oil; and
(dd) the actual costs of restoring,
rehabilitating, and/or acquiring the equivalent of the injured
natural resources;
(ii) a comprehensive assessment procedure for
use in situations in which expedited or negotiated assessment
procedures are not appropriate; and
(iii) any other assessment method agreed upon
between the responsible person and the trustees, consistent with
their public trust duties.
(B) The trustees shall determine, within 60 days of the
determination by the on-scene coordinator that the cleanup
is complete, whether:
(i) action to restore, rehabilitate, or
acquire an equivalent natural resource is required;
(ii) an expedited assessment which may
include early commencement of restoration, rehabilitation,
replacement, and/or acquisition activities, may be required; and
(iii) a comprehensive assessment is
necessary.
(C) The trustees may petition the commissioner for a
longer period of time to make the above determination by
showing that the full impact of the discharge on the
affected natural resources cannot be determined in 60 days.
(D) The trustees shall complete the comprehensive
assessment procedure within 20 months of the date of the
determination by the state on-scene coordinator that the
cleanup is complete. The trustees may petition the
commissioner for a longer period of time to complete the
assessment by showing that the full impact of the discharge
on the affected natural resources cannot be determined in 20
months.
(E) Any assessment generated by the trustees shall be
reasonable and have a rational connection to the costs of
conducting the assessment and of restoring, rehabilitating,
replacing, and/or acquiring the equivalent of the injured
natural resources. The trustees shall ensure that the cost
of any restoration, rehabilitation, replacement, or
acquisition project shall not be disproportionate to the
value of the natural resource before the injury. The
trustees shall utilize the most cost-effective method to
achieve restoration, rehabilitation, replacement, or
acquisition of an equivalent resource. Furthermore, the
trustees shall take into account the quality of the actions
undertaken by the responsible party in response to the spill
incident, including but not limited to containment and
removal actions and protection and preservation of natural
resources.
(F) The potentially responsible party shall make full
payment within 60 days of the completion of the assessment
by the trustees or, if mediation pursuant to this paragraph
is conducted, within 60 days of the conclusion of the
mediation. To facilitate an expedited recovery of funds for
natural resource restoration and to assist the trustees and
the responsible party in the settlement of disputed natural
resource damage assessments at their discretion and at any
time, all disputed natural resource damage assessments shall
be referred to mediation as a prerequisite to the
jurisdiction of any court. Results of the mediation and any
settlement offers tendered during the mediation shall be
treated as settlement negotiations for the purposes of
admissibility in a court of law. Either the trustees or the
potentially responsible person may initiate the mediation
process, after an assessment has been issued, by giving
written notice to the commissioner, who shall give written
notice to all parties. One mediator shall be chosen by the
trustees and one mediator shall be chosen by the responsible
parties. Within 45 days of the receipt of the assessment
from the trustees, the mediators shall be designated. The
mediation shall end 135 days after the receipt of the
assessment from the trustees.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 5, eff.
Sept. 1, 1993.
Sec. 40.108. Derelict Vessels and Structures.
(a) A person may not leave, abandon, or maintain any structure
or vessel involved in an actual or threatened unauthorized
discharge of oil on public or private lands or at a public or
private port or dock, in a wrecked, derelict, or substantially
dismantled condition, without the consent of the commissioner.
(b) The commissioner may remove any vessel or structure
described in Subsection (a) of this section and may recover the
costs of removal from the owner or operator of the vessel or
structure.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.109. Registration of Terminal Facilities.
(a) A person may not operate or cause to be operated a terminal
facility without a discharge prevention and response certificate
issued pursuant to rules promulgated under this chapter.
(b)(1) As a condition precedent to the issuance or renewal of a
certificate, the commissioner shall require satisfactory evidence
that:
(A) the applicant has implemented a discharge prevention
and response plan consistent with state and federal plans
and regulations for prevention of unauthorized discharges of
oil and abatement, containment, and removal of pollution
when such discharge occurs; and
(B) the applicant can provide, directly or through
membership or contract with a discharge cleanup
organization, all required equipment and trained personnel
to prevent, abate, contain, and remove pollution from an
unauthorized discharge of oil as provided in the plan.
(2) A terminal facility response plan that complies with
requirements under federal law and regulations for a terminal
facility response plan satisfies the requirements of
Subdivision (1)(A) of this subsection.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.110. General Terms.
(a) Discharge prevention and response certificates are valid
for a period of five years. The commissioner by rule shall
require each registrant to report annually on the status of its
discharge prevention and response plan and response capability.
(b) The commissioner may review a certificate at any time there
is a material change affecting the terminal facility's discharge
prevention and response plan or response capability.
(c) Certificates shall be issued subject to such terms and
conditions as the commissioner may determine are reasonably
necessary to carry out the purposes of this chapter.
(d) Certificates issued to any terminal facility shall take
into account the vessels used to transport oil to or from the
facility.
(e) The commissioner by rule shall establish and require
payment of a reasonable fee for processing applications for
certificates. This fee is in addition to the fee levied under
Section 40.154 of this code and must be reasonably related to the
administrative costs of verifying data submitted pursuant to
obtaining the certificates and reasonable inspections.
(f) At least 30 days before issuing or renewing a certificate
for a facility used for the exploration, development, or
production of oil or gas, including the transportation of oil or
gas by pipeline, the commissioner shall provide to the Railroad
Commission of Texas a copy of the application for review and
comment. The Railroad Commission of Texas may be reimbursed from
the fund for its cost in reviewing and commenting on applications
for certificates.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.111. Information.
Each applicant for a discharge prevention and response
certificate shall submit information, in a form satisfactory to
the commissioner, describing the following:
(1) the barrel or other measurement capacity of the terminal
facility;
(2) the dimensions and barrel capacity of the largest vessel
docking at or providing service from the terminal facility;
(3) the storage and transfer capacities and average daily
throughput of the terminal facility;
(4) the types of oil stored, handled, or transferred at the
terminal facility;
(5) information related to implementation of the applicant's
discharge prevention and response plan, including:
(A) all response equipment such as vehicles, vessels,
pumps, skimmers, booms, bioremediation supplies and
application devices, dispersants, chemicals, and
communication devices to which the terminal facility has
access, as well as the estimated time required to deploy the
equipment after an unauthorized discharge of oil;
(B) the trained personnel that are required and
available to deploy and operate the response equipment, as
well as the estimated time required to deploy the personnel
after an unauthorized discharge of oil;
(C) the measures employed to prevent unauthorized
discharges of oil; and
(D) the terms of agreement and operation plan of any
discharge cleanup organization to which the owner or
operator of the terminal facility belongs;
(6) the source, nature of, and conditions of financial
responsibility for response costs and damages; and
(7) any other information necessary or appropriate to the
review of a registrant's discharge prevention and response
capabilities.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.112. Issuance.
On compliance with Sections 40.109 through 40.111 of this code
and on payment of the certificate application fee, the
commissioner shall issue the applicant a discharge prevention and
response certificate covering the terminal facility.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.113. Suspension.
If the commissioner determines that a registrant does not have
a discharge prevention and response plan or that the registrant's
preventive measures or containment and cleanup capabilities are
inadequate, the commissioner may, after notice and hearing as
provided in Section 40.254 of this code, suspend the registrant's
certificate until such time as the registrant complies with the
requirements of this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.114. Contingency Plans for Vessels.
(a) Any vessel with a capacity to carry 10,000 gallons or more
of oil as fuel or cargo that operates in coastal waters or waters
adjoining and accessible from coastal waters shall maintain a
written vessel-specific discharge prevention and response plan
that satisfies the requirements of rules promulgated under this
chapter. This section shall not apply to any dedicated response
vessel or to any other vessel for activities within state waters
related solely to the containment and cleanup of oil, including
response-related training or drills.
(b) The plan must:
(1) provide for response actions including notification to
the commissioner, verification of the unauthorized discharge,
identification of the pollutant, assessment of the discharge,
vessel stabilization, and discharge abatement and mitigation;
(2) designate an on-board spill officer who satisfies the
definition of trained personnel as provided by Section 40.003
of this code and who shall train the vessel's crew to conduct
unauthorized discharge response operations according to the
plan and shall coordinate on-board response operations in the
event of an unauthorized discharge; and
(3) contain any other provision the commissioner reasonably
requires by rule.
(c) A discharge prevention and response plan that complies with
requirements under federal laws and regulations for a
vessel-specific plan satisfies the requirements of Subsections
(a) and (b) of this section.
(d) The owner or operator of a vessel subject to this section
must be able to provide, directly or through membership or
contract with a discharge cleanup organization, all required
equipment and trained personnel to prevent, abate, contain, and
remove pollution from an unauthorized discharge of oil as
provided in the plan.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 6, eff.
Sept. 1, 1993.
Sec. 40.115. Entry into Port.
Prior to being granted entry into any port in this state, the
person in charge of a vessel subject to Section 40.114 of this
code may be required to report or show:
(1) any unauthorized discharges from the vessel since
leaving the last port;
(2) any mechanical or operational problem on the vessel
creating the possibility of an unauthorized discharge;
(3) any denial of entry into any port during the current
voyage of the vessel;
(4) that the vessel has a discharge prevention and response
plan and the trained personnel and equipment to implement it as
required under this chapter; and
(5) that the vessel has evidence of financial responsibility
as required under this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.116. Audits, Inspections, and Drills.
The commissioner may subject a vessel subject to Section 40.114
of this code, as a condition to being granted entry into any port
in this state, or a terminal facility to an announced or
unannounced audit, inspection, or drill to determine the
discharge prevention and response capabilities of the terminal
facility or vessels. Any vessel drill conducted by the
commissioner shall be in cooperation and conjunction with the
United States Coast Guard, and the commissioner's participation
may not interfere with the schedule of the vessel.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.117. Regulations.
(a) The commissioner shall from time to time adopt, amend,
repeal, and enforce reasonable regulations, including but not
limited to those relating to the following matters regarding the
unauthorized discharge of oil:
(1) standards and requirements for discharge prevention and
response capabilities of terminal facilities and vessels;
(2) standards, procedures, and methods of designating
persons in charge and reporting unauthorized discharges and
violations of this chapter;
(3) standards, procedures, methods, means, and equipment to
be used in the abatement, containment, and removal of
pollution;
(4) development and implementation of criteria and plans of
response to unauthorized discharges of various degrees and
kinds, including realistic worst-case scenarios;
(5) requirements for complete and thorough inspections of
vessels subject to Section 40.114 of this code and of terminal
facilities;
(6) certification of discharge cleanup organizations;
(7) requirements for the safety and operation of vessels,
motor vehicles, motorized equipment, and other equipment
involved in the transfer of oil at terminal facilities and the
approach and departure from terminal facilities;
(8) requirements that required containment equipment be on
hand, maintained, and deployed by trained personnel;
(9) requirements for certification as trained personnel;
(10) standards for reporting material changes in discharge
prevention and response plans and response capability for
purposes of terminal facility certificate reviews; and
(11) such other rules and regulations consistent with this
chapter and appropriate or necessary to carry out the intent of
this chapter.
(b) The commissioner shall establish as a prerequisite for
certification of any discharge cleanup organization, other than
the Marine Spill Response Corporation and any discharge cleanup
organization operated for profit, that the organization maintain
on its governing body a minimum of two ex officio representatives
from local governments within the area served by the
organization.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
SUBCHAPTER D. PAYMENT OF COSTS AND DAMAGES
Sec. 40.151. Coastal Protection Fund.
(a) The purpose of this subchapter is to provide immediately
available funds for response to all unauthorized discharges, for
cleanup of pollution from unauthorized discharges of oil, and for
payment of damages from unauthorized discharges of oil.
(b) The coastal protection fund is established in the state
treasury to be used by the commissioner as a nonlapsing revolving
fund only for carrying out the purposes of this chapter. To this
fund shall be credited all fees, penalties, judgments,
reimbursements, and charges provided for in this chapter and the
fee revenues levied, collected, and credited pursuant to this
chapter. The fund shall not exceed $50 million.
(c) Repealed by Acts 1995, 74th Leg., ch. 1058, Sec. 14(a), eff.
Aug. 30, 1995.
(d) Any interest in real or personal property acquired using
money in the fund shall be held by the commissioner.
(e) When the balance of the fund reaches $25 million, income on
the investment, in an amount not to exceed $5 million, shall be
transferred to the Railroad Commission of Texas for the oil-field
cleanup fund. Income on the investment of that $25 million in
excess of $5 million shall be credited to the fund.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec.
1.055, eff. Aug. 12, 1991; Acts 1995, 74th Leg., ch. 1058, Sec.
14(a), eff. Aug. 28, 1995.
Sec. 40.152. Use of Fund.
(a) Money in the fund may be disbursed for the following
purposes and no others:
(1) administrative expenses, personnel and training
expenses, and equipment maintenance and operating costs related
to implementation and enforcement of this chapter;
(2) response costs related to abatement and containment of
actual or threatened unauthorized discharges of oil incidental
to unauthorized discharges of hazardous substances;
(3) response costs and damages related to actual or
threatened unauthorized discharges of oil;
(4) assessment, restoration, rehabilitation, or replacement
of or mitigation of damage to natural resources damaged by an
unauthorized discharge of oil;
(5) in an amount not to exceed $50,000 annually, the small
spill education program;
(6) in an amount not to exceed $1,250,000 annually,
interagency contracts under Section 40.302 of this code;
(7) the purchase of response equipment under Section 40.105
of this code within two years of the effective date of this
chapter, in an amount not to exceed $4 million; thereafter, for
the purchase of equipment to replace equipment that is worn or
obsolete;
(8) an inventory under Section 40.107 of this code, to be
completed by September 1, 1995, in an amount not to exceed $6
million; and
(9) other costs and damages authorized by this chapter.
(b) There is hereby appropriated from the fund to the General
Land Office, subject to this section, the amounts specified for
the purposes of Subdivisions (5) and (6) of Subsection (a) of
this section, $2.5 million for administrative costs under this
chapter for the two-year period beginning with the effective date
of this chapter, and the actual amounts necessary to pay response
costs and damages as provided in this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 7, eff.
Sept. 1, 1993.
Sec. 40.153. Reimbursement of Fund.
The commissioner shall recover to the use of the fund, either
from persons responsible for the unauthorized discharge or
otherwise liable or from the federal fund, jointly and severally,
all sums owed to or expended from the fund.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.154. Coastal Protection Fee; Administrative Costs.
(a) There is hereby imposed a fee on every person owning crude
oil in a vessel at the time such crude oil is transferred to or
from a marine terminal. This fee is in addition to all taxes or
other fees levied on crude oil.
(b) The operator of the marine terminal shall collect the fee
from the owner of the crude oil and remit the fee to the
comptroller unless the owner of the crude oil is registered with
the comptroller for remittance of the fee. The fee shall be
imposed only once on the same crude oil. The fee shall be paid
monthly by the last day of the month following the calendar month
in which liability for the fee is incurred.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.155. Determination of Fee.
(a) Except as otherwise provided in this section, the rate of
the fee shall be two cents per barrel of crude oil until the
commissioner certifies that the unencumbered balance in the fund
has reached $25 million. The commissioner shall certify to the
comptroller the date on which the unencumbered balance in the
fund exceeds $25 million. The fee shall not be collected or
required to be paid on or after the first day of the second month
following the commissioner's certification to the comptroller
that the unencumbered balance in the fund exceeds $25 million.
(b) If the unencumbered balance in the fund falls below $14
million, the commissioner shall certify such fact to the
comptroller. On receiving the commissioner's certification, the
comptroller shall resume collecting the fee until suspended in
the manner provided in Subsection (a) of this section.
(c) Notwithstanding the provisions of Subsection (a) or (b) of
this section, the fee shall be levied at the rate of four cents
per barrel if the commissioner certifies to the comptroller a
written finding of the following facts:
(1) the unencumbered balance in the fund is less than $25
million;
(2) an unauthorized discharge of oil in excess of 100,000
gallons has occurred within the previous 30 days; and
(3) expenditures from the fund for response costs and
damages are expected to deplete the fund substantially.
(d) In the event of a certification to the comptroller under
Subsection (c) of this section, the comptroller shall collect the
fee at the rate of four cents per barrel until the unencumbered
balance in the fund reaches $25 million or any lesser amount that
the commissioner determines is necessary to pay response costs
and damages without substantially depleting the fund. The
commissioner shall certify to the comptroller the date on which
the unencumbered balance in the fund exceeds $25 million or such
other lesser amount. The fee shall not be collected or required
to be paid on or after the first day of the second month
following the commissioner's certification to the comptroller.
(e) For purposes of this section, the unencumbered balance of
the fund shall be determined by the unencumbered cash balance of
the fund at the end of each month or on the date of a finding
under Subsection (c) of this section.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 1058, Sec. 15, eff.
Aug. 30, 1995.
Sec. 40.156. Administration of Fee.
(a) The comptroller shall administer the provisions of this
section as provided in Chapters 101 through 113 of the Tax Code.
(b) In the event the commissioner makes a finding under Section
40.155(c) of this code, the commissioner shall publish the
finding in the Texas Register. In the event of any suspension or
other reinstatement of the fee, the comptroller shall publish the
suspension or reinstatement in the Texas Register at least 30
days prior to the scheduled effective date of the suspension or
reinstatement.
(c) In the event of an emergency, the comptroller shall
reinstate the fee in accordance with rules promulgated for that
purpose.
(d) The fee levied under this section shall be due and
collected beginning 60 days after the effective date of this
chapter. Contingent upon receipt by the comptroller of such
fees, the commissioner may temporarily use general revenue funds,
in an amount not to exceed estimated revenues to the coastal
protection fund in the fiscal year in which revenues are
collected. The general revenue amounts used shall be repaid out
of the first fees collected under this chapter, and may be used
only for purposes of meeting temporary cash flow needs during the
fiscal year. The transfer and repayment of these funds shall be
completed by the end of each fiscal year under procedures and
standards established by the comptroller.
(e) If refunds are determined to be due, they shall be paid
only from the fund.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.157. Liability of the Fund.
(a) Persons who incur response costs or who are entitled to
damages as a result of an unauthorized discharge of oil may
receive compensation from the fund.
(b) Any person other than the state seeking compensation from
the fund must file a claim with the commissioner. The claimant
must provide the commissioner with satisfactory proof of the
costs incurred or damages claimed. Each claimant shall make a
sworn verification of the claim.
(c) The commissioner shall prescribe appropriate forms and
requirements and by rule shall establish procedures for filing
claims for compensation from the fund and for response cost
reimbursements to other state agencies from the fund.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.158. Exceptions to Liability.
(a) Except as provided by Subsection (b) of this section, the
fund is absolutely liable for:
(1) all proven, reasonable response costs approved by the
commissioner under Section 40.103 of this code from an
unauthorized discharge of oil;
(2) all natural resources damages from an unauthorized
discharge of oil; and
(3) with the exception of those damages proportionately
attributable to the negligence or wilful misconduct of the
claimant, all other proven damages from the fund from an
unauthorized discharge of oil.
(b) A person liable for an unauthorized discharge of a
hazardous substance may not file a claim or be reimbursed from
the fund for the unauthorized discharge of a hazardous substance.
A person responsible for an unauthorized discharge of oil may not
file a claim or be reimbursed from the fund except:
(1) if the person responsible is entitled to a defense to
liability under Section 40.204 of this code, a claim for
response costs and damages may be filed; or
(2) if the person responsible is entitled to a limitation of
liability under Section 40.202 of this code, a claim for
response costs and damages to the extent that they exceed the
applicable limitation may be filed.
(c) No claim may be approved or certified during the pendency
of any action by the claimant in court to recover response costs
or damages that are the subject of the claim.
Added by Acts 1991. 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.159. Claims From Discharges of Oil.
(a)(1) On determining that damage from an unauthorized
discharge of oil is likely to occur or has occurred and will
result in the filing of claims, the commissioner shall
immediately designate the person or persons responsible who, if
the designation is not challenged within five days of notice
thereof, shall immediately and widely advertise the manner in
which the person will accept claims.
(2) If the designation is challenged or the commissioner is
otherwise unable to designate a responsible person, the
commissioner shall immediately and widely advertise the manner
in which the commissioner shall accept claims.
(b)(1) A claimant shall submit any claim exceeding $50,000 to
the designated responsible person. If there is no reasonable
response from the designated responsible person within 90 days or
in the absence of a designated responsible person as provided
under Subsection (a)(2) of this section, the claimant shall
submit the claim to the federal fund. If there is no reasonable
response from the federal fund within 60 days, the claimant may
submit the claim to the fund.
(2) A claimant shall submit any claim less than or equal to
$50,000 to the designated responsible person. If there is no
reasonable response from the designated responsible person
within 30 days or in the absence of a designated responsible
person as provided under Subsection (a)(2) of this section, the
claimant may submit the claim to the fund.
(c) Claims must be submitted to the fund by filing with the
commissioner not later than 180 days after the periods prescribed
in Subsection (b) of this section. Claims not filed within the
time allowed are barred as against the fund.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.160. Payment of Awards.
(a) The commissioner shall establish the amount of the award.
If the claimant accepts the award, the commissioner shall certify
the amount of the award and the name of the claimant to the
comptroller, who shall pay the award from the fund, subject to
Section 40.162 of this code.
(b) If either the claimant or the person or persons determined
by the commissioner to be responsible for the unauthorized
discharge of oil disagrees with the amount of the award, such
person may request a hearing. The commissioner shall hold a
hearing and issue an order setting the amount of the award.
(c) Each person's claims arising from a single discharge must
be stated in one application. Costs or damages omitted from any
claim at the time a claimant accepts an award are waived. The
commissioner may make partial final awards toward a single claim.
(d) If a person accepts an award from the fund, it shall bind
both the claimant and the commissioner as to all issues covered
by the award and may not be further attacked, collaterally or by
separate action. The commissioner shall be subrogated to all
rights or causes of action of the claimant arising from the
unauthorized discharge and covered by the award. The claimant
shall have no further cause of action against the person
responsible for the discharge.
(e) Claims proceedings under this chapter are not contested
cases under Chapter 2001, Government Code and judicial review of
such proceedings is not available under that Act.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.
Sec. 40.161. Reimbursement of Fund.
(a) The commissioner shall diligently pursue reimbursement to
the fund of any sum expended or paid from the fund.
(b) In any action to recover such sums, the commissioner shall
submit to the court a written report of the amounts paid from or
owed by the fund. The amounts paid from or owed by the fund
stated in the report shall create a rebuttable presumption of the
amount of the fund's damages. The written report shall be
admissible in evidence.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.162. Awards Exceeding Fund.
(a) If the total awards against the fund exceed the existing
balance of the fund, the claimant or claimants shall be paid from
the future income of the fund. Each claimant or claimants shall
receive a pro rata share of all money available in the fund until
the total amount of awards is paid.
(b) The commissioner by rule may make exceptions to Subsection
(a) of this section in cases of hardship. Amounts collected by
the fund from the prosecution of actions shall be used to satisfy
the claims as to which such prosecutions relate to the extent
unsatisfied.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
SUBCHAPTER E. LIABILITY OF PERSONS RESPONSIBLE
Sec. 40.201. Financial Responsibility.
(a) Each owner or operator of a vessel subject to Section 40.114
of this code and operating within coastal waters or waters
adjoining and accessible from coastal waters or any terminal
facility subject to this code shall establish and maintain
evidence of financial responsibility for costs and damages from
unauthorized discharges of oil pursuant to federal law or in any
other manner provided in this chapter.
(b) If a vessel subject to Section 40.114 of this code or a
terminal facility is not required under federal law to establish
and maintain evidence of financial responsibility, the owner or
operator of that vessel or terminal facility shall establish and
maintain evidence in an amount and form prescribed by rules
promulgated under this code.
(c) Any owner or operator of a vessel that is a member of any
protection and indemnity mutual organization, which is a member
of the international group, any other owner or operator that is
an assured of the Water Quality Insurance Syndicate, or an
insured of any other organization approved by the commissioner,
and which is covered for oil pollution risks up to the amounts
required by federal law is in compliance with the financial
responsibility requirements of this chapter. The commissioner
shall specifically designate the organizations and the terms
under which owners and operators of vessels shall demonstrate
financial responsibility.
(d) After an unauthorized discharge of oil, a vessel shall remain
in the jurisdiction of the commissioner until the owner,
operator, or person in charge has shown the commissioner evidence
of financial responsibility. The commissioner may not detain the
vessel longer than 12 hours after the vessel has proven financial
responsibility.
(e) In addition to any other remedy or enforcement provision, the
commissioner may suspend a registrant's discharge prevention and
response certificate or may deny a vessel entry into any port in
coastal waters for failure to comply with this section.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 8, eff.
Sept. 1, 1993.
Sec. 40.202. Response Costs and Damages Liability.
(a) Subject to Subsection (c) of this section, any person
responsible for an actual or threatened unauthorized discharge of
oil from a vessel is liable for:
(1) all response costs from the actual or threatened
discharge to an amount not to exceed $1 million for vessels of
300 gross tons or less that do not carry oil as cargo, to an
amount not to exceed $5 million for vessels of 8,000 gross tons
or less or, for vessels greater than 8,000 gross tons, to an
amount equal to $600 per gross ton of such vessel, not to
exceed the aggregate amount of the fund established under
Section 40.151(b) of this code; and
(2) in addition to response costs, all damages other than
natural resources damages from the actual or threatened
discharge to an amount not to exceed $1 million for vessels of
300 gross tons or less that do not carry oil as cargo, to an
amount not to exceed $5 million for vessels of 8,000 gross tons
or less or, for vessels greater than 8,000 gross tons, to an
amount equal to $600 per gross ton of such vessel, not to
exceed the aggregate amount of the fund established under
Section 40.151(b) of this code.
(b) Subject to Subsection (c) of this section, any person
responsible for an actual or threatened unauthorized discharge of
oil from a terminal facility is liable for:
(1) all response costs from the actual or threatened
discharge to an amount not to exceed $5 million, except any
person responsible for an actual or threatened unauthorized
discharge of oil from an offshore drilling or production
facility is liable for all response costs from the actual or
threatened discharge; and
(2) in addition to response costs, all damages other than
natural resources damages from the actual or threatened
discharge to an amount not to exceed the aggregate amount of
the fund established under Section 40.151(b) of this code,
except any person responsible for an actual or threatened
unauthorized discharge of oil from an offshore drilling or
production facility is liable for all such damages from the
actual or threatened discharge.
(c)(1) If any actual or threatened unauthorized discharge of
oil was the result of gross negligence or wilful misconduct, the
person responsible for such gross negligence or wilful misconduct
is liable for the full amount of all response costs and damages.
(2) "Wilful misconduct" under this chapter includes
intentional violation of state, federal, or local safety,
construction, or operating standards or requirements, including
the requirements of this chapter.
(3) If an actual or threatened unauthorized discharge of oil
is not eligible for expenditures from the federal fund, the
person responsible is liable for the full amount of all
response costs and damages incurred by the fund.
(4) If the responsible person unreasonably fails to
cooperate with discharge response and cleanup operations as
provided in Section 40.106 of this code, the responsible person
is liable for the full amount of all response costs and
damages.
(d) Liability limits established under this section are
exclusive of interest or attorney fees to which the state is
entitled to recover under this code.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.203. Liability for Natural Resources Damages.
(a) The commissioner, on behalf of the trustees, shall seek
reimbursement from the federal fund for damages to natural
resources in excess of the liability limits prescribed in Section
40.202 of this code. If that request is denied or additional
money is required following receipt of the federal money, the
commissioner has the authority to pay the requested reimbursement
from the fund for a period of two years from the date the federal
fund grants or denies the request for reimbursement.
(b) In addition to liability under Section 40.202 of this code,
persons responsible for actual or threatened unauthorized
discharges of oil are liable for natural resources damages
attributable to the discharge.
(c) The total liability for all natural resource damages of any
person responsible for an actual or threatened unauthorized
discharge of oil from a vessel shall not exceed the following:
(1) for a vessel that carries oil in bulk, as cargo, the
greater of:
(A) $1,200 per gross ton; or
(B)(i) in the case of a vessel greater than 3,000 gross
tons, $10 million; or
(ii) in the case of a vessel of 3,000 gross
tons or less, $2 million; or
(2) for any other vessel, $600 per gross ton or $500,000,
whichever is greater.
(d) The total liability for all natural resource damages of any
person responsible for an actual or threatened unauthorized
discharge of oil from a terminal facility shall not exceed the
following:
(1) for each terminal facility with a capacity:
(A) above 150,000 barrels, $70 per barrel not to exceed
$350,000,000;
(B) from 70,001 to 150,000 barrels, $10,000,000;
(C) from 30,001 to 70,000 barrels, $5,000,000;
(D) from 10,000 to 30,000 barrels, $2,000,000;
(2) for any other terminal, $500,000.
(e) The commissioner shall ensure that there will be no double
recovery of damages or response costs.
(f) If any actual or threatened unauthorized discharge of oil
was the result of gross negligence or wilful misconduct or a
violation of any applicable federal or state safety,
construction, or operating regulation, the person responsible for
such gross negligence or wilful misconduct or a violation of any
applicable federal or state safety, construction, or operating
regulation is liable for the full amount of all damages to
natural resources.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 9, eff.
Sept. 1, 1993.
Sec. 40.204. Defenses.
The only defense of a person responsible for an actual or
threatened unauthorized discharge of oil shall be to plead and
prove that the discharge resulted solely from any of the
following or any combination of the following:
(1) an act of war or terrorism;
(2) an act of government, either state, federal, or local;
(3) an unforeseeable occurrence exclusively occasioned by
the violence of nature without the interference of any human
act or omission; or
(4) the wilful misconduct or a negligent act or omission of
a third party, other than an employee or agent of the person
responsible or a third party whose conduct occurs in connection
with a contractual relationship with the responsible person,
unless the responsible person failed to exercise due care and
take precautions against foreseeable conduct of the third
party.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.205. Third Parties.
If a responsible person alleges a defense under Section
40.204(4) of this code, the responsible person shall pay all
response costs and damages. The responsible person shall be
subrogated to any rights or cause of action belonging to those to
whom such payment is made.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
SUBCHAPTER F. ENFORCEMENT
Sec. 40.251. Penalties.
(a) A person who intentionally commits any of the following acts
in violation of Subchapter C, D, or E of this chapter shall be
guilty of a Class A misdemeanor:
(1) operating a terminal facility or vessel without a discharge
prevention and response plan;
(2) operating a terminal facility or vessel without establishing
and maintaining financial responsibility;
(3) causing, allowing, or permitting an unauthorized discharge of
oil;
(4) making a material false statement with a fraudulent intent in
an application or report; or
(5) with respect to the person in charge of a vessel from which
an unauthorized discharge of oil emanates, taking the vessel from
the jurisdiction of the commissioner prior to proving financial
responsibility.
(b) A person responsible for an unauthorized discharge of oil or
the person in charge of any vessel or terminal facility from or
at which an unauthorized discharge of oil emanates, who knows or
has reason to know of the discharge and who fails to give
immediate notification of the discharge to the commissioner,
shall be:
(1) subject to a civil penalty of not less than $500 nor more
than $250,000 for an individual or $500,000 for a corporation,
partnership, association, or other entity; and
(2) guilty of a Class A misdemeanor.
(c) A person responsible for an unauthorized discharge of oil
shall be subject to a civil penalty of not less than $250 nor
more than $25,000 for each day of the discharge, or not more than
$1,000 per barrel of oil discharged.
(d) A person responsible for an unauthorized discharge of oil who
without sufficient cause fails to abate, contain, and remove
pollution from the discharge pursuant to applicable federal and
state requirements and plans shall be liable for a civil penalty
of not more than $25,000 for each day the pollution is not
abated, contained, and removed, or not more than three times the
costs incurred by the fund as a result of the discharge.
(e) A person who with a fraudulent intent makes or causes to be
made any material false statement in filing a claim or reporting
any information concerning an actual or threatened unauthorized
discharge of oil in response to the requirements of this chapter
shall be guilty of a third degree felony.
(f) A person who violates any provision, rule, or order issued
under Subchapter C, D, or E of this chapter shall be subject to a
civil penalty of not less than $100 nor more than $10,000 per
violation for each day of violation, not to exceed a maximum of
$125,000.
(g) It is a defense to prosecution for a criminal offense under
Subchapter C, D, or E of this chapter that the conduct complained
of was committed pursuant to response or cleanup operations and
was authorized by the national contingency plan or the state
coastal discharge contingency plan, by a discharge response plan
required under this chapter, or by an authorized federal or state
official.
(h) The defenses to liability under Section 40.204 of this code
shall be defenses to the assessment of penalties under this
chapter for any unauthorized discharge of oil.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.252. Administrative Penalties.
The commissioner may assess administrative penalties for the
violations and in the amounts established in Section 40.251 of
this code. In determining the amount of penalties, the
commissioner shall consider:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation and the
hazard or damage caused thereby;
(2) the degree of cooperation and quality of response;
(3) the degree of culpability and history of previous
violations by the person subject to the penalty;
(4) the amount necessary to deter future violations; and
(5) any other matter that justice requires.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.253. Cumulative Enforcement.
This subchapter is cumulative of all other applicable
penalties, remedies, and enforcement and liability provisions.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.254. Orders and Hearings.
(a) The commissioner shall assess administrative penalties and
pursue suspension of terminal facility discharge prevention and
response certificates in accordance with this section.
(b) If the commissioner, after an investigation, concludes that
a violation has occurred for which a penalty should be assessed
or a discharge prevention and response certificate should be
suspended, the commissioner shall issue a preliminary report:
(1) stating the facts that support the conclusion;
(2) recommending that a penalty be imposed or a certificate
be suspended, or both; and
(3) recommending the amount of the penalty.
(c) The commissioner shall serve written notice of the
preliminary report to the person charged with the violation not
later than the 10th day after the date on which the report is
issued. The notice must include:
(1) a brief summary of the charges;
(2) a statement of the commissioner's recommendations;
(3) a statement of the right of the person charged to a
hearing; and
(4) a copy of the preliminary report.
(d) Not later than the 20th day after the date on which the
notice is served, the person charged may consent in writing to
the report, including the commissioner's recommendations, or make
a written request for a hearing.
(e)(1) If the person charged consents to the commissioner's
recommendations or does not timely respond to the notice, the
commissioner by order shall take the recommended action or order
a hearing to be held on the findings and recommendations in the
report.
(2) If the commissioner takes the recommended action, the
commissioner shall serve written notice of the decision to the
person. The person charged must comply with the order and pay
any penalty assessed.
(f)(1) If the person charged requests a hearing the
commissioner shall order a hearing and shall give written notice
of that hearing.
(2) The hearing shall be held by a hearing examiner
designated by the commissioner.
(3) The hearing examiner shall make findings of fact and
promptly issue to the commissioner a written decision as to the
occurrence of the violation and a recommendation on suspension
of the discharge prevention and response certificate, the
amount of any proposed penalty, or both.
(4) Based on the findings of fact and the recommendations of
the hearing examiner, the commissioner by order may find that a
violation has occurred and assess a penalty or suspend a
discharge prevention and response certificate, or both, or may
find that no violation occurred.
(5) The commissioner shall serve notice to the person
charged of the commissioner's decision. If the commissioner
finds that a violation has occurred and assesses a penalty or
suspends a discharge prevention and response certificate, the
commissioner shall give to the person charged written notice
of:
(A) the commissioner's findings;
(B) the amount of the penalty or the terms of the
suspension; and
(C) the person's right to judicial review of the
commissioner's order.
(g)(1) Not later than the 30th day after the date on which the
commissioner's order is final, the person charged shall comply
with the order or file a petition for judicial review.
(2) If the person seeks judicial review the person, within
the time provided by Subdivision (1) of this subsection, shall:
(A) send the amount of the penalty to the commissioner
for placement in an escrow account; or
(B) post with the commissioner a supersedeas bond in a
form approved by the commissioner for the amount of the
penalty, the bond to be effective until judicial review of
the order or decision is final.
(3) A person who fails to comply with Subdivision (2) of
this subsection waives the right to judicial review. On
failure to comply with the order or Subdivision (2) of this
subsection, the commissioner may refer the matter to the
attorney general for collection and enforcement.
(4) Judicial review of the order or decision of the
commissioner shall be under Subchapter G, Chapter 2001,
Government Code.
(h)(1) If a penalty is reduced or not assessed, the
commissioner shall:
(A) remit to the person charged the appropriate amount
of any penalty payment plus accrued interest; or
(B) execute a release of the bond if a supersedeas bond
has been posted.
(2) Accrued interest on amounts remitted by the commissioner
shall be paid for the period beginning on the date the penalty
is paid to the commissioner and ending on the date the penalty
is remitted at a rate equal to the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(i) Payment of an administrative penalty under this section
shall preclude, in any action brought under this chapter,
collection of a civil penalty for the violation specified in the
commissioner's order.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(53),
eff. Sept. 1, 1995.
Sec. 40.255. Actions.
(a) The commissioner may seek injunctive relief to prevent a
violation of this chapter from continuing or occurring.
(b) All actions on behalf of the state to enforce this chapter
or recover civil penalties, unpaid administrative penalties,
claims of the fund, response costs, and damages arising under
this chapter shall be brought by the attorney general at the
direction of the commissioner. In any such action in which the
state prevails, the state shall be entitled to recover reasonable
attorney fees.
(c) Repealed by Acts 1993, 73rd Leg., ch. 776, Sec. 10, eff.
Sept. 1, 1993.
(d) Each owner or operator of a terminal facility or vessel
subject to the provisions of this chapter shall designate a
person in the state as his legal agent for service of process,
and such designation shall be filed with the secretary of state.
In the absence of such designation, the secretary of state shall
be the designated agent for purposes of service of process under
this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 10, eff.
Sept. 1, 1993.
Sec. 40.256. Individual Cause of Action.
The remedies in this chapter are cumulative and not exclusive.
This chapter does not require pursuit of any claim against the
fund as a condition precedent to any other remedy, nor does this
chapter prohibit any person from bringing an action at common law
or under any other law not inconsistent with this chapter for
response costs or damages resulting from a discharge or other
condition of pollution covered by this chapter. No such action
shall collaterally estop or bar the commissioner in any action
brought by the commissioner under this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.257. Venue.
(a) Venue for all actions and prosecution of all offenses under
this chapter may be brought in Travis County or in any county
where the violation of this chapter that is the subject of the
action or prosecution occurred.
(b) All appeals from administrative proceedings under this
chapter shall be filed in a district court of Travis County,
Texas, pursuant to Chapter 2001, Government Code.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.
Sec. 40.258. Federal Law.
(a)(1) The commissioner shall promulgate rules and a state
coastal discharge contingency plan that, to the greatest extent
practicable, conform to the national contingency plan and rules
promulgated under federal law.
(2) The commissioner may impose requirements under such
rules and the state coastal discharge contingency plan that are
in addition to or vary materially from federal requirements if
the state interests served by the requirements substantially
outweigh the burdens imposed on those subject to the
requirements.
(3) Any request for judicial review of any rule or any
provision of the state coastal discharge contingency plan based
on Subdivision (1) or (2) of this subsection must be filed in a
district court in Travis County within 90 days of the effective
date of the rule or plan challenged.
(4) Any matter subject to judicial review under Subdivisions
(1) through (3) of this subsection shall not be subject to
judicial review in any civil or criminal proceeding for
enforcement or for recovery of response costs or damages.
(b) In implementing this chapter, the commissioner to the
greatest extent practicable shall employ federal funds unless
federal funds will not be available in an adequate period of
time.
(c) All federal funds received by the state relating to
response to unauthorized discharges of oil under this chapter
shall be deposited in the fund.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
SUBCHAPTER G. MISCELLANEOUS PROVISIONS
Sec. 40.301. Interstate Compacts.
The commissioner may enter into compacts or agreements with other
states consistent with and to further the purposes of this
chapter. The commissioner may also participate in initiatives to
develop multistate and international standards and cooperation on
unauthorized discharge prevention and response.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.302. Institutions of Higher Education.
The commissioner by interagency contract shall enter into
agreements with state institutions of higher education for
research, testing, and development of oil discharge prevention
and response technology, oil discharge response training,
wildlife and natural resources rescue and rehabilitation,
development of computer models to predict the movements and
impacts of unauthorized discharges of oil, and other purposes
consistent with and in furtherance of the purposes of this
chapter. Contracts or agreements relating to wildlife and
aquatic resources shall be made in coordination with the Parks
and Wildlife Department. To the greatest extent possible,
contracts shall be coordinated with studies being done by other
state agencies, the federal government, or private industry to
minimize duplication of efforts.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991.
Sec. 40.303. Oil Spill Oversight Council.
(a) There is hereby established the Oil Spill Oversight
Council.
(b) Members of the council shall include the following persons
or their designees:
(1) the governor, who serves as chairperson;
(2) the commissioner;
(3) the executive director of the Parks and Wildlife
Department;
(4) a representative of the Railroad Commission of Texas;
(5) the commander of the United States Coast Guard for the
area including the Texas coast, as a nonvoting member;
(6) the director of the division of emergency management in
the office of the governor;
(7) the commissioner of the Texas Department of Health;
(8) the director of the Texas Department of Transportation;
(9) the executive director of the Texas Natural Resource
Conservation Commission; and
(10) the county judges of Cameron, Willacy, Kenedy, Kleberg,
Nueces, San Patricio, Aransas, Calhoun, Jackson, Matagorda,
Brazoria, Galveston, Harris, Jefferson, Orange, Chambers, and
Refugio counties.
(c) The commissioner shall appoint two members who have served
as employees or elected officials of a local government entity,
each to be from a county that contains coastal waters. In making
appointments under this subsection, the commissioner shall
consider the need for regional balance on the council.
(d) The lieutenant governor as president of the senate and the
speaker of the house of representatives shall each appoint three
members, each of whom shall be a resident of a county that
contains coastal waters. The lieutenant governor and the speaker
shall consider the need for regional balance on the council.
(e) The governor shall appoint 12 members, each of whom shall
represent and have demonstrable knowledge in one of the following
areas:
(1) marine transportation or ownership and operation of
crude oil tankers;
(2) oil spill response and prevention programs or discharge
cleanup organizations;
(3) port authorities;
(4) commercial fishing industry;
(5) environmental, conservation, or sportsmen's groups;
(6) environmental protection and the study of marine
ecosystems;
(7) institutions of higher education conducting discharge
prevention and response research;
(8) terminal facility operations;
(9) vessel pilotage;
(10) pipeline operations;
(11) the chemical industry; and
(12) the oil industry.
(f) Each appointed member of the council shall be appointed for
a term of four years except as provided in Subsection (g) of this
section. No appointed member shall serve for more than two
four-year terms, except any member appointed for an initial
two-year term may be appointed consecutively for two full
four-year terms.
(g) The governor and the commissioner shall each make half
their initial appointments for two years. The lieutenant
governor shall make one initial appointment for two years, and
the speaker shall make two initial appointments for two years.
(h) Appointed members shall not receive compensation for their
services but shall receive per diem and expenses for travel while
carrying out official business of the council, as provided by the
legislature in the General Appropriations Act pursuant to Chapter
660, Government Code.
(i) The council shall meet at the call of the governor, who
shall call regular meetings at least two times per calendar year.
(j) The council shall:
(1) provide advice and recommendations to the commissioner
on the implementation of this chapter, including the
promulgation of all rules, regulations, guidelines, and
policies;
(2) determine whether state and federal agencies responsible
for the prevention of discharges of oil and for responding to
discharges are carrying out their duties in these areas;
(3) recommend, review, and advise the commissioner on
contracts under Section 40.302 of this code;
(4) attend drills called pursuant to Sections 40.053 or
40.116 of this code;
(5) recommend to the legislature, the commissioner, the
federal government, and private entities appropriate policies
and actions to prevent and mitigate discharges of oil;
(6) advise the governor and the commissioner on the
development of interstate compacts or agreements pursuant to
Section 40.301 of this code;
(7) advise the commissioner on the identification of highly
sensitive areas which may require special protective measures
in the event of an oil spill, including studying wind and water
currents and other environmental factors which may affect the
ability to prevent, respond to, contain, and clean up a
discharge of oil;
(8) provide advice and recommendations to the commissioner
and the executive director of the Parks and Wildlife Department
on a plan to protect, restore, rehabilitate, replace, or
acquire equivalent natural resources damaged by a discharge of
oil;
(9) advise and recommend to the commissioner a schedule and
procedure for the preapproval of use of dispersants,
bioremediation, and other discharge-mitigating devices and
substances; the waters in which such mitigating devices and
substances may be used; and the quantities of such mitigating
devices and substances that can be safely used in such waters
in order to expedite decisions for the use of mitigating
substances and devices;
(10) provide recommendations to the governor and the
commissioner on the composition of any area committee as may be
established under the federal Oil Pollution Act of 1990 (Pub.
L. 101-380);
(11) periodically review the state coastal discharge
contingency plan and recommend to the commissioner
modifications to enhance the ability to prevent and respond to
discharges of oil;
(12) periodically review port operations to assure the safe
transit of oil; and
(13) report biannually to the governor, the legislature, and
the commissioner on the above evaluations, advice, and
recommendations and prepare any additional reports the council
determines to be appropriate to assess the performance of state
and federal agencies and assess changes in the long-term
options for improving oil spill prevention and response.
(k) The commissioner shall provide staff to the council as is
appropriate to carry out its responsibilities under this section.
There is hereby appropriated to the General Land Office an amount
up to $200,000 per year from the fund for the operation of the
council.
Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28,
1991. Amended by Acts 1995, 74th Leg., ch. 76, Secs. 5.95(107),
11.270, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 165, Sec.
22(53), eff. Sept. 1, 1995.
Sec. 40.304. Small Spill Education Program.
The commissioner shall develop and conduct a voluntary spill
prevention education program that targets small spills from
commercial fishing vessels, offshore support vessels, ferries,
cruise ships, ports, marinas, and recreational boats. The small
spill education program shall illustrate ways to reduce oil
contamination of bilge water, accidental spills of motor oil and
hydraulic fluid during routine maintenance, and spills during
refueling. The program shall illustrate proper disposal of oil
and promote strategies to meet shoreside oil handling and
disposal needs of targeted groups. The program shall include a
series of training materials and workshops and the development of
educational materials.
Added by Acts 1993, 73rd Leg., ch. 776, Sec. 11, eff. Sept. 1,
199