NATURAL RESOURCES CODE
CHAPTER 40. OIL SPILL PREVENTION AND RESPONSE ACT OF 1991
SUBCHAPTER A. GENERAL PROVISIONS
§ 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, § 1, eff. March 28, 1991.
§ 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; and
(3) 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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 1, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, § 11.265, eff. Sept. 1,
1995; Acts 2003, 78th Leg., ch. 146, § 1, eff. Sept. 1, 2003.
§ 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. § 9601 et
seq.) and designated by the Texas Commission on Environmental
Quality.
(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. § 1321 et seq.)
and the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. § 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. § 9601 et seq.) and which is
subject to the provisions of that Act, and which is so designated by
the Texas Commission on Environmental Quality.
(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 Commission on
Environmental Quality.
(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, §
11.334(a), eff. Sept. 1, 1995.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.054, eff.
Aug. 12, 1991; Acts 1993, 73rd Leg., ch. 776, § 2, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, § 11.266, 11.334(a), eff.
Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 2, eff. Sept. 1,
2003.
§ 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, § 1, eff. March 28, 1991.
§ 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 Commission on Environmental Quality from at the earliest time
practicable assuming response and cleanup duties pursuant to
Subchapter G, Chapter 26, Water Code.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 11.267, eff. Sept. 1,
1995; Acts 2003, 78th Leg., ch. 146, § 3, eff. Sept. 1, 2003.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995.
§ 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
Subchapter E, Chapter 121, Utilities Code, 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, § 1, eff. March 28, 1991.
Amended by Acts 1999, 76th Leg., ch. 62, § 18.39, eff. Sept. 1,
1999.
SUBCHAPTER B. DISCHARGE RESPONSE
§ 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, § 1, eff. March 28, 1991.
§ 40.052. HAZARDOUS SUBSTANCES DISCHARGES. If the
unauthorized discharge involves predominantly a hazardous
substance, the Texas Commission on Environmental Quality shall
carry out responsibility for abatement, containment, removal, and
cleanup of the hazardous substances discharged, pursuant to
Subchapter G, Chapter 26, Water Code.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 11.267, eff. Sept. 1,
1995; Acts 2003, 78th Leg., ch. 146, § 4, eff. Sept. 1, 2003.
SUBCHAPTER C. OIL SPILL PREVENTION AND RESPONSE
§ 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
Commission on Environmental Quality 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, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 11.269, eff. Sept. 1,
1995; Acts 2003, 78th Leg., ch. 146, § 5, eff. Sept. 1, 2003.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 4, eff. Sept. 1,
1993.
§ 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. The
commissioner, on petition and for good cause shown, may waive the
prior approval prerequisite.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 2003, 78th Leg., ch. 146, § 6, eff. Sept. 1,
2003.
§ 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
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
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, § 1, eff. March 28, 1991.
Amended by Acts 2003, 78th Leg., ch. 146, § 7, eff. Sept. 1,
2003.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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
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.
(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.
(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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 5, eff. Sept. 1,
1993; Acts 2003, 78th Leg., ch. 146, § 8, 9, eff. Sept. 1, 2003.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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) Repealed by Acts 2003, 78th Leg., ch. 146, § 16, eff.
Sept. 1, 2003.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1,
2003.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 6, eff. Sept. 1,
1993.
§ 40.116. AUDITS, INSPECTIONS, AND DRILLS. The
commissioner may subject a vessel subject to Section 40.114 of this
code 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, § 1, eff. March 28, 1991.
Amended by Acts 2003, 78th Leg., ch. 146, § 10, eff. Sept. 1,
2003.
§ 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) Repealed by Acts 2003, 78th Leg., ch. 146, § 16, eff.
Sept. 1, 2003.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1,
2003.
SUBCHAPTER D. PAYMENT OF COSTS AND DAMAGES
§ 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, for payment of damages from
unauthorized discharges of oil, and for erosion response projects.
(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 and of
Subchapter H, Chapter 33. To this fund shall be credited all fees,
penalties, judgments, reimbursements, interest or income on the
fund, 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, § 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) Repealed by Acts 2003, 78th Leg., ch. 146, § 16, eff.
Sept. 1, 2003.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.055, eff.
Aug. 12, 1991; Acts 1995, 74th Leg., ch. 1058, § 14(a), eff.
Aug. 28, 1995; Acts 1999, 76th Leg., ch. 508, § 6, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 146, § 11, 16, eff. Sept. 1,
2003.
§ 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;
(7) the purchase of response equipment under Section
40.105 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) other costs and damages authorized by this
chapter;
(9) in an amount not to exceed the interest accruing to
the fund annually, erosion response projects under Subchapter H,
Chapter 33; and
(10) in conjunction with the Railroad Commission of
Texas, costs related to the plugging of abandoned or orphaned oil
wells located on state-owned submerged lands.
(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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 7, eff. Sept. 1,
1993; Acts 1999, 76th Leg., ch. 508, § 7, eff. Sept. 1, 1999;
Acts 2003, 78th Leg., ch. 146, § 12, eff. Sept. 1, 2003.
§ 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. This section does not apply to sums
expended under Section 40.152(a)(10).
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 1999, 76th Leg., ch. 508, § 8, eff. Sept. 1,
1999.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 1058, § 15, eff. Aug. 30,
1995.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995.
§ 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.
(c) This section does not apply to a sum expended under
Section 40.152(a)(10).
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
Amended by Acts 1999, 76th Leg., ch. 508, § 9, eff. Sept. 1,
1999.
§ 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, § 1, eff. March 28, 1991.
SUBCHAPTER E. LIABILITY OF PERSONS RESPONSIBLE
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 8, eff. Sept. 1,
1993.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 9, eff. Sept. 1,
1993.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
SUBCHAPTER F. ENFORCEMENT
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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) Repealed by Acts 2003, 78th Leg., ch. 146, § 16,
eff. Sept. 1, 2003.
(3) On failure of the person to comply with the order
or file a petition for judicial review, 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 remit to the person charged the appropriate
amount of any penalty payment plus accrued interest.
(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, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(53), eff. Sept.
1, 1995; Acts 2003, 78th Leg., ch. 146, § 13, 14, 16, eff. Sept.
1, 2003.
§ 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, § 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, § 1, eff. March 28, 1991.
Amended by Acts 1993, 73rd Leg., ch. 776, § 10, eff. Sept. 1,
1993.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995.
§ 40.258. FEDERAL LAW. (a)(1) The commissioner shall
promulgate rules 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 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 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, § 1, eff. March 28, 1991.
Amended by Acts 2003, 78th Leg., ch. 146, § 15, eff. Sept. 1,
2003.
SUBCHAPTER G. MISCELLANEOUS PROVISIONS
§ 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, § 1, eff. March 28, 1991.
§ 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, § 1, eff. March 28, 1991.
§ 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, § 11, eff. Sept. 1, 1993.
