TX NATURAL RESOURCES CODE

SUBTITLE B. SURVEYS AND SURVEYORS

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.