TX NATURAL RESOURCES CODE

SUBTITLE B. SURVEYS AND SURVEYORS

CHAPTER 40. OIL SPILL PREVENTION AND RESPONSE ACT OF 1991

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, without the consent of the commissioner, leave, abandon, or maintain any structure or vessel in or on coastal waters, on public or private lands or at a public or private port or dock if the structure or vessel is in a wrecked, derelict, or substantially dismantled condition and the commissioner finds the structure or vessel to be:
          (1) involved in an actual or threatened unauthorized discharge of oil;
          (2) a threat to public health, safety, or welfare;
          (3) a threat to the environment; or
          (4) a navigation hazard.
     (b) The commissioner may remove and dispose of or contract for the removal and disposal of any vessel or structure described in Subsection (a) and may recover the costs of removal and disposal from the owner or operator of the vessel or structure. The recovered costs shall be deposited to the credit of the coastal protection fund established by Section 40.151.
     (c) The commissioner must comply with the requirements of Section 40.254 before removing or disposing of a vessel or structure, except that the commissioner may remove a vessel or structure involved in an actual or threatened unauthorized discharge of oil without a hearing.
     (d) The commissioner may dispose of the vessel or structure in any reasonable and environmentally sound manner. The commissioner shall give preference to disposal options that generate a monetary benefit from the vessel or structure. If no value may be generated from the vessel or structure, the commissioner shall select the least costly method. Proceeds from the sale of the vessel or structure shall be used for removal and disposal costs, and any proceeds in excess of the cost of removal and disposal shall be deposited to the credit of the coastal protection fund.
     (e) The commissioner by rule may establish a system for prioritizing the removal or disposal of vessels or structures under this section.
     (f) This section does not impose a duty on the state to remove or dispose of a vessel or structure or to warn of a hazardous condition on state land.

Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2005, 79th Leg., ch. 216, § 1, eff. Sept. 1, 2005.

§ 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.