TX NATURAL RESOURCES CODE

SUBTITLE B. SURVEYS AND SURVEYORS

CHAPTER 40. OIL SPILL PREVENTION AND RESPONSE ACT OF 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.