TX NATURAL RESOURCES CODE

SUBTITLE B. SURVEYS AND SURVEYORS

CHAPTER 40. OIL SPILL PREVENTION AND RESPONSE ACT OF 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 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;
          (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; or
          (6) leaving, abandoning, or maintaining 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.
     (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. Amended by Acts 2005, 79th Leg., ch. 216, § 3, eff. Sept. 1, 2005.

§ 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, pursue suspension of terminal facility discharge prevention and response certificates, and pursue the removal or disposal of derelict structures or vessels in accordance with this section.
     (b) The commissioner shall issue a preliminary report if the commissioner, after an investigation, concludes that:
          (1) a violation has occurred for which:
               (A) a penalty should be assessed; or
               (B) a discharge prevention and response certificate should be suspended; or
          (2) there is a need for removal or disposal of a derelict vessel or structure.
     (b-1) The preliminary report must:
          (1) state the facts that support the commissioner's conclusion;
          (2) recommend:
               (A) that a penalty be imposed;
               (B) that a certificate be suspended;
               (C) that a derelict vessel or structure be removed or disposed of; or
               (D) any combination of remedies under Paragraphs (A)-(C); and
          (3) if a penalty under Subdivision (2)(A) is recommended, recommend 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 findings;
          (2) a statement of the commissioner's recommendations;
          (3) a statement of the right of the person charged with the violation to a hearing; and
          (4) a copy of the preliminary report.
     (c-1) The notice required by Subsection (c) must be given:
          (1) by service in person or by registered or certified mail, return receipt requested; or
          (2) if personal service cannot be obtained or the address of the person is unknown, by posting a copy of the notice on the facility, vessel, or structure and by publishing notice in a newspaper with general circulation in the county in which the facility, vessel, or structure is located at least two times within 10 consecutive days.
     (d) Not later than the 20th day after the date on which the notice is served, the person charged with the violation 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 with the violation 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 must comply with the order and pay any penalty assessed.
     (f)(1) If the person charged with the violation 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, the removal or disposal of the derelict vessel or structure, or any combination of those remedies.
          (4) Based on the findings of fact and the recommendations of the hearing examiner, the commissioner by order may:
               (A) find that a violation has occurred and assess a penalty;
               (B) suspend a discharge prevention and response certificate;
               (C) order the removal or disposal of a derelict vessel or structure;
               (D) order any combination of those remedies; or
               (E) find that no violation occurred.
          (5) The commissioner shall serve notice to the person of the commissioner's decision. If the commissioner finds that a violation has occurred and assesses a penalty, suspends a discharge prevention and response certificate, or orders the removal or disposal of a derelict vessel or structure, the commissioner shall give to the person written notice of:
               (A) the commissioner's findings;
               (B) the amount of the penalty or the terms of the suspension or removal or disposal; 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 with the violation shall comply with the order or file a petition for judicial review.
          (2) 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.
          (3) 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 with the violation 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; Acts 2005, 79th Leg., ch. 216, § 4, eff. Sept. 1, 2005.

§ 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.