1-1  By:  Parker                                           S.B. No. 1049
    1-2        (In the Senate - Filed March 12, 1993; March 15, 1993, read
    1-3  first time and referred to Committee on Natural Resources;
    1-4  April 27, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 8, Nays 0; April 27, 1993,
    1-6  sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Sims               x                               
   1-10        Truan              x                               
   1-11        Armbrister         x                               
   1-12        Barrientos         x                               
   1-13        Bivins             x                               
   1-14        Brown                                         x    
   1-15        Carriker                                      x    
   1-16        Lucio              x                               
   1-17        Montford           x                               
   1-18        Ratliff                                       x    
   1-19        Shelley            x                               
   1-20  COMMITTEE SUBSTITUTE FOR S.B. No. 1049                    By:  Sims
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to the prevention of, the damage, cleanup, and costs
   1-24  related to, and liability for oil spills in coastal waters of the
   1-25  state; providing for response to the discharge of oil and other
   1-26  pollutants in the coastal waters of the state; authorizing
   1-27  appropriations from the coastal protection fund.
   1-28        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-29        SECTION 1.  Section 40.002, Natural Resources Code, is
   1-30  amended to read as follows:
   1-31        Sec. 40.002.  POLICY.  (a)  The legislature finds and
   1-32  declares that the preservation of the Texas coast is a matter of
   1-33  the highest urgency and priority.  It is the policy of this state
   1-34  to keep its coastal waters, rivers, lakes, estuaries, marshes,
   1-35  tidal flats, beaches, and public lands as pristine as possible,
   1-36  taking into account multiple use accommodations necessary to
   1-37  provide the broadest possible promotion of public and private
   1-38  interests.  Spills, discharges, and escapes of crude oil,
   1-39  petroleum, and other such substances resulting from their handling,
   1-40  storage, and transportation, particularly by vessel, endanger the
   1-41  coastal environment of the state, public and private property on
   1-42  the coast, and the well-being of those deriving their livelihood
   1-43  from marine-related activity in coastal waters.  The hazards posed
   1-44  by the handling, storage, and transportation of these substances in
   1-45  the coastal waters are contrary to the paramount interests of the
   1-46  state.  These state interests outweigh the economic burdens imposed
   1-47  under this chapter.
   1-48        (b)  The legislature finds and declares that the natural
   1-49  resources of the state and particularly those in the coastal waters
   1-50  of the state offer significant benefits to the citizens of Texas.
   1-51  These natural resources are important for their existence and their
   1-52  recreational, aesthetic, and commercial value.  It is the policy of
   1-53  the state to protect these natural resources and to restore,
   1-54  rehabilitate, replace, and/or acquire the equivalent of these
   1-55  natural resources with all deliberate speed when they have been
   1-56  damaged.  The legislature finds and declares that it is difficult
   1-57  to assess the value of these natural resources and to quantify
   1-58  injury to natural resources at a reasonable cost.  The procedures
   1-59  and protocols utilized by the trustees must therefore consider the
   1-60  unique characteristics of each spill incident and the location of
   1-61  the natural resources affected.  It is the intent of the
   1-62  legislature that natural resource damage assessment methodologies
   1-63  be developed for the purpose of reasonably valuing the natural
   1-64  resources of the State of Texas in the event of an oil spill and
   1-65  that the state recover monetary damages or have actions commenced
   1-66  by the spiller as early as possible to expedite the restoration,
   1-67  rehabilitation, and/or replacement of injured natural resources.
   1-68        (c)  The legislature intends by this chapter to exercise the
    2-1  police power of the state to protect its coastal waters and
    2-2  adjacent shorelines by conferring upon the Commissioner of the
    2-3  General Land Office the power to:
    2-4              (1)  prevent spills and discharges of oil by requiring
    2-5  and monitoring preventive measures and response planning;
    2-6              (2)  provide for prompt response to abate and contain
    2-7  spills and discharges of oil and ensure the removal and cleanup of
    2-8  pollution from such spills and discharges;
    2-9              (3)  provide for development of a state coastal
   2-10  discharge contingency plan through planning and coordination with
   2-11  the Texas Water Commission to protect coastal waters from all types
   2-12  of spills and discharges; and
   2-13              (4)  administer a fund to provide for funding these
   2-14  activities and to guarantee the prompt payment of certain
   2-15  reasonable claims resulting from spills and discharges of oil.
   2-16        (d) <(c)>  The legislature declares that it is the intent of
   2-17  this chapter to support and complement the Oil Pollution Act of
   2-18  1990 (Pub. L. 101-380) and other federal law, specifically those
   2-19  provisions relating to the national contingency plan for cleanup of
   2-20  oil and hazardous substance spills and discharges, including
   2-21  provisions relating to the responsibilities of state agencies
   2-22  designated as natural resources trustees.  The legislature intends
   2-23  this chapter to be interpreted and implemented in a manner
   2-24  consistent with federal law.
   2-25        SECTION 2.  Section 40.003, Natural Resources Code, is
   2-26  amended to read as follows:
   2-27        Sec. 40.003.  DEFINITIONS.  In this chapter:
   2-28              (1)  "Barrel" means 42 United States gallons at 60
   2-29  degrees Fahrenheit.
   2-30              (2)  "Coastal waters" means the waters and bed of the
   2-31  Gulf of Mexico within the jurisdiction of the State of Texas,
   2-32  including the arms of the Gulf of Mexico subject to tidal
   2-33  influence, and any other waters contiguous thereto that are
   2-34  navigable by vessels with a capacity to carry 10,000 gallons or
   2-35  more of oil as fuel or cargo.
   2-36              (3)  "Commissioner" means the Commissioner of the
   2-37  General Land Office.
   2-38              (4)  "Comprehensive assessment method" means a method
   2-39  including sampling, modeling, and other appropriate scientific
   2-40  procedures to make a reasonable and rational determination of
   2-41  injury to natural resources resulting from an unauthorized
   2-42  discharge of oil.
   2-43              (5)  "Comptroller" means the comptroller of public
   2-44  accounts.
   2-45              (6) <(5)>  "Crude oil" means any naturally occurring
   2-46  liquid hydrocarbon at atmospheric temperature and pressure coming
   2-47  from the earth, including condensate.
   2-48              (7) <(6)>(A)  "Damages" means compensation:
   2-49                          (i)  to an owner, lessee, or trustee for
   2-50  any direct, documented loss of, injury to, or loss of use of any
   2-51  real or personal property or natural resources injured <damaged> by
   2-52  an unauthorized discharge of oil;
   2-53                          (ii)  to a state or local government for
   2-54  any direct, documented net loss of taxes or net costs of increased
   2-55  entitlements or public services; or
   2-56                          (iii)  to persons, including but not
   2-57  limited to holders of an oyster lease or permit; persons owning,
   2-58  operating, or employed on commercial fishing, oystering, crabbing,
   2-59  or shrimping vessels; persons owning, operating, or employed by
   2-60  seafood processing concerns; and others similarly economically
   2-61  reliant on the use or acquisition of natural resources for any
   2-62  direct, documented loss of income, profits, or earning capacity
   2-63  from the inability of the claimant to use or acquire natural
   2-64  resources arising solely from injury <damage> to the natural
   2-65  resources from an unauthorized discharge of oil.
   2-66                    (B)  With respect to natural resources, "damages"
   2-67  includes the cost to assess, restore, rehabilitate, or replace
   2-68  injured <damaged> natural resources, or to mitigate further injury
   2-69  <damage>, and their diminution in value after such restoration,
   2-70  rehabilitation, replacement, or mitigation.
    3-1              (8) <(7)>  "Discharge of oil" means an intentional or
    3-2  unintentional act or omission by which harmful quantities of oil
    3-3  are spilled, leaked, pumped, poured, emitted, or dumped into or on
    3-4  coastal waters or at a place adjacent to coastal waters where,
    3-5  unless controlled or removed, an imminent threat of pollution to
    3-6  coastal waters exists.
    3-7              (9) <(8)>  "Discharge cleanup organization" means any
    3-8  group or cooperative, incorporated or unincorporated, of owners or
    3-9  operators of vessels or terminal facilities and any other persons
   3-10  who may elect to join, organized for the purpose of abating,
   3-11  containing, removing, or cleaning up pollution from discharges of
   3-12  oil or rescuing and rehabilitating wildlife or other natural
   3-13  resources through cooperative efforts and shared equipment,
   3-14  personnel, or facilities.  Any third-party cleanup contractor,
   3-15  industry cooperative, volunteer organization, or local government
   3-16  shall be recognized as a discharge cleanup organization, provided
   3-17  the commissioner or the United States properly certifies or
   3-18  classifies the organization.
   3-19              (10) <(9)>  "Federal fund" means the federal Oil Spill
   3-20  Liability Trust Fund.
   3-21              (11) <(10)>  "Fund" means the coastal protection fund.
   3-22              (12) <(11)>  "Harmful quantity" means that quantity of
   3-23  oil the discharge of which is determined by the commissioner to be
   3-24  harmful to the environment or public health or welfare or may
   3-25  reasonably be anticipated to present an imminent and substantial
   3-26  danger to the public health or welfare.
   3-27              (13) <(12)>  "Hazardous substance" means any substance,
   3-28  except oil, designated as hazardous by the Environmental Protection
   3-29  Agency pursuant to the Comprehensive Environmental Response,
   3-30  Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et
   3-31  seq.) and designated by the Texas Water Commission.
   3-32              (14) <(13)>  "Marine terminal" means any terminal
   3-33  facility used for transferring crude oil to or from vessels.
   3-34              (15) <(14)>  "National contingency plan" means the plan
   3-35  prepared and published, as revised from time to time, under the
   3-36  Federal Water Pollution Control Act (33 U.S.C. Sec. 1321 et seq.)
   3-37  and the Comprehensive Environmental Response, Compensation, and
   3-38  Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.).
   3-39              (16) <(15)>  "Natural resources" means all land, fish,
   3-40  shellfish, fowl, wildlife, biota, vegetation, air, water, and other
   3-41  similar resources owned, managed, held in trust, regulated, or
   3-42  otherwise controlled by the state.
   3-43              (17) <(16)>  "Oil" means oil of any kind or in any
   3-44  form, including but not limited to crude oil, petroleum, fuel oil,
   3-45  sludge, oil refuse, and oil mixed with wastes other than dredged
   3-46  spoil, but does not include petroleum, including crude oil or any
   3-47  fraction thereof, which is specifically listed or designated as a
   3-48  hazardous substance under Subparagraphs (A) through (F) of Section
   3-49  101(14) of the Comprehensive Environmental Response, Compensation,
   3-50  and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.) and which
   3-51  is subject to the provisions of that Act, and which is so
   3-52  designated by the Texas Water Commission.
   3-53              (18) <(17)>  "Owner" or "operator" means:
   3-54                    (A)  any person owning, operating, or chartering
   3-55  by demise a vessel; or
   3-56                    (B)  any person owning a terminal facility or a
   3-57  person operating a terminal facility by lease, contract, or other
   3-58  form of agreement.
   3-59              (19) <(18)>  "Person in charge" means the person on the
   3-60  scene who is directly responsible for a terminal facility or vessel
   3-61  when a discharge of oil occurs or a particular duty arises under
   3-62  this chapter.
   3-63              (20) <(19)>  "Person responsible" or "responsible
   3-64  person" means:
   3-65                    (A)  the owner or operator of a vessel or
   3-66  terminal facility from which an unauthorized discharge of oil
   3-67  emanates or threatens to emanate;
   3-68                    (B)  in the case of an abandoned vessel or
   3-69  terminal facility, the person who would have been the responsible
   3-70  person immediately prior to the abandonment; and
    4-1                    (C)  any other person who causes, allows, or
    4-2  permits an unauthorized discharge of oil or threatened unauthorized
    4-3  discharge of oil.
    4-4              (21) <(20)>  "Pollution" means the presence of harmful
    4-5  quantities of oil from an unauthorized discharge in coastal waters
    4-6  or in or on adjacent waters, shorelines, estuaries, tidal flats,
    4-7  beaches, or marshes.
    4-8              (22) <(21)>  "Response costs" means:
    4-9                    (A)  with respect to an actual or threatened
   4-10  discharge of oil, all costs incurred in an attempt to prevent,
   4-11  abate, contain, and remove pollution from the discharge, including
   4-12  costs of removing vessels or structures under this chapter, and
   4-13  costs of any reasonable measures to prevent or limit damage to the
   4-14  public health, safety, or welfare, public or private property, or
   4-15  natural resources; or
   4-16                    (B)  with respect to an actual or threatened
   4-17  discharge of a hazardous substance, only costs incurred to
   4-18  supplement the response operations of the Texas Water Commission.
   4-19              (23) <(22)>  "Terminal facility" or "facility" means
   4-20  any waterfront or offshore pipeline, structure, equipment, or
   4-21  device used for the purposes of drilling for, pumping, storing,
   4-22  handling, or transferring oil and operating where a discharge of
   4-23  oil from the facility could threaten coastal waters, including but
   4-24  not limited to any such facility owned or operated by a public
   4-25  utility or a governmental or quasi-governmental body, but does not
   4-26  include any temporary storage facilities used only in connection
   4-27  with the containment and cleanup of unauthorized discharges of oil.
   4-28              (24) <(23)>  "Trained personnel" means one or more
   4-29  persons who have satisfactorily completed an appropriate course of
   4-30  instruction developed under Section 40.302 of this code or <and>
   4-31  all other training requirements as determined by the commissioner.
   4-32              (25)  "Trustee" means a natural resources trustee of
   4-33  the state as designated by the governor under federal law.
   4-34              (26) <(24)>  "Unauthorized discharge of oil" means any
   4-35  discharge of oil, or any discharge of oil emanating from a vessel
   4-36  into waters adjoining and accessible from coastal waters, that is
   4-37  not authorized by a federal or state permit.
   4-38              (27) <(25)>  "Unauthorized discharge of hazardous
   4-39  substances" means a spill or discharge subject to Subchapter G,
   4-40  Chapter 26, Water Code.
   4-41              (28) <(26)>  "Vessel" includes every description of
   4-42  watercraft or other contrivance used or capable of being used as a
   4-43  means of transportation on water, whether self-propelled or
   4-44  otherwise, including barges.
   4-45              (29) <(27)>  "Texas Water Commission" means the Texas
   4-46  Natural Resource Conservation Commission.
   4-47        SECTION 3.  Subsection (d), Section 40.053, Natural Resources
   4-48  Code, is amended to read as follows:
   4-49        (d)  The commissioner shall establish regional response
   4-50  committees or utilize the area committees established by federal
   4-51  law to advise and provide input in the development of site-specific
   4-52  discharge contingency response plans.
   4-53              (1)  Membership on these committees shall include
   4-54  broad-based representation from local governments, industry,
   4-55  resource agencies, and citizens groups and shall include staff from
   4-56  the General Land Office.
   4-57              (2)  The committees shall develop regional response
   4-58  recommendations and provide evaluation of response and
   4-59  recommendations for improvement to the commissioner following an
   4-60  actual or threatened unauthorized discharge.
   4-61        SECTION 4.  Section 40.102, Natural Resources Code, is
   4-62  amended by adding Subsection (d) to read as follows:
   4-63        (d)  The state or federal on-scene coordinator may authorize
   4-64  the decanting of recovered water during containment, cleanup, and
   4-65  response activities resulting from an unauthorized discharge of
   4-66  oil.
   4-67        SECTION 5.  Section 40.107, Natural Resources Code, is
   4-68  amended to read as follows:
   4-69        Sec. 40.107.  <PRESUMPTION OF> NATURAL RESOURCES DAMAGES.
   4-70  (a)(1)  In any action to recover natural resources damages, the
    5-1  amount of damages established by the commissioner in conjunction
    5-2  with the <state-designated natural resources> trustees, according
    5-3  to the procedures and plans contained in the state coastal
    5-4  discharge contingency plan, shall create a rebuttable presumption
    5-5  of the amount of such damages.
    5-6              (2)  The commissioner shall represent the consensus
    5-7  position of the trustees whenever a collective decision or
    5-8  agreement is required by this section.
    5-9              (3)  Whenever trustees cannot achieve a consensus, the
   5-10  commissioner may invoke mediation to settle any disputed matter
   5-11  related to this section.  The mediation shall be immediately
   5-12  commenced and shall be concluded within 10 days of its
   5-13  commencement.  The trustees shall abide by the consensus achieved
   5-14  through mediation.
   5-15              (4)  The trustees shall enter into a memorandum of
   5-16  agreement which describes the mediation process of Subdivision (3)
   5-17  of this subsection.
   5-18        (b)  The commissioner may establish the rebuttable
   5-19  presumption by submitting to the court a written report of the
   5-20  amounts computed or expended according to the state plan.  The
   5-21  written report shall be admissible in evidence.
   5-22        (c)(1)  The commissioner, in conjunction with the trustees,
   5-23  shall develop an inventory that identifies and catalogs the
   5-24  physical locations, the seasonal variations in location, and the
   5-25  current condition of natural resources; provides for data
   5-26  collection related to coastal processes; and identifies the
   5-27  recreational and commercial use areas that are most likely to
   5-28  suffer injury from an unauthorized discharge of oil.  The inventory
   5-29  shall be completed by September 1, 1995, and shall be incorporated
   5-30  into the state coastal discharge contingency plan after public
   5-31  review and comment.
   5-32              (2)  The physical locations surveyed for the inventory
   5-33  of natural resources shall include, at a minimum, the following
   5-34  priority areas:
   5-35                    (A)  the Galveston Bay system and the Houston
   5-36  Ship Channel;
   5-37                    (B)  the Corpus Christi Bay system;
   5-38                    (C)  the lower Laguna Madre;
   5-39                    (D)  Sabine Lake; and
   5-40                    (E)  federal and state wildlife refuge areas.
   5-41              (3)  The current condition of selected natural
   5-42  resources inventoried and cataloged shall be determined by, at a
   5-43  minimum, a baseline sampling and analysis of current levels of
   5-44  constituent substances selected after considering the types of oil
   5-45  most frequently transported through and stored near coastal waters.
   5-46              (4)  The commissioner shall adopt administrative
   5-47  procedures and protocols for the assessment of natural resource
   5-48  damages from an unauthorized discharge of oil.  As developed
   5-49  through negotiated rulemaking with the trustees and other
   5-50  interested parties, the procedures and protocols shall require the
   5-51  trustees to assess natural resource damages by considering the
   5-52  unique characteristics of the spill incident and the location of
   5-53  the natural resources affected.  These procedures and protocols
   5-54  shall be adopted by rule, by the trustee agencies after
   5-55  negotiation, notice, and public comment, by June 1, 1994,  and
   5-56  shall be incorporated into the state coastal discharge contingency
   5-57  plan.
   5-58              (5)  The administrative procedures and protocols shall
   5-59  include provisions which address:
   5-60                    (A)  notification by the commissioner to all
   5-61  trustees in the event of an unauthorized discharge of oil;
   5-62                    (B)  coordination with and among trustees, spill
   5-63  response agencies, potentially responsible parties, experts in
   5-64  science and economics, and the public; and
   5-65                    (C)  participation in all stages of the
   5-66  assessment process by the potentially responsible party, as
   5-67  consistent with trustee responsibilities.
   5-68              (6)  The administrative procedures and protocols shall
   5-69  also require the trustees to:
   5-70                    (A)  assist the on-scene coordinator, during
    6-1  spill response activities and prior to the time that the state
    6-2  on-scene coordinator determines that the cleanup is complete, in
    6-3  predicting the impact of the oil and in devising the most effective
    6-4  methods of protection for the natural resources at risk;
    6-5                    (B)  identify appropriate sampling and data
    6-6  collection techniques to efficiently determine the impact on
    6-7  natural resources of the unauthorized discharge of oil;
    6-8                    (C)  initiate, within 24 hours after approval for
    6-9  access to the site by the on-scene coordinator, an actual field
   6-10  investigation which may include sampling and data collection; the
   6-11  protocols shall require that the responsible party and the trustees
   6-12  be given, on request, split samples and copies of each other's
   6-13  photographs utilized in assessing the impact of the unauthorized
   6-14  discharge of oil; and
   6-15                    (D)  establish plans, including alternatives that
   6-16  are cost-effective and efficient, to satisfy the goal of restoring,
   6-17  rehabilitating, replacing, and/or acquiring the equivalent of the
   6-18  injured natural resources.
   6-19              (7)(A)  The administrative procedures and protocols
   6-20  shall also include the following types of assessment procedures and
   6-21  deadlines for their completion:
   6-22                          (i)  an expedited assessment procedure
   6-23  which may be used in situations in which the spill has limited
   6-24  observable mortality and restoration activities can be speedily
   6-25  initiated and/or in which the quantity of oil discharged does not
   6-26  exceed 1,000 gallons; the purpose of utilizing the expedited
   6-27  assessment procedure is to allow prompt initiation of restoration,
   6-28  rehabilitation, replacement, and/or acquisition of an equivalent
   6-29  natural resource without lengthy analysis of the impact on affected
   6-30  natural resources; this procedure shall, at a minimum, require that
   6-31  the trustees consider the following items:
   6-32                                         (aa)  the quantity and
   6-33  quality of oil discharged;
   6-34                                         (bb)  the time period during
   6-35  which coastal waters are affected by the oil and the physical
   6-36  extent of the impact;
   6-37                                         (cc)  the condition of the
   6-38  natural resources prior to the unauthorized discharge of oil; and
   6-39                                         (dd)  the actual costs of
   6-40  restoring, rehabilitating, and/or acquiring the equivalent of the
   6-41  injured natural resources;
   6-42                          (ii)  a comprehensive assessment procedure
   6-43  for use in situations in which expedited or negotiated assessment
   6-44  procedures are not appropriate; and
   6-45                          (iii)  any other assessment method agreed
   6-46  upon between the responsible person and the trustees, consistent
   6-47  with their public trust duties.
   6-48                    (B)  The trustees shall determine, within 60 days
   6-49  of the determination by the on-scene coordinator that the cleanup
   6-50  is complete, whether:
   6-51                          (i)  action to restore, rehabilitate, or
   6-52  acquire an equivalent natural resource is required;
   6-53                          (ii)  an expedited assessment which may
   6-54  include early commencement of restoration, rehabilitation,
   6-55  replacement, and/or acquisition activities, may be required; and
   6-56                          (iii)  a comprehensive assessment is
   6-57  necessary.
   6-58                    (C)  The trustees may petition the commissioner
   6-59  for a longer period of time to make the above determination by
   6-60  showing that the full impact of the discharge on the affected
   6-61  natural resources cannot be determined in 60 days.
   6-62                    (D)  The trustees shall complete the
   6-63  comprehensive assessment procedure within 30 months of the date of
   6-64  the determination by the on-scene coordinator that the cleanup is
   6-65  complete.  The trustees may petition the commissioner for a longer
   6-66  period of time to complete the assessment by showing that the full
   6-67  impact of the discharge on the affected natural resources cannot be
   6-68  determined in 30 months.
   6-69                    (E)  Any assessment generated by the trustees
   6-70  shall be reasonable and have a rational connection to the costs of
    7-1  conducting the assessment and of restoring, rehabilitating,
    7-2  replacing, and/or acquiring the equivalent of the injured natural
    7-3  resources.  The trustees shall ensure that the cost of any
    7-4  restoration, rehabilitation, replacement, or acquisition project
    7-5  shall not be disproportionate to the value of the natural resource
    7-6  before the injury.  The trustees shall utilize the most
    7-7  cost-effective method to achieve restoration, rehabilitation,
    7-8  replacement, or acquisition of an equivalent resource.
    7-9  Furthermore, the trustees shall take into account the quality of
   7-10  the actions undertaken by the responsible party in response to the
   7-11  spill incident, including but not limited to containment and
   7-12  removal actions and protection and preservation of natural
   7-13  resources.
   7-14                    (F)  The potentially responsible party shall make
   7-15  full payment within 60 days of the completion of the assessment by
   7-16  the trustees or, if mediation pursuant to this paragraph is
   7-17  conducted, within 60 days of the conclusion of the mediation.  To
   7-18  facilitate an expedited recovery of funds for natural resource
   7-19  restoration and to assist the trustees and the responsible party in
   7-20  the settlement of disputed natural resource damage assessments at
   7-21  their discretion and at any time, all disputed natural resource
   7-22  damage assessments shall be referred to mediation as a prerequisite
   7-23  to the jurisdiction of any court.  Results of the mediation and any
   7-24  settlement offers tendered during the mediation shall be treated as
   7-25  settlement negotiations for the purposes of admissibility in a
   7-26  court of law.  Either the trustees or the potentially responsible
   7-27  person may initiate the mediation process, after an assessment has
   7-28  been issued, by giving written notice to the commissioner, who
   7-29  shall give written notice to all parties.  One mediator shall be
   7-30  chosen by the trustees and one mediator shall be chosen by the
   7-31  responsible parties.  Within 45 days of the receipt of the
   7-32  assessment from the trustees, the mediators shall be designated.
   7-33  The mediation shall end 135 days after the receipt of the
   7-34  assessment from the trustees.
   7-35        SECTION 6.  Subsection (a), Section 40.114, Natural Resources
   7-36  Code, is amended to read as follows:
   7-37        (a)  Any vessel with a capacity to carry 10,000 gallons or
   7-38  more of oil as fuel or cargo that operates in coastal waters or
   7-39  waters adjoining and accessible from coastal waters shall maintain
   7-40  a written vessel-specific discharge prevention and response plan
   7-41  that satisfies the requirements of rules promulgated under this
   7-42  chapter.  This section shall not apply to any dedicated response
   7-43  vessel or to any other vessel for activities within state waters
   7-44  related solely to the containment and cleanup of oil, including
   7-45  response-related training or drills.
   7-46        SECTION 7.  Subsection (a), Section 40.152, Natural Resources
   7-47  Code, is amended to read as follows:
   7-48        (a)  Money in the fund may be disbursed for the following
   7-49  purposes and no others:
   7-50              (1)  administrative expenses, personnel and training
   7-51  expenses, and equipment maintenance and operating costs related to
   7-52  implementation and enforcement of this chapter;
   7-53              (2)  response costs related to abatement and
   7-54  containment of actual or threatened unauthorized discharges of oil
   7-55  incidental to unauthorized discharges of hazardous substances;
   7-56              (3)  response costs and damages related to actual or
   7-57  threatened unauthorized discharges of oil;
   7-58              (4)  assessment, restoration, rehabilitation, or
   7-59  replacement of or mitigation of damage to natural resources damaged
   7-60  by an unauthorized discharge of oil;
   7-61              (5)  in an amount not to exceed $50,000 annually, the
   7-62  small spill education program;
   7-63              (6)  in an amount not to exceed $1,250,000 annually,
   7-64  interagency contracts under Section 40.302 of this code;
   7-65              (7) <(6)>  the purchase of response equipment under
   7-66  Section 40.105 of this code within two years of the effective date
   7-67  of this chapter, in an amount not to exceed $4 million; thereafter,
   7-68  for the purchase of equipment to replace equipment that is worn or
   7-69  obsolete;
   7-70              (8)  an inventory under Section 40.107 of this code, to
    8-1  be completed by September 1, 1995, in an amount not to exceed $6
    8-2  million; and
    8-3              (9) <(7)>  other costs and damages authorized by this
    8-4  chapter.
    8-5        SECTION 8.  Section 40.201, Natural Resources Code, is
    8-6  amended to read as follows:
    8-7        Sec. 40.201.  FINANCIAL RESPONSIBILITY.  (a)  Each owner or
    8-8  operator of a vessel subject to Section 40.114 of this code and
    8-9  operating within coastal waters or waters adjoining and accessible
   8-10  from coastal waters or any terminal facility subject to this code
   8-11  shall establish and maintain evidence of financial responsibility
   8-12  for costs and damages from unauthorized discharges of oil pursuant
   8-13  to federal law or in any other manner <a lesser amount as> provided
   8-14  in this chapter.
   8-15        (b)  If a vessel subject to Section 40.114 of this code or a
   8-16  terminal facility is not required under federal law to establish
   8-17  and maintain evidence of financial responsibility, the owner or
   8-18  operator of that vessel or terminal facility shall establish and
   8-19  maintain evidence in an amount and <a> form prescribed by rules
   8-20  promulgated under this code.
   8-21        (c)  Any owner or operator of a vessel that is a member of
   8-22  any protection and indemnity mutual organization, which is a member
   8-23  of the international group, any other owner or operator that is an
   8-24  assured of the Water Quality Insurance Syndicate, or an insured of
   8-25  any other organization approved by the commissioner, and which is
   8-26  covered for oil pollution risks up to the amounts required by
   8-27  federal law is in compliance with the financial responsibility
   8-28  requirements of this chapter.  The commissioner shall specifically
   8-29  designate the organizations and the terms under which owners and
   8-30  operators of vessels shall demonstrate financial responsibility.
   8-31        (d)  After an unauthorized discharge of oil, a vessel shall
   8-32  remain in the jurisdiction of the commissioner until the owner,
   8-33  operator, or person in charge has shown the commissioner evidence
   8-34  of financial responsibility.  The commissioner may not detain the
   8-35  vessel longer than 12 hours after the vessel has proven <proving>
   8-36  financial responsibility.
   8-37        (e) <(d)>  In addition to any other remedy or enforcement
   8-38  provision, the commissioner may suspend a registrant's discharge
   8-39  prevention and response certificate or may deny a vessel entry into
   8-40  any port in coastal waters for failure to comply with this section.
   8-41        SECTION 9.  Section 40.203, Natural Resources Code, is
   8-42  amended to read as follows:
   8-43        Sec. 40.203.  LIABILITY FOR NATURAL RESOURCES DAMAGES.
   8-44  (a)  The commissioner, on behalf of the trustees, shall seek
   8-45  reimbursement from the federal fund for damages to natural
   8-46  resources in excess of the liability limits prescribed in Section
   8-47  40.202 of this code.  If that request is denied or additional money
   8-48  is required following receipt of the federal money, the
   8-49  commissioner has the authority to pay the requested reimbursement
   8-50  from the fund for a period of two years from the date the federal
   8-51  fund grants or denies the request for reimbursement.
   8-52        (b)  In addition to liability under Section 40.202 of this
   8-53  code, persons responsible for actual or threatened unauthorized
   8-54  discharges of oil are liable for <all> natural resources damages
   8-55  attributable to the discharge.
   8-56        (c)  The total liability for all natural resource damages of
   8-57  any person responsible for an actual or threatened unauthorized
   8-58  discharge of oil from a vessel shall not exceed the following:
   8-59              (1)  for a tank vessel, the greater of:
   8-60                    (A)  $1,200 per gross ton; or
   8-61                    (B)(i)  for a vessel greater than 3,000 gross
   8-62  tons, $10 million; or
   8-63                          (ii)  for a vessel of 3,000 gross   tons or
   8-64  less, $2 million; or
   8-65              (2)  for any other vessel, $600 per gross ton or
   8-66  $500,000, whichever is greater.
   8-67        (d)  The total liability for all natural resource damages of
   8-68  any person responsible for an actual or threatened unauthorized
   8-69  discharge of oil from a terminal facility shall not exceed the
   8-70  following:
    9-1              (1)  for each terminal facility with a capacity:
    9-2                    (A)  above 150,000 barrels, $70 per barrel not to
    9-3  exceed $350,000,000;
    9-4                    (B)  from 70,001 to 150,000 barrels, $10,000,000;
    9-5                    (C)  from 30,001 to 70,000 barrels, $5,000,000;
    9-6                    (D)  from 10,000 to 30,000 barrels, $2,000,000;
    9-7              (2)  for any other terminal, $500,000.
    9-8        (e)  The commissioner shall ensure that there will <There
    9-9  may> be no double recovery of damages or response costs.
   9-10        (f)  If any actual or threatened unauthorized discharge of
   9-11  oil was the result of gross negligence or wilful misconduct or a
   9-12  violation of any applicable federal or state safety, construction,
   9-13  or operating regulation, the person responsible for such gross
   9-14  negligence or wilful misconduct or a violation of any applicable
   9-15  federal or state safety, construction, or operating regulation is
   9-16  liable for the full amount of all damages to natural resources.
   9-17        SECTION 10.  Subsection (c), Section 40.255, Natural
   9-18  Resources Code, is repealed.
   9-19        SECTION 11.  Subchapter G, Chapter 40, Natural Resources
   9-20  Code, is amended by adding Section 40.304 to read as follows:
   9-21        Sec. 40.304.  SMALL SPILL EDUCATION PROGRAM.  The
   9-22  commissioner shall develop and conduct a voluntary spill prevention
   9-23  education program that targets small spills from commercial fishing
   9-24  vessels, offshore support vessels, ferries, cruise ships, ports,
   9-25  marinas, and recreational boats.  The small spill education program
   9-26  shall illustrate ways to reduce oil contamination of bilge water,
   9-27  accidental spills of motor oil and hydraulic fluid during routine
   9-28  maintenance, and spills during refueling.  The program shall
   9-29  illustrate proper disposal of oil and promote strategies to meet
   9-30  shoreside oil handling and disposal needs of targeted groups.  The
   9-31  program shall include a series of training materials and workshops
   9-32  and the development of educational materials.
   9-33        SECTION 12.  This Act takes effect September 1, 1993.
   9-34        SECTION 13.  The importance of this legislation and the
   9-35  crowded condition of the calendars in both houses create an
   9-36  emergency and an imperative public necessity that the
   9-37  constitutional rule requiring bills to be read on three several
   9-38  days in each house be suspended, and this rule is hereby suspended.
   9-39                               * * * * *
   9-40                                                         Austin,
   9-41  Texas
   9-42                                                         April 27, 1993
   9-43  Hon. Bob Bullock
   9-44  President of the Senate
   9-45  Sir:
   9-46  We, your Committee on Natural Resources to which was referred S.B.
   9-47  No. 1049, have had the same under consideration, and I am
   9-48  instructed to report it back to the Senate with the recommendation
   9-49  that it do not pass, but that the Committee Substitute adopted in
   9-50  lieu thereof do pass and be printed.
   9-51                                                         Sims,
   9-52  Chairman
   9-53                               * * * * *
   9-54                               WITNESSES
   9-55                                                  FOR   AGAINST  ON
   9-56  ___________________________________________________________________
   9-57  Name:  Garry Mauro                                             x
   9-58  Representing:  G.L.O
   9-59  City:  Austin
   9-60  -------------------------------------------------------------------
   9-61  Name:  Dr. Larry McKinney                                      x
   9-62  Representing:  TX Parks & Wildlife
   9-63  City:  Austin
   9-64  -------------------------------------------------------------------
   9-65  Name:  K. Daniel Hinkle                          x
   9-66  Representing:  TX Mid-Continent & British Pe
   9-67  City:  Austin
   9-68  -------------------------------------------------------------------
   9-69  Name:  Ingrid Karin Hansen                                     x
   9-70  Representing:  G.L.O.
   10-1  City:  Austin
   10-2  -------------------------------------------------------------------
   10-3  Name:  Timothy McKinna                                         x
   10-4  Representing:  G.L.O.
   10-5  City:  Austin
   10-6  -------------------------------------------------------------------
   10-7  Name:  Kyle Shaw                                 x
   10-8  Representing:  TX Waterway Operators Assoc.
   10-9  City:  League City
  10-10  -------------------------------------------------------------------
  10-11                                                  FOR   AGAINST  ON
  10-12  ___________________________________________________________________
  10-13  Name:  Mary Jones                                x
  10-14  Representing:  TX Waterway Operators
  10-15  City:  Houston
  10-16  -------------------------------------------------------------------
  10-17  Name:  Ben Sebree                                x
  10-18  Representing:  TX Mid-Continent Oil & Gas
  10-19  City:  Austin
  10-20  -------------------------------------------------------------------
  10-21  Name:  Eileen Campbell                           x
  10-22  Representing:  Marathon Oil Company
  10-23  City:  Houston
  10-24  -------------------------------------------------------------------
  10-25  Name:  Floyd B. Bowen                            x
  10-26  Representing:  Exxon Corporation
  10-27  City:  Austin
  10-28  -------------------------------------------------------------------
  10-29  Name:  Byron Tunnell                             x
  10-30  Representing:  Marine Spill Response Corp.
  10-31  City:  Austin
  10-32  -------------------------------------------------------------------
  10-33  Name:  Ken Kramer                                              x
  10-34  Representing:  Sierra Club
  10-35  City:  Austin
  10-36  -------------------------------------------------------------------