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 -------------------------------------------------------------------