By:  Armbrister                                                   S.B. No. 619

A BILL TO BE ENTITLED
AN ACT
relating to oil spill prevention and response. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subsection (c), Section 40.002, Natural Resources Code, is amended to read as follows: (c) The legislature intends by this chapter to exercise the police power of the state to protect its coastal waters and adjacent shorelines by conferring upon the Commissioner of the General Land Office the power to: (1) prevent spills and discharges of oil by requiring and monitoring preventive measures and response planning; (2) provide for prompt response to abate and contain spills and discharges of oil and ensure the removal and cleanup of pollution from such spills and discharges; and (3) [provide for development of a state coastal discharge contingency plan through planning and coordination with the Texas Natural Resource Conservation Commission to protect coastal waters from all types of spills and discharges; and [(4)] administer a fund to provide for funding these activities and to guarantee the prompt payment of certain reasonable claims resulting from spills and discharges of oil. SECTION 2. Subdivisions (13), (17), and (22), Section 40.003, Natural Resources Code, are amended to read as follows: (13) "Hazardous substance" means any substance, except oil, designated as hazardous by the Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.) and designated by the Texas [Natural Resource Conservation] Commission on Environmental Quality. (17) "Oil" means oil of any kind or in any form, including but not limited to crude oil, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil, but does not include petroleum, including crude oil or any fraction thereof, which is specifically listed or designated as a hazardous substance under Subparagraphs (A) through (F) of Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.) and which is subject to the provisions of that Act, and which is so designated by the Texas [Natural Resource Conservation] Commission on Environmental Quality. (22) "Response costs" means: (A) with respect to an actual or threatened discharge of oil, all costs incurred in an attempt to prevent, abate, contain, and remove pollution from the discharge, including costs of removing vessels or structures under this chapter, and costs of any reasonable measures to prevent or limit damage to the public health, safety, or welfare, public or private property, or natural resources; or (B) with respect to an actual or threatened discharge of a hazardous substance, only costs incurred to supplement the response operations of the Texas [Natural Resource Conservation] Commission on Environmental Quality. SECTION 3. Section 40.005, Natural Resources Code, is amended to read as follows: Sec. 40.005. ADMINISTRATION OF HAZARDOUS SUBSTANCE SPILL RESPONSE AND CLEANUP. The General Land Office, under the direction and control of the commissioner, is the state's lead agency for initiating response to all actual or threatened unauthorized discharges of oil. In the event of an unauthorized discharge of a hazardous substance, nothing in this chapter shall preclude the Texas [Natural Resource Conservation] Commission on Environmental Quality from at the earliest time practicable assuming response and cleanup duties pursuant to Subchapter G, Chapter 26, Water Code[, and the state coastal discharge contingency plan]. SECTION 4. Section 40.052, Natural Resources Code, is amended to read as follows: Sec. 40.052. HAZARDOUS SUBSTANCES DISCHARGES. If the unauthorized discharge involves predominantly a hazardous substance, the Texas [Natural Resource Conservation] Commission on Environmental Quality shall carry out responsibility for abatement, containment, removal, and cleanup of the hazardous substances discharged, pursuant to Subchapter G, Chapter 26, Water Code[, and to the state coastal discharge contingency plan]. SECTION 5. Subsection (c), Section 40.101, Natural Resources Code, is amended to read as follows: (c) In order to prevent duplication of effort among state agencies, the commissioner shall utilize the expertise of the Texas [Natural Resource Conservation] Commission on Environmental Quality on technical and scientific actions, including but not limited to: (1) taking samples in the spill area; (2) monitoring meteorological conditions that may affect spill response operations; and (3) regulating disposal of spilled material. SECTION 6. Subsection (b), Section 40.103, Natural Resources Code, is amended to read as follows: (b) Any person or discharge cleanup organization that renders assistance in abating, containing, or removing pollution from any unauthorized discharge of oil may receive compensation from the fund for response costs, provided the commissioner approves compensation prior to the assistance being rendered. [Prior approval for compensation may be provided for in the state coastal discharge contingency plan.] The commissioner, on petition and for good cause shown, may waive the prior approval prerequisite. SECTION 7. Section 40.104, Natural Resources Code, is amended to read as follows: Sec. 40.104. QUALIFIED IMMUNITY FOR RESPONSE ACTIONS. (a) No action taken by any person or discharge cleanup organization to abate, contain, or remove pollution from an unauthorized discharge of oil, whether such action is taken voluntarily, or pursuant to the national contingency plan [or state coastal discharge contingency plan], or pursuant to a discharge response plan required under this chapter, or pursuant to the request of an authorized federal or state official, or pursuant to the request of the responsible person, shall be construed as an admission of responsibility or liability for the discharge. (b) No person or discharge cleanup organization that voluntarily, or pursuant to the national contingency plan [or the state coastal discharge contingency plan], or pursuant to any discharge response plan required under this chapter, or pursuant to the request of an authorized federal or state official, or pursuant to the request of the responsible person, renders assistance or advice in abating, containing, or removing pollution from an unauthorized discharge of oil is liable for response costs, damages, or civil penalties resulting from acts or omissions committed in rendering such assistance or advice, except for acts or omissions of gross negligence or wilful misconduct. SECTION 8. Subdivision (1), Subsection (a), Section 40.107, Natural Resources Code, is amended to read as follows: (1) In any action to recover natural resources damages, the amount of damages established by the commissioner in conjunction with the trustees[, according to the procedures and plans contained in the state coastal discharge contingency plan,] shall create a rebuttable presumption of the amount of such damages. SECTION 9. Subdivisions (1) and (4), Subsection (c), Section 40.107, Natural Resources Code, are amended to read as follows: (1) The commissioner, in conjunction with the trustees, shall develop an inventory that identifies and catalogs the physical locations, the seasonal variations in location, and the current condition of natural resources; provides for data collection related to coastal processes; and identifies the recreational and commercial use areas that are most likely to suffer injury from an unauthorized discharge of oil. The inventory shall be completed by September 1, 1995[, and shall be incorporated into the state coastal discharge contingency plan after public review and comment]. (4) The commissioner shall adopt administrative procedures and protocols for the assessment of natural resource damages from an unauthorized discharge of oil. As developed through negotiated rulemaking with the trustees and other interested parties, the procedures and protocols shall require the trustees to assess natural resource damages by considering the unique characteristics of the spill incident and the location of the natural resources affected. These procedures and protocols shall be adopted by rule, by the trustee agencies after negotiation, notice, and public comment, by June 1, 1994[, and shall be incorporated into the state coastal discharge contingency plan]. SECTION 10. Section 40.116, Natural Resources Code, is amended to read as follows: Sec. 40.116. AUDITS, INSPECTIONS, AND DRILLS. The commissioner may subject a vessel subject to Section 40.114 of this code[, as a condition to being granted entry into any port in this state,] or a terminal facility to an announced or unannounced audit, inspection, or drill to determine the discharge prevention and response capabilities of the terminal facility or vessels. Any vessel drill conducted by the commissioner shall be in cooperation and conjunction with the United States Coast Guard, and the commissioner's participation may not interfere with the schedule of the vessel. SECTION 11. Subsection (b), Section 40.151, Natural Resources Code, is amended to read as follows: (b) The coastal protection fund is established in the state treasury to be used by the commissioner as a nonlapsing revolving fund only for carrying out the purposes of this chapter and of Subchapter H, Chapter 33. To this fund shall be credited all fees, penalties, judgments, reimbursements, interest or income on the fund, and charges provided for in this chapter and the fee revenues levied, collected, and credited pursuant to this chapter. The fund shall not exceed $50 million. SECTION 12. Subsection (a), Section 40.152, Natural Resources Code, is amended to read as follows: (a) Money in the fund may be disbursed for the following purposes and no others: (1) administrative expenses, personnel and training expenses, and equipment maintenance and operating costs related to implementation and enforcement of this chapter; (2) response costs related to abatement and containment of actual or threatened unauthorized discharges of oil incidental to unauthorized discharges of hazardous substances; (3) response costs and damages related to actual or threatened unauthorized discharges of oil; (4) assessment, restoration, rehabilitation, or replacement of or mitigation of damage to natural resources damaged by an unauthorized discharge of oil; (5) in an amount not to exceed $50,000 annually, the small spill education program; (6) in an amount not to exceed $1,250,000 annually, interagency contracts under Section 40.302; (7) the purchase of response equipment under Section 40.105 within two years of the effective date of this chapter, in an amount not to exceed $4 million; thereafter, for the purchase of equipment to replace equipment that is worn or obsolete; (8) [an inventory under Section 40.107, to be completed by September 1, 1995, in an amount not to exceed $6 million; [(9)] other costs and damages authorized by this chapter; [and] (9) [(10)] in an amount not to exceed the interest accruing to the fund annually, erosion response projects under Subchapter H, Chapter 33; and (10) in conjunction with the Railroad Commission of Texas, costs related to the plugging of abandoned or orphaned oil wells located on state-owned submerged lands. SECTION 13. Subdivision (3), Subsection (g), Section 40.254, Natural Resources Code, is amended to read as follows: (3) [A person who fails to comply with Subdivision (2) of this subsection waives the right to judicial review.] On failure of the person to comply with the order or file a petition for judicial review [Subdivision (2) of this subsection], the commissioner may refer the matter to the attorney general for collection and enforcement. SECTION 14. Subdivision (1), Subsection (h), Section 40.254, Natural Resources Code, is amended to read as follows: (1) If a penalty is reduced or not assessed, the commissioner shall[: [(A)] remit to the person charged the appropriate amount of any penalty payment plus accrued interest[; or [(B) execute a release of the bond if a supersedeas bond has been posted]. SECTION 15. Subdivisions (1), (2), and (3), Subsection (a), Section 40.258, Natural Resources Code, are amended to read as follows: (1) The commissioner shall promulgate rules [and a state coastal discharge contingency plan] 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 [and the state coastal discharge contingency plan] 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 [or any provision of the state coastal discharge contingency plan based on Subdivision (1) or (2) of this subsection] must be filed in a district court in Travis County within 90 days of the effective date of the rule or plan challenged. SECTION 16. Sections 40.006, 40.053, 40.110(f), 40.115, 40.117(b), 40.151(e), 40.254(g)(2), and 40.303, Natural Resources Code, are repealed. SECTION 17. This Act takes effect September 1, 2003.