By: Armbrister S.B. No. 619
(In the Senate - Filed February 20, 2003; February 26, 2003,
read first time and referred to Committee on Natural Resources;
April 7, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; April 7, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 619 By: Armbrister
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.
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