79R5319 SMH-D
By: Keffer of Dallas H.B. No. 2881
A BILL TO BE ENTITLED
AN ACT
relating to remedies for environmental injuries caused by oil- and
gas-related activities under the jurisdiction of the Railroad
Commission of Texas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 81.116(a), Natural Resources Code, is
amended to read as follows:
(a) An oil-field cleanup regulatory fee is imposed on crude
petroleum produced in this state in the amount of 0.656 cents
[five-eighths of one cent] on each barrel of 42 standard gallons.
SECTION 2. Section 81.117(a), Natural Resources Code, is
amended to read as follows:
(a) An oil-field cleanup regulatory fee is imposed on gas
initially produced and saved in this state in the amount of 0.07
cents [one-fifteenth of one cent] for each thousand cubic feet.
SECTION 3. Section 91.112(a), Natural Resources Code, is
amended to read as follows:
(a) Money in the fund may be used by the commission or its
employees or agents for:
(1) conducting a site investigation or environmental
assessment to determine:
(A) the nature and extent of contamination caused
by oil and gas wastes or other substances or materials regulated by
the commission under Section 91.101; and
(B) the measures that should be taken to control
or clean up the wastes, substances, or materials described in
Paragraph (A);
(2) controlling or cleaning up oil and gas wastes or
other substances or materials regulated by the commission under
Section 91.101 that are causing or are likely to cause the pollution
of surface or subsurface water, consistent with Section 91.113;
(3) plugging abandoned wells and administering or
enforcing permits, orders, and rules relating to the commission's
authority to prevent pollution under this chapter, Chapter 89, or
any other law administered or enforced by the commission under
Title 3;
(4) implementing Subchapter N and enforcing rules,
orders, and permits adopted or issued under that subchapter;
(5) implementing the voluntary cleanup program under
Subchapter O; [and]
(6) preparing the report required under Subsection
(b); and
(7) implementing Subchapter P and enforcing rules and
orders adopted or issued under that subchapter.
SECTION 4. Chapter 91, Natural Resources Code, is amended
by adding Subchapter P to read as follows:
SUBCHAPTER P. REMEDY FOR ENVIRONMENTAL INJURY CAUSED
BY OIL- AND GAS-RELATED ACTIVITIES
Sec. 91.701. DEFINITION. In this subchapter,
"environmental injury":
(1) means:
(A) pollution, as defined by Section 26.001,
Water Code; or
(B) contamination of soil that renders the soil
unfit for growing crops, grazing livestock, or engaging in other
activities for which land in the area in which the contamination
occurs is generally used; and
(2) includes pollution or contamination caused by oil
and gas NORM waste as defined by Section 401.003, Health and Safety
Code.
Sec. 91.702. COMMISSION'S AUTHORITY TO AWARD RELIEF NOT
AFFECTED. This subchapter does not grant the commission the
authority to award any relief other than that otherwise authorized
by this subtitle or Section 401.415, Health and Safety Code.
Sec. 91.703. COMMISSION RULES AND ORDERS. (a) The
commission may adopt and enforce rules and issue and enforce orders
in the exercise of its jurisdiction under this subchapter.
(b) An order issued by the commission under this subchapter
must be signed by the commission.
Sec. 91.704. JURISDICTION OF COMMISSION AND COURTS. (a) A
person may not bring an original action in a court for a court order
requiring remediation, payment of damages, or another remedy for an
environmental injury caused by oil- and gas-related activities that
are under the jurisdiction of the commission unless the person has
previously filed with the commission a complaint under this
subchapter and the condition for bringing the action provided by
Section 91.714 is met. This subsection does not affect the
jurisdiction of a court to enforce a settlement agreement entered
into under Section 91.716.
(b) A person who has suffered an environmental injury may
file a written complaint as provided by commission rules requesting
an order for a remedy under this subchapter. A person may not file a
complaint with the commission under this subchapter unless the
person:
(1) owns a fee simple or leasehold interest in the real
property on which the environmental injury is alleged to have
occurred; and
(2) has attempted to settle the claim.
(c) A complainant may withdraw a complaint at any time. If a
complainant withdraws a complaint, the commission shall enter an
order stating that the complaint was withdrawn.
(d) The statute of limitations applying to a cause of action
for which a complaint is filed with the commission under this
subchapter is tolled while the complaint is pending with the
commission.
Sec. 91.705. CONTRACT WITH INDEPENDENT ENTITY. The
commission may contract with one or more independent public or
private entities with pertinent technical expertise to investigate
complaints, make recommendations to the commission, and monitor and
report to the commission on the performance of remediation
operations and other responses as provided by this subchapter.
Sec. 91.706. RELATIONSHIP TO OTHER LAW. If a complaint
alleges that the complainant suffered an environmental injury as
the result of the failure of an operator to properly plug a well,
the commission may process the complaint under this subchapter or
may take action under Chapter 89.
Sec. 91.707. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code. If the commission holds a contested case hearing under this
subchapter, the commission must make reasonably diligent efforts to
give notice of the hearing to each potentially responsible party
and to any other person entitled to notice under due process of law.
Sec. 91.708. COMPLAINT INVESTIGATION; FINDINGS; REPORT.
(a) On the filing of a complaint under Section 91.704, the
commission shall have a field inspector examine the affected real
property to determine whether the commission has jurisdiction over
the complaint.
(b) If the field inspector determines that the commission
does not have jurisdiction over the complaint, the commission shall
dismiss the complaint.
(c) If the field inspector determines that the commission
has jurisdiction over the complaint, the commission shall direct
the commission staff to investigate the complaint or refer the
complaint to an independent entity with which the commission has
entered into a contract under Section 91.705 for investigation.
The commission staff or independent entity shall complete its
investigation in a timely manner.
(d) On completion of its investigation, the commission
staff or independent entity shall make findings regarding whether
an environmental injury caused by oil- and gas-related activities
under the jurisdiction of the commission occurred and, if the
injury occurred:
(1) whether remediation or another response is
required;
(2) the level of remediation, if any, that is
required; and
(3) the person, if any, responsible for the
remediation or other response.
(e) In making a finding under Subsection (d)(1) or (2), the
commission staff or independent entity shall consider:
(1) the need to protect human health and safety and the
environment from any unacceptable risks arising from the
environmental injury;
(2) if applicable, the time necessary to achieve the
required level of remediation;
(3) whether the proposed remediation operation or
process or other response is the most cost-effective and
technologically and economically feasible option to remedy the
environmental injury, taking into account the present use and value
of the property;
(4) the effectiveness of alternative responses,
including bioremediation, containment, institutional controls,
naturally occurring dilution and attenuation, and the provision of
alternative water supplies; and
(5) whether the level of remediation or the response
action recommended by the commission staff or independent entity
will prevent any unacceptable risk to human health and safety and
the environment.
(f) The commission staff or independent entity shall report
to the commission the staff's or entity's findings under Subsection
(d).
(g) The commission shall:
(1) provide a copy of the report to the complainant and
to each person, if any, the commission staff or independent entity
finds to be responsible for the remediation or other response; and
(2) provide the complainant and each responsible
person an opportunity to meet with one or more staff members of the
commission to discuss the report.
Sec. 91.709. COMMISSION ORDER. (a) After complying with
Section 91.708(g) and providing notice and an opportunity for a
hearing, the commission shall enter an order stating whether an
environmental injury caused by oil- and gas-related activities
under the jurisdiction of the commission occurred and, if the
injury occurred:
(1) whether remediation or another response is
required;
(2) the level of remediation, if any, that is
required;
(3) the portion, if any, of the environmental injury
that is reasonably attributable to each person named in or
otherwise given notice of the complaint;
(4) which person or persons, if any, are responsible
for the remediation or other response that is required;
(5) whether any person is responsible for achieving a
specified level of remediation;
(6) whether any person not named in or otherwise given
notice of the complaint contributed to or exacerbated the
environmental injury; and
(7) if a contested case hearing was held, whether
notice was given to or reasonably diligent efforts were made to give
notice to each potentially responsible party and to any other
person entitled to notice under due process of law.
(b) A remediation operation or process or other response
required by an order issued under Subsection (a) must be an
operation, process, or other response the commission finds to be a
cost-effective and technologically and economically feasible means
of remedying the environmental injury, taking into account the
present use and value of the property.
Sec. 91.710. PERFORMANCE OF REMEDIATION OR OTHER RESPONSE
OPERATIONS. (a) If the commission issues an order under Section
91.709 requiring a person to remediate or otherwise respond to an
environmental injury, the person shall remediate or respond to the
injury in accordance with the commission's order.
(b) If the person responsible for remediating or responding
to the injury cannot be found or does not have assets with which to
remediate or respond to the injury, the commission, through its
employees or through a person acting as agent for the commission,
may remediate or respond to the injury.
(c) The commission staff or independent entity that
submitted the report that was the basis for the commission's order
shall:
(1) monitor the performance of remediation or response
operations to ensure that the operations comply with the order; and
(2) report to the commission on the status of the
remediation or response operations.
Sec. 91.711. REIMBURSEMENT OF INDEPENDENT ENTITY FOR COSTS.
The costs incurred by the independent entity in performing its
duties under this subchapter shall be paid by:
(1) the complainant if:
(A) the commission determines that an
environmental injury caused by oil- and gas-related activities
under the jurisdiction of the commission did not occur; or
(B) remediation or another response is not
required;
(2) the person the commission determines to be
responsible for the remediation or other response that is required;
or
(3) the commission if Subdivision (1) does not apply
and the person responsible for remediating or responding to the
injury cannot be found or does not have assets with which to
remediate or respond to the injury.
Sec. 91.712. RECOVERY BY COMMISSION OF COSTS. If the
commission issues an order under Section 91.709 requiring a person
to remediate or respond to an environmental injury caused by oil-
and gas-related activities under the jurisdiction of the
commission, the commission may recover its costs incurred in
performing its duties under this subchapter in the same manner as
the commission may recover its costs in connection with action
taken by the commission under Subchapter D, Chapter 89.
Sec. 91.713. LIABILITY FOR BAD FAITH COMPLAINT. (a) If the
commission determines that a complaint is groundless and brought in
bad faith or brought for the purpose of harassment, the commission
may include that determination in the commission's order under
Section 91.709.
(b) If the commission makes a determination described by
Subsection (a), a person named in or otherwise given notice of the
complaint who makes an appearance as a respondent in a contested
case hearing before the commission in connection with the complaint
or is otherwise subject to the commission's order may recover the
actual costs incurred by the person as a result of the complaint,
including reasonable attorney's fees and court costs, in a civil
action against the person filing the complaint.
Sec. 91.714. ORIGINAL ACTION IN COURT FOR RELIEF FOLLOWING
COMPLAINT DISMISSAL OR COMMISSION ORDER. If the commission
dismisses the complaint under Section 91.708(b) or the commission
determines in the order under Section 91.709 that the commission
does not have jurisdiction over the complaint, including
jurisdiction to order a remedy for the alleged environmental
injury, the complainant may bring an original action in a court for
an order imposing a remedy for the injury.
Sec. 91.715. JUDICIAL REVIEW OF COMMISSION ORDER. (a) If
the commission determines in the order under Section 91.709 that
the commission has jurisdiction over the complaint, including
jurisdiction to order a remedy for the alleged environmental
injury, and the complainant is dissatisfied with the order, the
complainant may seek judicial review of the order.
(b) Judicial review of an order issued by the commission
under Section 91.709 is under the substantial evidence rule and is
instituted by filing a petition with a district court in Travis
County as provided by Subchapter G, Chapter 2001, Government Code.
Sec. 91.716. VOLUNTARY SETTLEMENT AGREEMENTS. (a) A
person may enter into a voluntary settlement of a claim described by
Section 91.704 without commission participation if the settlement
provides only for remediation of the alleged injury.
(b) A voluntary settlement agreement without commission
participation is void if the agreement provides for the payment of
damages for an alleged injury.
(c) A voluntary settlement agreement must comply with the
laws of this state and commission rules in effect at the time the
agreement is entered into.
SECTION 5. The change in law made by this Act applies only
to a suit or administrative proceeding commenced on or after the
effective date of this Act. A suit or administrative proceeding
commenced before the effective date of this Act is governed by the
law as it existed immediately before the effective date of this Act,
and that law is continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2005.