Current through Reg. 49, No. 38; September 20, 2024
(a) In an action
filed pursuant to the Oil Spill Prevention and Response Act (OSPRA), Texas
Natural Resources Code, §
40.107,
the state trustees may recover:
(1) the costs
incurred by the state trustees in conducting the assessment, including, but not
limited to:
(A) salary, fringe benefits,
overhead, release, and transportation, lodging and state per diem
costs;
(B) the costs of sampling
and analyses of oil and natural resources, including reference areas;
(C) the costs of laboratories, contractors,
and other experts retained by the state trustees in assessing injury and
determining and recovering damages;
(D) the cost of the mediation required by
§
20.43 of
this title (relating to Mediation); and
(E) any other costs incurred in carrying out
state trustee functions for assessing natural resource damages and for
developing, implementing and monitoring plans for the restoration,
rehabilitation, and/or acquisition of the equivalent of damaged
resources;
(2) the costs
of restoration, rehabilitation, replacement and/or acquisition of equivalent
resources in compensation for the injury to natural resources sustained as the
result of an unauthorized discharge of oil;
(3) the costs to mitigate further injury to
natural resources from the time of the initial discharge until the time of
restoration of the injured natural resources and the services they
provide;
(4) the diminution in
value of the natural resources and the services they provide from the time of
the unauthorized discharge of oil and during and after their restoration,
replacement, rehabilitation, and/or acquisition of equivalent
resources;
(5) fees, economic rent
or any payments collectible by the state trustees for the use of the natural
resource by a private party; and
(6) all costs that have a rational connection
to the assessment and are incurred in the performance of the assessment, and
the development, implementation, and monitoring of the restoration
plan.
(b) Separate
reimbursement. The responsible person shall reimburse assessment costs to each
state trustee separately.
(c)
Limitation on liability. If a responsible person is entitled to a limitation of
natural resource damages liability, then any recovery under OSPRA,
§40.107, shall be limited as provided in OSPRA, §40.203.
(d) Coastal Protection Fund (CPF) liability.
The CPF is absolutely liable for all natural resource damages assessed as the
result of injuries caused by an unauthorized discharge of oil into coastal
waters. In the event that the responsible person does not reimburse state
trustees, the trustees shall be reimbursed from the CPF pursuant to this
subsection.
(1) State trustee costs.
(A) State trustees may recover from the CPF
all costs incurred responding to an unauthorized discharge of oil and in
assessing damages resulting from injuries to natural resources caused by an
unauthorized discharge of oil into coastal waters.
(B) State trustees must submit directly to
the commissioner satisfactory proof of costs incurred. Satisfactory proof of
costs is compliance with the procedures prescribed by and according to the
rules of the comptroller of public accounts of the State of Texas. The
commissioner will recommend that the comptroller make payment to the state
trustees for their assessment costs, provided that funds are appropriated from
the CPF by the Legislature for this purpose.
(C) As provided in OSPRA, §40.157(b),
state trustee agency requests for reimbursement of costs incurred responding to
an unauthorized discharge of oil and costs incurred in assessing natural
resource damages submitted in accordance with subsection (d)(1)(B) of this
section are not subject to the procedures for claims against the CPF
established under OSPRA, §40.159.
(2) Damages for injuries to natural
resources. In the event the responsible person fails to pay a natural resource
damage assessment claim, the state trustees may present the claim to the CPF
for the costs of actions to restore, rehabilitate, replace and/or acquire the
equivalent of injured natural resources and for the costs to mitigate injuries
to natural resources resulting from an unauthorized discharge of oil pursuant
to this subsection.
(3) CPF
liability and limitation.
(A) CPF liability.
Any damages for injuries to natural resources in excess of the liability limits
of OSPRA, §40.203, are payable by the CPF pursuant to this subsection. The
CPF is liable when:
(i) the federal fund
denies the claim; or
(ii) the
amount of the claim paid by the federal fund is not sufficient to restore,
rehabilitate, replace and/or acquire the equivalent of the injured natural
resources.
(B)
Limitation on CPF liability. If subparagraph (A) of this paragraph applies,
then the CPF shall be liable for further damages for restoration,
rehabilitation, replacement and/or acquisition of the equivalent natural
resources and for the mitigation of injuries to natural resources for a period
of two years from the date the federal fund grants or denies the
claim.
(4) Reimbursement
to the CPF. The commissioner shall diligently seek reimbursement to the CPF.
The commissioner shall seek reimbursement from the responsible persons, the
federal fund and any other person who is liable under OSPRA for all
expenditures from the CPF, when the CPF has paid a natural resource damage
assessment claim. When state trustees have recovered damages from the CPF, the
commissioner shall be subrogated to all rights or causes of action of the
trustees.
(e) Assessment
claim. The state trustees shall present the assessment claim to the responsible
person via hand delivery or United States Postal Service Return Receipt
Requested Certified Mail.
(f)
Payment of assessment claim. Within 60 days of the presentation of an
assessment claim by the trustees, the responsible person shall make full
payment unless the assessment is in dispute and referred to mediation pursuant
to OSPRA, §40.107(c)(7)(F). In the case of successful mediation, payment
of the assessment claim shall be made within 60 days of the completion of the
mediation unless otherwise agreed.
(g) Pooling of recovered compensation. When
monetary compensation is received by the state trustees as the result of
payment of an assessment claim, the state trustees may use funds recovered from
more than one assessment claim to execute a restoration project which meets the
requirements of §
20.36(e)
of this title (relating to Equivalent Resource Plans).
(h) Double recovery prohibited. The
commissioner shall ensure that there is no double recovery for natural resource
damages resulting from an unauthorized discharge of oil.
