Current through Reg. 49, No. 38; September 20, 2024
(a) Prerequisite to judicial review. No state
trustee or responsible person may invoke the jurisdiction of any court over a
disputed natural resource damage assessment claim unless and until the
assessment claim has been referred to mediation pursuant to this
section.
(b) Referral to mediation
and designation. The mediation process required by OSPRA,
§40.107(c)(7)(F), shall be conducted pursuant to this subsection.
(1) Initiation of mediation. The responsible
person shall advise the trustees, by giving written notice to the commissioner
within 20 days of the receipt of the assessment claim, whether the responsible
person is disputing the claim. If the responsible person is disputing the
claim, then the claim is automatically referred for mediation pursuant to this
section. The state trustees may initiate mediation by giving written notice to
the commissioner within 20 days after presentation of the claim to the
responsible person.
(2)
Commissioner's responsibilities. The commissioner, within ten days of receipt
of the written notice, shall notify all parties and the Center for Public
Policy Dispute Resolution (Center) of the referral to mediation. If the Center
ceases to exist or is unable to comply with the terms of this section for any
reason, the American Arbitration Association shall be substituted for the
Center. Within ten days from the receipt of the notice of the mediation
referral, the Center shall supply the state trustees and the responsible
persons with a list of at least five mediators.
(3) State trustee and responsible person
responsibilities. Within five days from receipt of the list of mediators, the
state trustees collectively shall designate one mediator and the responsible
person or persons shall designate one mediator from the list supplied by the
Center. Both mediator designations shall be made by giving written notice to
the commissioner and the Center. In the alternative, either the state trustees
collectively or the responsible person or persons may propose a list of at
least five other mediators not on the list supplied by the Center.
(4) Designation of mediator by the Center. If
five days have lapsed and either the state trustees collectively or the
responsible persons collectively cannot agree among themselves on the
designation of a mediator, or the state trustees or the responsible persons
fail to timely designate the mediator, then the Center shall make the
designation. If the state trustees and the responsible person agree on a single
person to serve as mediator, then that person shall be the only
mediator.
(5) Timely designation of
the mediator. The mediator shall be designated within 45 days of the receipt by
the responsible person of the natural resource damage assessment claim from the
state trustees.
(6) Qualification
of mediator. Any designated mediator must have completed a minimum of 40
classroom hours of mediation training in a course conducted by an alternative
dispute resolution system or other dispute resolution organization, as required
in Texas Civil Practice and Remedies Code, §
154.052(a).
This requirement may be waived as to any mediator only with the unanimous
consent of all state trustees and all responsible persons. A mediator
conducting a mediation under this section shall act as an impartial third party
and be subject to the standards and duties set forth in Texas Civil Practice
and Remedies Code, §
154.053.
(7) Mediator's disclosure. Before appointment
of the mediator is final, any prospective mediator shall submit complete
disclosure statements for the approval of all parties, which statements shall
include a resume of experience, together with a declaration describing all
past, present and anticipated future relationships related to the subject
matter of the dispute and with all parties and their agents or representatives
involved in the dispute.
(8)
Mediator. After appointment as a mediator and thereafter throughout the
mediation process, the mediator shall not acquire any ownership or any other
financial interest in, nor shall be employed by or act as a consultant to, any
party to the dispute or the agent or representative of any party to the
dispute, and during this period shall not engage in any discussion or make any
agreement with any party to the dispute or the agent or representative of any
party to the dispute, regarding the acquisition of any ownership or financial
interest, employment, or consulting activity after the mediation process is
completed. Provided, however, that the parties to the mediation, by unanimous
consent, may waive these restrictions upon full disclosure of the facts by the
mediator.
(c) Conduct of
the mediation. All communications in the mediation shall be confidential and
privileged as generally described in Texas Civil Practice and Remedies Code,
§
154.073.
The mediation shall terminate at the conclusion of the period that the parties
agree to mediate, including any agreed extensions, but not less than one full
business day, or upon declaration by any mediator of an impasse. The mediation
shall be scheduled so as to conclude within 135 days after the responsible
person receives the natural resource damage assessment claim. Within three days
following the termination or conclusion of a mediation, the mediator(s) shall
provide the commissioner with notice of the completion of the mediation
process.
(d) Location of mediation.
The mediation shall take place in Austin, Texas, unless the state trustees and
the responsible person agree otherwise.
(e) Authority to negotiate. All participants
in the mediation process who represent either a state trustee or a responsible
person must be vested with the authority to negotiate a mediated settlement
agreement on behalf of their respective state trustee or responsible person and
to recommend to the state trustee or responsible person approval of any
mediated settlement agreement.
