Sec. 26.264. ADMINISTRATIVE PROVISIONS. (a) Except as provided in Chapter 40, Natural Resources Code, the commission shall be the state's lead agency in spill response, shall conduct spill response for the state, and shall otherwise administer this subchapter. The commission shall conduct spill response and cleanup for spills and discharges of hazardous substances other than oil in or threatening coastal waters. The commission shall cooperate with other agencies, departments, and subdivisions of this state and of the United States in implementing this subchapter. In the event of a discharge or spill and after reasonable effort to obtain entry rights from each property owner involved, if any, the executive director may enter affected property to carry out necessary spill response actions.

(b) The commission may issue rules necessary and convenient to carry out the purposes of this subchapter.

(c) The executive director shall enforce the provisions of this subchapter and any rules given effect pursuant to Subsection (b) of this section.

(d) The executive director with the approval of the commission may contract with any public agency or private persons or other entity for the purpose of implementing this subchapter.

(e) The executive director shall solicit the assistance of and cooperate with local governments, the federal government, other agencies and departments of this state, and private persons and other entities to develop regional contingency plans for prevention and control of hazardous substance spills and discharges. The executive director may solicit the assistance of spill cleanup experts in determining appropriate measures to be taken in cleaning up a spill or discharge. The executive director shall develop a list of spill cleanup experts to be consulted, but shall not be limited to that list in seeking assistance. No person providing such assistance shall be held liable for any acts or omissions of the executive director which may result from soliciting such assistance.

(f) The commission and the Texas Department of Transportation, in cooperation with the governor, the United States Coast Guard, and the Environmental Protection Agency, shall develop a contractual agreement whereby personnel, equipment, and materials in possession or under control of the Texas Department of Transportation may be diverted and utilized for spill and discharge cleanup as provided for in this subchapter. Under the agreement, the following conditions shall be met:

(1) the commission and the Texas Department of Transportation shall develop and maintain written agreements and contracts on how such utilization will be effected, and designating agents for this purpose;

(2) personnel, equipment, and materials may be diverted only with the approval of the commission and the Texas Department of Transportation, acting through their designated agents, or by action of the governor;

(3) all expenses and costs of acquisition of such equipment and materials or resulting from such cleanup activities shall be paid from the account, subject to reimbursement as provided in this subchapter; and

(4) subsequent to such activities, a full report of all expenditures and significant actions shall be prepared and submitted to the governor and the Legislative Budget Board, and shall be reviewed by the commission.

(g) The executive director shall develop and revise from time to time written action and contractual plans with the designated on-scene coordinator provided for by federal law.

(h)(1) In developing rules and plans under this subchapter and in engaging in cleanup activities under this subchapter, the commission shall recognize the authority of the predesignated federal on-scene coordinator to oversee, coordinate, and direct all private and public activities related to cleanup of discharges and spills that are undertaken pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sec. 9601 et seq.), the federal Clean Water Act (33 U.S.C. Sec. 1321 et seq.), and the national contingency plan authorized by the federal Clean Water Act (33 U.S.C. Sec. 1321 et seq.).

(2) Nothing in this subchapter shall require the state-designated on-scene coordinator to defer to federal authority, unless preempted by federal law, if remedial action is unduly delayed or is ineffective.

(3) Nothing in this subchapter shall prevent the executive director from appointing a state-designated on-scene coordinator and acting independently if no on-scene federal coordinator is present or no action is being taken by an agency of the federal government.

(4) If an incident under this subchapter is eligible for federal funds, the commission shall seek reimbursement from the designated agencies of the federal government for the reasonable costs incurred in cleanup operations, including but not limited to costs of personnel, equipment, the use of equipment, and supplies and restoration of land and aquatic resources held in trust or owned by the state.

(5) The commission may enter into contracts or cooperative agreements under Section 104(c) and (d) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sec. 9601 et seq.) or Section 311 of the federal Clean Water Act (33 U.S.C. Sec. 1321 et seq.) to undertake authorized removal actions under this subchapter.

(i) The executive director shall after appropriate investigation prepare a report on state-funded cleanup of a discharge or spill, and this report shall provide the following information:

(1) a description of the incident, including location, amount, and characteristics of the material discharged or spilled and the prevailing weather conditions;

(2) the time and duration of discharge or spill and the time and method by which the discharge or spill was reported;

(3) the action taken, and by whom, to contain and clean up the discharge or spill;

(4) an assessment of both the short-term and long-term environmental impact of the accidental discharge or spill;

(5) the cost of cleanup operations incurred by the state;

(6) an evaluation of the principal causes of the discharge or spill and an assessment of how similar incidents might be prevented in the future; and

(7) a description of any legal action being taken to levy penalties or collect damages.

(j) This subchapter is cumulative of all other powers of the commission.

(k) In the event that a discharge or spill presents or threatens to present an occurrence of disaster proportions, the governor shall utilize the authority granted him under Chapter 418, Government Code, to make available and bring to bear all resources of the state to prevent or lessen the impact of such a disaster.

(l) To the extent practicable and in lieu of the provisions of this subchapter, for facilities permitted under Chapter 361, Health and Safety Code to store, process, or dispose of hazardous waste, the department shall use procedures established under existing hazardous waste permits to abate or remove discharges or spills.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1983, 68th Leg., p. 4207, ch. 669, Sec. 2, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 795, Sec. 1.107, eff. Sept. 1, 1985; Acts 1985, 69th Leg., ch. 930, Sec. 3, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 99, Sec. 2, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 584, Sec. 105, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 10, Sec. 8, eff. March 28, 1991; Acts 1991, 72nd Leg., ch. 14, Sec. 284(75), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 165, Sec. 22(75), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 333, Sec. 13, eff. Sept. 1, 1997.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 26.004, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 26.005, eff. September 1, 2011.