SECTION 20.23. Responsible Person Participation

(a) Pre-spill activities. Potentially responsible persons may contribute to the development of the natural resources inventory (OSPRA, §40.107(c)(1) - (3)) and in the identification of natural resources most at risk from an unauthorized discharge of oil. Potentially responsible persons may assist the state trustees in identifying protective measures to be utilized in responding to unauthorized discharges of oil, and in identifying personnel and organizations likely to participate in response and assessment activities.

(b) Participation by the responsible person in assessments conducted under these rules. The state trustees shall invite the responsible person to participate in the assessment process, the preliminary field investigation, the selection of assessment methods, the restoration plan, and post-assessment activities. The state trustees may limit or terminate the participation of the responsible person when such participation is inconsistent with the responsibilities of the state trustees.

(c) Participation by the responsible person in assessments not conducted under these rules. When the state trustees conduct an assessment employing procedures and protocols other than those provided for in these rules, the responsible person shall be invited to participate as consistent with subsection (b) of this section.

(d) Assessment data. The state trustees shall provide, upon the written request of the responsible person, photographs, split samples, and final data utilized and discovered by the state trustees during the natural resource damage assessment and the implementation of any restoration plan. The responsible person shall provide, upon the written request of the state trustees, photographs, split samples, and final data utilized and discovered during the natural resource damage assessment and the implementation of any restoration plan.

(e) Agreements and Stipulations. The state trustees and the responsible person should consider entering into binding agreements to facilitate their interactions and resolve any disputes during the assessment. To maximize cost-effectiveness and cooperation, trustees and responsible person should attempt to develop a set of agreed-upon facts concerning the incident and/or assessment. Any assessment conducted with the participation of the responsible person shall include any stipulations agreed to by the responsible person and the state trustees. Stipulations may be proposed by either the responsible person or the state trustees at any time during the assessment. The stipulations shall survive, and shall be binding on all parties, after termination of the responsible person's participation or after the termination of a negotiated assessment.

(f) Limitation on participation by responsible person. Whenever the state trustees agree that the responsible person is interfering with their responsibilities or is causing unreasonable delay in the assessment process, the state trustees may proceed without the participation of the responsible person. The state trustees shall provide the responsible person with a written statement, which they shall include in the assessment record, describing the factual basis for disallowing further participation by the responsible person. The responsible person may rejoin the assessment process or participate without limitation if the responsible person:

(1) makes a showing that the dilatory or disruptive practices will not reoccur; and

(2) performs corrective actions if requested by the trustees.

Source Note: The provisions of this §20.23 adopted to be effective October 19, 1994, 19 TexReg 7911; amended to be effective October 21, 2010, 35 TexReg 9318