The commission can recover cleanup and enforcement costs from the owner or operator of a tank release, and the attorney general must sue to recover those costs when the commission asks.
Sec. 26.355. RECOVERY OF COSTS. (a) If the commission has incurred any costs in undertaking corrective action or enforcement action with respect to the release of regulated substances from an underground or aboveground storage tank, the owner or the operator of the tank is liable to the state for all reasonable costs of those corrective and enforcement actions and for court costs and reasonable attorney's fees. (b) An owner or operator of an underground or aboveground storage tank from which a regulated substance is released is liable to the state unless: (1) the release was caused by: (A) an act of God; (B) an act of war; (C) the negligence of the State of Texas or the United States; or (D) an act or omission of a third party; or (2) the site at which the release occurred has been admitted into the petroleum storage tank state-lead program under Section 26.3573(r-1). (c) The state's right to recover under this section arises whether or not the commission: (1) uses funds from the waste management account or the petroleum storage tank remediation account; or (2) receives or will receive funds from the state, the federal government, or any other source for the purpose of corrective action or enforcement. (d) If the commission uses money from the petroleum storage tank remediation account for corrective action or enforcement and if the costs are recovered under this section, the commission may not recover more than the amount of the applicable owner or operator contribution described by Section 26.3512 of this code from an eligible owner or operator for corrective action for each occurrence. However, this limitation is not applicable to cost recovery actions initiated by the executive director at sites where the executive director has determined that the owner or operator is in violation of Section 26.351(f). (e) An indemnification, hold harmless, or similar agreement or conveyance is not effective to transfer the liability imposed under this section from the owner or operator of an underground or aboveground storage tank or from a person who may be liable for a release or threat of release to any other person. This section does not bar any agreement to insure, hold harmless, or indemnify a party to the agreement for any liability under this section. (f) This section does not bar a cause of action that an owner or operator or any other person subject to liability under this section or a guarantor has or would have by reason of subrogation or otherwise against any person. (g) At the request of the commission, the attorney general shall initiate court proceedings to recover costs under this section. (h) Except as provided by Subsection (i) of this section, money recovered in a court proceeding under this section shall be deposited in the State Treasury to the credit of the waste management account. (i) If the commission uses money from the petroleum storage tank remediation account for corrective action or enforcement as provided by this subchapter, money recovered in a court proceeding under this section shall be deposited in the state treasury to the credit of the petroleum storage tank remediation account. Added by Acts 1987, 70th Leg., ch. 277, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 228, Sec. 12, eff. May 31, 1989; Acts 1991, 72nd Leg., ch. 905, Sec. 4, eff. June 16, 1991; Acts 1997, 75th Leg., ch. 333, Sec. 21, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 965, Sec. 14.05, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1135, Sec. 5, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 722 (S.B. 485), Sec. 5, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 899 (S.B. 1863), Sec. 5.02, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 1256 (H.B. 1987), Sec. 5, eff. September 1, 2005.