By: Williams S.B. No. 160
(In the Senate - Filed November 8, 2010; January 31, 2011,
read first time and referred to Committee on Natural Resources;
March 14, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 11, Nays 0; March 14, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 160 By: Nichols
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain aggregate production
operations by the Texas Commission on Environmental Quality;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle D, Title 2, Water Code, is amended by
adding Chapter 28A to read as follows:
CHAPTER 28A. REGISTRATION AND INSPECTION OF CERTAIN AGGREGATE
PRODUCTION OPERATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 28A.001. DEFINITIONS. In this chapter:
(1) "Aggregate production operation" means the site
from which aggregates are being or have been removed or extracted
from the earth, including the entire areas of extraction, stripped
areas, haulage ramps, and the land on which the plant processing the
raw materials is located, exclusive of any land owned or leased by
the responsible party not being currently used in the production of
aggregates. For the purposes of this chapter, the term "aggregate
production operation" does not include:
(A) a site at which the materials that are being
removed or extracted from the earth are used or processed at the
same site or at a related site under the control of the same
responsible party for the production of cement or lightweight
aggregates, or in a lime kiln;
(B) a temporary site that is being used solely to
provide aggregate products for use in a public works project
involving the Texas Department of Transportation or a local
governmental entity;
(C) an extraction area from which all raw
material is extracted for use as fill or for other construction uses
at the same or a contiguous site; or
(D) a site at which the materials that are being
removed or extracted from the earth are used or processed for use in
the construction, modification, or expansion of a solid waste
facility at the site or another location.
(2) "Aggregates" means any commonly recognized
construction material originating from an aggregate production
operation from which an operator extracts dimension stone, crushed
and broken limestone, crushed and broken granite, crushed and
broken stone not elsewhere classified, construction sand and
gravel, industrial sand, dirt, soil, or caliche. For purposes of
this section, the term "aggregates" does not include clay or shale
mined for use in manufacturing structural clay products.
(3) "Commission" means the Texas Commission on
Environmental Quality.
(4) "Operator" means any person engaged in and
responsible for the physical operation and control of the
extraction of aggregates.
(5) "Owner" means any person having title, wholly or
partly, to the land on which an aggregate production operation
exists or has existed.
(6) "Responsible party" means the operator, lessor, or
owner who is responsible for the overall function and operation of
an aggregate production operation.
[Sections 28A.002-28A.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION AND INSPECTION
Sec. 28A.051. REGISTRATION. (a) The responsible party for
an aggregate production operation shall register the operation with
the commission not later than the 10th business day before the
beginning date of extraction activities and shall renew the
registration annually as extraction activities continue.
(b) After extraction activities at an aggregate production
operation have ceased and the operator has notified the commission
in writing that the operations have ceased, the requirements of
this chapter are not applicable to the aggregate production
operation.
Sec. 28A.052. SURVEY. (a) The commission annually shall
conduct a physical survey of the state to:
(1) identify all active aggregate production
operations in this state; and
(2) ensure that each active aggregate production
operation in this state is registered with the commission.
(b) The commission may contract with or seek assistance from
a governmental entity or other person to conduct the annual survey
required by Subsection (a) to identify active aggregate production
operations that are not registered under this chapter.
Sec. 28A.053. INSPECTION. (a) The commission shall
inspect each active aggregate production operation in this state
for compliance with applicable environmental laws and rules under
the jurisdiction of the commission at least once every three years.
(b) The commission may conduct an inspection only after
providing notice to the responsible party in accordance with
commission policy.
(c) Except as provided by Subsection (d), an inspection must
be conducted by one or more inspectors trained in the regulatory
requirements under the jurisdiction of the commission that are
applicable to an active aggregate production operation. If the
inspection is conducted by more than one inspector, each inspector
is not required to be trained in each of the applicable regulatory
requirements, but the combined training of the inspectors must
include each of the applicable regulatory requirements. The
applicable regulatory requirements include requirements related
to:
(1) individual water quality permits issued under
Section 26.027;
(2) a general water quality permit issued under
Section 26.040;
(3) air quality permits issued under Section 382.051,
Health and Safety Code; and
(4) other regulatory requirements applicable to
active aggregate production operations under the jurisdiction of
the commission.
(d) An investigation in response to a complaint satisfies
the requirement of an inspection under this section if a potential
noncompliance issue not related to the complaint is observed and
is:
(1) not within an area of expertise of the
investigator but is referred by the investigator to the commission
for further investigation; or
(2) within an area of expertise of the inspector and is
appropriately investigated and appropriately addressed in the
investigation report.
Sec. 28A.054. REPORT. The commission shall provide a
specific section in the annual enforcement report under Section
5.126 with information regarding the implementation of this
chapter, including:
(1) the results of the survey to locate unregistered
active aggregate production operations under Section 28A.052;
(2) the number and general location of the registered
aggregate production operations;
(3) the number of inspectors trained in multiple areas
related to the inspection of aggregate production operations;
(4) the number of inspections conducted; and
(5) the results of the inspections.
[Sections 28A.055-28A.100 reserved for expansion]
SUBCHAPTER C. FEES AND ENFORCEMENT
Sec. 28A.101. FEES. (a) A person who, under laws in the
commission's jurisdiction and rules adopted under those laws, is
authorized to operate an aggregate production operation shall pay
annually an aggregate production operation registration fee to the
commission in an amount established by commission rule.
(b) The commission shall set the annual registration fee in
an amount sufficient to maintain a registry of active aggregate
production operations in this state and implement this chapter, not
to exceed $1,000.
(c) Registration fees collected under this section shall be
deposited in the water resource management account and may be used
only to implement this chapter.
Sec. 28A.102. PENALTY. The commission may assess a penalty
of not less than $5,000 and not more than $10,000 for each year in
which an aggregate production operation operates without being
registered under this chapter. The total penalty under this
section may not exceed $25,000 for an aggregate production
operation that is operated in three or more years without being
registered.
SECTION 2. (a) A responsible party operating an aggregate
production operation, as those terms are defined by Section
28A.001, Water Code, as added by this Act, is first required to
register with the Texas Commission on Environmental Quality under
Section 28A.051, Water Code, as added by this Act, on September 1,
2012.
(b) If, in conjunction with initially registering with the
Texas Commission on Environmental Quality as required by Subsection
(a) of this section, a responsible party operating an aggregate
production operation also submits a notice of intent to conduct an
audit for compliance with all applicable laws, rules, and
regulations under the jurisdiction of the Texas Commission on
Environmental Quality under the Texas Environmental, Health, and
Safety Audit Privilege Act (Article 4447cc, Vernon's Texas Civil
Statutes), the three-year period to conduct an inspection of the
operation under Section 28A.053, Water Code, as added by this Act,
begins September 1, 2015.
SECTION 3. This Act takes effect September 1, 2011.
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