86R5681 JXC-D
By: Biedermann H.B. No. 2871
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain aggregate production
operations by the Railroad Commission of Texas; authorizing a fee;
providing administrative penalties and other civil remedies;
creating criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Natural Resources Code, is amended by
adding Chapter 135 to read as follows:
CHAPTER 135. AGGREGATE PRODUCTION OPERATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 135.0001. DEFINITIONS. In this chapter:
(1) "Affected land" means:
(A) the area from which any materials are to be or
have been displaced in an aggregate production operation;
(B) the area on which any materials that are
displaced are to be or have been deposited;
(C) the haul roads and impoundment basins within
the aggregate production operation; and
(D) other land whose natural state has been or
will be disturbed as a result of the aggregate production
operations.
(2) "Aggregate production operation" means an
extraction operation at an aggregate production operation site
described by Section 28A.001(1), Water Code.
(3) "Commission" means the Railroad Commission of
Texas.
(4) "Operator" and "responsible party" have the
meanings assigned by Section 28A.001, Water Code.
Sec. 135.0002. APPLICABILITY. This chapter applies only to
an aggregate production operation that includes a facility for
which a permit is required under Chapter 382, Health and Safety
Code.
Sec. 135.0003. REPORT. The commission shall provide to the
governor, the lieutenant governor, and the speaker of the house of
representatives an annual report with information regarding the
implementation of this chapter, including:
(1) the results of the survey to locate unregistered
active aggregate production operations under Section 135.0102;
(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.
Sec. 135.0004. AGGREGATE PRODUCTION OPERATION REGULATION
ACCOUNT. (a) The aggregate production operation regulation
account is created as an account in the general revenue fund of the
state treasury.
(b) Money in the aggregate production operation regulation
account may be used only by the commission or its employees or
agents for the purposes of this chapter.
Sec. 135.0005. MEMORANDUM OF UNDERSTANDING. The commission
may enter into a memorandum of understanding with the Texas
Commission on Environmental Quality as necessary to administer and
enforce this chapter.
SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION
Sec. 135.0051. GENERAL AUTHORITY OF COMMISSION. To
accomplish the purposes of this chapter, the commission may:
(1) adopt, amend, and enforce rules pertaining to
aggregate production operations consistent with this chapter;
(2) issue permits under this chapter;
(3) conduct hearings under this chapter and Chapter
2001, Government Code;
(4) issue orders requiring a person to take actions
necessary to comply with this chapter or rules adopted under this
chapter;
(5) issue orders modifying previous orders;
(6) issue a final order revoking the permit of a person
who has not complied with a commission order to take action required
by this chapter or rules adopted under this chapter;
(7) hire employees, adopt standards for employment,
and hire or authorize the hiring of outside contractors to assist in
carrying out this chapter;
(8) accept, receive, and administer grants, gifts,
loans, or other money made available from any source for the
purposes of this chapter; and
(9) perform any other duty or act required by or
provided for in this chapter.
Sec. 135.0052. MONITORING, REPORTING, AND INSPECTIONS. (a)
The commission may:
(1) require monitoring and reporting;
(2) enter and inspect aggregate production
operations; and
(3) take other actions necessary to administer,
enforce, or evaluate the administration of this chapter.
(b) For purposes of this section, the commission or its
authorized representative:
(1) without advance notice and on presentation of
appropriate credentials, has the right to enter:
(A) an aggregate production operation; or
(B) premises on which records required to be
maintained are located; and
(2) at reasonable times and without delay, may have
access to and copy records required under this chapter or rules
adopted under this chapter or inspect any monitoring equipment or
method of operation required under this chapter or rules adopted
under this chapter.
(c) The commission shall inspect each active aggregate
production operation in this state for compliance with any
applicable environmental laws and rules under the jurisdiction of
the commission at least once every three years.
(d) The commission may conduct an inspection only after
providing notice to the responsible party in accordance with
commission policy.
(e) Except as provided by Subsection (f), 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.
(f) 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.
SUBCHAPTER C. REGISTRATION AND SURVEY
Sec. 135.0101. 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 subchapter are not applicable to the aggregate production
operation.
(c) The commission may not register an aggregate production
operation unless the commission has issued a reclamation permit for
the operation under Subchapter D.
(d) The commission may not register an aggregate production
operation unless the responsible party provides to the commission
documentation of any required permit issued for the operation by
each groundwater conservation district in which the operation is
located.
Sec. 135.0102. 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. 135.0103. FEES. (a) A person who registers an
aggregate production operation under this subchapter 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 aggregate production operation regulation account
and may be used only to implement this chapter.
Sec. 135.0104. REGISTRATION 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 subchapter. 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.
SUBCHAPTER D. RECLAMATION PERMIT
Sec. 135.0151. RECLAMATION OBJECTIVE. (a) The basic
objective of reclamation is to reestablish on a continuing basis,
where required, vegetation and other natural conditions consistent
with the anticipated subsequent use of the affected land.
(b) The process of reclamation may require contouring,
terracing, grading, backfilling, resoiling, revegetation,
compaction and stabilization and settling ponds, water
impoundments, diversion ditches, and other water treatment
facilities in order to minimize water diminution to existing water
sources, pollution, soil and wind erosion, or flooding resulting
from extraction or any other activity that may be considered
necessary to accomplish the reclamation of the affected land to a
substantially beneficial condition.
Sec. 135.0152. RECLAMATION PERMIT REQUIRED. (a) A person
may not conduct an aggregate production operation without first
obtaining a reclamation permit for that operation from the
commission under this subchapter.
(b) The commission by rule shall establish requirements for
obtaining a permit. The requirements must:
(1) ensure that the permit holder is capable of
completing a reclamation process for the permit area in a manner
that is compatible with the objective described by Section
135.0151; and
(2) be modeled on the reclamation requirements for
surface mining of uranium and uranium ore under Chapter 131 and
surface coal mining under Chapter 134, including the submission of
a reclamation plan and a performance bond.
Sec. 135.0153. PERMIT APPLICATION AND ISSUANCE. (a) The
commission by rule shall establish requirements for submitting a
permit application.
(b) Chapter 2001, Government Code, applies to a permit
application under this subchapter.
(c) On the basis of a complete application for a permit, the
commission shall approve, require modification of, or deny a permit
application.
(d) An applicant for a permit has the burden of establishing
that the application complies with this subchapter and rules
adopted under this chapter.
Sec. 135.0154. PERMIT REVISIONS. (a) The commission by
rule shall require that a permit holder:
(1) notify the commission of any significant changes
in a condition that the commission evaluated as part of the permit
application process that occur after the permit was issued; and
(2) apply for a permit revision if the commission
determines a revision is appropriate.
(b) A permit revision application is subject to the same
requirements for issuance as an initial permit.
Sec. 135.0155. CIVIL OR ADMINISTRATIVE ENFORCEMENT.
Subchapter H, Chapter 134, applies to the civil or administrative
enforcement of this subchapter or a rule, order, or permit adopted
or issued under this subchapter in the same manner as Subchapter H,
Chapter 134, applies to the civil or administrative enforcement of
that chapter or a rule, order, or permit adopted or issued under
that chapter.
Sec. 135.0156. CRIMINAL PENALTY FOR WILFUL AND KNOWING
VIOLATION. (a) A person commits an offense if the person wilfully
and knowingly violates a condition of a permit issued under this
subchapter or does not comply with an order issued under this
subchapter, except an order incorporated in a decision issued by
the commission under Section 134.175, as applicable under Section
135.0155.
(b) An offense under this section is punishable by:
(1) a fine of not more than $10,000;
(2) imprisonment for not more than one year; or
(3) both the fine and the imprisonment.
Sec. 135.0157. CRIMINAL PENALTY FOR FALSE STATEMENT,
REPRESENTATION, OR CERTIFICATION. (a) A person commits an offense
if the person knowingly makes a false statement, representation, or
certification, or knowingly fails to make a statement,
representation, or certification, in an application, record,
report, or other document filed or required to be maintained under
this subchapter or under an order of decision issued by the
commission under this subchapter.
(b) An offense under this section is punishable by:
(1) a fine of not more than $10,000;
(2) imprisonment for not more than one year; or
(3) both the fine and the imprisonment.
SECTION 2. Subchapter A, Chapter 28A, Water Code, is
amended by adding Section 28A.002 to read as follows:
Sec. 28A.002. APPLICABILITY. This chapter applies only to
an aggregate production operation that does not include a facility
for which a permit is required under Chapter 382, Health and Safety
Code.
SECTION 3. (a) The Texas Commission on Environmental
Quality shall continue to carry out the commission's powers and
duties that are transferred by this Act until the commission and the
Railroad Commission of Texas adopt the memorandum of understanding
required by this section, complete the transfer of the items
specified in the memorandum, and publicly announce that the
transfer is complete.
(b) The Railroad Commission of Texas and the Texas
Commission on Environmental Quality shall enter into a memorandum
of understanding that:
(1) identifies in detail the applicable powers and
duties that are transferred by this Act;
(2) establishes a plan for the identification and
transfer of any records, personnel, property, and unspent
appropriations of the Texas Commission on Environmental Quality
that are used solely for purposes of the powers and duties that are
transferred by this Act; and
(3) establishes a plan for the transfer of any pending
applications, hearings, rulemaking proceedings, and orders
relating to the powers and duties that are transferred by this Act.
(c) The executive directors of the Railroad Commission of
Texas and the Texas Commission on Environmental Quality may agree
in the memorandum of understanding under this section to transfer
to the Railroad Commission of Texas any personnel of the Texas
Commission on Environmental Quality whose functions predominantly
involve powers and duties related to the powers and duties that are
transferred by this Act.
(d) A rule, form, policy, procedure, or decision of the
Texas Commission on Environmental Quality related to a power or
duty transferred under this Act continues in effect as a rule, form,
policy, procedure, or decision of the Railroad Commission of Texas
and remains in effect until amended or replaced by that agency.
SECTION 4. This Act takes effect September 1, 2019.