86R2617 JXC-D
By: Wilson H.B. No. 509
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of 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) "Aggregate production operation" means an
extraction operation at an aggregate production operation site
described by Section 28A.001(1), Water Code.
(2) "Commission" means the Railroad Commission of
Texas.
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.
Sec. 135.0053. COORDINATION BETWEEN AGENCIES. (a) To
avoid duplication, the commission shall establish a process for
coordinating the review and issuance of permits under this chapter
for aggregate production operations with the review and issuance of
any other federal or state authorizations required for the proposed
operations.
(b) In cooperation with the appropriate units of local
government and other state agencies, the commission shall
coordinate and streamline procedures under this chapter to the
extent possible.
(c) The commission may enter into a memorandum of
understanding with the Texas Commission on Environmental Quality,
the Texas Department of Transportation, or another state agency to
implement and administer this chapter or other state law applicable
to aggregate production operations.
SUBCHAPTER C. PERMIT
Sec. 135.0101. PERMIT REQUIRED. A person may not conduct an
aggregate production operation in this state without first
obtaining a permit for that operation from the commission under
this chapter.
Sec. 135.0102. CONTENTS OF PERMIT APPLICATION. A permit
application must be submitted in a manner satisfactory to the
commission and must contain:
(1) the name and address of:
(A) the applicant;
(B) each owner of record of the property from
which aggregates are to be produced;
(C) each holder of record of any leasehold
interest in the property;
(D) the purchaser of record of the property under
a real estate contract;
(E) the operator if the operator is not the
applicant;
(F) the principals, officers, and resident agent
of a person described by Paragraph (A), (B), (C), (D), or (E) if the
person is a business entity other than a sole proprietor; and
(G) the owners of record of the property
adjoining the permit area;
(2) additional information about ownership and
management of the applicant or operator if required by commission
rule;
(3) a copy of the notice required by Section 135.0106;
(4) a description of:
(A) the type and method of the existing or
proposed aggregate production operation;
(B) the engineering techniques proposed or in
use; and
(C) the equipment in use or proposed to be used;
(5) the anticipated or actual starting and termination
dates of each phase of the aggregate production operation and
number of acres of land to be affected;
(6) an accurate map or plan, to an appropriate scale,
clearly showing:
(A) the land to be affected as of the date of the
application; and
(B) the area of land in the permit area on which
the applicant has the right to enter and begin aggregate production
operations;
(7) the documents on which the applicant bases the
applicant's right to enter and begin aggregate production
operations on the affected area, including documentation of any
required permit, license, safety certificate, registration, or
other authorization issued by a federal agency, the Texas
Commission on Environmental Quality, another state agency, or a
political subdivision;
(8) a statement of whether the applicant's right to
enter and begin aggregate production operations on the affected
area is the subject of pending court litigation;
(9) a plan for constructing acceleration and
deceleration lanes for egress from and ingress to the aggregate
production operation to protect public safety;
(10) a description of the types of property
surrounding the permit area and potential impacts of the aggregate
production operation on any residents of the surrounding area;
(11) the distance of the permit area from the closest
residential area;
(12) a description of the potential impacts of the
aggregate production operation on the local economy near the permit
area; and
(13) other data and maps the commission requires by
rule.
Sec. 135.0103. ADDITIONAL PERMIT APPLICATION CONTENTS;
HYDROLOGY ASSESSMENT. (a) In addition to the content required
under Section 135.0102, a permit application must contain:
(1) the name of the watershed and location of the
surface streams or tributaries into which surface and pit drainage
will be discharged;
(2) a determination of the probable hydrologic
consequences of the aggregate production operation, if any, both on
and off the site, with respect to the hydrologic regime and the
quantity and quality of water in surface-water systems and
groundwater systems, including the dissolved and suspended solids
under seasonal flow conditions; and
(3) sufficient data on the site and surrounding area
for the commission to assess the probable cumulative impacts of all
anticipated aggregate production operations in the area on the
hydrology of the area, particularly on water availability.
(b) An applicant may submit the information and
determination required to be included with a permit application
under Subsection (a) separately from the other components of the
application if information on the hydrology of the area is not
available from the appropriate state agencies or political
subdivisions at the time the other components are submitted. A
permit may not be approved until the information and determination
required to be included with a permit application under Subsection
(a) have been submitted to the commission.
(c) After receiving a complete permit application, the
commission, in collaboration with the Texas Commission on
Environmental Quality and any political subdivisions with relevant
jurisdiction, shall:
(1) assess the applicant's hydrologic determination
made under Subsection (a)(2);
(2) assess the probable cumulative impact that all
anticipated aggregate production operations in the area will have
on the hydrologic balance, using the information provided by the
applicant under this section and any other information; and
(3) determine whether the operation proposed in the
application has been designed to prevent material damage to the
hydrologic balance outside the permit area.
Sec. 135.0104. APPLICATION FEES. (a) An application for an
aggregate production operation permit or for revision of a permit
must be accompanied by an application fee determined by the
commission in accordance with a published fee schedule. The
commission shall base the application fee as nearly as possible on
the actual or anticipated cost of reviewing the application.
(b) The application fee may not be less than:
(1) $5,000 for an initial permit; or
(2) $500 for revision of a permit.
Sec. 135.0105. PUBLIC INSPECTION OF APPLICATION. (a) An
applicant for an aggregate production operation permit shall file a
copy of the application for public inspection with the county clerk
of the county in which the production is proposed to occur.
(b) Copies of any records, reports, inspection materials,
or information obtained under this chapter by the commission shall
be made immediately available to the public at central and
sufficient locations in the area of aggregate production so that
they are conveniently available to residents in that area.
Sec. 135.0106. PUBLIC NOTICE BY APPLICANT. At the time the
applicant submits a complete application for an aggregate
production operation permit, the applicant shall publish an
advertisement in a newspaper of general circulation in the locality
of the proposed aggregate production operation at least once a week
for four consecutive weeks that:
(1) shows the ownership and describes the location and
boundaries of the proposed site sufficiently so that the proposed
operation can be readily located; and
(2) states that the application is available for
public inspection at the county courthouse of the county in which
the property lies.
Sec. 135.0107. NOTIFICATION OF POLITICAL SUBDIVISIONS. (a)
The commission shall send notice of a permit application to
planning agencies, sewage and water treatment authorities, special
districts with jurisdiction over water, municipalities, and any
other political subdivisions with relevant jurisdiction in the
locality of the proposed site.
(b) The notice must indicate the application number and the
county courthouse in which a copy of the application can be
inspected.
(c) To facilitate the commission's evaluation of the permit
application content required under Section 135.0102(7), the
commission shall include with the notice a request for the
recipient of the notice to provide to the commission in a timely
manner information on any authorizations or other documents that
the applicant is required to obtain from the recipient before
beginning the aggregate production operation.
Sec. 135.0108. COMMENTS ON LOCAL EFFECTS; OBJECTIONS. (a)
During a period established by the commission, a federal or state
agency, a political subdivision, or any other affected person may
submit to the commission written comments on the potential effects
of the proposed aggregate production operation on the environment
or economy of the locality of the operation.
(b) Not later than the 30th day after the date of the last
publication of notice under Section 135.0106, a federal or state
agency, a political subdivision, or any other affected person may
submit to the commission written objections to the proposed
aggregate production operation.
(c) The commission shall:
(1) immediately send the comments and objections to
the applicant; and
(2) make the comments and objections available to the
public at the same location as the aggregate production operation
permit application.
Sec. 135.0109. REQUEST FOR PUBLIC HEARING; NOTICE. (a) Not
later than the 45th day after the date of the last publication of
notice under Section 135.0106, the applicant or an affected person
may request a hearing on the application. The hearing shall be held
not later than the 30th day after the date the commission receives
the request.
(b) The commission shall publish notice of the date, time,
and location of the public hearing in a local newspaper of general
circulation in the locality of the proposed aggregate production
operation at least once a week for three consecutive weeks before
the scheduled hearing date.
Sec. 135.0110. PROCEDURE. Chapter 2001, Government Code,
applies to a permit application under this chapter. Notice of
hearing and appeal is governed by that chapter, except as provided
by Section 135.0109.
Sec. 135.0111. NOTICE OF APPROVAL OR DENIAL. (a) The
commission shall notify the applicant and each person who submitted
an objection under Section 135.0108 that the permit application has
been approved or denied:
(1) within the time provided by Chapter 2001,
Government Code, if a public hearing is held under Section
135.0109; or
(2) not later than the 45th day after the date of the
last publication of notice of application if a public hearing is not
held.
(b) The notice provided to the applicant under this section
must be written.
Sec. 135.0112. PERMIT APPROVAL OR DENIAL. (a) On the basis
of a complete application for an aggregate production operation
permit or a revision of a permit, as required by this chapter, the
commission shall approve, require modification of, or deny a permit
application.
(b) An applicant for a permit or a permit revision has the
burden of establishing that the application complies with this
chapter.
(c) Not later than the 10th day after the date the
commission issues a permit, the commission shall notify the county
judge in each county in which the land to be affected is located
that a permit has been issued and shall describe the location of the
land.
(d) The commission may deny a permit based on:
(1) a violation by the applicant of a provision of this
chapter or a commission rule adopted under this chapter;
(2) a finding by another state agency that the
applicant has violated a law or rule administered by that agency
related to the proposed aggregate production operation;
(3) the failure of the applicant to obtain an
authorization or document that the applicant is required to obtain
from a federal or state agency or a political subdivision before
beginning the aggregate production operation;
(4) a determination made under Section 135.0103(c)
that the operation has not been designed to prevent material damage
to the hydrologic balance outside the permit area;
(5) a comment or objection submitted under Section
135.0108; or
(6) testimony given in a public hearing held under
Section 135.0109.
Sec. 135.0113. WRITTEN FINDINGS REQUIRED. The commission
may not approve an application for a permit or a permit revision
unless it finds, in writing, using the information in the
application or information otherwise available that will be
documented in the approval and made available to the applicant,
that:
(1) the application is accurate and complete and
complies with this chapter; and
(2) the commission has determined under Section
135.0103(c) that the proposed operation has been designed to
prevent material damage to the hydrologic balance outside the
permit area.
Sec. 135.0114. 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) The rules must require that, except for incidental
boundary changes, a permit revision that involves extending the
aggregate production operation beyond the boundaries authorized in
the permit meet all standards applicable to a new permit
application under this chapter.
Sec. 135.0115. WAIVER FOR CERTAIN OPERATIONS. (a) Except
as provided by Subsection (b), the requirements of this chapter are
waived for an aggregate production operation that, on August 31,
2019:
(1) is registered with the Texas Commission on
Environmental Quality under Chapter 28A, Water Code; and
(2) has all permits, licenses, safety certificates,
registrations, or other authorizations required by law for the
operation of an aggregate production operation, including permits
issued by the Texas Commission on Environmental Quality under
Chapter 382, Health and Safety Code.
(b) The commission by rule shall require that a person
operating an aggregate production operation described by
Subsection (a):
(1) notify the commission of any significant changes
in a condition that would have been evaluated as part of a permit
application process if the operation had been required to obtain a
permit under this chapter; and
(2) obtain a permit under this chapter if the
commission determines that it is appropriate to require a permit.
(c) The commission, in consultation with the Texas
Commission on Environmental Quality, shall publish a list of
aggregate production operations that qualify for a waiver under
this section and update the publication as necessary to provide
information on permits issued under Subsection (b).
SUBCHAPTER D. ENFORCEMENT
Sec. 135.0151. CIVIL OR ADMINISTRATIVE ENFORCEMENT.
Subchapter H, Chapter 134, applies to the civil or administrative
enforcement of this chapter or a rule, order, or permit adopted or
issued under this chapter in the same manner as that subchapter
applies to the civil or administrative enforcement of that chapter
or a rule, order, or permit adopted or issued under that chapter.
Sec. 135.0152. 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
chapter or does not comply with an order issued under this chapter,
except an order incorporated in a decision issued by the commission
under Section 134.175, as applicable under Section 135.0151.
(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. 135.0153. 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 chapter or under an order of decision issued by the commission
under this chapter.
(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. This Act takes effect September 1, 2019.