By: Ratliff S.B. No. 271
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the applicant-violator system of the Texas Surface Coal
1-2 Mining and Reclamation Act.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 6(b) of Article 5920-11 (Texas Surface
1-5 Coal Mining and Reclamation Act) is amended to read as follows:
1-6 (b) The process of making and amending rules and issuing
1-7 permits shall be pursuant to the Administrative Procedure Act,
1-8 Chapter 2001, Government Code <and Texas Register Act, as amended>.
1-9 The Administrative Procedure Act does not apply to actions by the
1-10 commission to automatically suspend or rescind a permit pursuant to
1-11 Section 21a of this Act, except for administrative reviews provided
1-12 by Section 21a(d)(3).
1-13 SECTION 2. Section 21(c), Article 5920-11 (Texas Surface
1-14 Coal Mining and Reclamation Act) is amended to read as follows:
1-15 (c) The applicant shall file, with his or her application, a
1-16 schedule listing any and all notices of violations of this Act and
1-17 any law, rule, or regulation of the United States, or the State of
1-18 Texas, or of any department or agency in the United States
1-19 pertaining to air or water environmental protection incurred by the
1-20 applicant in connection with any surface coal mining operation
1-21 <within the state> during the three-year period prior to the date
1-22 of application, and shall include in the schedule, the final
1-23 resolution of notice of violation. If the schedule or other
2-1 information available to the commission indicates that any surface
2-2 coal mining operation owned or controlled by the applicant is
2-3 currently in violation of this Act or other laws referred to in
2-4 this subsection, the permit shall not be issued until the applicant
2-5 submits proof that the violation has been corrected or is in the
2-6 process of being corrected to the satisfaction of the commission,
2-7 department, or agency that has jurisdiction over the violation or
2-8 that the notice of violation is being contested by the applicant,
2-9 and no permit shall be issued to any applicant after a finding by
2-10 the commission, after opportunity for hearing, that the applicant,
2-11 or the operator specified in the application, controls or has
2-12 controlled mining operations with a demonstrated pattern of wilful
2-13 violations of this Act of such nature and duration with such
2-14 resulting irreparable damage to the environment as to indicate an
2-15 intent not to comply with this Act.
2-16 SECTION 3. Article 5920-11 (Texas Surface Coal Mining and
2-17 Reclamation Act) is amended by adding Section 21a to read as
2-18 follows:
2-19 Automatic Suspension or Rescission
2-20 Sec. 21a. (a) If the commission has reason to believe that
2-21 it improvidently issued a surface coal mining and reclamation
2-22 permit, it shall review the circumstances under which the permit
2-23 was issued, using the criteria in Subsection (b) of this Section.
2-24 If it finds that the permit was improvidently issued, the
2-25 commission shall comply with Subsection (c) of this section.
3-1 (b) The commission shall find that a surface coal mining and
3-2 reclamation permit was improvidently issued if:
3-3 (1) under the violations review criteria of the
3-4 regulatory program at the time the permit was issued:
3-5 (A) the commission should not have issued the
3-6 permit because of an unabated violation or a delinquent penalty or
3-7 fee; or
3-8 (B) the commission issued the permit on the
3-9 presumption that a notice of violation was in the process of being
3-10 corrected to the satisfaction of the agency with jurisdiction over
3-11 the violation, but a cessation order subsequently was issued;
3-12 (2) the violation, penalty or fee remains unabated or
3-13 delinquent and:
3-14 (A) is not the subject of a good faith appeal;
3-15 or
3-16 (B) is not part of an abatement plan or payment
3-17 schedule with which the permittee or other person responsible for
3-18 the penalty is complying to the satisfaction of the responsible
3-19 agency; and
3-20 (3) where the permittee was linked to the violation,
3-21 penalty or fee through ownership or control, under the violations
3-22 review criteria of the regulatory program at the time the permit
3-23 was issued, an ownership or control link between the permittee and
3-24 the person responsible for the violation, penalty or fee still
3-25 exists, or where the link was severed, the permittee continues to
4-1 be responsible for the violation, penalty or fee.
4-2 (c) If the commission finds that because of an unabated
4-3 violation or a delinquent penalty or fee, a permit was
4-4 improvidently issued, it shall take one or more of the following
4-5 remedial measures:
4-6 (1) implement, with the cooperation of the permittee
4-7 or other responsible person and the responsible agency, a plan for
4-8 abatement of the violation or a schedule for payment of the penalty
4-9 or fee;
4-10 (2) impose on the permit a condition requiring that
4-11 within a reasonable period of time the permittee or other
4-12 responsible person abate the violation or pay the penalty or fee;
4-13 (3) suspend the permit until the violation is abated
4-14 or the penalty or fee is paid; or
4-15 (4) rescind the permit under Subsection (d) of this
4-16 section.
4-17 (d) When the commission acts to suspend or to rescind an
4-18 improvidently issued permit, it shall serve on the permittee a
4-19 notice of proposed suspension and rescission which includes the
4-20 reasons for the finding of the commission and states that:
4-21 (1) after a specified period of time, not to exceed 90
4-22 days, the permit is automatically suspended, and after a specified
4-23 period of time, not to exceed 90 days after the date of automatic
4-24 suspension, the permit is rescinded unless within those periods the
4-25 permittee submits proof, and the commission finds, that:
5-1 (A) the finding of the commission under
5-2 Subsection (b) of this section was erroneous;
5-3 (B) the permittee or other person responsible
5-4 has abated the violation on which the finding was based, or paid
5-5 the penalty or fee, to the satisfaction of the responsible agency;
5-6 (C) the violation, penalty or fee is the subject
5-7 of a good faith appeal, or of an abatement plan or payment schedule
5-8 with which the permittee or other responsible person is complying
5-9 to the satisfaction of the responsible agency; or
5-10 (D) since the finding was made, the permittee
5-11 has severed any ownership or control link with the person
5-12 responsible for, and does not continue to be responsible for, the
5-13 violation, penalty or fee;
5-14 (2) Upon suspension or rescission of a permit, the
5-15 permittee shall cease all surface coal mining and reclamation
5-16 operations under the permit, except for violation abatement and for
5-17 reclamation and other environmental protection measures as required
5-18 by the commission.
5-19 (3) A permittee who is the subject of a suspension or
5-20 rescission notice may file an appeal for administrative review of
5-21 the notice. Such review shall be governed by the Administrative
5-22 Procedure Act, Chapter 2001, Government Code.
5-23 SECTION 4. EFFECTIVE DATE. This act takes effect
5-24 September 1, 1995.
5-25 SECTION 5. EMERGENCY. The importance of this legislation
6-1 and the crowded condition of the calendars in both houses create an
6-2 emergency and an imperative public necessity that the
6-3 constitutional rule requiring bills to be read on three several
6-4 days in each house be suspended, and this rule is hereby suspended.