78R7319 MI-F

By:  Howard                                                       H.B. No. 2305


A BILL TO BE ENTITLED
AN ACT
relating to the regulation of structural clay and brick raw materials extraction operations; providing an administrative penalty. 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. STRUCTURAL CLAY AND BRICK RAW MATERIALS SAFETY AND RECLAMATION ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 135.001. SHORT TITLE. This chapter may be cited as the Texas Structural Clay and Brick Raw Materials Safety and Reclamation Act. Sec. 135.002. DEFINITIONS. In this chapter: (1) "Affected land" means: (A) the area from which any materials are to be or have been extracted in an extraction operation; (B) the area on which any materials that are extracted are to be or have been deposited; (C) the impoundment basins within the extraction area constructed and used for the sole purpose of the extraction operation; or (D) the roads within the extraction area constructed and used for the sole purpose of the extraction operation. (2) "Certificate area" means the land for which a certificate of registration has been issued under this chapter. (3) "Certificate holder" means an individual or entity that holds a certificate of registration issued under this chapter. (4) "Certificate term" means the period beginning with the date on which a certificate of registration is issued under this chapter and ending on a date not later than the 10th anniversary of the date of issuance. (5) "Commercial purposes" means the sale of material from an extraction operation as a cash transaction or as part of a contractual agreement involving payment for materials provided, or the use of that material in another process to create a product with value. (6) "Commission" means the Railroad Commission of Texas. (7) "Director" means the executive head and active administrator of the division. (8) "Division" means the surface mining division of the commission. (9) "Extraction area" means the land from which structural clay and brick raw materials are removed. (10) "Extraction" and "extraction operation" mean the activities associated with the removal and storage of structural clay and brick raw materials for commercial purposes, including the mechanical removal, cleaning, and preparation of materials at the site. (11) "Final cut" means the last pit created in a structural clay and brick raw materials extraction area. (12) "High wall" means the side of the pit, equal to or greater than 10 vertical feet, that is adjacent to unmined land. (13) "Operator" means an individual, partnership, firm, or corporation engaged in or controlling an extraction operation. (14) "Ordinary high water mark" means the line delineating the bed from the bank and is found by ascertaining where the presence and actions of water are so usual and long, continuing in ordinary years, as to mark on the soil of the bed a character distinct from that of the banks, with respect to vegetation and the nature of the soil. (15) "Owner" means an individual, partnership, firm, or corporation having title to all or part of the land on which an extraction operation exists. (16) "Peak" means a projecting point of spoil created in an extraction operation. (17) "Pit" means a tract of land where extraction is taking place. (18) "Reclamation" means the process of restoring to a useful purpose land affected by an extraction operation. (19) "Ridge" means a lengthened elevation of spoil created in the extraction process. (20) "Right-of-way" means the portion of land over or under which certain facilities, including roadways, pipelines, or power lines, are built. (21) "Site" means the land on which an extraction operation, including ancillary buildings such as shop, warehouse, and maintenance support facilities, is located. (22) "Spoil" means all waste material and debris connected with the extraction operation. (23) "Streambed" or "stream channel" means the area that lies between the lines delineating the bed from the bank on each side of a stream, creek, branch, or river. (24) "Structural clay and brick raw materials" means those materials within the North American Industrial Classification System No. 212325 that are extracted in conjunction with the production of structural clay products and brick. (25) "Waterway" means the natural channel of any perennial stream, creek, branch, or river. Sec. 135.003. EXEMPTIONS. (a) This chapter does not apply to: (1) land, including all affected land, from which structural clay and brick raw materials are produced before September 1, 2003; (2) a parcel of affected land of less than five acres; or (3) manufacturing activities located within or adjacent or contiguous to any operation site or affected land. (b) Notwithstanding Subsection (a)(1), an operator may not expand the surface acreage of a pit from which structural clay and brick raw materials are extracted after September 1, 2003, unless the operator obtains a certificate of registration for any land affected by the expansion and complies with other provisions of this chapter applicable to that land.
[Sections 135.004-135.050 reserved for expansion]
SUBCHAPTER B. AUTHORITY OF COMMISSION
Sec. 135.051. GENERAL AUTHORITY OF COMMISSION. (a) The commission may: (1) adopt rules and issue orders as necessary to implement and enforce this chapter; (2) conduct, encourage, request, and participate in studies, surveys, investigations, research, experiments, training, and demonstrations by contract, grant, or otherwise; (3) apply for, accept, receive, and administer grants, gifts, loans, or other money from any source for the purposes of this chapter; (4) hire employees, adopt employment standards, and hire or authorize the hiring of outside contractors to assist in implementing this chapter; and (5) enter into contracts with other state agencies with pertinent expertise to obtain professional and technical services necessary to implement this chapter. (b) This chapter does not authorize the commission to: (1) adjudicate property title or property rights disputes; or (2) add or modify fees for specific actions required by or otherwise described by this chapter. Sec. 135.052. INSPECTIONS. (a) On 24-hour notice and presentation of appropriate credentials, a commission member or an authorized representative of the commission may inspect a site to determine whether the extraction operation is complying with this chapter and commission rules adopted under this chapter. (b) An inspection may be conducted only during normal operating hours. (c) An inspector must inform the operator of the reasons for the inspection. (d) An inspector shall prepare an inspection report adequate to document site conditions and compliance with this chapter and commission rules adopted under this chapter. The inspector shall provide a draft copy of the inspection report to the certificate holder or an authorized representative of the certificate holder before leaving the site. The commission shall provide a final copy of the inspection report to the certificate holder not later than the fifth business day after the inspector leaves the site. (e) The certificate holder is not subject to a fee for inspections conducted by the commission under this section.
[Sections 135.053-135.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE OF REGISTRATION
Sec. 135.101. CERTIFICATE OF REGISTRATION REQUIRED. A person may not conduct an extraction operation in this state unless the person holds a certificate of registration for that operation issued by the commission under this chapter. Sec. 135.102. APPLICATION. (a) To obtain a certificate of registration, a person must file an application with the commission on a concise form prescribed by the commission, accompanied by a fee of $200 and the bond or alternate form of financial security required by Subchapter D. (b) The application must include: (1) the name, address, and telephone number of the operator; (2) the name, address, and telephone number of each owner of the site of the proposed extraction operation who is not the operator; (3) the type of extraction activities to be conducted on the site of the proposed extraction operation, including an estimate of the number of acres of land to be disturbed annually for extraction purposes; (4) a legal description of the land on which the extraction operation is to be located; (5) a map of the site of the proposed extraction operation showing any easement, public or private road, or right-of-way; (6) a notarized statement certifying that the operator has the legal right to conduct an extraction operation on the land described; and (7) a reclamation plan that complies with the provisions of this chapter governing the reclamation activities to be undertaken. (c) A separate application is required for each extraction operation located on property that is noncontiguous or is at a distance greater than one mile from the noncontiguous extraction area, at the closest point between each extraction area, unless the extraction operation is located within the boundary described in the legal description provided under Subsection (b)(4). (d) A certificate issued under this chapter does not: (1) exempt the certificate holder from obtaining other state or federal permits or licenses; or (2) authorize the start-up of site activities that require other permits or licenses. Sec. 135.103. ISSUANCE OF CERTIFICATE. (a) Not later than the 30th day after the date the commission receives an application containing the information required by Section 135.102, the application fee, and a bond or alternate form of financial security as required by Subchapter D, the commission shall: (1) issue a certificate of registration to the applicant entitling the applicant to engage in extraction operations on the land described in the application; or (2) deny the certificate and provide the applicant a written statement explaining the reason for denial of the certificate. (b) The commission may not give public notice or hold a public hearing before issuing a certificate of registration. Sec. 135.104. TERM OF CERTIFICATE. A certificate of registration expires on the 10th anniversary of the date of issuance. Sec. 135.105. RENEWAL OF CERTIFICATE. A certificate holder may renew an unexpired certificate of registration by paying a renewal fee of $200 to the commission before the expiration date of the certificate. Sec. 135.106. RECLAMATION REQUIREMENTS. A certificate of registration must require that the extraction operation meet the applicable reclamation requirements of this chapter and commission rules adopted under this chapter before the commission may release the full amount of the bond or alternate form of security for the certificate term. Sec. 135.107. TRANSFER OF CERTIFICATE. (a) A certificate holder must provide written notice to the commission not later than the 30th day before the date the certificate holder transfers a certificate of registration. The notice must: (1) include the name of the individual or entity to whom the certificate holder proposes to transfer the certificate; and (2) be accompanied by a bond or alternate form of financial security as required by Subchapter D, provided by the individual or entity to whom the certificate holder proposes to transfer the certificate. (b) A certificate holder may transfer a certificate of registration on or after the 30th day after the date the operator provides notice under Subsection (a) unless the commission before that day notifies the certificate holder that the transfer is disapproved. (c) On transfer of the certificate: (1) the new certificate holder assumes all obligations of the former operator with respect to the extraction operation covered by the certificate; (2) the former certificate holder is released from all obligations with respect to the extraction operation covered by the certificate; and (3) the commission shall return to the former certificate holder the bond or alternate form of financial security provided by the former certificate holder. Sec. 135.108. AMENDMENT OF CERTIFICATE. (a) On receipt of an application, the commission may amend a certificate of registration to cover additional land that is in the immediate vicinity of the extraction area for which the certificate was issued, including land that is not contiguous to the extraction operation but is within one mile of the closest point of the boundary for which the certificate was issued. An amendment application fee of $200 must be submitted to the commission with the application to amend the certificate. (b) An application to amend a certificate of registration must describe: (1) the additional land to be covered by the certificate; (2) the extraction operations to be conducted on the land; and (3) the reclamation plan for the additional land. (c) The application to amend a certificate of registration must include a new or revised bond or additional alternate form of financial security to cover the additional land. (d) The filing of an application to amend a certificate of registration does not affect: (1) the authority granted under the certificate to be amended; or (2) the term of the certificate to be amended. (e) Not later than the 30th day after the date the commission receives a completed application to amend a certificate of registration, the commission shall: (1) issue an amended certificate of registration to the certificate holder entitling the certificate holder to engage in the extraction operations identified in the amendment application; or (2) provide the certificate holder with a written statement explaining the reason for denial of the amendment application. (f) The commission may not give public notice or hold a public hearing before issuing an amended certificate of registration. Sec. 135.109. TEMPORARY VARIANCES. (a) The director may, for compelling reasons and good cause shown, grant a temporary variance from the requirements of any certificate of registration issued by the commission. (b) The variance may not exceed a period of 90 days unless a longer period is justified by circumstances beyond the applicant's control. The commission may grant a request to extend a variance at any time before the expiration date of the variance. (c) The commission may not give public notice or hold a public hearing before granting or denying a temporary variance request. (d) In considering any request for a variance, the director shall consider: (1) the environmental and public health and safety effects of the temporary variance; and (2) any economic advantage obtained by the applicant requesting the variance over other similarly situated facilities operating in accordance with similar permit conditions that did not request a variance. (e) In addition, the director may take into account whether: (1) strict compliance with the certificate of registration or reclamation plan is inappropriate because of conditions beyond the control of the certificate holder requesting the variance; (2) strict compliance would result in substantial curtailment or closing down of a business, plant, or operation; and (3) the variance request is prompted by recurrent or unavoidable compliance problems.
[Sections 135.110-135.150 reserved for expansion]
SUBCHAPTER D. BOND OR ALTERNATE FORM OF FINANCIAL SECURITY
Sec. 135.151. BOND REQUIRED. (a) An application for a certificate of registration must be accompanied by a bond on a form prescribed by the commission, payable to the state, and conditioned on the operator's compliance with the requirements of this chapter and rules adopted or orders issued by the commission under this chapter for the extraction operation. (b) A bond must be signed by the operator as principal and by a good and sufficient surety licensed to do business in this state. Sec. 135.152. AMOUNT OF BOND. A bond must be in the amount of $1,000 for each acre of proposed affected land as provided by the application plan for the proposed extraction operation. Sec. 135.153. TERM OF BOND. (a) A bond remains in effect for a certificate holder until the commission determines that the extraction operation has been reclaimed in accordance with this chapter and commission rules unless the certificate of registration is transferred in accordance with Section 135.107. (b) The commission may release a part of the amount of the bond if the commission determines that part of an extraction operation site has been reclaimed in accordance with this chapter. Sec. 135.154. CANCELLATION OF BOND. The surety on a bond may not cancel the bond until the commission gives written notice that a substitute bond has been accepted or that the bond is no longer required. Sec. 135.155. SUBSTITUTION OF SURETY. (a) If the surety on a bond ceases to do business in this state or the surety's license to do business is suspended or revoked, the certificate holder, after receiving notice from the commission, shall substitute another good and sufficient surety licensed to do business in this state not later than the 30th day after receiving the notice. (b) If a certificate holder fails to substitute sureties as required by Subsection (a), the certificate holder is in violation of this chapter, and the commission may suspend the certificate holder's certificate of registration until the substitution is made. (c) The certificate holder may file a substitute bond or alternate form of financial security with the commission and request that the previously approved bond or alternate form of security be returned on approval of the substitute by the commission. Sec. 135.156. ALTERNATE FORM OF FINANCIAL SECURITY. In lieu of filing a bond, an operator may deposit cash, government securities, a certificate of deposit, or an irrevocable letter of credit with the commission in an amount equal to the amount of a bond required by Section 135.152, on terms prescribed by the commission. Sec. 135.157. APPLICATION FOR RELEASE OF BOND OR ALTERNATE FORM OF FINANCIAL SECURITY. (a) An operator may file an application with the commission requesting the release of all or part of the bond or alternate form of financial security. (b) The application requesting release of the bond must state the acreage and describe the type of and the approximate dates on which reclamation work was performed and the results achieved as they relate to the certificate holder's reclamation plan.
[Sections 135.158-135.200 reserved for expansion]
SUBCHAPTER E. CONDUCT OF EXTRACTION OPERATIONS
Sec. 135.201. MINIMUM DISTANCE FROM PIT PERIMETER TO PROPERTY LINE. (a) An extraction pit perimeter must be located at least: (1) 50 feet from the nearest property line control boundary if the pit high wall depth is 10 feet or less; or (2) 100 feet from the nearest property line control boundary if the pit high wall depth is greater than 10 feet. (b) For purposes of this section, the pit depth is determined by measuring the vertical distance from the toe of the high wall slope to the pit perimeter elevation. (c) This section does not apply if the certificate holder of the extraction operation for which the certificate was issued obtains written consent from each adjacent property owner agreeing to disturbance closer than allowed under Subsection (a)(1) or (a)(2). Adjacent property includes rights-of-way. Sec. 135.202. IDENTIFICATION SIGNS AND MARKERS. (a) The perimeter of the certificate area must be clearly marked on the ground at all times using metal posts, stakes, or a similar device projecting a minimum of 36 inches aboveground and painted orange. These markings must remain in place until the operator has reclaimed the site and obtained full bond release from the commission. (b) The certificate holder shall protect the public from the dangers inherent in an extraction operation by restricting access to the site and posting adequate warning signs. (c) Identification signs must: (1) be displayed at each point of access to the certificate area from public roads; (2) show the current certificate of registration identification number and the name, business address, and telephone number of the certificate holder; and (3) be retained and maintained until after full release of the bond from the commission.
[Sections 135.203-135.250 reserved for expansion]
SUBCHAPTER F. RECLAMATION
Sec. 135.251. RECLAMATION PLAN. (a) A reclamation plan submitted as part of an application for a certificate of registration must specify: (1) the number of acres estimated to be affected by the proposed extraction operation during: (A) the 10-year certificate term; and (B) the life of the operation; and (2) the estimated year in which the extraction operation will cease extraction of structural clay and brick raw materials. (b) A reclamation plan must include: (1) a map showing the projected affected land for extraction of structural clay and brick raw materials during the 10-year certificate of registration term; (2) a map showing the projected affected land for extraction of structural clay and brick raw materials during the life of the extraction operation that also describes the existing land of any area contiguous to any extraction area; (3) a description of how the affected land will be returned to a condition relative to its intended use; and (4) the location and intended use of all land to be affected by the extraction operation during the term of the certificate of registration. (c) Reclamation activities may include land grading, vegetation planting, and surface contour drainage reestablishment in accordance with Sections 135.254 and 135.256. Reclamation activities may not include restrictions on any characteristics of the material used in reestablishing the surface topography, including soil characteristics and fill material permeability, or the comparison of hydrological conditions of the affected land before and after extraction. (d) A certificate holder may amend a reclamation plan at any time, subject to commission approval. Sec. 135.252. ACCESS TO LAND ABOVE BENCH OR HIGH WALL. The operator shall provide at least one suitable route of ingress and egress to land above the bench or high wall if an extraction operation produces a bench or high wall. Sec. 135.253. RESTRICTION OF WATERWAY. An operator may not move overburden in a manner that restricts a waterway unless a drainage may be reconstructed with the approval of each appropriate state or federal agency in accordance with the applicable rules and regulations of the appropriate state or federal agency. The certificate holder shall obtain the necessary approvals. Sec. 135.254. GRADING OF OVERBURDEN. (a) An operator shall: (1) place, grade, and stabilize all overburden removed so as to minimize soil erosion, surface disturbance, and stream sedimentation; and (2) grade all ridges and peaks of overburden created by the extraction operation to a rolling topography traversable by equipment customarily used in connection with the use to be made of the land after reclamation, except that the slope is not required to be reduced to less than the original grade of the area surrounding the pit before mining. (b) This section does not apply to an extraction operation if: (1) the extraction operation is conducted: (A) in the floodplain of a river or stream subject to periodic flooding; or (B) in a wetland as designated by the appropriate state or federal agency; or (2) the pit resulting from the extraction operation is covered by a lake as provided by Section 135.255. (c) Notwithstanding Subsection (a), an operator: (1) is not required to backfill a pit; and (2) may leave boulders in a pit. Sec. 135.255. CONSTRUCTION OF DAM. An operator may construct a dam to form a lake resulting from an extraction operation. The certificate holder shall comply with applicable regulations of other agencies for the construction of a dam. Sec. 135.256. REVEGETATION. Revegetation of land affected by an extraction operation is not required if: (1) the chemical or physical characteristics of the soil seriously inhibit plant growth; (2) the land is to be covered by a permanent lake or pond; or (3) the use of land following the extraction operation is one that does not warrant establishment of vegetation.
[Sections 135.257-135.300 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 135.301. IMPOSITION OF PENALTY. The commission shall impose an administrative penalty on a certificate holder for an extraction operation who violates this chapter or a rule adopted or order issued under this chapter. The certificate holder may continue to operate an extraction operation when a penalty has been imposed by the commission in accordance with this chapter. Sec. 135.302. AMOUNT OF PENALTY. The amount of the penalty is not less than $100 or more than $1,000 for each act of violation. The commission shall develop a point system to determine the amount of the penalty. Sec. 135.303. NOTICE OF VIOLATION AND PENALTY. (a) If, after investigation of a possible violation and the facts surrounding that possible violation, the commission determines that a violation has occurred, the commission shall give written notice of the violation to the certificate holder alleged to have committed the violation. (b) The notice must: (1) include a brief summary of the alleged violation; (2) state the amount of the proposed administrative penalty; and (3) inform the certificate holder of the right to a hearing on the occurrence of the violation, the amount of the penalty, or both. Sec. 135.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the certificate holder receives the notice, the certificate holder in writing may: (1) accept the determination and the proposed administrative penalty; or (2) make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both. (b) If the certificate holder accepts the determination and proposed penalty, the commission by order shall approve the determination and impose the proposed penalty. Sec. 135.305. HEARING. (a) If the certificate holder requests a hearing or fails to respond in a timely manner to the notice, the commission shall set a hearing and give written notice of the hearing to the certificate holder. The commission may employ a hearings officer to hold the hearing. (b) The hearings officer shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Sec. 135.306. DECISION BY COMMISSION. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the commission by order may: (1) find that a violation occurred and impose a penalty; or (2) find that a violation did not occur. (b) The notice of the commission's order given to the certificate holder must include a statement of the right of the certificate holder to judicial review of the order. Sec. 135.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Not later than the 30th day after the date the commission's order becomes final, the certificate holder shall: (1) pay the penalty; or (2) file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both. Sec. 135.308. STAY OF ENFORCEMENT OF PENALTY. (a) Within the 30-day period prescribed by Section 135.307, a certificate holder who files a petition for judicial review may: (1) stay enforcement of the penalty by: (A) paying the penalty to the court for placement in an escrow account; or (B) giving the court a supersedeas bond approved by the court that: (i) is for the amount of the penalty; and (ii) is effective until all judicial review of the commission's order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of an authorized representative of the certificate holder stating that the certificate holder is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the commission by certified mail. (b) If the commission receives a copy of an affidavit under Subsection (a)(2), the commission may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The certificate holder who files an affidavit has the burden of proving that the certificate holder is financially unable to pay the penalty and to give a supersedeas bond. Sec. 135.309. COLLECTION OF PENALTY. (a) If the certificate holder does not pay the penalty and the enforcement of the penalty is not stayed, the penalty may be collected. (b) The attorney general may sue to collect the penalty. (c) A penalty collected under this subchapter shall be deposited to the credit of the Texas structural clay and brick raw materials safety and reclamation account in the general revenue fund. Sec. 135.310. DECISION BY COURT. (a) If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the certificate holder to pay the full or reduced amount of the penalty. (b) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed. Sec. 135.311. REMITTANCE OF PENALTY AND INTEREST. (a) If the certificate holder paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the certificate holder. (b) The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. (c) The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. Sec. 135.312. RELEASE OF BOND. (a) If the certificate holder gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond. (b) If the certificate holder gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the certificate holder pays the reduced amount. Sec. 135.313. ADMINISTRATIVE PROCEDURE. A proceeding to impose the penalty is considered to be a contested case under Chapter 2001, Government Code.
[Sections 135.314-135.350 reserved for expansion]
SUBCHAPTER H. RECLAMATION ACCOUNT
Sec. 135.351. TEXAS STRUCTURAL CLAY AND BRICK RAW MATERIALS SAFETY AND RECLAMATION ACCOUNT. (a) The Texas structural clay and brick raw materials safety and reclamation account is an account in the general revenue fund that may be appropriated only for the purpose of undertaking corrective or enforcement action under this chapter. (b) The commission shall deposit the amount recovered on a bond or alternate form of financial security as required by Subchapter D or an administrative penalty collected under Subchapter G to the credit of the Texas structural clay and brick raw materials safety and reclamation account. SECTION 2. (a) This Act takes effect September 1, 2003. (b) Not later than March 1, 2004, the Railroad Commission of Texas shall adopt rules as necessary to implement this Act. (c) Notwithstanding Section 135.101, Natural Resources Code, as added by this Act, an operator may begin conducting a structural clay and brick raw materials extraction operation in this state on or after the effective date of this Act and before the Railroad Commission of Texas adopts rules as provided by Subsection (b) of this section without obtaining a certificate of registration for that operation from the commission under Chapter 135, Natural Resources Code, as added by this Act. Not later than 120 days after the commission adopts rules, an operator described by this subsection must file an application for a certificate of registration under Section 135.102, Natural Resources Code, as added by this Act. An operator who files an application accompanied by a reclamation plan may continue conducting the operation under this subsection until the commission approves or denies the application.