80R20245 MSE-D

By: Wentworth S.B. No. 822

Substitute the following for S.B. No. 822:

By: Pickett C.S.S.B. No. 822

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the atmosphere modification research program and center and the administration of the weather modification and control program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 3, Agriculture Code, is amended by adding Chapter 50C to read as follows:

CHAPTER 50C. ATMOSPHERE MODIFICATION RESEARCH

SUBCHAPTER A. ATMOSPHERE MODIFICATION RESEARCH PROGRAM

Sec. 50C.001. PURPOSE. The atmosphere modification research program is established to increase understanding of precipitation and the ability to control precipitation to decrease the damaging effects of drought, hail, and flooding on the environment and man-made structures.

Sec. 50C.002. PARTICIPATION. The atmosphere modification research program is a competitive research grant program for faculty researchers at Texas public and private institutions of higher education with expertise in weather modification or an atmospheric science.

Sec. 50C.003. ADMINISTRATION OF PROGRAM. The department shall:

(1) administer the atmosphere modification research program;

(2) administer grants for research under the program;

(3) select research proposals submitted for participation in the program by a peer review process;

(4) give preference to multi-institutional and multidisciplinary proposals and proposals with federal or private matching funds; and

(5) adopt rules for the implementation and administration of the program.

Sec. 50C.004. DURATION OF GRANT. A grant made by the department under this chapter shall be for a period of two years and, subject to department review, may be extended for a period of not more than two years.

Sec. 50C.005. REPORT. Not later than October 31 of each year, a participant in the atmosphere modification research program must file with the department an annual report detailing the progress of the participant's project.

Sec. 50C.006. EVALUATION OF PROGRAM. The department shall cause an independent evaluation of the atmosphere modification research program to be conducted by a team of experts not associated with the program or the department during the second year after the program is created and every two years thereafter.

[Sections 50C.007-50C.050 reserved for expansion]

SUBCHAPTER B. ATMOSPHERE MODIFICATION RESEARCH CENTER

Sec. 50C.051. PURPOSE. The department shall establish an atmosphere modification research center at Texas Tech University to conduct basic and applied research designed to increase understanding of precipitation and the ability to control precipitation to decrease the damaging effects of drought, hail, and flooding on the environment and man-made structures.

Sec. 50C.052. PUBLIC FORUM. The atmosphere modification research center must provide a public forum to disseminate research findings and recommendations and to obtain comments from state and local government agencies, business entities, and citizens.

Sec. 50C.053. ATMOSPHERE MODIFICATION RESEARCH CENTER FUND. (a) The atmosphere modification research center fund is created as a trust fund with the comptroller and shall be administered by the department as a trustee on behalf of the center. The fund is composed of:

(1) gifts, grants, and other donations received by the department for the fund;

(2) revenue from operation of the center; and

(3) until September 1, 2013, any amounts appropriated by the legislature for deposit to the credit of the fund from the general revenue fund, and after that date, an amount appropriated by the legislature for deposit to the credit of the fund from the general revenue fund that does not exceed nonstate funding.

(b) Money in the atmosphere modification research center fund may be used only to finance the atmosphere modification research of the center.

Sec. 50C.054. DIRECTOR; STAFF. (a) The board of regents of Texas Tech University shall select a director for the atmosphere modification research center from among the faculty at the university.

(b) The center shall be staffed by Texas Tech University faculty members, research professionals, students, and other personnel as determined by the board of regents of the university.

Sec. 50C.055. SCIENTIFIC ADVISORY BOARD. (a) The department shall establish a scientific advisory board to advise the atmosphere modification research center on research priorities, guidelines, and procedures.

(b) The board shall establish and review metrics to assess the effectiveness of the center's research projects.

Sec. 50C.056. REPORT. The atmosphere modification research center shall file annually with the department and the legislature a report detailing the center's activities, findings, and recommendations.

SECTION 2. Subdivision (5), Section 301.001, Agriculture Code, is amended to read as follows:

(5) "Weather modification and control program" means the research, development, licensing, and permitting and other associated activities to be administered by the department [Texas Department of Licensing and Regulation].

SECTION 3. The heading to Subchapter B, Chapter 301, Agriculture Code, is amended to read as follows:

SUBCHAPTER B. POWERS AND DUTIES OF [TEXAS] DEPARTMENT OF

AGRICULTURE [LICENSING AND REGULATION]

SECTION 4. Section 301.051, Agriculture Code, is amended to read as follows:

Sec. 301.051. RULES. The department [Texas Department of Licensing and Regulation] may adopt rules necessary to:

(1) exercise the powers and perform the duties under this chapter;

(2) establish procedures and conditions for the issuance of licenses and permits under this chapter; and

(3) establish standards and instructions to govern the carrying out of research or projects in weather modification and control that the department [Texas Department of Licensing and Regulation] considers necessary or desirable to minimize danger to health or property.

SECTION 5. Section 301.052, Agriculture Code, is amended to read as follows:

Sec. 301.052. STUDIES; INVESTIGATIONS; HEARINGS. The department [Texas Department of Licensing and Regulation] may make any studies or investigations, obtain any information, and hold any hearings necessary or proper to administer or enforce this chapter or any rules or orders issued under this chapter.

SECTION 6. Section 301.053, Agriculture Code, is amended to read as follows:

Sec. 301.053. ADVISORY COMMITTEES. The department [Texas Department of Licensing and Regulation] may establish advisory committees to advise the department [Texas Department of Licensing and Regulation] and to make recommendations to the department [Texas Department of Licensing and Regulation] concerning legislation, policies, administration, research, and other matters related to the duties, powers, or functions of the department [Texas Department of Licensing and Regulation] under this chapter.

SECTION 7. Section 301.054, Agriculture Code, is amended to read as follows:

Sec. 301.054. PERSONNEL. The department [executive director] may, as provided by the General Appropriations Act, appoint and fix the compensation of any personnel, including specialists and consultants, necessary to perform duties and functions under this chapter.

SECTION 8. Section 301.055, Agriculture Code, is amended to read as follows:

Sec. 301.055. MATERIALS AND EQUIPMENT. The department [Texas Department of Licensing and Regulation] may acquire in the manner provided by law any materials, equipment, and facilities necessary to the performance of its duties and functions under this chapter.

SECTION 9. Section 301.056, Agriculture Code, is amended to read as follows:

Sec. 301.056. INTERSTATE COMPACTS. The department [executive director] may represent the state in matters pertaining to plans, procedures, or negotiations for interstate compacts relating to weather modification and control.

SECTION 10. Section 301.057, Agriculture Code, is amended to read as follows:

Sec. 301.057. CONTRACTS AND COOPERATIVE AGREEMENTS. (a) The department [Texas Department of Licensing and Regulation] may cooperate with public or private agencies to promote the purposes of this chapter.

(b) The department [Texas Department of Licensing and Regulation] may enter into cooperative agreements with the United States or any of its agencies, with counties and municipalities of this state, or with any private or public agencies for conducting weather modification or cloud-seeding operations.

(c) The department [Texas Department of Licensing and Regulation] may represent the state, counties, municipalities, and public and private agencies in contracting with private concerns for the performance of weather modification or cloud-seeding operations.

SECTION 11. Section 301.058, Agriculture Code, is amended to read as follows:

Sec. 301.058. PROMOTION OF RESEARCH AND DEVELOPMENT. (a) In order to assist in expanding the theoretical and practical knowledge of weather modification and control, the department [Texas Department of Licensing and Regulation] shall promote continuous research and development in:

(1) the theory and development of methods of weather modification and control, including processes, materials, and devices related to these methods;

(2) the use of weather modification and control for agricultural, industrial, commercial, and other purposes; and

(3) the protection of life and property during research and operational activities.

(b) The department [Texas Department of Licensing and Regulation with approval of the executive director] may conduct and may contract for research and development activities relating to the purposes of this section.

SECTION 12. Section 301.059, Agriculture Code, is amended to read as follows:

Sec. 301.059. GRANTS AND GIFTS. Subject to any limitations imposed by law, the department [Texas Department of Licensing and Regulation] may accept federal grants, private gifts, and donations from any other source. Unless the use of the money is restricted or subject to any limitations provided by law, the department [Texas Department of Licensing and Regulation] may spend the money for the administration of this chapter.

SECTION 13. Section 301.060, Agriculture Code, is amended to read as follows:

Sec. 301.060. DISPOSITION OF LICENSE AND PERMIT FEES. The department [Texas Department of Licensing and Regulation] shall deposit all license and permit fees in the state treasury.

SECTION 14. Section 301.101, Agriculture Code, is amended to read as follows:

Sec. 301.101. LICENSE AND PERMIT REQUIRED. Except as provided by rule of the department [Texas Department of Licensing and Regulation] under Section 301.102, a person may not engage in activities for weather modification and control:

(1) without a weather modification license and weather modification permit issued by the department; or

(2) in violation of any term or condition of the license or permit.

SECTION 15. Section 301.102, Agriculture Code, is amended to read as follows:

Sec. 301.102. EXEMPTIONS. (a) The department [Texas Department of Licensing and Regulation] by rule, to the extent it considers exemptions practical, shall provide for exempting the following activities from the license and permit requirements of this chapter:

(1) research, development, and experiments conducted by state and federal agencies, institutions of higher learning, and bona fide nonprofit research organizations;

(2) laboratory research and experiments;

(3) activities of an emergent nature for protection against fire, frost, sleet, or fog; and

(4) activities normally conducted for purposes other than inducing, increasing, decreasing, or preventing precipitation or hail.

(b) The department [Texas Department of Licensing and Regulation] by rule may modify or revoke an exemption.

SECTION 16. Subsection (a), Section 301.103, Agriculture Code, is amended to read as follows:

(a) The department [Texas Department of Licensing and Regulation], in accordance with the rules adopted under this chapter, shall issue a weather modification license to each applicant who:

(1) pays the license fee; and

(2) demonstrates, to the satisfaction of the department [Texas Department of Licensing and Regulation], competence in the field of meteorology that is reasonably necessary to engage in weather modification and control activities.

SECTION 17. Section 301.106, Agriculture Code, is amended to read as follows:

Sec. 301.106. RENEWAL LICENSE. At the expiration of the license period, the department [Texas Department of Licensing and Regulation] shall issue a renewal license to each applicant who pays the license fee and who has the qualifications necessary for issuance of an original license.

SECTION 18. Section 301.107, Agriculture Code, is amended to read as follows:

Sec. 301.107. ISSUANCE OF PERMIT. (a) The department [Texas Department of Licensing and Regulation], in accordance with the rules adopted under this chapter and on a finding that the weather modification and control operation as proposed in the permit application will not significantly dissipate the clouds and prevent their natural course of developing rain in the area in which the operation is to be conducted to the material detriment of persons or property in that area, and after approval at an election if governed by Subchapter D, may issue a weather modification permit to each applicant who:

(1) holds a valid weather modification license;

(2) pays the permit fee;

(3) publishes a notice of intention and submits proof of publication as required by this chapter; and

(4) furnishes proof of financial responsibility.

(b) The department [Texas Department of Licensing and Regulation] shall, if requested by at least 25 persons, hold at least one public hearing in the area where the operation is to be conducted prior to the issuance of a permit.

SECTION 19. Section 301.109, Agriculture Code, is amended to read as follows:

Sec. 301.109. SCOPE OF PERMIT. A separate permit is required for each operation. If an operation is to be conducted under contract, a permit is required for each separate contract. The department [Texas Department of Licensing and Regulation] may not issue a permit for a contracted operation unless it covers a continuous period not to exceed four years.

SECTION 20. Section 301.113, Agriculture Code, is amended to read as follows:

Sec. 301.113. PROOF OF PUBLICATION; AFFIDAVIT. The applicant shall file proof of the publication, together with the publishers' affidavits, with the department [Texas Department of Licensing and Regulation] during the 15-day period immediately after the date of the last publication.

SECTION 21. Section 301.114, Agriculture Code, is amended to read as follows:

Sec. 301.114. PROOF OF FINANCIAL RESPONSIBILITY. Proof of financial responsibility is made by showing to the satisfaction of the department [Texas Department of Licensing and Regulation] that the license holder has the ability to respond in damages for liability that might reasonably result from the operation for which the permit is sought.

SECTION 22. Section 301.115, Agriculture Code, is amended to read as follows:

Sec. 301.115. MODIFICATION OF PERMIT. The department [Texas Department of Licensing and Regulation] may modify the terms and conditions of a permit if:

(1) the license holder is first given notice and a reasonable opportunity for a hearing on the need for a modification; and

(2) it appears to the department [Texas Department of Licensing and Regulation] that a modification is necessary to protect the health or property of any person.

SECTION 23. Section 301.116, Agriculture Code, is amended to read as follows:

Sec. 301.116. SCOPE OF ACTIVITY. Once a permit is issued, the license holder shall confine the license holder's activities substantially within the limits of time and area specified in the notice of intention, except to the extent that the limits are modified by the department [Texas Department of Licensing and Regulation]. The license holder shall comply with any terms and conditions of the permit as originally issued or as subsequently modified by the department [Texas Department of Licensing and Regulation].

SECTION 24. Section 301.117, Agriculture Code, is amended to read as follows:

Sec. 301.117. RECORDS AND REPORTS. (a) A license holder shall keep a record of each operation conducted under a permit, showing:

(1) the method employed;

(2) the type of equipment used;

(3) the kind and amount of each material used;

(4) the times and places the equipment is operated;

(5) the name and mailing address of each individual, other than the license holder, who participates or assists in the operation; and

(6) other information required by the department [Texas Department of Licensing and Regulation].

(b) The department [Texas Department of Licensing and Regulation] shall require written reports for each operation, whether the operation is exempt or conducted under a permit. A license holder shall submit a written report at the time and in the manner required by the department [Texas Department of Licensing and Regulation].

(c) All information on an operation shall be submitted to the department [Texas Department of Licensing and Regulation] before it is released to the public.

(d) The reports and records in the custody of the department [Texas Department of Licensing and Regulation] shall be kept open for public inspection.

SECTION 25. Subsection (b), Section 301.151, Agriculture Code, is amended to read as follows:

(b) The department [Texas Department of Licensing and Regulation] by rule shall define hail suppression as used in this subchapter, using the most current scientifically accepted technological concepts.

SECTION 26. Subsection (c), Section 301.152, Agriculture Code, is amended to read as follows:

(c) If the application for a permit does not describe the operational area, the department [Texas Department of Licensing and Regulation] may designate an area located inside and up to eight miles from the limits of the target area described in the application as the operational area of the permit for the purposes of this chapter.

SECTION 27. Section 301.153, Agriculture Code, is amended to read as follows:

Sec. 301.153. DATE OF PERMIT ISSUANCE; PERMIT AREA. A permit may not be issued by the department [Texas Department of Licensing and Regulation] before the end of the 30-day period immediately following the first publication of notice and then only in:

(1) those counties or parts of counties in the target area or operational area in which the majority of the qualified voters voting have approved or have not disapproved the issuance of a permit if an election has been held; or

(2) any county or part of a county in the target area or operational area if no petition for an election has been filed.

SECTION 28. Subsection (d), Section 301.156, Agriculture Code, is amended to read as follows:

(d) Immediately on calling the election, the clerk of each county within the target area or operational area shall notify the department [executive director] of the date of the election.

SECTION 29. Subsection (d), Section 301.162, Agriculture Code, is amended to read as follows:

(d) The commissioners court of each county holding an election shall send certified copies of the results of the election to the department [executive director] not later than 24 hours after the results are declared under Subsection (a).

SECTION 30. Subsections (b), (c), and (d), Section 301.163, Agriculture Code, are amended to read as follows:

(b) If a majority of the qualified voters voting in the election precincts any part of which are located within the target area vote in favor of issuance of the permit, the department [Texas Department of Licensing and Regulation] may issue the permit as provided in this subchapter, except that if a majority of the qualified voters voting in any of the following areas vote against issuance of the permit, that area is excluded from the coverage of the permit:

(1) an election precinct any part of which is located in the operational area; or

(2) an election precinct located wholly within the target area and contiguous with its outer boundary.

(c) If the department [Texas Department of Licensing and Regulation] finds that a weather modification and control operation is still feasible, a permit may be issued covering areas in which no election is requested or areas in which the voters give their approval as provided by this subchapter.

(d) If a permit is denied under Subsection (a), an application for a permit covering all or part of the same target area or operational area that was denied may not be considered, and for a period of two years following the date of the election, a permit under that application may not be issued by the department [Texas Department of Licensing and Regulation] and an election may not be held under this chapter.

SECTION 31. Section 301.165, Agriculture Code, is amended to read as follows:

Sec. 301.165. MONITOR OF PROGRAM. The department [Texas Department of Licensing and Regulation] may monitor any program under conditions the department [Texas Department of Licensing and Regulation] determines advisable.

SECTION 32. Subsection (b), Section 301.166, Agriculture Code, is amended to read as follows:

(b) If the county voters voting in the election disapprove the issuance of permits authorizing hail suppression, the department [Texas Department of Licensing and Regulation] may not issue a permit covering the county until the proposition has been approved at a subsequent election.

SECTION 33. Subsection (a), Section 301.167, Agriculture Code, is amended to read as follows:

(a) If any county or part of a county has disapproved the issuance of a permit at a previous election held under this subchapter, that county or part of a county may not be included in any permit issued by the department [Texas Department of Licensing and Regulation] until the voters of that county or part of a county have participated in a subsequent election at which a permit is approved.

SECTION 34. Section 301.201, Agriculture Code, is amended to read as follows:

Sec. 301.201. PENALTIES. A person who violates this chapter is subject to Section 12.020 [Subchapters F and G, Chapter 51, Occupations Code,] in the same manner as a person regulated by the department [Texas Department of Licensing and Regulation] under other law is subject to that section [those subchapters].

SECTION 35. Section 301.203, Agriculture Code, is amended to read as follows:

Sec. 301.203. DEFENSE EXCLUDED. Unless otherwise provided by this chapter, the fact that a person holds a permit issued under this chapter [by the Texas Department of Licensing and Regulation] does not relieve that person from liability for the violation of this chapter or a rule adopted or order or permit issued under this chapter.

SECTION 36. Section 301.252, Agriculture Code, is amended to read as follows:

Sec. 301.252. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT. After notice and hearing, the department [Texas Department of Licensing and Regulation] may revoke or suspend a permit issued under this chapter on any of the following grounds:

(1) violating any term or condition of the permit, and revocation or suspension is necessary to maintain the quality of water or the quality of air in the state, or to otherwise protect human health and the environment consistent with the objectives of the law within the jurisdiction of the department or another agency of this state [Texas Department of Licensing and Regulation];

(2) having a record of environmental violations in the preceding five years at the permitted site;

(3) causing a discharge, release, or emission contravening a pollution control standard [set by the Texas Department of Licensing and Regulation] or contravening the intent of a law within the jurisdiction of the department or another agency of this state [Texas Department of Licensing and Regulation];

(4) misrepresenting or failing to disclose fully all relevant facts in obtaining the permit or misrepresenting to the department [Texas Department of Licensing and Regulation] any relevant fact at any time;

(5) being indebted to the state for fees, payment of penalties, or taxes imposed by [the] law [within the department's jurisdiction];

(6) failing to ensure that the management of the permitted facility conforms or will conform to the law within the jurisdiction of the department or another agency of this state [Texas Department of Licensing and Regulation];

(7) abandoning the permit or operations under the permit;

(8) the finding by the department [Texas Department of Licensing and Regulation] that a change in conditions requires elimination of the discharge authorized by the permit; or

(9) failing to continue to possess qualifications necessary for the issuance of the permit.

SECTION 37. Subsection (b), Section 301.253, Agriculture Code, is amended to read as follows:

(b) After notice and hearing, the department [Texas Department of Licensing and Regulation] may suspend or revoke a license, place on probation a person whose license has been suspended, reprimand a license holder, or refuse to renew or reissue a license on any of the following grounds:

(1) having a record of environmental violations in the preceding five years at a permit site;

(2) committing fraud or deceit in obtaining the license;

(3) demonstrating gross negligence, incompetency, or misconduct while acting as license holder;

(4) making an intentional misstatement or misrepresentation of fact in information required to be maintained or submitted to the department [Texas Department of Licensing and Regulation] by the license holder;

(5) failing to keep and transmit records as required by a law within the jurisdiction of the department [Texas Department of Licensing and Regulation];

(6) being indebted to the state for a fee, payment of a penalty, or a tax imposed by [a] law [within the jurisdiction of the Texas Department of Licensing and Regulation]; or

(7) failing to continue to possess qualifications necessary for the issuance of the license.

SECTION 38. Section 301.254, Agriculture Code, is amended to read as follows:

Sec. 301.254. PROCEDURES FOR NOTICE AND HEARINGS. The department [Texas Department of Licensing and Regulation] by rule shall establish procedures for public notice and any public hearing under this subchapter.

SECTION 39. Section 301.255, Agriculture Code, is amended to read as follows:

Sec. 301.255. HEARINGS. A hearing under this subchapter shall be conducted in accordance with the hearing rules adopted by the department [Texas Department of Licensing and Regulation] and the applicable provisions of Chapter 2001, Government Code.

SECTION 40. Section 301.256, Agriculture Code, is amended to read as follows:

Sec. 301.256. REVOCATION OR SUSPENSION BY CONSENT. If a permit holder or license holder requests or consents to the revocation or suspension of the permit or license, the department [executive director] may revoke or suspend the permit or license without a hearing.

SECTION 41. Section 301.257, Agriculture Code, is amended to read as follows:

Sec. 301.257. OTHER RELIEF. A proceeding brought by the department [Texas Department of Licensing and Regulation] under this subchapter does not affect the authority of the department [Texas Department of Licensing and Regulation] to bring suit for injunctive relief or a penalty, or both, under this chapter.

SECTION 42. Section 302.001, Agriculture Code, is amended to read as follows:

Sec. 302.001. FINDINGS. The legislature finds that weather modification and control activities may have a significant impact on Texas agriculture. The legislature further finds that the department [Texas Department of Licensing and Regulation] is the proper state agency to administer grants to political subdivisions for weather modification and control activities.

SECTION 43. Section 302.002, Agriculture Code, is amended to read as follows:

Sec. 302.002. DEFINITION [DEFINITIONS]. In this chapter,[:

[(1) "Commission" means the Texas Commission of Licensing and Regulation.

[(2) "Department" means the Texas Department of Licensing and Regulation.

[(3)] "weather [Weather] modification and control" means changing or controlling, or attempting to change or control, by artificial methods the natural development of atmospheric cloud forms or precipitation forms that occur in the troposphere.

SECTION 44. Subdivision (1), Section 301.001, Agriculture Code, is repealed.

SECTION 45. (a) On October 1, 2007:

(1) all duties, obligations, rights, contracts, records, assets, funds, appropriations, and property, excluding real property and office space, of the Texas Department of Licensing and Regulation that relate primarily to weather modification and control are transferred to the Department of Agriculture;

(2) all rules, policies, forms, procedures, and decisions of the Texas Department of Licensing and Regulation that relate primarily to weather modification and control are continued in effect as rules, policies, forms, procedures, and decisions of the Department of Agriculture until superseded by a rule or other appropriate action of the Department of Agriculture; and

(3) the full-time employees of the Texas Department of Licensing and Regulation who primarily perform duties related to weather modification and control become employees of the Department of Agriculture.

(b) Not later than September 21, 2007, the Texas Department of Licensing and Regulation shall enter into a memorandum of understanding with the Department of Agriculture to implement this section.

SECTION 46. This Act takes effect September 1, 2007.