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.