87R14157 TYPED
 
  By: Biedermann H.B. No. 4341
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the transfer of the regulation of aggregate production
  operations from the Texas Commission on Environmental Quality to
  the Railroad Commission of Texas on delegation by the United States
  Environmental Protection Agency; 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 the site
  from which aggregates are being or have been removed or extracted
  from the earth, including the entire areas of extraction, stripped
  areas, haulage ramps, and the land on which the plant processing the
  raw materials is located, exclusive of any land owned or leased by
  the responsible party not being currently used in the production of
  aggregates. For the purposes of this chapter, the term "aggregate
  production operation" does not include:
                     (A)  a site at which the materials that are being
  removed or extracted from the earth are used or processed at the
  same site or at a related site under the control of the same
  responsible party for the production of cement or lightweight
  aggregates, or in a lime kiln;
                     (B)  a temporary site that is being used solely to
  provide aggregate products for use in a public works project
  involving the Texas Department of Transportation or a local
  governmental entity;
                     (C)  an extraction area from which all raw
  material is extracted for use as fill or for other construction uses
  at the same or a contiguous site;
                     (D)  a site at which the materials that are being
  removed or extracted from the earth are used or processed for use in
  the construction, modification, or expansion of a solid waste
  facility at the site or another location; or
                     (E)  a site at which:
                           (i)  the materials being removed or
  extracted from the earth are specialty or terrazzo-type stone
  removed or extracted exclusively for decorative or artistic uses;
  and
                           (ii)  the portion of the specialty or
  terrazzo-type stone horizon that is exposed for current production
  for commercial sale in the site does not exceed five acres.
               (3)  "Aggregates" means any commonly recognized
  construction material originating from an aggregate production
  operation from which an operator extracts dimension stone, crushed
  and broken limestone, crushed and broken granite, crushed and
  broken stone not elsewhere classified, construction sand and
  gravel, industrial sand, dirt, soil, or caliche. For purposes of
  this chapter, the term "aggregates" does not include clay or shale
  mined for use in manufacturing structural clay products.
               (4)  "Commission" means the Railroad Commission of
  Texas.
               (5)  "Operator" means any person engaged in and
  responsible for the physical operation and control of the
  extraction of aggregates.
               (6)  "Owner" means any person having title, wholly or
  partly, to the land on which an aggregate production operation
  exists or has existed.
               (7)  "Responsible party" means the operator, lessor, or
  owner who is responsible for the overall function and operation of
  an aggregate production operation.
         Sec. 135.0002.  EFFECTIVE DATE; DELEGATION. This chapter
  takes effect on the date the United States Environmental Protection
  Agency delegates to the commission authority to issue the permits
  described by Section 382.069, Health and Safety Code, and Section
  26.133, Water 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:
               (1)  at least once every three years
         (d)  The commission may conduct unannounced inspections in
  accordance with commission policy.
         (e)  Except as provided by Subsection (g), 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. The
  applicable regulatory requirements include requirements related
  to:
               (1)  individual water quality permits issued under
  Chapter 26, Water Code;
               (2)  a general water quality permit issued under
  Chapter 26, Water Code;
               (3)  air quality permits issued under Chapter 382,
  Health and Safety Code; and
               (4)  other regulatory requirements applicable to
  active aggregate production operations under the jurisdiction of
  the commission.
         (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.  REGISTRATION 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 $10,000.
         (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 $20,000
  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 $40,000 for an aggregate
  production operation that is operated in three or more years
  without being registered.
  SUBCHAPTER D. PERMITS
         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.  RECLAMATION PERMIT APPLICATION AND
  ISSUANCE. (a) The commission by rule shall establish requirements
  for submitting a reclamation permit application.
         (b)  Chapter 2001, Government Code, applies to a reclamation
  permit application under this subchapter.
         (c)  On the basis of a complete application for a reclamation
  permit, the commission shall approve, require modification of, or
  deny a permit application.
         (d)  An applicant for a reclamation permit has the burden of
  establishing that the application complies with this subchapter and
  rules adopted under this chapter.
         Sec. 135.0154.  RECLAMATION PERMIT REVISIONS. (a) The
  commission by rule shall require that a reclamation 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 reclamation permit revision application is subject to
  the same requirements for issuance as an initial permit.
         Sec. 135.0155.  PERMITS FOR EMISSIONS AND DISCHARGES. A
  permit issued under Section 382.069, Health and Safety Code, or
  Section 26.133, Water Code, is considered to be a permit issued
  under this subchapter for the purposes of Sections 135.0156 and
  135.0157.
         Sec. 135.0156.  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. 135.0157.  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
  135.0156.
         (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. 135.0158.  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 C, Chapter 382, Health and Safety
  Code, is amended by adding Section 382.069 to read as follows:
         Sec. 382.069.  DUTIES OF RAILROAD COMMISSION REGARDING
  AGGREGATE PRODUCTION OPERATIONS. (a) The Railroad Commission of
  Texas may issue a permit for emissions of air contaminants from an
  aggregate production operation on delegation to the railroad
  commission of authority for regulating those emissions. Any
  emissions from an aggregate production operation under this section
  must meet the standards established by the Texas Commission on
  Environmental Quality under this chapter.
         (b)  The Railroad Commission of Texas may charge a fee for a
  permit issued under this section in the manner provided by Section
  382.062 for the Texas Commission on Environmental Quality to charge
  fees.
         SECTION 3.  Subchapter D, Chapter 26, Water Code, is amended
  by adding Section 26.133 to read as follows:
         Sec. 26.133.  DUTIES OF RAILROAD COMMISSION REGARDING
  AGGREGATE PRODUCTION OPERATIONS. (a) The Railroad Commission of
  Texas may issue a permit for the discharge of a pollutant or waste
  into water in this state from an aggregate production operation on
  delegation to the railroad commission of NPDES authority for those
  discharges. Any discharge of a pollutant or waste from an aggregate
  production operation into water in this state under this section
  must meet the water quality standards established by the Texas
  Commission on Environmental Quality under this chapter.
         (b)  The Railroad Commission of Texas may charge a fee for a
  permit issued under this section in the manner provided by Section
  5.701(c) for the Texas Commission on Environmental Quality to
  charge fees.
         SECTION 4.  Subchapter A, Chapter 28A, Water Code, is
  amended by adding Section 28A.002 to read as follows:
         Sec. 28A.002.  EXPIRATION. This chapter expires on the date
  Chapter 135, Natural Resources Code, becomes effective.
         SECTION 5.  (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:
               (1)  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;
  and
               (2)  as applicable, the requirements of Sections 6 and
  7 of this Act are met.
         (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 director of the Railroad Commission of
  Texas may in the memorandum of understanding under this section
  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.
         (e)  The Railroad Commission of Texas and the Texas
  Commission on Environmental Quality shall use project management
  principles developed by the Project Management Institute as the
  framework to create the transfer plan for the memorandum of
  understanding required by this Act and, if the requirements of
  Sections 6 and 7 of this Act have been met, execute the transfer not
  later than September 1, 2023.
         (f)  The Railroad Commission of Texas and the Texas
  Commission on Environmental Quality shall each create an internal
  team of employees to create the transfer plan for the memorandum of
  understanding required by this Act. The teams shall:
               (1)  establish a clear vision for the transfer;
               (2)  provide instructions and answers in response to
  any questions from other staff of the Railroad Commission of Texas
  and the Texas Commission on Environmental Quality about the
  transfer; and
               (3)  jointly write a report that includes:
                     (A)  the rationale for each aspect of the transfer
  plan with key supporting facts and strategic objectives; and
                     (B)  an in-depth review of the history of the
  surface mining programs run by each agency, including agency
  culture and finances.
         (g)  The report required by Subsection (f) of this section
  must be completed and submitted to the executive directors of the
  Railroad Commission of Texas and the Texas Commission on
  Environmental Quality not later than November 1, 2021.
         (h)  Between November 1, 2021, and September 1, 2023, the
  Railroad Commission of Texas team described by Subsection (f) of
  this section shall provide to the commissioners of the Railroad
  Commission of Texas and the Texas Commission on Environmental
  Quality monthly reports that include:
               (1)  lessons learned during the planning and execution
  of the transfer, if any;
               (2)  emerging risks and issues;
               (3)  transfer progress;
               (4)  the number of permit applications received by the
  Railroad Commission of Texas under Chapter 382, Health and Safety
  Code, as amended by this Act, Chapter 135, Natural Resources Code,
  as added by this Act, and Chapter 26, Water Code, as amended by this
  Act, and reviewed as part of a contested case hearing;
               (5)  the amount of time needed for and cost of each
  contested case hearing described by Subdivision (4) of this
  subsection;
               (6)  a list of issues that were resolved or not resolved
  in each contested case hearing described by Subdivision (4) of this
  subsection;
               (7)  the number of permits issued by the Railroad
  Commission of Texas under Chapter 382, Health and Safety Code, as
  amended by this Act, Chapter 135, Natural Resources Code, as added
  by this Act, and Chapter 26, Water Code, as amended by this Act;
               (8)  any changes in rules proposed by the Railroad
  Commission of Texas or the Texas Commission on Environmental
  Quality;
               (9)  the number of inspections conducted under Chapter
  135, Natural Resources Code, as added by this Act;
               (10)  the number of enforcement actions initiated under
  Chapter 135, Natural Resources Code, as added by this Act; and
               (11)  a description of all public outreach measures
  taken by the Railroad Commission of Texas to communicate with the
  public about scientific issues and program risks, such as
  educational meetings with the public and other stakeholders.
         SECTION 6.  (a) In this section, "Clean Air Act permit" means
  a permit issued under Chapter 382, Health and Safety Code.
         (b)  On delegation of Clean Air Act permit authority for
  emissions of air contaminants from aggregate production operations
  to the Railroad Commission of Texas by the United States
  Environmental Protection Agency under Title V of the federal Clean
  Air Act (42 U.S.C. Sections 7661 et seq.), the following are
  transferred from the Texas Commission on Environmental Quality to
  the Railroad Commission of Texas:
               (1)  the powers, duties, functions, programs, and
  activities of the Texas Commission on Environmental Quality
  relating to the regulation of emissions of air contaminants from
  aggregate production operations;
               (2)  any obligations and contracts of the Texas
  Commission on Environmental Quality that are directly related to
  implementing a power, duty, function, program, or activity
  transferred under this section; and
               (3)  all property and records in the custody of the
  Texas Commission on Environmental Quality that are related to a
  power, duty, function, program, or activity transferred under this
  section.
         (c)  Not later than December 1, 2021, the Railroad Commission
  of Texas shall submit to the United States Environmental Protection
  Agency for approval a request to supplement or amend the Clean Air
  Act program to include delegation of permit authority for emissions
  of air contaminants from aggregate production operations.
         (d)  Section 382.069, Health and Safety Code, as added by
  this Act, applies to an application for an authorization for
  emission of air contaminants that is pending on the effective date
  of delegation of Clean Air Act permit authority for emissions of
  air contaminants from aggregate production operations to the
  Railroad Commission of Texas by the United States Environmental
  Protection Agency under Title V of the federal Clean Air Act (42
  U.S.C. Sections 7661 et seq.).
         SECTION 7.  (a) In this section, "NPDES" means National
  Pollutant Discharge Elimination System.
         (b)  On delegation of NPDES permit authority for discharges
  from aggregate production operations to the Railroad Commission of
  Texas by the United States Environmental Protection Agency under
  Section 402(b) of the Federal Water Pollution Control Act (33
  U.S.C. Section 1342(b)), the following are transferred from the
  Texas Commission on Environmental Quality to the Railroad
  Commission of Texas:
               (1)  the powers, duties, functions, programs, and
  activities of the Texas Commission on Environmental Quality
  relating to the regulation of discharges of a pollutant or waste
  from aggregate production operations into water in this state;
               (2)  any obligations and contracts of the Texas
  Commission on Environmental Quality that are directly related to
  implementing a power, duty, function, program, or activity
  transferred under this section; and
               (3)  all property and records in the custody of the
  Texas Commission on Environmental Quality that are related to a
  power, duty, function, program, or activity transferred under this
  section.
         (c)  Not later than December 1, 2022, the Railroad Commission
  of Texas shall submit to the United States Environmental Protection
  Agency for approval a request to supplement or amend the Texas
  Pollutant Discharge Elimination System program to include
  delegation of NPDES permit authority for discharges of a pollutant
  or waste from aggregate production operations.
         (d)  Section 26.133, Water Code, as added by this Act,
  applies to an application for an authorization for a discharge of a
  pollutant or waste into water in this state that is pending on the
  effective date of delegation of National Pollutant Discharge
  Elimination System permit authority for discharges of a pollutant
  or waste from aggregate production operations to the Railroad
  Commission of Texas by the United States Environmental Protection
  Agency under Section 402(b) of the Federal Water Pollution Control
  Act (33 U.S.C. Section 1342(b)).
         SECTION 8.  This Act takes effect September 1, 2021.