Bill Text: TX HB4341 | 2021-2022 | 87th Legislature | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2021-03-29 - Referred to Environmental Regulation [HB4341 Detail]

Download: Texas-2021-HB4341-Introduced.html

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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.