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.