TX NATURAL RESOURCES CODE

TITLE 3. OIL AND GAS

SUBTITLE A. ADMINISTRATION

CHAPTER 134. TEXAS SURFACE COAL MINING AND RECLAMATION ACT

SUBCHAPTER H. ENFORCEMENT



§ 134.161. CONDITION, PRACTICE, OR VIOLATION CREATING IMMINENT DANGER OR CAUSING IMMINENT HARM.
     (a) The commission or
      its authorized representative shall immediately order the cessation of surface coal mining operations or the relevant part of those operations if, after an inspection, the commission or its authorized representative determines that:
          (1) a condition exists, a practice exists, or a violation of this chapter or a permit condition required by this chapter exists; and
          (2) the condition, practice, or violation:
               (A) creates an imminent danger to the health or safety of the public; or
               (B) is causing or can reasonably be expected to cause significant imminent environmental harm to land, air, or water resources.
     (b) The commission, in addition to the cessation order, shall require the operator to take any steps the commission considers necessary to completely abate the imminent danger to health or safety or significant imminent environmental harm if the commission finds that the ordered cessation will not completely abate the imminent danger or environmental harm.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.162. VIOLATION NOT CREATING IMMINENT DANGER OR CAUSING IMMINENT HARM.
     (a) The commission or its authorized
      representative shall issue a notice to a permit holder who is violating this chapter or a permit condition required by this chapter and shall set a reasonable time not to exceed 90 days for abating the violation if, after an inspection, the commission or its authorized representative determines that:
          (1) the permit holder is violating this chapter or a permit condition required by this chapter; and
          (2) the violation:
               (A) does not create an imminent danger to the health or safety of the public; and
               (B) is not causing or reasonably expected to cause significant imminent environmental harm to land, air, or water resources.
     (b) The commission or its authorized representative shall order a cessation of surface mining operations or the part of the operations relevant to the violation if:
          (1) the time for abatement, as originally set or subsequently extended, expires;
          (2) the commission or its authorized representative shows good cause; and
          (3) the commission or its authorized representative finds in writing that the violation has not been abated.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.163. TERM OF CESSATION ORDER.
     Except as provided by Section 134.167, a cessation order under Section 134.161 or 134.162 remains in effect until the commission:
          (1) determines the condition, practice, or violation has been abated; or
          (2) modifies, vacates, or terminates the order under Section 134.166.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, § 25.01(i), eff. Sept. 1, 1997.

§ 134.164. CONTINUOUS VIOLATION.
     (a) The commission shall issue an order to a permit holder promptly to show cause why a permit should not be suspended or revoked if, after an inspection:
          (1) the commission has reason to believe that a pattern of violations of this chapter or of permit conditions required by this chapter exists or has existed; and
          (2) the commission or its authorized representative finds that the violations are:
               (A) caused by the unwarranted failure of the permit holder to comply with this chapter or the permit conditions; or
               (B) wilfully caused by the permit holder.
     (b) The order shall set a time, place, and date for a public hearing. The hearing is of record and is subject to Chapter 2001, Government Code.
     (c) The commission shall promptly suspend or revoke the permit if the permit holder does not show cause why the permit should not be suspended or revoked.
     (d) The permit holder shall immediately stop surface coal mining operations on the permit area and shall complete reclamation within a time specified by the commission if the commission revokes the permit. The commission shall declare the performance bonds for the operation forfeited if the permit holder fails to comply with this subsection.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.165. FORM OF NOTICE OR ORDER.
     (a) A notice or order issued under Section 134.161, 134.162, or 134.164 shall:
          (1) state with reasonable specificity the nature of the violation and the remedial action required;
          (2) state the time established for abatement; and
          (3) reasonably describe the part of the surface coal mining and reclamation operation to which the notice or order applies.
     (b) The commission or its authorized representative shall promptly give the notice or order to the permit holder or the permit holder's agent.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.166. MODIFICATION, VACATION, OR TERMINATION OF NOTICE OF ORDER.
     The commission or its authorized representative
      may modify, vacate, or terminate a notice or order issued under Section 134.161, 134.162, or 134.164.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.167. EXPIRATION OF NOTICE OR ORDER.
     If a notice or order issued under Section 134.161, 134.162, or 134.164 requires the operator to stop mining, the notice or order expires not later than the 30th day after the date of actual notice to the operator unless a public hearing is held at or reasonably near the site so that the site can be viewed during the hearing.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.168. APPLICATION FOR COMMISSION REVIEW OF NOTICE OR ORDER.
     (a) A permit holder to whom the commission issues a notice
      or order under Section 134.161 or 134.162 or an affected person may apply to the commission for review of the notice or order not later than the 30th day after the date of receipt of the notice or order or the date the notice or order is modified, vacated, or terminated.
     (b) The filing of an application for review under this section does not stay a notice or order.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.169. INVESTIGATION AND HEARING ON APPLICATION FOR REVIEW.
     (a) On receipt of an application filed under Section
      134.168, the commission shall investigate as it considers appropriate.
     (b) The investigation shall provide an opportunity for a public hearing, at the request of the applicant or the affected person, to enable the applicant or the person to present information relating to the issuance and continuance of the notice or order or the modification, vacation, or termination of the notice or order.
     (c) The permit holder and other affected persons shall be given written notice of the time and place of the hearing not later than the sixth day before the date of the hearing.
     (d) The hearing is of record and is subject to Chapter 2001, Government Code.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.170. COMMISSION FINDINGS AND DECISION.
     (a) On receiving the investigation report, the commission shall:
          (1) make findings of fact; and
          (2) issue a written decision incorporating:
               (A) its findings; and
               (B) an order vacating, affirming, modifying, or terminating:
                    (i) the notice or order; or
                    (ii) the modification, vacation, or termination of the notice or order.
     (b) If the application for review concerns a cessation order issued under Section 134.161 or 134.162, the commission shall issue the written decision not later than the 30th day after the date it receives the application for review unless it grants temporary relief under Section 134.171.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.171. REQUEST FOR TEMPORARY RELIEF.
     (a) Before the investigation and hearing required by Section 134.169 are completed, the applicant may file with the commission a written request that the commission grant temporary relief from a notice or order issued under Section 134.161 or 134.162, together with a detailed statement giving reasons for granting the relief.
     (b) The commission shall promptly issue an order or decision granting or denying the relief. If the applicant requests relief from a cessation order issued under Section 134.161 or 134.162, the order or decision on the request shall be issued not later than the fifth day after the date the request is received.
     (c) The commission may grant the relief, under conditions prescribed by the commission, if:
          (1) a hearing has been held:
               (A) in the locality of the permit area on the request for temporary relief; and
               (B) in which all parties have had an opportunity to be heard;
          (2) the applicant shows that there is a substantial likelihood that the findings of the commission will favor the applicant; and
          (3) the relief will not:
               (A) adversely affect the health or safety of the public; or
               (B) cause significant, imminent environmental harm to land, air, or water resources.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.172. ASSESSMENT OF COSTS INCURRED IN ADMINISTRATIVE PROCEEDING OR JUDICIAL REVIEW.
     (a) If the commission issues an
      order under Sections 134.161 through 134.171 or in an administrative proceeding under this chapter, the commission may, on request of any person, assess against the person to whom the order is issued or the commission the costs and expenses, including attorney's fees, that the commission determines the requestor reasonably incurred in connection with the requestor's participation in the action or proceeding.
     (b) If the commission issues an order under Sections 134.161 through 134.171 or in an administrative proceeding under this chapter and the commission's decision is appealed, the court may, on request of any person, assess against the person to whom the order is issued or the commission the costs and expenses, including attorney's fees, that the commission determines the requestor reasonably incurred in connection with the requestor's participation in judicial review of the action or proceeding.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.173. CIVIL ACTION.
     (a) The commission may request the attorney general to institute a civil action for relief, including a permanent or temporary injunction, restraining order, or other appropriate order, if the permit holder:
          (1) violates, fails, or refuses to comply with an order or decision issued by the commission under this chapter;
          (2) interferes with, hinders, or delays the commission or its authorized representative in carrying out Sections 134.161 through 134.172;
          (3) refuses to admit an authorized representative to the mine;
          (4) refuses to allow an authorized representative to inspect the mine;
          (5) refuses to furnish information or a report requested by the commission under the commission's rules; or
          (6) refuses to allow access to and copying of records the commission determines reasonably necessary to carry out this chapter.
     (b) The action shall be brought in a district court in Travis County or in the county in which the greater part of the surface mining and reclamation operation is located.
     (c) The court has jurisdiction to provide appropriate relief.
     (d) Relief granted by the court to enforce Subsection (a)(1) continues in effect until the earlier of the date on which:
          (1) all proceedings for review of the order are completed or finally terminated; or
          (2) the court sets aside or modifies the order.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.174. ADMINISTRATIVE PENALTY FOR VIOLATION OF PERMIT CONDITION OF THIS CHAPTER.
     (a) The commission may assess an
      administrative penalty against a person who violates a permit condition or this chapter. The commission shall assess an administrative penalty if the violation leads to the issuance of a cessation order.
     (b) The penalty may not exceed $5,000 for each violation. Each day a violation continues may be considered a separate violation for purposes of penalty assessments.
     (c) In determining the amount of the penalty, the commission shall consider:
          (1) the person's history of violations at the particular surface coal mining operation;
          (2) the seriousness of the violation, including:
               (A) any irreparable harm to the environment; and
               (B) any hazard to the health or safety of the public;
     (3) whether the person was negligent; and
     (4) the demonstrated good faith of the person in attempting to comply rapidly after notification of the violation.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.175. PENALTY ASSESSMENT PROCEDURE.
     (a) The commission may assess an administrative penalty under Section 134.174 only after giving the person charged with a violation an opportunity for a public hearing.
     (b) If a public hearing is held, the commission shall make findings of fact and issue a written decision as to the occurrence of the violation and the amount of the penalty. The decision shall incorporate, if appropriate, an order to pay the penalty.
     (c) If appropriate, the commission shall consolidate the hearing with other proceedings under Sections 134.161 through 134.173. A hearing under this section is of record and is subject to Chapter 2001, Government Code.
     (d) If the person does not take the opportunity for a public hearing, the commission may assess an administrative penalty after determining that a violation has occurred and the amount of the penalty. The commission shall then issue an order to pay the penalty.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.176. PAYMENT OF PENALTY;
     REFUND.
     (a) Not later than the 30th day after the date the commission issues a notice or order charging that a violation of this chapter has occurred, the commission shall inform the person charged of the proposed amount of the penalty.
     (b) Not later than the 30th day after the date the person is informed under Subsection (a), the person shall:
          (1) pay the proposed penalty in full; or
          (2) forward the proposed amount to the commission for placement in an escrow account if the person wishes to contest the amount of the penalty or the fact of the violation.
     (c) If administrative or judicial review of the proposed penalty determines that a violation did not occur or that the amount of the penalty should be reduced, the commission, not later than the 30th day after the date of the determination, shall remit the appropriate amount to the person, with interest at the prevailing United States Department of the Treasury rate.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.177. ADMINISTRATIVE PENALTY FOR FAILING TO CORRECT VIOLATION FOR WHICH CITATION HAS BEEN ISSUED.
     (a) The commission
      shall assess a person who does not correct a violation for which a citation has been issued under Section 134.161 within the time permitted for its correction an administrative penalty of not less than $750 for each day the violation continues after that time.
     (b) If the person initiates a review proceeding in which the commission orders, after an expedited hearing, the suspension of the abatement requirements of the citation after determining that the person will suffer irreparable loss or damage from the application of those requirements, the period during which the person must correct the violation before the commission may impose an administrative penalty under this section expires when the commission enters a final order.
     (c) If the person initiates a review proceeding in which a court orders the suspension of an abatement requirement of the citation, the period during which the person must correct the violation before the commission may impose an administrative penalty under this section expires when the court enters an order.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.178. RECOVERY OF ADMINISTRATIVE PENALTY.
     The attorney general at the request of the commission may bring a civil action to recover an administrative penalty owed under this chapter.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.179. 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 chapter or does not comply with an order issued under this chapter, except an order incorporated in a decision issued by the commission under Section 134.175.
     (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.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.180. 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 chapter or under an order of decision issued by the commission under this chapter.
     (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.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.181. PENALTY FOR DIRECTOR, OFFICER, OR AGENT OF CORPORATION.
     (a) If a corporation violates a condition of a permit
      issued under this chapter or does not comply with an order issued under Section 134.161, 134.162, 134.164, 134.166, 134.170, 134.171, 134.172, or 134.173 or an order incorporated in a final decision issued by the commission under this chapter, a director, officer, or agent of the corporation who wilfully and knowingly authorized, ordered, or carried out the violation or noncompliance is subject to the same administrative penalties, fines, and imprisonment that may be imposed under Sections 134.174 and 134.179.
     (b) Subsection (a) does not apply to the violation of an order incorporated in a decision issued by the commission under Section 134.175.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.182. CITIZEN SUIT.
     (a) Except as provided by Subsection (d), an affected person may bring a civil action to compel compliance with this chapter against:
          (1) the commission if the person alleges the commission did not perform a nondiscretionary act under this chapter;
          (2) a state governmental instrumentality or agency if the person alleges the instrumentality or agency is violating this chapter or a rule, order, or permit adopted or issued under this chapter; or
          (3) any other person if the person alleges the other person is violating a rule, order, or permit adopted or issued under this chapter.
     (b) A person who is injured or whose property is damaged by a permit holder's violation of a rule, order, or permit adopted or issued under this chapter may bring an action for damages, including reasonable attorney's and expert witness's fees.
     (c) Subsection (b) does not affect the rights established by or limits imposed under the workers' compensation laws of this state.
     (d) A person may not bring an action under Subsection (a)(2) or (3) if the state has brought and is diligently prosecuting a civil action in state or federal court to require compliance with this chapter or a rule, order, or permit adopted or issued under this chapter.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.183. NOTICE TO COMMISSION BEFORE BRINGING SUIT; SUIT BY STATE.
     (a) A person must give written notice to the
      commission of an action under Section 134.182(a)(1) not later than the 61st day before the date the person brings the action.
     (b) The person must give notice under Subsection (a) as prescribed by commission rule.
     (c) The person may bring the action immediately after notifying the commission if the violation or order complained of:
          (1) constitutes an imminent threat to the health or safety of the person; or
          (2) would immediately affect a legal interest of the person.
     (d) A person must give written notice of the violation to the commission and any alleged violator not later than the 61st day before the date the person brings an action under Section 134.182(a)(2) or (3).

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.184. VENUE.
     A person may bring an action under Section 134.182 only in the judicial district in which the surface coal mining operation complained of is located.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.185. INTERVENTION BY COMMISSION.
     The commission may intervene as a matter of right in an action brought under Section 134.182.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.186. COSTS OF SUIT;
     FILING OF BOND.
     (a) In issuing a final order in an action brought under Section 134.182(a), a court may award a party litigation costs, including attorney's and expert witness's fees, if the court determines the award is appropriate.
     (b) The court may require a person to file a bond or equivalent security in accordance with the Texas Rules of Civil Procedure if the person seeks a temporary restraining order or preliminary injunction.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.187. RIGHTS UNDER OTHER LAW.
     Sections 134.182 through 134.186 do not restrict any right a person or class of persons may have under a statute or common law to seek enforcement of this chapter and rules adopted under this chapter or to seek other relief, including relief against the commission.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.

§ 134.188. DEFENSE.
     It is a defense to a civil or criminal penalty under this chapter that a person allegedly conducting an iron ore or iron ore gravel mining and reclamation operation in violation of this chapter has a written general warranty of ownership of land, separate from any lease, from the person authorizing the operation.

Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.