86R704 SMH-D

By: Murr H.B. No. 2710

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of certain aggregate production operations by the Texas Commission on Environmental Quality; authorizing an increase in the amount of a fee.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 28A, Water Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. RECLAMATION

Sec. 28A.151. APPLICABILITY. This subchapter applies only to an aggregate production operation:

(1) that is first required to be registered on or after January 1, 2016; and

(2) the site of which:

(A) occupies at least 10 acres; and

(B) is located inside the boundaries or extraterritorial jurisdiction of a municipality.

Sec. 28A.152. REGISTRATION. (a) The initial application filed by the responsible party for the registration of an aggregate production operation, or the first renewal application filed after September 1, 2019, in the case of an aggregate production operation that was first required to be registered before that date, must:

(1) include a reclamation plan that complies with Section 28A.154; and

(2) be accompanied by a performance bond that complies with Section 28A.155.

(b) If the reclamation plan is amended, the first renewal application for registration filed by the responsible party after the date the plan is amended must include the amended plan.

(c) Notwithstanding Section 28A.051(b), the requirements of this subchapter apply to an aggregate production operation until the commission determines that the responsible party has successfully complied with all reclamation requirements of this subchapter and the reclamation plan.

Sec. 28A.153. REGISTRATION FEE. Notwithstanding Section 28A.101(b), the commission shall set the fee for an initial or renewal application for the registration of an aggregate production operation that is required to include a reclamation plan in an amount not to exceed $1,400.

Sec. 28A.154. RECLAMATION REQUIREMENTS. (a) A reclamation plan must:

(1) specify which parts of the aggregate production operation will be reclaimed for forest, pasture, crop, horticultural, homesite, recreational, industrial, or other uses, including use by wildlife for food, shelter, or ground cover;

(2) require any ridge or peak of overburden created by surface mining to be graded to a rolling topography traversable by machines and equipment customarily used in connection with the use to be made of the land after reclamation, except that:

(A) the slope of a ridge or peak of overburden is not required to be reduced to a grade less than the original grade of the area before mining; and

(B) the slope of the ridge of overburden resulting from a box cut is not required to be reduced to less than 25 degrees from the horizontal;

(3) if the extraction activities have exposed the face of a mineral seam in which significant concentrations of acid-forming materials are present, require the operator to cover the exposed face of the seam:

(A) to a depth of not less than three feet with earth that will support plant life; or

(B) with a permanent water impoundment;

(4) require the operator to grade down the bank of any pit or depression created by the removal of aggregates by surface mining to a degree of slope determined in accordance with commission rules, taking into consideration:

(A) the natural topography of the land affected by the extraction activities and of the adjacent land;

(B) the composition of the bank; and

(C) the most beneficial use of the pit or depression after reclamation;

(5) require that all land affected by the extraction activities, except land that is to be covered with water or used for homesite or industrial purposes, be revegetated by the planting of seeds, trees, shrubs, or other plantings that are appropriate to the use to be made of the land after reclamation as determined by the operator; and

(6) require that all mining equipment, including dredges, drag lines, crushers, screens, conveyors, on-site mining vehicles, haul trucks, and loaders, be removed from the site.

(b) Subsection (a)(2) does not apply to a surface mining operation conducted in an area that is in the floodplain of a river or stream and is subject to periodic flooding.

(c) A reclamation plan may allow an operator to construct an earthen dam for the purpose of forming a lake in a pit that results from surface mining operations if the formation of the lake does not:

(1) interfere with another mining operation; or

(2) damage the property of another person.

(d) Notwithstanding Subsection (a)(4), if the pit or depression created by the removal of aggregates by surface mining is deeper than 10 feet, the reclamation plan may allow the operator to bench the highwall as long as the benches do not exceed 10 feet in height.

(e) The commission by rule may prescribe the required density of planting for purposes of Subsection (a)(5) and, if the operator elects to reclaim in stages different parts of the aggregate production operation as extraction activities on those parts cease, may require replanting of those parts as necessary before planting of the entire operation is completed.

(f) Notwithstanding Subsections (a)(5) and (e), planting is not required on land affected by extraction activities at an aggregate production operation if the chemical and physical characteristics of the soil of the land are so toxic or deficient in plant nutrients, or the soil of the land is composed of sand, gravel, shale, or stone to such an extent, as to seriously inhibit plant growth.

(g) Except as otherwise provided by this subsection, an operator must complete all required grading not later than six months after extraction activities at the aggregate production operation cease. If the operator is unable to complete the required grading by the deadline because of weather conditions, the commission shall grant the operator an extension of time until weather conditions permit completion of the required grading.

(h) Except as otherwise provided by this subsection, an operator must begin planting seeds, trees, shrubs, or other plantings on the land affected by extraction activities at the aggregate production operation at the first appropriate time after completion of the required grading. If the operator is unable to acquire sufficient planting stock of appropriate species from local nurseries or to acquire sufficient stock from other sources at comparable prices, the commission shall grant the operator an extension of time until sufficient stock at such prices is available to plant the land in accordance with the reclamation plan.

Sec. 28A.155. PERFORMANCE BOND. (a) A performance bond must:

(1) be payable to this state and conditioned on the faithful performance of the requirements of this subchapter and the reclamation plan;

(2) cover the area to be affected by the extraction activities at the aggregate production operation;

(3) be in an amount equal to $2,500 for each acre to be affected by the extraction activities at the aggregate production operation; and

(4) be executed by the responsible party and a corporate surety licensed to do business in this state.

(b) Liability under a performance bond is for the duration of the activities at the aggregate production operation, including the activities necessary and incidental to the reclamation of the land affected by the extraction activities at the operation.

(c) The commission may release all or part of a performance bond if the commission is satisfied that the reclamation covered by the bond or part of the reclamation, as applicable, has been accomplished as required by this subchapter and the reclamation plan.

(d) The commission shall declare a performance bond forfeited if the operator fails to comply with the requirements of this subchapter or the reclamation plan.

Sec. 28A.156. INSPECTION BY COMMISSION. The commission may periodically inspect an aggregate production operation after extraction activities at the operation have ceased to verify that the operator is complying with the requirements of this subchapter and the reclamation plan.

Sec. 28A.157. NOTICE OF COMPLETION OF RECLAMATION; INSPECTION AND DETERMINATION BY COMMISSION. (a) After reclamation activities at an aggregate production operation have been accomplished as required by this subchapter and the reclamation plan, the operator shall notify the commission in writing that the activities have been completed.

(b) The commission shall inspect the aggregate production operation to determine whether the operator has completed reclamation of the operation as required by this subchapter and the reclamation plan. If the commission determines that the reclamation of the aggregate production operation has been completed as required by this subchapter and the reclamation plan:

(1) the commission shall release any remaining part of the performance bond; and

(2) the requirements of this subchapter are no longer applicable to the operation.

Sec. 28A.158. WAIVER BY MUNICIPALITY OF RECLAMATION REQUIREMENTS. (a) If the reclamation activities required by a reclamation plan conflict with a potential reasonable future use of the aggregate production operation on cessation of extraction activities at the operation, the responsible party may submit a proposal to the governing body of the municipality inside the boundaries or extraterritorial jurisdiction of which the operation is located to amend the plan.

(b) The governing body of the municipality shall approve the proposed amendment to the reclamation plan if, after a public meeting on the proposal, the governing body determines that the proposed amendment appears to be in the best interest of the municipality, the county in which the aggregate production operation is located, and this state.

(c) If the governing body of the municipality approves the proposed amendment to the reclamation plan, the governing body shall notify the responsible party and the commission. The commission shall give effect to the proposed amendment to the plan and shall release all or part of the performance bond, as applicable.

SECTION 2. This Act takes effect September 1, 2019.