Cunningham Bill Reaches Only Mines Near The San Jacinto River

The text as introduced · 1,514 words

89R3755 JAM-F

By: Cunningham
H.B. No. 1163

A BILL TO BE ENTITLED

AN ACT

relating to planning and financial responsibility requirements for

certain aggregate production operations; providing for the

imposition of an administrative penalty.

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

SECTION 1. The heading to Chapter 28A, Water Code, is

amended to read as follows:

CHAPTER 28A. [ CERTAIN ] AGGREGATE PRODUCTION OPERATIONS

SECTION 2. Chapter 28A, Water Code, is amended by adding

Subchapter E to read as follows:

SUBCHAPTER E. PLANNING AND FINANCIAL RESPONSIBILITY

Sec. 28A.201. DEFINITION. In this subchapter, "water body"

means a navigable watercourse, river, stream, or lake.

Sec. 28A.202. APPLICABILITY. This subchapter applies only

to an aggregate production operation at a site any part of which is

located not more than 1,500 feet from the San Jacinto River or a

tributary of that river.

Sec. 28A.203. RESTORATION PLAN. (a) In this section,

"restore" means to change the physical, chemical, or biological

qualities of a receiving water body in order to return the water

body to its background condition, including on- and off-site

stabilization to reduce or eliminate an unauthorized discharge or a

substantial threat of an unauthorized discharge.

(b) The initial application the responsible party files to

register an aggregate production operation must include the

responsible party's proposed plan to restore a receiving water body

affected by an unauthorized discharge from the operation. The

responsible party shall update the plan as necessary with each

operation registration renewal.

(c) The restoration plan must:

(1) identify receiving water bodies at risk of an

unauthorized discharge from the aggregate production operation;

(2) describe the process to be used in documenting the

existing physical, chemical, and biological background conditions

of each adjacent receiving water body;

(3) provide a schedule for completing the background

conditions documentation of each receiving water body and for

future updating of background conditions, as appropriate;

(4) identify the goals and objectives of potential

restoration actions;

(5) provide a reasonable range of restoration

alternatives and the preferred restoration alternative that may be

implemented to return affected receiving water bodies to background

conditions in the event of an unauthorized discharge;

(6) describe the process for monitoring the

effectiveness of the preferred restoration action, including

performance criteria, that will be used to determine the success of

the restoration or need for interim site stabilization;

(7) identify a process for public involvement in the

selection of the restoration alternative to be implemented to

restore the receiving water bodies to background conditions; and

(8) provide a detailed estimate of the maximum

probable cost of completing a restoration action, given the size,

location, and description of the operation and the nature of the

receiving water bodies, based on the cost of conducting the action

by a third party without a financial interest or ownership in the

operation.

(d) The responsible party must submit to the commission

certification of the restoration plan, within the appropriate area

or discipline, issued by a licensed engineer or licensed

geoscientist. Components of the restoration plan may be

independently certified, as appropriate.

Sec. 28A.204. RECLAMATION PLAN. (a) In this section,

"reclaim" means to use land treatment processes designed to

minimize degradation of water quality, damage to fish or wildlife

habitat, erosion, and other adverse effects from aggregate

production operations and includes backfilling, soil stabilization

and compacting, grading, erosion control measures, appropriate

revegetation, or other measures, as appropriate.

(b) The initial application the responsible party files to

register an aggregate production operation must include the

responsible party's proposed plan to reclaim the area disturbed by

the operation. The responsible party shall update the plan as

necessary with each operation registration renewal.

(c) The reclamation plan must:

(1) provide a description of the proposed use of the

disturbed area following reclamation;

(2) develop site-specific reclamation standards

appropriate to the proposed use that address:

(A) removal or final stabilization of all raw

material, intermediate material, final product, waste product,

byproduct, and ancillary material;

(B) removal of waste or closure of all waste

disposal areas;

(C) removal of structures, where appropriate;

(D) removal and reclamation of all temporary

roads and railroads;

(E) backfilling, regrading, and recontouring;

(F) slope stability for remaining highwalls and

detention ponds;

(G) revegetation of the reclaimed area, giving

consideration to species diversity and the use of native species;

(H) establishment of wildlife habitat;

(I) establishment of drainage patterns;

(J) establishment of permanent control

structures, such as retention ponds, where necessary to address

erosion, siltation, and runoff from post-aggregate production and

reclaimed areas; and

(K) removal of all equipment; and

(3) provide a description of the manner in which the

reclamation will be conducted, such as in phases, and a time for

completion of reclamation activities.

(d) The reclamation plan must include a detailed estimate of

the maximum probable cost required to complete and implement the

plan, including inflation costs. The maximum probable cost must be

based on the cost of conducting the reclamation by a third party

without a financial interest or ownership in the aggregate

production operation.

(e) The responsible party must submit to the commission

certification of the reclamation plan, within the appropriate area

or discipline, issued by a licensed engineer or licensed

geoscientist. Components of the reclamation plan may be

independently certified, as appropriate.

Sec. 28A.205. FINANCIAL RESPONSIBILITY. (a) Until the

commission determines that the responsible party for an aggregate

production operation has successfully complied with all

restoration and reclamation requirements of this subchapter and the

restoration and reclamation plans, the commission by rule shall

require the responsible party to establish and maintain evidence of

financial responsibility for:

(1) restoration of a water body affected by an

unauthorized discharge from the operation; and

(2) reclamation of the area disturbed by the

operation.

(b) The amount of financial assurance must be at least the

amount the executive director of the commission determines is

sufficient to meet the requirements of the:

(1) restoration plan filed for the aggregate

production operation under Section 28A.203; and

(2) reclamation plan filed for the aggregate

production operation under Section 28A.204.

Sec. 28A.206. ADMINISTRATIVE PENALTY. The commission may

assess an administrative penalty in an amount of not less than

$25,000 and not more than $40,000 for each year in which an

aggregate production operation operates without maintaining the

evidence of financial responsibility required by Section 28A.205.

The total amount of the penalty assessed under this section may not

exceed $80,000 for an aggregate production operation that is

operated in three or more years without maintaining the evidence of

financial responsibility.

Sec. 28A.207. RECOVERY OF COSTS FOR UNAUTHORIZED

DISCHARGES. If the commission incurs any costs in undertaking a

corrective or enforcement action with respect to an unauthorized

discharge from an aggregate production operation to which this

subchapter applies, including a reclamation or restoration action,

the responsible party is liable to this state for all reasonable

costs of the corrective or enforcement action, including court

costs and reasonable attorney's fees, and for any punitive damages

that may be assessed by the court.

Sec. 28A.208. AGGREGATE PRODUCTION OPERATION RECLAMATION

AND RESTORATION FUND ACCOUNT. (a) Penalties and other money the

commission receives as a result of an enforcement action taken

under this subchapter, and any gift or grant the commission

receives for the purposes of this subchapter, shall be deposited in

the aggregate production operation reclamation and restoration

fund account in the general revenue fund. Money in the account may

be appropriated only to the commission for the reclamation and

restoration of the beds, bottoms, and banks of water bodies

affected by the unauthorized discharges subject to this subchapter.

(b) At least 60 days before spending money from the

reclamation and restoration fund account, the commission shall

publish notice of its proposed plan and conduct a hearing for the

purpose of soliciting oral or written public comment. The

commission shall fully consider all oral and written submissions on

the proposed plan.

(c) At least 30 days before the date of the public hearing,

the notice must be published in the Texas Register and in a

newspaper of general circulation in the county where the violation

resulting in the payment of the penalties or other money occurred.

(d) Interest and other income earned on money in the account

shall be credited to the account. The account is exempt from the

application of Section 403.095, Government Code.

SECTION 3. (a) This section applies only to an aggregate

production operation, as defined by Section 28A.001, Water Code,

that is registered under Chapter 28A, Water Code, before the

effective date of this Act.

(b) The responsible party for an aggregate production

operation to which Subchapter E, Chapter 28A, Water Code, as added

by this Act, applies shall:

(1) file the restoration and reclamation plans

required by that subchapter with the Texas Commission on

Environmental Quality not later than the 180th day after the

effective date of this Act; and

(2) establish the evidence of financial

responsibility required by that subchapter not later than the date

of the first operation registration renewal that occurs after the

effective date of this Act.

SECTION 4. This Act takes effect September 1, 2025.