87R9632 JXC-F
By: Huberty H.B. No. 4478
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. [REGISTRATION AND INSPECTION OF CERTAIN] AGGREGATE
PRODUCTION OPERATIONS
SECTION 2. Chapter 28A, Water Code, is amended by adding
Subchapter D to read as follows:
SUBCHAPTER D. PLANNING AND FINANCIAL RESPONSIBILITY
Sec. 28A.151. DEFINITION. In this subchapter, "water body"
means a navigable watercourse, river, stream, or lake.
Sec. 28A.152. APPLICABILITY. This subchapter applies only
to an aggregate production operation the site of which is located
not more than 1,500 feet from the San Jacinto River.
Sec. 28A.153. 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 filed by the responsible party
for the registration of an aggregate production operation must
include a proposed plan for how the responsible party will restore a
receiving water body affected by an unauthorized discharge from the
operation. The responsible party shall update the plan as needed
with each renewal of the registration of the operation.
(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 of the adjacent receiving water bodies;
(3) provide a schedule for completing the
determination of background conditions of each of the receiving
water bodies and for updating background conditions in the future,
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, based on the cost to a third party conducting the
action without a financial interest or ownership in the operation,
of completing a restoration action, given the size, location, and
description of the operation and the nature of the receiving water
bodies.
(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.154. 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 filed by the responsible party
for the registration of an aggregate production operation must
include a proposed plan for how the responsible party will reclaim
the area disturbed by the operation. The responsible party shall
update the plan as needed with each renewal of the registration of
the operation.
(c) The reclamation plan must:
(1) provide a description of the proposed use of the
disturbed area following reclamation;
(2) develop site-specific standards for reclamation
appropriate to the proposed use that address the following:
(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 how reclamation will be
conducted, such as in phases, and a timetable for the 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 to a third party conducting the reclamation
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.155. FINANCIAL RESPONSIBILITY. (a) The
commission by rule shall require the responsible party for an
aggregate production operation to establish and maintain, until the
commission determines that the responsible party has successfully
complied with all restoration and reclamation requirements of this
subchapter and the restoration and reclamation plans, 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 determined by the executive director of the commission as
sufficient to meet the requirements of the:
(1) restoration plan filed for the aggregate
production operation under Section 28A.153; and
(2) reclamation plan filed for the aggregate
production operation under Section 28A.154.
Sec. 28A.156. 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
maintaining the evidence of financial responsibility required by
Section 28A.155. 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 maintaining the evidence of
financial responsibility.
Sec. 28A.157. 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 the 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.158. AGGREGATE PRODUCTION OPERATION RECLAMATION
AND RESTORATION FUND ACCOUNT. (a) Penalties and other money
received by the commission 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 unlawful 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 public comment, oral or written. The
commission shall fully consider all written and oral 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 D, 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 with the first renewal of the registration of
the operation that occurs 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 renewal of the registration of the operation that
occurs after the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2021.