By: Cunningham H.B. No. 1093
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 at a site 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 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.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 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.155. 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.153; and
(2) reclamation plan filed for the aggregate
production operation under Section 28A.154.
Sec. 28A.156. ADMINISTRATIVE PENALTY. The commission may
assess an administrative penalty in an amount 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
amount of the penalty assessed 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 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.158. 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 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 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 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 operation registration
renewal 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 operation registration renewal that occurs after the
effective date of this Act.
SECTION 4. This Act takes effect September 1, 2023.