Texas 2023 - 88th Regular

Texas House Bill HB1093 Compare Versions

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1	1	By: Cunningham H.B. No. 1093
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to planning and financial responsibility requirements for
7	7	certain aggregate production operations; providing for the
8	8	imposition of an administrative penalty.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The heading to Chapter 28A, Water Code, is
11	11	amended to read as follows:
12	12	CHAPTER 28A. [REGISTRATION AND INSPECTION OF CERTAIN] AGGREGATE
13	13	PRODUCTION OPERATIONS
14	14	SECTION 2. Chapter 28A, Water Code, is amended by adding
15	15	Subchapter D to read as follows:
16	16	SUBCHAPTER D. PLANNING AND FINANCIAL RESPONSIBILITY
17	17	Sec. 28A.151. DEFINITION. In this subchapter, "water body"
18	18	means a navigable watercourse, river, stream, or lake.
19	19	Sec. 28A.152. APPLICABILITY. This subchapter applies only
20	20	to an aggregate production operation at a site located not more than
21	21	1,500 feet from the San Jacinto River.
22	22	Sec. 28A.153. RESTORATION PLAN. (a) In this section,
23	23	"restore" means to change the physical, chemical, or biological
24	24	qualities of a receiving water body in order to return the water
25	25	body to its background condition, including on- and off-site
26	26	stabilization to reduce or eliminate an unauthorized discharge or a
27	27	substantial threat of an unauthorized discharge.
28	28	(b) The initial application the responsible party files to
29	29	register an aggregate production operation must include the
30	30	responsible party's proposed plan to restore a receiving water body
31	31	affected by an unauthorized discharge from the operation. The
32	32	responsible party shall update the plan as necessary with each
33	33	operation registration renewal.
34	34	(c) The restoration plan must:
35	35	(1) identify receiving water bodies at risk of an
36	36	unauthorized discharge from the aggregate production operation;
37	37	(2) describe the process to be used in documenting the
38	38	existing physical, chemical, and biological background conditions
39	39	of each adjacent receiving water body;
40	40	(3) provide a schedule for completing the background
41	41	conditions documentation of each receiving water body and for
42	42	future updating of background conditions, as appropriate;
43	43	(4) identify the goals and objectives of potential
44	44	restoration actions;
45	45	(5) provide a reasonable range of restoration
46	46	alternatives and the preferred restoration alternative that may be
47	47	implemented to return affected receiving water bodies to background
48	48	conditions in the event of an unauthorized discharge;
49	49	(6) describe the process for monitoring the
50	50	effectiveness of the preferred restoration action, including
51	51	performance criteria, that will be used to determine the success of
52	52	the restoration or need for interim site stabilization;
53	53	(7) identify a process for public involvement in the
54	54	selection of the restoration alternative to be implemented to
55	55	restore the receiving water bodies to background conditions; and
56	56	(8) provide a detailed estimate of the maximum
57	57	probable cost of completing a restoration action, given the size,
58	58	location, and description of the operation and the nature of the
59	59	receiving water bodies, based on the cost of conducting the action
60	60	by a third party without a financial interest or ownership in the
61	61	operation.
62	62	(d) The responsible party must submit to the commission
63	63	certification of the restoration plan, within the appropriate area
64	64	or discipline, issued by a licensed engineer or licensed
65	65	geoscientist. Components of the restoration plan may be
66	66	independently certified, as appropriate.
67	67	Sec. 28A.154. RECLAMATION PLAN. (a) In this section,
68	68	"reclaim" means to use land treatment processes designed to
69	69	minimize degradation of water quality, damage to fish or wildlife
70	70	habitat, erosion, and other adverse effects from aggregate
71	71	production operations and includes backfilling, soil stabilization
72	72	and compacting, grading, erosion control measures, appropriate
73	73	revegetation, or other measures, as appropriate.
74	74	(b) The initial application the responsible party files to
75	75	register an aggregate production operation must include the
76	76	responsible party's proposed plan to reclaim the area disturbed by
77	77	the operation. The responsible party shall update the plan as
78	78	necessary with each operation registration renewal.
79	79	(c) The reclamation plan must:
80	80	(1) provide a description of the proposed use of the
81	81	disturbed area following reclamation;
82	82	(2) develop site-specific reclamation standards
83	83	appropriate to the proposed use that address:
84	84	(A) removal or final stabilization of all raw
85	85	material, intermediate material, final product, waste product,
86	86	byproduct, and ancillary material;
87	87	(B) removal of waste or closure of all waste
88	88	disposal areas;
89	89	(C) removal of structures, where appropriate;
90	90	(D) removal and reclamation of all temporary
91	91	roads and railroads;
92	92	(E) backfilling, regrading, and recontouring;
93	93	(F) slope stability for remaining highwalls and
94	94	detention ponds;
95	95	(G) revegetation of the reclaimed area, giving
96	96	consideration to species diversity and the use of native species;
97	97	(H) establishment of wildlife habitat;
98	98	(I) establishment of drainage patterns;
99	99	(J) establishment of permanent control
100	100	structures, such as retention ponds, where necessary to address
101	101	erosion, siltation, and runoff from post-aggregate production and
102	102	reclaimed areas; and
103	103	(K) removal of all equipment; and
104	104	(3) provide a description of the manner in which the
105	105	reclamation will be conducted, such as in phases, and a time for
106	106	completion of reclamation activities.
107	107	(d) The reclamation plan must include a detailed estimate of
108	108	the maximum probable cost required to complete and implement the
109	109	plan, including inflation costs. The maximum probable cost must be
110	110	based on the cost of conducting the reclamation by a third party
111	111	without a financial interest or ownership in the aggregate
112	112	production operation.
113	113	(e) The responsible party must submit to the commission
114	114	certification of the reclamation plan, within the appropriate area
115	115	or discipline, issued by a licensed engineer or licensed
116	116	geoscientist. Components of the reclamation plan may be
117	117	independently certified, as appropriate.
118	118	Sec. 28A.155. FINANCIAL RESPONSIBILITY. (a) Until the
119	119	commission determines that the responsible party for an aggregate
120	120	production operation has successfully complied with all
121	121	restoration and reclamation requirements of this subchapter and the
122	122	restoration and reclamation plans, the commission by rule shall
123	123	require the responsible party to establish and maintain evidence of
124	124	financial responsibility for:
125	125	(1) restoration of a water body affected by an
126	126	unauthorized discharge from the operation; and
127	127	(2) reclamation of the area disturbed by the
128	128	operation.
129	129	(b) The amount of financial assurance must be at least the
130	130	amount the executive director of the commission determines is
131	131	sufficient to meet the requirements of the:
132	132	(1) restoration plan filed for the aggregate
133	133	production operation under Section 28A.153; and
134	134	(2) reclamation plan filed for the aggregate
135	135	production operation under Section 28A.154.
136	136	Sec. 28A.156. ADMINISTRATIVE PENALTY. The commission may
137	137	assess an administrative penalty in an amount of not less than
138	138	$5,000 and not more than $20,000 for each year in which an aggregate
139	139	production operation operates without maintaining the evidence of
140	140	financial responsibility required by Section 28A.155. The total
141	141	amount of the penalty assessed under this section may not exceed
142	142	$40,000 for an aggregate production operation that is operated in
143	143	three or more years without maintaining the evidence of financial
144	144	responsibility.
145	145	Sec. 28A.157. RECOVERY OF COSTS FOR UNAUTHORIZED
146	146	DISCHARGES. If the commission incurs any costs in undertaking a
147	147	corrective or enforcement action with respect to an unauthorized
148	148	discharge from an aggregate production operation to which this
149	149	subchapter applies, including a reclamation or restoration action,
150	150	the responsible party is liable to this state for all reasonable
151	151	costs of the corrective or enforcement action, including court
152	152	costs and reasonable attorney's fees, and for any punitive damages
153	153	that may be assessed by the court.
154	154	Sec. 28A.158. AGGREGATE PRODUCTION OPERATION RECLAMATION
155	155	AND RESTORATION FUND ACCOUNT. (a) Penalties and other money the
156	156	commission receives as a result of an enforcement action taken
157	157	under this subchapter, and any gift or grant the commission
158	158	receives for the purposes of this subchapter, shall be deposited in
159	159	the aggregate production operation reclamation and restoration
160	160	fund account in the general revenue fund. Money in the account may
161	161	be appropriated only to the commission for the reclamation and
162	162	restoration of the beds, bottoms, and banks of water bodies
163	163	affected by the unlawful discharges subject to this subchapter.
164	164	(b) At least 60 days before spending money from the
165	165	reclamation and restoration fund account, the commission shall
166	166	publish notice of its proposed plan and conduct a hearing for the
167	167	purpose of soliciting oral or written public comment. The
168	168	commission shall fully consider all oral and written submissions on
169	169	the proposed plan.
170	170	(c) At least 30 days before the date of the public hearing,
171	171	the notice must be published in the Texas Register and in a
172	172	newspaper of general circulation in the county where the violation
173	173	resulting in the payment of the penalties or other money occurred.
174	174	(d) Interest and other income earned on money in the account
175	175	shall be credited to the account. The account is exempt from the
176	176	application of Section 403.095, Government Code.
177	177	SECTION 3. (a) This section applies only to an aggregate
178	178	production operation, as defined by Section 28A.001, Water Code,
179	179	that is registered under Chapter 28A, Water Code, before the
180	180	effective date of this Act.
181	181	(b) The responsible party for an aggregate production
182	182	operation to which Subchapter D, Chapter 28A, Water Code, as added
183	183	by this Act, applies shall:
184	184	(1) file the restoration and reclamation plans
185	185	required by that subchapter with the Texas Commission on
186	186	Environmental Quality with the first operation registration
187	187	renewal that occurs after the effective date of this Act; and
188	188	(2) establish the evidence of financial
189	189	responsibility required by that subchapter not later than the date
190	190	of the first operation registration renewal that occurs after the
191	191	effective date of this Act.
192	192	SECTION 4. This Act takes effect September 1, 2023.