HB1163 - Relating to planning and financial responsibility requirements for certain aggregate production operations; providing for the imposition of an administrative penalty.

  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 [Text truncated for display. Full text available on Congress.gov.]