CHAPTER 134. TEXAS SURFACE COAL MINING AND RECLAMATION ACT

Statutes > Texas Statutes > NATURAL RESOURCES CODE > TITLE 4. MINES AND MINING > CHAPTER 134. TEXAS SURFACE COAL MINING AND RECLAMATION ACT

NATURAL RESOURCES CODE

TITLE 4. MINES AND MINING

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 134.001. SHORT TITLE. This chapter may be cited as the

Texas Surface Coal Mining and Reclamation Act.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.002. FINDINGS AND DECLARATION OF POLICY. The

legislature finds and declares that:

(1) the Congress of the United States has enacted the federal

Act, which provides for the establishment of a nationwide program

to regulate surface coal mining and reclamation and which vests

exclusive authority in the Department of the Interior over the

regulation of surface coal mining and reclamation in the United

States;

(2) Section 101 of the federal Act contains the finding by

Congress that because of the diversity in terrain, climate,

biologic, chemical, and other physical conditions in areas

subject to mining operations, the primary governmental

responsibility for developing, authorizing, issuing, and

enforcing regulations for surface mining and reclamation

operations subject to that Act should rest with the states;

(3) Section 503 of the federal Act provides that each state may

assume and retain exclusive jurisdiction over the regulation of

surface coal mining and reclamation operations in that state by

obtaining approval of a state program of regulation that

demonstrates that the state is able to carry out the provisions

and meet the purposes of that Act;

(4) Section 503 of the federal Act further provides that a state

wishing to assume exclusive jurisdiction over the regulation of

surface coal mining and reclamation operations in the state must

have a state law that provides for the regulation of surface coal

mining and reclamation operations in accordance with that Act;

and

(5) this state wishes to assume exclusive jurisdiction over the

regulation of surface coal mining and reclamation operations in

the state under the federal Act.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.003. PURPOSES. It is the purpose of this chapter:

(1) to prevent adverse effects to society and the environment

from unregulated surface coal mining operations as defined by

this chapter;

(2) to assure that the rights of surface landowners and other

persons with a legal interest in the land or appurtenances to the

land are protected from unregulated surface coal mining

operations;

(3) to assure that surface coal mining operations are conducted

in a manner that will prevent unreasonable degradation of land

and water resources;

(4) to assure that reclamation of all land on which surface coal

mining takes place occurs as contemporaneously as practicable

with the surface coal mining, recognizing that extracting coal by

responsible mining operations is an essential and beneficial

economic activity;

(5) to assure that the coal supply essential to this state's

energy requirements and to its economic and social well-being is

provided and to strike a balance between environmental protection

and agricultural productivity and this state's need for coal as

an essential source of energy; and

(6) to promote the reclamation of mined areas left without

adequate reclamation before the enactment of the federal Act and

that continue, in their unreclaimed condition, substantially to

degrade the quality of the environment, prevent or damage the

beneficial use of land or water resources, or endanger the health

or safety of the public.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.004. DEFINITIONS. In this chapter:

(1) "Affected person" means a person having an interest that is

or may be affected.

(2) "Alluvial valley floors" means the unconsolidated

stream-laid deposits holding streams where water availability is

sufficient for subirrigation or flood irrigation agricultural

activities. The term does not include upland areas that are

generally overlaid by a thin veneer of colluvial deposits

composed chiefly of debris from sheet erosion, deposits by

unconcentrated runoff or slope wash, together with talus, other

mass movement accumulation, or windblown deposits.

(3) "Applicant" means a person or other legal entity seeking a

permit from the commission to conduct surface coal mining

activities or underground mining activities under this chapter.

(4) "Approximate original contour" means the surface

configuration achieved by backfilling and grading the mined area

so that the reclaimed area, including any terracing or access

roads, closely resembles the general surface configuration of the

land before mining and blends into and complements the drainage

pattern of the surrounding terrain, with all highwalls and spoil

piles eliminated.

(5) "Coal" means all forms of coal and includes lignite.

(6) "Coal exploration operations" means the substantial

disturbance of the surface or subsurface for or related to the

purpose of determining the location, quantity, or quality of a

coal deposit.

(7) "Commission" means the Railroad Commission of Texas.

(8) "Federal Act" means the Surface Mining Control and

Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.).

(9) "Imminent danger to the health or safety of the public"

means the existence of a condition or practice or a violation of

a permit or other requirement of this chapter in a surface coal

mining and reclamation operation that could reasonably be

expected to cause substantial physical harm to persons outside

the permit area before the condition, practice, or violation can

be abated. A reasonable expectation of death or serious injury

before abatement exists if a rational person, subjected to the

same conditions or practices giving rise to the peril, would not

expose himself to the danger during the time necessary for

abatement.

(10) "Operator" means a person engaged in coal mining who

removes or intends to remove more than 250 tons of coal from the

earth by coal mining within 12 consecutive months in one

location.

(11) "Other minerals" means clay, stone, sand, gravel,

metalliferous and nonmetalliferous ores, and other solid

materials or substances of commercial value excavated in solid

form from natural deposits on or in the earth, exclusive of coal

and those minerals that occur naturally in liquid or gaseous

form.

(12) "Permit" means a permit to conduct surface coal mining and

reclamation operations or underground mining operations issued by

the commission.

(13) "Permit area" means the area of land indicated on the

approved map submitted by the operator with the operator's

application, which area of land must be covered by an operator's

bond as required by Subchapter F and readily identifiable by

appropriate markers on the site.

(14) "Permit holder" means a person holding a permit to conduct

surface coal mining and reclamation operations or underground

mining activities under this chapter.

(15) "Person" means an individual, partnership, society,

joint-stock company, firm, company, corporation, business

organization, governmental agency, or any organization or

association of citizens.

(16) "Prime farmland" means land that the commission determines

meets the criteria prescribed by the secretary of agriculture and

published in the Federal Register, including moisture

availability, temperature regime, chemical balance, permeability

without regard to annual mean soil temperatures, surface layer

composition, susceptibility to flooding, and erosion

characteristics, and that historically has been used for

intensive agricultural purposes. Land has not historically been

used for the production of cultivated crops if:

(A) the land has been used as woodland or rangeland; or

(B) the only cultivation has been disking to:

(i) establish or help maintain bermuda grass used as forage; or

(ii) plant oats or rye for quick cover, to be used as forage and

not as a grain crop.

(17) "Secretary of agriculture" means the secretary of the

United States Department of Agriculture.

(18) "Secretary of the interior" means the secretary of the

United States Department of the Interior.

(19) "Surface coal mining and reclamation operations" means

surface coal mining operations and the activities necessary and

incidental to the reclamation of those operations.

(20) "Surface coal mining operations" means:

(A) activities conducted on the surface of land in connection

with a surface coal mine or subject to the requirements of

Section 134.015 incidental to an underground coal mine, including

excavation for the purpose of obtaining coal, including such

common methods as contour, strip, auger, mountaintop removal, box

cut, open pit, and area mining, the use of explosives and

blasting, and in situ distillation or retorting, leaching or

other chemical or physical processing, and the cleaning,

concentrating, or other processing or preparation, loading of

coal at or near the mine site; excluding the extraction of coal

incidental to the extraction of other minerals where the coal

does not exceed 16-2/3 percent of the total tonnage of coal and

other minerals removed annually for purposes of commercial use or

sale or coal explorations subject to this chapter; and

(B) the areas on which those activities occur or where those

activities disturb the natural land surface, areas adjacent to

land the use of which is incidental to any of those activities,

all land affected by the construction of new roads or the

improvement or use of existing roads to gain access to the site

of those activities and for haulage, and excavations, workings,

impoundments, dams, ventilation shafts, entryways, refuse banks,

dumps, stockpiles, overburden piles, spoil banks, culm banks,

tailings, holes or depressions, repair areas, storage areas,

processing areas, shipping areas, and other areas on which are

sited structures, facilities, or other property or materials on

the surface, resulting from or incident to those activities.

(21) "Unwarranted failure to comply" means the failure of a

permit holder to prevent the occurrence of any violation of the

permit holder's permit or any requirement of this chapter due to

indifference, lack of diligence, or lack of reasonable care, or

the failure to abate any violation of the permit holder's permit

or this chapter due to indifference, lack of diligence, or lack

of reasonable care.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 25.01(a),

eff. Sept. 1, 1997.

Sec. 134.005. EXEMPTIONS. (a) This chapter does not apply to

the extraction of coal:

(1) by a landowner for the landowner's own noncommercial use

from land owned or leased by the landowner; or

(2) incidental to federal, state, or local government-financed

highway or other construction under commission rules.

(b) Subsection (a)(1) does not exempt the noncommercial

production of coal by in situ distillation or retorting,

leaching, or another chemical or physical process or preparation.

reclamation operations in existence before August 3, 1977.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 25.01(b), eff. Sept.

1, 1997.

Sec. 134.006. WATER RIGHTS. This chapter does not affect the

right of a person under other law to enforce or protect the

person's interest in water resources affected by a surface coal

mining operation.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.007. CONFLICT OF INTEREST; OFFENSE. (a) An employee

of the commission commits an offense if the employee knowingly:

(1) performs a function or duty under this chapter; and

(2) has a direct or indirect financial interest in an

underground or surface coal mining operation.

(b) An offense under this section is punishable by:

(1) a fine of not more than $2,500;

(2) imprisonment for not more than one year; or

(3) both the fine and the imprisonment.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.008. APPLICABILITY TO GOVERNMENTAL UNITS. An agency,

unit, or instrumentality of federal, state, or local government,

including a publicly owned utility or publicly owned corporation

of federal, state, or local government, that proposes to engage

in surface coal mining operations that are subject to this

chapter shall comply with this chapter.

Added by Acts 1997, 75th Leg., ch. 165, Sec. 25.01(c), eff. Sept.

1, 1997.

SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION

Sec. 134.011. GENERAL AUTHORITY OF COMMISSION. To accomplish

the purposes of this chapter, the commission may:

(1) adopt, amend, and enforce rules pertaining to surface coal

mining and reclamation operations consistent with the general

intent and purposes of this chapter;

(2) issue permits under this chapter;

(3) conduct hearings under this chapter and Chapter 2001,

Government Code;

(4) issue orders requiring an operator to take actions necessary

to comply with this chapter or rules adopted under this chapter;

(5) issue orders modifying previous orders;

(6) issue a final order revoking the permit of an operator who

has not complied with a commission order to take action required

by this chapter or rules adopted under this chapter;

(7) order the immediate cessation of all or part of an ongoing

surface coal mining operation if the commission finds that the

operation or part of the operation creates an imminent danger to

the health or safety of the public or is causing or can

reasonably be expected to cause significant imminent harm to

land, air, or water resources, and take other action or make

changes in a permit that are reasonably necessary to avoid or

alleviate those conditions;

(8) hire employees, adopt standards for employment, and hire or

authorize the hiring of outside contractors to assist in carrying

out this chapter;

(9) enter and inspect, in person or by its agents, a surface

mining operation that is subject to this chapter to assure

compliance with this chapter;

(10) conduct, encourage, request, and participate in studies,

surveys, investigations, research, experiments, training, and

demonstrations by contract, grant, or otherwise;

(11) prepare and require permit holders to prepare reports;

(12) accept, receive, and administer grants, gifts, loans, or

other money made available from any source for the purposes of

this chapter;

(13) take the steps necessary for this state to participate to

the fullest extent practicable in the abandoned land program

provided by Title IV of the federal Act;

(14) take the actions necessary to establish exclusive

jurisdiction over surface coal mining and reclamation in Texas

under the provisions of the federal Act, including, if the

federal agency disapproves Texas' program as submitted, making

recommendations for remedial legislation to clarify, alter, or

amend the program to meet the terms of the federal Act;

(15) contract with state boards and agencies that have pertinent

expertise to obtain the professional and technical services

necessary to carry out this chapter;

(16) establish a process, to avoid duplication, for coordinating

the review and issuance of permits for surface coal mining and

reclamation operations with any other federal or state permit

process applicable to the proposed operations;

(17) enter into cooperative agreements with the secretary of the

interior for the regulation of surface coal mining operations on

federal land in accordance with the federal Act; and

(18) perform any other duty or act required by or provided for

in this chapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.012. JURISDICTION OF COMMISSION OVER SURFACE COAL, IRON

ORE, AND IRON ORE GRAVEL MINING AND RECLAMATION OPERATIONS. (a)

The commission has exclusive jurisdiction over:

(1) surface coal mining and reclamation operations in this

state; and

(2) iron ore and iron ore gravel mining and reclamation

operations in this state.

(b) This chapter governs iron ore and iron ore gravel mining and

reclamation operations to the extent it can be made applicable.

extend to:

(1) a mining or reclamation activity in progress on or before

September 1, 1985; or

(2) a mining operation or reclamation activity that is conducted

solely on real property owned in fee simple by the person

authorizing the operation or reclamation activity and that is

confined to a single, contiguous tract of land, if:

(A) the activity is conducted in an area not larger than 20

acres;

(B) the depth of the mining operation is restricted to 30 inches

or less; and

(d) This chapter does not authorize the commission to adjudicate

property title or property rights disputes.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.013. RULEMAKING AND PERMITTING. (a) The commission

shall adopt rules pertaining to surface coal mining and

reclamation operations required by this chapter.

(b) The process of making and amending rules and issuing permits

is subject to Chapter 2001, Government Code.

commission may have different terms for particular conditions,

types of coal being extracted, particular areas of the state, or

other relevant or necessary conditions if the action taken is

consistent with the general intent and purposes of this chapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.014. COAL EXPLORATION OPERATIONS. (a) A person who

conducts coal exploration operations that substantially disturb

the natural land surface shall comply with commission rules

adopted to govern those operations. The rules shall require that

before conducting the exploration, a person file with the

commission notice of intent to explore and include with the

notice:

(1) a description of the exploration area and the period of

proposed exploration; and

(2) provisions for reclaiming, in accordance with the

performance standards in Sections 134.091 through 134.109, the

land disturbed in exploration, including provisions for

reclamation of excavations, roads, and drill holes and for

removal of necessary facilities and equipment.

(b) A person who conducts coal exploration operations that

substantially disturb the natural land surface in violation of

this section or a rule adopted under this section is subject to

Sections 134.174 through 134.181.

an exploration permit without the specific written approval of

the commission.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 25.01(d),

eff. Sept. 1, 1997.

Sec. 134.015. SURFACE EFFECTS OF UNDERGROUND MINING. (a) The

commission shall adopt rules applicable to the surface effects of

underground mining that are consistent with the federal Act and

regulations adopted under that Act by the secretary of the

interior.

(b) This chapter applies to the regulation of the surface

effects of underground mining operations as established by

Section 516 of the federal Act.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.016. DEVELOPMENT OF PROCESS FOR DESIGNATING AREAS

UNSUITABLE FOR SURFACE COAL MINING. The commission shall develop

a process for designating areas unsuitable for surface coal

mining. The process shall include:

(1) reviewing surface coal mining land;

(2) developing a data base and an inventory system that will

permit proper evaluation of the capacity of different land areas

of the state to support and permit reclamation of surface coal

mining operations;

(3) developing, by rule, a method or methods for implementing

land use planning decisions about surface coal mining operations;

and

(4) developing, by rule, proper notice, provisions, and

opportunities for public participation, including a public

hearing, before the commission makes a designation or

redesignation under Section 134.020.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.017. PETITION FOR DESIGNATION. (a) An affected person

is entitled:

(1) before an application is filed under Section 134.052, to

petition the commission to designate an area unsuitable for

surface coal mining operations; or

(2) to petition the commission to terminate a designation.

(b) The petition shall contain:

(1) allegations of facts; and

(2) supporting evidence that would tend to establish the

allegations.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.018. HEARING ON DESIGNATION. (a) Not later than 10

months after the date the commission receives the petition, the

commission shall hold a public hearing under Chapter 2001,

Government Code, in the locality of the affected area.

(b) After a person has filed a petition under Section 134.017

and before the hearing required by Subsection (a), any person may

intervene by filing allegations of facts with supporting evidence

that would tend to establish the allegations.

agreement before the requested hearing and withdraw their

requests.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.019. COMMISSION STATEMENT. Before designating a land

area unsuitable for surface coal mining operations, the

commission shall prepare a detailed statement on:

(1) the potential coal resources of the area;

(2) the demand for coal resources; and

(3) the impact of the designation on the environment, the

economy, and the supply of coal.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.020. DESIGNATION OF AREA AS UNSUITABLE FOR SURFACE COAL

MINING. (a) On petition under Section 134.017, the commission

shall designate an area unsuitable for all or certain types of

surface coal mining operations if the commission determines that

reclamation under this chapter is not technologically and

economically feasible.

(b) On petition under Section 134.017, the commission may

designate a surface area unsuitable for certain types of surface

coal mining operations if those operations will:

(1) be incompatible with existing state or local land use plans

or programs;

(2) affect fragile or historic land in which the operations

could result in significant damage to important historic,

cultural, scientific, and aesthetic values and natural systems;

(3) affect renewable resource lands, including aquifers and

aquifer recharge areas, in which the operations could result in a

substantial loss or reduction of long-range productivity of water

supply or of food or fiber products; or

(4) affect natural hazard land, including areas subject to

frequent flooding and areas of unstable geology, in which the

operations could substantially endanger life and property.

apply to land:

(1) for which substantial legal and financial commitments in a

surface coal mining operation or proposed operation were in

existence before January 4, 1977;

(2) on which surface coal mining operations were being conducted

on August 3, 1977; or

(3) on which surface coal mining operations are being conducted

under a permit issued under this chapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.021. INTEGRATION WITH LAND USE PLANNING AND REGULATION

PROCESSES. Determinations of the unsuitability of land for

surface coal mining under Sections 134.016 through 134.020 shall

be integrated as closely as possible with present and future land

use planning and regulation processes at the federal, state, and

local levels.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.022. PROHIBITION ON SURFACE COAL MINING IN CERTAIN

AREAS. (a) Surface coal mining operations may not be permitted:

(1) that will adversely affect a publicly owned park or place

included in the National Register of Historic Sites unless

approved jointly by the commission and the federal, state, or

local agency with jurisdiction over the park or historic site;

(2) within 100 feet of the outside right-of-way line of a public

road, except:

(A) where a mine access road or haulage road joins the

right-of-way line; or

(B) as provided by Subsection (b);

(3) within 300 feet of an occupied dwelling, unless the owner of

the dwelling waives the prohibition;

(4) within 300 feet of a public, school, church, community, or

institutional building;

(5) within 300 feet of a public park; or

(6) within 100 feet of a cemetery.

(b) The commission may permit a public road to be relocated or

the area affected by surface coal mining operations to lie within

100 feet of the outside right-of-way line of the public road if,

after public notice and opportunity for public hearing in the

locality, a written finding is made that the interests of the

public and the landowners affected by the relocation will be

protected.

1977, and does not affect surface coal mining operations that

existed on August 3, 1977.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 25.01(e),

eff. Sept. 1, 1997.

Sec. 134.023. COOPERATIVE AGREEMENTS WITH FEDERAL GOVERNMENT.

The commission may enter into cooperative agreements with the

federal government under the federal Act.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.024. EXPERIMENTAL PRACTICES. (a) The commission, with

approval by the secretary of agriculture, may authorize

experimental departures, in individual cases, from the

environmental protection performance standards of this chapter

to:

(1) encourage advances in mining and reclamation practices; and

(2) allow postmining land use for industrial, commercial,

residential, or public use, including recreational facilities.

(b) The commission may authorize departures if:

(1) the experimental practices are potentially at least as

environmentally protective, during and after mining operations,

as those required by this chapter;

(2) the mining operations approved for particular land-use or

other purposes are not larger or more numerous than necessary to

determine the effectiveness and economic feasibility of the

experimental practices; and

(3) the experimental practices do not reduce the protection

afforded public health and safety below that provided by adopted

standards.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.025. CERTIFICATION OF BLASTERS. The commission shall

adopt rules requiring the training, examination, and

certification of persons engaging in or directly responsible for

blasting or the use of explosives in surface coal mining

operations.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.026. MONITORING, REPORTING, AND INSPECTIONS. (a) The

commission shall:

(1) require monitoring and reporting;

(2) inspect surface coal mining and reclamation operations;

(3) require the maintenance of signs and markers; and

(4) take other actions necessary to:

(A) administer, enforce, or evaluate the administration of this

chapter; or

(B) meet the state program requirements of the federal Act.

(b) For purposes of this section, the commission or its

authorized representative:

(1) without advance notice and on presentation of appropriate

credentials, has the right to enter:

(A) a surface coal mining and reclamation operation; or

(B) premises on which records required to be maintained are

located; and

(2) at reasonable times and without delay, may have access to

and copy records required under this chapter or rules adopted

under this chapter or inspect any monitoring equipment or method

of operation required under this chapter or rules adopted under

this chapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.027. MONITORING OF OPERATIONS THAT AFFECT AQUIFERS.

For surface coal mining and reclamation operations that remove or

disturb strata that serve as aquifers that significantly ensure

the hydrologic balance of water use on or off the mining site,

the commission shall specify:

(1) monitoring sites to record:

(A) the quantity and quality of surface drainage above and below

the mine site and in the potential zone of influence;

(B) the level and amount and to take samples of groundwater and

aquifers potentially affected by the mining and directly below

the lowermost, deepest coal seam to be mined; and

(2) records of well logs and borehole data to be maintained.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.028. INSPECTION PROCEDURE. Inspections by the

commission shall:

(1) occur irregularly, averaging not fewer than one partial

inspection each month and one complete inspection each calendar

quarter for the surface coal mining and reclamation operation

covered by each permit;

(2) occur without prior notice to the permit holder or the

permit holder's agents or employees except for necessary on-site

meetings with the permit holder; and

(3) include filing inspection reports adequate to enforce the

requirements of, and to carry out, this chapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.029. PROCEDURE ON DETECTION OF VIOLATION. On detection

of a violation of this chapter, an inspector, in writing, shall:

(1) promptly inform the operator; and

(2) report the violation to the commission.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.030. RULES REGARDING MONITORING, REPORTING, AND

INSPECTIONS. The commission shall adopt rules for:

(1) informing an operator of a violation detected by an

inspector; and

(2) making public all inspection and monitoring reports and

other records and reports required to be kept under this chapter

and rules adopted under this chapter and not confidential under

Section 134.031.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.031. CONFIDENTIALITY. (a) Information pertaining to

coal seams, test borings, core samplings, or soil samples

required by Section 134.052 shall be made available to an

affected person. However, information that pertains only to the

analysis of the chemical and physical properties of the coal,

except information regarding mineral or chemical content that is

potentially toxic in the environment, is confidential and is not

a public record.

(b) Information submitted to the commission concerning mineral

deposits, test borings, core samplings, or trade secrets or

commercial or financial information relating to the competitive

rights of the applicant and specifically identified as

confidential by the applicant, if not essential for public review

as determined by the commission, may not be disclosed by a

member, agent, or employee of the commission.

134.041 concerning mineral deposits, test borings, core

samplings, or trade secrets or commercial or financial

information relating to the competitive rights of the applicant

and specifically identified as confidential by the applicant, if

not essential for public review as determined by the commission,

may not be disclosed by a member, agent, or employee of the

commission. However, information required by another section that

must, by the terms of the other section, be on public file or

available to an affected person and information about the

chemical and physical properties of the coal that relate to

mineral or elemental contents that are potentially toxic in the

environment is not confidential.

(d) Information submitted to the commission under Section

134.014 as confidential concerning trade secrets or privileged

commercial or financial information that relates to the

competitive rights of the person intending to explore the

described area is not available for public examination.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.032. DETERMINATION REGARDING PRIME FARMLAND. The

commission may determine that land is not prime farmland because

of its soil type or slope.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

SUBCHAPTER C. PLANS

Sec. 134.041. RECLAMATION PLAN. A reclamation plan submitted as

part of a permit application shall include, in sufficient detail

to demonstrate that reclamation required by this chapter can be

accomplished, a statement that:

(1) identifies land subject to the surface coal mining operation

over the estimated life of the operation and the size, sequence,

and timing of any subareas for which it is anticipated that

individual permits for surface coal mining will be sought;

(2) describes the condition of the land to be covered by the

permit before any mining, including:

(A) the uses existing at the time of the application and, if the

land has a history of mining, the uses that preceded any mining;

(B) the capability of the land before any mining to support a

variety of uses, considering soil and foundation characteristics,

topography, vegetative cover, and, if applicable, a soil survey

prepared under Section 134.052(a)(16);

appropriate classification as prime farmland; and

(D) if the land is classified as prime farmland, the average

yield of food, fiber, forage, or wood products obtained from the

land under high levels of management;

(3) describes the proposed use of the land after

reclamation,including:

(A) a discussion of the utility and capacity of the reclaimed

land to support a variety of alternative uses and the

relationship of those uses to existing land uses; and

(B) the comments of state and local governments or agencies of

state or local government that must approve or authorize the

proposed use of the land after reclamation;

(4) describes in detail how the proposed postmining land use is

to be achieved and the necessary support activities that may be

needed to achieve that use;

(5) specifies the engineering techniques proposed to be used in

mining and reclamation and describes the major equipment;

(6) includes a plan for the control of surface water drainage

and water accumulation;

(7) includes, if appropriate, a plan for backfilling, soil

stabilization and compacting, grading, and appropriate

revegetation;

(8) includes a plan for soil reconstruction, replacement, and

stabilization under the performance standards in Section

134.092(a)(7) for land identified as prime farmland under Section

134.052(a)(16);

(9) estimates the cost for each acre of the reclamation,

including a statement as to how the permit holder plans to comply

with each requirement in Sections 134.091 through 134.109;

(10) describes the consideration given to maximizing the use and

conservation of the solid fuel resource being recovered so that

reaffecting the land in the future can be minimized;

(11) provides an estimated timetable for accomplishing each

major step in the reclamation plan;

(12) describes the consideration given to making the surface

mining and reclamation operations consistent with surface owner

plans and applicable land use plans and programs;

(13) identifies the steps to be taken to comply with applicable

air and water quality laws, rules, and regulations and any

applicable health and safety standards;

(14) describes the consideration given to developing the

reclamation plan in a manner consistent with local physical,

environmental, and climatological conditions;

(15) contains the results of test borings the applicant has made

at the permit area or other equivalent information in a form

satisfactory to the commission, including:

(A) the location of subsurface water; and

(B) an analysis of the chemical properties of the coal and

overburden that can be expected to adversely affect the

environment;

(16) identifies:

(A) any land contiguous to the area to be covered by the permit,

or any interest or option on an interest in the contiguous land,

held by the applicant; and

(B) any pending bid by the applicant on an interest in the

contiguous land; and

(17) describes in detail the measures to be taken during the

mining and reclamation process to assure the protection of:

(A) the quality of surface-water systems and groundwater

systems, both on and off the mine site, from adverse effects of

the mining and reclamation process;

(B) the rights of present users to surface-water systems and

groundwater systems, both on and off the mine site; and

systems, both on and off the mine site, from adverse effects of

the mining and reclamation process, or to provide alternative

sources of water where the protection of quantity cannot be

assured.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.042. BLASTING PLAN. An applicant for a surface coal

mining and reclamation permit shall submit to the commission as

part of its application a blasting plan that outlines the

procedures and standards by which the operator will comply with

Section 134.092(a)(15).

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

SUBCHAPTER D. SURFACE COAL MINING PERMITS

Sec. 134.051. PERMIT REQUIRED FOR OPERATION. A person may not

conduct a surface coal mining operation in this state without

first obtaining a permit for that operation from the commission

under this chapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.052. CONTENTS OF PERMIT APPLICATION. (a) A permit

application must be submitted in a manner satisfactory to the

commission and must contain:

(1) the name and address of:

(A) the applicant;

(B) each owner of record of the property to be mined;

property;

(D) the purchaser of record of the property under a real estate

contract;

(E) the operator if the operator is not the applicant;

(F) the principals, officers, and resident agent of a person

described by Paragraph (A), (B), (C), (D), or (E) if the person

is a business entity other than a sole proprietor; and

(G) the owners of record of the property adjoining the permit

area;

(2) a description of any:

(A) current or previous surface coal mining permits held by the

applicant; or

(B) other pending application by the applicant;

(3) information about ownership and management of the applicant

or operator required by commission rule;

(4) a statement of whether the applicant or a subsidiary,

affiliate, or other person controlled by or under common control

with the applicant:

(A) has held a federal or state mining permit that has been

suspended or revoked in the five years preceding the date the

application is submitted and, if so, a brief explanation of the

facts involved; or

(B) has forfeited a mining bond or similar security deposited in

lieu of bond and, if so, a brief explanation of the facts

involved;

(5) a copy of the notice required by Section 134.058;

(6) a description of:

(A) the type and method of the existing or proposed coal mining

operation;

(B) the engineering techniques proposed or in use; and

(7) the anticipated or actual starting and termination dates of

each phase of the mining operation and number of acres of land to

be affected;

(8) an accurate map or plan, to an appropriate scale, clearly

showing:

(A) the land to be affected as of the date of the application;

and

(B) the area of land in the permit area on which the applicant

has the right to enter and begin surface mining operations;

(9) the documents on which the applicant bases the applicant's

right to enter and begin surface mining operations on the

affected area;

(10) a statement of whether the applicant's right to enter and

begin surface mining operations on the affected area is the

subject of pending court litigation;

(11) the name of the watershed and location of the surface

streams or tributaries into which surface and pit drainage will

be discharged;

(12) a determination of the probable hydrologic consequences of

the mining and reclamation operation, if any, both on and off the

mine site, with respect to the hydrologic regime and the quantity

and quality of water in surface-water systems and groundwater

systems, including the dissolved and suspended solids under

seasonal flow conditions;

(13) sufficient data on the mine site and surrounding areas for

the commission to assess the probable cumulative impacts of all

anticipated mining in the area on the hydrology of the area,

particularly on water availability;

(14) when requested by the commission, the published

climatological factors peculiar to the locality of the land to be

affected, including:

(A) the average seasonal precipitation;

(B) the average direction and velocity of prevailing winds; and

(15) a statement of the result of test borings or core samplings

from the permit area, including:

(A) logs of the drill holes;

(B) the thickness of the coal seam found;

(D) the sulfur content of any coal seam;

(E) a chemical analysis of any potentially acid- or

toxic-forming sections of the overburden; and

(F) a chemical analysis of the stratum lying immediately

underneath the coal to be mined;

(16) for land in the permit application that a reconnaissance

inspection suggests may be prime farmland, a soil survey made or

obtained according to standards established by the secretary of

agriculture to confirm the exact location of the land;

(17) a reclamation plan that complies with this chapter;

(18) if applicable, a schedule listing any notices of violations

as provided by Section 134.068;

(19) a certificate satisfactory to the commission that the

applicant has a public liability insurance policy as described by

Section 134.053 in effect for the surface coal mining and

reclamation operation for which the permit is sought, or evidence

satisfactory to the commission that the applicant should be

allowed to be self-insured; and

(20) other data and maps the commission requires by rule.

(b) A determination under Subsection (a)(12) may not be required

until the time that hydrologic information on the general area

before mining is made available from an appropriate state agency,

but the permit may not be approved until the information is

available and has been incorporated into the application.

application if the commission determines in writing that the

information is unnecessary.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.053. LIABILITY INSURANCE POLICY. (a) The public

liability insurance policy required by Section 134.052(a)(19)

shall provide for personal injury and property damage protection

in an amount adequate to compensate a person who is:

(1) damaged as a result of the surface coal mining and

reclamation operations, including the use of explosives; and

(2) entitled to compensation under state law.

(b) The policy shall be maintained in effect during the term of

the permit and any renewal for the entire period in which

reclamation operations are conducted.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.054. APPLICATION FEES. (a) An application for a

surface mining permit or for renewal or revision of a surface

mining permit must be accompanied by an application fee

determined by the commission in accordance with a published fee

schedule. The commission shall base the application fee as nearly

as possible on the actual or anticipated cost of reviewing the

application.

(b) The application fee may not be less than:

(1) $5,000 for an initial surface mining permit;

(2) $3,000 for renewal of a surface mining permit; or

(3) $500 for revision of a surface mining permit.

renewal of a surface mining permit may be paid in equal annual

installments during the term of the permit.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.055. ANNUAL FEES. (a) In addition to the application

fees required by Section 134.054, each permit holder shall pay to

the commission the following annual fees:

(1) a fee for each acre of land in the permit area on which the

permit holder actually conducted operations for removing coal

during the year;

(2) a fee for each acre of land in the bonded permit area on

December 31 of the year; and

(3) a fee for the permit if the permit was in effect on December

31 of the year.

(b) A fee under Subsection (a) is due not later than March 15 of

the year following the year for which the fee was imposed.

Subsection (a).

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

179, Sec. 1, eff. September 1, 2005.

Sec. 134.056. SMALL MINE EXEMPTION. The commission shall

designate a qualified public or private laboratory to prepare the

determination of probable hydrologic consequences and statement

of the results of test borings or core samplings required by

Section 134.052 and shall pay the costs of preparing the

determination and statement if:

(1) a surface coal mining operator makes a request in writing;

and

(2) the commission finds that the probable total annual

production at all locations of the surface coal mining operator

will not exceed 300,000 tons.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995. Amended by Acts 1997, 75th Leg., ch. 1307, Sec. 1, eff.

Sept. 1, 1997.

Sec. 134.057. PUBLIC INSPECTION OF APPLICATION. (a) An

applicant for a surface coal mining and reclamation permit shall

file a copy of the application for public inspection with the

county clerk of the county in which the mining is proposed to

occur. This subsection does not apply to information in the

application pertaining to the coal seam itself.

(b) Copies of any records, reports, inspection materials, or

information obtained under this chapter by the commission shall

be made immediately available to the public at central and

sufficient locations in the county, multicounty, and state area

of mining so that they are conveniently available to residents in

the areas of mining. This subsection does not apply to records,

reports, inspection materials, or information that is

confidential under Section 134.031.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.058. NOTICE BY APPLICANT. At the time the applicant

submits an application for a surface coal mining and reclamation

permit or renewal of an existing permit, the applicant shall

publish an advertisement in a newspaper of general circulation in

the locality of the proposed surface coal mining operation at

least once a week for four consecutive weeks that:

(1) shows the ownership and describes the location and

boundaries of the proposed site sufficiently so that the proposed

operation can be readily located; and

(2) states that the application is available for public

inspection at the county courthouse of the county in which the

property lies.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.059. NOTIFICATION BY COMMISSION. (a) The commission

shall notify local governmental bodies, planning agencies, and

sewage and water treatment authorities in the locality of a

proposed surface coal mining operation that the operator intends

to conduct a surface mining operation.

(b) The notice shall indicate the application number and the

county courthouse in which a copy of the proposed surface coal

mining and reclamation plan can be inspected.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.060. COMMENTS. (a) During a period established by the

commission, a local body, agency, authority, or company described

by Section 134.059 may submit written comments on the effect of

the proposed operation on the environment in the entity's area of

responsibility.

(b) The commission shall immediately send the comments to the

applicant.

same location as the mining application.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.061. WRITTEN OBJECTIONS. (a) Not later than the 30th

day after the date of the last publication of notice under

Section 134.058, an affected person or a federal, state, or local

governmental agency or authority is entitled to file with the

commission written objections to a proposed initial or revised

application for a surface coal mining and reclamation operation

permit.

(b) The commission shall immediately send the objections to the

applicant.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.062. REQUEST FOR PUBLIC HEARING; NOTICE. (a) Not

later than the 45th day after the date of the last publication of

notice under Section 134.058, the applicant or an affected person

may request a hearing on the application. The hearing shall be

held not later than the 30th day after the date the commission

receives the request.

(b) The commission shall publish notice of the date, time, and

location of the public hearing in a local newspaper of general

circulation in the locality of the proposed surface coal mining

operations at least once a week for three consecutive weeks

before the scheduled hearing date.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.063. NOTICE OF APPROVAL OR DENIAL. The commission

shall notify the applicant and any objector that the permit

application has been approved or denied:

(1) within the time provided by Chapter 2001, Government Code,

if a public hearing is held under Section 134.062; or

(2) not later than the 45th day after the date of the last

publication of notice of application if a public hearing is not

held.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.064. PROCEDURE. Chapter 2001, Government Code, applies

to a permit application under this chapter. Notice of hearing and

appeal is governed by that chapter, except as provided by Section

134.062.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.065. PERMIT APPROVAL OR DENIAL. (a) On the basis of a

complete application for a surface coal mining and reclamation

permit or a revision or renewal of a permit, as required by this

chapter, the commission shall grant, require modification of, or

deny a permit application.

(b) The commission shall notify the applicant of its decision in

writing within a reasonable time as set by the commission.

burden of establishing that the application complies with this

chapter.

(d) Not later than the 10th day after the date the commission

grants a permit, the commission shall notify the county judge in

the county in which the land to be affected is located that a

permit has been issued and shall describe the location of the

land.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.066. WRITTEN FINDINGS REQUIRED. (a) The commission

may not approve an application for a permit or a permit revision

unless it finds, in writing, using the information in the

application or information otherwise available that will be

documented in the approval and made available to the applicant,

that:

(1) the application is accurate and complete and complies with

this chapter;

(2) the applicant has demonstrated that the reclamation required

by this chapter can be accomplished under the reclamation plan

contained in the application;

(3) the commission has assessed the probable cumulative impact

that all anticipated surface coal mining in the area will have on

the hydrologic balance, and the proposed operation has been

designed to prevent material damage to the hydrologic balance

outside the permit area;

(4) the area proposed to be mined is not included in an area:

(A) designated unsuitable for surface coal mining under this

chapter; or

(B) under study for this designation in an administrative

proceeding begun under this chapter;

(5) the proposed surface coal mining operation, if located west

of the 100th meridian west longitude, will not:

(A) interrupt, discontinue, or preclude farming on alluvial

valley floors that are irrigated or naturally subirrigated,

excluding:

(i) undeveloped rangeland that is not significant to farming on

the alluvial valley floors; and

(ii) land on which the commission finds that the farming to be

interrupted, discontinued, or precluded is of such small acreage

as to have negligible impact on the farm's agricultural

production; or

(B) materially damage the quantity or quality of water in

surface or underground water systems that supply those valley

floors; and

(6) the applicant has submitted to the commission, if the

ownership of the coal has been severed from the private surface

estate:

(A) the surface owner's written consent to the extraction of

coal by surface mining methods; or

(B) a conveyance that expressly grants or reserves the right to

extract the coal by surface mining methods.

(b) Subsection (a)(4)(B) does not apply to an area as to which

an administrative proceeding has begun if the applicant

demonstrates that, before January 1, 1977, the applicant made

substantial legal and financial commitments in relation to the

operation for which the applicant is applying for a permit.

operation that in the year preceding May 9, 1979:

(1) produced coal in commercial quantities and was located in or

adjacent to alluvial valley floors; or

(2) had obtained specific permit approval by the commission to

conduct surface coal mining operations in the alluvial valley

floors.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.067. DETERMINATION OF OWNERSHIP. If the ownership of

the coal has been severed from the private surface estate by a

conveyance that does not expressly grant the right to extract

coal by surface mining methods, the surface-subsurface legal

relationship shall be determined in accordance with state law.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.068. SCHEDULE OF NOTICES OF VIOLATIONS. (a) The

applicant shall file with the application a schedule listing any

notices of violations of this chapter, the federal Act, a federal

regulation or federal or state program adopted under the federal

Act, or another law, rule, or regulation of the United States,

this state, or a department or agency in the United States

pertaining to air or water environmental protection incurred by

the applicant in connection with a surface coal mining operation

during the three years before the application date.

(b) The schedule must indicate the final resolution of any

notice of violation.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 25.01(f),

eff. Sept. 1, 1997.

Sec. 134.069. EFFECT OF PAST OR PRESENT VIOLATION. (a) If the

schedule under Section 134.068 or other information available to

the commission indicates that a surface coal mining operation

owned or controlled by the applicant is currently in violation of

this chapter or another law referred to in Section 134.068, the

commission may not issue a permit until the applicant submits

proof that the violation has been corrected or is being corrected

to the satisfaction of the commission, department, or agency with

jurisdiction over the violation.

(b) The commission may not issue a permit to an applicant if it

finds, after opportunity for hearing, that the applicant or

operator specified in the application controls or has controlled

mining operations with a demonstrated pattern of wilful

violations of this chapter or another law referred to in Section

134.068 that, by their nature and duration and the resulting

irreparable damage to the environment, indicate an intent not to

comply with this chapter or another law referred to in that

section.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 25.01(f), eff. Sept.

1, 1997.

Sec. 134.070. PERMIT FOR MINING ON PRIME FARMLAND. (a) After

consulting with the secretary of agriculture and under

regulations issued under the federal Act by the secretary of the

interior with the concurrence of the secretary of agriculture,

the commission shall grant a permit to mine on prime farmland if:

(1) the area proposed to be mined contains prime farmland;

(2) the commission makes the findings required by Section

134.066 for the application under consideration; and

(3) the commission in addition finds in writing that:

(A) the operator has the technological capability to restore the

mined area within a reasonable time to a level of yield equal to

or higher than that of nonmined prime farmland in the surrounding

area under equivalent levels of management; and

(B) the applicant can meet the soil reconstruction standards of

the federal Act.

(b) This section does not apply to:

(1) a permit issued before August 3, 1977;

(2) a revision or renewal of a permit issued before August 3,

1977; or

(3) an existing surface mining operation for which a permit was

issued before August 3, 1977.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.071. TERM. (a) A permit is issued for a term not to

exceed five years.

(b) The commission may grant a permit for a specified longer

term if:

(1) an applicant demonstrates that a specified longer term is

reasonably needed to allow the applicant to obtain necessary

financing for equipment or the opening of the operation; and

(2) the application for the specified longer term is complete.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 12.02(a), eff. Sept.

1, 1995.

Sec. 134.072. TERMINATION ON FAILURE TO BEGIN OPERATIONS. (a)

A permit terminates

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Texas Codes and Statutes

CHAPTER 134. TEXAS SURFACE COAL MINING AND RECLAMATION ACT