Part I.
Railroad Commission of Texas
Chapter 12.
Coal Mining Regulations
The Railroad Commission of Texas proposes repeals of §12.804,
relating to reclamation objectives and priorities; §12.805, relating
to reclamation project evaluation; §12.806, relating to consent to entry;
§12.807, relating to entry for studies or exploration; §12.808,
relating to entry and consent to reclaim; §12.809, relating to land eligible
for acquisition; §12.810, relating to procedures for acquisition; §12.811,
relating to acceptance of gifts of land; §12.812, relating to management
of acquired lands; §12.813, relating to disposition of reclaimed lands;
§12.814, relating to operations on private land; and §12.816, relating
to liens. The Commission also proposes new §12.804, relating to reclamation
objectives and priorities; §12.805, relating to utilities and other facilities;
§12.806, relating to limited liability; §12.807, relating to contractor
responsibility; §12.808, relating to eligible noncoal lands and water;
§12.809, relating to reclamation priorities for noncoal program; §12.810,
relating to exclusion of certain noncoal reclamation sites; §12.811,
relating to land acquisition authority - noncoal; §12.812, relating to
lien requirements; §12.813, relating to written consent for entry; §12.814,
relating to entry and consent to reclaim; §12.816, relating to liens;
§12.818, relating to entry for emergency reclamation; §12.819, relating
to land eligible for acquisition; §12.820, relating to procedures for
acquisition; §12.821, relating to acceptance of gifts of land; §12.822,
relating to management of acquired land; and §12.823, relating to disposition
of reclaimed lands. The Commission also proposes amendments to §12.801,
relating to definitions; §12.803, relating to eligible coal lands and
water; and §12.815, relating to appraisals.
All of the proposed changes and additions are required for the commission
to continue to demonstrate that its program is no less effective than the
requirements of the Office of Surface Mining Reclamation and Enforcement (OSM),
United States Department of the Interior, for surface coal mining regulation
processes.
Amendments to §12.801 include new definitions of "abandoned mine reclamation
fund or fund," "eligible lands and water," "emergency," "extreme danger,"
"left or abandoned in either an unreclaimed or inadequately reclaimed condition
- lands and water," "OSM," "permanent facility," "project," "reclamation activity,"
and "state reclamation program." The amended definition of "Texas abandoned
mine reclamation fund" substitutes the word "account" for "fund."
Amendments to §12.803 include deleting subsection (b), relating to
the reclamation of noncoal lands, and adding paragraphs (4) through (8), relating
to reclamation of coal lands mined after August 3, 1977.
Section 12.804, relating to reclamation objectives and priorities, is proposed
to be repealed. Proposed new §12.804, relating to reclamation objectives
and priorities, requires that reclamation be accomplished in accordance with
OSM's "Final Guidelines for Reclamation Programs and Projects."
Section 12.805, relating to reclamation project evaluation, is proposed
to be repealed. This section sets out factors to be considered in prioritizing
potential reclamation projects. These issues are addressed by proposed new
§12.804. Proposed new §12.805, relating to utilities and other facilities,
addresses adverse effects on water supplies. It also authorizes enhancement
of facilities or utilities during reclamation if necessary to meet applicable
public health and safety standards.
Section 12.806, relating to consent to entry, is proposed to be repealed.
Matters relating to entry and consent are addressed in proposed new §12.814.
Proposed new §12.806, relating to limited liability, provides that the
commission shall not be responsible for costs and damages associated with
reclamation activities under certain circumstances.
Section 12.807, relating to entry for studies or exploration, is proposed
to be repealed. Entry for studies or exploration is addressed in proposed
new §12.814. Proposed new §12.807, relating to contractor responsibility,
requires that a bidder for an abandoned mine land (AML) contract must be eligible
at the time of contract award to receive a permit to conduct surface coal
mining operations.
Section 12.808, relating to entry and consent to reclaim, is proposed to
be repealed. Entry and consent to reclaim is addressed under proposed new
§12.814. Proposed new §12.808, relating to eligible noncoal lands
and water, specifies the circumstances under which the commission can reclaim
lands or water impacted by mining for materials other than coal.
Section 12.809, relating to land eligible for acquisition, is proposed
to be repealed. Land eligible for acquisition is addressed under proposed
new §§12.811 and 12.819. Proposed new §12.809, relating to
reclamation priorities for noncoal lands and water, sets out the commission's
reclamation priorities for protection of public health, safety, general welfare
and property, restoration of land and water resources and previously degraded
environment, enhancement of facilities or utilities, grants for these activities
or construction, and qualifications for these grants.
Section 12.810, relating to procedures for acquisition, is proposed to
be repealed. Procedures for acquisition are addressed in proposed new §12.820.
Proposed new §12.810, relating to exclusion of certain noncoal reclamation
sites, prohibits use of abandoned mined land reclamation funds for remediation
of sites subject to regulation under the federal Uranium Mill Tailings Radiation
Control Act or the federal Comprehensive Environmental Response Compensation
and Liability Act.
Section 12.811, relating to acceptance of gifts of land, is proposed to
be repealed. Acceptance of gifts of land is addressed in proposed new §12.821.
Proposed new §12.811, relating to land acquisition authority - noncoal,
provides that provisions of §§12.813, 12.814, and 12.818 through
12.823 (relating to written consent to entry; entry and consent to reclaim;
entry for emergency reclamation; land eligible for acquisition; procedures
for acquisition; acceptance of gifts of land; management of acquired land;
and disposition of reclaimed land) apply to the commission's noncoal program.
Section 12.812, relating to management of acquired lands, is proposed to
be repealed. Management of acquired lands is addressed under proposed new
§12.822. Proposed new §12.812, relating to lien requirements, provides
that the lien requirements of §§12.815 through 12.817 (relating
to appraisals, liens, and satisfaction of liens), apply to the noncoal reclamation
program.
Section 12.813, relating to disposition of reclaimed lands, is proposed
to be repealed. Proposed new §12.813, relating to written consent for
entry, requires written consent from landowner prior to entry on land for
purposes of conducting reclamation activities.
Section 12.814, relating to operations on private land, is proposed to
be repealed. Conditions for entry to land are incorporated into proposed new
§§12.813 and 12.814. Proposed new §12.814, relating to entry
and consent to reclaim, sets out the conditions that must be met before the
commission can enter and reclaim property.
The commission proposes to amend §12.815(d), relating to appraisals,
to update internal references.
Section 12.816, relating to liens, is proposed to be repealed. Proposed
new §12.816, relating to liens, requires that the commission notify the
land owner prior to placing a lien on reclaimed property.
Proposed new §12.818, relating to entry for emergency reclamation,
authorizes the commission to enter land to conduct remedial work where an
emergency exists or if necessary to gain access to land upon which an emergency
exists.
Proposed new §12.819, relating to land eligible for acquisition, sets
out conditions under which the commission may acquire land to conduct reclamation.
Proposed new §12.820, relating to the procedures for acquisition by
commission, sets out the procedures the commission must follow to acquire
land for reclamation.
Proposed new §12.821, relating to the acceptance of gifts of land
by commission, sets out the conditions under which the commission may accept
gifts of land.
Proposed new §12.822, relating to the management of acquired land
by commission, authorizes the use of acquired land for any lawful purpose
consistent with necessary reclamation activities.
Proposed new §12.823, relating to the disposition of reclaimed lands
by commission, establishes procedures for sale of land acquired by commission
for reclamation.
Melvin Hodgkiss, Director, Surface Mining and Reclamation Division, has
determined that during each year of the first five years the proposed repeals,
amendments, and new sections are in effect, there will be no fiscal impacts
to state or local governments as a result of their adoption. The new requirements
applicable to the commission will impose no new costs on the commission.
Mr. Hodgkiss has determined that for each year of the first five years
the proposed repeals, amendments, and new sections are in effect, there will
be no increased costs of compliance with the amended rules. These amendments
are largely housekeeping measures that are anticipated to have no practical
effect in Texas but will keep the Texas program in compliance with OSM requirements.
Further, the rules relate to reclamation activities of the commission, not
the regulated industry.
Mr. Hodgkiss has also determined that the public benefit from the adoption
of the proposed amendments will be continued compliance with requirements
of OSM.
The commission has not requested a local employment impact statement, pursuant
to Texas Government Code, §2001.022.
Comments on the proposed sections should be submitted to Melvin Hodgkiss,
Director, Surface Mining and Reclamation Division, Railroad Commission of
Texas, P. O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted
until 5 p.m. on the 15th day after publication in the
Texas Register
.
Subchapter R. Texas Abandoned Mine Land Reclamation Program
16 TAC §§12.804-12.814, 12.816
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Railroad Commission of Texas or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §134.013 of the
Texas Natural Resources Code, which provides the commission the authority
to promulgate rules pertaining to surface coal mining operations.
The Texas Natural Resources Code, §134.013, is affected by the proposed
repeals.
§12.804. Reclamation Objectives and Priorities.
§12.805. Reclamation Project Evaluation.
§12.806. Consent to Entry.
§12.807. Entry for Studies or Exploration.
§12.808. Entry and Consent to Reclaim.
§12.809. Land Eligible for Acquisition.
§12.810. Procedures for Acquisition.
§12.811. Acceptance of Gifts of Land.
§12.812. Management of Acquired Lands.
§12.813. Disposition of Reclaimed Lands.
§12.814. Operations on Private Land.
§12.816. Liens.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
April 16, 1999.
TRD-9902224
Mary Ross McDonald
Deputy General Counsel, Office of the General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 463-7008
16 TAC §§12.801, 12.803-12.816, 12.818-12.823
The amendments and new sections are proposed under §134.013
of the Texas Natural Resources Code, which provides the commission the authority
to promulgate rules pertaining to surface coal mining operations.
The Texas Natural Resources Code, §134.013, is affected by the proposed
amendments and new sections.
§12.801. Definitions.
The following words and terms, when used in this subchapter (relating
to the Texas Abandoned Mine Land Reclamation Program), shall have the following
meanings unless the context clearly indicates otherwise:
(1)
Abandoned Mine Reclamation
Fund or Fund - A special fund established by the United States Treasury for
the purpose of accumulating revenues designated for reclamation of abandoned
mine lands and other activities authorized by Title IV of the Federal Act.
(2)
Eligible lands and water
- Land and water eligible for reclamation or drainage abatement expenditures
which were mined for coal or which were affected by such mining, wastebanks,
coal processing, or other coal mining processes and left or abandoned in either
an unreclaimed or inadequately reclaimed condition prior to August 3, 1977,
and for which there is no continuing reclamation responsibility. Lands and
water damaged by coal mining operations after August 3, 1977, and on or before
November 5, 1990, may also be eligible for reclamation if they meet the requirements
specified in §12.803 of this title (relating to Eligible Coal Lands and
Water). Following certification of the completion of all known coal problems,
eligible lands and water for noncoal reclamation purposes shall be those sites
that meet the eligibility requirements specified in §§12.808 and
12.810 of this title (relating to Eligible Lands and Water Prior to Certification
and to Eligible Lands and Water Subsequent to Certification). For additional
eligibility requirements for water projects, see §12.805 of this title
(relating to Utilities and Other Facilities), and for lands affected by remining
operations, see Section 404 of the Federal Act.
(3)
[
(4)
[
(5)
[
(A)
which were mined or which were affected by such mining,
wastebanks, processing or other mining processes prior to August 3, 1977,
or between August 3, 1977 and November 5, 1990, as authorized pursuant to
Section 402(g)(4) of the Federal Act, and on which all mining has ceased;
[
(B)
which continue in their present condition, to substantially
degrade the quality of the environment, prevent or damage the beneficial use
of the land or water resources, or endanger the health or safety of the public;
and
(C)
for which there is no continuing
reclamation responsibility under state or federal laws, except as provided
in Sections 402(g)(4) and 403(b)(2) of the Federal Act.
(6)
OSM - The Office
of Surface Mining Reclamation and Enforcement.
(7)
Permanent facility -
Any structure that is built, installed, or established to serve a particular
purpose, or any manipulation or modification of the surface that is designed
to remain after the reclamation activity is completed, such as a relocated
stream channel or diversion ditch.
(8)
Project - A delineated
area containing one or more abandoned mine land problems. A project may be
a group of related reclamation activities with a common objective within a
political subdivision of the state or within a logical, geographically defined
area, such as a watershed, conservation district, or county planning area.
(9)
Reclamation activity
- The reclamation, abatement, control, or prevention of adverse effects of
past mining.
(10)
State reclamation program
- A program established by the state in accordance with this chapter for reclamation
of lands and water adversely affected by past mining, including the reclamation
plan and annual applications for grants.
(11)
[
§12.803. Eligible Coal Lands and Water.
(a)
Coal mined lands and associated waters
shall be
[
(1)
they were mined
for coal
or affected by
coal
mining processes;
(2)
they were mined prior to August 3, 1977, and left
or abandoned in either an unreclaimed or inadequately reclaimed condition;
[
(3)
there is no continuing responsibility for reclamation
by the operator, permittee, or agent of the permittee under statutes of the
state or federal government, or the state as a result of bond forfeiture.
Bond forfeiture
shall
[
(b)
Notwithstanding subsection
(a) of this section, coal lands and waters in the state damaged and abandoned
after August 3, 1977, by coal mining processes shall also be eligible for
funding if the Secretary finds in writing that:
(1)
they were mined for coal or affected by coal
mining processes; and
(2)
the mining occurred and the site was left
in either an unreclaimed or inadequately reclaimed condition between August
4, 1977, and either:
(A)
the date on which the Secretary approved the
state regulatory program pursuant to Section 503 of the Federal Act, and that
any funds for reclamation or abatement that are available pursuant to a bond
or other form of financial guarantee or from any other source are not sufficient
to provide for adequate reclamation or abatement at the site; or
(B)
November 5, 1990, and that the surety of the
mining operator became insolvent during such period, and that, as of November
5, 1990, funds immediately available from proceedings relating to such insolvency
or from any financial guarantee or other source are not sufficient to provide
for adequate reclamation or abatement at the site; and
(3)
the site qualifies as a priority
1 or 2 site pursuant to Section 403(a)(1) and (2) of the Federal Act. Priority
shall be given to those sites that are in the immediate vicinity of a residential
area or that have an adverse economic impact upon a community.
(c)
The commission may expend
funds made available under paragraphs 402(g)(1) and (5) of the Federal Act
for reclamation and abatement of any site eligible under subsection (b) of
this section if the commission, with the concurrence of the Secretary, makes
the findings required in subsection (b) of this section and the commission
determines that the reclamation priority of the site is the same or more urgent
than the reclamation priority for the lands and water eligible pursuant to
subsection (a) of this section that qualify as a priority 1 or 2 site under
Section 403(a) of the Federal Act.
(d)
With respect to lands eligible
pursuant to subsection (b) or (c) of this section, moneys available from sources
outside the Abandoned Mine Reclamation Fund or that are ultimately recovered
from responsible parties shall either be used to offset the cost of the reclamation
or transferred to the Abandoned Mine Reclamation Fund if not required for
further reclamation activities at the permitted site.
(e)
If reclamation of a site covered
by an interim or permanent program permit is carried out under the Abandoned
Mine Land Program, the permittee of the site shall reimburse the Abandoned
Mine Land Fund for the cost of reclamation that is in excess of any bond forfeited
to ensure reclamation. Neither the Secretary nor the commission performing
reclamation under subsec
tion (b) or (c) of this section shall
be held liable for any violations of any performance standards or reclamation
requirements specified in Title V of the Federal Act nor shall a reclamation
activity undertaken on such lands or waters be held to any standards set forth
in Title V of the Federal Act or Subchapter K of the State Act.
(f)
Surface coal mining operations
on lands eligible for remining pursuant to Section 404 of the Federal Act
shall not affect the eligibility of such lands for reclamation activities
after the release of the bonds or deposits posted by any such operation as
provided by §12.312 and §12.313 of this title (relating to Procedure
for Seeking Release of Performance Bond and to Criteria and Schedule for Release
of Performance Bond). If the bond or deposit for a surface coal mining operation
on lands eligible for remining is forfeited, funds available under this title
may be used if the amount of such bond or deposit is not sufficient to provide
for adequate reclamation or abatement.
[
Lands and water which were
mined or affected by mining for minerals and materials other than coal shall
be eligible for reclamation activities if:]
[
the conditions of subsection (a) of this section
have been met;]
[
the reclamation has been requested by
the Governor; and]
[
all reclamation with respect to abandoned
coal mine land and water has been accomplished within the state or the reclamation
is necessary for the protection of the public health, and safety.]
§12.804. Reclamation Objectives and Priorities.
(a)
Reclamation projects should be accomplished in accordance
with OSM's "Final Guidelines for Reclamation Programs and Projects" (45 Federal
Register 14810-14819, March 6, 1980).
(b)
Reclamation projects shall reflect the priorities of Section
403(a) of the Federal Act. Generally, projects lower than a priority 2 should
not be undertaken until all known higher priority coal projects either have
been accomplished, are in the process of being reclaimed, or have been approved
for funding by the Secretary, except in those instances where such lower priority
projects may be undertaken in conjunction with a priority 1 or 2 site in accordance
with OSM's "Final Guidelines for Reclamation Programs and Projects."
§12.805. Utilities and Other Facilities.
(a)
If the adverse effect on water supplies referred to in
this section occurred both prior to and after August 3, 1977, the project
shall remain eligible, notwithstanding the criteria specified in §12.803
of this title (relating to Eligible Coal Lands and Water), if the commission
finds in writing, as part of its eligibility opinion, that such adverse affects
are due predominately to effects of mining processes undertaken and abandoned
prior to August 3, 1977.
(b)
Enhancement of facilities or utilities under this section
shall include upgrading necessary to meet any local, state, or federal public
health or safety requirement. Enhancement shall not include any service area
expansion of a utility or facility not necessary to address a specific abandoned
mine land problem.
§12.806. Limited Liability.
The commission shall not be liable under any provision of federal law
for any costs or damages as a result of action taken or omitted in the course
of carrying out an approved commission abandoned mine reclamation plan. This
section shall not preclude liability for costs or damages as a result of gross
negligence or intentional misconduct by the commission. For purposes of this
section, reckless, willful, or wanton misconduct shall constitute gross negligence
or intentional misconduct.
§12.807. Contractor Responsibility.
To receive AML funds, every successful bidder for an AML contract must
be eligible under §12.215 of this title (relating to Review of Permit
Applications) at the time of contract award to receive a permit or conditional
permit to conduct surface coal mining operations. Bidder eligibility must
be confirmed by OSM's automated Applicant/Violator System for each contract
to be awarded.
§12.808. Eligible Noncoal Lands and Water.
(a)
Following certification by the commission of the completion
of all known coal projects and the Director's concurrence in such certification,
eligible noncoal lands, waters, and facilities shall be those:
(1)
which were mined or processed for minerals or which were
affected by such mining or processing, and abandoned or left in an inadequate
reclamation status prior to August 3, 1977; and
(2)
for which there is no continuing reclamation responsibility
under state or other federal laws.
(b)
If eligible coal problems are found or occur after certification,
the commission shall address the coal problem utilizing state share funds
no later than the next grant cycle, subject to the availability of funds distributed
to the commission in that cycle. The coal project shall be subject to the
coal provisions specified in Sections 401 through 410 of the Federal Act.
§12.809. Reclamation Priorities for Noncoal Program.
(a)
This section applies to reclamation projects involving
the restoration of lands and water adversely affected by past mineral mining;
projects involving the protection, repair, replacement, construction, or enhancement
of utilities (such as those relating to water supply, roads, and other such
facilities serving the public adversely affected by mineral mining and processing
practices); and the construction of public facilities in communities impacted
by coal or other mineral mining and processing practices.
(b)
Following certification by the commission of the completion
of all known coal projects, the projects and construction of public facilities
identified in subsection (a) of this section shall reflect the following priorities
in the order stated:
(1)
the protection of public health, safety, general welfare,
and property from the extreme danger of adverse effects of mineral mining
and processing practices;
(2)
the protection of public health, safety, and general
welfare from the adverse effects of mineral mining and processing practices;
and
(3)
the restoration of land and water resources and the
environment previously degraded by the adverse effects of mineral mining and
processing practices.
(c)
Enhancement of facilities or utilities shall include upgrading
necessary to meet local, state, or federal public health or safety requirements.
Enhancement shall not include any service area expansion of a utility or facility
not necessary to address a specific abandoned mine land problem.
(d)
Notwithstanding the requirements specified in subsection
(a) of this section, if the governor determines that there is a need for activities
or construction of specific public facilities related to the coal or minerals
industry, and the governor or the commission at the governor's request submits
a grant application as required by subsection (e) of this section and the
Director concurs with the application as set forth in subsection (e) of this
section, the Director may grant funds made available under section 402(g)(1)
of the Federal Act, 30 U.S.C. 1232, to carry out such activities or construction.
(e)
To qualify for funding pursuant to the authority in subsection
(d) of this section, the governor, or the commission at the governor's request,
must submit a grant application that specifically sets forth:
(1)
the need or urgency for the activity or the construction
of the public facility;
(2)
the expected impact the project will have on the
coal or minerals industry in the state;
(3)
the availability of funding from other sources and,
if other funding is provided, its percentage of the total costs involved;
(4)
documentation from other local, state, and federal
agencies with oversight for such utilities or facilities regarding what funding
resources they have available and why this specific project is not being fully
funded by those agencies;
(5)
the impact on the state, the public, and the minerals
industry if the activity or facility is not funded;
(6)
the reason why this project should be selected before
a priority project relating to the protection of the public health and safety
or the environment from the damages caused by past mining activities; and
(7)
an analysis and review of the procedures used by
the commission to notify and involve the public in this funding request and
a copy of all comments received and their resolution by the commission.
§12.810. Exclusion of Certain Noncoal Reclamation Sites.
Money from the Fund shall not be used for the reclamation of sites
and areas designated for remedial action pursuant to the Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.S.C. 7901, et seq.) or that have been
listed for remedial action pursuant to the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. 9601, et seq.).
§12.811. Land Acquisition Authority - Noncoal.
The requirements specified in §§12.813, 12.814, and 12.818
- 12.823 of this title (relating to Written Consent for Entry; Entry and Consent
to Reclaim; Entry for Emergency Reclamation; Land Eligible for Acquisition;
Procedures for Acquisition; Acceptance of Gifts of Land; Management of Acquired
Land; and Disposition of Reclaimed Lands, respectively) shall apply to the
commission's noncoal program except that, for purposes of this section, the
references to coal shall not apply. In lieu of the term coal, the word noncoal
should be used.
§12.812. Lien Requirements.
The lien requirements in §§12.815 - 12.817 of this title
(relating to Appraisals; Liens; and Satisfaction of Liens, respectively),
shall apply to the commission's noncoal reclamation program under §12.808
of this title (relating to Eligible Noncoal Lands and Water), except that
for purposes of this section, references made to coal shall not apply. In
lieu of the term coal, the word noncoal should be used.
§12.813. Written Consent for Entry.
Written consent from the owner of record and lessee, or their authorized
agents, is the preferred means for obtaining agreements to enter lands in
order to carry out reclamation activities. Nonconsensual entry by exercise
of the police power shall be undertaken only after reasonable efforts have
been made to obtain written consent.
§12.814. Entry and Consent to Reclaim.
(a)
The commission, its agents, employees, or contractors
may enter upon land to perform reclamation activities or conduct studies or
exploratory work to determine the existence of the adverse effects of past
coal mining if consent from the owner is obtained.
(b)
The commission shall be entitled to enter any property
to conduct studies or exploratory work to determine:
(1)
the existence of adverse effects of past coal mining practices;
and
(2)
the feasibility of restoration, reclamation, abatement,
control, or prevention of those adverse effects.
(c)
The commission shall be entitled to enter property adversely
affected by past coal mining practices or other property necessary to have
access to that property to perform the activities necessary or expedient to
restore, reclaim, abate, control, or prevent the adverse effects if the commission:
(1)
makes a finding of fact that:
(A)
land or water resources have been adversely affected by
past coal mining practices;
(B)
the adverse effects are at a stage at which action to
restore, reclaim, abate, control, or prevent the adverse effects of past coal
mining practices should be taken to protect the public interest; and
(C)
the owners of the land or water resources where entry
must be made to restore, reclaim, abate, control, or prevent the adverse effects
of past coal mining practices either are not known or readily available or
will not permit this state or a political subdivision to enter the property
to restore, reclaim, abate, control, or prevent the adverse effects of past
coal mining practices; and
(2)
gives written notice of intent to enter at least
30 days prior to entering the property:
(A)
to the owner, if known, by certified mail, return receipt
requested. A copy of the findings required under paragraph (1) shall be included
with the notice; or
(B)
if the owner is not known, or if the current mailing address
of the owner is not known, notice shall be posted in one or more places on
the property to be entered where the notice is readily visible to the public
and advertised once in a newspaper of general circulation in the locality
in which the land is located. The notice posted on the property and advertised
in the newspaper shall include a statement of where the findings required
under paragraph (1) of this subsection may be inspected or obtained
§12.815. Appraisals.
(a)-(c)
(No change.)
(d)
Appraisals for privately owned land which fall under
§12.816
[
§12.816. Liens.
(a)
Not later than six months after the date projects to reclaim
privately owned land are completed, the commission:
(1)
shall itemize the money spent; and
(2)
may file a statement of the money spent with the
clerk of the county in which the land lies, together with a notarized appraisal
by an independent appraiser of the value of the land before the restoration,
reclamation, abatement, control, or prevention of the adverse effects of past
mining practices if the money spent will result in a significant increase
in property value. However, prior to the time of the actual filing of a lien,
the landowner shall be notified of the amount of the proposed lien and shall
be allowed a reasonable time to repay that amount instead of allowing the
lien to be filed against the property involved.
(b)
The statement shall be a lien on the land second only
to a property tax lien. The amount of the lien shall not exceed the amount
determined by either of two appraisals, as provided under §12.815 of
this title (relating to Appraisals), to be the increase in the market value
of the land as a result of the restoration, reclamation, abatement, control,
or prevention of the adverse effects of past mining practices.
(c)
A lien shall not be filed under this section against the
property of a person who:
(1)
owned the surface before May 2, 1977; and
(2)
did not consent to, participate in, or exercise control
over the mining operation that necessitated the reclamation performed under
this chapter.
(d)
Not later than the 60th day after the date the lien is
filed, an affected landowner may petition the commission for a hearing on
the amount of the lien. The hearing and any appeal shall be conducted pursuant
to Chapter 2001, Government Code.
(e)
The commission may waive the lien if:
(1)
the cost of filing it, including indirect costs, exceeds
the increase in fair market value as a result of reclamation activities; or
(2)
the reclamation work performed on private land primarily
benefits health, safety, and environmental values of the grantee's community
or area in which the land is located, or if reclamation is necessitated by
an unforeseen occurrence and the work performed to restore the land will not
result in a significant increase in the market value of the land as it existed
immediately before the occurrence.
§12.818. Entry for Emergency Reclamation.
(a)
The commission may enter land where an emergency exists
and other land necessary to have access to that land to:
(1)
restore, reclaim, abate, control, or prevent the adverse
effects of coal mining practices; and
(2)
perform activities necessary or expedient to protect
the public health, safety, or general welfare.
(b)
Entry under this section shall be considered an exercise
of the police power and not an act of condemnation of property or trespass.
§12.819. Land Eligible for Acquisition.
(a)
This state may acquire by purchase, donation, or condemnation
land that is adversely affected by past coal mining practices if:
(1)
it is in the public interest; and
(2)
the commission determines and makes written findings
that:
(A)
acquiring the land is necessary for successful reclamation;
(B)
the acquired land, after restoration, reclamation, abatement,
control, or prevention of the adverse effects of past coal mining practices,
will:
(i)
serve recreational and historical purposes;
(ii)
serve conservation and reclamation purposes; or
(iii)
provide open space benefits; and
(C)
permanent facilities such as a treatment plant or a relocated
stream channel will be constructed on the land for the restoration, reclamation,
abatement, control, or prevention of the adverse effects of past coal mining
practices or acquisition of coal refuse disposal sites and the coal refuse
on those sites will serve the purposes of this subchapter, or public ownership
is desirable to meet emergency situations and prevent recurrences of the adverse
effects of past coal mining practices.
(b)
OSM approves the acquisition by purchase or condemnation
in advance. The commission shall acquire only such interests in land under
this subchapter as are necessary for the reclamation work planned or the postreclamation
use of the land. Interests in improvements on the land, mineral rights, or
associated water rights may be acquired if:
(1)
such interests are necessary for the reclamation work
planned or for the postreclamation use of the land; and
(2)
adequate written assurances cannot be obtained from
the owner of the severed interest that future use will not be in conflict
with the reclamation to be accomplished.
§12.820. Procedures for Acquisition.
(a)
An appraisal of the fair market value of all land or interest
in land to be acquired shall be obtained by the commission. The appraisal
shall state the fair market value of the land as adversely affected by past
mining.
(b)
When practical, acquisition shall be by purchase from
a willing seller. The amount paid for land or interests in land acquired shall
reflect the fair market value of the land or interests in land as adversely
affected by past mining.
(c)
When necessary, land or interests in land may be acquired
by condemnation. Condemnation procedures shall not be started until all reasonable
efforts have been made to purchase the land or interests in lands from a willing
seller.
(d)
The commission, when acquiring land under this title,
shall comply with the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, 42 U.S.C. 4601 et seq., and 41 CFR Part 114-50.
§12.821. Acceptance of Gifts of Land.
(a)
The commission under an approved reclamation plan may
accept donations of title to land or interests in land if the land proposed
for donation meets the requirements set out in §12.819 of this title
(relating to Land Eligible for Acquisition).
(b)
Offers to make a gift of land or interest in land to the
commission shall be in writing and shall include:
(1)
a statement of the interest which is being offered;
(2)
a legal description of the land and a description
of any improvements on it;
(3)
a description of any limitations on the title or
conditions as to the use or disposition of the land existing or to be imposed
by the donor;
(4)
a statement that:
(A)
the donor is the record owner of the interest being offered;
(B)
the interest offered is free and clear of all encumbrances
except as clearly stated in the offer;
(C)
there are no adverse claims against the interest offered;
(D)
there are not unredeemed tax deeds outstanding against
the interest offered; and
(E)
there is no continuing responsibility by the operator
under state or federal statutory law for reclamation; and
(5)
an itemization of any unpaid taxes or assessments
levied, assessed or due which could operate as a lien on the interest offered.
(c)
If the offer is accepted, a deed of conveyance shall be
executed, acknowledged, and recorded. The deed shall state that the conveyance
is made "as a gift under the Texas Surface Coal Mining and Reclamation Act."
Title to donated land shall be in the name of the State of Texas.
§12.822. Management of Acquired Land.
Land acquired under this title may be used for any lawful purpose that
is consistent with the necessary reclamation activities. Procedures for collection
of user charges or the waiver of such charges by the commission shall provide
that all user fees collected shall be deposited in the Texas Abandoned Mine
Reclamation Fund.
§12.823. Disposition of Reclaimed Lands.
(a)
If land acquired under §12.819 of this title (relating
to Land Eligible for Acquisition) is considered suitable for industrial, commercial,
residential, or recreational development, this state may sell the land by
public sale under a system of competitive bidding at not less than fair market
value and under rules adopted to ensure that the land is put to proper use
consistent with local plans, if any, as determined by the commission.
(b)
The land may be sold only when authorized by the Secretary
of the Interior if federal money was involved in the acquisition of the land
to be sold.
(c)
The commission may transfer administrative responsibility
for land acquired under this subchapter (relating to Texas Abandoned Mine
Land Reclamation Program) to any agency or political subdivision of the state
with or without cost to that agency. The agreement, including amendments,
under which a transfer is made shall specify:
(1)
the purposes for which the land may be used consistent
with the authorization under which the land was acquired; and
(2)
that the administrative responsibility for the land
shall revert to the commission if, at any time in the future, the land is
not used for the purposes specified.
(d)
The commission, after appropriate public notice and on
request, shall hold a public hearing in the county or counties in which land
acquired under §12.819 of this title (relating to Land Eligible for Acquisition)
is located. Prior to the disposition of any land acquired under this subchapter,
the commission shall publish a notice of the proposed land disposition.
(e)
The hearing shall be held at a time that gives residents
and local governments maximum opportunity to participate in the decision about
the use or disposition of the land after restoration, reclamation, abatement,
control, or prevention of the adverse effects of past coal mining practices.
(f)
All moneys received from disposal of land under this title
shall be deposited in the Texas Abandoned Mine Reclamation Fund.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
April 16, 1999.
TRD-9902225
Mary Ross McDonald
Deputy General Counsel, Office of the General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 30, 1999
For further information, please call: (512) 463-7008
Chapter 401.
Administration of State Lottery Act
Subchapter D. Lottery Game Rules
(1)
] Emergency - A sudden
danger or impairment that presents a high probability of substantial physical
harm to the health, safety or general welfare of people before the danger
can be abated under normal program operation procedures.
(2)
] Extreme danger - A condition
that could reasonably be expected to cause substantial physical harm to persons,
property, or the environment and to which persons or improvements on real
property are currently exposed.
(3)
] Left or abandoned in
either an unreclaimed or inadequately reclaimed condition - Lands and water:
where all mining processes ceased and no current permit for continuing
operations existed as of August 3, 1977, or, if a permit did exist on that
date, but all mining processes had ceased, it has since lapsed and has not
been renewed or superseded by a new permit as of the date of the request for
reclamation assistance; and
]
(4)
] Texas Abandoned Mine
Reclamation Fund or
State
Fund - A separate
account
[
fund
] established by the state for the purpose of accounting for
moneys granted by the Director under an approved state reclamation program
and other moneys authorized by these Regulations to be deposited in the Fund.
are
] eligible for reclamation activities if:
and
]
will
] render lands or water ineligible
only if the amount forfeited is sufficient to pay the total cost of the necessary
reclamation.
In cases where the forfeited bond is insufficient to pay
the total cost of reclamation, additional moneys may be sought from the Texas
Abandoned Mine Land Fund.
(b)
(1)
(2)
(3)
§§12.816 (a)(1),(2) and (3)
] of this
title (relating to Liens) may be obtained from either an independent or staff
professional appraiser.
Part IX.
Texas Lottery Commission