Texas Register, Volume 28, Number 14, Pages 2821-2988, April 4, 2003 Page: 2,837
2821-2988 p. ; 28 cm.View a full description of this periodical.
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(181) [(4-82)] Unconsolidated streamlaid deposits holding
streams--With respect to alluvial valley floors, all flood plains and ter-
races located in the lower portions of topographic valleys which contain
perennial or other streams with channels that are greater than 3 feet in
bankfull width and greater than 0.5 feet in bankfull depth.
(182) [(83)] Underground development waste--Waste
rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone,
or related materials that are excavated, moved, and disposed of during
development and preparation of areas incident to underground mining
activities.
(183) [(184)] Underground mining activities--Includes:
(A) surface operations incident to u un d extrac-
tion of coal or in situ processing, such as construction, use, mainte-
nance, and reclamation of roads, above-ground repair areas, storage
areas, processing areas, shipping areas, areas upon which are sited sup-
port facilities including hoist and ventilating ducts, areas utilized for the
disposal and storage of waste, and areas on which materials incident to
underground mining operations are placed; and
(B) underground operations such as underground con-
struction, operation, and reclamation of shafts, adits, underground sup-
port facilities, in situ processing, and underground mining, hauling,
storage, and blasting.
(184) [(4-85)] Undeveloped rangeland--For purposes of al-
luvial valley floors, lands where the use is not specifically controlled
and managed.
(185) [(-86)] Unwarranted failure to comply--The failure
of the permittee to prevent the occurrence of any violation of the permit
or any requirement of the Act, due to the indifference, lack of diligence,
or lack of reasonable care, or the failure to abate any violation of such
permit or the Act, due to indifference, lack of diligence, or lack of
reasonable care.
(186) [(-87)] Upland areas--With respect to alluvial valley
floors, those geomorphic features located outside the floodplain and
terrace complex, such as isolated higher terraces, alluvial fans, pedi-
ment surfaces, landslide deposits, and surfaces covered with residuum,
mud flows or debris flows, as well as highland areas underlain by
bedrock and covered by residual weathered material or debris deposited
by sheetwash, rillwash, or windblown material.
(187) Valid existing rights--A set of circumstances under
which a person may, subject to Commission approval, conduct sur-
face coal mining operations on lands where 134.022 of the Act and
12.71(a) of this title (relating to Areas Where Surface Coal Mining
Operations are Prohibited or Limited) would otherwise prohibit such
operations. Possession of valid existing rights only confers an excep-
tion from the prohibitions of 12.71(a) of this title and 134.022 of the
Act. A person seeking to exercise valid existing rights must comply
with all other pertinent requirements of the Act and this chapter.
(A) Property rights demonstration. Except as provided
in subparagraph (C) of this paragraph, a person claiming valid existing
rights must demonstrate that a legally binding conveyance, lease, deed,
contract, or other document vests that person, or a predecessor in inter-
est, with the right to conduct the type of surface coal mining operations
intended. This right must exist at the time that the land came under the
protection of 12.71(a) of this title or 134.022 of the Act. Applica-
ble state statutory or case law will govern interpretation of documents
relied upon to establish property rights. If no applicable state law ex-
ists, custom and generally accepted usage at the time and place that the
documents came into existence will govern their interpretation.(B) Additional demonstrations. Except as provided in
subparagraph (C) of this paragraph, a person claiming valid existing
rights must also demonstrate compliance with one of the following
standards:
(i) Good faith/all permits standard. All permits and
other authorizations required to conduct surface coal mining operations
have been obtained, or a good faith effort to obtain all necessary per-
mits and authorizations has been made, before the land came under the
protection of 12.71(a) of this title or 134.022 of the Act. At a mini-
mum, an application must have been submitted for any permit required
under Subchapter G of this chapter (relating to Surface Coal Mining
and Reclamation Operations, Permits, and Coal Exploration Procedure
Systems); or
(ii) Needed for and adjacent standard. The land is
needed for and immediately adjacent to a surface coal mining operation
for which all permits and other authorizations required to conduct sur-
face coal mining operations have been obtained, or a good faith attempt
to obtain all permits and authorizations has been made, before the land
came under the protection of 12.71(a) of this title or 134.022 of the
Act. To meet this standard, a person must demonstrate that prohibiting
expansion of the operation onto that land would unfairly impact the
viability of the operation as originally planned before the land came
under the protection of 12.71(a) of this title or 134.022 of the Act.
Except for operations in existence before August 3, 1977, or for which
a good faith effort to obtain all necessary permits have been made be-
fore August 3, 1977, this standard does not apply to lands already under
the protection of 12.71(a) of this title or 134.022 of the Act when the
Commission approved the permit for the original operation or when the
good faith effort to obtain all necessary permits for the original opera-
tion was made. In evaluating whether a person meets this standard, the
Commission may consider factors such as:
(I) the extent to which coal supply contracts or
other legal and business commitments that predate the time that the
land came under the protection of 12.71(a) of this title or 134.022 of
the Act depend upon use of that land for surface coal mining operations;
(II) the extent to which plans used to obtain fi-
nancing for the operation before the land came under the protection of
12.71(a) of this title or 134.022 of the Act rely upon use of that land
for surface coal mining operations;
(III) the extent to which investments in the op-
eration before the land came under the protection of 12.71(a) of this
title or 134.022 of the Act rely upon use of that land for surface coal
mining operations; and
(IV) whether the land lies within the area identi-
fied on the life-of-mine map submitted under 12.136(3) of this title
(relating to Maps: General Requirements) or 12.182(3) of this title
(relating to Maps: General Requirements) before the land came under
the protection of 12.71(a) of this title.
(C) Roads. A person who claims valid existing rights
to use or construct a road across the surface of lands protected by
12.71(a) of this title or 134.022 of the Act must demonstrate that
one or more of the following circumstances exist if the road is included
within the definition of "surface coal mining operations" in this section:
(i) the road existed when the land upon which it is
located came under the protection of 12.71(a) of this title or 134.022
of the Act, and the person has a legal right to use the road for surface
coal mining operations;
(ii) a properly recorded right of way or easement for
a road in that location existed when the land came under the protectionPROPOSED RULES April 4, 2003 28 TexReg 2837
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Texas. Secretary of State. Texas Register, Volume 28, Number 14, Pages 2821-2988, April 4, 2003, periodical, April 4, 2003; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101027/m1/16/: accessed June 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.