SECTION 10.7. Conduct of Exploration and Mining Operations

(a) Purpose and scope.

(1) It is the intent of this section to set minimum standards of conduct for lessees or permittees on state properties leased or permitted under this chapter. These minimum standards cover several types of state property, many different minerals, a wide range of mining techniques, dramatically different kinds of terrain and many different locations of varying value throughout the state. To provide the flexibility to accommodate these differences:

(A) the GLO has and will continue to include specific and express restrictions and standards concerning exploration and development of its minerals in each lease it negotiates and in each plan of operations it approves;

(B) if the minimum standards of conduct in this section conflict with express provisions in a lease form or in an approved plan of operations, then the express provisions will control; and

(C) the commissioner may grant, in accordance with the law, written exceptions to the minimum standards and procedural rules found in this section if the commissioner makes a written determination that such exceptions are in the best interests of the PSF.

(2) This section shall not apply to leases executed prior to March 22, 1989, unless the lease specifically requires a plan of operations. Holders of active permits shall be required to comply with the provisions of this section regardless of the date of issue.

(3) This section shall not apply to mining operations for coal, lignite, and uranium because such operations are regulated by the RRC. However, as a mineral owner, the GLO may need information that is not required by or submitted to the RRC. Consequently, the GLO reserves the right to request additional information on coal, lignite, and uranium operations. If additional information is needed, the GLO will notify the lessee or permittee in writing.

(4) This section references regulatory statutes and the rules and regulations of regulatory agencies which govern mineral development on state lands. By such references the GLO does not intend to usurp authority or substitute its judgment for that of the other agencies. These references are included to put permittees and lessees on notice that state lands are not exempt from such regulation, including all relevant environmental safeguards.

(5) If any provision of this section conflicts with state or federal statutes, regulations, or rules of the RRC, Texas Commission on Environmental Quality, Environmental Protection Agency, or Texas Water Development Board, then such other statutes, regulations, or rules shall control.

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Lease--A mining lease issued under §10.3 of this title (relating to Mining Leases on Properties Subject to Prospect), §10.4 of this title (relating to Exploration and Mining Leases for Minerals Subject to Sealed Bid), or §10.5 of this title (relating to Mining Leases on Relinquishment Act Lands).

(2) Lessee--The initial holder of a valid lease or a successor, assignee, devisee, or heir who acquires any right of the initial holder.

(3) Operations--Any activities other than reconnaissance activities, associated with mineral exploration or development that require substantially disturbing or destroying the surface or subsurface of the leased or permitted areas. Operations shall include drilling test holes or core holes; excavating test pits; moving heavy machinery over the leased or permitted area; sinking shafts; and extracting, storing, processing, and shipping minerals.

(4) Operator--A permittee or lessee or any employee, agent, servant, contractor, or subcontractor of either a permittee or lessee.

(5) Permit--A prospect permit issued by the commissioner under §10.2 of this title (relating to Prospect Permits on State Lands) or an exploration permit issued by the commissioner under §10.4 of this title (relating to Exploration and Mining Leases for Minerals Subject to Sealed Bid).

(6) Permittee--The initial holder of a valid prospect or exploration permit or a successor, assignee, devisee, or heir who acquires any right of a permittee.

(7) Premises--Any state property subject to a lease or to a permit.

(8) Reconnaissance activities--Hand sampling, geologic mapping, surveying, and other activities which do not significantly impact the surface and which are necessary to gather data to formulate the plan of operations.

(9) TPWD lands--(As used in this section only) premises whose surface is owned or leased by TPWD or is subject to a conservation easement in favor of TPWD.

(c) Overview of exploration and mining procedures.

(1) Reconnaissance activities. After a permit or lease has been granted for exploration and development of the premises, an operator may begin reconnaissance activities. The permits or leases may contain rules and restrictions on reconnaissance activities. In conducting reconnaissance activities on state premises, an operator shall also comply with the rules found in subsection (f) of this section. In conducting reconnaissance activities on TPWD lands, an operator shall comply with additional rules found in subsection (g) of this section.

(2) Operations.

(A) Before an operator may commence operations on any premises, the permittee or lessee of those premises must submit an initial plan of operations to the GLO. Information required to be included in an initial plan will be controlled by the type of state property involved. If operations extend over several state properties, the permittee or lessee may submit one unified plan of operations. No operations may commence until such a plan of operations has been filed with the GLO in accordance with subsection (d) of this section and approved by the GLO in accordance with subsection (e) of this section.

(B) The initial plan of operations shall include all reasonably foreseeable exploration, extraction, mining, and processing activities. Whenever the permittee or lessee wishes to undertake activities beyond the scope of the initial plan of operations, a supplemental plan must be filed with the GLO. Whenever the permittee or lessee wishes to change any activity found in an approved plan, an amended plan must be filed with the GLO. An amended or supplemental plan of operation shall have the same requirements and be subject to the same approval process as the initial plan.

(C) Operations must be conducted in accordance with an approved plan of operations and also with the rules found in subsection (f) of this section.

(D) Failure to submit a plan before conducting operations, to submit a supplemental or amended plan before conducting additional or different operations, or to conduct operations on the premises in compliance with the approved plan of operations or these rules shall subject the permit or lease to forfeiture.

(d) Content of plan of operations.

(1) For state property permitted or leased under this chapter, the plan of operations must include the following:

(A) the name and legal mailing address of the permittee or lessee and of any operators who will be on the premises;

(B) a 7 1/2 minute USGS topographic map showing:

(i) information sufficient to locate the proposed areas of operations on the ground;

(ii) existing and/or proposed roads or access routes to be used in connection with the operations; and

(iii) the approximate location and size of any other areas where surface resources or improvements might be disturbed;

(C) information sufficient to describe or identify:

(i) the precise nature and extent of all proposed operations including all prospecting/exploration activities and all mining/processing activities; and

(ii) the period during which each proposed activity will take place;

(D) if the permittee or lessee proposes to commingle minerals produced under the permit or lease with privately-owned minerals or with other state-owned minerals:

(i) a specification of the proposed manner of commingling; and

(ii) a comparison of the quality of ore produced under the lease or permit to the quality of the ore with which it will be commingled;

(E) if subsurface excavation is planned, a statement of what possible effect such excavations could have on water, as defined by Texas Civil Statutes, Article 8866, §1(11) (Vernon, 1989).

(2) For state property permitted or leased under this chapter, except property leased under §10.5 of this title (relating to Mining Leases on Relinquishment Act Lands), the plan of operations must also include the following:

(A) type, design, and location of existing and proposed roads or access routes;

(B) transportation equipment and other heavy equipment to be used on the premises;

(C) measures to be taken to protect and preserve environmental resources;

(D) a statement of whether operations are planned on steep slopes that may be subject to erosion and specific plans to control erosion, the flow of run-off water, landslides, and drainage;

(E) a specification of what reclamation efforts will be undertaken to minimize the impact of operations on the surface, including vegetation, topsoil, wildlife habitats, caused by operations.

(3) For TPWD lands, the plan of operations must also include the following:

(A) a statement of whether any of the drilling muds and fluids proposed to be used are toxic to fish or wildlife;

(B) a listing of all known natural historic and prehistoric resources, archeological resources, and biological resources (including vegetation, fish, and animal life, especially endangered plants and wildlife) found on the premises; and

(C) specific plans to remove toxic materials, and to rehabilitate fisheries, wildlife habitats, and vegetation.

(e) Requirements for approval of plan of operations.

(1) The proposed plan of operation shall be submitted to the GLO. GLO staff will analyze the proposal and, if necessary, inspect the premises. In order to evaluate the plan, the GLO staff may require additional information from the lessee or permittee. Within 90 days after the GLO receives both a plan and any requested additional information, the GLO shall:

(A) notify permittee or lessee that the plan of operations has been approved; or

(B) notify the permittee or lessee of the necessary additions and/or changes to the plan with are required for approval.

(2) The GLO may require a permittee or lessee to furnish a bond as a condition to approval of a plan of operations but only if the lease or permit has reserved this right to the GLO. The performance bond shall be in an amount to be determined by and forfeitable to the GLO as a guarantee for the strict performance of reclamation obligations found in the plan of operations. In determining the amount of the bond, consideration shall be given to the estimated cost of reclaiming the land to the condition it would have been in had the plan of operations or the regulations been strictly followed.

(3) If subsurface excavations are involved, the commissioner will issue a finding in the approved plan of operations as to whether such excavations will affect water as defined by Texas Civil Statutes, Article 8866, §1(11) (Vernon, 1989).

(4) In evaluating all plan of operations, the GLO will consider the following factors:

(A) the general economics of the operations;

(B) the reasonableness and effectiveness of the plans to develop the state's minerals;

(C) the prevailing industry standards for the type of mineral development or mining technique used; and

(D) the methods and standards employed by similar mining operations in the same area as the state property.

(5) In evaluating all plan of operations except those on leases issued under §10.5 of this title (relating to Mining Leases on Relinquishment Act Lands) the GLO will also consider:

(A) the reasonableness of the provisions made for surface resource protection; and

(B) the value and uses of the surface of the state property.

(6) In evaluating plan of operations covering lands leased under §10.5 of this title (relating to Mining Leases on Relinquishment Act Lands), the GLO will not evaluate the impact of operations on the surface but it will evaluate such plans based upon its interests as a mineral owner.

(7) In evaluating all plan of operations covering TPWD lands, the GLO will also consider:

(A) whether sites and roadways should be adjusted and realigned to avoid significant disturbance of biological, archeological, or aesthetic features;

(B) whether the methods for disposing of vegetation which must be cleared and for disposing of topsoil are adequate;

(C) whether proposed drilling muds and fluids should be changed to require use of those muds and fluids that are not toxic to fish or wildlife;

(D) whether permittee or lessee should be required to take action to mitigate any unavoidable impacts to fish and wildlife resources and habitat caused by operations;

(E) whether slope stabilization should be required during operations;

(F) whether security fencing to protect the public from hazardous sites or conditions should be required;

(G) whether full restoration, including spreading of topsoil stockpile, of all areas disturbed during permitted activity to preoperation elevations, contours, and substrata should be required;

(H) whether steep slopes which are subject to damaging erosion should be modified to facilitate revegetation and prevent erosion;

(I) whether replanting of disturbed native vegetation should be required; and

(J) whether seeding and mulching plans should be modified so that different materials are used or applied at different rates or times.

(f) Minimum standards of conduct on state premises.

(1) These minimum standards of conduct will apply whenever a lessee, permittee, or other operator is on state premises even if only reconnaissance activities are taking place.

(2) All activities shall be conducted so as to minimize adverse environmental impact on surface resources.

(3) Operator shall comply with applicable federal and state air quality standards and emission permit requirements.

(4) Operator shall comply with applicable federal and state water quality standards and wastewater discharge permit requirements and federal permitting requirements applicable to disturbance of wetlands, watercourses, and flood plains. Operator shall in its construction activities, to the greatest extent possible, avoid disturbance within natural watercourses and their immediate flood plains. Operator shall use only so much of underground water as may be reasonably necessary. If water-bearing strata or underground aquifers are encountered during drilling activities, shaft construction, or subsurface excavation, measures shall be taken by the operator to prevent pollution of such underground water sources. Operator shall comply with all applicable Texas Commission on Environmental Quality and RRC rules for the protection of usable quality water within the premises.

(5) Operator shall comply with applicable federal and state standards for the disposal and treatment of all hazardous materials and all solid and liquid wastes. All garbage, refuse, or trash shall either be removed from premises or disposed of, or treated so as to minimize, so far as practicable, its impact on the environment and surface resources. All waste rock, deleterious materials or substances and other waste produced by operations shall be deployed, arranged, disposed of, or treated in accordance with federal and state requirements and so as to minimize adverse impact upon the environment and surface resources.

(6) Operator shall comply with the National Historical Preservation Act of 1966, 16 United States Code §470 (1985 and Supplement 1988) and the Antiquities Code of Texas, Title 9, Chapter 191, Texas Natural Resources Code, where applicable.

(7) Operator shall comply with the United States Endangered Species Act of 1973, 16 United States Code §§1531 - 1543 (1985 and Supplement 1988) and the Texas Parks and Wildlife Code, Chapters 67, 68, and 88, which relate to endangered plants or wildlife and protected nongame.

(8) Preservation of existing vegetation shall be maximized at all times.

(9) These provisions concerning roads do not apply to premises leased under §10.5 of this title (relating to Mining leases on Relinquishment Act Lands). Operator shall, if possible, use existing roadways for access to and across the premises. Operator must justify construction of new roads by demonstrating that there is no feasible and prudent alternative. Operator shall construct and maintain all roads so as to assure adequate drainage and to minimize damage to soil, water, and other natural resources. Roads utilized shall be left in as good a condition as they were prior to use by operator.

(10) During all operations the operator shall maintain structures, equipment, and other facilities in a safe, neat, and workmanlike manner. Hazardous or dangerous sites or conditions resulting from operations shall be fenced, marked by signs, or otherwise identified to protect the public in accordance with all state and federal laws and regulations.

(11) Unless the RRC regulates reclamation efforts or unless a written notification to the GLO under subsection (h)(1) of this section states otherwise, permittee or lessee shall reclaim the surface as specified in the plan of operations within six months of the expiration of the permit or lease.

(g) Minimum standards of conduct on TPWD lands.

(1) Operators on premises whose surface is owned, or leased by TPWD or is subject to a conservation easement in favor of TPWD are also subject to the additional regulations found in this subsection.

(A) Operator is subject to all TPWD rules in effect for the park or wildlife management area on which operations are conducted to the extent that the park or management area rules are not inconsistent with rules or regulations found in this section or with the reasonable development of PSF minerals.

(B) No operations shall be commenced without notification of the park superintendent or area manager 48 hours in advance of entering TPWD premises. Permittee or lessee shall allow only those operators that are necessary for operations to access the TPWD premises.

(C) No firearms or archery equipment shall be permitted at any time on TPWD lands by any operator. Permittee or lessee shall be liable for any taking of fish, wildlife, plants, or archeological resources by any operator.

(D) Unless an approved plan of operations provides otherwise, no materials required for construction of roads shall be taken or borrowed from TPWD lands. There shall be no vehicular travel off existing roads during wet weather. Where travel is permitted by drilling buggies and water wagons, such vehicles shall use high flotation tires.

(E) Operator shall permanently stake limits of proposed access roads on the ground a minimum of 30 days prior to and throughout actual operations or other activities. Each access road is subject to review and approval by the GLO. The area disturbed during construction activity shall be strictly minimized. Access roads shall not exceed 30 feet in width and operator shall use existing roads whenever possible.

(F) The following rules apply to new roads constructed by or improved and used by operator unless otherwise requested by TPWD and approved by the GLO in a plan of operations.

(i) Roads no longer needed for operations shall be closed to normal vehicular traffic.

(ii) Bridges and culverts shall be removed.

(iii) Cross-drains, dips, or water bars shall be constructed.

(iv) The road surface shall be shaped to as near a natural contour as practicable and be stabilized.

(G) If a diversion between all drilling or excavation sites, pads, and all upslope areas is required in an approved plan of operations, the diversion shall be constructed with a flared outlet stabilized by rock or other grade stabilization structures as necessary to prevent erosion. Drilling sites should be sloped with a minimum grade 0.3-0.5% to drain into such diversions so the run-off does not flow over the fill area. Sediment shall be cleaned out of diversion and properly disposed of periodically. A temporary straw bale barrier containing no noxious weed shall be constructed along the base of the drill site where it follows a natural water course. A temporary bale barrier shall be established immediately after the drill site is constructed to prevent erosion while side slopes are being stabilized. The bale barrier must be maintained, sediment removed and bales replaced. Sedimentation on areas adjacent to the drill or excavation site shall be minimized. Topsoil to a maximum depth not to exceed 18 inches shall be stockpiled on the upslope edge of each drill or excavation site and separated from upslope run-off by a diversion, or with other erosion control as necessary.

(H) Unless an approved plan of operation states otherwise, no explosives shall be used within 750 feet of any building, utilities, or water well or within 1, 000 feet of any water retention structures. All proposed use of explosives shall be specifically described in an approved plan of operations.

(I) Restoration of the disturbed area to approximate original contours and revegetation with appropriate native vegetation may be required.

(J) Operator shall, at all times, keep lands under permit or lease, access roads, and prospect sites free of trash and litter generated by operations. No vegetation or topsoil shall be pushed, windrowed, or abandoned except in preparation for disposal by means approved by the GLO in the plan of operations. Operator shall keep muds, cuttings, and all other fluids, including all contaminants and saline fluids, in tanks or containers for removal from the site. All drilling muds and fluids shall be water-based and nontoxic to fish and wildlife; provided, however, that other drilling muds and fluids may be used if, in the plan of operations, the GLO determines that there is no prudent or feasible alternative. Soil-damaging petroleum and other chemicals shall be hauled from the TPWD lands and disposed of lawfully. Dumping of any such materials on TPWD lands is prohibited.

(K) Operator shall, to the extent practicable, harmonize operations with scenic values through such measures as the design and location of operating facilities, including roads and other means of access, screening of operations by native vegetation, if possible, and construction of structures and improvements which blend with the landscape.

(L) In addition to compliance with water quality and solid waste disposal standards required by this section, operator shall take all practicable measures to maintain and protect fisheries and wildlife habitat which may be affected by the operations.

(M) Operator shall comply with all applicable state and federal fire laws and regulations and shall take all reasonable measures necessary to prevent and suppress fires in the area of operations.

(2) As soon as the GLO receives a plan of operations which covers TPWD lands and which supplies all the data required in subsection (d) of this section, the GLO shall mail a copy of the plan of operations to the TPWD for review and comment.

(3) TPWD must submit its comments, if any, to the GLO within 30 days of TPWD's receipt of a plan of operations.

(4) Plan of operations on TPWD land may not be approved until at least 30 days after the TPWD receives the plan of operations. When the GLO approves a plan of operations on TPWD land, GLO will send TPWD a copy of the approved plan on the day the plan is approved.

(h) Completion of operations and abandonment of premises.

(1) This subsection shall apply to all operations except those involving coal, lignite, uranium, or uranium ore operations which are regulated by the RRC.

(2) Within two weeks after all operations and all reclamation activities addressed in the plan of operations have been completed, permittee, or lessee shall send the GLO the following information:

(A) date when operations ceased;

(B) date when reclamation activities ceased;

(C) problems encountered during reclamation activities;

(D) success of reclamation efforts in improving the surface condition;

(E) any additional reclamation activities that permittee or lessee believes are necessary to restore or improve the surface, vegetation, topsoil, or wildlife habitat;

(F) date on which any proposed additional reclamation activities, if any, shall begin and end; and

(G) date on which the premises shall be ready for initial GLO inspection.

(3) The GLO will inspect the premises to verify that the reclamation required in the plan of operations has been completed. If a performance bond guaranteeing reclamation has been required in the plan of operations, it will be returned upon successful completion of reclamation activities.

Source Note: The provisions of this §10.7 adopted to be effective March 22, 1989, 14 TexReg 1280; amended to be effective December 10, 2009, 34 TexReg 8776