The 64th Texas Legislature passed the "Texas Surface Mining and Reclamation Act," Chapter 131, Texas Natural Resources Code (subsequently referred to as "the Act"), at a point in time when little surface mining had taken place within the state. Thus, enactment of regulatory control governing mining operations in our state has, for the most part, preceded widespread, intensive mining activity. I should point out that the statute applies only to the extraction of coal, lignite, uranium and uranium ore. A recent opinion rendered by the Attorney General's office has stated that extraction of the named elements, when it occurs incidental to the extraction of other materials, e.g., clay, is not not an activity subject to the Act. An important theme of the Act, frequently overlooked in other environmentally oriented legislation, is recognition of the Act's affect on the mining industry. The Act states that "the extraction of minerals by surface mining operations is a basic and essential activity making an important contribution to the economic well-being of the state and nation" and, in reference to reclamation being accomplished contemporaneously with mining, provides a recognition that "the extraction of minerals by responsible mining operations is an essential and beneficial economic activity." This legislative recognition is, of course balanced against the need for proper mined land reclamation, the rights of surface owners, the need to guard against unreasonable degradation to land and water resources and numerous other actions or events that the Legislature wanted protected. Another rather pervasive general theme that is established in the Act is the concept that the agency is entitled to obtain whatever information, or take whatever action, that appears reasonably necessary to effectuate the purposes of the Act. This concept, coupled with the detailed requirements placed on mining operations in the portions of the Act dealing with Permit Applications, Reclamation Plan and Reclamation Standards, easily insures that surface mining activities can and will be regulated to the extent necessary. Section 131.102(b)(2) is probably the most relevant provision in the Act which deals with the preclusion of mined lands becoming waste lands. This portion of the Act states that the surface mining operator shall: ". . . restore the land affected to the same or a substantially beneficial condition. ." In this language the Legislature had made it abundantly clear that the abandoned or orphaned lands found in some of the Eastern states, will not be tolerated in this State, and provided the Commission with a degree of latitude to determine what condition would be appropriate in each individual mining situation. I bring this area of the Act to your attention because it is the area which has received the most inquiries and concern by operators, i.e. what does "substantially beneficial" constitute? The Commission's staff has spent a considerable amount of time wrestling with the statutory language "substantially beneficial" to determine the legislative intent and provide operators with guidance of what they can expect. In this regard, the most definitive criteria in our opinion lies in the Act's legislative hsitory. The Legislature had before it basically three reclamation standards namely: House Bill 656, considered to provide the most stringent reclamation standard and identical to Senate Bill 66; House Bill 1717 which was supported by industry spokesmen and was considered to contain the least stringent reclamation standard; and Senate Bill 55 which was adopted by the Legislature. During the Bill's initial hearing before the House Environmental Affairs Committee, the House sponsor of the Senate Bill 55, which was the Bill eventually adopted, made the following statement: (I am quoting verbatim from the Committee's transcript although substituting the speaker's reference to the authors names with the Bill's numbers.) "An example of the differing approaches of the four bills can be seen in the area of reclamation standards and this is critical. House Bill 656, talking about restoring the surface of the land, House Bill 656 has this statement: 'At least fully capable of supporting the use to which it was capable of supporting prior to any mining or any higher or better use.' In other words you have to restore it to the level it was prior to the mining. Senate Bill 55: 'Restore the land to the same or substantially beneficial use.' Substantially beneficial use. (Emphasis his) House Bill 1717 says: 'Restore insofar as practical to appropriate beneficial post-mining use.' So that House Bill 1717 said to, 'restore insofar as practical to appropriate beneficial use. I think that's too weak, whereas I think the House Bill 656 that would call you to restore it to at least the use it had prior to the mining may also be too tight the other way. I think the Senate Bill 55 approach is down the middle of the road which says that you do restore it to the 'same or substantially beneficial use,' is a proper way to go there." Therefore, the conclusion that we have drawn from the legislative history of the bill is that the extent of reclamation required by "substantially beneficial" may be something other than the use it was prior to
Foreword By. W. S. Morris