1-1  By:  Saunders (Senate Sponsor - Armbrister)           H.B. No. 1968
    1-2        (In the Senate - Received from the House May 5, 1993;
    1-3  May 6, 1993, read first time and referred to Committee on Natural
    1-4  Resources; May 25, 1993, reported favorably, as amended, by the
    1-5  following vote:  Yeas 7, Nays 0; May 25, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Sims               x                               
    1-9        Truan              x                               
   1-10        Armbrister                                     x   
   1-11        Barrientos         x                               
   1-12        Bivins             x                               
   1-13        Brown              x                               
   1-14        Carriker                                       x   
   1-15        Lucio                                          x   
   1-16        Montford                                       x   
   1-17        Ratliff            x                               
   1-18        Shelley            x                               
   1-19  COMMITTEE AMENDMENT NO. 1                              By:  Shelley
   1-20  Amend H.B. 1968 by inserting new sections 7 through 12 and
   1-21  renumbering the remaining sections accordingly:
   1-22        SECTION 7.  Section 133.082, Natural Resources Code, is
   1-23  amended to read as follows:
   1-24        Sec. 133.082.  Civil Penalty.  (a)  A person or responsible
   1-25  party who violates this chapter or a rule or order adopted under
   1-26  this chapter after due notice is liable <to the state> for a civil
   1-27  penalty of not less than $500 or more than $5,000 for each act of
   1-28  violation on a first offense.
   1-29        (b)  A person or responsible party who violates this chapter
   1-30  or a rule or order adopted under this chapter after due notice is
   1-31  liable <to the state> for a civil penalty of not less than $1,000
   1-32  or more than $10,000 for each act of violation on a second and
   1-33  subsequent offense.
   1-34        SECTION 8.  Section 133.083(a), Natural Resources Code, is
   1-35  amended to read as follows:
   1-36        (a)  The commission or a county in which a violation of this
   1-37  chapter or a rule or order adopted under this chapter is occurring
   1-38  or has occurred may enforce this chapter or a rule or order adopted
   1-39  under this chapter by injunction or other appropriate remedy.
   1-40        SECTION 9.  Section 133.084, Natural Resources Code, is
   1-41  amended to read as follows:
   1-42        Sec. 133.084.  Recovery of Costs.  (a)  A person responsible
   1-43  for a quarry or pit is liable to the state for customary, ordinary,
   1-44  and reasonable costs incurred by the commission in undertaking
   1-45  corrective or enforcement action under this chapter and for court
   1-46  costs and attorney's fees.
   1-47        (b)  A person responsible for a quarry or pit is liable to a
   1-48  county for customary, ordinary, and reasonable costs incurred by
   1-49  the county in undertaking enforcement action under this chapter and
   1-50  for court costs and attorney's fees.
   1-51        SECTION 10.  Section 133.085, Natural Resources Code, is
   1-52  amended by adding Subsection (d) to read as follows:
   1-53        (d)  A county in which a violation of this chapter or a rule
   1-54  or order adopted under this chapter is occurring or has occurred
   1-55  may bring suit for injunctive relief, civil penalty, or both, as
   1-56  appropriate, under this subchapter.
   1-57        SECTION 11.  Section 133.086, Natural Resources Code, is
   1-58  amended to read as follows:
   1-59        Sec. 133.086.  Disposition of Penalties and Costs.
   1-60  (a)  Money collected under Section 133.082 or 133.084 of this code
   1-61  shall be deposited in the state treasury to the credit of the Texas
   1-62  aggregates quarry and pit safety fund.
   1-63        (b)  Money collected under Section 133.082 of this code in a
   1-64  suit brought by a county shall be retained by that county.  Money
   1-65  collected under that section in a suit brought by the state shall
   1-66  be equally divided between the state and the county in which the
   1-67  violation occurred.  The state shall deposit its share of the
   1-68  recovery in the state treasury to the credit of the Texas
    2-1  aggregates quarry and pit safety fund.
    2-2        SECTION 12.  Chapter 133, Natural Resources Code, is amended
    2-3  by adding Subchapter F to read as follows:
    2-4           SUBCHAPTER F.  AUTHORITY TO REGULATE QUARRIES AND
    2-5                       PITS IN CERTAIN COUNTIES
    2-6        Sec. 133.091.  COUNTY AUTHORITY TO REGULATE.  A county with a
    2-7  population of 2.4 million or more may adopt regulations requiring
    2-8  the placement of safety devices on aggregate quarries and pits.
    2-9        Sec. 133.092.  AREA SUBJECT TO REGULATION.  A regulation
   2-10  adopted under this subchapter applies only in the unincorporated
   2-11  area of the county.
   2-12        Sec. 133.093.  CONFLICT WITH COMMISSION RULE.  If a
   2-13  regulation adopted under this subchapter conflicts with a
   2-14  commission rule, the commission rule prevails.
   2-15                         A BILL TO BE ENTITLED
   2-16                                AN ACT
   2-17  relating to the regulation of aggregate quarries and pits.
   2-18        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   2-19        SECTION 1.  Sections 133.003(13), (24), (25), and (26),
   2-20  Natural Resources Code, are amended to read as follows:
   2-21              (13)  "In hazardous proximity to a public road" means
   2-22  that distance beginning 200 feet from the nearest roadway edge
   2-23  <outer right-of-way line> of a public road or highway to the pit
   2-24  perimeter.
   2-25              (24)  "Roadway" means the part of the public road
   2-26  intended for vehicular traffic that consists of an improved driving
   2-27  surface constructed of concrete, asphalt, compacted soil, rock, or
   2-28  other material.
   2-29              (25)  "Setback distance" means from the outer
   2-30  right-of-way line of a public road or highway up to a distance of
   2-31  25 feet.
   2-32              (26) <(25)>  "Site" means the tract of land on which is
   2-33  located a pit and includes the immediate area on which the plant
   2-34  used in the extraction of aggregates is located.
   2-35              (27) <(26)>  "Unacceptable unsafe location" means a
   2-36  condition where the edge of a pit is located within 200 feet of a
   2-37  public roadway <right-of-way> intersection <with a public  road> in
   2-38  a manner which, in the judgment of the commission:
   2-39                    (A)  presents a significant risk of harm to
   2-40  public motorists by reason of the proximity of the pit to the
   2-41  roadway intersection; and,
   2-42                    (B)  has no naturally occurring or artificially
   2-43  constructed barrier or berm between the road and pit that would
   2-44  likely prevent a motor vehicle from accidentally entering the pit
   2-45  as the result of a motor vehicle collision at or near the
   2-46  intersection; or which,
   2-47                    (C)  in the opinion of the commission, is also at
   2-48  any other location constituting a substantial dangerous risk to the
   2-49  driving public, which condition can be rectified by the placement
   2-50  of berms, barriers, guardrails, or other devices as prescribed by
   2-51  this code.
   2-52        SECTION 2.  Sections 133.041(b) and (d), Natural Resources
   2-53  Code, are amended to read as follows:
   2-54        (b)  A person responsible for an abandoned or inactive pit
   2-55  must construct a barrier or other device required by this code
   2-56  between a public road adjoining the site and the pit, provided that
   2-57  the pit is in hazardous proximity to a public road and in an
   2-58  unacceptable unsafe location.  The commission may grant a waiver
   2-59  from the barrier requirement if the person responsible for the
   2-60  abandoned or inactive pit submits an application to the commission
   2-61  showing that:
   2-62              (1)  a governmental entity obtained a right-of-way and
   2-63  constructed a public road within 200 feet of the abandoned or
   2-64  inactive pit before August 26, 1991; and
   2-65              (2)  the pit has remained abandoned or inactive since
   2-66  the road was constructed.
   2-67        (d)  The barrier or other device must be completed not later
   2-68  than the 90th day after the day on which the person responsible for
   2-69  the quarry or pit receives a notice of approval under Section
   2-70  133.048(b) of this code.  An<, although an> additional time of not
    3-1  more than 60 days may be granted by the commission for good cause
    3-2  shown.  If the responsible person must obtain an easement before
    3-3  constructing the barrier or other device, the commission may grant
    3-4  additional reasonable time to complete the barrier or other device.
    3-5        SECTION 3.  Sections 133.042(a) and (b), Natural Resources
    3-6  Code, are amended to read as follows:
    3-7        (a)  A barrier constructed under Section 133.041 of this code
    3-8  must:
    3-9              (1)  reach a height that the commission determines that
   3-10  under the circumstances will obstruct, restrain, and prevent the
   3-11  normal passage of vehicular traffic <at least twice the mid-axle
   3-12  height of the largest motor vehicle that usually travels the public
   3-13  road adjacent to the site>;
   3-14              (2)  be of substantial construction suitable for impact
   3-15  under normal driving conditions; and
   3-16              (3)  have openings to the extent necessary for travel
   3-17  on the premises and for public road drainage, although such
   3-18  drainage paths must be covered with protective material,
   3-19  substantial enough to turn away motor vehicular traffic that
   3-20  normally travels the adjacent public road.
   3-21        (b)  The commission may not adopt construction standards for
   3-22  barriers under Subsection (a) that are more stringent than the
   3-23  Texas <State> Department of <Highways and Public> Transportation
   3-24  standards <for barriers in comparable locations>.
   3-25        SECTION 4.  Section 133.045, Natural Resources Code, is
   3-26  amended to read as follows:
   3-27        Sec. 133.045.  Safety Certificate Required.  (a)  A safety
   3-28  certificate is required for an active, inactive, or abandoned
   3-29  quarry or pit that is located in hazardous proximity to a public
   3-30  road or is in an unacceptable unsafe location, excluding an
   3-31  inactive or abandoned quarry or pit that receives a written waiver
   3-32  from the commission.
   3-33        (b)  From and after November 1, 1991, unless a person
   3-34  responsible for a quarry or pit has obtained from the commission a
   3-35  certificate that a quarry or pit complies with this subchapter and
   3-36  rules or orders adopted under this subchapter, and subject to
   3-37  Subsection (c) <(b)> of this section, the person responsible may
   3-38  not:
   3-39              (1)  open a new pit in hazardous proximity to a public
   3-40  road; and
   3-41              (2)  locate a pit in an area wherein it is in an
   3-42  unacceptable unsafe location; or
   3-43              (3)  reopen, operate, or abandon a quarry or pit that
   3-44  is in hazardous proximity to a public road and in an unacceptable
   3-45  unsafe location; and
   3-46              (4)  provided, however, that the person responsible
   3-47  must have received a notice from the commission that the quarry or
   3-48  pit requires the operator to obtain a safety certificate, before
   3-49  that person is prohibited from operating or maintaining the quarry
   3-50  or pit without a safety certificate.
   3-51        (c) <(b)>  Any person responsible who, on November 1, 1991,
   3-52  is utilizing a portion of a site for quarrying operations,
   3-53  including the stockpiling, sale, or processing of aggregates or a
   3-54  combination thereof, or who has a current, valid, or outstanding
   3-55  agreement or legal right to develop, utilize, or quarry the
   3-56  property, shall be responsible for obtaining a safety certificate
   3-57  limited to that specific pit area he is using or excavating or
   3-58  intends to use or excavate.
   3-59        (d) <(c)>  A person responsible for a quarry or pit may
   3-60  operate the pit during a period that is described by Subsection (a)
   3-61  or (c) of Section 133.052 of this code.
   3-62        (e) <(d)>  In the event a quarry or pit previously not within
   3-63  the proscribed distance in the definition of "in hazardous
   3-64  proximity to a public road" and not initially within the purview of
   3-65  "unacceptable unsafe location" later becomes subject to regulation
   3-66  as the result of an expansion or relocation of an existing public
   3-67  road or construction of a new public road, the person or entity
   3-68  responsible for the expansion or relocation of the existing public
   3-69  road or construction of a new public road shall be liable to report
   3-70  the same to the commission within 90 days of the date the
    4-1  expansion, relocation, or construction is finally accomplished.
    4-2        (f) <(e)>  The commission shall provide such rules and
    4-3  regulations to require the person or entity responsible for the
    4-4  expansion or relocation to erect berms or barriers.
    4-5        (g) <(f)>  For the purposes of this subsection, the person or
    4-6  entity responsible for the erection of berms or barriers is that
    4-7  person or entity having the original and initial legal authority
    4-8  and responsibility for the initiation and contracting of the
    4-9  expansion or relocation.
   4-10        SECTION 5.  Section 133.046(b), Natural Resources Code, is
   4-11  amended to read as follows:
   4-12        (b)  An application for a safety certificate must contain not
   4-13  more than:
   4-14              (1)  the name, address, and telephone number of the
   4-15  person responsible for the quarry or pit;
   4-16              (2)  the name, address, and telephone number of the
   4-17  owner or owners if different from the person responsible for the
   4-18  quarry or pit;
   4-19              (3)  the type of quarrying activities, if any,
   4-20  occurring on the site;
   4-21              (4)  a brief description of the site, including the
   4-22  acreage outside and inside the pit;
   4-23              (5)  the distance of each pit perimeter from the
   4-24  nearest roadway edge <right-of-way line> of each public road that
   4-25  the site adjoins and the nearest intersection of any public or
   4-26  private road or driveway;
   4-27              (6)  the depth in feet, below the top of the pit
   4-28  highwall located between the pit and the roadway <right-of-way
   4-29  line>, of the deepest excavation in the pit;
   4-30              (7)  a description of and a construction plan for any
   4-31  barrier or other device allowed in this code to be constructed,
   4-32  specifying the material to be used and the expected date of
   4-33  completion; and
   4-34              (8)  any other information or condition that, in the
   4-35  opinion of the operator or owner, constitutes an unacceptable
   4-36  unsafe location, as defined or required by this Act that is
   4-37  absolutely essential to the purposes of this Act.
   4-38        SECTION 6.  Section 133.051(a), Natural Resources Code, is
   4-39  amended to read as follows:
   4-40        (a)  A person holding a safety certificate has the full
   4-41  right, power, and authority to transfer the certificate upon the
   4-42  sale, lease, or other transfer of title to the site, provided the
   4-43  new owner, operator, lessor or lessee, or party in interest files a
   4-44  written affidavit that:
   4-45              (1)  all barriers between a pit and the nearest roadway
   4-46  edge <right-of-way line> of any public road comply with this
   4-47  subchapter, and rules and orders adopted by this subchapter; and
   4-48              (2)  there will be no change, on or after the day of
   4-49  the transfer of title or operation, in:
   4-50                    (A)  the condition or location of a barrier; and
   4-51                    (B)  the distance of a pit perimeter from:
   4-52                          (i)  the nearest public road; and
   4-53                          (ii)  the nearest intersection of a public
   4-54  road and a private road or driveway <the nearest right-of-way line
   4-55  of a public road or public or private intersection of a public road
   4-56  or driveway that adjoins the site>.
   4-57        SECTION 7.  This Act takes effect September 1, 1993.
   4-58        SECTION 8.  The importance of this legislation and the
   4-59  crowded condition of the calendars in both houses create an
   4-60  emergency and an imperative public necessity that the
   4-61  constitutional rule requiring bills to be read on three several
   4-62  days in each house be suspended, and this rule is hereby suspended.
   4-63                               * * * * *
   4-64                                                         Austin,
   4-65  Texas
   4-66                                                         May 25, 1993
   4-67  Hon. Bob Bullock
   4-68  President of the Senate
   4-69  Sir:
   4-70  We, your Committee on Natural Resources to which was referred H.B.
    5-1  No. 1968, have had the same under consideration, and I am
    5-2  instructed to report it back to the Senate with the recommendation
    5-3  that it do pass, as amended, and be printed.
    5-4                                                         Sims,
    5-5  Chairman
    5-6                               * * * * *
    5-7                               WITNESSES
    5-8                                                  FOR   AGAINST  ON
    5-9  ___________________________________________________________________
   5-10  Name:  Melvin Hodgkiss                                         x
   5-11  Representing:  Railroad Commission
   5-12  City:  Austin
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