By Walker H.B. No. 2538
77R3831 SMH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of aggregate quarries; providing for an
1-3 administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 4, Natural Resources Code, is amended by
1-6 adding Chapter 135 to read as follows:
1-7 CHAPTER 135. AGGREGATE QUARRYING AND RECLAMATION
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 135.001. SHORT TITLE. This chapter may be cited as the
1-10 Texas Aggregate Quarrying and Reclamation Act.
1-11 Sec. 135.002. DEFINITIONS. In this chapter:
1-12 (1) "Aggregates," "commission," "operator,"
1-13 "overburden," "owner," "pit," "quarrying," "quarry," "ridge," and
1-14 "site" have the meanings assigned those terms by Section 133.003.
1-15 (2) "Certificate holder" means a person who holds a
1-16 certificate of registration issued under this chapter.
1-17 (3) "Land affected" means:
1-18 (A) the area from which any materials are to be
1-19 or have been displaced in a quarrying operation;
1-20 (B) the area on which any materials that are
1-21 displaced are to be or have been deposited;
1-22 (C) the haul roads and impoundment basins within
1-23 the quarrying area; and
1-24 (D) other land whose natural state has been or
2-1 will be disturbed as a result of the quarrying operations.
2-2 (4) "Reclamation" means the process of restoring an
2-3 area affected by a quarrying operation to its original or other
2-4 substantially beneficial condition, considering past and possible
2-5 future uses of the area and the surrounding topography.
2-6 Sec. 135.003. EXEMPTIONS. (a) This chapter does not apply
2-7 to:
2-8 (1) land under the jurisdiction of the General Land
2-9 Office;
2-10 (2) land from which aggregates are being produced on
2-11 September 1, 2001; or
2-12 (3) a parcel of land of less than five acres.
2-13 (b) Notwithstanding Subsection (a)(1), land covered by that
2-14 subsection on which quarrying is conducted must be reclaimed in a
2-15 manner consistent with this chapter.
2-16 (c) Notwithstanding Subsection (a)(2), an operator may not
2-17 expand the surface acreage of a pit from which aggregates are being
2-18 produced on September 1, 2001, unless the operator obtains a
2-19 certificate of registration and complies with the other provisions
2-20 of this chapter with respect to the expanded portion of the pit and
2-21 any land affected by the expansion. The operator is not required
2-22 to comply with this chapter with respect to the land affected by
2-23 the quarrying operation as of September 1, 2001.
2-24 (Sections 135.004-135.050 reserved for expansion
2-25 SUBCHAPTER B. AUTHORITY OF COMMISSION
2-26 Sec. 135.051. GENERAL AUTHORITY OF COMMISSION. (a) The
2-27 commission may:
3-1 (1) adopt rules and issue orders as necessary to
3-2 implement and enforce this chapter;
3-3 (2) conduct, encourage, request, and participate in
3-4 studies, surveys, investigations, research, experiments, training,
3-5 and demonstrations by contract, grant, or otherwise;
3-6 (3) apply for, accept, receive, and administer grants,
3-7 gifts, loans, or other money from any source for the purposes of
3-8 this chapter;
3-9 (4) hire employees, adopt standards for employment of
3-10 those persons, and hire or authorize the hiring of outside
3-11 contractors to assist in implementing this chapter; and
3-12 (5) enter into contracts with other state agencies
3-13 with pertinent expertise so as to obtain professional and technical
3-14 services necessary to implement this chapter.
3-15 (b) This chapter does not authorize the commission to
3-16 adjudicate property title or property rights disputes.
3-17 Sec. 135.052. INSPECTIONS. (a) On reasonable notice and on
3-18 presentation of appropriate credentials, the commission or an
3-19 authorized representative of the commission may inspect a quarrying
3-20 operation for the purpose of determining whether the operation is
3-21 properly reclaiming the land affected by the operation.
3-22 (b) An inspection may be conducted only during normal
3-23 operating hours.
3-24 (c) An inspector must provide a written statement of the
3-25 reasons for the inspection.
3-26 (d) An inspector shall prepare an inspection report adequate
3-27 to enforce the requirements of, and to implement, this chapter.
4-1 The inspector shall provide a copy of the report to the operator or
4-2 an authorized representative of the operator before departing the
4-3 quarrying operation and shall file the report with the commission.
4-4 The commission shall provide a copy of the report to the operator
4-5 and each owner of the site of the quarry who is not the operator.
4-6 (e) The commission shall establish a system of rotation of
4-7 inspectors.
4-8 (Sections 135.053-135.100 reserved for expansion
4-9 SUBCHAPTER C. CERTIFICATE OF REGISTRATION
4-10 Sec. 135.101. CERTIFICATE OF REGISTRATION REQUIRED. A person
4-11 may not conduct a quarrying operation in this state unless the
4-12 person holds a certificate of registration for that operation
4-13 issued by the commission under this chapter.
4-14 Sec. 135.102. APPLICATION. (a) To obtain a certificate of
4-15 registration, a person must file an application for a certificate
4-16 of registration with the commission on a concise form prescribed by
4-17 the commission, accompanied by a fee of $200 and the bond or
4-18 alternative form of financial security required by Subchapter D.
4-19 (b) The application must include:
4-20 (1) the name, address, and telephone number of the
4-21 operator;
4-22 (2) the name, address, and telephone number of each
4-23 owner of the site of the proposed quarry who is not the operator;
4-24 (3) the type of aggregate extraction and production
4-25 activities to be conducted on the site of the proposed quarry,
4-26 including an estimate of the number of acres of land to be
4-27 disturbed annually for quarrying purposes;
5-1 (4) a legal description of the land on which the
5-2 quarry is to be located;
5-3 (5) a map of the site of the proposed quarry showing
5-4 any easement, public or private road, or right-of-way;
5-5 (6) a statement that the operator has the legal right
5-6 to quarry the land described; and
5-7 (7) a reclamation plan that complies with the
5-8 provisions of this chapter governing the reclamation activities
5-9 that shall be undertaken.
5-10 (c) A separate application is required for each quarrying
5-11 operation. The commission by rule shall specify criteria for
5-12 determining whether a quarrying operation constitutes a separate
5-13 operation for which a separate application is required.
5-14 Sec. 135.103. ISSUANCE OF CERTIFICATE. (a) Not later than
5-15 the 30th day after the date the commission receives a completed
5-16 application, the application fee, and a bond or alternative form of
5-17 financial security as required by Subchapter D, the commission
5-18 shall:
5-19 (1) issue a certificate of registration to the
5-20 applicant entitling the applicant to engage in aggregate quarrying
5-21 operations on the land described in the application; or
5-22 (2) provide the applicant a written statement
5-23 explaining the reason for denial of the certificate.
5-24 (b) The commission may not give public notice or hold a
5-25 public hearing before issuing a certificate of registration.
5-26 Sec. 135.104. TERM OF CERTIFICATE. A certificate of
5-27 registration expires on the first anniversary of the date of
6-1 issuance.
6-2 Sec. 135.105. RENEWAL OF CERTIFICATE. A person may renew an
6-3 unexpired certificate of registration by paying a renewal fee of
6-4 $500 to the commission before the expiration date of the
6-5 certificate.
6-6 Sec. 135.106. RECLAMATION STANDARDS. A certificate of
6-7 registration shall require that the quarrying operations meet the
6-8 applicable reclamation standards of this chapter and commission
6-9 rules.
6-10 Sec. 135.107. TRANSFER OF CERTIFICATE. (a) An operator must
6-11 provide written notice to the commission at least 15 days before
6-12 the date the operator transfers a certificate of registration. The
6-13 notice must:
6-14 (1) include the name of the person to whom the
6-15 operator proposes to transfer the certificate; and
6-16 (2) be accompanied by a bond or alternative form of
6-17 financial security as required by Subchapter D provided by the
6-18 person to whom the operator proposes to transfer the certificate.
6-19 (b) An operator may transfer a certificate of registration
6-20 on or after the 15th day after the date the operator provides
6-21 notice under Subsection (a) unless the commission notifies the
6-22 operator that the transfer is disapproved before that day. On the
6-23 transfer of the certificate:
6-24 (1) the new operator assumes all obligations of the
6-25 former operator with respect to the quarrying operation covered by
6-26 the certificate; and
6-27 (2) the former operator is released from those
7-1 obligations.
7-2 Sec. 135.108. AMENDMENT OF CERTIFICATE. (a) On application,
7-3 the commission may amend a certificate of registration to cover
7-4 additional land that is in the immediate vicinity of the quarry for
7-5 which the certificate was issued, including land that is not
7-6 contiguous to the quarry.
7-7 (b) An application for an amended certificate of
7-8 registration must describe:
7-9 (1) the additional land to be covered by the
7-10 certificate; and
7-11 (2) the quarrying operations to be conducted on the
7-12 land.
7-13 (c) The filing of an application to amend a certificate of
7-14 registration does not affect the authority granted under the
7-15 certificate of which amendment is sought.
7-16 (Sections 135.109-135.150 reserved for expansion
7-17 SUBCHAPTER D. BOND OR ALTERNATIVE FORM OF FINANCIAL SECURITY
7-18 Sec. 135.151. BOND REQUIRED. (a) An application for a
7-19 certificate of registration must be accompanied by a bond on a form
7-20 prescribed by the commission payable to the state and conditioned
7-21 on the operator's compliance with the requirements of this chapter,
7-22 any rule adopted or order issued by the commission under this
7-23 chapter, and the reclamation plan for the quarry.
7-24 (b) A bond must be signed by the operator as principal and
7-25 by a good and sufficient surety licensed to do business in this
7-26 state.
7-27 Sec. 135.152. AMOUNT OF BOND. A bond must be in the amount
8-1 of $1,000 for each acre of land to be disturbed as provided by the
8-2 reclamation plan for the proposed quarry.
8-3 Sec. 135.153. TERM OF BOND. (a) A bond shall remain in
8-4 effect until the commission determines that the quarry has been
8-5 reclaimed in accordance with this chapter, commission rules, and
8-6 the reclamation plan for the quarry.
8-7 (b) Notwithstanding Subsection (a), if the commission
8-8 determines that part of a quarry site has been reclaimed in
8-9 accordance with this chapter, the commission may release a part of
8-10 the amount of the bond.
8-11 Sec. 135.154. CANCELLATION OF BOND. The surety on a bond may
8-12 not cancel the bond until the 91st day after the date the surety
8-13 gives the commission written notice of intent to cancel the bond.
8-14 Sec. 135.155. SUBSTITUTION OF SURETY. (a) If the surety on
8-15 a bond ceases to do business in this state or the surety's license
8-16 to do business is suspended or revoked, the operator, after
8-17 receiving notice from the commission, shall substitute another good
8-18 and sufficient surety licensed to do business in this state.
8-19 (b) If an operator fails to substitute sureties as required
8-20 by this section, the commission may suspend the operator's
8-21 certificate of registration until the substitution is made.
8-22 Sec. 135.156. ALTERNATIVE FORM OF FINANCIAL SECURITY. In
8-23 lieu of filing a bond, an operator may deposit cash, government
8-24 securities, a certificate of deposit, or an irrevocable letter of
8-25 credit with the commission in an amount equal to the amount of a
8-26 bond required under Section 135.152, on terms prescribed by the
8-27 commission.
9-1 (Sections 135.157-135.200 reserved for expansion
9-2 SUBCHAPTER E. CONDUCT OF QUARRYING OPERATIONS
9-3 Sec. 135.201. DISTANCE OF PIT PERIMETER FROM PROPERTY LINE.
9-4 A pit perimeter must be located at least:
9-5 (1) 50 feet from the nearest property line if the
9-6 slope has a horizontal to vertical ratio of at least two to one; or
9-7 (2) 100 feet from the nearest property line if the
9-8 slope is vertical and has a height of at least 10 feet.
9-9 (Sections 135.202-135.250 reserved for expansion
9-10 SUBCHAPTER F. RECLAMATION
9-11 Sec. 135.251. RECLAMATION PLAN. (a) A reclamation plan
9-12 submitted as part of an application for a certificate of
9-13 registration must be developed in a manner consistent with:
9-14 (1) physical, environmental, and climatological
9-15 conditions; and
9-16 (2) quarrying and reclamation technologies the use of
9-17 which is considered a customary business practice at the time the
9-18 plan is developed.
9-19 (b) A reclamation plan must specify:
9-20 (1) the number of acres to be disturbed by the
9-21 proposed quarrying operation; and
9-22 (2) whether the quarry site is to be reclaimed for
9-23 forest, pasture, crop, horticultural, homesite, recreational,
9-24 industrial, wildlife, or other use.
9-25 (c) An operator may amend a reclamation plan at any time,
9-26 subject to commission approval.
9-27 Sec. 135.252. ACCESS TO LAND ABOVE BENCH OR HIGHWALL. If a
10-1 quarrying operation produces a bench or solid rock highwall, the
10-2 operator shall provide at least one suitable access to land above
10-3 the bench or highwall.
10-4 Sec. 135.253. RESTRICTION OF WATERWAY. An operator may not
10-5 move overburden in a manner that restricts a waterway unless a
10-6 drainway can be constructed with the approval of each proper state
10-7 agency.
10-8 Sec. 135.254. GRADING OF OVERBURDEN. (a) An operator shall:
10-9 (1) place, grade, and stabilize all overburden removed
10-10 so as to minimize soil erosion, surface disturbance, and stream
10-11 sedimentation; and
10-12 (2) grade all ridges and peaks of overburden created
10-13 by quarrying to a rolling topography traversable by equipment
10-14 customarily used in connection with the use to be made of the land
10-15 after reclamation, except that the slope is not required to be
10-16 reduced to less than:
10-17 (A) the original grade of the area surrounding
10-18 the pit before mining; or
10-19 (B) 25 degrees from horizontal if the ridge or
10-20 peak results from a box cut.
10-21 (b) This section does not apply to a quarrying operation:
10-22 (1) conducted:
10-23 (A) in the flood plain of a river or stream and
10-24 subject to periodic flooding; or
10-25 (B) in a wetland; or
10-26 (2) the pit of which is covered by a lake or
10-27 settlement pond as provided by Section 135.255.
11-1 (c) Notwithstanding Subsection (a), an operator:
11-2 (1) is not required to backfill a pit; and
11-3 (2) may leave boulders in a pit.
11-4 Sec. 135.255. CONSTRUCTION OF DAM. An operator may construct
11-5 a dam to form a lake or settlement pond in a pit resulting from a
11-6 quarrying operation.
11-7 Sec. 135.256. REVEGETATION. Revegetation of land affected by
11-8 a quarrying operation is not required if:
11-9 (1) the chemical or physical characteristics of the
11-10 soil seriously inhibit plant growth; or
11-11 (2) the land is to be covered by a permanent lake or
11-12 pond.
11-13 (Sections 135.257-135.300 reserved for expansion
11-14 SUBCHAPTER G. ADMINISTRATIVE PENALTY
11-15 Sec. 135.301. IMPOSITION OF PENALTY. The commission shall
11-16 impose an administrative penalty on an owner or operator of a
11-17 quarrying operation who violates this chapter or a rule adopted or
11-18 order issued under this chapter.
11-19 Sec. 135.302. AMOUNT OF PENALTY. The amount of the penalty
11-20 is $5,000, and each day a violation continues or occurs is a
11-21 separate violation for purposes of imposing a penalty.
11-22 Sec. 135.303. NOTICE OF VIOLATION AND PENALTY. (a) If,
11-23 after investigation of a possible violation and the facts
11-24 surrounding that possible violation, the commission determines that
11-25 a violation has occurred, the commission shall give written notice
11-26 of the violation to the person alleged to have committed the
11-27 violation.
12-1 (b) The notice must:
12-2 (1) include a brief summary of the alleged violation;
12-3 (2) state the amount of the proposed administrative
12-4 penalty; and
12-5 (3) inform the person of the person's right to a
12-6 hearing on the occurrence of the violation, the amount of the
12-7 penalty, or both.
12-8 Sec. 135.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
12-9 Not later than the 20th day after the date the person receives the
12-10 notice, the person in writing may:
12-11 (1) accept the determination and the proposed
12-12 administrative penalty; or
12-13 (2) make a request for a hearing on the occurrence of
12-14 the violation, the amount of the penalty, or both.
12-15 (b) If the person accepts the determination and proposed
12-16 penalty, the commission by order shall approve the determination
12-17 and impose the proposed penalty.
12-18 Sec. 135.305. HEARING. (a) If the person requests a hearing
12-19 or fails to respond in a timely manner to the notice, the
12-20 commission shall set a hearing and give written notice of the
12-21 hearing to the person. The commission may employ a hearings
12-22 officer to hold the hearing.
12-23 (b) The hearings officer shall make findings of fact and
12-24 conclusions of law and promptly issue to the commission a proposal
12-25 for a decision about the occurrence of the violation and the amount
12-26 of a proposed penalty.
12-27 Sec. 135.306. DECISION BY COMMISSION. (a) Based on the
13-1 findings of fact, conclusions of law, and proposal for a decision,
13-2 the commission by order may:
13-3 (1) find that a violation occurred and impose a
13-4 penalty; or
13-5 (2) find that a violation did not occur.
13-6 (b) The notice of the commission's order given to the person
13-7 must include a statement of the right of the person to judicial
13-8 review of the order.
13-9 Sec. 135.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Not
13-10 later than the 30th day after the date the commission's order
13-11 becomes final, the person shall:
13-12 (1) pay the penalty; or
13-13 (2) file a petition for judicial review contesting the
13-14 occurrence of the violation, the amount of the penalty, or both.
13-15 Sec. 135.308. STAY OF ENFORCEMENT OF PENALTY. (a) Within
13-16 the 30-day period prescribed by Section 135.307, a person who files
13-17 a petition for judicial review may:
13-18 (1) stay enforcement of the penalty by:
13-19 (A) paying the penalty to the court for
13-20 placement in an escrow account; or
13-21 (B) giving the court a supersedeas bond approved
13-22 by the court that:
13-23 (i) is for the amount of the penalty; and
13-24 (ii) is effective until all judicial
13-25 review of the commission's order is final; or
13-26 (2) request the court to stay enforcement of the
13-27 penalty by:
14-1 (A) filing with the court a sworn affidavit of
14-2 the person stating that the person is financially unable to pay the
14-3 penalty and is financially unable to give the supersedeas bond; and
14-4 (B) giving a copy of the affidavit to the
14-5 commission by certified mail.
14-6 (b) If the commission receives a copy of an affidavit under
14-7 Subsection (a)(2), the commission may file with the court, within
14-8 five days after the date the copy is received, a contest to the
14-9 affidavit. The court shall hold a hearing on the facts alleged in
14-10 the affidavit as soon as practicable and shall stay the enforcement
14-11 of the penalty on finding that the alleged facts are true. The
14-12 person who files an affidavit has the burden of proving that the
14-13 person is financially unable to pay the penalty and to give a
14-14 supersedeas bond.
14-15 Sec. 135.309. COLLECTION OF PENALTY. (a) If the person does
14-16 not pay the penalty and the enforcement of the penalty is not
14-17 stayed, the penalty may be collected.
14-18 (b) The attorney general may sue to collect the penalty.
14-19 (c) A penalty collected under this subchapter shall be
14-20 deposited in the state treasury to the credit of the Texas
14-21 aggregate quarry reclamation account.
14-22 Sec. 135.310. DECISION BY COURT. (a) If the court sustains
14-23 the finding that a violation occurred, the court may uphold or
14-24 reduce the amount of the penalty and order the person to pay the
14-25 full or reduced amount of the penalty.
14-26 (b) If the court does not sustain the finding that a
14-27 violation occurred, the court shall order that a penalty is not
15-1 owed.
15-2 Sec. 135.311. REMITTANCE OF PENALTY AND INTEREST. (a) If
15-3 the person paid the penalty and if the amount of the penalty is
15-4 reduced or the penalty is not upheld by the court, the court shall
15-5 order, when the court's judgment becomes final, that the
15-6 appropriate amount plus accrued interest be remitted to the person.
15-7 (b) The interest accrues at the rate charged on loans to
15-8 depository institutions by the New York Federal Reserve Bank.
15-9 (c) The interest shall be paid for the period beginning on
15-10 the date the penalty is paid and ending on the date the penalty is
15-11 remitted.
15-12 Sec. 135.312. RELEASE OF BOND. (a) If the person gave a
15-13 supersedeas bond and the penalty is not upheld by the court, the
15-14 court shall order, when the court's judgment becomes final, the
15-15 release of the bond.
15-16 (b) If the person gave a supersedeas bond and the amount of
15-17 the penalty is reduced, the court shall order the release of the
15-18 bond after the person pays the reduced amount.
15-19 Sec. 135.313. ADMINISTRATIVE PROCEDURE. A proceeding to
15-20 impose the penalty is considered to be a contested case under
15-21 Chapter 2001, Government Code.
15-22 (Sections 135.314-135.350 reserved for expansion)
15-23 SUBCHAPTER H. RECLAMATION ACCOUNT
15-24 Sec. 135.351. TEXAS AGGREGATE QUARRY RECLAMATION ACCOUNT.
15-25 (a) The commission shall deposit the amount recovered on a bond or
15-26 alternative form of financial security as required by Subchapter D
15-27 or an administrative penalty collected under Subchapter G to the
16-1 credit of the Texas aggregate quarry reclamation account.
16-2 (b) The Texas aggregate quarry reclamation account is an
16-3 account in the general revenue fund that may be appropriated only
16-4 for the purpose of undertaking corrective or enforcement action
16-5 under this chapter.
16-6 SECTION 2. (a) This Act takes effect September 1, 2001.
16-7 (b) Not later than March 1, 2002, the Railroad Commission of
16-8 Texas shall adopt rules as necessary to implement this Act.
16-9 (c) Notwithstanding Section 135.101, Natural Resources Code,
16-10 as added by this Act, an operator may begin conducting a quarrying
16-11 operation in this state on or after the effective date of this Act
16-12 and before the Railroad Commission of Texas adopts rules as
16-13 provided by Subsection (b) of this section without obtaining a
16-14 certificate of registration for that operation from the commission
16-15 under Chapter 135, Natural Resources Code, as added by this Act.
16-16 As soon as practicable after the commission adopts rules, an
16-17 operator described by this subsection shall file an application for
16-18 a certificate of registration under Section 135.102, Natural
16-19 Resources Code, as added by this Act, accompanied by a reclamation
16-20 plan under Section 135.251, Natural Resources Code, as added by
16-21 this Act. An operator who files an application accompanied by a
16-22 reclamation plan may continue conducting the operation under this
16-23 subsection until the commission approves or disapproves the
16-24 application and reclamation plan.