By: Shapiro S.B. No. 910
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) "Commission," "operator," "owner," "pit,"
1-13 "quarrying," "quarry," and "site" have the meanings assigned those
1-14 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
1-25 will be disturbed as a result of the quarrying operations.
2-1 Sec. 135.003. EXEMPTIONS. This chapter does not apply to:
2-2 (1) land under the jurisdiction of the General Land
2-3 Office; or
2-4 (2) a parcel of land of less than five acres.
2-5 Sec. 135.004. RULES AND ORDERS. The commission may adopt
2-6 rules and issue orders as necessary to implement and enforce this
2-7 chapter.
2-8 (Sections 135.005-135.050 reserved for expansion
2-9 SUBCHAPTER B. CERTIFICATE OF REGISTRATION
2-10 Sec. 135.051. CERTIFICATE OF REGISTRATION REQUIRED. A
2-11 person may not conduct a quarrying operation in this state unless
2-12 the person holds a certificate of registration for that operation
2-13 issued by the commission under this chapter.
2-14 Sec. 135.052. APPLICATION. (a) To obtain a certificate of
2-15 registration, a person must file an application for a certificate
2-16 of registration with the commission on a concise form prescribed by
2-17 the commission, accompanied by a fee of $200.
2-18 (b) The application must include:
2-19 (1) the name, address, and telephone number of the
2-20 operator;
2-21 (2) the name, address, and telephone number of each
2-22 owner of the site of the proposed quarry who is not the operator;
2-23 (3) the type of aggregate extraction and production
2-24 activities to be conducted on the site of the proposed quarry,
2-25 including an estimate of the number of acres of land to be
2-26 disturbed annually for quarrying purposes;
3-1 (4) a legal description of the land on which the
3-2 quarry is to be located;
3-3 (5) a map of the site of the proposed quarry showing
3-4 any easement, public or private road, or right-of-way; and
3-5 (6) a statement that the operator has the legal right
3-6 to quarry the land described.
3-7 (c) A separate application is required for each quarrying
3-8 operation. The commission by rule shall specify criteria for
3-9 determining whether a quarrying operation constitutes a separate
3-10 operation for which a separate application is required.
3-11 Sec. 135.053. ISSUANCE OF CERTIFICATE. (a) Not later than
3-12 the 30th day after the date the commission receives a completed
3-13 application and the application fee, the commission shall:
3-14 (1) issue a certificate of registration to the
3-15 applicant entitling the applicant to engage in aggregate quarrying
3-16 operations on the land described in the application; or
3-17 (2) provide the applicant a written statement
3-18 explaining the reason for denial of the certificate.
3-19 (b) The commission may not give public notice or hold a
3-20 public hearing before issuing a certificate of registration.
3-21 Sec. 135.054. TERM OF CERTIFICATE. A certificate of
3-22 registration is valid for the life of the quarry for which it is
3-23 issued.
3-24 Sec. 135.055. TRANSFER OF CERTIFICATE. (a) An operator
3-25 must provide written notice to the commission at least 15 days
3-26 before the date the operator transfers a certificate of
4-1 registration. The notice must include the name of the person to
4-2 whom the operator proposes to transfer the certificate.
4-3 (b) An operator may transfer a certificate of registration
4-4 on or after the 15th day after the date the operator provides
4-5 notice under Subsection (a) unless the commission notifies the
4-6 operator that the transfer is disapproved before that day.
4-7 Sec. 135.056. AMENDMENT OF CERTIFICATE. (a) On
4-8 application, the commission may amend a certificate of registration
4-9 to cover additional land that is in the immediate vicinity of the
4-10 quarry for which the certificate was issued, including land that is
4-11 not contiguous to the quarry.
4-12 (b) An application for an amended certificate of
4-13 registration must describe:
4-14 (1) the additional land to be covered by the
4-15 certificate; and
4-16 (2) the quarrying operations to be conducted on the
4-17 land.
4-18 (c) The filing of an application to amend a certificate of
4-19 registration does not affect the authority granted under the
4-20 certificate of which amendment is sought.
4-21 (Sections 135.057-135.100 reserved for expansion
4-22 SUBCHAPTER C. CONDUCT OF QUARRYING OPERATIONS
4-23 Sec. 135.101. DISTANCE OF PIT PERIMETER FROM PROPERTY LINE.
4-24 A pit perimeter must be located at least:
4-25 (1) 50 feet from the nearest property line if the
4-26 slope has a horizontal to vertical ratio of at least two to one; or
5-1 (2) 100 feet from the nearest property line if the
5-2 slope is vertical and has a height of at least 10 feet.
5-3 (Sections 135.102-135.150 reserved for expansion
5-4 SUBCHAPTER D. ADMINISTRATIVE PENALTY
5-5 Sec. 135.151. IMPOSITION OF PENALTY. The commission shall
5-6 impose an administrative penalty on an owner or operator of a
5-7 quarrying operation who violates this chapter or a rule adopted or
5-8 order issued under this chapter.
5-9 Sec. 135.152. AMOUNT OF PENALTY. (a) The amount of the
5-10 penalty is $500, except that the penalty for a violation of Section
5-11 135.101 is determined by the commission in an amount of not less
5-12 than $500 and not more than $5,000.
5-13 (b) The amount of the penalty for a violation of Section
5-14 135.101 shall be based on:
5-15 (1) the seriousness of the violation, including the
5-16 nature, circumstances, extent, and gravity of the violation;
5-17 (2) the economic harm to property or the environment
5-18 caused by the violation;
5-19 (3) the history of previous violations;
5-20 (4) the amount necessary to deter a future violation;
5-21 (5) efforts to correct the violation; and
5-22 (6) any other matter that justice may require.
5-23 Sec. 135.153. NOTICE OF VIOLATION AND PENALTY. (a) If,
5-24 after investigation of a possible violation and the facts
5-25 surrounding that possible violation, the commission determines that
5-26 a violation has occurred, the commission shall give written notice
6-1 of the violation to the person alleged to have committed the
6-2 violation.
6-3 (b) The notice must:
6-4 (1) include a brief summary of the alleged violation;
6-5 (2) state the amount of the proposed administrative
6-6 penalty; and
6-7 (3) inform the person of the person's right to a
6-8 hearing on the occurrence of the violation, the amount of the
6-9 penalty, or both.
6-10 Sec. 135.154. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
6-11 Not later than the 20th day after the date the person receives the
6-12 notice, the person in writing may:
6-13 (1) accept the determination and the proposed
6-14 administrative penalty; or
6-15 (2) make a request for a hearing on the occurrence of
6-16 the violation, the amount of the penalty, or both.
6-17 (b) If the person accepts the determination and proposed
6-18 penalty, the commission by order shall approve the determination
6-19 and impose the proposed penalty.
6-20 Sec. 135.155. HEARING. (a) If the person requests a
6-21 hearing or fails to respond in a timely manner to the notice, the
6-22 commission shall set a hearing and give written notice of the
6-23 hearing to the person. The commission may employ a hearings
6-24 officer to hold the hearing.
6-25 (b) The hearings officer shall make findings of fact and
6-26 conclusions of law and promptly issue to the commission a proposal
7-1 for a decision about the occurrence of the violation and the amount
7-2 of a proposed penalty.
7-3 Sec. 135.156. DECISION BY COMMISSION. (a) Based on the
7-4 findings of fact, conclusions of law, and proposal for a decision,
7-5 the commission by order may:
7-6 (1) find that a violation occurred and impose a
7-7 penalty; or
7-8 (2) find that a violation did not occur.
7-9 (b) The notice of the commission's order given to the person
7-10 must include a statement of the right of the person to judicial
7-11 review of the order.
7-12 Sec. 135.157. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
7-13 Not later than the 30th day after the date the commission's order
7-14 becomes final, the person shall:
7-15 (1) pay the penalty; or
7-16 (2) file a petition for judicial review contesting the
7-17 occurrence of the violation, the amount of the penalty, or both.
7-18 Sec. 135.158. STAY OF ENFORCEMENT OF PENALTY. (a) Within
7-19 the 30-day period prescribed by Section 135.157, a person who files
7-20 a petition for judicial review may:
7-21 (1) stay enforcement of the penalty by:
7-22 (A) paying the penalty to the court for
7-23 placement in an escrow account; or
7-24 (B) giving the court a supersedeas bond approved
7-25 by the court that:
7-26 (i) is for the amount of the penalty; and
8-1 (ii) is effective until all judicial
8-2 review of the commission's order is final; or
8-3 (2) request the court to stay enforcement of the
8-4 penalty by:
8-5 (A) filing with the court a sworn affidavit of
8-6 the person stating that the person is financially unable to pay the
8-7 penalty and is financially unable to give the supersedeas bond; and
8-8 (B) giving a copy of the affidavit to the
8-9 commission by certified mail.
8-10 (b) If the commission receives a copy of an affidavit under
8-11 Subsection (a)(2), the commission may file with the court, within
8-12 five days after the date the copy is received, a contest to the
8-13 affidavit. The court shall hold a hearing on the facts alleged in
8-14 the affidavit as soon as practicable and shall stay the enforcement
8-15 of the penalty on finding that the alleged facts are true. The
8-16 person who files an affidavit has the burden of proving that the
8-17 person is financially unable to pay the penalty and to give a
8-18 supersedeas bond.
8-19 Sec. 135.159. COLLECTION OF PENALTY. (a) If the person
8-20 does not pay the penalty and the enforcement of the penalty is not
8-21 stayed, the penalty may be collected.
8-22 (b) The attorney general may sue to collect the penalty.
8-23 Sec. 135.160. DECISION BY COURT. (a) If the court sustains
8-24 the finding that a violation occurred, the court may uphold or
8-25 reduce the amount of the penalty and order the person to pay the
8-26 full or reduced amount of the penalty.
9-1 (b) If the court does not sustain the finding that a
9-2 violation occurred, the court shall order that a penalty is not
9-3 owed.
9-4 Sec. 135.161. REMITTANCE OF PENALTY AND INTEREST. (a) If
9-5 the person paid the penalty and if the amount of the penalty is
9-6 reduced or the penalty is not upheld by the court, the court shall
9-7 order, when the court's judgment becomes final, that the
9-8 appropriate amount plus accrued interest be remitted to the person.
9-9 (b) The interest accrues at the rate charged on loans to
9-10 depository institutions by the New York Federal Reserve Bank.
9-11 (c) The interest shall be paid for the period beginning on
9-12 the date the penalty is paid and ending on the date the penalty is
9-13 remitted.
9-14 Sec. 135.162. RELEASE OF BOND. (a) If the person gave a
9-15 supersedeas bond and the penalty is not upheld by the court, the
9-16 court shall order, when the court's judgment becomes final, the
9-17 release of the bond.
9-18 (b) If the person gave a supersedeas bond and the amount of
9-19 the penalty is reduced, the court shall order the release of the
9-20 bond after the person pays the reduced amount.
9-21 Sec. 135.163. ADMINISTRATIVE PROCEDURE. A proceeding to
9-22 impose the penalty is considered to be a contested case under
9-23 Chapter 2001, Government Code.
9-24 SECTION 2. (a) This Act takes effect September 1, 2001.
9-25 (b) Not later than March 1, 2002, the Railroad Commission of
9-26 Texas shall adopt rules as necessary to implement this Act.
10-1 (c) Notwithstanding Section 135.051, Natural Resources Code,
10-2 as added by this Act, an operator may begin or continue conducting
10-3 a quarrying operation in this state on or after the effective date
10-4 of this Act and before the Railroad Commission of Texas adopts
10-5 rules as provided by Subsection (b) of this section without
10-6 obtaining a certificate of registration for that operation from the
10-7 commission under Chapter 135, Natural Resources Code, as added by
10-8 this Act. As soon as practicable after the commission adopts
10-9 rules, an operator described by this subsection shall file an
10-10 application for a certificate of registration under Section
10-11 135.052, Natural Resources Code, as added by this Act. An operator
10-12 who files an application may continue conducting the operation
10-13 under this subsection until the commission approves or disapproves
10-14 the application.