1-1     By:  Shapiro                                           S.B. No. 910
 1-2           (In the Senate - Filed February 23, 2001; February 27, 2001,
 1-3     read first time and referred to Committee on Natural Resources;
 1-4     April 20, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 5, Nays 0; April 20, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 910                   By:  Bivins
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the regulation of aggregate quarries; providing for an
1-11     administrative penalty.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Title 4, Natural Resources Code, is amended by
1-14     adding Chapter 135 to read as follows:
1-15              CHAPTER 135.  AGGREGATE QUARRYING AND RECLAMATION
1-16                      SUBCHAPTER A.  GENERAL PROVISIONS
1-17           Sec. 135.001.  SHORT TITLE.  This chapter may be cited as the
1-18     Texas Aggregate Quarrying and Reclamation Act.
1-19           Sec. 135.002.  DEFINITIONS.  In this chapter:
1-20                 (1)  "Commission," "operator," "owner," "pit,"
1-21     "quarrying," "quarry," and "site" have the meanings assigned those
1-22     terms by Section 133.003.
1-23                 (2)  "Certificate holder" means a person who holds a
1-24     certificate of registration issued under this chapter.
1-25                 (3)  "Land affected" means:
1-26                       (A)  the area from which any materials are to be
1-27     or have been displaced in a quarrying operation;
1-28                       (B)  the area on which any materials that are
1-29     displaced are to be or have been deposited;
1-30                       (C)  the haul roads and impoundment basins within
1-31     the quarrying area; and
1-32                       (D)  other land whose natural state has been or
1-33     will be disturbed as a result of the quarrying operations.
1-34           Sec. 135.003.  EXEMPTIONS.  This chapter does not apply to:
1-35                 (1)  land under the jurisdiction of the General Land
1-36     Office; or
1-37                 (2)  a parcel of land of less than five acres.
1-38           Sec. 135.004.  RULES AND ORDERS.  The commission may adopt
1-39     rules and issue orders as necessary to implement and enforce this
1-40     chapter.
1-41              (Sections 135.005-135.050 reserved for expansion
1-42                 SUBCHAPTER B.  CERTIFICATE OF REGISTRATION
1-43           Sec. 135.051.  CERTIFICATE OF REGISTRATION REQUIRED.  A
1-44     person may not conduct a quarrying operation in this state unless
1-45     the person holds a certificate of registration for that operation
1-46     issued by the commission under this chapter.
1-47           Sec. 135.052.  APPLICATION.  (a)  To obtain a certificate of
1-48     registration, a person must file an application for a certificate
1-49     of registration with the commission on a concise form prescribed by
1-50     the commission, accompanied by a fee of $200.
1-51           (b)  The application must include:
1-52                 (1)  the name, address, and telephone number of the
1-53     operator;
1-54                 (2)  the name, address, and telephone number of each
1-55     owner of the site of the proposed quarry who is not the operator;
1-56                 (3)  the type of aggregate extraction and production
1-57     activities to be conducted on the site of the proposed quarry,
1-58     including an estimate of the number of acres of land to be
1-59     disturbed annually for quarrying purposes;
1-60                 (4)  a legal description of the land on which the
1-61     quarry is to be located;
1-62                 (5)  a map of the site of the proposed quarry showing
1-63     any easement, public or private road, or right-of-way; and
1-64                 (6)  a statement that the operator has the legal right
 2-1     to quarry the land described.
 2-2           (c)  A separate application is required for each quarrying
 2-3     operation.  The commission by rule shall specify criteria for
 2-4     determining whether a quarrying operation constitutes a separate
 2-5     operation for which a separate application is required.
 2-6           Sec. 135.053.  ISSUANCE OF CERTIFICATE.  (a)  Not later than
 2-7     the 30th day after the date the commission receives a completed
 2-8     application and the application fee, the commission shall:
 2-9                 (1)  issue a certificate of registration to the
2-10     applicant entitling the applicant to engage in aggregate quarrying
2-11     operations on the land described in the application; or
2-12                 (2)  provide the applicant a written statement
2-13     explaining the reason for denial of the certificate.
2-14           (b)  The commission may not give public notice or hold a
2-15     public hearing before issuing a certificate of registration.
2-16           Sec. 135.054.  TERM OF CERTIFICATE.  A certificate of
2-17     registration is valid for the life of the quarry for which it is
2-18     issued.
2-19           Sec. 135.055.  TRANSFER OF CERTIFICATE.  (a)  An operator
2-20     must provide written notice to the commission at least 15 days
2-21     before the date the operator transfers a certificate of
2-22     registration.  The notice must include the name of the person to
2-23     whom the operator proposes to transfer the certificate.
2-24           (b)  An operator may transfer a certificate of registration
2-25     on or after the 15th day after the date the operator provides
2-26     notice under Subsection (a) unless the commission notifies the
2-27     operator that the transfer is disapproved before that day.
2-28           Sec. 135.056.  AMENDMENT OF CERTIFICATE.  (a)  On
2-29     application, the commission may amend a certificate of registration
2-30     to cover additional land that is in the immediate vicinity of the
2-31     quarry for which the certificate was issued, including land that is
2-32     not contiguous to the quarry.
2-33           (b)  An application for an amended certificate of
2-34     registration must describe:
2-35                 (1)  the additional land to be covered by the
2-36     certificate; and
2-37                 (2)  the quarrying operations to be conducted on the
2-38     land.
2-39           (c)  The filing of an application to amend a certificate of
2-40     registration does not affect the authority granted under the
2-41     certificate of which amendment is sought.
2-42              (Sections 135.057-135.100 reserved for expansion
2-43               SUBCHAPTER C.  CONDUCT OF QUARRYING OPERATIONS
2-44           Sec. 135.101.  DISTANCE OF PIT PERIMETER FROM PROPERTY LINE.
2-45     A pit perimeter must be located at least:
2-46                 (1)  50 feet from the nearest property line if the
2-47     slope has a horizontal to vertical ratio of at least two to one; or
2-48                 (2)  100 feet from the nearest property line if the
2-49     slope is vertical and has a height of at least 10 feet.
2-50              (Sections 135.102-135.150 reserved for expansion
2-51                    SUBCHAPTER D.  ADMINISTRATIVE PENALTY
2-52           Sec. 135.151.  IMPOSITION OF PENALTY.  The commission shall
2-53     impose an administrative penalty on an owner or operator of a
2-54     quarrying operation who violates this chapter or a rule adopted or
2-55     order issued under this chapter.
2-56           Sec. 135.152.  AMOUNT OF PENALTY.  (a)  The amount of the
2-57     penalty is $500, except that the penalty for a violation of Section
2-58     135.101 is determined by the commission in an amount of not less
2-59     than $500 and not more than $5,000.
2-60           (b)  The amount of the penalty for a violation of Section
2-61     135.101 shall be based on:
2-62                 (1)  the seriousness of the violation, including the
2-63     nature, circumstances, extent, and gravity of the violation;
2-64                 (2)  the economic harm to property or the environment
2-65     caused by the violation;
2-66                 (3)  the history of previous violations;
2-67                 (4)  the amount necessary to deter a future violation;
2-68                 (5)  efforts to correct the violation; and
2-69                 (6)  any other matter that justice may require.
 3-1           Sec. 135.153.  NOTICE OF VIOLATION AND PENALTY.  (a)  If,
 3-2     after investigation of a possible violation and the facts
 3-3     surrounding that possible violation, the commission determines that
 3-4     a violation has occurred, the commission shall give written notice
 3-5     of the violation to the person alleged to have committed the
 3-6     violation.
 3-7           (b)  The notice must:
 3-8                 (1)  include a brief summary of the alleged violation;
 3-9                 (2)  state the amount of the proposed administrative
3-10     penalty; and
3-11                 (3)  inform the person of the person's right to a
3-12     hearing on the occurrence of the violation, the amount of the
3-13     penalty, or both.
3-14           Sec. 135.154.  PENALTY TO BE PAID OR HEARING REQUESTED.  (a)
3-15     Not later than the 20th day after the date the person receives the
3-16     notice, the person in writing may:
3-17                 (1)  accept the determination and the proposed
3-18     administrative penalty; or
3-19                 (2)  make a request for a hearing on the occurrence of
3-20     the violation, the amount of the penalty, or both.
3-21           (b)  If the person accepts the determination and proposed
3-22     penalty, the commission by order shall approve the determination
3-23     and impose the proposed penalty.
3-24           Sec. 135.155.  HEARING.  (a)  If the person requests a
3-25     hearing or fails to respond in a timely manner to the notice, the
3-26     commission shall set a hearing and give written notice of the
3-27     hearing to the person.  The commission may employ a hearings
3-28     officer to hold the hearing.
3-29           (b)  The hearings officer shall make findings of fact and
3-30     conclusions of law and promptly issue to the commission a proposal
3-31     for a decision about the occurrence of the violation and the amount
3-32     of a proposed penalty.
3-33           Sec. 135.156.  DECISION BY COMMISSION.  (a)  Based on the
3-34     findings of fact, conclusions of law, and proposal for a decision,
3-35     the commission by order may:
3-36                 (1)  find that a violation occurred and impose a
3-37     penalty; or
3-38                 (2)  find that a violation did not occur.
3-39           (b)  The notice of the commission's order given to the person
3-40     must include a statement of the right of the person to judicial
3-41     review of the order.
3-42           Sec. 135.157.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
3-43     Not later than the 30th day after the date the commission's order
3-44     becomes final, the person shall:
3-45                 (1)  pay the penalty; or
3-46                 (2)  file a petition for judicial review contesting the
3-47     occurrence of the violation, the amount of the penalty, or both.
3-48           Sec. 135.158.  STAY OF ENFORCEMENT OF PENALTY.  (a)  Within
3-49     the 30-day period prescribed by Section 135.157, a person who files
3-50     a petition for judicial review may:
3-51                 (1)  stay enforcement of the penalty by:
3-52                       (A)  paying the penalty to the court for
3-53     placement in an escrow account; or
3-54                       (B)  giving the court a supersedeas bond approved
3-55     by the court that:
3-56                             (i)  is for the amount of the penalty; and
3-57                             (ii)  is effective until all judicial
3-58     review of the commission's order is final; or
3-59                 (2)  request the court to stay enforcement of the
3-60     penalty by:
3-61                       (A)  filing with the court a sworn affidavit of
3-62     the person stating that the person is financially unable to pay the
3-63     penalty and is financially unable to give the supersedeas bond; and
3-64                       (B)  giving a copy of the affidavit to the
3-65     commission by certified mail.
3-66           (b)  If the commission receives a copy of an affidavit under
3-67     Subsection (a)(2), the commission may file with the court, within
3-68     five days after the date the copy is received, a contest to the
3-69     affidavit.  The court shall hold a hearing on the facts alleged in
 4-1     the affidavit as soon as practicable and shall stay the enforcement
 4-2     of the penalty on finding that the alleged facts are true.  The
 4-3     person who files an affidavit has the burden of proving that the
 4-4     person is financially unable to pay the penalty and to give a
 4-5     supersedeas bond.
 4-6           Sec. 135.159.  COLLECTION OF PENALTY.  (a)  If the person
 4-7     does not pay the penalty and the enforcement of the penalty is not
 4-8     stayed, the penalty may be collected.
 4-9           (b)  The attorney general may sue to collect the penalty.
4-10           Sec. 135.160.  DECISION BY COURT.  (a)  If the court sustains
4-11     the finding that a violation occurred, the court may uphold or
4-12     reduce the amount of the penalty and order the person to pay the
4-13     full or reduced amount of the penalty.
4-14           (b)  If the court does not sustain the finding that a
4-15     violation occurred, the court shall order that a penalty is not
4-16     owed.
4-17           Sec. 135.161.  REMITTANCE OF PENALTY AND INTEREST.  (a)  If
4-18     the person paid the penalty and if the amount of the penalty is
4-19     reduced or the penalty is not upheld by the court, the court shall
4-20     order, when the court's judgment becomes final, that the
4-21     appropriate amount plus accrued interest be remitted to the person.
4-22           (b)  The interest accrues at the rate charged on loans to
4-23     depository institutions by the New York Federal Reserve Bank.
4-24           (c)  The interest shall be paid for the period beginning on
4-25     the date the penalty is paid and ending on the date the penalty is
4-26     remitted.
4-27           Sec. 135.162.  RELEASE OF BOND.  (a)  If the person gave a
4-28     supersedeas bond and the penalty is not upheld by the court, the
4-29     court shall order, when the court's judgment becomes final, the
4-30     release of the bond.
4-31           (b)  If the person gave a supersedeas bond and the amount of
4-32     the penalty is reduced, the court shall order the release of the
4-33     bond after the person pays the reduced amount.
4-34           Sec. 135.163.  ADMINISTRATIVE PROCEDURE.  A proceeding to
4-35     impose the penalty is considered to be a contested case under
4-36     Chapter 2001, Government Code.
4-37           SECTION 2.  (a)  This Act takes effect September 1, 2001.
4-38           (b)  Not later than March 1, 2002, the Railroad Commission of
4-39     Texas shall adopt rules as necessary to implement this Act.
4-40           (c)  Notwithstanding Section 135.051, Natural Resources Code,
4-41     as added by this Act, an operator may begin or continue conducting
4-42     a quarrying operation in this state on or after the effective date
4-43     of this Act and before the Railroad Commission of Texas adopts
4-44     rules as provided by Subsection (b) of this section without
4-45     obtaining a certificate of registration for that operation from the
4-46     commission under Chapter 135, Natural Resources Code, as added by
4-47     this Act.  As soon as practicable after the commission adopts
4-48     rules, an operator described by this subsection shall file an
4-49     application for a certificate of registration under Section
4-50     135.052, Natural Resources Code, as added by this Act.  An operator
4-51     who files an application  may continue conducting the operation
4-52     under this subsection until the commission approves or disapproves
4-53     the application.
4-54                                  * * * * *