TITLE 43.TRANSPORTATION

Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

The Texas Department of Transportation (department) proposes new §§21.701-21.723, concerning quarry and pit safety.

House Bill 2847, 78th Legislature, Regular Session, 2003, transferred all powers, duties, functions, and activities performed by the Railroad Commission of Texas under Texas Aggregate Quarry and Pit Safety Act, Chapter 133, Natural Resources Code, to the Texas Department of Transportation.

The rules previously adopted by the Railroad Commission in Title 16, Subchapter E, concerning quarry and pit safety, have been transferred to the department. The department proposes the repeal of Title 16, Subchapter E and simultaneously proposes new §§21.701-21.723 in an amended form. Due to fundamental differences in structure and operation between the Railroad Commission and the department, the rules cannot be implemented by the department in their current form, and have been amended in a form that can be implemented by the department.

References to specific Railroad Commission departments or positions have been changed to specify the appropriate counterparts in the department. Several provisions designed solely to place the program in its proper context within the Railroad Commission’s structure, as well as references to federal statutes and funding provisions that affect the operations of the Railroad Commission but not the department, have been deleted. Certain other provisions were adopted by the Railroad Commission at the inception of the program to provide the regulated community with a transition period, but they have since expired. Those provisions have likewise been deleted. Further changes have been made to either remove redundancies from or clarify language in the existing rules.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for each of the first five years the new sections as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the new sections. There are no anticipated economic costs for persons required to comply with the sections as proposed.

Zane L. Webb, P.E., Director, Maintenance Division has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the new sections.

PUBLIC BENEFIT

Mr. Webb has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the new sections will be rules that accurately reflect law. There will be no adverse economic effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed new sections may be submitted to Zane L. Webb, P.E., Director, Maintenance Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on May 10, 2004.

STATUTORY AUTHORITY: The new sections are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Natural Resources Code, §133.011, which provides the commission with authority to adopt rules regarding the Texas Aggregate Quarry and Pit Safety Act, and House Bill 2847, which transfers the powers performed by the Railroad Commission of Texas under Chapter 133, Natural Resources Code, to the department.

CROSS REFERENCE TO STATUTE: Texas Natural Resources Code, §133.011.

§21.701.Purpose and Scope.

(a) Purpose. The Texas Aggregate Quarry and Pit Safety Act, Natural Resources Code, Chapter 133, gives the department responsibility for overseeing the identification, certification, and construction necessary to regulate public access to certain aggregate quarries and pits.

(b) Scope. This subchapter applies to all active, inactive, or abandoned quarries and pits located in whole or part within the boundaries of Texas.

§21.702.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Abandoned--Having relinquished all right, title, claim, and possession with the intent of never again claiming a future right or title or resuming possession.

(2) Act--The Texas Aggregate Quarry and Pit Safety Act, Natural Resources Code, Chapter 133, and this subchapter.

(3) Aggregates--Any commonly recognized construction material originating from a quarry or pit by the disturbance of the surface, including dirt, soil, rock asphalt, clay, granite, gravel, gypsum, marble, sand, shale, stone, caliche, limestone, dolomite, rock, riprap, or other similar substance.

(4) Barrier--An object of substantial construction that will obstruct, restrain, and prevent the normal passage of persons or vehicular traffic.

(5) Berm--A ridge of refuse, overburden, or other material in a lengthened elevation designed to act as a dike or barrier, capable of moderating or limiting the force of a vehicle in order to impede the passage of the vehicle.

(6) Commission--Texas Transportation Commission.

(7) Department--Texas Department of Transportation.

(8) Director--The director of the Maintenance Division of the department, or the director's designee.

(9) Division--The Maintenance Division of the department.

(10) In hazardous proximity to a public road--That distance beginning 200 feet from the outer edge of a roadway to the pit perimeter.

(11) Inactive quarry or pit--A site that includes an industrial aggregate extraction plant or any portion of a site that includes an industrial aggregate extraction plant, that although previously in aggregate production, is not currently being quarried by any ownership, lease, joint venturer, or some other legal arrangement.

(12) Operator--Any person, partnership, firm, or corporation engaged in and responsible for the physical operation and control of the extraction of aggregates.

(13) Overburden--All materials displaced in an aggregate extraction operation that are not or reasonably would not be expected to be removed from the affected area.

(14) Owner--Any person, partnership, firm, or corporation having title, in whole or in part, to the land on which an aggregate operation exists or has existed.

(15) Pit--An open excavation not less than five feet below the adjacent and natural ground level from which aggregates have been or are being extracted.

(16) Public road or right of way--Every way publicly maintained or any part thereof as defined by Transportation Code, §541.302, and the decisions thereunder.

(17) Quarry--A site where aggregates are being or have been removed or extracted from the earth to form a pit, including the entire excavation, stripped areas, haulage ramps, the land immediately adjacent thereto upon which a plant processing the raw materials is located, exclusive of any land owned or leased by the responsible party that is not being currently used in the production of aggregates.

(18) Quarrying--The current and ongoing surface excavation and development without shafts, drafts, or tunnels, with or without slopes, for the extraction of aggregates from natural deposits occurring in the earth.

(19) Refuse--All waste material directly connected with the production, cleaning, or preparation of aggregates that have been produced by quarrying.

(20) Responsible party--The current operator of the quarry or pit, or if no operator exists, the owner of the land in which the pit exists.

(21) Ridge--A lengthened elevation of overburden created in the aggregate production process.

(22) Roadway--The part of the public road intended for normal vehicular traffic that consists of an improved driving surface constructed of concrete, asphalt, compacted soil, rock, or other material.

(23) Setback distance--Distance from the outer right-of-way line of a public road or highway up to a distance of 25 feet.

(24) Site--The tract of land on which a pit is located, including the immediate area on which the plant used in the extraction of aggregates is located.

(25) Unacceptable unsafe location--A condition where the edge of a pit is located within 200 feet of a public roadway intersection in a manner that:

(A) presents a significant risk of harm to motorists by reason of the proximity of the pit to the roadway intersection;

(B) has no naturally occurring or artificially constructed barrier or berm between the road and pit that would likely prevent a motor vehicle from entering the pit as the result of a motor vehicle collision at or near the intersection;

(D) in the opinion of the department, is at any other location constituting a substantial dangerous risk to the driving public, which condition can be rectified by the placement of berms, barriers, guardrails, or other devices as required by this subchapter.

§21.703.Form Availability.

(a) Forms for the application for a safety certificate, transfer of a safety certificate, safety certificate waiver, and for the notice of cessation of operations are available at the offices of the department.

(b) Forms are also available by writing to the Director, Maintenance Division, Texas Department of Transportation, 125 E. 11th Street, Austin, Texas 78701-2483.

§21.704.Fees.

Each application for a safety certificate or transfer of a safety certificate and each notice of cessation of operations shall be accompanied by a fee. The fee schedule is as follows:

(1) safety certificate application for a non-governmental entity--$500;

(2) safety certificate transfer--$250;

(3) notice of cessation of operations--$500;

(4) governmental entity application for inactive or abandoned pit safety certificate--$350.

§21.705.Form and Content of Initial Inventory Report.

(a) Each report must be on the forms furnished by the department and must show the location, age, operational status, and current use of the quarry or pit to which the report applies.

(b) Only a single report under this subchapter is required when joint owners or operators or a combination of either exists.

(d) Only one accurate report relating to each quarry or pit is required.

§21.706.Barriers Required.

(a) A responsible party for an active pit in hazardous proximity to a public road must construct a barrier or other device between the public road adjoining the site and the pit.

(b) A responsible party for an abandoned or inactive pit which is both in hazardous proximity to a public road and in an unacceptable unsafe location must construct a barrier or other device between the public road adjoining the site and the pit.

(c) The responsible party may choose to slope the sidewalls of a pit in place of constructing a berm or barrier, provided that in the opinion of the responsible party such corrective measure better serves the public safety and provided that the slope shall not exceed 30 degrees from the horizontal.

(d) The barrier or other device must be completed not later than the 90th day after the day on which the responsible party receives a notice of approval from the department. An additional time of not more than 60 days may be granted by the department for good cause shown. If the responsible party must obtain an easement or right-of-entry before constructing the barrier or other device, the department may grant additional reasonable time to complete the barrier or other device.

(e) The department may grant a waiver from the barrier requirement if the responsible party submits an application to the department showing that:

(1) a governmental entity obtained a right-of-way and constructed a public road within 200 feet of the abandoned or inactive pit before August 26, 1991; and

(2) the pit has remained abandoned or inactive since the road was constructed.

§21.707.Barrier Construction Standards.

(a) A barrier may consist of guardrail, fence, berm, barricade, or other devices that in the opinion of the department will prevent the normal passage of vehicular traffic from entering a quarry or pit.

(b) Barriers shall be located as near as practicable to the edge of the quarry or pit section identified as being in hazardous proximity to a public road.

(1) 42 inches for quarries and pits located less than 50 feet of the roadway edge; or

(2) 27 inches for quarries and pits located 50 to 200 feet from the roadway edge.

(d) A barrier must have openings to the extent necessary for travel on the premises and for public road drainage, although drainage paths must be covered with protective material, substantial enough to turn away a motor vehicle.

(e) Construction material and design standards.

(1) Berms shall be constructed of material of sufficient consistency to resist weathering and inhibit erosion or sloughing, with a top width of no less than two feet and side slopes being in a ratio of two units in the horizontal direction to one unit in the vertical direction.

(2) Line posts for guardrails may be either wood or metal. Wooden posts shall be treated and no less than six inches in diameter. Metal posts shall be rolled or welded steel of the specification W6x8.5 or W6x9.0, as stated in American Institute for Steel Construction specifications for W-shape beams.

(3) Line posts for a 42-inch barrier shall be no less than 84 inches long with no less than 42 inches in the ground. Line posts for a 27-inch barrier shall be no less than 66 inches long with no less than 38 inches in the ground. Steel posts shall be set in concrete. The line posts shall be spaced no more than six feet three inches apart.

(4) Rail elements shall be of steel construction fabricated to develop continuous beam strength and be formed into not less than 12 inches wide and three inches deep. The rail thickness shall be of no less than 12 gauge.

(5) Rail elements shall be placed facing the public road. At least two rail elements shall be mounted on the vertical line posts for a 42-inch safety barrier. The bottom edge of the lower rail shall be 12 inches above the ground for a 42-inch barrier and 15 inches above the ground for a 27-inch barrier. The rails shall be spaced six inches apart.

(6) Rail elements shall be attached to the line posts by means of nuts and bolts which completely penetrate the line posts. Nuts and bolts shall conform to the requirements of ASTM Designation A307.

§21.708.Prohibition Against Opening Pits.

(a) No responsible party may open a new pit on a site for the extraction of aggregates if the pit perimeter will be less than 25 feet from the outer right of way line of any public road or highway ("the setback distance").

(b) No responsible party may open a new pit on a site for the extraction of aggregates in this state if the pit perimeter is in hazardous proximity to a public road without first filing a quarry safety plan and receiving a safety certificate.

§21.709.Quarry Safety Plan.

The quarry safety plan required to be filed for new pits in hazardous proximity to a public road opened from and after November 1, 1991, must:

(1) detail how the applicant intends to comply with the safety provisions of this subchapter in opening and closing the pit;

(2) contain the information required by the safety certificate application;

(3) be filed on Form-2114;

(4) be in writing, certified and sworn to by the applicant; and

(5) be filed with the Maintenance Division at least 60 days prior to the opening of the pit.

§21.710.Sloping of Pit Sidewalls.

In the event the department determines that the pit location as detailed in the quarry safety plan or other application will contain substantial soil types of such density and other factors that will have a high probability of holding or impounding water when the pit is operating, inactive, or abandoned, and the impoundment of water poses a definite and determinable unreasonable risk to human health and safety, the department may require the responsible party to slope the sidewalls as an additional requirement to obtain a safety certificate or to alter the berm or barrier.

§21.711.Safety Certificate Required.

(a) A safety certificate is required for an active, inactive, or abandoned quarry or pit that is located in hazardous proximity to a public road or is in an unacceptable unsafe location, excluding an inactive or abandoned quarry or pit that receives a written barrier waiver from the department.

(b) Except as provided in subsection (c) of this section, a responsible party must obtain a safety certificate prior to:

(1) opening a new pit in hazardous proximity to a public road and in an unacceptable unsafe location; or

(2) reopening, operating, or abandoning a quarry or pit that is in hazardous proximity to a public road and in an unacceptable unsafe location.

(c) A responsible party is not required to obtain a safety certificate to operate or maintain an existing quarry or pit unless the department has notified the responsible party in writing that it must do so.

(d) Any responsible party who is utilizing a portion of a site for quarrying operations, including the stockpiling, sale, or processing of aggregates or a combination thereof, or who has a current, valid, or outstanding agreement or legal right to develop, utilize, or quarry the property, shall be responsible for obtaining a safety certificate limited to that specific pit area he is using or excavating or intends to use or excavate.

(e) Any responsible party may operate the pit during a period that is described in §21.717 of this subchapter (relating to Recertification After Transfer of Title).

§21.712.Construction, Expansion, or Relocation of Roads.

(a) An entity that constructs, expands, or relocates a public road so that it causes an existing quarry or pit to be located in an unacceptable, unsafe location or in hazardous proximity to the public road, shall construct berms or barriers.

(b) The berms or barriers shall be constructed prior to the opening of the new, expanded, or relocated public road to travel by the public.

(c) The entity responsible for construction, expansion, or relocation of the public road shall report the same to the director within 90 days of the date the construction, expansion, or relocation is finally accomplished, including construction of the berms or barriers.

(d) The report shall be in writing, certified and sworn to by an authorized representative of the entity, and shall contain:

(1) the name, address, and telephone number of the entity responsible for the construction, expansion, or relocation of the public road;

(2) the distance of each adjoining pit perimeter from the nearest right-of-way line of the new, expanded, or relocated public road and the nearest intersection of any public or private road or driveway;

(3) a description of and a construction plan for any berm or barrier, specifying the material used;

(4) the name, address, and telephone number of the responsible party; and

(5) the name, address, and telephone number of the owner or owners if different from the responsible party.

§21.713.Form and Content of Safety Certificate Applications.

(a) Each pit for which a safety certificate is requested shall be addressed in a separate application.

(b) An application for a safety certificate must be on the form furnished by the department and contain:

(1) the name, address, and telephone number of the responsible party;

(2) the name, address, and telephone number of the owner or owners if different from the responsible party;

(3) the type of quarrying activities, if any, occurring on the site, or proposed to occur on the site;

(4) a brief description of the site, including the acreage outside and inside the pit;

(5) the distance of each pit perimeter from the nearest edge of each roadway that the site adjoins and the nearest intersection of any public road that the site adjoins and the nearest intersection of any public or private road or driveway;

(6) the depth in feet of the deepest excavation in the pit within 200 feet of a roadway edge as measured from the top of the pit highwall located between the pit and the roadway;

(7) a description of and a construction plan for any barrier or other device allowed by these regulations to be constructed, specifying the material to be used and the expected date of completion;

(8) for new pits in hazardous proximity to a public road, a statement as to the yearly progress of the encroachment of the pit perimeter within the hazardous proximity to the public road, if any; and

(9) any other information or condition that meets the definition of an unacceptable unsafe location.

§21.714.Review of Applications.

(a) The department will notify an applicant by certified mail within ten days of receipt of an application for a safety certificate that the application:

(1) complies with the Act and is approved; or

(2) does not comply with the Act and is disapproved.

(b) A notice required under subsection (a)(2) of this section must specify the defects in the application. An applicant who receives this notice may submit, within 30 days of receipt of the notice, a modified application or plan.

(c) Within five days of receipt of a modified application under subsection (b) of this section, the department will approve or disapprove the application and will notify an applicant of its decision by certified mail.

(d) The department will give first priority to applications for sites that are abandoned or that are within the setback distance.

§21.715.Inspection of Barriers and Certificate Decision.

(a) Within 15 days of the time in which construction of barriers described in an approved application is required to be completed, the department may inspect those barriers to determine whether they meet the requirements.

(b) If, after inspection, the department determines that the barriers described in an approved application conform with the plan and comply with the Act, the department will issue a safety certificate to the responsible party.

(c) If, after inspection, the department determines that a barrier does not comply with the Act, the department will give the applicant written notice of any defects in that barrier and shall specify a reasonable time, not to exceed 60 days from the day notice is received, for the applicant to cure the defects.

§21.716.Transfer of Certificate after Transfer of Title.

(a) A responsible party holding a safety certificate has the full right, power, and authority to transfer the certificate upon the sale, lease, or other transfer of title to the site, provided the new owner, operator, lessor or lessee, or party in interest files with the director a written affidavit that:

(1) all barriers between a pit and the nearest edge of any roadway comply with the Act; and

(2) there will be no change, on or after the day of the transfer of title or operation, in the:

(A) condition or location of a barrier; and

(B) distance of a pit perimeter from the nearest intersection of a public road and a private road or driveway.

(b) The transfer affidavit must be filed not later than the 30th day after the day on which the transfer of title to or operation of the quarry or pit occurs.

(c) The department will process and approve a transfer of a safety certificate not later than the 10th day after the day on which the department receives a completed transfer affidavit, including the application fee.

(d) At its option, the department may refuse to issue or approve the transfer of a certificate to a person who has violated the Act.

(e) The hypothecating, mortgaging, or other transfer of equitable title or a pledge of any assets to credits of the operator or owner shall not require the filing of a transfer affidavit.

(f) The department may revoke or disapprove the transfer of a safety certificate only if, after notice and hearing, the department determines that the holder of the certificate has violated the Act.

§21.717.Recertification after Transfer of Title.

(a) Unless a proper transfer affidavit is filed under this chapter, or an application for an amended certificate as required by subsection (b) of this section is pending, an existing safety certificate expires on the 90th day after the day on which a sale, lease, or other transfer of title to or operation of the quarry or pit for which the certificate was issued occurs.

(b) To obtain an amended or new safety certificate, a new owner, operator, lessor, or lessee must submit a safety certificate application as required by §21.713 of this subchapter (relating to Form and Content of Safety Certificate Applications), not later than the 30th day after the day on which the transfer of title to the quarry or pit occurs or a change in the activities of the quarry or pit necessitates.

(c) If an application for a new certificate has been submitted as required by subsection (b) of this section, the existing safety certificate continues in effect until the department's decision either approving or disapproving the new or amended certificate is issued and becomes final.

§21.718.Cessation of Operations.

(a) At least 60 days prior to cessation of operations, the responsible party who plans or intends to cease active operations in a quarry or pit shall notify the department of its intent, submit any additional plans the operator determines necessary to protect the public good and welfare after the cessation of operations, and include the applicable fee.

(b) Within 10 days after receipt of the notice, the department shall inspect the quarry or pit to ensure compliance with the provisions of this chapter and any additional plans submitted by the operator.

(c) Within 10 days after the inspection, the department shall notify the operator of compliance, or lack of compliance, and in the event of compliance shall issue a safety certificate.

(d) In the event of noncompliance, the department shall follow the procedures of §21.714 of this subchapter (relating to Review of Applications) and §21.715 of this subchapter (relating to Inspection of Barriers and Certificate Decision).

§21.719.Enforcement.

(a) Within its jurisdiction, the department shall have a right of entry to, upon, and through any aggregate quarry or pit without advance notice or search warrant, upon presentation of appropriate credentials.

(b) The operator shall maintain a copy of the safety certificate for each active quarry or pit at or near the location of the quarry or pit and shall make the safety certificate available for inspection by any authorized representative of the department, upon presentation of appropriate credentials.

(c) On receipt of a complaint of a violation of the Act or on its own motion, the department will give the responsible party written notice of each alleged violation, including the applicable statutory reference or rule violated, and the date, time, and place for a hearing.

(d) If, after notice and a hearing, the department determines that a violation has occurred, the director will make written findings of the actual or threatened violation and the required corrective work and shall prescribe a specific deadline, commensurate with the work to be done but not to exceed 90 days from the date of the order, for completion of the corrective work, unless an extension of time for good cause shown by the responsible party is granted by the director.

(e) If the responsible party fails to perform corrective work required by the department under subsection (d) of this section within 120 days after notice is given to the responsible party, the department may contract for the corrective work to be done at reasonable, customary, and ordinary costs applicable in the industry. Costs shall be submitted within 30 days of the date the work is finished, and the responsible party shall have 60 days to pay the costs or appeal the decision. In the event the responsible party fails to pay the costs as presented or fails timely to contest or appeal the costs as presented by the department, the department shall have the right to impose a fine or injunction as is warranted, consistent with the provisions of the Act and this subchapter.

§21.720.Civil Penalties.

(a) A responsible party who violates the Act after due notice is liable to the state for a civil penalty of not less than $500 or more than $5,000 for each act of violation on a first offense.

(b) A responsible party who violates the Act after due notice is liable to the state for a civil penalty of not less than $1,000 or more than $10,000 for each act of violation on a second and subsequent offense.

§21.721.Injunctive Relief.

(a) The department may enforce the Act by seeking an injunction or other appropriate remedy.

(b) On application for injunctive or other relief and a finding that a person is violating or has violated the Act, a court may grant the injunctive or other relief warranted by the facts.

§21.722.Recovery of Costs.

A responsible party is liable to the department for its costs incurred in undertaking corrective or enforcement action, including staff expenses, and for court costs and attorney's fees.

§21.723.Forms.

(a) The forms of Appendix A have been adopted by the commission for use pursuant to the Act and this subchapter. Reproduction of these forms is authorized for use by applicants to complete the filings required.

(b) The forms have been designated as follows:

(1) application for cessation of operations-- Form-2113;

Figure: 43 TAC §21.723(b)(1) (.pdf)

(2) application for quarry and pit safety certificate-- Form-2114;

Figure: 43 TAC §21.723(b)(2) (.pdf)

(3) application for transfer of quarry and pit safety certificate-- Form-2115; and

Figure: 43 TAC §21.723(b)(3) (.pdf)

(4) application for waiver of quarry and pit safety certificate-- Form-2116.

Figure: 43 TAC §21.723(b)(4) (.pdf)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 26, 2004.

TRD-200402131

Richard D. Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: May 9, 2004

For further information, please call: (512) 463-8630