                                         December 30.1999



The Honorable Tony Garza                     Opinion No. X-0164
Chair, Railroad Commission    of Texas
P.O. Box 12967                               Re: Whether the Railroad Commission’s regulatory
Austin, Texas 7871 l-2967                    definition   of “unacceptable   unsafe location” is
                                             inconsistent with the Texas Aggregate Quarry and Pit
                                             Act, chapter 133 ofthe Natural Resources Code, to the
                                             extent the rule includes any pit within 200 feet of a
                                             roadway edge, and related question    (RQ-0072-JC)

Dear Mr. Garza:

         Under the Texas Aggregate Quarry and Pit Safety Act (the “Act”), chapter 133 of the Natural
Resources Code, see TEX. NAT. RES. CODEANN. 5 133.001 (Vernon 1993) (titling Act), the Railroad
Commission of Texas (the “Commission”) may require a person responsible for an abandoned or
inactive pit to erect a safety barrier between a public road and the pit if the pit is located in an
“unacceptable unsafe location.” The term “unacceptable unsafe location” is defined both in the Act,
see id. 5 133.003(27) (Vernon Supp. 2000), and in Commission regulations, see 16 TEX. ADMIN.
CODE 5 11.1004 (1999) (Commission          Quarry & Pit Safety). You ask, in essence, whether the
regulatory definition is consistent with the Act. See Letter from Honorable Tony Garza, Chairman,
Railroad Commission        of Texas, to Honorable John Comyn, Attorney General of Texas
(May 3 1,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. We conclude that
the Act’s definition of “unacceptable unsafe location” is ambiguous, that the Commission’s rule
reasonably construes the statute, and that the rule consequently is within the Commission’s authority.

        You also ask whether the Act applies only to “pits associated with the commercial extraction
of aggregates” or whether it includes “pits used on a one-time or short[-Iduration basis.” Request
Letter, supra, at 1. We conclude that the Act’s application does not depend upon the duration of
aggregate production nor upon whether aggregates were extracted for commercial or noncommercial
purposes per se. Rather, with respect to inactive quarries or pits, the Act applies only to those that
are or have been situated adjacent to a plant.

        A person responsible for a pit, i.e., an operator or an owner, see TEX. NAT. RES.CODEANN.
5 133.021(a) (Vernon 1993) (defining “person responsible for a quarry or pit”), must comply with
the Act’s safety-barrier requirements.    See id. 5 133.041(a), (b) (Vernon Supp. 2000); see also id.
5 133.021 (Vernon 1993) (setting forth identity of “person responsible for a quarry or pit”). For
purposes of the Act, a “pit” is “an open excavation not less than five feet below the adjacent and
natural ground level from which aggregates have been or are being extracted.” Id. $ 133.003(17)
(Vernon Supp. 2000); see also id. $ 133.003(20) (defining “quarry”). The term t“aggregates’
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includes any commonly recognized construction material originating from a quarry or pit by the
disturbance of the surface,” such as “dirt, soil, rock asphalt, clay, granite, gravel, gypsum, marble,
sand, shale, stone, caliche, limestone, dolomite, rock, riprap, or other nonmineral substance.” Id.
5 133.003(2).

         Whether a responsible person must construct a safety barrier depends in part upon whether
the pit in question is “active” or “abandoned or inactive.” See id. 9 133.041(a), (b). A person
responsible for an active pit must construct a safety barrier between the pit and the road if the edge
ofthe pit is “in hazardous proximity to the public road,” id. § 133.041 (a); see also id. 5 133.003(26)
(defining “site”), i.e., within 200 feet of “the nearest roadway edge of a public road or highway.”
Id. g 133.003( 13). By contrast, the Commission may require aperson responsible for an abandoned
or inactive pit to construct a safety barrier between the public road and the pit only if the pit is (1)
in hazardous proximity to a public road and (2) “in an unacceptable unsafe location.” Id.
 5 133.041(b) (emphasis added); see also id. 5 133.041(b)(l), (2) (listing conditions to waive barrier
requirement).    The Act defines an “unacceptable unsafe location” as:

                a condition where the edge of a pit is located within 200 feet of a
                public roadway intersection in a manner which, in the judgment of
                the commission:

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

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

                         (C) in the opinion of the commission, is also 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 prescribed by this code.

Id. 5 133.003(27);   see also id. 5 133.003(18),    (24) (defining “public road or right-of-way”     and
“roadway”).

         A person responsible for an inactive pit that is in hazardous proximity to a public road and
that is in an unacceptable, unsafe location may be fined for failing to erect an appropriate barrier.
The amount of the civil penalty depends upon whether the violation is a first offense or a repeat
offense:

                         (a) A person or responsible party who violates this chapter or
                 a rule or order adopted under this chapter after due notice is liable to
The Honorable Tony Garza - Page 3               (JC-0164)




               the state for a civil penalty ofnot less than $500 or more than $5,000
               for each act of violation on a first offense.

                       (b) A person or responsible party who violates this chapter or
               a rule or order adopted under this chapter 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.

Id. 5 133.082 (Vernon 1993).

         The Commission may adopt rules and regulations that comport with the Act. See id.
5 133.011(l); see also Railroad Comm’n v. Lone Star Gas, a Div. of Enserch Corp., 844 S.W.2d
679, 685 (Tex. 1992) (quoting State Bd. of Ins. v. Deffebach,                631 S.W.2d 794, 798
(Tex. App.-Austin 1982, writ refd n.r.e.)) (stating that administrative agency may adopt only such
rules as are authorized by and consistent with agency’s statutory authority); Tex. Att’y Gen. Op. No.
JC-0072 (1999) at 4-5 (same). The Commission has adopted a rule concluding, as a matter of law,
that every inactive pit edging within 200 feet of a public road, regardless of the pit’s proximity to
an intersection, is a substantial dangerous risk to the driving public:

                        Unacceptable unsafe location-A       condition where the edge
               of a pit is located within 200 feet of a public roadway intersection in
               a manner which, in the judgment of the commission:

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

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

                             (C) in the opinion of the commission, is also 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
                        prescribed by these regulations.       It is the commission’s
                        opinion that any abandonedpit which has an edge within 200
                       feet of a roadway edge of a public road constitutes a
                        substantial dangerous risk to the driving public.        Other
                        locations will be decided on a case-by-case basis.

 16 TEX. ADMIN. CODE (i 11.1004 (1999) (Commission        Quarry & Pit Safety) (emphasis added).
The Honorable Tony Garza - Page 4               (Jc-0164)




        You ask first whether the Commission acted beyond its statutory authority by adopting a rule
defining the term “unacceptable unsafe location” to encompass every inactive pit “within 200 feet
of a public road without regard to [the pit’s] distance to a roadway intersection.” See Request Letter,
supra, at 1. Your question assumes that every pit that constitutes a substantial dangerous risk to the
driving public is in an unacceptable, unsafe location under the rule, regardless of whether the risk
may be “rectified by the placement of berms, barriers, guardrails, or other devices.” See 16 TEX.
ADMIN. CODE 5 11.1004(C) (1999) (Commission Quarry&Pit Safety). Under subsection (C) ofthe
rule, however, it appears that an inactive pit is in an unacceptable, unsafe location only if the pit’s
location constitutes a “substantial dangerous risk” and if the risk “can be rectified” by the
construction of a safety barrier. See id. Thus, the rule appears to encompass not every inactive pit
within a certain distance of a public roadway, as you suggest, but only those located within that
distance that can be made safe by the placement of safety barriers.

        Section 133.003(27), defining the term “unacceptable unsafe location,” may be construed in
two ways. Neither construction, however, resolves all questions about the continued vitality of
related provisions.

       First, the subsection   may be read so that the options (“A+B” and “C”) diverge at the word
“which”:

                 “Unacceptable unsafe location” means a condition where the edge of a pit is
        located within 200 feet of a public roadway intersection in a manner (A+B) which in
        the Commission’s judgment, presents a significant risk of harm to public motorists
        and has no sufftcient naturally occurring or artificially constructed barrier or berm
        between the road and the pit; or (C) which, in the Commission’s opinion, is at a
        location that constitutes a substantial dangerous risk to the driving public, which
        condition can be rectified by the placement of berms, barriers, guardrails, or other
        devices.

Under this construction, the Commission may require a person responsible for an inactive pit to
construct a barrier only if the edge of the pit is located within 200 feet of a public roadway
intersection. But ifall sites must be within 200 feet of a public roadway intersection, then subsection
(C) essentially duplicates subsections (A) and (B) and is meaningless.           Subsection (C) of the
Commission’s rule, title 16, section 11.1004 ofthe Texas Administrative Code, is inconsistent with
this alternative to the extent it encompasses inactive pits, the edges ofwhich are located within 200
feet of the edges of public roads but beyond 200 feet of public intersections.

        In the alternative, the statutory definition may be read so that the options diverge at the word
“located’ or “location”:

               “Unacceptable unsafe location” means a condition where the edge of a pit is
        (A+B) located within 200 feet of a public roadway intersection and which, in the
        Commission’s judgment, presents a significant risk ofharm to public motorists and
        has no sufficient naturally occurring or artificially constructed barrier or berm
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       between the road and the pit; or (C) in the opinion of the Commission, at a locution
       that constitutes a substantial risk to the driving public, which condition can be
       rectified by the construction of berms, barriers, guardrails, or other devices.

Under this construction, the Commission might require a person responsible for an inactive pit, the
edge ofwhich is located more than 200 feet from a public roadway intersection (although within 200
feet of the edge of a public roadway), to construct barriers. Subsection(C) of the Commission’s rule
comports with this alternative construction ofthe statute. The Commission’s interpretation, manifest
in its rule, however, renders the phrase “unacceptable unsafe location” nearly the equivalent of the
statutory definition of “hazardous proximity to a public road,” see TEX. NAT. RES. CODE ANN.
5 133.003 (13) (27) (Vernon Supp. 2000);seealso id. 5 133.041(a) (stating standard foractivepits).

         The legislative history does not clearly indicate which construction the legislature intended.
Where the language of a statute is ambiguous, we may consider the statute’s legislative history. See
Boy!& v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991) (en bane); see also TEX. GOV’T
CODE ANN. 5 311.023(3) (Vernon 1998). For the purposes of this opinion, the Act’s definition of
“unacceptable unsafe location” was adopted in 1991. See Act of May 26, 1991,72d Leg., R.S., ch.
668, 5 1, sec. 133.003(26), 1991 Tex. Gen. Laws 2426,2428. (The definition was renumbered and
slightly amended in 1993, see Act ofMay 30,1993,73d Leg., R.S., ch. 693, § 1, sec. 133.003(27),
1993 Tex. Gen. Laws 2727, 2727-28, but that amendment is not germane to the issue we are
considering here.) The Senate adopted the current definition of the term “unacceptable unsafe
location” when the bill was read for the second time on the Senate floor. See S.J. OFTEX., 72d Leg.,
R.S. 2418 (1991); Texas Aggregate Quary & Pit Safety Act, Debate on Tex. Comm. Substitute H.B.
451 on the Floor of the Senate, 72d Leg., R.S. (May 25, 1991) (statement of Senator Sims) (tape
available from Texas State Library & Archives Commission).          Although little was said about the
definition on the Senate floor, it was discussed during a meeting of the Senate Committee on Natural
Resources. See generally Texas Aggregate Quarry & Pit Safety Act: Hearings on Tex. H.B. 4.51
Before the Senate Comm. on Nat. Res., 72d Leg., R.S. (May 22, 1991) (tape available from Texas
State Library & Archives Commission). Committee members agreed that the definition was unclear
and recommended         that its application be clarified before it reached the Senate floor, see id.
(statements of Senator Sims and unidentified committee member), but it does not appear that any
changes weremade. Compare Act ofMay 26,1991,72d Leg., R.S., ch. 668,s 1, sec. 133.003(26),
 1991 Tex. Gen. Laws 2426,2428 (defining “unacceptable unsafe location” in enacted bill) with Tex.
 Comm. Substitute H.B. 451, 72d Leg., R.S. (1991) (defining “unacceptable unsafe location” in
 introduced bill); Tex. H.B. 1855,72d Leg., R.S. (1991) (defining “unacceptable unsafe location”).

         Because the legislative history of section 133.003(27) of the Natural Resources Code does
not point clearly to one construction over another, a court would consider whether the Commission’s
regulatory interpretation of the statute “‘is based on a permissible construction of the statute.“’
Regions Hosp. v. Shalala, 522 U.S. 448,457 (1998) (citation omitted); see TEX. GOV’T CODE ANN.
5 311.023(6) (Vernon 1998) (permitting court to consider administrative construction of statute);
Boykin, 818 S.W.2d at 785-86 (‘permitting court to consider administrative construction of
ambiguous statute).      A court would accept the Commission’s construction if the regulation
reasonably construes the statute and does not contradict the statute’s plain language. See Tarrant
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Appraisal Dist. Y.Moore, 845 S.W.2d 820,823 (Tex. 1993) (stating that construction of statute by
agency charged with its execution is entitled to serious consideration so long as construction is
reasonable and does not contradict statute’s plain language); Rylander v. B. & A. Mktg. ex rel.
AtlanticRichfield Co., 997 S.W.2d 326,331 (Tex. App.-Austin 1999, no pet.) (same); Simplex Elec.
Corp. v. Holcomb, 949 S.W.2d 446,447 (Tex. App.-Austin 1997, pet. denied) (same); City ofPlan
v. Public Util. Comm ‘n, 953 S.W.2d 416,421 (Tex. App.-Austin 1997, no writ) (same).

         We conclude that the Commission’s         definition of “unacceptable unsafe location,” in
particular section 11.1004(C) oftitle 16, Texas Administrative Code, reasonably construes the Act’s
definition of the same term and that the regulation is consistent with the Act. As we have indicated,
the regulation accords with one of two possible, reasonable readings of the Act’s definition of the
same term. See supra pp. 4-5 (explaining two possible constructions of section 133.003(27) of
Natural Resources Code). Thus, title 16, section 11.1004(C) of the Texas Administrative Code is
within the Commission’s authority and is valid.

          Our conclusion comports with the principle of statutory construction that penal statutes must
be strictly construed. To the extent the Act imposes penalties upon certain proscribed behaviors,
such as the penalties that may be levied upon responsible persons who fail to comply with the
statutory safety-barrier requirements, it must be strictly construed so that those who are susceptible
of violating the Act have notice ofthe prohibited behaviors. See State v. Duke, 137 S.W. 654,662
(Tex. 1911) (stating that to extent statute is penal, it must sufficiently notify potential wrongdoers
ofnature ofillegal behavior); City ofBaird v. West Tex. Utils. Co., 145 S.W.2d 965,968 (Tex. Civ.
App.-Eastland       1940), writ dism ‘d, 148 S.W.2d 392 (Tex. 1941) (per curiam).                Section
133,003(27)(C) ofthe Natural Resources Code plainly notifies persons responsible for inactive pits
that, although their pits may not be located within 200 feet of an intersection, they may still be
subject to regulation under the Act if “in the opinion of the commission” the pits constitute
substantial driving risks and the risks can be abrogated by the construction of safety barriers. TEX.
NAT. RES. CODE ANN. 5 133.003(27)(C) (V emon Supp. 2000) (defining “unacceptable unsafe
location”). A person responsible for an inactive pit is thus on notice that he or she must review the
Commission’s rules for mrther description ofpits that are in unacceptable, unsafe locations and that
may, therefore, be subject to the Act’s safety-barrier requirement. Indeed, we can surmise that notice
is satisfied only by the adoption of rules defining the Commission’s opinion on what is otherwise
an unacceptable, unsafe location. Adequate notice ofproscribed conduct would appear to be lacking
if such judgments were made on a case-by-case basis. For this reason, although you do not ask about
it, the last sentence of subsection (C) of the rule, “Other locations will be decided on a case-by-case
basis,” 16 TEX. ADMIN.CODE 5 11.1004 (1999) (Commission Quarry & Pit Safety Act), is invalid.

         You next ask whether the Act applies only to pits associated with commercial extraction of
aggregates for use as building materials or on-site processing, or whether it may also apply to pits
used on a one-time or short-duration basis. See Request Letter, supra, at 1. Your question suggests
that the Act distinguishes between excavations on the basis ofthe length oftime they were used for
the extraction of aggregates or on the basis of whether aggregates were or are being extracted for
commercial or noncommercial purposes. Duration of usage and the purpose of the extraction are
distinct considerations, and we consider them separately.
The Honorable Tony Garza - Page 7                (K-0164)




         We first conclude that the Act applies to inactive pits regardless of the number of times the
pit has been used or duration ofthe previous usage. Nothing in the Act limits the set of inactive pits
to which it applies based upon the number of times a pit was used for aggregate production or the
duration of the pit’s previous use for aggregate production.

        We next conclude that the Act does not distinguish between inactive pits on the basis of
whether aggregate was produced for commercial or noncommercial purposes. While you do not
explain what you mean by the use of the term “commercial,” we see no reference in the Act to
“commercial” or “noncommercial” aggregate production.

         We believe, however, that the Act applies only to an inactive quarry or pit that is a “site” for
the purposes of the Act. The Act defines “inactive quarry or pit” as “a site or any portion of a site
that although previously in aggregate production is not currently being quarried by any ownership,
lease, joint venturer, or some other legal arrangement.” TEX. NAT. REs. CODEANN. 9 133.003(12)
(Vernon Supp. 2000); see also id. 5 133.003( 1) (defining “abandoned”). A “site” is “the tract of land
on which is located a pit and includes the immediate area on which theplant used in the extraction
of aggregates is located.” Id. 5 133.003(26) (emphasis added).

         Because the Act defines “inactive quarry or pits” to incorporate only “sites” and defines the
term “site” to include only those locations with a “plant used in the extraction of aggregates,” the
Act applies only to those inactive pits located near and associated with a plant. While the Act does
not define the term “plant,” see id. 5 133.003, its common usage implies an industrial process. See
TEX. GOV’T CODEANN. 5 311 .Ol l(a) (Vernon 1998) (directing us to construe statutory words and
phrases “according to therulesofgrammarandcommonusage”);            XIOXFORDENGLISHDICTIONARY
972 (2d ed. 1989) (defining “plant” as “[tlhe fixtures, implements, machinery, and apparatus used
in carrying on any industrial process; the premises and fixtures of a business       .“). Accordingly,
the Commission may not regulate an inactive pit that is located on a tract without a plant.
The Honorable   Tony Garza - Page 8              (JC-0164)




                                        SUMMARY

                         Title 16, section 11.1004(C) of the Texas Administrative
                Code, which defines the term “unacceptable unsafe location” for
                purposes of the Texas Aggregate Quarry & Pit Safety Act, chapter
                133 of the Natural Resources Code, reasonably construes the Act to
                state that an inactive pit, the edge of which is located within 200 feet
                of the edge of a public roadway but beyond 200 feet from a public
                road intersection, constitutes a substantial dangerous risk to the
                driving public. Consequently, where the substantial dangerous risk
                may be “rectified” by the construction of safety barriers, the
                Commission may determine as a matter of law that such inactive pits
                are in an unacceptable, unsafe location.

                         With respect to inactive quarries and pits, the Act applies only
                to sites that include an industrial aggregate extraction plant.




                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
