By: Estes S.B. No. 1354
(In the Senate - Filed March 10, 2005; March 21, 2005, read
first time and referred to Committee on Natural Resources;
April 20, 2005, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; April 20, 2005,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1354 By: Estes
A BILL TO BE ENTITLED
AN ACT
relating to the protection of water quality in watersheds
threatened by quarry activities; establishing a pilot program in a
certain portion of the Brazos River watershed; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) The legislature recognizes that the beds,
bottoms, and banks of navigable rivers and streams are precious and
irreplaceable economic and recreational state resources that
deserve protection.
(b) The legislature recognizes that the quantity and
quality of water flowing in the navigable rivers and streams are
precious and irreplaceable economic and recreational state
resources that deserve protection.
(c) The legislature recognizes that:
(1) other valuable resources capable of being mined or
quarried, including certain aggregate materials, exist in the
proximity of the beds, bottoms, and banks of navigable rivers and
streams in areas of the state;
(2) the right to develop those resources by mining and
quarrying them is a right granted to individuals owning the
property; and
(3) development of those resources by mining and
quarrying is an important economic activity.
(d) The protection of the right to exploit those resources
through mining and quarrying activities affecting the beds,
bottoms, and banks of navigable rivers and streams, including the
quantity and quality of the water flowing in them, in certain
regions of the state, should not come at the cost of:
(1) uncontrolled damage to the beds, bottoms, and
banks of navigable rivers and streams, including the quantity and
quality of the water flowing in them; or
(2) infringement on private property rights of
landowners adjacent to the affected navigable rivers and streams.
(e) The legislature finds that a unique portion of the
Brazos River watershed between Possum Kingdom Reservoir in Palo
Pinto County and Parker County, Texas, to be known as the "John
Graves Scenic Riverway," merits protection from ongoing mining and
quarrying activities in the proximity of the beds, bottoms, and
banks of the river that significantly impair the quantity and
quality of the water flowing in the river.
SECTION 2. Chapter 26, Water Code, is amended by adding
Subchapter M to read as follows:
SUBCHAPTER M. WATER QUALITY PROTECTION AREAS
Sec. 26.551. DEFINITIONS. In this subchapter:
(1) "Aggregates" means any commonly recognized
construction material originating from a quarry or pit by the
disturbance of the surface, including dirt, soil, rock asphalt,
granite, gravel, gypsum, marble, sand, stone, caliche, limestone,
dolomite, rock, riprap, or other nonmineral substance. The term
does not include clay or shale mined for use in manufacturing
structural clay products.
(2) "John Graves Scenic Riverway" means that portion
of the Brazos River basin, and its contributing watershed, located
downstream of the Morris Shepard Dam on the Possum Kingdom
Reservoir in Palo Pinto County, Texas, and extending to the county
line between Parker and Hood Counties, Texas.
(3) "Operator" means any person engaged in or
responsible for the physical operation and control of a quarry.
(4) "Overburden" means all materials displaced in an
aggregates extraction operation that are not, or reasonably would
not be expected to be, removed from the affected area.
(5) "Owner" means any person having title, wholly or
partly, to the land on which a quarry exists or has existed.
(6) "Pit" means an open excavation from which
aggregates have been or are being extracted with a depth of five
feet or more below the adjacent and natural ground level.
(7) "Quarry" means the site from which aggregates are
being or have been removed or extracted from the earth to form a
pit, including the entire excavation, stripped areas, haulage
ramps, and the immediately adjacent land on which the plant
processing the raw materials is located. The term does not include
any land owned or leased by the responsible party not being
currently used in the production of aggregates or an excavation to
mine clay or shale for use in manufacturing structural clay
products.
(8) "Quarrying" means 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.
(9) "Refuse" means all waste material directly
connected with the production, cleaning, or preparation of
aggregates that have been produced by quarrying.
(10) "Responsible party" means the owner, operator,
lessor, or owner of lessee who is responsible for the overall
function and operation of a quarry required to apply for and hold a
permit pursuant to this subchapter.
(11) "Water quality protection area" means a
contributing watershed of a river the water quality of which is
threatened by quarrying activities.
(12) "Water body" means any navigable water course,
river, stream, or lake within the water quality protection area.
Sec. 26.552. APPLICABILITY; PILOT PROGRAM. (a) This
subchapter applies only to a water quality protection area
designated by commission rule and to quarrying in the area.
(b) For the period of September 1, 2005, to September 1,
2025, the commission shall apply this subchapter as a pilot program
only in the John Graves Scenic Riverway.
Sec. 26.553. REGULATION OF QUARRIES WITHIN WATER QUALITY
PROTECTION AREA. (a) The commission shall require a responsible
party to obtain an individual permit for any discharges from a
quarry located in a water quality protection area that is located:
(1) within a 100-year floodplain of any water body; or
(2) within one mile of any water body.
(b) The commission shall require a responsible party to
obtain a general permit under Section 26.040 for any quarry that is
located in a water quality protection area and located a distance of
more than one mile from any water body.
(c) Subject to Subsection (d), the commission shall
prohibit the construction or operation of any new quarry, or the
expansion of an existing quarry, located within 1,500 feet of a
water body located in a water quality protection area for which a
person files an application for a permit or permit amendment after
September 1, 2005.
(d) Notwithstanding Subsection (c), the commission may
issue or amend a permit to authorize the construction or operation
of a quarry located between 200 and 1,500 feet of a water body on
finding that:
(1) the responsible party can satisfy performance
criteria established by commission rule and incorporated into the
permit to address:
(A) slope gradients that minimize the potential
for erosion, slides, sloughing of quarry walls, overburden piles,
and banks into the water body and related water quality
considerations;
(B) whether operations could result in
significant damage to important historic and cultural values and
ecological systems;
(C) whether operations could affect renewable
resource lands, including aquifers and aquifer recharge areas, in
which the operations could result in a substantial loss or
reduction of long-range productivity of a water supply or of food or
fiber products; and
(D) whether operations could affect natural
hazard land, including areas subject to frequent flooding and areas
of unstable geology, in which the operations could substantially
endanger life and property;
(2) the responsible party has provided a plan for the
control of surface water drainage and water accumulation to
prevent:
(A) erosion, siltation, or runoff; and
(B) damage to:
(i) fish, wildlife, or fish or wildlife
habitat; or
(ii) public or private property;
(3) the responsible party has provided a plan for
reclamation of the quarry that is consistent with best management
standards and practices adopted by the commission for quarry
reclamation, which may include backfilling, soil stabilization and
compacting, grading, erosion control measures, and appropriate
revegetation; and
(4) the responsible party has provided evidence that,
to the extent possible, quarrying will be conducted using the best
available technology to:
(A) minimize disturbance and adverse effects of
the quarry operation on fish, wildlife, and related environmental
resources; and
(B) enhance fish, wildlife, and related
environmental resources where practicable.
(e) The commission by rule shall establish effluent or other
water quality requirements, including requirements for financial
responsibility, adequate to protect the water resources in a water
quality protection area for inclusion in any authorization,
including an individual or general permit, issued under this
section by the commission.
(f) In addition to any other requirements established by
commission rule adopted under Subsection (e), the responsible party
for a quarry located in a water quality protection area required to
obtain an individual or general permit shall include with an
application filed with the commission under this section:
(1) a proposed plan of action for how the responsible
party will restore the receiving water body to background
conditions in the event of an unauthorized discharge that affects
the water body; and
(2) evidence of sufficiently funded bonding or proof
of financial resources to mitigate, remediate, and correct any
potential future effects on a water body of an unauthorized
discharge to a water body.
Sec. 26.554. FINANCIAL RESPONSIBILITY FOR DISCHARGES OF
CERTAIN WASTES WITHIN WATER QUALITY PROTECTION AREA. (a) The
commission by rule shall adopt requirements for:
(1) maintaining evidence of financial responsibility
for restoration of a water body affected by an unauthorized
discharge from a permitted quarry; or
(2) taking corrective action and compensating for
water quality effects caused by an unauthorized discharge resulting
from quarrying.
(b) A responsible party commits a violation if the
responsible party operates a permitted quarry knowing that
financial responsibility required by a permit does not exist.
Sec. 26.555. INSPECTIONS OF AND SAMPLING OF WATER IN JOHN
GRAVES SCENIC RIVERWAY. (a) To detect potential violations of
this subchapter in the John Graves Scenic Riverway, the commission,
the Brazos River Authority, and the Parks and Wildlife Department
shall coordinate efforts to conduct each calendar year:
(1) visual inspections of the riverway; and
(2) testing of water samples drawn from the Brazos
River and its tributaries in the riverway.
(b) The visual inspections and the drawing of water samples
must be conducted at least once in a winter month and at least once
in a summer month. The visual inspections must be conducted both
from the surface of the John Graves Scenic Riverway and from an
aircraft flying over the riverway.
Sec. 26.556. UNAUTHORIZED DISCHARGES OF CERTAIN WASTES
WITHIN WATER QUALITY PROTECTION AREA; ENFORCEMENT. (a) The
commission shall enforce this subchapter and impose administrative
and civil penalties for discharges from a quarry in violation of
this subchapter. Subject to Subsection (d), the commission shall
assess an administrative penalty against a responsible party of a
quarry responsible for a discharge in violation of this subchapter
or of a permit, rule, or order adopted or issued under this
subchapter in an amount of not less than $2,500 and not more than
$25,000 for each violation of this subchapter or of the permit,
rule, or order adopted or issued under this subchapter. Subject to
Subsection (d), the commission shall assess an administrative
penalty against a person for any other violation of this subchapter
or of a permit, rule, or order adopted or issued under this
subchapter in an amount of not less than $100 for each violation of
this subchapter or of the permit, rule, or order adopted or issued
under this subchapter. Each day a violation continues may be
considered a separate violation for purposes of penalty assessment.
(b) In determining the amount of the penalty, the commission
shall consider:
(1) the nature, circumstances, extent, duration, and
gravity of the prohibited acts, and the hazard or potential hazard
the violation presents to the health, safety, or welfare of the
public;
(2) the effects of the violation on instream uses,
water quality, and fish and wildlife habitat;
(3) with respect to the alleged violator:
(A) the history and extent of previous
violations;
(B) the degree of culpability, including whether
the violation was attributable to mechanical or electrical failures
and whether the violation could have been reasonably anticipated
and avoided;
(C) demonstrated good faith, including actions
taken by the alleged violator to rectify the cause of the violation
and to compensate affected persons;
(D) whether the violator is engaged in a
for-profit operation;
(E) any economic benefit gained through the
violation; and
(F) the amount necessary to deter future
violations; and
(4) any other matters that justice may require.
(c) In addition to the administrative penalties and other
available remedies or causes of action, the commission may seek
injunctive relief in the district courts of Travis County to:
(1) force the temporary or permanent closure of a
quarry operated without authorization required under this
subchapter;
(2) force the temporary or permanent closure of a
permitted quarry under this subchapter for which acceptable
evidence of financial responsibility is not maintained;
(3) force the temporary or permanent closure of any
quarry responsible for an unauthorized discharge; or
(4) force corrective action by the responsible party
of a quarry responsible for an unauthorized discharge.
(d) The commission may compromise, modify, or remit, with or
without conditions, an administrative penalty imposed under this
subchapter. In determining the appropriate amount of a penalty for
settlement of an administrative enforcement matter, the commission
may consider a respondent's willingness to contribute to
supplemental environmental projects that are approved by the
commission, giving preference to projects that benefit the
community in which the alleged violation occurred and address the
remediation, reclamation, or restoration of the water quality and
the beds, bottoms, and banks of water bodies in the water quality
area adversely affected by unauthorized discharges from quarries or
abandoned quarries that threaten water quality and the beds,
bottoms, and banks of water bodies in the water quality area. The
commission may encourage the cleanup of contaminated property
through the use of supplemental environmental projects. The
commission may not approve a project that is necessary to bring a
respondent into compliance with environmental laws, that is
necessary to remediate environmental harm caused by the
respondent's alleged violation, or that the respondent has already
agreed to perform under a preexisting agreement with a governmental
agency.
(e) A violation of this subchapter also constitutes an
offense that may be prosecuted and punished under Section 7.147.
(f) Nothing in this subchapter affects the right of any
person that has a justiciable interest to pursue an available
common law or statutory remedy to enforce a right, to prevent or
seek redress or compensation for the violation of a right, or
otherwise to redress an injury.
Sec. 26.557. EMERGENCY ORDERS. The commission may issue a
temporary or emergency order under Section 5.509 relating to a
discharge of waste or pollutants from a quarry in a water quality
protection area.
Sec. 26.558. RECOVERY OF COSTS FOR UNAUTHORIZED DISCHARGES
WITHIN WATER QUALITY PROTECTION AREA. If the commission has
incurred any costs in undertaking a corrective or enforcement
action with respect to an unauthorized discharge from a quarry
under this subchapter, including a reclamation or restoration
action, the responsible party is liable to the state for all
reasonable costs of the corrective or enforcement action, including
court costs and reasonable attorney's fees, and for any punitive
damages that may be assessed by the court.
Sec. 26.559. RECLAMATION AND RESTORATION FUND ACCOUNT.
(a) Penalties and other money received by the commission as a
result of an enforcement action taken under this subchapter and any
gift or grant the commission receives for the purposes of this
subchapter shall be deposited into the reclamation and restoration
fund account in the general revenue fund. Money in the account may
be appropriated only to the commission for the reclamation and
restoration of the beds, bottoms, and banks of water bodies
affected by the unlawful discharges subject to this subchapter.
(b) At least 60 days before spending money from the
reclamation and restoration fund account, the commission shall
publish notice of its proposed plan and conduct a hearing for the
purpose of soliciting public comment, oral or written. The
commission shall fully consider all written and oral submissions on
the proposed plan.
(c) At least 30 days before the date of the public hearing,
the notice must be published in the Texas Register and in a
newspaper of general circulation in the county where the violation
resulting in the payment of the penalties or other money occurred.
(d) Interest and other income earned on money in the account
shall be credited to the account. The account is exempt from the
application of Section 403.095, Government Code.
Sec. 26.560. COOPERATION WITH OTHER STATE AGENCIES.
(a) The commission is the principal authority in the state on
matters relating to the implementation of this subchapter. All
other state agencies engaged in water quality or water pollution
control activities in a water quality protection area shall
coordinate those activities with the commission.
(b) The executive director, with the consent of the
commission, may enter into contracts, memoranda of understanding,
or other agreements with other state agencies for purposes of
developing effluent or other water quality requirements, including
requirements for financial responsibility, adequate to protect the
water resources in a water quality protection area, in any
individual or general permit or other authorization issued under
this subchapter.
Sec. 26.561. WATER QUALITY PROTECTION AREA REPORTS.
(a) On or before December 1, 2006, the commission shall prepare a
report describing its implementation of this subchapter and provide
copies of the report to the governor, lieutenant governor, and
speaker of the house of representatives.
(b) Beginning December 1, 2008, and on December 1 of each
succeeding even-numbered year, the commission shall deliver a
report to the governor, lieutenant governor, and speaker of the
house of representatives evaluating the success of its
implementation of the water quality protection permitting and
enforcement programs developed under this subchapter.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect on the 91st day after the last day of the
legislative session.
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