80R2548 JTS-D

By: Fraser S.B. No. 712

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of quarries; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Subtitle C, Title 5, Health and Safety Code, is amended to read as follows:

SUBTITLE C. AIR AND ENVIRONMENTAL QUALITY

SECTION 2. Subtitle C, Title 5, Health and Safety Code, is amended by adding Chapter 391 to read as follows: CHAPTER 391. QUARRY PERMIT

Sec. 391.001. DEFINITIONS. In this chapter:

(1) "Aggregates" includes 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 nonmineral substance.

(2) "Air quality permit" means a permit or other authorization to emit air contaminants under Chapter 382 and includes an authorization under a permit by rule.

(3) "Commission" means the Texas Commission on Environmental Quality.

(4) "Operator" means any person proposing the creation of a quarry or engaged in and responsible for the physical operation and control of a quarry.

(5) "Pit" means a commercial open excavation not less than five feet below the adjacent and natural ground level from which aggregates have been or are being extracted.

(6) "Quarry" means the site where aggregates are being or have been removed or extracted from the earth to form the pit, including the entire excavation, stripped areas, and haulage ramps and land adjacent to those areas on which the plant processing the raw materials is located. The term does not include land owned or leased by the operator that is not used in the production of aggregates.

Sec. 391.002. APPLICABILITY. (a) This chapter applies only to a quarry that begins operation on or after September 1, 2007, and does not apply to a quarry or pit in operation before that date.

(a-1) This chapter does not apply to a quarry or pit to which Subchapter M, Chapter 26, Water Code, applies. This subsection expires September 1, 2025.

Sec. 391.003. PERMITS REQUIRED. An operator may not create or begin operating a quarry unless the operator has obtained:

(1) a quarry permit under this chapter from the commission; and

(2) an air quality permit for any rock crusher to be operated at the quarry.

Sec. 391.004. APPLICATION PROCEDURE. (a) An application for a quarry permit must include:

(1) a site plan that contains:

(A) a site map detailing the proposed permit area;

(B) the location and identity of all affected and unaffected areas;

(C) a description of the location of the quarry, including the distance and direction from the nearest:

(i) stream and groundwater source;

(ii) state and county road;

(iii) intersection;

(iv) dwelling;

(v) school;

(vi) place of worship; and

(vii) commercial or institutional building that is neither owned nor leased by the operator;

(D) the ingress and egress routes for materials to be transported on public roadways;

(E) a general description of the anticipated stages in which the quarry will be mined;

(F) subject to Subsection (e), a report from an independent hydrologist, professional geoscientist, or professional engineer retained by the operator on the groundwater or surface water in the quarried area, including any recommendations by the hydrologist, geoscientist, or engineer to prevent a detrimental effect on the groundwater and surface water; and

(G) if a report is required under Paragraph (F), a description of how the operator will address the recommendations made in the hydrologist's report;

(2) if blasting will be conducted in the quarry, a blasting plan that contains:

(A) a description of the blasting equipment and procedures to be used at the site; and

(B) a description of the procedures and plans for the recording and retention of blasting records for each blast that is to be conducted at the site; and

(3) proof that the operator has registered for or submitted an application for, as applicable, an air quality permit for any rock crusher constructed or proposed to be constructed at the quarry.

(b) A quarry permit application fee of $1,000 must accompany the application.

(c) If the commission denies an application, not later than the 60th day after the date the commission received the application, the commission shall notify the applicant in writing of the commission's decision, specifying any defects in the application. An applicant denied a permit under this subsection may submit a modified application.

(d) A proceeding to consider a quarry permit application or to issue a quarry permit is not a contested case for purposes of Chapter 2001, Government Code.

(e) An application for a permit under this section for a quarry that does not have groundwater or surface water in the quarried area is not required to include a report under Subsection (a)(1)(F) or a description of how the operator will address recommendations under Subsection (a)(1)(G).

Sec. 391.005. PERMIT EXPIRATION AFTER NONUSE. A permit issued to create or begin operating a quarry expires on the fifth anniversary of the date that the permit was issued if quarry operations have not begun at the permit area before that date.

Sec. 391.006. PERMIT AMENDMENT. (a) A quarry operator must obtain a permit amendment:

(1) before a quarry may be expanded to an adjacent tract of land; or

(2) if emissions from a rock crusher associated with the quarry increase beyond a de minimis level, as determined by the commission.

(b) An applicant for a permit amendment must submit an application that contains the information required by Section 391.004.

Sec. 391.007. NOTICE TO CERTAIN OFFICIALS. On receipt of an application for a quarry permit, the commission shall send notice of the application to:

(1) each state senator and state representative who represents the area in which the quarry will be located; and

(2) the county judge and county commissioners of each county in which the quarry will be located.

Sec. 391.008. TRAFFIC SAFETY. The operator of a quarry shall adhere to all Texas Department of Transportation rules relating to the safe movement of normal highway traffic, including those rules governing the construction and maintenance of private, public, and commercial access driveways.

Sec. 391.009. BLASTING RECORD. (a) If blasting is conducted in a quarry, the operator of the quarry shall maintain a blasting record that includes the following information:

(1) the exact location, time, and date of the detonation;

(2) the weather conditions during the blast;

(3) the seismograph or vibration monitor reading, including the exact location of the seismograph or vibration monitor and its distance from the blast; and

(4) the name of the person taking the seismograph or vibration monitor reading.

(b) The operator shall maintain the blasting records of a detonation, including the seismograph or vibration monitor readings, for not less than two years after the date of the detonation.

(c) The operator shall maintain the blasting records at the quarry site.

(d) The operator shall make the blasting records available for inspection by the commission.

Sec. 391.010. CIVIL PENALTY; INJUNCTION. (a) Notwithstanding Section 7.102, Water Code, an operator who violates this chapter is liable to the state for a civil penalty in the amount of $1,000 for each violation. Each day a violation continues is a separate violation.

(b) At the request of the commission, the attorney general shall bring suit for injunctive relief to restrain a continuing violation of this chapter or to recover a civil penalty as provided by Subsection (a) or for both injunctive relief and recovery of a civil penalty.

SECTION 3. Subsection (a), Section 5.013, Water Code, is amended to read as follows:

(a) The commission has general jurisdiction over:

(1) water and water rights including the issuance of water rights permits, water rights adjudication, cancellation of water rights, and enforcement of water rights;

(2) continuing supervision over districts created under Article III, Sections 52(b)(1) and (2), and Article XVI, Section 59, of the Texas Constitution;

(3) the state's water quality program including issuance of permits, enforcement of water quality rules, standards, orders, and permits, and water quality planning;

(4) the determination of the feasibility of certain federal projects;

(5) the adoption and enforcement of rules and performance of other acts relating to the safe construction, maintenance, and removal of dams;

(6) conduct of the state's hazardous spill prevention and control program;

(7) the administration of the state's program relating to inactive hazardous substance, pollutant, and contaminant disposal facilities;

(8) the administration of a portion of the state's injection well program;

(9) the administration of the state's programs involving underground water and water wells and drilled and mined shafts;

(10) the state's responsibilities relating to regional waste disposal;

(11) the responsibilities assigned to the commission by Chapters 361, 363, 382, 391, and 401, Health and Safety Code;

(12) the administration of the national flood insurance program;

(13) administration of the state's water rate program under Chapter 13 of this code; and

(14) any other areas assigned to the commission by this code and other laws of this state.

SECTION 4. Subchapter L, Chapter 5, Water Code, is amended by adding Section 5.517 to read as follows:

Sec. 5.517. EMERGENCY ORDER CONCERNING OPERATION OF QUARRY WITHOUT PERMIT. (a) Except as provided by Subsection (b), the commission shall issue an emergency order under this subchapter suspending operations of a quarry or other facility that:

(1) produces aggregates, as that term is defined by Section 391.001, Health and Safety Code;

(2) is required to obtain a permit under Chapter 26, other than a permit under Subchapter M of that chapter; and

(3) is operating without the necessary permit.

(b) The commission is not required to impose the penalty under Subsection (a) if the operator submits to the commission information demonstrating that the quarry operator relied in good faith on the opinion of a professional engineer or licensed attorney that a permit under Chapter 26 was not required at the facility.

SECTION 5. Section 7.052, Water Code, is amended by adding Subsections (b-1) and (b-2) and amending Subsection (d) to read as follows:

(b-1) Except as provided by Subsection (b-2), the amount of the penalty for operating a quarry or other facility that produces aggregates, as those terms are defined by Section 391.001, Health and Safety Code, that is required to obtain a permit under Chapter 26, and that is operating without the required permit is $10,000. Each day that a continuing violation occurs is a separate violation.

(b-2) The amount of the penalty under Subsection (b-1) is not less than $1,000 or more than $10,000 if the operator submits to the commission information demonstrating that the quarry operator relied in good faith on the opinion of a professional engineer or licensed attorney that a permit under Chapter 26 was not required at the facility.

(d) Except as provided by Subsections [Subsection] (b) and (b-1), each day that a continuing violation occurs may be considered a separate violation. The commission may authorize an installment payment schedule for an administrative penalty assessed under this subchapter, except for an administrative penalty assessed under Section 7.057.

SECTION 6. The changes in law made by Section 5.517, Water Code, as added by this Act, and Section 7.052, Water Code, as amended by this Act, apply only to a violation that occurs on or after the effective date of this Act. A violation that occurs before that date is governed by the law in effect at the time the violation occurred, and the former law is continued in effect for that purpose.

SECTION 7. (a) The Texas Commission on Environmental Quality shall be prepared to accept applications for permits under Chapter 391, Health and Safety Code, as added by this Act, not later than March 1, 2008.

(b) A person is not required to hold a permit to create or operate a quarry under Chapter 391, Health and Safety Code, as added by this Act, before June 1, 2008.

SECTION 8. This Act takes effect September 1, 2007.