),~~ ba~3o1~ I,~,~~
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST
AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: Commissioner Williams OFFICE: Precinct 2
MEETING DATE: February 13, 2006 TIME PREFERRED:
SUBJECT: (Please be specific). Consider and discuss S. B. 1354, which amended Ch.
26, Subchapter M of the Texas Water Code; its relevance to current and planned mining
operations in Kerr County on the Guadalupe River andlor its tributaries. Authorize an
official meeting between Ken County, UGRA Officials, Concerned Area Citizens and
State Legislators to discuss possible introduction of similar legislation to protect the
Guadalupe River.
EXECUTIVE SESSION REQUESTED:
NAME OF PERSON(S) ADDRESSING THE COURT: Commissioner Williams.
ESTIMATED LENGTH OF PRESENTATION: Undetermined.
IF PERSONNEL MATTER-NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
meetings. Your cooperation is appreciated and co~ributes toward your request being addressed
at the earliest opportunity. See Agenda Request Rule adopted by Commissioners Court.
79(R) SB ].354 -Enrolled version -Bill Text
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S.B. No. 1354
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
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79(R) SB 1354 -Enrolled version -Bill Text
construction material originating froma quarry or pit~the
disturbance of the surface, includingdirt, soil, rock asphalt,
--
granite, ravel, gypsum, marble, sand,__stone, caliche, limestone ,_
dolomite, rock, ri~rap, or other nonmineral substance. The term
does not include clay or _s hal e_.mined for use in manufact urin
s_t_ructural clay products.
(2) "John Graves Scenic Riverw~" means that portion
of the Brazos River Basin, and its contributing watershed,_located
downstream of the Morris Shepard Dam on the Possum Krngdom
Reservoir in Palo Pinto Counter Texas, and extendi~ to the county
line between Parker and Hood Counties, Texas.
(3) "Operator" means any person engaged in or
responsible fo_r the physical operation and controlof a quarry.
(4) "Overburden" means all materials displaced in an
-----
aggreqates 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
- --
part~, to the land on which a quarry exists or has existed.
(6) "Pit" means an open excavation from which
~gregates have been or are beingextracted with a depth of five
----- - --
feetor more below the adj acent and natural ground level.
(7) _ "Quarry" means the site from which~gregates for
--
commercial sale are berng orhave been removed or extracted from the
earth toform._a pit, including the entireexcavation, stripped
areas, haulage ramps, and the immediately._adjacent land on which
__ ---
the giant processin~he. _raw materials is located. The term does
---
not include any land owned or leased by the responsibl ~a rty not
being currently used rn the production of aggregates for commercial
sale or an excavation to mine clay_or shale for use in manufacturing
- ______ _
structural cl~ products.
(8) "Quarrying"_.means the current and ongoing surface
excavation and development withoutshafts, drafts, or tunnels, with
_- - - -
or without slopes, for the extraction of aygre~ates for commercial
sale from natural deposits occurring in the earth.
(9) "Refuse" means all waste material directl
- __
connected with the production, cleaning,._or preparation of
aggreqates that have been produced by quarrying.
(10) "Responsible party" means the owner, _operator,
----- -
lessor,_ or_lessee who is responsible for overall function and
---
operation of a q_uarr~ 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 ~ quarrying activities.
- --
(12)._.._"Water body" means any navi~ble watercourse,
-_. __..
river, stream, or lake within the water guali~ protection area.
___ -----
Sec. 26.552. APPLICABILITY; PILOT PROGRAM. (a) This
subchapter applies only to quarrying in a water~a lity protection
are a_designated by_comm_ission rule. This subchapter does not apply
--
to the constructionor operation ~f a municipal solid waste
facility regardless of whether the facility includes alit or
quarry that is associated with Est ~arryinq_
(b) For the period._o f_September 1, 2005, to Sit ember _1,
2025, the commission shall apps this subchapter only as a pilot
program in the John Graves Scenic Riverway.
(c)__This_subchapterdoes..not_apply_to;
(1) a quarry or associated processing plant that since
on or before January 1, 1999, has been in re~lar operation in the
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79(R) SB 1354 -Enrolled version -Bill Text
John Graves Scenic Riverway _without ce s_sati o_n of aeration for m_o re
than 30 consecutive days and under the same ownership ;_ _
------
(2) the constructionor modification of associated
e ui ment located on a cLuarry sit e_ or associated processinq~lant
site described by Subdivision (1); or
(3) an activity; facility, or operation regulated
under Chapter 139, Natural Resources Code.
Sec. 26.553. REGULATION OF QUARRIES WITHIN. WATER_QUALITY
----
PROTECTION AREA. (a) The commission shall require a responsible
- ------
party to_obtain an individual_p_ermit for a~ discharges__from a
quarry locatedin a water Qllality protection area that is located:
(1) withi n__a. 100-year floodplain of any_.water body; or
--
(2) within one mile of an_y water bodes.
(b) Thecommission shall recLuirea responsible party to
obtain a general permit under Section 26.090 for any quarry that is
located inawater 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 an~new quarry, or the_
expansion of an existing quarry, located within 1,500 feet of a
water body located in_.a_water quality Qrotection area for which a
person files an application for a permit_ or permit amendment after
----.
September 1, 2005.
(d) Notwithstanding Subsection (c)_,__t he commission may
issue or amend a ermit_to authorize the construction or_operation
- -
of a quarry located between 200 and 1,500 feet of a water body on
--- ----
findinq_that:
(1) the responsible party_.can satisfy performance
criteria established by commission rule and. incorporated into the
----- --
permit t_o address:
(A) slope gradients that minimize the_~otential
for erosion, slides, sloughing of quarry walls, overburden piles,
and banks into the water body and related water quality
considerations;
(B) whethe r. operations could result in
si~ificant damage to__important historic and cultural values and
ecological systems;
(C) whether oQerations 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_pr_oductivity of a water supply or of food o_r
fiber products; and
(D)._ whether operations could affect natural
___ ----
hazard land, includi~areas subject to frequent flooding and areas
of unstable geology, in which the_operations could substantial
endanger life and property;
(2) the responsible party has provided a plan for the
control ~f 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 aplanf or
reclamat_i on of thesuar~_that rs _consi st e_nt wit h__b_e st management
standards and practices adopted by the commission for cLuarry
reclamation, which may include backf filling, soil stabilization and
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79(R) SB 1354 -Enrolled version -Bill Text
compacting, cLrading, erosion control measures, and appropriate
revegetation; and
-_
(4) the re~onsible party has provided evidence that,
---
to the ehtent possible, quarrying will be conducted using the best
available technology to:
(A) minimize disturbance and adverse effects of_
the quark ~e ration 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 financral
responsibilit y,_adequat e__to protect the water__resources in a water
quality protection area for inclusion rn any authorization,
--
including an_individual or general permit, issued under this
section by the commission.
(f) In additionto any_other requirements established by
commission rule adopte d_under Subsection (e), the responsible. party
for aquarry located in a water cLualit~protection area required to
-- -
obtain an individual_.o~eneralpermit shall include with an
application filed with the commission under this section:
(1) _a~roposed 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
t_h_e water body; and
(2) evidence of sufficiently funded bondi~ or goof
of financial resources to mitigate, remediate, and correct any
potential future effects on a water bow of an unauthorized
discharge to _a water bodes
Sec.26.554. FINANrIAL 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 responsibil i~
for restoration of a waterbod affected b an_unauthorized
Y - y- - - ---- -- -
discha~e from _a_permitted quarry; or
(2) taking corrective action and compensating for
water quality effects causedby an unauthorized discharge resulting
from quarrying.
(b )__A responsible part commits a violation if the
res onsible party operates a permitted. quarry knowing that
financial res~onsibili~ r~u fired bra 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
subch~ter 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 in~e ctions and the drawi~o f. water samples
_. _._.
must be conducted at least once in a winter month and at least once
in a summer month. The visual inspectrons must be conducted both
_._ --- --
from the surface of the John Graves Scenrc RrverwaY and from an
_.. --
airc_r_aft flying over the riverway.
Sec. 26.556._ ONAOTHORIZED DISCHARGES OF CERTAIN WASTES
WITHIN WATER QUALITY PROTECTION AREA; ENFORCEMENT. (a) The
commission _s hall enforce this subch meter and impose administrative
and civil penalties for discharges from a quarry in violation of
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79(R) SB 1354 -Enrolled version -Bill Text
this subchapter ._ Subject to Subsection (d), the commission shall
assess an administrative penalty_agarnst._a responsible party of a
g_uarry res onsible for a discharge_in vrolation of this subchapter
or of a permit, rule, or order adopted orissued under this
--_ _
subchapter in an amount of not less than $2,500 and not more than
$25,000 for each violation of this subcha~t er or of the hermit,
rule, or order .adopted or issued under this subchapter. Subject to
Subsection (d),the commission shall assess an administrative
penal~against~erson for any other_violation of thrs subch~ter
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 vrolation continues m_ay 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, andthe hazard or~otential 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 habitats-
(3) with reject to the alleged violator:
(A) thehistory_and extent of previous
_ ---
violations;
(B) the degree of cu ~abilit y, including whether
the violation was attributable to mechanical orelectrical failure s_
and whether the violation could have been reasonably anticipated
------
and avoided;
(C) demonstrated~od_faith, rncluding actions
--- -
taken_b~the alleged violator to rectify the cause of thevrolatron
and to compensate affected~ersons;
(D) whether the violator is engaged in a
for-profit operation;
(E) an~conomic benefit gained through the
violation; and
violations; and
(F) the amount necessary to deter future
(4) any other matters thatjustice may require.
(c )___In addition to the adminrstrative penaltres and other
available remedies or causes of action, the_commission may seek
i n~unctive relief in the distrrct courts of Travrs County._to:
--- _
(1) force the temporary or permanent closure of a
quarry oQerated without authorization required under this
---- - - _.
subchapter;
(2) force the temporary or permanent closure of a
__._
permitted_guarry_.under_this subchapter for which acceptable
evidence of frnancial responsibility is not maintained;
(3) force the temporary or permanent c_1_o_s_ure_ of any
quarry responsible for an unauthorized discharge; or
(9) force corrective action the responsible party
- _......
of a quarryresponsible for an unauthorized discharge.
(d) The commission may compromise, modify, or remit, with or
without conditions, an administrative penalty_i~osed under this
---- - - - -
subchapter. In d_etermrninq_the approprrate amount of a penalty for
settlement of an administrative enforcement matter, the commission
may consider a respondent's willingness to contribute to
supplemental environmental pro~cts_that are approved by the
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79(R) SB 1354 -Enrolled version -Bill Text
commission,- giving_preference to project s_. that benefit the
community in which the alle~d 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 duality
area adversely affected unauthorized discharges from quarries or
abandoned quarries that threaten wate~uality and the beds,
bottoms, and banks of water bodies in the water~uality area.. The
commission may encoura~_the cleanup of contaminated yroperty
---
through the use of supplemental environmental projects. The
-_ -
commission may not approvea project that is necessary to brrnga
---
resy~ondent intoco~liance with environmental laws, that is
necessaryto_remediate environmentalharm caused ~_the
-_ -- ---
respondent's alleged violation, or that the respondent has already
agreed to_.per£orm under a preexisting agreement with~overnmental
-- _ -
agency.
(e) A violation of this subcha~ter_also c_o_n stitutes an
offense that_ma~ be prosecuted and punished under Section 7.147.
__ ----
(f) .Nothing in this subchapter affects the right of any
--
person_that has a~usticiable interest to~ursue an available
common law or statutory remedy to_enf_orce a right,_.to prevent or
seek redress or compensation for the violation of a right,- or
-------
otherwise to redress an injures
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~ollutants from aquarry in a. water quality
_____ _ _
protection area.
Sec. 26.558. RECOVERY OF COSTS FOR UNAUTHORIZED DISCHARGES
WITHIN WATER QUALITY PROTECTION AREA. I£ 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, includi~a reclamation or restoration
action, the responsible pares is liable to the state for all
reasonable costs o£ the corrective or enforcement action, includi~
- ----- ----_- ---------------
court costs and reasonable attorn~'s fees, and for any Qunitive
damages that may be assessed by the court.
Sec. 26.559. RECLAMATION AND RESTORATION FOND 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 £or the reclamation and
restoration of the beds, bottoms, and banks of water bodies
affected by the unlawful dischargessubject to this subchapter.
(b) At least 60 days before spending mon~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 d~s._before the date of the public hearing,
------
the notice must be Qublished in the Texas Register and in a
__ -.
newspaper o£ general circulation in the county where the violation
-- ----- -
resulting i_n_the p~ment_o£ th_e__penaltie s_. 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.
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79(R) SB 1354 -Enrolled version -Bill Text
(a) The commission is the princial_.authority in the state on
matters relating to_ the implementation of_this subchapter. A11
other state agencies engaged in water ~ality or water. pollution
control activities in a water guality_~rotection area shall
coordinate those activities with the commission.
___ ___
(b )__The. executive director, with the consent of the
__
commission, mayenter into contracts memoranda of understanding,
or other agreements with other state_~encies for Purposes of
developing effluent or other water qualm requirements, includi~
requirements for financial responsibility, adequateto protect the
water resources in a water quality protection area, in any
----
indivrdual or~eneral permit or other authorization rssued under
this_subchapter.
Sec. 26.561. WATER QOALITY PROTECTION AREA REPORTS.
(a) On_or._before December 1, 2006,_the commission shall prepare a
report describing its implementation of this subch meter _and~o vide
coyries of the resort to the governor, lieutenant wernor, and
--
speaker of the house of representatives.
(b) Beginning December 1, 2008, and on December 1 of each
succeedingeven numbered mar, the commission shall deliver a
report to thegovernor, 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.
Sec. 26.562. EXPIRATION. This subchapter expires_September
--
1, 2025.
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.
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1354 passed the Senate on
April 28, 2005, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 21, 2005, by the
following vote: Yeas 29, Nays 1.
Secretary of the Senate
I hereby certify that S.B. No. 1354 passed the House, with
amendments, on May 19, 2005, by the following vote: Yeas 137,
Nays 0, two present not voting.
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79(R) SB 1354 -Enrolled version -Bill Text
Chief Clerk of the House
Approved:
Date
Governor
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~~P'CE ppT~
w ,~ ADVISORY COMMITTEE ON ROCK CRUSHERS
~ ~ AND QUARRIES
Senator Troy Fraser, Chairman Commissioner James Oakley
Senator Ken Annbrister Mr. John Lattimore, Jr.
Senator Frank Madla Mr. Iohn Weisman
Representative Dennis Bonnrn
Representative Byron Cook
Represenmtive Edmund Kucmpel
The Honorable Rick Perry
Governor
State of Texas
P.O. Box 12428
Austin, Texas 78711-2428
Dear Governor Perry,
The Advisory Committee on Rock Crushers and Quarries is pleased to submit to you and the
members of the Legislature an interim report.
While this report is not signed by a majority of the committee members, we believe this report
will provide the structure and background for future regulations on the permitting process for
rock crushers and quarries at the Texas Commission on Environmental Quality.
We look forward to continuing to work with you and the members of the 79th Legislature.
Respectfully submitted,
Troy racer
~~~,~
James Oakley
Kenneth Armbrister Ftank Madla
cc: Lieutenant Governor David Dewhurst
Speaker of the House Tom Craddick
ADVISORY COMMITTEE ON ROCK CRUSHERS
AND QUARRIES
~P~E
5~
w
o~

INTERIM REPORT TO GOVERNOR RICK PERRY
JANUARY -- 2005
TABLE OF CONTENTS
Background/Introduction ................................................................................... 3
Findings and Recommendations ........................................................................... 6
TCEQ Enforcement ....................................................................................... 12
Appendices:
Appendix A: Executive Order RP-24
Appendix B: Senate Bi11913, 78th Regulaz Session
Appendix C: Texas Aggregate and Concrete Association recommendations
Appendix D: Agendas, Minutes and Witness Lists
Appendix E: Relative Correspondence
)n the Fall of 2002, Senator Troy Fraser was called upon by the citizens of Bumet County to
address the proliferation of rock quarries and rock crushing operations in Bumet County.
Prompted by the concerns of his constituents, Senator Fraser filed Senate Bill 913 during the
78th Regular Session of the Texas Legislature. The legislation sought to establish new
requirements and regulations under which the Texas Commission on Environmental Quality
(TCEQ) would issue new air permits for the operation of rock crashers.
Although the legislation failed, it brought sufficient attention to the need for a comprehensive
review of the TCEQ's current permitting process for these facilities. On May 27, 2003, Governor
Rick Perry issued Executive Order RP-24, creating the Advisory Committee on Rock Crushers
and Quarries. The committee was given one broad chazge: "...to conduct a study on the authority
of Texas Commission on Environmental Quality to consider all appropriate issues in permitting
and regulating rock crushers, including rock crushers operating in association with quames... "'
The Governor appointed nine members to the committee: three members of the Texas Senate,
three members of the Texas House of Representatives, and three members of the public. The
legislative members appointed to the committee were: Senator Troy Fraser, (R-Horseshoe Bay),
as Chairman; Senator Ken Armbrister (D-Victoria); Senator Frank Madla (D-San Antonio);
Representative Dennis Bonnen (R-Angleton); Representative Byron Cook (R-Corsicana); and
Representative Edmund Kuempel (R-Seguin). The public members appointed to the committee
were: James Oakley, Burnet County Commissioner; John V. Lattimore Jr., President and CEO of
Lattimore Properties, Inc., in McKinney; and John R. Weisman, President of Hunter Industries
Ltd., in San Mazcos.
~ Executive Oder RP-24
BACKGROUND/INTRODUCTION
COMDIITTEE HEARINGS
The committee held its first hearing in Mazch, 2004 and conducted a comprehensive review of
the current permitting process, including factors currently not taken into consideration by TCEQ
when considering a permit application. The Texas Department of Transportation (TXDOT),
Lower Colorado River Authority (LCRA) and Railroad Commission of Texas (RCT) provided
testimony.
The second hearing was held in June, 2004. The hearing included briefings from the industry,
including the Texas Aggregates and Concrete Association (TACA) and Associated General
Contractors (AGC). Additionally, the committee heard testimony relating to non-permitted rock
mining by dimension stone operators along the Braves River. The Brazos River Conservation
Coalition (BRCC), Brazos River Authority (BRA) and TCEQ Chairman Kathleen White
provided testimony.
As previously mentioned, and as a general statement, the committee's work focused on issues
commonly associated with rock quarry and rock crushing operations that currently aze not
considered by the state as part of the permitting process. Those issues included:
• the impact of local truck traffic on state and county roads in the vicinity of the
rock quarry and crushing facilities
• the impact to air quality beyond the immediate vicinity of the crusher
• the impact to ground and surface water
• the impact of blasting on ground and surface water
• land reclamation, after mining operations have ceased
Rock quarrying and rock crushing operations aze part of a major industry that plays a vital role in
the continued growth of the Texas economy. Materials produced by these facilities aze a key
ingredient in highway construction at a time when the state is embarking on an aggressive plan to
add much-needed capacity to serve a rapidly expanding population and relieve traffic congestion.
The committee recognizes the important role that rock quarrying and rock crushing operations
play in supplying aggregate for those projects.
4
Current law, however, seeks only to protect air quality in the permitting process by limiting
emissions through measwes such as water sprayers on machines, fugitive dust control measures
on roads, and other conditions specified in the pemrit. Similarly, protection of water quality is
addressed in limited fashion through the issuance of a storm water dischazge permit. Changes
should be made to the permitting process to further protect air and water quality standazds, and to
address other issues that are essential to protecting the state's natural resowces and the public's
safety.
5
COMMITTEE FINDINGS AND RECOMMENDATIONS
The Advisory Committee formulated the following findings and recommendations based on
testimony, correspondence and reseazch
RECOMMENDATION 1: REQUIRE OPERATORS OFROCK QUARRIES TO OBTAINA QUARRYPERMIT.
A quarry permit would consist of five main components, including: (1) a site plan; (2) a
transportation plan; (3) blasting regulations; (4) a reclamation plan; and (5) an approved air
quality permit. A quarry permit application fee of $1,000 would be required. The air quality
pernvt would be the only component of the quarry permit that is challengeable through a
contested case hearing. The requirements of this statute will apply to those permit applications
that are filed after the effective date of the Act.
Site Plan: A site plan would be the first required component of the quarry permit. In order
to assess the environmental soundness of the proposed operation, a site plan must be submitted to
the TCEQ by the applicant. The site plan would include: a site map detailing the proposed permit
area, the location and identification of all affected and unaffected azeas, a description of the site
location including the nearest stream, and the distance and direction from the neazest state and
county road, and the nearest intersection. In addition, the site plan will detail the ingress and
egress routes for the materials to be transported on public roadways. The site map should also
include a detailed description of the stages in which the quarry will be mined.
The site plan must also include a report from an independent hydrologist on any ground or
surface water in the proposed affected area. The report should detail any hydrologist
recommendations that the permit applicant will be using to prevent any negative affect on ground
and surface water and should be periodically updated to ensure that no damage is being done to
any surrounding water source. The site plan must also detail how the company intends to address
the recommendations made in the hydrologist report.
Transportation Plan: A transportation plan would be the second required component of
the quarry permit. The permit shall contain a plan for transporting materials to and from the
quarry over public roads. TCEQ must solicit a recommendation from TXDOT regarding the
6
adequacy and design capacity of the roadway to safely accommodate the additional volumes of
traffic expected to be generated by the facility.
Blastin~lan: A blasting plan would be the third required component of the quany
permit if blasting is planned for the proposed operation. The plan would include a description of
the blast warning, site access control equipment and procedures, and a description of types and
locations of blast monitoring equipment and procedures to be used. The plan would also include
descriptions of procedures and plans for the recording and retention of blasting records for each
blast to be conducted. A blasting record would include the following information:
• the exact location, time and date of detonation
• the direction and distance to neazest dwelling, school, church or commercial
or institutional building neither owned nor leased by the permitee
• the weather conditions during the blast
• the seismograph reading, including exact location of the seismograph and its
distance from the blast, and
• the name of the person taking the seismograph/vibration monitors reading.
Blasting records, including seismograph/vibration monitor reports, shall be retained for a rolling
two year period and shall be available for inspection by TCEQ.
Reclamation Plan: A reclamation plan would be the fourth component of the quarry
permit. A reclamation plan to return all affected land at the proposed quarry site to a useful
purpose must be submitted by the applicant. A description of how the affected land will be
returned to a condition relative to its intended end use must be included. The plan shall be
consistent with all lease and contractual terms stipulated between the lessee and lessor along with
other conditions of the approved registration and will include the following: (1) a timetable for
the completion of major steps in the reclamation plan; (2} a plan for grading that is consistent
with the end use; (3) a plan for revegetation, if applicable, that is consistent with the end use.
Additionally, a bond should be required in the amount of $1,000 for each acre of proposed
affected land. Operators would post bond on a two-yeaz forwazd basis, with respect to the
operator's site plan.
7
After land is reclaimed, a pemutee must notify TCEQ of completion and is eligible for the
applicable bond to be released on that pazcel of land. The time frame for reclamation will be no
more than three years after cessation of quarry operations. The time for completion could be
lengthened with agency approval. The requirements stipulated for the reclamation plan are
applicable to land disturbed after the effective date of the Act.
A~nroved Air Oualitv Permit: The final component of a quarry permit application is an
approved air quality permit issued by the TCEQ.
RECOMMENDATION 2: GRANT TCEQ ADD]TIONAL STATUTORY AUTHORITY TO REGULATE
DIMENSION STONE MININCALONG THE RIVERSAND STREAMS OF TEXAS.
Non-permitted dimension stone operations along the Brazos River and its tributaries in Palo
Pinto and Parker Counties have adversely changed the river ecology and impacted surface water
quality. The mines remove limestone and sandstone from the hills and bluffs above the river for
use in landscaping, thus exposing the earth beneath. During heavy rains, the water washes the
exposed soil and clay into the river; these materials are deposited along the shore and on small
islands in the river, promoting the growth of weeds and grass. Excessive sedimentation can
destroy aquatic habitat and high volumes of runoff can cause stream bank erosion.
In the Spring of 2004, in response to numerous inquiries by concerned citizens and the Brazos
River Conservation Coalition, TCEQ developed a plan to investigate these types of facilities
throughout the state ("Cleaz Streams Initiative"). The TCEQ through its Cleaz Streams Initiative
issued 128 notices of violation, 38 notices of enforcement and six referrals to the Attorney
General's office to rock quarry operators? Through this initiative, it has become appazent that
the TCEQ should enhance its enforcement procedures, especially with facilities operating
adjacent to a state waterway. This will ensure that these facilities aze operating in compliance
with existing state and federal laws.
na or s~i~na ~ s, zooa.
8
RECOMMENDATION 3: REQUIREALL AGGREGATE TRUCKS TO BE COMPLETELY TARPED.3
All aggregate haul trucks would be completely tarped regazdless of the size of the material being
hauled. This would be enforced by the Texas Department of Transportation, the Texas
Department of Public Safety, and county and local law enforcement agencies. Penalties should
be established by the Department of Public Safety.
RECOMMENDATION 4: PENALTIES FOR OPERATING WITHOUT APRE-AUTHORIZED PERMIT FOR
STORMWATER RUNOFF.4
Require the cessation of operation and a $10,000 penalty for any aggregate facility operating
without apre-authorized permit for stormwater runoff. After a Notice of Violation is issued, an
additional $10,000 per day penalty would be assessed for each day the facility is operated
without the required permit from the TCEQ. This proposed law change is very similar to the bill
that passed during the 77th Regular Session regazding air pemuts for ready mix concrete batch
plants in Texas.s
RECOMMENDATION 5: REQUIRE A CERTIFICATION AND CONTINUING EDUCATION PROGRAM
AUTHORIZEDBY TCEQ d
Each producer of aggregate from a quarry or mine in the state should designate a person
responsible for a certification and continuing education program authorized by TCEQ. The
certification and continuing education program would be a required six-hour course provided on
an annual basis and would stress best management practices for the production of aggregate from
quarries and mines.
The certification program would be made available regionally by an educational facilitator
preauthorized by the TCEQ. The names of the compliant companies and their designated
employees fulfilling this six-hour requirement would be forwarded to the TCEQ for record
keeping purposes.
' Recommendation submitted by the Tezea Aggregates and Concrete Association.
° Ibid.
' Senate Bill 1390, 77th Regular Session
a Recommendation submitted by the Tezae Aggregates and Concrete Association.
9
Companies must show compliance with TCEQ certification and continuing education
requirements when applying for renewal of permits to produce aggregates by quarrying or
mining.
RECOMMENDATION 6: CHANGES TO PERMITS BYRULE (PBR) AS THEYAPPLY TO ROCK CRUSHERS
AND QUARRIES
Currently, the law provides that TCEQ can issue Permits by Rule (PBR) for rock crushers. PBR
authorize a rock crusher to operate without obtaining an air quality permit if certain standards aze
met. The committee found that many rock crushers operate adjacent and concurrent PBR sites to
circumvent the permitting process, a process known as "stacking" PBR.
The committee recommends that the TCEQ review PBRs for rock crushers and that rules be
adopted to close the loophole that allows for facilities to potentially circumvent the permitting
process. If TCEQ is unable to resolve this problem through the rule-making process, appropriate
legislation should be passed to address the problem.
RECOMMENDATION 7: STRENGTHEN NOTICE PROVISIONS.
In addition to the current notification letter sent by TCEQ to the appropriate state Senators and
Representatives, anidentical letter also would be sent to the County Judge and County
Commissioners of the County where the applicant desires to operate.
Additionally, the applicant would be required to furnish a copy of the permit application to the
County Clerk for public viewing. Proprietary infom~ation and information not subject to
disclosure under the Texas Public Information Act would remain wnfidential.
RECOMMENDATION 8: A STUDY TO BE PERFORMED BY THE STATEAUDITOR ON THE ACTUAL COST
OF HIGHWAY CONSTRUCTION PROJECTS.
During the first hearing, Mr. Amadeo Saenz (Texas Department of Transportation) testified that
"...the type of high quality hard dolomite ... that is currently in high demand in Texas, is
primarily located on the fringes of the Llano Uplift Area If, for example, quarries within this
10
geographic azea were restricted from production or operation in any way, the result would
greatly impact the availability of this desirable high grade dolomite."'
Senator Armbrister then questioned Mr. Saenz as to why TXDOT was limiting construction
materials to only certain material types. Mr. Saenz stipulated that the State of Texas has
perfonned research on the differing materials that are potentially involved in highway
construction. In reviewing that research, TXDOT determined that "...the State of Texas has a lot
of materials, and some materials have been, [through] reseazch ... shown to be better for certain
types [of] highways than others."$
The study should include complete costs of a highway building project including the quarrying
and crushing of the material and the transportation costs associated with the project. The study
should also compare costs associated with projects that receive material within a close proximity
to their site and those that receive material from a greater distance away.
' Testimony of Amadeo Saenz to the Advisory Committee on Rook Cluehe~s and Quartiea, Match 29, 2004.
s Ibid
II
TCEQ ENFORCEMENT
TCEQ should enswe that violators face the appropriate consequences. TCEQ must establish
penalties that reduce the economic benefit ofnon-compliance, thereby taking away an important
incentive for non-compliance. In order to provide that penalties aze paid promptly, interest
charges should be assessed on overdue penalties, and the agency should adopt new procedwes to
collect delinquent fees and penalties. These procedwes could include referrals to the Attorney
General for collection and the retwn of permit applications if the applicant has past due fees and
penalties.9
A poor compliance record should also limit an entity's opportunity to obtain new authorizations.
If an applicant has a poor compliance record, the agency would summarily reject, or add
conditions designed to ensure compliance.10 Penalties should also be enhanced when a violator
does not respond to enforcement notices. Compliance history and past violations should be used
when considering new permits.
TCEQ should also focus more closely on preventing and reducing risk to human health and the
environment. The agency should assign a higher priority and additional agency inspection and
enforcement resources to those violators causing harm or that have the potential to cause harm.
Inspections should be scheduled based primarily on a facility's potential risk to the environment.
Because unauthorized facilities aze less likely to install the controls needed to protect the
environment, field resowces should also be reserved every year to address unauthorized
operations. Base penalties for violators that caused actual environmental harm should be
increased. u
' Tezea Commission on FnJvonmentat Quality, EnforcemenlProcess Review, Draft Final Report, August 20, 2004.
1° Ibid.
~~ Ibid.
12
ADVISORY COMMITTEE ON ROCK CRUSHERS
AND QUARRIES
DISSENTING REPORT TO GOVERNOR RICK PERRY
JANU.~RY -- 2005
T'he following recommendations are respectfully submitted by:
+aave Deani~ Boonen '~
Rrpae~atative Edmvad K yol
lfo R. Welfmw
FINDINGS AND RECOMMENDATIONS
After careful consideration of the testimony heard by the committee and thoughtful study of the
issues involved, the afore-signed committee members offer the following recommendations:
RECOMMENDAT/ON I: REQUIRE OPERATORS OF ROC% QUARRIES TO M.fINTA/N THE FOLLOWING
DOCUMENTS:
Site Plan: A copy of the site plan that is submitted to the TCEQ with the permit request shall be
available at the quarry site.
Blasting Record: A blasting record should be maintained on the site for a rolling 24-month
period. It should include as a minimum the following information:
• The location, time and date of detonation
• The weather conditions during the blast
• Seismograph reading and location of seismograph equipment during the blasting
• Name of the person in charge of the blasting
Air Quality Permit: A copy of the air quality permit issued by the TCEQ shall be available.
Storm Water Permit: A copy of the notice of intent and/or other required stone water permit
data shall be available.
RECOMMENDATION 2: GRANT TCEQ ADDITIONAL STATUTORY AUTHORITY TO REGULATE SAND
AND GRAVEL MINING ALONG THE RIVERS AND STREAMS OF TEXAS.
Non-permitted dimension stone operations along the Brazos River and its tributaries in Palo
Pinto and Parker Counties have adversely changed the river ecology and impacted surface water
quality. The mines remove limestone and sandstone from the hills and bluffs above the river for
use in landscaping, thus exposing the earth beneath. During heavy rains, the water washes the
exposed soil and clay into the river; these materials are deposited along the shore and on small
islands in the river, promoting the growth of weeds and grass. Excessive sedimentation can
destroy aquatic habitat and high volumes of runoff can cause stream bank erosion. These were
not the sole source of materials deposited in the river.
In the Spring of 2004, in response to numerous inquiries by wncemed citizens and the Brazos
Riven Conservation Coalition, TCEQ developed a plan to investigate these types of facilities
throughout the state ("Clear Streams Initiative"). The TCEQ through its Clear Streams Initiative
issued 128 notices of violation, 38 notices of enforcement and six referrals to the Attorney
General's office to rock quarry operators.' Through this initiative, it has become apparent that
the TCEQ should enhance its enforcement procedures, especially with operations operating
adjacent to a waterway of the state to ensure that these facilities are operating in compliance with
existing state and federal laws.
RECOMMENDATION 3: REQUlREALL AGGREGATE TRUCES TY1 BE COMPLETELYTARPED.~
All aggregate haul trucks would be tarped regardless of the size of the material being hauled.
This would be enforced by the Texas Department of Public Safety. Penalties should be
established by the Department of Public Safety and deposited in the Texas Mobility Fund.
RECOMMENDATION 4: PENALTIES FOR OPERATING W/THOUT A PRE AUTXORIZRD PERM/T FOR
STORMWATER RUNOFF.'
Require the cessation of operation for any aggregate facility required by law to have a
stormwater runoff permit that is operating without apre-authorized permit for stormwater runoff.
The legislature shall review the penalty provisions to assess appropriate penalties for any
aggregate facility operating without the required permit from the TCEQ.
RECOMMENDATION S: CHANGES TO PERMITS BY RULE (PBR) AS TXEYAPPLY TO ROCS CRUSHERS
AND QUARR/ES.
The committee recommends that the TCEQ review PBRs for rock crushers and that rules be
adopted to close the loophole that allows for facilities to potentially circumvent the permitting
process. If TCEQ is unable to resolve this problem through the rule-making process, appropriate
legislation should be passed to address the problem.
' As of September 1 S, 2004.
~ Recommendation submitted by the Texas Aggre~ and Concrete Association.
' Ibid.
2
RECOMMENDATION 6: A STUDY TO BE PERFORMED BY THE STATE AUDITOR ON THE ACTUAL COST
OF HIGHWAY CONSTR UCTION PROJECTS
During the first hearing, Mr. Amadea Saenz (Texas Department of Transportation) testified that
"...the type of high quality hard dolomite ... that is currently in high demand in Texas, is
primarily located on the fringes of the Llano Uplift Area. If, for example, quarries within this
geographic area were restricted from production or operation in any way, the result would
greatly impact the availability of this desirable high grade dolomite.i4
Senator Armbrister then questioned Mr. Saenz as to why TXDOT was limiting construction
materials to only certain material types. Mr. Saenz stipulated that the State of Texas has
performed research on the differing materials that are potentially involved in highway
construction. In reviewing that research, TXDOT determined that "...the State of Texas has a lot
of materials, and some materials have been, [through] research ... shown to be better for certain
types [ofJ highways than others.i5
The study should include complete costs of a highway building project including the quarrying
and crushing of the material and the transportation costs associated with the project. The study
should also compare costs associated with projects that receive material within a close proximity
to their site and those that receive material from a greater distance away.
TRANSPORTATION ISSUES
The committee encourages TxDOT to emphasize the public safety of our motoring public by
giving significant attention to the ever-increasing vehicular patterns throughout the state. This is
an important concept that should focus on new industrial, commercial, and residential
developments as they pervade our state. Special attention should be provided by TxDOT
regarding the criteria in building and maintaining our public roadways to ensure a high degree of
safety as the transportation needs of our state are increased.
' Testimony of Amadeo Saenz to the Advisory Committer on Rock Crushers end Querties, March 29, 2004.
' Ibid
3
RECLAMATION ISSUES
The committee received testimony regarding the need to address the condition of land upon the
completion of quarry activities and the future purposes of such land.
Agreements relative to the uses of such land are determined with deference to the private
property rights considerations of land owners and/or lessors of property utilized as quarries, and
according to lease and/or contractual terms stipulated between the landowner or lessor of the
property and the lessee%perator of the quarry.
It is the intent of the advisory committee that quarry operators and aggregate producers operate
according to the highest standards and best management practices available. While most
aggregate producers maintain high principles and are good stewards of the land, it is important
that all quarry operations be held accountable for the condition of the land.
The committee recognizes that reclamation of quarried land will be an issue of increasing
concern for the legislature and the regulatory communities and will require further review.
The Advisory Committee members recommend that the 79th Texas Legislature create an interim
committee to consider activities and issues related to the reclamation of quarried land. Further,
the interim committee should prepare a report of its findings, along with any appropriate
legislative recommendations, for the consideration of the 80th Legislature.
TCEQ ENFORCEMENT
TCEQ should ensure that violators face the appropriate consequences. TCEQ must establish
penalties that reduce the economic benefit of non-compliance, thereby taking away an important
incentive for non-compliance. In order to provide that penalties are paid promptly, interest
charges should be assessed on overdue penalties, and the agency should adopt new procedures to
collect delinquent fees and penalties. These procedures could include referrals to the Attorney
General for collection and the return of permit applications if the applicant has past due fees and
penalties.b
`Texan Commission on Environmental Quality. EgjoxemeM Process Review, Draft Ftrm! Report, August 20, 2004.
4
A poor compliance record should also limit an entity's opportunity to obtain new authorizations.
If an applicant has a poor compliance record, the agency would summarily reject, or add
conditions designed to ensure compliance. Penalties should also be enhanced when a violator
does not respond to enforcement notices. Compliance history and past violations should be used
when considering new permits.
TCEQ should also focus more closely on preventing and reducing risk to human health and the
environment. The agency should assign a higher priority and additional agency inspection and
enforcement resources to those violators causing harm or that have the potential to cause harm.
Inspections should be scheduled based primarily on a facility's potential risk to the environment.
Because unauthorized facilities are less likely to install the controls needed to protect the
environment, field resources should also be reserved every year to address unauthorized
operations. Base penalties for violators that caused actual environmental harm should be
increased.s
' m+a.
' m~a.
5
~""
Revised ]0-05-OS ~~ ~
/~= `
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