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 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 for commercial sale 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 for commercial sale 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 for commercial sale 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 lessee who is responsible for 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 watercourse, river, stream, or lake within the water quality protection area. Sec. 26.552. APPLICABILITY; PILOT PROGRAM. (a) This subchapter applies only to quarrying in a water quality protection area designated by commission rule. This subchapter does not apply to the construction or operation of a municipal solid waste facility regardless of whether the facility includes a pit or quarry that is associated with past quarrying. (b) For the period of September 1, 2005, to September 1, 2025, the commission shall apply this subchapter only as a pilot program in the John Graves Scenic Riverway. (c) This subchapter does not apply to: (1) a quarry or associated processing plant that since on or before January 1, 1994, has been in regular operation in the John Graves Scenic Riverway without cessation of operation for more than 30 consecutive days and under the same ownership; (2) the construction or modification of associated equipment located on a quarry site or associated processing plant site described by Subdivision (1); or (3) an activity, facility, or operation regulated under Chapter 134, 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 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 habitats; (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. 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. ______________________________ Chief Clerk of the House Approved: ______________________________ Date ______________________________ Governor