81R2345 JJT-F
By: Williams S.B. No. 800
A BILL TO BE ENTITLED
AN ACT
relating to a Texas Commission on Environmental Quality water
quality protection area pilot program applicable to portions of the
San Jacinto River; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 26, Water Code, is amended by adding
Subchapter N to read as follows:
SUBCHAPTER N. SAN JACINTO RIVER WATER QUALITY PROTECTION AREA
Sec. 26.601. DEFINITIONS. In this subchapter:
(1) "Operator" means any person engaged in or
responsible for the physical operation and control of a quarry.
(2) "Owner" means any person holding title, wholly or
partly, to the land on which a quarry exists or has existed.
(3) "Pit" means an open excavation from which sand or
gravel has been or is being extracted from a depth of five feet or
more below the adjacent and natural ground level.
(4) "Quarry" means the site from which sand or gravel
for commercial sale or use is being or has 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 a plant processing the sand or gravel is located.
(5) "Responsible party" means the owner, operator,
lessor, or lessee who is responsible for the overall function and
operation of a quarry.
(6) "San Jacinto water quality protection area" means
territory located one-half mile or less from:
(A) that portion of the East Fork of the San
Jacinto River from State Highway 105 downstream to Lake Houston;
(B) that portion of the West Fork of the San
Jacinto River from Interstate Highway 45 downstream to Lake
Houston; and
(C) Spring Creek from Interstate Highway 45
downstream to its confluence with the West Fork of the San Jacinto
River.
(7) "Water quality protection area" means territory
located one-half mile or less from a river the water quality of
which is threatened by activities at a quarry.
Sec. 26.602. APPLICABILITY; PILOT PROGRAM. (a) This
subchapter applies only to sand and gravel quarries located in a
water quality protection area designated by commission rule.
(b) This subchapter does not apply to:
(1) permitting, construction, or operation of a
municipal solid waste landfill or other solid waste facility
regardless of whether the facility includes an excavation that is
associated with past quarrying activities; or
(2) an excavation, pit, or quarry associated with or
related to the operations of a municipal solid waste landfill or
other solid waste facility, regardless of the material extracted
from or the depth of the excavation, pit, or quarry.
(c) This subchapter does not apply to an activity, facility,
or operation regulated under Chapter 134, Natural Resources Code.
(d) For the period of September 1, 2009, to September 1,
2029, the commission shall apply this subchapter only as a pilot
program in the San Jacinto water quality protection area.
Sec. 26.603. REGULATION OF QUARRIES WITHIN WATER QUALITY
PROTECTION AREA. (a) The commission by rule shall require a
responsible party to obtain an authorization to use a general
permit under Section 26.040 for any discharges from a quarry any
part of which is located in a water quality protection area
designated under this subchapter.
(b) Except as provided by Subsection (c), the commission by
rule shall prohibit the construction or operation of a new quarry
and the expansion of an existing quarry if the new or existing
quarry is to be or is located 100 feet or less from a stream that is
in a water quality protection area designated under this
subchapter.
(c) A quarry that is covered by a permit issued by the United
States Army Corps of Engineers under Section 404 of the federal
Clean Water Act (33 U.S.C. Section 1344) may operate within 100 feet
of a stream if that permit authorizes the operation, regardless of
whether the quarry is located in a water quality protection area
designated under this subchapter.
(d) The commission by rule shall establish performance
criteria and requirements for the general permit required under
Subsection (a) to address:
(1) slope gradients that minimize the potential for
erosion of quarry walls and banks into the surface waters and
related water quality considerations;
(2) potential effects on areas subject to frequent
flooding and related risks to public safety and property;
(3) the control of surface water drainage and water
accumulation to prevent:
(A) erosion, siltation, or runoff; and
(B) damage to public or private property; and
(4) closure of a quarry, after quarry activities have
ended, consistent with best management standards and practices
adopted by the commission for quarry stabilization and reuse, which
may include soil stabilization and compacting, grading, erosion
control measures, removal of waste, debris, and structures, and
revegetation.
(e) The commission by rule shall establish requirements for
financial responsibility that are adequate to protect the water
resources in the water quality protection area and include those
requirements in the general permit required under Subsection (a).
(f) In addition to any other requirements established by
commission rule under Subsections (d) and (e), the responsible
party for a quarry located in a water quality protection area who is
required to obtain an authorization to use a general permit shall
include with an application filed with the commission for the
authorization:
(1) a proposed plan of action for how the responsible
party will restore a receiving water body to background conditions
in the event of an unauthorized discharge that affects the water
body; and
(2) a proposed plan of action for how the responsible
party will close the quarry, consistent with commission standards,
that includes:
(A) a description of the natural state of the
land surrounding the quarry to which state the quarry will be
restored, or the specific land use proposed for the quarry site; and
(B) a schedule within which the effort to close
the quarry may reasonably be required to be completed after quarry
activities have ended.
Sec. 26.604. FINANCIAL RESPONSIBILITY; VIOLATION.
(a) The commission by rule shall adopt requirements for
maintaining acceptable evidence of financial responsibility for:
(1) restoration of a water body affected by an
unauthorized discharge from a permitted quarry;
(2) taking corrective action for and compensating for
water quality effects caused by an unauthorized discharge resulting
from quarrying; and
(3) implementing an approved quarry closure and reuse
plan if the responsible party is unwilling or unable to meet the
requirements of the plan.
(b) A responsible party may not operate a permitted quarry
knowing that acceptable evidence of financial responsibility has
not been maintained.
Sec. 26.605. INSPECTIONS OF AND SAMPLING OF WATER IN PILOT
AREA. (a) To detect potential violations of this subchapter in
the San Jacinto water quality protection area, the commission, the
San Jacinto River Authority, and the Parks and Wildlife Department
shall coordinate efforts to conduct:
(1) visual inspections of the water quality protection
area; and
(2) analyses of surface water samples from the San
Jacinto River and its tributaries subject to this subchapter.
(b) The visual inspections and analyses of water samples
must be conducted at least twice annually. At least once each year,
an inspection of the San Jacinto water quality protection area must
be conducted from an aircraft flying over the area.
Sec. 26.606. UNAUTHORIZED DISCHARGES OF CERTAIN WASTES
WITHIN WATER QUALITY PROTECTION AREA; ENFORCEMENT. (a) The
commission shall enforce this subchapter and impose administrative
and civil penalties as authorized by this code for discharges from a
quarry in violation of this subchapter or of any commission rule.
(b) 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
require:
(1) the temporary or permanent closure of a quarry
operated without authorization required under this subchapter;
(2) the temporary or permanent closure of a permitted
quarry under this subchapter for which acceptable evidence of
financial responsibility is not maintained;
(3) the temporary or permanent closure of any quarry
responsible for an unauthorized discharge; or
(4) corrective action by the responsible party for a
quarry that is responsible for an unauthorized discharge.
Sec. 26.607. 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 into or adjacent to
water in a water quality protection area designated under this
subchapter.
Sec. 26.608. 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 this 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. 26.609. COOPERATION WITH OTHER STATE AGENCIES.
(a) The commission is the principal authority in this 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 designated
under this subchapter 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 requirements, including requirements for financial
responsibility, for inclusion in any general permit required by
this subchapter that are adequate to protect the water resources in
the water quality protection area.
Sec. 26.610. WATER QUALITY PROTECTION AREA REPORTS.
(a) On or before December 1, 2010, 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, 2012, 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 implementation and
operation of the water quality protection permitting and
enforcement programs developed under this subchapter.
(c) At the discretion of the commission, the report under
Subsection (b) may be consolidated with any other appropriate
agency biennial report, including the report required under
Subchapter M, except that information specific to any water quality
protection area designated under this subchapter must be clearly
identified.
Sec. 26.611. EXPIRATION. This subchapter expires September
1, 2029.
SECTION 2. (a) The Texas Commission on Environmental
Quality shall adopt rules to implement Subchapter N, Chapter 26,
Water Code, as added by this Act, as soon as practicable.
(b) A responsible party required to obtain an authorization
to use a general permit described by Subchapter N, Chapter 26, Water
Code, as added by this Act, shall submit an application for the
authorization on or before the 180th day after the date rules of the
Texas Commission on Environmental Quality adopted under that
subchapter take effect.
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 September 1, 2009.