The Texas Commission on Environmental Quality (TCEQ) announced today that the Texas Attorney General has filed a petition and application for injunctive relief against the Triple PG Sand Development, L.L.C. of Kingwood. The charges allege violations of Chapter 26 of the Texas Water Code and related TCEQ rules pertaining to the discharge of industrial waste and process wastewater.
Note that the latest TCEQ investigation only covers breaches that investigators could reach safely from the ground. However, from the air, I observed many more breaches.
Maximum Possible Penalties
If past performance is any indication of the future, the mine is likely to receive a slap on the wrist. Fines against sand mines from the TCEQ have averaged around $800. However, this is more serious. The attorney general is involved. And stiffer penalties are now available thanks to a new law sponsored by State Representative Dan Huberty in the last legislation session.
If a court levies maximum penalties against this mine, the owners could be liable for $1.1 million plus $25,000 per day for each day breaches in the mine’s dikes remain open. That could easily exceed another half million dollars.
In addition, Ramiro Garcia, head of enforcement for the TCEQ, said the commission disengaged from settlement talks with Triple PG regarding May breaches. Those breaches also took weeks to patch. If lumped in with this, the court could assess yet another half million dollars.
Claim Patches in May Breaches Made with Clay
According to the results of the May investigation, investigators believe the mine patched its breaches with clay. But photos of the failed dikes indicate they were made from sand.
About Chapter 26 of Water Code
Chapter 26 covers water quality control and industrial waste water. It defines “Industrial waste” to mean “…waterborne liquid, gaseous, or solid substances that result from any process of industry, manufacturing, trade, or business.” Its definition of “pollutant” includes “dredged spoils.”
“Pollution” also means “the alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.”
The mine is in the confluence of two floodways: White Oak Creek and Caney Creek. Both are tributaries to Lake Houston, the source of drinking water for millions of people. The purpose of Chapter 26: “to maintain the quality of water in the state consistent with the public health and enjoyment…”
Although the Code permits some discharges. However, “Discharges covered by the general permit will not include a discharge of pollutants that will cause significant adverse effects to water quality.”
Chapter 26 stretches more than 200 pages and 58,000 words. So I won’t attempt to summarize it here, except to say that it also includes the disposal of chlorides. One former executive for the City of Houston’s public works department told me that he personally witnessed many sand mines intentionally breaching dikes under the cover of floods to eliminate chloride buildups in their wash water.
About TCEQ Rules Pertaining to Industrial Waste
It is not immediately clear which TCEQ rules pertaining to the discharge of industrial waste and process wastewater are part of the charges. The TCEQ also enforces water quality rules for rivers and lakes.
“Companies that pollute Texas waterways will be held accountable,” says TCEQ Executive Director Toby Baker. “Every business has a responsibility to respect laws that protect the environment and public health, and I applaud the attorney general for acting swiftly on my request to hold Triple P.G. Sand Development fully responsible.”
The State of Texas requests that the court grant the following relief as allowed by law:
- A permanent injunction
- Civil penalties and reasonable attorney fees
- Court costs
- Investigative costs.
Repeated Dike Failures
The dikes of the Triple PG Sand Mine do not appear to comply with TCEQ rules for dike construction. They are built from sand and have failed repeatedly in multiple locations. However, the TCEQ rules clearly state, that structural integrity is the number one concern. “Construction must be based upon sound engineering principles. Structural integrity must withstand any waters which the levee or other improvement is intended to restrain or carry, considering all topographic features, including existing levees.”
The Attorney General’s charges do not mention dike construction. Reading the requirements, however, it will be interesting to see which professional engineer signed off on the plans. The requirements state:
“§301.36. Plans To Bear Seal of Engineer.“
“All preliminary plans and other plans which are submitted with an application for approval of a levee or other improvement shall be prepared by or under the direction of a registered professional engineer and signed by the registered professional engineer whose seal shall appear upon or be affixed thereto.”
Stay tuned. More investigation to follow.
Posted by Bob Rehak on 10/11/2019, with thanks to Dan Huberty, Charlie Fahrmeier and Josh Alberson
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All thoughts in this post represent my opinions on matters of public safety and policy. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.