The Triple PG Sand Mine in Porter has agreed to the terms of a restraining order. The order will force the mine owner to build dikes that can withstand the force of future rains and that can prevent future discharges of process wastewater into the City of Houston’s drinking water.
Certification by Licensed Professional Engineer Required
Furthermore, according to the agreement, a licensed, professional engineer must certify that the dikes can withstand the force of future rains. No more building dikes out of sand. Given where the mine is located – at the confluence of two floodways – it’s not clear whether future breaches are 100% avoidable. It’s also unclear whether a professional engineer would put his or her reputation on the line with such a promise given this particular mine’s history and location.
Southern Perimeter Lacks Effective Dikes
The entire southern perimeter of the mine is flush with the land south of the mine. There appear to be no dikes. So this could be a massive construction job. Dozens of homes south of the mine flooded during Imelda. Debris and damage patterns suggest that floodwaters entered their homes directly from the mine, not from White Oak or Caney Creeks.
Background of Case
In May and again in September, the Texas Commission on Environmental Quality (TCEQ) reported that multiple breaches in dikes at the Triple PG Sand Mine on Caney Creek led to the escape of process water and sediment into the City of Houston’s drinking water supply. The TCEQ had previously cited the mine for similar environmental violations in 2015.
As a result of leaving the breaches open for prolonged periods, the Texas Attorney General sued the mine earlier this month. If the suit is successful, Triple PG could be liable for penalties exceeding $1 million.
Goals of Attorney General
Two weeks ago, I described what the original petition involved. The AG wants to force the mine to stop alleged pollution of the drinking water of the nation’s fourth largest city.
Both the injunction and restraining orders seek the same things: to get the mine to fix breaches so it stops allegedly emitting process water. The initial focus: sealing the mine off so that process water stops intermingling with drinking water. In the long term, however, the state wants to force the mine to build dikes sufficient to withstand the force of future floodwaters.
Requirements of Restraining Order
The agreed temporary restraining order requires the defendant to:
- Not engage in any operations at its dredge facility that discharge process wastewater from the defendant’s property
- Not PRODUCE any process wastewater that must be discharged
- Immediately begin repairing damaged or breached berms
- Hydraulically isolate any industrial waste within the mine
- Halt the influx of water from creeks
- Halt the outflow of waste from pits
- Construct the repairs to prevent discharges from pits during future rain events
- Cease and prevent all discharges of any industrial waste and or process wastewater from the mine into waters of the state
- Within 14 days, hire a professional engineer to assess whether the berms can permanently prevent future discharges
- Not destroy records
- Certify all efforts at compliance, also within 14 days
The amended restraining order reset the date for the hearing on a temporary injunction from October 24 to 28th. The last order again resets the hearing date to November 12th.
So why the restraining orders when the original suit asked for an injunction? Generally, restraining orders are sought as a form of immediate relief while a plaintiff pursues a more permanent injunction, although injunctions can also be temporary.
Full Text of Legal Filings to Date
Below are links to the full text of documents filed to date in the case. I obtained them from the Travis County District Clerk in Austin.
- Original Petition and Application for Injunctive Relief (10/11/19)
- Affidavit of Christian Eubanks, a TCEQ employee (10/11/2019)
- Agreed Temporary Restraining Order (10/14/2019)
- Amended Agreed Temporary Restraining Order (10/16/2019)
- Agreed Order Extending Temporary Restraining Order (10/25/2019)
Explanation of “Agreed Order”
Notice the word “agreed” in many of the document titles above. An Agreed Order refers to a written agreement submitted by both parties to a case resolving issues between them.
After rendering decisions, courts will often command counsel for both parties to see if they can come up with wording of an order satisfactory to both. If they can, it becomes an “agreed order,” which the court will then enter. (If not, the judge will formulate his/her own order.
Turning the Tide on the East Fork?
If this sticks, it could change the way Triple PG does business forever. It could also improve life on the East Fork of the San Jacinto for residents who have complained about sediment buildups, flooding, polluted water, loss of riparian vegetation, destruction of wetlands, fish kills, and more.
Posted by Bob Rehak on 10/31/2019
793 Days after Hurricane Harvey and 42 since Imelda