On December 11, 2018, Texas State Representative Terry Wilson introduced HB509. HB509 is a bill to regulate aggregate production operations (APOs). APOs include sand mines.

HB509 Stipulates Consideration of Hydrologic Impact During Permitting

Currently, sand mines in Texas are permitted and inspected by the Texas Commission on Environmental Quality (TCEQ).

HB509 enables the Texas Railroad Commission to work with the TCEQ; adopt, amend and enforce rules pertaining to aggregate production operations; issue and revoke permits; and inspect APOs without notice. It also:

• Creates criminal penalties for non-compliance.
• Requires a hydrology assessment of the operation’s impact on surrounding surface and groundwater – including water availability.
• Enables regulators to consider the cumulative impact of multiple APOs in an area when evaluating new applications.
• Requires the operation to prevent material damage to the hydrologic balance outside the permit area.
• Requires public notice of permit applications
• Provides for public comment on permit applications
• Makes permit approval contingent on past performance
• Requires permitting agencies to publish the public comments
• Allows the agencies to deny permits based on public comments
• Grandfathers operations with existing permits

New Fines and Creation of a Criminal Offense

A person commits an offense if the person “knowingly makes a false statement, representation, or certification, or knowingly fails to make a statement, representation, or certification, in an application, record, report, or other document filed or required to be maintained under this chapter or under an order of decision issued by the commission under this chapter.”

Violators may be punished by fines of up to $10,000 and a year in prison.

Positives of HB509 from Residents’ Perspective

While this bill will not immediately and directly address sand-mine issues on the San Jacinto, I think it could eventually help this area. Things residents will like include:

• Significant penalties for false statements!
• Having more eyes on the problem; TCEQ complains that it doesn’t have enough staff to enforce regulations.
• River-impact assessments, especially the idea of looking at the cumulative impact of all providers in the area! Twenty square miles of sand mines between US59 and I-45 on the West Fork have decimated the environment immediately upstream from the drinking water source for 2 million people.
• Public hearings for permits. Right now, regulators hear one side of the story.
• Making the permit application approval contingent on past performance. This gives sand miners the ultimate incentive to comply with regulations: “Don’t comply and you’re out of business in this state.”

Shortcomings From Residents’ Perspective

Things residents probably won’t like include:

• Grandfathering existing operations; the cumulative impact of sand mining is already a huge problem on the San Jacinto. However, I’m not sure a fair alternative exists, short of buyouts.
• Lack of definitions for what they’re trying to prevent under “hydrologic impact.” That creates flexibility to cover unforeseen consequences, but also leaves a huge “out.” HB571 in the 2011 session, the first bill to regulate sand mining in Texas, also lacked specificity. It said for instance that the mines had to comply with all applicable laws and regulations, but did not specify what they were. It left lots of wiggle room. This could, too.
• No prescription for minimum setbacks from rivers or prevention of mining in floodways.
• Use of the words “designed to” in front of hydrological impacts. That creates a big “out.” Anybody who places a bale of hay in drainage ditch on the mine could say he designed the drainage to prevent erosion, However, the real issue is what happens when the river reroutes itself through mines during a flood.

Lack of Specificity Concerning Hydrologic Impact

My biggest concern is the lack of specificity re: adverse hydrologic impacts. No references exist in the bill to:

• Dangers of river migration
• River capture of sand pits
• Draw down of the water table
• Effects of such drawdowns on surrounding vegetation and farms
• Repeated breaches of dikes
• Increases in rates of sedimentation
• Loss of downstream lake capacity at increasing rate
• Poor water quality
• Loss of river conveyance
• Increases in erosion
• Escape of chlorides from wash pits during floods
• Contamination of groundwater and wells by chlorides
• Pipeline corrosion
• Loss of riparian vegetation
• Downstream flooding
• Eventual need for dredging and other costly remediation.

All in all, though, it’s a good start and can only help curb the excesses of sand mining in the long run.

Read the bill in its entirety. Here is the current text of proposed House Bill  509 for 2019.

About Congressman Terry Wilson

Congressman Wilson represents the area west of Austin. His district includes Burnet, Milam and Williamson Counties and the cities of Round Rock and Marble Falls. His web page in the House of Representatives states that he was born in Odessa, Texas, and that “He is a lifelong conservative Republican, committed husband and father, and a decorated combat veteran. He holds a BS in Business Administration from Texas A&M University and an MS in Strategic Logistics Plans and Management from the Air War University.”

Wilson retired from the Army after serving more than 30 years. Since retiring from the Army, he has leveraged his military experience as an advocate for small businesses.

No Other Bills Filed in House or Senate So Far

Neither Representative Dan Huberty, nor Senator Brandon Creighton, have so far introduced any new legislation affecting sand mining. Wilson’s HB509 appears to be the only bill regulating sand mining filed so far in either the House or Senate as of Christmas Eve, 2018.

As always, these are my opinions on matters of public policy. They are protected by the First Amendment of the United States Constitution and the Anti-SLAPP statute of the Great State of Texas.

Posted by Bob Rehak on 12/24/2018

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