June 5, 2024 – The Triple PG sand mine trial, originally scheduled for 2020, has been rescheduled yet again for March 2025 – a five year delay and counting.
A new schedule shows the Texas Attorney General lawsuit against the Triple PG sand mine in Porter may go to a jury on March 24, 2025. Originally, the case was set for trial on June 22, 2020.
But a corporate shell game by the defendant created a series of delays while the AG tried to figure out who was on first.
Then they took two years off for COVID. Finally the judge scheduled a conference call to jumpstart the case in 2022.
Original Complaint
The Texas Attorney General (AG) sued the Triple PG sand mine in Porter on behalf of the Texas Commission on Environmental Quality in 2019. Two breaches in the mine’s dikes were allowing industrial wastewater to flush into White Oak and Caney Creeks, then into the headwaters of Lake Houston. The lake supplies drinking water for two million people.
But not much has happened since then. And the Triple PG sand mine trial just got postponed. Again. Without explanation.
New Scheduling Order
See the second amended agreed scheduling order in the Triple PG sand mine trial. Five years of delays on a case originally scheduled to go to trial in one year!
The Attorney General’s office did not respond to a request for explanation or comment.
Discovery is now supposed to end on December 20, 2024. And a jury trial will begin “on or after March 24, 2025.” Uh, oh! I don’t like that “or after” part.
While Everyone Delayed…
Along the way, those daredevils at the Triple PG have:
Those bullet points just scratch the surface. I’ve created more than 60 posts that feature the Triple PG mine.
All Charges Denied
Prabakar Guniganti, the cardiologist from Nacogdoches owns the mine through one of his shell companies. The Montgomery County Appraisal District shows that the Guniganti Children’s Trust Fund owns it now. Guniganti has denied all charges by the TCEQ and Attorney General.
Posted by Bob Rehak on 6/5/24
2472 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2024/06/20190927-Helicopter9.27_106.jpg?fit=1100%2C733&ssl=17331100adminadmin2024-06-05 18:22:362024-06-05 18:28:29Triple PG Sand Mine Trial Delays Total 5 Years Now
The controversial new Royal Pines subdivision that flooded a neighbor four times in two months has finally built a stormwater detention basin.
The good news: The basin should capture water flowing from one direction toward the neighbor.
The bad news: The height of the berm around the pond could back up water from the opposite direction onto the neighbor’s property. The concentrated flow could also erode the earth over a natural gas pipeline.
Drainage Now Concentrated Over Pipeline
The pipeline is buried only 36″ deep along the silt fence in the photo below. So any floodwater coming from the west (right) will now be concentrated directly over the pipeline.
Water used to converge from both east and west toward a natural depression in the middle of the new development. But contractors changed the natural grade, confusing the situation.
The drainage impact analysis for Royal Pines below shows that 11.6 acres outlined in purple (labeled as OFF1, for offsite area #1) drains through the larger 49.5 acre area that contains detention Pond 1 shown in the upper left. The plans show a channel running about a quarter of the way down the left border where the silt fence now is, then mysteriously stopping.
When I first saw the plans, I assumed the water in that channel would empty into the pond. But no inlets are installed at that location. At least not yet even though others are installed elsewhere.) See below and above.
Instead, water coming from the west will meet a wall approximately 8 feet high.
The berm forms a dam against any water coming from the west (behind the camera position). That includes floodwaters from White Oak Creek.
So where will the stormwater go? Instead of spreading out, it will be squeezed between the berm and homeowners. That has the potential to cause more flooding.
The analysis claims the development will have no adverse impact either up- or downstream. However, during a five-year rain in January, the level of White Oak Creek came up much higher than a five-year flood.
Another Danger Lurks 36″ Down
But there’s potentially an even bigger danger. A natural gas pipeline is buried next to that silt fence that borders homes along the western edge of the detention pond. Erosion from all that concentrated water rushing over the pipeline could expose it, just as it exposed another pipeline 1.5 miles away.
The man behind the mine, Prabhakar Guniganti, also owns or owned Royal Pines. His name shows up on the general plan, although the Montgomery County tax rolls show a company called TC LB Royal Pines LP now owns the property. It’s not clear if there’s a connection between Guniganti and the Royal Pines Limited Partnership.
Guniganti has a history of corporate shell games. After the Attorney General sued him, ownership of his mine changed hands so many times that the AG had to add five shell companies to the lawsuit. The AG also added Guniganti as an individual and as a director of the companies/partnerships to the lawsuit. Because of all the delays, the case still has not gone to trial.
This does not inspire confidence. Especially among homeowners who may be flooded, but don’t have the State’s deep pockets.
When I and homeowners talked to Montgomery County Engineering last week, the developer did not yet have a construction permit for the pond. The county said only that if any changes become necessary, they will be at the developer’s expense.
Just a reminder. Section 11.086 of the Texas Water Code states, “No person may divert … the natural flow of surface waters in this state, or permit a diversion to continue, in a manner that damages the property of another…”
Posted by Bob Rehak on 2/25/2023
2006 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
Despite multiple reprimands from the TCEQ and a lawsuit by the Texas Attorney General, the Triple PG mine apparently continues to discharge process wastewater onto neighboring properties. Photos taken on 5/4/22 show those neighboring properties under water despite unusually dry weather and record heat recently. Those same properties were not flooded just days after Tropical Storm Imelda, which dumped more than 25 inches of rain on the area.
Let’s first look at the location of the neighboring properties. Triple PG owns most of the property west of the mine with one notable exception – a strip of 20 properties isolated near the mine’s stockpile. See the map from the Montgomery County Appraisal District below.
Dr. Prabhakar R. Guniganti, who owns the mine, didn’t seem to get the message. And pictures taken two days ago suggest he still doesn’t – despite the threat of a million dollar fine.
Compare Before/After Aerial Images
The image below, taken before discharges into this area started, shows the neighboring properties in question. They are the strip of trees between the foreground and background. Note how the land is not flooded, despite the fact that I took this picture just days after Tropical Storm Imelda, which dumped more than 25 inches of rain on this area. Also note the dense forest canopy.
Now, fast forward two years. Aerial pictures below taken on 5/4/22 show the same property – under water – despite only 4 inches of rain in the last month!
The new images also show most of the once-lush vegetation has died. All trees on the neighboring property adjacent to the mine are dead with the exception of one small copse on higher ground. And the water is blackish.
Hmmmm. Let’s see. Not flooded days after 25 inches of rain during Imelda. Flooded after 4 inches in the last month. Once healthy trees now dead. How curious! I wonder how that works. Judging from the healthy trees in the background, I’m guessing the mine’s wastewater may have had something to do with their demise.
Prabhakar R. Guniganti, as Director of Triple P.G. Sand Development, L.L.C.
Prabhakar R. Guniganti, as sole manager of Guniganti Family Property Holdings, L.L.C.
Guniganti Children’s 1999 Trust.
The AG contends that regardless of which legal entity owns the mine, they all lead back to the same man and they all had an obligation to ensure that process wastewater was not discharged into waters of the State.
During the next big rain, at least some of this will flush down White Oak Creek, which joins Caney Creek and the East Fork San Jacinto. Then, it will enter Lake Houston a little more than 2 miles downstream.
Lake Houston supplies drinking water for two million people. I’m not sure what’s in this water. But if it kills trees, it can’t be healthy for humans. It also can’t be healthy for neighboring property values.
Posted by Bob Rehak on 6/7/2021
1743 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2022/06/DJI_0641.jpg?fit=2048%2C1364&ssl=113642048adminadmin2022-06-06 15:59:002022-06-06 16:03:29Triple PG Wastewater Apparently Killing Trees on Neighboring Property
Discovery will soon begin in the Texas Attorney General’s case against the Triple PG sand mine in Porter. The AG is suing the mine on behalf of the Texas Commission on Environmental Quality (TCEQ). TCEQ investigations documented repeated breaches of the mine’s dikes over a period of several years prior to filing the lawsuit. The breaches allegedly resulted in the release of hundreds of millions of gallons of industrial waste into the headwaters of Lake Houston, the source of drinking water for 2 million people.
Brief History of Case
Over the years, I’ve written more than 50 posts featuring the Triple PG sand mine in Porter. The mine first came to my attention on May 18, 2019. I was giving Tony Buzbee, then a candidate for Mayor of Houston, a tour of sediment buildups in the San Jacinto watershed. As we turned a corner on Caney Creek, we came to a giant breach in the dike of the Triple PG mine.
I immediately reported the breach to the Texas Commission on Environmental Quality (TCEQ). TCEQ manages water quality in the State. And Triple PG was directly discharging industrial wastewater into the creek.
On October 11, 2019, the Attorney General of Texas sued the Triple PG mine on behalf of the TCEQ. The charges alleged violations of Chapter 26 of the Texas Water Code and related TCEQ rules pertaining to the discharge of industrial waste and process wastewater.
Mere days after the Texas Attorney General (AG) filed a lawsuit against Triple P.G. Sand Development, the mine’s owner transferred ownership of the mine. Even though the transfer was recorded in October 2019, the attorney general says the papers were dated in the prior January — before the unauthorized discharges that triggered the lawsuit.
This appeared to be an attempt to shield assets from liability. Subsequently, the AG filed an amended petition on June 17, 2020, adding five defendants:
Guniganti Family Property Holdings, L.L.C.
Prabhakar R. Guniganti, individually
Prabhakar R. Guniganti, as Director of Triple P.G. Sand Development, L.L.C.
Prabhakar R. Guniganti, as sole manager of Guniganti Family Property Holdings, L.L.C.
Guniganti Children’s 1999 Trust.
The next week, on June 24, 2020, the defendant’s counsel withdrew from the case.
On July 8, 2020, the judge granted a motion to substitute counsel. Then, everything ground to a halt. During Covid, judges reportedly granted any request for a delay. And nothing happened for almost 2 years!
Susan Jablonski, head of TCEQ’s Enforcement Division, says she’s looking forward to deposing defendants. TCEQ has met with the AG on a monthly basis. Right now, they are preparing subpoenas for four depositions.
But with Guniganti listed in the case as an individual, it could be harder for him to shield assets.
The Attorney General seeks $1.1 million in damages plus $25,000 per day for every day that the dikes remained open. By my estimates the dikes remained open approximately 5 months. That could add up to millions more.
That case also involves sedimentation. Plaintiffs allege that defendants’ business practices caused sediment to be released from mines during Harvey. Further, they allege that that sediment reduced the conveyance of the San Jacinto and the storage capacity of Lake Houston, contributing to the flooding of their homes.
Posted by Bob Rehak on 5/27/22
1732 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/06/20200616-RJR_4335.jpg?fit=1200%2C800&ssl=18001200adminadmin2022-05-27 16:56:212022-05-27 17:07:47Triple PG Sand Mine Case Finally Starting Discovery
Note the dotted lines that snake their way through the top of the development. Those represent the 100- and 500-year floodplains.
Notice how a large part of the development is in “Zone X (Shaded).” That’s the area between the limits of the base flood (100-year or 1% annual chance) and the 0.2-percent-annual-chance (or 500-year) flood. I counted more than 80 homes in that zone. I also see six inside the 100-year zone.
Keep in mind that these flood zones are based on pre-Atlas 14 estimates. FEMA shows this area was last mapped in 2014. When FEMA approves new flood maps in the next few years, those zones will expand to take in more of the subdivision.
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
Below is a quick digest of six flood-related stories affecting the Lake Houston Area.
Dredging is a Slow Go
Mechanical dredgers are slowly working their way through the channel south of Royal Shores. It connects the East and West Forks of the San Jacinto. Without dredging, the dredging equipment itself would not be able to make it through the channel.
However, the pace of the dredging is painfully slow. You can see the progress by comparing the two pictures below. I took them 22 days apart.
At about 200 feet per week with about 2,000 more feet to go, they should reach the East Fork in about another ten weeks.
Several boaters have commented on how the dredges can wait hours for a pontoon to ferry dirt back to the placement site. Their net takeaway: very inefficient. During a July 8 meeting at the Kingwood Community Center, Stephen Costello called this method of dredging “unsustainable.” He’s sooooo right. We will run out of luck long before we run out of places to dredge.
Mechanical dredging (shown in the photos above) is far slower and less efficient than hydraulic. Great Lakes hydraulic dredges removed 500,000 cubic yards of sediment from the mouth bar area in just two months – July and August of 2019. DRC’s mechanical dredges removed another 600,000+ cubic yards in the 19 months between January 2020 and July 2021.
Interestingly, Google Earth shows that when the dredgers reach the East Fork, they will be closer to the Triple PG Sand Mine in Porter than the current placement area south of River Grove Park. The Triple PG mine will also be less than half the distance of a mine that the Army Corps previously pumped spoils to from the mouth bar– the Eagle Sorters Mine on the West Fork.
Hmmmm. Triple PG. A placement area for East Fork spoils? A return to hydraulic dredging? Interesting thoughts.
Seasonal Lowering of Lake Conroe
Seasonal lowering of Lake Conroe has started as planned. SJRA is releasing 75 cubic feet per second, according to their dashboard.
When the lowering started on August 2, a day late, the lake was at 200.87. So releasing 75 CFS has brought the lake down .19 feet, a little more than 2 inches. Barring large rainfalls, this rate should reach the objective of 200 feet by September 1.
The National Hurricane Center shows two areas of concern in the Atlantic as of 2PM, Friday August 6th.
A few hundred miles south of the Cabo Verde Islands, a tropical wave (orange area) and a broad area of low pressure could turn into a tropical depression by late this weekend or early next week. Formation chance through 5 days…medium…60 percent.
Another tropical wave approaching the Lesser Antilles is a lower threat. NHC predicts development, if any, of this system will be slow and occur early next week. Formation chance through 5 days…low…20 percent.
NOAA Issues Mid-Season Hurricane Outlook
Another forecast released two days ago by NOAA says that atmospheric conditions are still conducive for an above-average hurricane season. See their predictions in the right hand column below. These numbers include the five named storms so far this season.
Attorney General Lawsuit Against Triple PG Mine Still Active
Craig Pritzlaff of the TCEQ assures me that despite visible lack of progress in the Attorney General’s lawsuit against the Triple PG mine for illegal discharges, the AG has not dropped the case. “Indeed, very few, if any, cases referred to the AG for civil prosecution are ever dropped,” he says. “Litigation, particularly environmental litigation, is a complicated and lengthy process. That process was further complicated by the COVID-19 pandemic, which halted court dockets across the State throughout 2020 and into 2021.”
Condos 250 Feet from 250,000 CFS
A Chinese developer is building yet more condos even closer to the West Fork in the Kings Harbor neighborhood.
During Harvey, more than 250,000 cubic feet per second came through this area. It flooded homes and businesses more than 10,000 feet from the river.
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2021/08/20210802-DJI_0286.jpg?fit=1200%2C799&ssl=17991200adminadmin2021-08-06 16:46:402021-08-07 19:38:36Digest: Updates on Six Lake Houston Area Flood-Related Stories
Two daredevil sand mining companies, Triple PG Sand Development, LLC and Texas Concrete, have stepped up their efforts to mine sand between pipelines that carry natural gas and highly volatile liquids.
AG Lawsuit Filed in 2019
In October of last year, the Texas Attorney General sued the Triple PG mine in Porter for up to $1 million on behalf of the Texas Commission on Environmental Quality (TCEQ). The original petition in the case cited repeated breaches in the mine’s dikes over a period of several years that let process water and sediment from the mine escape into the headwaters of Lake Houston. Lake Houston supplies drinking water for approximately two million people.
Days after the AG filed the suit, the mine’s owner, Dr. Prabhakar R. Guniganti, a cardiologist from Nacogdoches, tried to shuffle ownership of the mine through a series of trusts controlled by his family. In June of this year, the AG filed an amended petition, naming all the trusts and their officers (both individually and as directors) as additional defendants.
Both the TCEQ and AG’s office have declined to comment on ongoing legal matters relating to the Triple PG operation. However, while flying over the mine on Monday this week, I saw something very disturbing.
Mining Between Pipeline Corridors
Kinder Morgan has an easement for a natural gas pipeline through the mine. You can see the pipeline path on the left in the photo below. Their pipeline was exposed during Harvey by erosion and had to be buried deeper. Luckily, no explosions or fires resulted.
Now, Triple PG and Texas Concrete are mining sand from between the pipelines. This will increase the potential for erosion in future storms. That could expose pipelines and potentially lead to pipeline ruptures, spills, and/or explosions.
To adapt a phrase about pilots from the aviation industry, “There are old miners and bold miners.” Those daredevils at Triple PG sure are Bold. With a capital B. As in Boom.
Posted by Bob Rehak on 12/11/2020
1200 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/12/20201207-Aerial-Dec-2020_552.jpg?fit=1200%2C800&ssl=18001200adminadmin2020-12-11 18:29:482020-12-11 18:35:41Daredevils at Triple PG Mine Continue to Push Safety Envelope
A year after the Texas Commission on Environmental Quality (TCEQ) filed a notice of enforcement against a Plum Grove sand miner named Somaiah Kurre, it appears that Kurre still has not complied with TCEQ regulations to restore his abandoned mine. However, he has found time to take over operations at the troubled Triple PG Sand Mine in Porter. The Texas Attorney General is already suing the Porter mine. This raises two serious public policy issues.
Permits Without Performance
It also calls into question state regulations that allow sand mines to obtain operating permits without forcing them to restore mines to nature or alternative uses when done.
Performance bonds are common in the construction industry.
Texas should adopt a performance-bond policy. This case shows why.
When unscrupulous operators are done mining a site, there’s no reason for them to invest another penny in it.
Texas needs performance bonds and/or a “toxic legacy” law. Companies that abandon unsafe mines should be forbidden to operate anywhere else in the state. They just can’t be trusted.
Troubled History In Plum Grove
Texas Concrete Sand and Gravel, Inc., one of Mr. Kurre’s 16 companies, has a troubled history at its Plum Grove location. Before October 2019, TCEQ investigated it nine times for 17 alleged violations in four years. Twelve involved unauthorized discharges of industrial waste.
Previous alleged violations included failure to:
Prevent unauthorized discharge of industrial waste (7 investigations plus 5 complaints)
Renew registration
Document steps taken to address benchmark exceedances
Comply with record keeping and reporting requirements
Maintain compliance with permitted numeric effluent limitations
Sample water quality at designated outfalls.
Abandoned Without Compliance After Imelda
During Tropical Storm Imelda in September 2019, the mine’s dikes breached in four places. The mine discharged industrial wastewater and sediment into the San Jacinto East Fork. The East Fork empties into Lake Houston, the source of drinking water for 2 million Houstonians.
The company eventually fixed the breaches, but cancelled its Multisector General Permit (MSGP) and Aggregate Production Operation (APO) registration.
A company spokesperson told TCEQ investigators that the company had ceased all operations at the site.
No visible attempt has yet been made to stabilize soil, restore the land that needed it, or convert the site to an alternative use. So the company is still violating terms of its permit.
An excavator, dredge, shed, other abandoned equipment, plus bacteria- and scum-laden ponds remain. See photos below.
“The MSGP contains requirements … to terminate permit coverage after mining activity has ceased. The operator must demonstrate they have accomplished the final stabilization requirements: 1) completion of soil disturbing activities, 2) stabilization to minimize soil erosion, 3) ensuring stormwater runoff does not contribute to a violation of water quality standards, and 4) the site has been revegetated or left in the condition consistent with post-mining land use such as a nature park or lakes.”
“When operators have achieved final stabilization, they must submit a Notice of Termination which has been signed and certified by the responsible signatory authority as described in 30 TAC §305.44,” said the spokesperson.
The TCEQ spokesperson also said that Kurre, who fancies himself a startup impresario, is trying to negotiate payment terms for a $19,036 fine that TCEQ levied against him on April 14, 2020.
The First Amended Petition in the Triple PG lawsuit by the Attorney General shows that Kurre took over operations at the Triple PG mine in April. However, the amended petition did not specify who the new operator was at the time.
Ironically some of the alleged violations that the TCEQ charged Mr. Kurre with in Plum Grove are identical to the charges that the Attorney General lodged against the Triple PG mine in Porter.
The Many Faces of Somaiah Kurre
A search for corporate listings associated with Kurre’s name in the Texas Secretary of State database shows that he controls – wholly or partially – 16 businesses.
Manjari Enterprises LLC
Texas Concrete Enterprise, L.L.C.
Asam LLC
Texas Concrete Enterprise – II, LLC
Shree Radha, LLC
Texas Concrete Enterprise – IV, L.L.C.
Texas Concrete Sand and Gravel, Inc.
Plum Grove Material, Inc.
Rohini Enterprises Inc.
JSR Materials, Inc.
Bright Star Stores, Inc.
US Readymix Inc.
US Fracsand, LLC
Rama Krishna 2, LLC
Texas Frac Sand Materials, Inc.
Texas Concrete Sand and Gravel Enterprise, Inc.
Along the East Fork, Kurre owns or operates mines in San Jacinto, Liberty, Montgomery and Harris Counties. That possibly qualifies him as the largest operator on the East Fork.
Toxic Legacy?
According to the TCEQ, the color of that blue-green pool on the right in the photo above indicates that it is likely filled with cyanobacteria. Cyanobacteria can produce cyanotoxins.And the CDC says that cyanotoxins are “among the most powerful natural poisons known. They can make people, their pets, and other animals sick. Unfortunately, there are no remedies to counteract the effects.”
Sites like this can unnaturally accelerate the buildup of sediment dams in rivers. Not only do they expose sand, they expose it in the floodways of rivers and streams. After Imelda, a huge sand bar set up at the mouth of the San Jacinto East Fork . It contributed to flooding of nearby residents. The public will have to pay to remove it.
Posted by Bob Rehak on 10/29/2020
1157 Days after Hurricane Harvey and 405 since Imelda
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/10/20201025-DJI_0966.jpg?fit=1200%2C900&ssl=19001200adminadmin2020-10-29 22:04:442020-10-30 12:52:27Sand Miner Takes Over Troubled Porter Mine While Still Violating TCEQ Regs at Plum Grove Mine
Last year, the flood during Tropical Storm Imelda washed out the sand supporting a natural gas pipeline running across an easement through the Triple PG Sand Mine in Porter. Luckily, Kinder Morgan (KM) shut the line down before anyone was hurt. KM then drilled 75 feet under the mine and spliced in a new section. But now Triple PG is mining over the new section, once again eroding the the public’s margin of safety.
Of course, it’s possible that the miners won’t get down to 75 feet. But TACA and some West Fork sand mines say they routinely mine 100 feet down.
Eroding Margin of Safety
Just as bad, they’re mining toward five pipelines carrying highly volatile liquids (HVL), potentially exposing them in the next flood, just like they were on the West Fork at the LMI River Road Mine.
Shortly before Harvey, the sand mine started mining next to the road cutting diagonally from top left to bottom right. Then, Harvey flowed through the mine, creating much of the erosion you see here.
Two years later, Imelda cut through the mine again, extending the erosion headward to the point where it could threaten the HVL pipelines in the utility corridor near the top of the frame above during the next flood.
Triple PG Already Operating Under Injunction
The sand mine sits at the confluence of two floodways and floods repeatedly.
A Travis County Court set a trial date for 6/22/2020, but the trail has been delayed by COVID. Shortly after the Attorney General filed his suit, the owner of the mine, a cardiologist from Nacogdoches, tried to transfer ownership within his family’s companies and trusts.
2020 will certainly go down in history as the year of living dangerously. A miner trying to push his luck is just one more thing we shouldn’t have to worry about…especially when he’s sitting on top of a huge stockpile of sand that he has barely touched in months.
No one has died yet. Hopefully they won’t. But if they do, it won’t take long for a lawyer to argue negligence and triple damages for the Triple PG owners. Of course, they will then likely declare bankruptcy and tuck tail back to Nacogdoches.
Posted by Bob Rehak on 9/30/2020
1128 Days since Hurricane Harvey and 377 since Imelda
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/09/20200911-RJR_1346.jpg?fit=1200%2C800&ssl=18001200adminadmin2020-09-30 18:38:582020-09-30 18:57:16Sand Mine Continues to Push Its Luck by Mining Over and Between Pipelines
On February 20th of this year, approximately 1,000 plaintiffs filed a 118-page lawsuit against 55 sand mining companies in the San Jacinto River Basin. Plaintiffs allege that the miners harmed them by decreasing the capacity and depth of Lake Houston and its tributaries by wrongfully discharging and negligently allowing the release of materials into waterways. That reduction of capacity, they say, contributed to flooding their homes and businesses.
Background
To support their claims (¶613), plaintiffs cite violations of Texas Commission on Environmental Quality (TCEQ) regulations and the U.S. Clean Water Act. They claim:
Excessive, unauthorized discharge of silt into waterways
Failure to:
Obtain stormwater discharge permits
Prevent unauthorized discharges
Minimize generation of dust and off-site tracking
Past and Present Activities Cited
Some defendants, they say, operated above permit limits and others operated without any permits at all (¶614).
Plaintiffs say (¶615) that defendants have operated immediately adjacent to various waterways and in the flood plain, clearcutting all vegetation, and digging pits within feet of the riverbanks. Thus, there are no real barriers between mines and the rivers, they claim. Further, they allege that defendants have no plans in place for protection and preservation of their pits and loose sand during flood events, which occur frequently.
Then Came Harvey
Hurricane Harvey, they say, inundated mines and “thousands of acres of sand washed downstream, clogging the rivers and lakes, resulting in flood waters moving outside the banks and outside the flood plain, causing hundreds of millions of dollars in damages.”
Alleged Violations of Water Code
The defendants had a duty to implement procedures to reduce the discharge of sediment into waterways, but did not, according to the plaintiffs. Thus, the proximate cause of plaintiffs’ injuries involved negligence and negligence per se. Defendants allegedly breached their duties under sections 11.086, 26.039, and 26.121 of the Texas Water Code, thus causing flooding and damage to plaintiffs’ property.
To prove negligence, personal injury plaintiffs must show that the defendants’ conduct fell below the applicable standard of care and that their actions were the actual and proximate cause of harm.
In cases of negligence per se, defendants’ actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. That’s why lawyers cite the Texas Water Code, plus TCEQ and EPA regulations.
11.086 of the Texas Water Code provides that no person impound the natural flow of surface waters, or permit impounding to continue, in a manner that damages property of another by the overflow of the water diverted or impounded.
26.039 specifies that mine operators must notify the TCEQ of accidental discharges or spills that cause or may cause pollution as soon as possible.
26.121 prohibits discharge of pollutants. Both the EPA and TCEQ consider sediment a pollutant.
Specific Omissions
Specific omissions, say the plaintiffs, include failing to:
Locate sand mines outside of floodways
Increase the width of dikes
Decrease the slope of dikes
Control erosion with vegetation
Replant areas not actively being mined
Protect stockpiles from flooding
Mine only above the deepest part of the river
Nuisance Claim
The plaintiffs also allege nuisance. Under Texas law, nuisance refers to a type of legal injustice involving interference with the use and enjoyment of property. Specifically, plaintiffs say that the defendants’ negligent conduct caused paintiffs’ flooding, thus depriving them of the use of their homes.
Complaint against Forestar by Barrington Residents
On page 108, a subset of plaintiffs (those who live in the Barrington), lodge a complaint against Forestar (USA) Real Estate Group Inc. They allege that Forestar developed, marketed and sold homes in the subdivision without any standards for determining the elevation of a house relative to flood risk.
“Despite having actual knowledge of the possibility of flooding in the Barrington Subdivision, Forestar did not advise homebuyers to purchase flood insurance,” says the complaint (¶640). “Nor did Forestar advise the residents of the Barrington Subdivision of its location on a floodplain, or that their elevations were changed due to lots being filled with dirt” when residents purchased homes.
Nevertheless, the complaint continues (¶643), homes were built at an “unreasonably low” elevation, given their location near the West Fork San Jacinto. “Forestar knew, or should have known, that houses needed to be built at an elevation adequate to prevent and/or reduce the likelihood of flooding.”
Damages Alleged
Plaintiffs allege damages that include:
Cost of repairs to real property
Cost of replacing personal property
Lost of use of real and personal property
Diminution of market value
Loss of income, business income, profits and business equipment
Loss of good will and reputation
Consequential costs, such as loss of time from work and alternate living expenses
Mental anguish
Pre- and post-judgement interest
Court costs
Conscious Indifference and Gross Negligence
¶658 asserts that the conduct of all defendants (sand mines and Forestar) qualifies as gross negligence under Texas law. The plaintiffs say that the defendants acts of omission involved an extreme degree of risk, considering the probability and magnitude of harm to others. Plus, “Defendants had actual subjective awareness of the risk involved in the above described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of plaintiffs and others.”
Where Case Stands
129th District Court Judge Michael Gomez signed a docket control order on 2/28/2020 that calls for:
All parties in the suit to be added and served with notice by 8/19/2020
Close of pleadings and start of mediation on 12/16/2020
End of discovery on 1/15/2021
All motions and pleas heard by 1/15/2021
Trial, if necessary, on 2/15/2021
To date, there have been several motions to transfer venue, dismiss the case, and change the judge.
Only Triple PG Sand Development, LLC has filed an answer to the plaintiffs’ claims; the company filed a general denial.
In a separate case, the Attorney General of Texas is suing Triple PG for failing to prevent and repair breaches in dikes that resulted in repeated unauthorized discharges of process wastewater and sediment into Caney Creek. Caney Creek joins the East Fork San Jacinto just downstream from Triple PG. Triple PG currently operates under an injunction that bars it from dredging.
Editorial Opinion
If successful, this case may force sand mines to operate more responsibly, now and in the future. For instance, it might force them to move farther back from rivers and out of floodways. Having taken thousands of photos of leaking sand mines from the air since Harvey, in my opinion, that might benefit everyone, not just the plaintiffs.
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/12/20191203-RJR_5020.jpg?fit=1200%2C800&ssl=18001200adminadmin2020-08-02 08:55:112020-08-02 09:24:31Approximately 1,000 Plaintiffs File Suit Against Sand Mines in Harvey Flooding