Posted by: micotexas | March 8, 2010

Ranchland Oaks HOA Files Suit to Overturn TCEQ Approval of Water Permit

The following was filed with the District Court in Travis County, Austin, TX today:

(Please excuse any format errors resulting from converting this document from a Pdf file)

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Ranchland Oaks Homeowners’  Association,  Plaintiff,    v.  Texas Commission on Environmental Quality, Defendant.

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IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS,

PLAINTIFF’s ORIGINAL PETITION

COMES NOW Ranchland Oaks Homeowners’ Association (“Ranchland Oaks”) and files this, its original petition, seeking judicial review of actions of Defendant, the Texas Commission on Environmental Quality (“TCEQ”) and, in support thereof, would respectfully show the following.

I.  DISCOVERY

This case is an appeal of an action of an administrative agency that occurred outside the contested case process of Chapter 2001, TEX. GOV’T CODE.  Caselaw is that, in such cases, appeal is by substantial evidence de novo review.1 Furthermore, caselaw is unresolved as to what is the administrative record, if there is an administrative record, in such cases.2   The case, therefore, should be controlled by a Level 3 order, and Plaintiff may need to conduct discovery pursuant to the Texas Rules of Civil Procedure.

1       Gilder v. Meno, 926 S.W.2d 357 (Tex. App. — Austin 1996, writ den.)

II.  NATURE OF THE CASE

Defendant Texas Commission on Environmental Quality (“TCEQ”) has adopted regulations that prohibit the commencement of construction of any regulated activity over the Edwards Aquifer without the approval of the agency’s Executive Director for the activity’s Edwards Aquifer protection plan.

30 TAC § 213.4(a)(1).  The term, “regulated activity,” extends to any construction-related activity on the recharge zone of the Edwards Aquifer, which activity has the potential to pollute the aquifer or interconnected surface streams.  30 TAC § 213.3(28).    Construction of roads and clearing or excavation that alters or disturbs the topographic, geologic, or existing recharge characteristics of a site are specifically identified as regulated activities.  Id.  (There are certain exempt activities, but those are not relevant, here.)  The term, “Edwards Aquifer protection plan” encompasses a “water pollution abatement plan.”  30 TAC § 213.3(9).

H.L. Zumwalt Construction, Inc. (“Zumwalt”), proposes to construct and operate a rock quarry and an associated rock crushing plant on FM 1283 in northwest Medina County.  Zumwalt has designated this project the “FM 1283 Ranch Quarry.”  This project is on and in the recharge zone of the Edwards Aquifer.  For this activity, Zumwalt must receive from TCEQ’s Executive Director approval of its Edwards Aquifer protection plan, i.e., of its water pollution abatement plan.        The details of such a plan are specified at 30 TAC § 213.5(b).  Zumwalt submitted in November 2009 and supplemented in January 2010 a document it denoted as a water pollution abatement plan.

The controlling Austin Court of Appeals case law appears to be that there is no administrative record, absent an adjudicatory hearing. Texas Department of Insurance v. State Farm Lloyds, 260 S.W.3d  233, 245 (Tex. App. – Austin 2008, no writ hist.).

The TCEQ Executive Director approved Zumwalt’s document on February 4, 2010, and it is that approval this suit challenges. TCEQ’s regulations provide an opportunity for persons aggrieved by the Executive Director’s approval of Edwards Aquifer protection plans to seek reconsiderations of such approvals.  30 TAC § 213.1(3).  Ranchland Oaks timely did that.

III.  JURISDICTION AND VENUE

Jurisdiction of this action lies in this Court pursuant to §§5.351, TEX. WATER CODE.  Venue is proper in this court under §5.354, TEX. WATER CODE.

IV.  PARTIES

Plaintiff Ranchland Oaks Homeowners’ Association is a membership organization of property owners in a subdivision that adjoins the Zumwalt site on its west side. Among the objectives of the Association is the preservation of the qualities of the natural environment that make the properties of its members desirable.  The western drainage from the  Zumwalt site is onto the properties of some of Ranchland Oak’s members.  Ranchland Oaks members are dependent on the Trinity Aquifer for water for their domestic uses, and it lies immediately beneath the Edwards Aquifer at this location.  Defendant Texas Commission on Environmental Quality is an agency of this State responsible for, inter alia, implementation and administration of certain laws of Texas, including Chapter 26 of the Water Code.  Pursuant to this authority, Defendant TCEQ promulgated the “Edwards Rules,” i.e., Ch. 213 of 30 TAC, that require the water pollution abatement plan for which approval (by the TCEQ’s Executive Director) is an issue, here.  Defendant TCEQ can be served with citation by serving its Executive Director, Mr. Mark Vickery, at the TCEQ headquarters office at 12100 Park 35 Circle,  Austin, Texas 78753.

V.  THE FACTS, BRIEFLY

The proposed Zumwalt project is a limestone quarry that will have a project area of approximately 30 acres within a 113 acre property.  Quarrying will occur in phases, with the first 10-acre phase being located in the southern and lowest (roughly, 1140-1160 feet above mean sea level (amsl)) portion of the 30 acres.  In the course of construction of the quarry pit, existing roads (some paved, some not) will be destroyed and replacement roads will be constructed within the quarry pit.  A 10,000 square-foot fueling and minor vehicle repair pad will be constructed, first, outside the quarry pit and, later, as the quarrying operation consumes the 30-acre project area, inside the pit.  A scale and scale house is proposed near the southern entrance to the 10-acre initial-phase pit. Quarrying activities will occur, per the revised water pollution abatement plan, to an elevation of roughly 995 feet amsl.  There is proposed to be a rock crusher and various crushed rock stock piles located on the site and in the quarry pit; there is a 300 gallon diesel storage tank associated with the rock crusher.

Zumwalt hired a consultant to survey the 30-acre site, and that consultant reported a sizeable (i.e., 6-foot-long) enlarged surface fracture and a zone of solution cavities on the site, in addition to other karstic features.  The survey was limited to visual surface observations and publicly available off-site data.

Generally, Zumwalt’s storm water management plan is to divert off-site storm water runoff around the construction site with earthen berms.      Storm water falling in the quarry pit, so, on the equipment, haul roads, rock stock piles, etc., and any other water encountered in the course of construction of the pit will be collected in the pit and discharged, if necessary, to one or more unspecified natural drainage areas under the terms of another general permit, TXR050000, which permit (see, Part II(B)(3)) specifically does not authorize discharges from construction activities.

VI.  ERROR OF DEFENDANT

Defendant erred by approving on February 4, 2010, the water pollution abatement plan for the Zumwalt project.  This approval was invalid, unreasonable, arbitrary and capricious, because it occurred in violation of the Defendant’s regulations that control such approvals.  For example:

1)     Defendant, at Special Condition III, waived the regulatory requirement for “permanent” Best Management Practices (“BMPs”) at the site during the 25+ years of the operation of the quarry.  Though this waiver authority is almost uncontrolled by regulation, there is one safeguard that, per 30 TAC § 213.5(b)(4)(D)(ii)(IV), may not be waived.  30 TAC § 213.5(b)(4)(D)(ii)(IV) does not allow waiver of the requirement that, at a minimum, permanent BMPs must “insure that 80% of the incremental increase in the annual mass loading of total suspended solids from the site caused by the regulated activity is removed.”  30 TAC § 213.5(b)(4)(D)(ii)(I).  For the single most significant BMP for storm water control, the quarry pit, itself, it has not been shown – or, even, alleged – that this
sediment-removal standard will be met.

2)      No demonstration was required of or made by Zumwalt that even the meager permanent BMP requisites of 30 TAC § 213.5(b)(4)(D)(ii)(IV) were met.  Furthermore, the Defendant’s approval includes no requirement for deed recordation, one of the requirements of 30 TAC § 213.5(b)(4)(D)(ii)(IV).

3)      The Defendant’s rules provide that the BMPs must prevent pollutants (e.g., approval of the principle BMP (i.e., the quarry pit itself), without demonstration particulates from haul roads, from the rock crusher, from blasting and from crushed stone stockpiles) from entering surface streams, sensitive features or the aquifer.  30 TAC § 213.5(b)(4)(B)(iii).  The water pollution abatement plan (WPAP) approved by the Defendant, however, provides absolutely no off-site protection for streams or recharge features from air-borne pollution from the project.  Over time, even small daily or hourly concentrations of air-borne particles will cause settlement of particles into features and streams, with resultant increased loading and, possibly, clogging/closure.  Additionally, the Defendant’s this standard would be met, was error.

4)      No showing was required of or made by Zumwalt as to the character or schedule for interim or permanent site stabilization practices.  See, 30 TAC §213.5(B)(4)(D)(i)(1).

5)       As noted earlier, the water pollution abatement plan approved provides for discharges of storm water from the pit according to another general permit, TXR050000, but that permit does not allow discharges from construction activities.

6)       The approval was given without requiring hydrologic or hydraulic analyses of the berms that divert off-site storm waters, so there is no evidence to support a finding that the discharge channels are adequate or that erosion problems will not ensue.

7)      There was no showing required of or made by Zumwalt that discharges of storm water with total suspended solids concentrations of as high as 45 mg/L, which is theconcentration the approval allows, will safeguard Hill Country creeks operating under base flow conditions, when the concentrations are on the order of 5 mg/L.

8)      The “Spill Response Action” approved by the Defendant is so general as to be unenforceable and of no practical guidance to the operator.

VII.  PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Court:

1.      Reverse the Defendant TCEQ’s approval of the water pollution abatement plan for H.L. Zumwalt Construction Co., Inc., for its FM 1283 Ranch Quarry and

2.      Grant such further relief at law or in equity as to which Ranchland Oaks may show itself entitled.

Respectfully submitted,

/s/

Lowerre, Frederick, Perales,
Allmon & Rockwell
707 Rio Grande, Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 facsimile
DOF@LF-Lawfirm.com

By, David Frederick
SBT No. 07412300

COUNSEL FOR RANCHLAND
OAKS HOMEOWNERS’
ASSOCIATION

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Responses

  1. You give me an idea with what i am working on right now. Thanks for sharing this informative article.


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