About 70 people attended today’s hearing. We appreciate everyone who made the drive to Austin today to support the fight for our health and natural resources!
Since Vulcan refused to provide full core sample data during discovery (presenting only a single self-selected sample), residents living adjacent to the proposed site ordered a rock core sample to be taken on their property—just 30 feet from one of Vulcan’s core sample drilling sites. The sample was tested by a certified lab (Wiss, Janney, Elstner Associates) and the results became available last Wednesday. At the start of the hearing, State Office of Administrative Hearings (SOAH) Administrative Law Judge Rebecca Smith granted our motion and admitted our core sample data. Among other things, our data shows crystalline silica content five times as high as the single (cherry-picked?) data sample provided by Vulcan.
Vulcan witness Gary Nicholls claimed that certain pollution controls are impractical and unreasonable because Vulcan’s rock crusher is portable and can/will be moved. (This was in direct contradiction to what Vulcan implied, if not stated, at the March 6 SOAH preliminary hearing: that they would likely not be moving the crusher at all.)
Vulcan witness David Knollhoff admitted that the air quality monitoring sensors used to model the estimated pollution (Selma and Heritage Middle School) were located 12 miles and 28 miles upwind from the proposed quarry location. None of the modeling data in the permit included any air quality data from Comal County. (This is important because Comal County hosts a disproportionately high amount of aggregate and concrete production activity. Over 25,000 acres—seven percent of all Comal County land is owned by aggregate companies. Eleven open-pit quarries/mines, 9 asphalt plants, 7 concrete batch plants, and two cement plants are located in or very near Comal County.)
Vulcan witness Dr. Lori Eversull stated that Vulcan drilled core samples at 41 different locations on the property and tested material from all 41 of these locations to determine the economic viability of the quarry. But when it came to air pollution modeling, they decided a single sample from three boring locations would be enough. Dr. Eversull stated that they “had a sense” that these three would be adequate to form a “representative” sample and that core samples from most of the 38 other locations had been destroyed. Our attorney made a motion for continuance (delaying the remainder of the hearing) since Dr. Eversull’s testimony relied extensively on materials and documents not presented in discovery. The judge denied the motion.
Tuesday (June 11) Highlights & What’s Next
About 50 people attended Tuesday, including some new attendees who could not be present Monday.
Joel Stanford, of TCEQ’s Air Permits Division, who reviewed and validated the permit as technically correct and administratively complete, stated that fence line air monitors would not be effective in determining the amount of pollution Vulcan emits because the traffic, BBQ smoke, agricultural residue, and “Mongolian” dust would skew the results.
TCEQ toxicologist Jong-Song Lee finally admitted, after several evasions, that health hazards like silicosis are directly related to the amount of crystalline silica emitted by all quarry operations (not just the rock crusher): “Yes, they could cause harm to human health and the environment.” Despite this clear health risk, TCEQ does not consider any air pollution from the quarry activities themselves—mining, blasting, product transfer, truck exhaust, etc.—the permit only covers and restricts pollution from the actual rock crusher.
Parties will now file written closing arguments and replies by early July. The SOAH judge plans to render a decision in this case by September 3, 2019. She could recommend complete denial, approval as is, or additional restrictions and requirements. Stop 3009 Vulcan Quarry and Friends of Dry Comal Creek are confident that upon review of the evidence and facts of the matter, the judge will agree with our conclusion: this permit contains insufficient protections for area residents and our state’s natural resources.
The courtroom hearing on the merits (i.e., trial) portion of the contested case hearing is currently scheduled for June 10-12. We need to pack the courtroom just like we did on March 6 in New Braunfels. Our quality of life, health, and natural resources are on the line. All affected parties should be present at the hearing. Contributors, those not named an affected person, and interested members of general public are encouraged to attend as well.
The contested case hearing on the merits will be a legal proceeding similar to a civil trial in state district court. The hearing will address the disputed issues of fact identified in the TCEQ order concerning this application issued on December 13, 2018. In addition to these issues, the State Office of Administrative Hearings judge may consider additional issues as well.
Arguments and motions during the hearing will be made by our legal team and attorneys for the other parties. Expert witnesses in air modeling, toxicology, and geology will likely be called and examined by both sides. Unless you have been summoned to testify, you will not need to speak or participate. Currently we expect most affected individuals will NOT be called to testify and will not need to speak at all. However, your presence in the courtroom is vital—especially if you are a named affected person.
If you desire to read any of the legal documents and motions that have been filed, visit the SOAH portal here. Click the green Public Case File Search button.