Preserve our Hill Country Environment (PHCE) dba Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry filed a petition for review with the Texas Supreme Court (TSC). We asked that the TSC review the Third Court of Appeals decision to reverse the trial court’s judgment remanding Vulcan Construction Materials air permit application back to the Texas Commission on Environmental Quality (TCEQ).

The court chose to ignore and dispose of our petition. We asked and were granted an Extension of Time to consider submitting a Motion for Rehearing. Our deadline for filing was November 13, 2023. The PHCE board of directors (BOD) voted unanimously to not pursue a “Motion for Rehearing” at the Texas Supreme Court.

After speaking with our attorneys, we felt it would be more prudent and beneficial to our cause to pursue different avenues. The time, money, and resources that PHCE and all of our affected parties, volunteers, supporters, and donors have invested should be spent tackling water issues, the WPAP, and perhaps following through at the federal level.

The most likely next step for Vulcan is to obtain a Water Pollution Abatement Plan (WPAP). Of the utmost concern, White Ranch sits entirely atop the Edwards Aquifer Recharge Zone (EARZ). Fortunately, Vulcan must prepare and apply for a WPAP under the TCEQ’s Edwards Aquifer Protection Plan (EAPP).

The EAPP outlines the best management practices that will be implemented and maintained to reduce the amount of contaminants reaching the Edwards Aquifer. The WPAP has numerous components and requirements that must be satisfied before TCEQ will deem the application administratively complete. Once complete, the TCEQ will start the technical review process.

This process kicks off notification to affected cities, counties, and groundwater conservation districts, and the 30-day public comment period begins. The process repeats itself . . .

We are now in a fight for water!

An alliance of citizens and community groups has requested a rehearing by the full Third Court of Appeals, filing motions Monday for rehearing en banc. This follows a September 29 decision in favor of TCEQ and Vulcan Materials by a smaller, three-judge panel of the court. That decision reversed the district court ruling to strip the air permit from Vulcan for its proposed 1500-acre quarry between New Braunfels and Bulverde, effectively restoring the TCEQ air quality permit to Alabama-based Vulcan Materials.

Vulcan’s proposed open-pit limestone mining operation in the Texas Hill Country would stretch across nearly three miles of the environmentally sensitive Edwards Aquifer Recharge Zone (primary water supply for over two million people, including the cities of San Antonio and New Braunfels). Neighbors are concerned about air pollution, water supply and quality, truck traffic, destruction of caves, and decreased property values that could result from the location of this heavy industrial facility in a residential area populated by over 15,000 people.

Details of Rehearing Request

The September 29 opinion was authored by an unelected, retired judge: J. Woodfin Jones, sitting “by assignment.” Jones is not one of the current six elected judges on the Texas Third Court of Appeals. In motions for a hearing by the full, elected court, the alliance, led by Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, and Preserve Our Hill Country Environment, asserts the following:

• The standard of review applied by the panel is dramatically out of step with other decisions made by Court.
• The exemption TCEQ gave Vulcan from health and safety analysis was based on unreasonable application of extra-regulatory TCEQ policies.
• Emissions from additional on-site sources (e.g., quarry, blasting, stockpiles, roadways, product transport), plus other emission sources within 10 miles, should have been taken into account, but were not.
• The wholesale and unquestioned deference to TCEQ and exercise of unfettered and unlimited discretion by TCEQ in the air permitting scheme is a denial of due process.

Secrets, Secrets

Regarding the “trade secret” claim used by Vulcan to hide critical sampling data from citizens and the state of Texas, one motion for rehearing states, “Simply put, Vulcan, TCEQ, and the ALJ [SOAH administrative law judge] denied Appellees access to this data and the Court’s opinion simply brushes it aside with agency deference as the broom….The proceedings resulted in a ‘trust us we saw the data and you cannot.’ That is the pinnacle of a denial of due process and an abuse of discretion.” Furthermore, “When one peels back the layers of the exemptions, exceptions, and exclusions in this permitting case, all that is left is a hollow process that does not account for actual emissions, impacts, or hazards to human health or physical property.”

In response to the unfavorable panel opinion in September, David Drewa, director of communications for Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment, stated, “The panel showed no regard for relevant legal issues raised by Texans living and working in the area, and essentially concluded: Vulcan’s claims seem fine, and we trust them; no need to verify—or even see—the underlying data,” Drewa said.

Upcoming Timeline

Groups seeking to protect their families and the natural resources of the Texas Hill Country expect a decision on their rehearing requests within the next several weeks. Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

In a disappointing decision on Thursday, a three-judge panel of the Third Court of Appeals reversed the district court ruling to strip the air permit from Vulcan Materials for its proposed 1500-acre quarry between New Braunfels and Bulverde. The appellate decision effectively restores the TCEQ air quality permit to Alabama-based Vulcan Materials, sidestepping contamination issues raised since 2017 by an alliance of Comal County citizens, concerned community groups, and organizations such as Comal ISD and Greater Edwards Aquifer Alliance.

In November 2019, TCEQ commissioners granted an air permit to Alabama-based Vulcan Materials for the portable rock crusher in its planned quarry. Left with no other options, the alliance sued TCEQ to cancel the permit. In March 2021, trial court judge Maya Guerra Gamble ruled overwhelmingly in favor of Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry, reversing and vacating TCEQ’s approval of the Vulcan air permit.

Vulcan’s proposed open-pit limestone mining operation in the Texas Hill Country would stretch across nearly three miles of the environmentally sensitive Edwards Aquifer Recharge Zone (primary water supply for over two million people, including the cities of San Antonio and New Braunfels). Neighbors are concerned about air pollution, water supply and quality, truck traffic, destruction of caves, and decreased property values that could result from the location of this heavy industrial facility in a residential area populated by over 15,000 people.

Opinion Written by Retired Judge

The Thursday opinion was authored by an unelected, retired judge: J. Woodfin Jones, sitting “by assignment.” Jones is not one of the current six elected judges on the Texas Third Court of Appeals. His opinion uses the term de minimis no fewer than five times, repeatedly claiming that expected contamination levels (based on out-of-date 2017 modeling data submitted by Vulcan) are so low that no further investigation is needed. However, the air permit would allow Vulcan’s rock crusher to emit over 95,000 pounds of particulate matter, nitrogen oxide, sulfur dioxide, carbon monoxide, and VOCs into the Texas Hill Country air annually. Furthermore, without a full accounting of the facts, the actual amount of pollution this facility would produce could be much higher than the permit allows.

OK for Vulcan to Keep Hiding Data

Jones also opined that while there is a chance Vulcan’s crystalline silica emissions would exceed established pollution limits, Vulcan need not disclose the sample data used to run its air pollution modeling (concealed from the public and TCEQ, claiming a “trade secret” excuse). Apparently, we should take Vulcan’s word that its still-concealed data—the very basis for the modeling and these assertions of compliance—is accurate and reliable.

Continuing with the theme of pollution so small, we don’t need to worry about it, Jones wrote that contamination from mining, product transport, roads, and the quarry itself does not need to be considered; and that it was acceptable to predict background air pollution levels using data from monitors located 12 miles and 28 miles upwind from the proposed quarry location.

In perhaps its most stunning conclusion, the appellate panel admits that the SOAH administrative law judge and TCEQ exercised bias in favor of data from Vulcan and their agency (over Comal County citizens and scientific experts). But “that was the agency’s [TCEQ’s] province, and neither we nor the trial court may second-guess its decision.”

In Vulcan We Trust

David Drewa, director of communications for Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment, stated, “This decision is wrong—and a slap in the face to the thousands of concerned citizens in Comal County who have worked tirelessly over the past five years fighting to protect our families, our natural resources, and our beautiful Texas Hill Country from pollution generated by an out-of-state corporation.”

“The panel showed no regard for relevant legal issues raised by Texans living and working in the area, and essentially concluded: Vulcan’s claims seem fine, and we trust them; no need to verify—or even see—the underlying data,” Drewa said.

Milann Guckian, president of Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment, expressed concern: “I thought the opinion sounded a lot like something right out of the TCEQ commissioners’ handbook. It seems to me that the judge missed the point of our whole argument. The silica content data came from Vulcan and we never had an opportunity to look at, much less analyze, their samples. The ALJ and SOAH didn’t allow our experts to testify in the hearing either so we couldn’t counter Vulcan’s claims.”

What’s Next?

In the wake of this setback, citizens groups are assessing future options, including rehearing requests and appeal to the Texas Supreme Court. Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

One year ago, in May 2021, TCEQ and Vulcan filed an appeal to the Third Court of Appeals attempting to overturn the decision rendered by District Court Judge Maya Guerra-Gamble vacating Vulcan’s air permit.

TCEQ and Vulcan requested that the appellate court hold oral arguments, in addition to the multiple written briefs and replies filed by both sides. The court recently denied their request. Previously filed briefs were formally assigned to a three-judge panel on April 19: Chief Justice Darlene Byrne, Justice Chari Kelly, and Woodfin (“Woodie”) Jones. (Until 2014, Judge Jones was chief justice of the court; then he retired. He remains a senior judge and can be assigned to judicial panels.)

No timeline has been given for the decision, but we will alert you via our email newsletter and social media accounts as soon as additional developments occur.

Unsurprisingly, TCEQ and Vulcan Construction Materials are filing a legal appeal, attempting to overturn the decision rendered by District Court Judge Maya Guerra-Gamble vacating Vulcan’s air permit. The appeal will be heard by the Third Court of Appeals.

While Vulcan’s motivations seem transparent, it’s a bit disappointing that TCEQ is spending taxpayer dollars and agency resources ostensibly supporting an out-of-state corporation, and in visible opposition to hundreds of Texans they are supposed to protect!

We will update you with further developments as they occur. Thank you for your continued support and love for your neighbors and the Texas Hill Country!

Vulcan is certainly not going to be the last new quarry or concrete batch plant to try to set up in Comal County or elsewhere in the Texas Hill Country. While we are fighting this proposed quarry with everything we’ve got, the real, long-term, statewide solutions will need to come at the legislative level.

Our top quarry and aggregate production operations (APO) bill is stuck in the Environmental Regulation Committee. It’s time to flood Chairman Landgraf with phone calls, emails, and letters! Numbers matter, and we need your help! THIS IS THE BIG QUARRY BILL THIS SESSION.

The committee should schedule a hearing ASAP on HB 4341, which would transfer oversight of quarries and APOs from TCEQ to the Railroad Commission, and add additional protections, common-sense regulations, and inspections.

(UPDATE: HB 1912 and HB 291 now have a hearing date. Unfortunately, the committee substitute for HB 1912 is a very weak bill that adds only minimal protections from concrete batch plants—not quarries or portable rock crushers. HB 291 adds some reclamation requirements for certain quarries. While marginally helpful, neither of these bills brings the comprehensive APO legislation we are seeking. This is why we must continue to request a hearing for HB 4341.)

Across the state, it is clear that Texans have lost confidence in TCEQ’s ability to protect our health and our environment. In recognition of this problem, the House Interim Committee on Aggregate Production Operations was formed in 2020 and released a detailed report in January 2021. In many ways, this bill is a product of this report and its recommendations.

What to Do — ASAP!

Vulcan and their lobbyists are already hard at work convincing legislators to kill this good bill. It will take all hands on deck to get it passed into law. But don’t underestimate the power of phone calls and emails from individual citizens! First step: getting a committee hearing scheduled.

This week is easy! Right now we’re asking you to make 1 phone call 📱 and send 1 email. 📧

Email and call House Environmental Regulation Chair Brooks Landgraf and his chief of staff:
brooks.landgraf@house.texas.gov
CC: ben.lancaster@house.texas.gov
(512) 463-0546

Use our sample email template (personalize if you can) or draft your own unique message. Keep it short, simple, and sweet!

What to Say

• Request that Representative Landgraf schedule a committee hearing on HB 4341
• Across Texas, it’s clear that citizens have lost confidence in TCEQ’s ability to protect us and our natural resources.
• TCEQ has a poor track record of monitoring and enforcing compliance. These failures require legislative solutions with common sense requirements to improve the public health and safety of Texas.
• The House Interim Committee on Aggregate Production Operations released a detailed report on many of these problems in January 2021. Dozens of citizens spoke to these problems at the virtual town hall hosted by Representative Wilson.
• Express your support for HB 4341 and request scheduling of a committee hearing as soon as possible.

If You Can…

• Also mail a letter 📮 to Mr. Landgraf (P. O. Box 2910, Austin, TX 78768).

Want to Do More?

Write a letter to the editor of the New Braunfels Herald-Zeitung, the San Antonio Express-News, and/or your local newspaper outlining why you support HB 4341 (our top priority bill) and why it’s so important to the Comal County and the entire state of Texas.

Stay Up to Date!

Subscribe to our email updates and follow us on Facebook for updates on House Bill 4341 and other pending legislation that could affect your health and our state’s natural resources.

It’s that time again: the next Texas legislative session is now in full swing and we’re closely watching a number of bills related to quarries, aggregate production operations (APOs), and protecting our state’s natural resources.

Good news! One of the most important bills for us this session has been (at the last minute) scheduled for a committee hearing Tuesday, April 6! We strongly support HB 3883.

What’s to Like?

Tired of hearing county commissioners tell you that they don’t have any tools in their toolbox? That unincorporated areas of the county are the “wild west”? 👎 With HB 3883, the legislature gives even more tools to Hill Country counties and provides them with appropriate local control to help protect our water supply, water quality, and other natural resources.

Some of the tools this legislation would provide to counties in unincorporated areas include:

• Appropriately manage and control growth
• Set reasonable lot size and minimum frontage restrictions (preventing high-density development)
• Require adequate water supply prior to subdivision development
• Establish infrastructure cost recovery fees (paid by developers)

This bill is not a quick fix: there are some high bars to be met before restrictions can be implemented. But it provides counties with additional local control options and tools to help prevent over-development of our Texas Hill Country. Kendall County Commissioner Richard Elkins stated that this bill “will provide the necessary development rules and regulations to protect our natural resources and quality of life while allowing new economic development.”

Milan Michalec, president of the Cow Creek Groundwater Conservation District, wrote this helpful editorial in the Boerne Star outlining the history of and reasons to support HB 3883.

Legislation like HB 3883 could positively affect the future of the Texas Hill Country for decades to come.

On Tuesday, the House Land & Resource Management Committee will consider HB 3883. Representative Biedermann and his staff have worked hard to draft this bill. Now we need to back it and help get it passed into law!

What to Do—NOW!

ASAP (by Tuesday morning, if possible), email 📧 and call 📱 8 members of the House Land & Resource Management Committee. Urge them to vote YES on HB 3883!

Your input will be especially meaningful if you mention you have seen first-hand how higher density development in unincorporated areas of the Hill Country is jeopardizing our aquifers and our water supply.

Key points provided by our friends at the Greater Edwards Aquifer Alliance:

• Population in Hill Country Priority Groundwater Management Area (PGMA) has exploded recently, growing over 30 percent in the last five years.
• The recent drought of 2010-2015 showed that in many areas, the Trinity Aquifer was not a reliable source for water. Additionally, the Guadalupe, Pedernales, and Blanco Rivers were inadequate sources of water during drought conditions.
• Other water sources must be found for the existing population and new people moving into the area.
• Some county commissioners have been working closely with their respective groundwater conservation districts. This bill further combines their efforts to determine the appropriateness of development in the Hill Country PGMA.
• Letter of support and full comments from GEAA can be found here.
• Report from 2002: Do Counties Need New Powers to Cope with Urban Sprawl?

Explain your reasoning from the points above, use our sample email template (personalize it as much as you can), or at a minimum, simply state your support for the bill. In addition to the email and phone call, if you can drop a letter in the mail to each member, that would be superb! (The bill is being presented on Tuesday, but they may not vote on it until later.)

(Some offices may be closed on Monday. If so, try calling on Tuesday morning.)

Joe Deshotel, Chair (Beaumont)
joe.deshotel@house.texas.gov
(512) 463-0662

Ben Leman, Vice Chair (Brenham)
ben.leman@house.texas.gov
(512) 463-0600

Dustin Burrows (Lubbock)
dustin.burrows@house.texas.gov
(512) 463-0542

Tom Craddick (Midland)
tom.craddick@house.texas.gov
(512) 463-0500

Ramon Romero, Jr. (Fort Worth)
ramon.romero@house.texas.gov
(512) 463-0740

Jon Rosenthal (Far NW Houston)
jon.rosenthal@house.texas.gov
(512) 463-0722

David Spiller (Rural North Texas)
david.spiller@house.texas.gov
(512) 463-0526

Shawn Thierry (SW Houston)
shawn.thierry@house.texas.gov
(512) 463-0518

(Representative Biedermann is on the committee as well, but he’s the author of the bill.)

Additionally…

We know you are busy and this is super-short notice. But if you are able, it would be wonderful to have some citizens speak at the committee hearing on Tuesday afternoon or evening:

Tuesday, April 6; time TBA, but no earlier than 12 noon
Texas Capitol
Room EXT E2.136
1100 Congress Avenue
Austin, TX 78701
Map & Directions
Capitol Map
Agenda (bills are not called in order)
How to Register to Speak

Allow plenty of time for Austin traffic and parking. Sometimes these hearings can last two or three hours, so be prepared (snacks, water, book, etc.). If you have any printed documents or graphics, bring ten copies. If you have any questions about the process—or anything else—simply reply to this email.

Don’t worry if you haven’t memorized every detail of this bill. That’s fine! Tell your personal story, focus on the fact that we need to protect our Hill Country water resources and counties need tools to do it.

If you plan to speak at the committee hearing, we recommend emailing Representative Biedermann’s policy specialist at Larry.Bailey@house.texas.gov to coordinate and run any questions or comments by him.

If you are unable to make it to the Capitol on Tuesday, you can submit public comments supporting HB 3883 online.

Want to Do More?

Write a letter to the editor of the New Braunfels Herald-Zeitung, the San Antonio Express-News, and/or your local newspaper outlining why you support HB 3883 and why it’s so important to the Texas Hill Country.

Stay Up to Date!

Subscribe to our email updates and follow us on Facebook for updates on House Bill 3883 and other pending legislation that could affect your health and our state’s natural resources.

On Thursday, Travis County District Court Judge Maya Guerra Gamble issued her final judgment order remanding and vacating the air quality permit TCEQ granted to Vulcan Materials. This formalizes the March 5 court decision in our favor without any substantial changes.

The court reiterated that “TCEQ’s determination that the plant’s crystalline silica emissions will not negatively affect human health or welfare is not supported by substantial evidence.” Also, that “Vulcan’s silica emissions calculations are not based on representative site conditions.”

Furthermore, the order states that TCEQ’s air modeling techniques, exclusion of emissions from the quarry and roads, and choice of background pollution data were “arbitrary and capricious, and not supported by substantial evidence.”

While the district court judge affirmed TCEQ’s BACT analysis, the order furthermore stated that, in the contested case hearing, SOAH administrative law judge Rebecca Smith “abused her discretion by ruling that Vulcan could maintain information from its 2016 subsurface investigation…as confidential under the trade secret privilege.”

Finally, “Plaintiffs were denied due process such that their substantial rights were prejudiced.”

Obviously, this is a huge victory for us, the citizens of Comal County, and the Texas Hill Country. Of course, TCEQ can appeal this decision to the Third Court of Appeals—and they probably will. But this is an incredibly significant, if not unprecedented, setback for Vulcan and TCEQ.

Thank you so much for your ongoing support! We couldn’t have done this without you!

AUSTIN—The determined alliance of Comal County citizens, community groups, and Comal ISD prevailed on Friday in a monumental victory over the Texas Commission on Environmental Quality and Vulcan Construction Materials, LLC. Judge Maya Guerra Gamble, 459^th District Court, Travis County, ruled overwhelmingly in favor of the plaintiffs, who have, since 2017, been fighting a proposed 1500-acre limestone quarry between New Braunfels and Bulverde.

In November 2019, TCEQ commissioners granted an air permit to Alabama-based Vulcan Materials for the planned quarry. Friday’s district court decision in Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry v. Texas Commission on Environmental Quality reverses and vacates TCEQ’s approval of the Vulcan air permit.

Vulcan’s proposed open-pit limestone mining operation in the Texas Hill Country would stretch across nearly three miles of the environmentally sensitive Edwards Aquifer Recharge Zone (primary water supply for over two million people, including the cities of San Antonio and New Braunfels). Neighbors are concerned about air pollution, water supply and quality, truck traffic, destruction of caves, and decreased property values that could result from the location of this heavy industrial facility in a residential area populated by over 12,000 people.

This lawsuit, essentially an administrative appeal filed in February 2020, was the latest step taken by area residents and groups who have been actively opposing the project for almost four years.

Judge Guerra Gamble ruled for the citizens’ groups on several key points:

• TCEQ’s assertion that the quarry would not harm human health or welfare was not supported by evidence.
• Vulcan’s emissions calculations were not representative and not supported by substantial evidence.
• Vulcan’s air quality analysis did not account for cumulative impacts or emissions from the quarry and roads.
• Vulcan’s choice of background concentration was arbitrary or capricious.
• In the contested case hearing, the SOAH judge erred in allowing Vulcan to hide behind “trade secret” claims.
• Plaintiffs were denied due process when the SOAH judge allowed Vulcan to conceal data using the “trade secret” excuse and did not allow plaintiffs to cross-examine Vulcan.

The permit, struck down by the court, allowed Vulcan’s rock crusher to emit over 95,000 pounds of particulate matter, nitrogen oxide, sulfur dioxide, carbon monoxide, and VOCs into the air annually. But without a full accounting of the facts, the actual amount of pollution this facility would produce could be much higher than the permit allows. Attorneys for Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry will now draft a final order. TCEQ and Vulcan have the option to appeal the decision, to the Third Court of Appeals.

Milann Guckian, president of Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment, stated, “We are extremely pleased with Judge Guerra Gamble’s decision. This is a win for Comal County residents, our beautiful Hill Country, and the entire state of Texas. It is a positive step forward in the process we have undertaken to preserve quality of life and our natural resources.”

“We are very grateful that after considering the evidence of our case, the court issued a rare reversal of TCEQ’s unjust and unfounded decision to grant the Vulcan Materials air permit in Comal County,” said David Drewa, director of communications for Stop 3009 Vulcan Quarry. Drewa says that the citizens groups will continue to advocate for common sense oversight of quarries and APOs—at both the local and legislative levels. Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

###

Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

AUSTIN—The hearing on Friends of Dry Comal Creek v. Texas Commission on Environmental Quality will be held on Tuesday, December 8, at 9:00 a.m., in 459^th District Court, Travis County. Citizens’ groups Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry filed the lawsuit against TCEQ in February of this year to appeal TCEQ’s decision to grant an air pollution permit to Vulcan Construction Materials, LLC.

Judge Maya Guerra Gamble is assigned to the case and will preside over Tuesday’s hearing. Due to COVID-19, the hearing will be conducted via Zoom and broadcast publicly on the YouTube channel of the 459^th District Court, Travis County (https://www.youtube.com/channel/UCF_rPoUGrNEGiqEtiAPTLEg).

This lawsuit is the latest step taken by area residents and groups to oppose a proposed 1500-acre quarry in Comal County, between New Braunfels and Bulverde. Vulcan’s new open-pit limestone mining operation in the Texas Hill Country would stretch across nearly three miles of the environmentally sensitive Edwards Aquifer Recharge Zone.

Plaintiffs are asking the court to reverse TCEQ’s permit approval decision and send the application back for “lawful evaluation,” citing the following failures and prejudices during the June 2019 contested case hearing:

• Legal errors during discovery and trial
• Capricious and arbitrary exclusion of relevant data from air pollution modeling
• Failure to account for diesel exhaust emissions
• Allowing TCEQ staff guidance to supersede statutory state law
• Failing to require case-by-case determination of emission reductions

During the contested case hearing, the administrative law judge allowed Vulcan to use a “trade secret” excuse to hide from both TCEQ and area residents key core sample data used to calculate expected air pollution. At the hearing, Vulcan revealed that they had since destroyed most of the core samples they obtained from the property. Additionally, the administrative judge did not allow opponents to cross-examine Vulcan about this disputed core sample data.

Neighbors are concerned about air pollution, truck traffic, destruction of caves, and decreased property values that could result from the location of this heavy industrial facility in a residential area populated by over 12,000 people.

But this isn’t just another “not in my backyard” issue. David Drewa, Director of Communications for Stop 3009 Vulcan Quarry states, “This proposed facility should be very concerning to residents of San Antonio and New Braunfels—and all two million people who depend on the Edwards Aquifer as their primary source of drinking water.”

The court is expected to render a decision in the case within a month or so. In October, in a separate case, Judge Guerra Gamble ruled for Save Our Springs Alliance, striking down a wastewater discharge permit recently issued by TCEQ to the City of Dripping Springs.

“We are optimistic that after considering the evidence of our case, the court will reverse TCEQ’s unjust and unfounded decision to grant the Vulcan Materials air permit in Comal County,” stated Drewa.

Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

###

Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

We continue to progress in our legal appeal against TCEQ and Vulcan. Our attorneys recently filed the initial brief in our case opposing the Vulcan air quality permit: Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry v. Texas Commission on Environmental Quality and Vulcan Construction Materials, LLC.

TCEQ is being represented by the Office of the Attorney General, so this is truly a David versus Goliath battle.

It will likely be several more weeks before TCEQ and Vulcan respond to our brief. Then we will reply to their responses and the judge will convene a hearing—perhaps by November or December. The hearing with the judge will be open to the public (and we will want to show up in full force!), although, considering Covid-19, we are not sure at this time what format it will take.

As the process continues to move forward, we will update you with additional info.

AUSTIN—Stop 3009 Vulcan Quarry and Friends of Dry Comal Creek filed a lawsuit against the Texas Commission on Environmental Quality (TCEQ) in Travis County District Court on Friday. The lawsuit is the latest step in the legal appeals process, and requests judicial review of TCEQ’s November decision to grant an air pollution permit to Vulcan Construction Materials, LLC.

In June 2017, Vulcan submitted an application to construct and operate a rock crushing facility and quarry on a 1500-acre former cattle ranch in Comal County, between New Braunfels and Bulverde. Vulcan’s open-pit limestone mining operation would stretch across nearly three miles of the environmentally sensitive Edwards Aquifer Recharge Zone.

The lawsuit is part of a prolonged battle between Vulcan and hundreds of area Hill Country neighbors and citizens groups. In the petition, plaintiffs ask the court to reverse TCEQ’s permit approval decision and send the application back for “lawful evaluation,” citing the following failures and prejudices during the June 2019 contested case hearing:

• Legal errors during discovery and trial
• Capricious and arbitrary exclusion of relevant data from air pollution modeling
• Failure to account for diesel exhaust emissions
• Allowing TCEQ staff guidance to supersede statutory state law
• Failing to require case-by-case determination of emission reductions

During the contested case hearing, the administrative law judge allowed Vulcan to use a “trade secret” excuse to hide from both TCEQ and area residents key core sample data used to calculate air pollution. At the hearing, Vulcan revealed that they had since destroyed most of the core samples they obtained from the property. Additionally, the administrative judge did not allow opponents to cross-examine Vulcan about this disputed core sample data. A separate lawsuit opposing the same permit was filed against TCEQ on Friday by Comal ISD and other area residents.

Neighbors are concerned about air pollution, truck traffic, destruction of caves, and decreased property values that could result from the location of this heavy industrial facility in a residential area populated by over 12,000 people.

But this isn’t just another “not in my backyard” issue. David Drewa, Director of Communications for Stop 3009 Vulcan Quarry states, “This proposed facility should be very concerning to residents of San Antonio and New Braunfels—and all two million people who depend on the Edwards Aquifer as their primary source of drinking water.”

Jack Olivier, a Comal County geologist and member of the Texas Speleological Association, expressed concern about the location over the recharge zone: “Quarries here can act as manmade funnels into the underlying aquifers. The limestone sediment produced inside the quarry pit can get washed into the ground. The explosives used for blasting, a combination of diesel fuel and ammonium nitrate, can also be introduced inside the pits. And during flood events, pollutants can get washed in, carrying chemicals like pesticides and herbicides, and septic tank effluent.”

Drewa says that the citizens groups will continue to advocate for common sense oversight and protections for the health and safety of neighboring residents and ranchers who have lived in the areas for years—and in some cases, decades. “This is not a done deal. We will continue to use every administrative and legal challenge available to defend our rights as citizens, oppose this dangerous quarry, and preserve our health, air, and water.”

Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

AUSTIN—Stop 3009 Vulcan Quarry and Friends of Dry Comal Creek have filed a motion for rehearing their case in opposition to the air quality permit requested by Vulcan Construction Materials, LLC. The motion was filed with the State Office of Administrative Hearings (SOAH) on Monday by Frederick, Perales, Allmon & Rockwell, P.C., attorneys representing citizen groups comprising over 100 individuals and associations opposing the proposed quarry.

In June 2017, Vulcan submitted an air quality permit application to the Texas Commission on Environmental Quality (TCEQ) to construct and operate a rock crushing facility on 1500 acres in Comal County. Vulcan plans to convert the former cattle ranch (White Ranch) to an open-pit limestone and gravel mining operation stretching across nearly three miles of the Texas Hill Country, between Bulverde and New Braunfels.

Area residents are concerned about the carcinogenic air pollution, increased truck traffic, decreased property values, endangered water resources, and other impacts on the environment that would likely result from the location of this heavy industrial facility in a residential area populated by over 12,000 people.

A month ago, following the contested case hearing, TCEQ commissioners decided to grant the air quality permit to Vulcan. The motion for rehearing requests that TCEQ commissioners reconsider their permit decision.

In the motion, groups cite several reasons that TCEQ should reverse their permit approval:

• Failure to require or conduct a health effects review
• Failure to consider air pollution sources such as roads, mining and blasting operations, and product transport
• Failure to consider cumulative impact of pollution from certain existing aggregate plants in the area
• Failure to undertake a Best Available Control Technology analysis
• Failure to analyze health impact from diesel engine exhaust
• Allowing Vulcan to use “trade secret” excuse to hide from both TCEQ and citizens key core sample data used to model air contamination

The motion states that according to Texas law, TCEQ “may permit a facility only if the Commission finds no indication the facility will harm the public’s health and physical property.” But neither Vulcan nor TCEQ performed a health effects review when evaluating the permit application, claiming that this facility was exempt from that review.

TCEQ now has 30 days to act on the motion, which could result in a new SOAH hearing. Milann Guckian, president of Stop 3009 Vulcan Quarry, commented, “I’m hoping that Santa got my Christmas list this year: a new, fairer, and more favorable hearing was at the top!” However, in the event of an unfavorable decision, the groups will move to the next steps in the process: “We will continue to pursue all legal options available to block this facility, including the appeals process for the air permit, in order to protect the health of our families and our natural resources.”

In addition to obtaining an air quality permit, Vulcan must still submit a Water Pollution Abatement Plan (WPAP) to TCEQ. This is required since the proposed quarry is located entirely over the environmentally sensitive Edwards Aquifer recharge zone, the primary source of drinking water for over two million people. Vulcan has not yet submitted their WPAP, but area citizens and organizations are prepared to oppose this plan should it contain insufficient protections for our water quality and our water supply.

Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

November 20, 2019

Texas Commission on Environmental Quality

• 9:30 am
• 12100 Park 35 Circle, Room 201S, Building E, Austin, TX 78753
• Map & Directions

We need a big show of force in Austin next week. Let’s make sure the three TCEQ commissioners know not to mess with Comal County!

The proposed Comal County Vulcan quarry has been placed on the agenda for the TCEQ Commissioners’ meeting on Wednesday, November 20. The pending Vulcan air quality permit is the first item—and our portion of the meeting will likely be fairly quick. Our attorney will speak during our short time allotment. Citizens will not speak at this meeting, but we encourage everyone to register for the record (registration for the agenda begins at 8:45 am and continues until 9:30 am).

At this meeting, TCEQ commissioners will consider the proposed decision recommended in September by the SOAH administrative law judges. The TCEQ commission may choose to agree or disagree with the SOAH recommendation. They may render a decision at this meeting or may delay the decision until a future date.

AUSTIN—State Office of Administrative Hearings administrative law judges Rebecca Smith and Victor Simonds rendered a long-awaited decision Tuesday morning in the contested case hearing against Vulcan Construction Materials. In June 2017, Vulcan submitted an air quality permit application to the Texas Commission on Environmental Quality (TCEQ) for a rock crusher at its proposed 1500-acre open-pit limestone quarry between Bulverde and New Braunfels.

In late 2018, over 100 individuals, groups, and associations, including Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, Harrison Ranch Group, Comal ISD, and Greater Edwards Aquifer Alliance, filed requests as affected parties opposing the facility. Area residents are concerned about the carcinogenic air pollution, increased truck traffic, decreased property values, endangered water resources, and other impacts on the environment that would likely result from the location of this heavy industrial facility in a residential area populated by over 12,000 people.

Grounds for opposition included highly questionable, cherry-picked core sample data provided by Vulcan and used to model air contamination this facility would produce; TCEQ’s use of air monitor data from 12 and 28 miles upwind of the proposed quarry location; the lack of any air quality data from Comal County; TCEQ’s failure to take into consideration any air pollution produced by quarry activities themselves—mining, blasting, product transfer, truck exhaust, etc. Stop 3009 Vulcan Quarry provided compelling evidence and supporting data on these issues.

Unfortunately, in their decision on Tuesday, the SOAH judges determined “that Vulcan has met its burden of proof” and recommended that TCEQ issue the draft permit. David Drewa, Stop 3009 Vulcan Quarry spokesperson, stated: “While this is certainly not the outcome we had hoped for in the contested case hearing, and we strongly disagree with their decision, the SOAH decision isn’t entirely unexpected, and this fight is far from over.”

Now that the SOAH judges have rendered a decision, focus now shifts to TCEQ commissioners Jon Niermann and Emily Lindley. Over the next several weeks, parties will file exceptions and replies to the decision. Then the TCEQ commissioners will decide whether to follow the SOAH recommendation and issue the draft air quality permit to Vulcan.

Assuming that TCEQ commissioners issue the permit, opposing parties then have 55 days to file a motion for reconsideration. Milann Guckian, president of Stop 3009 Vulcan Quarry, said that the group will now move along to the next step of the process: “Pending an unfavorable decision from TCEQ, we have every intention to file a motion for reconsideration. We will continue to pursue all legal options available to block this facility, including the appeals process for the air permit, in order to protect the health of our families and our natural resources.”

In addition to obtaining an air quality permit, Vulcan must also submit a Water Pollution Abatement Plan (WPAP) to TCEQ and receive approval. This is required since the proposed quarry is located entirely over the environmentally sensitive Edwards Aquifer recharge zone, the primary source of drinking water for over 1.7 million people. Vulcan has not yet submitted their WPAP, but area citizens and groups are prepared to oppose this plan should it contain insufficient protections for our water quality and our water supply.

Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

AUSTIN—The hearing on the merits against Vulcan Construction Materials ended early Tuesday afternoon. Approximately 80 people attended the two-day hearing, including Comal County residents currently living near the proposed quarry site, many of whom would share a fence line with the proposed 1500-acre open-pit mine. State Office of Administrative Hearing (SOAH) Administrative Law Judge Rebecca Smith presided over the hearing and will determine whether TCEQ should grant the air quality permit application.

During discovery, Vulcan refused to provide complete core sample data of the material they plan to crush, presenting only a single, self-selected sample. Therefore, residents living adjacent to the proposed site ordered a core sample to be taken on their own property—just 30 feet from one of Vulcan’s sampling locations—and had it tested by a certified laboratory (WJE Associates). On Monday morning, the judge admitted this core sample data into evidence. This sample shows crystalline silica (a carcinogenic contaminant) concentrations five times as high as the sample provided by Vulcan.

At the hearing, Vulcan employee Dr. Lori Eversull stated that Vulcan drilled and tested 41 core samples to determine the economic viability of the quarry. But when it came to air pollution modeling, they decided a single composite sample taken from three locations would be sufficient. On Monday afternoon, 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.

David Drewa, Director of Communications for Stop 3009 Vulcan Quarry commented: “The fact that Vulcan tested 41 core samples for economic reasons, but only presented a single, cherry-picked sample for pollution modeling is revealing: generating revenue is apparently far more important than protecting the health of nearby residents.”

TCEQ personnel stated that they used “nearby” air quality monitors to model background and cumulative air pollution. However, the monitors they used for this permit (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.

“The glaring lack of data from Comal County in modeling this quarry’s air pollution is disturbing considering that there are over 20 aggregate, concrete, and cement facilities in Comal County,” said Drewa.

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. Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

AUSTIN—Next week, the crucial contested case hearing will take place to determine whether TCEQ should grant, deny, or add additional restrictions to the air quality permit application by Alabama-based Vulcan Construction Materials. Vulcan proposes construction of a 1500-acre limestone mine, quarry, and rock-crushing plant between Bulverde and New Braunfels.

This hearing (technically called a hearing on the merits) begins June 10 and is scheduled to last three days. Similar to a civil trial, it is conducted by the State Office of Administrative Hearings (SOAH). During the hearing, Administrative Law Judge Rebecca Smith will hear expert testimony and opposing legal arguments from both Vulcan and several protestant groups.

The legal contest began with a preliminary hearing in New Braunfels on March 6. Over 100 individuals, groups, and associations, including Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, Harrison Ranch Group, Comal ISD, and Greater Edwards Aquifer Alliance, were named affected parties and are participants in the contested case hearing.

Over the past few months, both sides have conducted depositions, made discovery requests, and produced documents. Unfortunately, Vulcan and its lawyers have continued to suppress core sample data and hide key pollution information from the citizens of Comal County, TCEQ, and SOAH. Furthermore, Vulcan is arguing that relevant data and expert testimony should be excluded from the hearing and not considered by SOAH.

Comal County citizens deserve to have all the facts. Vulcan should not be allowed to cherry pick the data and testimony they present to TCEQ. Next week, the groups opposing this permit, including Stop 3009 Vulcan Quarry and Friends of Dry Comal Creek, will present clear evidence, scientific witnesses, and factual arguments stating that if this permit is granted, the facility could cause irreparable harm to the health and property of over 12,000 residents living nearby. Sitting atop the environmentally sensitive Edwards Aquifer Recharge Zone, the facility could also negatively affect the water supply that over two million people depend on. Unique geological and ecological features like the nearby Natural Bridge Caverns, Bracken Cave, and dozens of other caves in the area could also be impacted.

The hearing on the merits begins Monday, June 10, at 9:00 a.m. in the William P. Clements Office Building (Fourth Floor, 300 West 15^th Street, Austin, TX 78701). Following the hearing, parties will file and reply to written closing arguments. Possible outcomes of this contested case hearing include SOAH recommendations to deny the permit application, approve as is, or approve with additional restrictions and requirements. The SOAH judge plans to render a decision no later than September 3, 2019. Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

NEW BRAUNFELS—Over 100 individuals, groups, and associations, including Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, Greater Edwards Aquifer Alliance, and Comal ISD, are currently mounting a legal fight against Alabama-based Vulcan Construction Materials and the proposed 1500-acre quarry between Bulverde and New Braunfels.

This legal proceeding began with a preliminary hearing on March 6. Similar to a civil trial, this contested case hearing includes expert witness testimony, depositions, and discovery. Key to the case is the question of how much air pollution Vulcan will emit and how the pollutants produced by the rock crusher will affect the over 12,000 residents living nearby. Since Vulcan is not yet operating, TCEQ has no relevant air pollution data. Therefore, TCEQ relies entirely on air modeling to predict how much pollution Vulcan will produce. And those models are only as good as the data they are given.

Unfortunately, Vulcan’s own consultant actually runs the model, and TCEQ only audits that process. At least some of this data appears to have been cherry-picked by Vulcan to imply much lower levels of pollution than are realistic. Crystalline silica is a carcinogenic pollutant linked to lung disease, heart disease, silicosis, and other health problems. Vulcan claimed the composition of limestone they will be mining is only 0.2 percent silica. We know Vulcan extracted numerous core samples from the 1500-acre site. They submitted only a single sample analysis to support their claim.  This sample may have been a composite built from several separate samples, but even that is not clear.

Crystalline silica concentrations range from 2 to 18 percent in limestone from the area that neighbors have had tested. One sample was 49 percent crystalline silica.  A motion filed on May 3 by attorneys for Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry calls Vulcan’s claim “highly questionable” and states that “Vulcan’s assumed concentration of crystalline silica varies by an order of magnitude, or more, from the expected value.” The motion goes on to state that “the concentration of silica in the feed material could be 70 times that assumed by Vulcan.”

Comal County citizens deserve to have all the facts. They have a right to know how much pollution Vulcan will emit and by how much Vulcan will exceed safety limits established by the EPA and World Health Organization. As part of the contested case hearing, and because Vulcan presented highly suspect data to TCEQ, these citizens and groups have requested as part of their legal discovery the full set of core sample data obtained from the site.

Milann Guckian, president of Stop 3009 Vulcan Quarry stated, “Vulcan knows we know the information they used on the application is not reliable, and the crystalline silica amount is considerably more than what Vulcan cites.” Ms. Guckian says that if Vulcan had reliable evidence to support their claim, they would be more transparent.

Unfortunately, this out-of-state corporation and their lawyers continue to hide this information from the public and suppress the facts, claiming that the composition of limestone rock in the Texas Hill Country is a proprietary trade secret. The permit application would allow the rock crusher to emit over 95,000 pounds of particulate matter, nitrogen oxide, sulfur dioxide, carbon monoxide, and VOCs into the air annually. But without a full accounting of the facts, the actual amount of pollution this facility produces will likely be much higher than the permit allows.

An administrative judge at the State Office of Administrative Hearings will now decide whether to compel Vulcan to disclose the additional core sample data they possess. The hearing on the merits (i.e., trial) is currently scheduled for June 10-12. However, Vulcan’s continued obfuscation and suppression of key facts has forced Stop 3009 Vulcan Quarry to request a continuance, possibly pushing the trial into July. Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to the 1500-acre open-pit limestone quarry proposed by Vulcan Materials in a residential area of central Comal County, between Bulverde and New Braunfels.

June 10 – 11, 2019

William P. Clements Office Building

• Multi-day trial begins 9:00 am on Monday
• Fourth Floor
• 300 West 15th Street, Austin, TX 78701

Monday (June 10) Highlights

• 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.

• Our live stream videos are available on the Videos tab of our Facebook page (apologies for the poor quality).

About the Hearing on the Merits

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.

Legal Documents

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.

At the Hearing

• Plan to arrive 30 minutes early to park, locate the courtroom, and get a seat.
• Wear comfortable clothing and bring a sweater if you tend to get cold.
• Bring paper and pen—or take notes on your phone or tablet.
• Bring a large bottle of water and some favorite snacks.

(We do not offer or provide legal advice. Please consult a qualified attorney for legal counsel.)

AUSTIN—On December 12, the TCEQ commissioners took up review of the application by Vulcan Construction Materials, LLC for air quality permit 147392L001. (Docket 2018-1303-AIR)

Within 30 minutes of the start of the meeting, the commissioners had affirmed the following:

1. That the permit application would be referred to the State Office of Administrative Hearings (SOAH).
2. That eleven property owners within a one-mile radius of the rock crusher and the following associations are named affected persons: Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, and the Smithson Valley Heritage Oaks POA.
3. That the following issues should be referred to SOAH for more detailed review and discovery (pages 199-217):
   • Issue A: Whether the proposed plant will negatively affect human health, including sensitive subgroups, and physical property.
   • Issue B: Whether the conditions in proposed permit will adequately protect against dust emissions from the proposed plant, including during periods of high winds.
   • Issue C: Whether cumulative impacts of existing sources were properly considered.
   • Issue D: Whether the controls in the proposed permit constitute Best Available Control Technology (BACT).
   • Issue E: Whether the proposed facility will adversely affect wildlife, vegetation, flora and fauna.
   • Issue F: Whether the proposed operating hours of the rock crusher ensure that there will be no adverse impacts to human health, welfare, and the environment.
   • Issue G: Whether the air quality modeling conducted as part of this application adequately incorporated the local prevailing winds.
   • Issue H: Whether the Applicant complied with TCEQ’s public notice requirements related to sign-posting and newspaper notice.
   • Issue I: Whether the proposed permit contains adequate monitoring and record keeping requirements to ensure compliance with all applicable rules and requirements.
   • Issue J: Whether emissions from on-site diesel engines are adequately calculated and adequately controlled.
   • Issue K: Whether an adequate site review was conducted for this application.
   • Issue L: Whether the background concentrations used in the air dispersion modeling are representative of the proposed location of the plant.
   • Issue M: Whether emissions from maintenance, start-up, and shutdown activities are adequately addressed in the proposed permit.
   • Issue N: Whether chemical dust suppressant is safe to use as a control for emissions from the proposed plant.
   • Issue O: Whether emissions of silica from the proposed plant will negatively impact human health and welfare.
   • Issue P: Whether the proposed permit conditions, including emissions limitations, are enforceable.
   • Issue Q: Whether the permit application, and associated air dispersion modeling, included and properly evaluated all applicable emissions.
   • Issue R: Whether site specific monitoring data should have been used in the air dispersion modeling conducted for this application.
   • Issue S: Whether the applicant’s compliance history precludes issuance of the draft permit or necessitates additional special conditions in the draft permit.

“We are pleased that the commissioners acknowledged, via their decisions today, that this permit application needs a more thorough legal review and discovery of the applicant’s actions including but not limited to the quality and validity of the site review, proper and timely public notification, report or lack thereof of cumulative impacts of toxic air emissions, air and water compliance history, and most notably, whether the applicant’s air dispersion modeling properly and credibly evaluated all applicable emissions,” stated Sabrina Houser-Amaya, spokesperson for Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry.

“Our primary concern remains that the TCEQ commissioners maintained the arbitrary one-mile radius with which to name affected parties,” said Houser-Amaya. “The unfortunate aspect of this arbitrary radius is that it forgoes the realistic aspects that it presupposes fugitive carcinogenic particles of PM 2.5 or less will not travel beyond a one-mile radius.”

The commissioners’ decision follows the same responses filed in the November 19 Response to Hearing Request documents whereby both the TCEQ and Vulcan issued arbitrary and capricious one-mile radius limitations. The Office of Public Interest Council (OPIC) expanded their arbitrary radius to two miles from the crusher, thus adding an additional 39 persons (47 in all). As such, TCEQ and Vulcan only named five percent of the filers to be affected parties, while OPIC named less than approximately 45 percent. When we contacted OPIC to understand how and why these arbitrary radii were selected without any supporting law, code, enactment or scientific data, the response was, “these radius selections are historical agency decisions and a matter of custom.”

So, while Comal County citizens are required to provide burden of proof as to why they may be an affected party based on facts of law, the TECQ, Vulcan, and OPIC appear to not to have to follow suit! See 30 TAC 55.203 (2)…distance restrictions or other limitations imposed by law on the affected interest.

Unfortunately, the TCEQ commissioners did not address their arbitrary one-mile radius limitation.

The next steps for citizens will be to attend the SOAH Preliminary Hearing which will take place at the Comal County Courthouse on March 6. Attendance is mandatory for those that have not been named an affected person since they are offered one last opportunity to present their case to the Administrative Law Judge (ALJ). A notice letter will be going out giving persons a 30-day notice of this upcoming preliminary hearing.

Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry will be hosting another community education meeting in January to more clearly identify the next steps and timelines.

What happens at a SOAH Preliminary Hearing?

If TCEQ refers a permit application to SOAH, the process generally begins with a preliminary hearing. At the preliminary hearing, the ALJ names the parties to the hearing, issues an order setting the discovery and procedural schedule for the case, and gives the parties an opportunity to discuss settlement. At this hearing, the ALJ has the authority to designate affected persons—even if that individual or group was initially denied by TCEQ. To be designated as a party, you or your representative must appear at the preliminary hearing. You will generally be expected to attend so you can explain how you are affected by the application in a way that is different from the general public. The ALJ will probably suggest that affected parties align and select one person to be their representative for the administrative process. Other participants in the process will normally include the TCEQ Executive Director, OPIC, and the applicant.

What Happens During a SOAH Contested Case Hearing?

Unlike the comment hearings before a city council, county commissioners’ court, or the state legislature, the contested case hearing process involves a trial before an ALJ employed by the SOAH. Witnesses testify under oath and are subject to cross examination by opposing parties. The process often involves discovery, depositions, and other steps common to trials in court. Attorneys and expert witnesses are almost always employed by applicants and, often, by permit opponents.

Video

Since the Summer 2017, landowners abutting the White Ranch (SH46 @ FM3009), as well as residents within a 5-mile radius of the 1,500-acre site have actively protested and challenged Vulcan Construction Materials (VCM) air permit application to the Texas Commission on Environmental Quality (TCEQ) for a rock crushing plant at this location.

“It’s apparent that people are concerned about this quarry being ‘helicoptered’ into our pristine Hill Country.”  stated Sabrina Houser Amaya, spokesperson for Friends of Dry Comal Creek/Stop 3009 Vulcan Quarry. The property in question was owned by long-term Comal County resident, Eric W. White who for several years attempted to sell the property to residential developers – all who walked away due to lack of water. VCM acquired the property by using a ‘shell’ corporation, Blue Pines Holdings (property ID 81927), to purchase the land from Mr. White.  To date, Blue Pine Holdings is the deed owner of the property in the Comal Appraisal District database. “Our understanding is that only upon closing did Mr. White learn of the land’s intended use” stated Houser-Amaya.

Local Comal County citizens are very concerned about this carcinogenic generating industrial complex being situated among 12,000+ residents within 5-miles. Unfortunately, the Comal County Commissioners have repeatedly used the Teflon shield and mantra of “we have no tools in our toolbox”.  Despite many discussions and communications with Mayor Casteel and County Commissioners on the various options available to them (issuing a moratorium, initiating a 391 Commission, and/or actively participating as an ‘affected party”), residents have been stonewalled.  Mayor Carter Casteel has stated that he’s not willing to spend any monies to support legally or otherwise an ‘affected party’ status for the County.  Commissioner Haag stated “the county does not have the legal standing to be considered an affected party” yet the Office of Public Interest Council (OPIC) recommended the County as an affected party.  Notwithstanding the lack of elected officials’ support, many Comal County citizens named as ‘affected parties’ will spend their own monies to legally defend against this permit.

To date, there is a substantial amount of concern by area residents. Over 700 unique people submitted requests for a public meeting which was held February 27, 2018. On this date, over 500 persons were in attendance, and approximately 75 persons made 3-minute oral comments for the public record stating their concerns about the proposed quarry.  On September 14, TCEQ issued a Response to Comments (RTC), and gave until October 15^th for persons to reply to the RTC and request a Contested Case Hearing (CCH) with Affected Party (AP) status. Over 100 unique individuals made these requests by the deadline.  TCEQ Commissioners then gave the Executive Director of TCEQ (ED), OPIC and the Applicant (VCM) until November 19 to respond.  TCEQ and VCM responded with arbitrary and capricious 1-mile radius limitations, thus identifying only eight (8) unique parties as affected persons out of over 100 people who filed.  OPIC expanded their arbitrary radius to 2-miles from the crusher, thus adding an additional 39 persons (47 in all).  As such, TCEQ and Vulcan only named 5% of the filers to be affected parties, while OPIC named less than approximately 45%. When we contacted OPIC to understand the ‘how and why’ these arbitrary radius’ were selected without any supporting law, code, enactment or scientific data, the response was, “these radius selections are historical agency decisions and a matter of custom.”

So, while Comal County citizens are required to provide ‘burden of proof’ as to why they may be an “affected party” based on facts of law, the TECQ, Vulcan, and OPIC appear to not to have to follow suit! See 30 TAC 55.203 (2)…  distance restrictions or other limitations imposed by law on the affected interest;

By December 3 @ 5 p.m., those individuals not ‘recommended’ as affected party by TCEQ, Vulcan or OPIC, had to file a ‘reply brief’ again proving by fact of law as to why they should be named an ‘affected party”.  These ‘reply briefs’ will be reviewed and “affected party” status’ will be determined by TCEQ Commissioners and released at their December 12 Public Meeting.

On this date, the TCEQ Commissioners will: 1.) Determine whether the permit application should be referred as a Contested Case Hearing to the State Office of Administrative Hearings (SOAH); 2.) Determine those who will be named ‘affected parties”; and 3.) Determine which issues SOAH should consider. At present, the TCEQ ED has recommended 20 distinct issues to be referred to SOAH.

On 12/12/18, Friends of Dry Comal Creek/Stop 3009 Vulcan Quarry concerned citizens will be carpooling from Walmart (IH35 @ Walnut St in New Braunfels) to the TCEQ campus. We will be leaving at 7:30 a.m.  For those who do not wish to carpool or drive, we have arranged for a 15-passenger bus to take persons to the TCEQ campus for $45 per person.  For this bus to make the trip, we must have a minimum of 8 prepaid persons. If you are interested in the bus, please contact us at stop3009vulcanquarry@gmail.com.