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

NEW BRAUNFELS—In a resounding 7-0 vote, the Comal ISD Board of Trustees approved a resolution supporting area residents and communities, echoing their concerns about the proposed Vulcan quarry, and directing the school administration to file for a contested case hearing.

At their regular board meeting, held Tuesday evening, trustees stated that the planned quarry was “very, very much a concern” and that there was a “persuasive argument” to be made against it.

School Board President Cody Mueller pointed out that in contrast to other quarries in Comal County, in place before residential developments arrived, this new quarry is planned for an area where thousands of people already live: “This is quite different in the fact that it’s being dropped in the middle—in the heart—of the community. Requesting the contested case hearing allows us the opportunity to ask the right questions regarding safety, security, and health impacts that could be a potential effect to our school district and our campuses.”

R. Keith Randolph, PhD, a Comal County biomedical scientist, and one of the many residents in attendance supporting the resolution, elaborated on these concerns. “Additional quarrying industry expansion holds potential to pollute our air and water if insufficiently monitored and poorly regulated. If unchecked, there could be unrecoverable damage to our landscape and the health of those that live here.”

Last December, the school board failed (on a 3-3 vote, with one abstention) to pass a resolution opposing the planned Vulcan quarry. Mueller stated that although the school board doesn’t typically reconsider agenda items, three factors put the quarry resolution back in play: the election of two new trustees, new information received on the issue since December, and the request by two board members to add it to the meeting agenda.

Steve Stanford, Executive Director of Communications and Governmental Relations for Comal Independent School District, described this resolution as similar to the resolution presented in December but containing one notable difference: “This resolution would direct the administration to file for a contested case hearing at the appropriate time.”

Mueller spoke with TCEQ regarding the contested case hearing, and TCEQ informed him that following the issuance of their response to comments on the quarry permit application, a 30-day window would be open for hearing requests. According to Mueller, “That’s when we would have our opportunity to file for a contested case hearing.”

School Board Secretary Jason York expressed his appreciation to the residents in attendance: “Your voice has been heard.” York applauded the efforts of citizens to communicate with the board and provide information about the proposed Comal County quarry.

TCEQ will issue a response to comments (RTC) on Vulcan’s permit application soon—probably sometime this summer. Following TCEQ’s response, residents, landowners, organizations, counties, cities, and school districts will have 30 days to formally request a contested case hearing as an affected party. In the upcoming weeks, we will be providing detailed information on exactly how to file for affected party status in this matter.

Stay informed by visiting www.stop3009vulcanquarry.com and following our Facebook page for news updates on the increasing opposition toward the 1500-acre quarry planned between Bulverde and New Braunfels.

Comal ISD Resolution Concerning TCEQ Air Quality Permit Number 147392L001

Video

• Board discussion starts at 2:18:15
• Vote takes place at 2:24:14

On June 12, the City of Bulverde unanimously passed a resolution reiterating its opposition to the proposed Comal County Vulcan quarry, stating its intention to directly request a contested case hearing with the City as an affected party, and submitting to TCEQ formal recommendations for tighter permit restrictions and requirements.

City of Bulverde Resolution No. 305

We are grateful to Mayor Bill Krawietz and the Bulverde City Council for standing with and supporting their constituents and area residents in the fight to protect our health, safety, and the natural resources of our beautiful Hill Country!

Published in June 10 New Braunfels Herald-Zeitung (subscription required)

On March 22, Commissioners Court failed to take meaningful action to support constituents concerned about the proposed Vulcan quarry. Instead, commissioners settled for passing the buck.

Commissioners complained about their lack of authority, insisted their hands were tied, and seemingly ignored 30 minutes of pleas from citizens to draft an effective resolution requesting a contested case hearing as an affected party.

Counties indeed should have more local control. But that’s a long-term solution that will not protect Comal County citizens from the negative impacts of this quarry. Until such legislation is enacted, requesting a contested case hearing is the best way the county can influence the decision on this permit—and commissioners certainly have the authority to do so.

Both Kerr County (2008) and Victoria County (2016), requested contested case hearings on similar permits. TCEQ accepted the counties as “affected persons,” according to TAC Title 30, Section 55.203. In both cases, the permits were not granted, the applicants backed down, and the hearings were never needed.

Commissioners: Your constituents are not asking you to write legislation, step outside your box of authority, or do anything unprecedented. Many other counties, including Kendall and Burnet (2017), have done this—often with positive results. This is the tool in your toolbox.

At the March meeting, Commissioner Crownover lamented, “We don’t have any tools in the toolbox” and promised support should they find the tools. But as Representative Biedermann confirmed to Commissioners Haag and Eccleston at a Bar-W meeting, the county already has the ability to assist constituents in this fight.

Indeed, Comal County possesses an effective tool: requesting a contested case hearing as an affected party. Time is running out. When will commissioners stop siding with an out-of-state corporation and begin using this tool to support the citizens they were elected to represent?

David A. Drewa
Bulverde

NEW BRAUNFELS—Commissioners Court once again let down citizens of Comal County by failing to pass a meaningful, effective resolution in response to the 1500-acre Vulcan Construction Materials quarry proposed between Bulverde and New Braunfels.

During the 30-minute citizen comment period of this morning’s regular meeting, 13 people spoke, most urging commissioners to postpone a vote on the matter until stronger language, properly supporting their constituents could be added to the resolution.

Despite these requests, commissioners voted unanimously to pass the resolution as drafted, thereby failing to provide any meaningful support to the over 12,000 residents living within five miles of the proposed quarry site. By passing this ineffective resolution, commissioners continue to side with an out-of-state corporation rather than the citizens they were elected to represent.

Both the resolution text and the commissioners’ comments repeatedly cited the lack of authority and control counties have. While Comal County doesn’t have direct power through zoning or land use restrictions, the State of Texas grants counties various authorities and duties related to air, water, and public health.

Additionally, commissioners failed to include specific text that has been effective in defending citizens in similar situations—directly requesting a Contested Case Hearing from TCEQ.

During the public comment session, David Drewa stated that “other counties including Kendall, Kerr, and Burnet, have all directly requested Contested Case Hearings. So this is hardly an unprecedented action.” Drewa also cited Section 55.203 of TCEQ rules, which states that “governmental entities, including local governments and public agencies” may be considered affected persons.

Instead of using the power they do have, and working to craft language that would provide them more tools to protect the citizens of Comal County, commissioners continue to demur and merely lament their impotence. Representative Kyle Biedermann recently stated, “I’ve discussed the issue with our commissioners and told them that if they want local control of these things they need to work with my office and submit language changes they would like made in the law.”

Unfortunately, it appears that Commissioners Court is uninterested in making the effort to protect their citizens or developing the tools that will enable them to achieve more local control in the future. Commissioner Webb emailed a constituent that he had “no interest in doing a resolution purely for political purposes if it does no good other than to get people off our backs.” Yet commissioners went ahead and passed a hollow resolution that does nothing to support the citizens of Comal County.

Despite this disappointment, Stop 3009 Vulcan Quarry will continue to reach out to Commissioners Court, urging them to stand up for their constituents by passing a new, more effective resolution which includes a Contested Case Hearing request.

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Stop 3009 Vulcan Quarry is a grassroots-driven campaign opposed to Vulcan Material’s proposed 1500-acre open-pit rock quarry in a residential area of central Comal County, between Bulverde, Spring Branch, Garden Ridge, and New Braunfels.

Video 1

Introduction of resolution and citizen comments

• Introduction starts at 7:04
• Citizen comments start at 10:00

Video 2

Discussion by commissioners, vote on resolution

• Discussion starts at 0:23
• Motion and vote at 13:35

Published in March 22 New Braunfels Herald-Zeitung (subscription required)

I’m encouraged to hear the recent news that Commissioner Scott Haag plans to put forth a resolution opposing the proposed Comal County Vulcan quarry at the March 22 meeting of Commissioners Court.

A properly written resolution should request a Contested Case Hearing on TCEQ air quality permit application number 147392L001, and remind TCEQ that they are required to “give maximum consideration to local government’s recommendations” as specified in Section 382.112 of the Texas Health and Safety Code.

Passing a resolution with such language would provide some much-needed support to Comal County citizens and help defend them against the negative impacts of the proposed Vulcan quarry.

In September 2005, Kerr County Commissioners Court passed such a resolution opposing a similar rock-crushing facility near Center Point. Two days before the scheduled Contested Case Hearing, Wheatcraft, Inc. withdrew their application. Again in 2011, Kerr County supported their concerned citizens with an effective resolution, and again the applicant threw in the towel on their new quarry plans.

More recently, Burnet County and Kendall County formalized opposition to and requested Contested Case Hearings on proposed quarries and cement plants. While the final outcome of these cases is far from certain, it’s clear that with their elected county officials firmly and publicly behind them, the citizens of Burnet and Kendall counties have a much better shot at protecting their health, property values, and natural resources.

I realize counties don’t have much direct power through zoning or use restrictions, but the State of Texas does grant them various authorities and duties related to air, water, and public health. And while TCEQ is the agency tasked with evaluating and approving air quality permit applications, TCEQ has a poor track record of monitoring and enforcing compliance. Furthermore, ensuring Vulcan will not exceed air contamination limits will be impossible since there are no air quality monitors in Comal County.

To make matters worse, Vulcan Materials has repeatedly failed to abide by regulations and protect natural resources. While they talk a good game, in Texas alone over 80 formal complaints have been filed against Vulcan since 2002. Vulcan’s Loop 1604 plant has cited over 35 violations of air, storm water, and wastewater regulations during the past several years.

Even if Vulcan checks all of TCEQ’s boxes, this doesn’t mean they should be allowed to move forward with the project as described in the current permit application. We know from history that just because something is legal doesn’t mean it’s right.

Recently I’ve been reading my six-year-old son a series of books by Brad Meltzer—stories about ordinary people who helped change the world. Whether reading about Rosa Parks or Neil Armstrong, one theme stood out: just because something is a long shot doesn’t mean we shouldn’t try.

TCEQ’s tendency to ignore local government in the past is hardly reason to throw up the white flag immediately. It’s time for Commissioners Court to take action. Stand with the concerned citizens of Comal County who will most certainly be affected parties. Support the over 500 citizens who showed up and more than 50 people who spoke against this quarry at the recent public meeting.

Please do this by passing a meaningful resolution requesting a Contested Case Hearing and admonishing the TCEQ to give maximum consideration to our local county government.

I look forward to future action by Commissioners Court.

David A. Drewa
Bulverde

On Tuesday, February 13, the City of Spring Branch passed a resolution formally opposing the planned Vulcan quarry, imploring Comal County legislators to address citizens’ concerns, and urging TCEQ to conduct a contested case hearing.

City of Spring Branch Resolution No. 2018-1

Thanks to Spring Branch for joining the fight to protect our beautiful Hill Country!