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.)

This is the time in the Texas legislative session when our involvement can make or break bills—good and bad. HB 3114 is a very bad bill currently being considered by the House Environmental Regulation Committee. A public hearing was held in committee March 20 and the committee will vote on this bill soon. We need to make our voices heard now!

Why Is this Bill So Bad?

HB 3114 is part of an ongoing effort to undermine the hearing process and make it even easier for corporations to obtain permits by limiting or eliminating affected citizens’ rights to fight back.

While contested case hearings are far from perfect, we saw on March 6 that they do give affected individuals a hearing before an impartial judge. This piece of legislation would give TCEQ broad authority to reverse the recommendation of a contested case hearing and allow TCEQ to replace the independent SOAH judge with a lawyer hired by TCEQ—potentially creating a huge conflict of interest!

The bill is authored by Bryan Representative Kyle Kacal, who has received multiple contributions from the big quarry and concrete lobbyists.

What to Do—NOW!

Email or call (preferably both) all nine members of the House Environmental Regulation Committee (listed below). The committee will soon vote on whether to send this bill to the full house. Please urge them to vote NO on HB 3114. Explain your reasoning from the section above, read this document for more detailed talking points, or use our sample email template. Your input will be especially meaningful if you mention that you are currently involved or have been involved in a contested case hearing and appreciate the impartiality of the SOAH judge. (Also, if you have friends or relatives living in any of these districts, reach out to them: their voices as constituents may be even more powerful.)

J. M. Lozano, Chairman (Bee, Jim Wells, Kleberg, San Patricio counties)
jm.lozano@house.texas.gov
(512) 463-0463

Ed Thompson, Vice Chairman (Brazoria County)
ed.thompson@house.texas.gov
(512) 463-0707

César Blanco (El Paso County)
cesar.blanco@house.texas.gov
(512) 463-0622

Kyle Kacal (Brazos, Falls, Limestone, McLennan, Robertson counties; bill author)
kyle.kacal@house.texas.gov
(512) 463-0412

John Kuempel (Guadalupe, Wilson counties)
john.kuempel@house.texas.gov
(512) 463-0602

Geanie Morrison (Aransas, Calhoun, DeWitt, Goliad, Refugio, Victoria counties)
geanie.morrison@house.texas.gov
(512) 463-0456

Ron Reynolds (Fort Bend County)
ron.reynolds@house.texas.gov
(512) 463-0494

John Turner (Dallas County)
john.turner@house.texas.gov
(512) 463-0576

Erin Zwiener (Blanco, Hays counties)
erin.zwiener@house.texas.gov
(512) 463-0647

1. The State of Administrative Hearings (SOAH), while not perfect, currently provides a level of independence and impartiality that is important to protecting private property rights and natural resources of Texas citizens.
2. Additionally, the SOAH Sunset review in 2015 noted that the Legislature’s ongoing investment in SOAH as an independent hearing tribunal has improved fairness, reduced bias, and contained costs.
3. Should HB 3114 pass into law, a conflict of interest would exist and citizens’ rights in these cases would be further eroded. Replacing independent SOAH judges with attorneys that regularly represent either industry or environmental causes is unfair and unjust to Texans.
4. Furthermore, HB 3114 undermines the protection of Texas water—one of our most precious natural resources.

It is also important to contact your own state representative and ask him or her to personally communicate your opposition to all members of the Environmental Regulation Committee. If you live in Comal, Kendall, or Gillespie counties, Kyle Biedermann is your representative:

Kyle Biedermann
kyle.biedermann@house.texas.gov
(512) 463-0325

Stay Up to Date!

Subscribe to our email updates and follow us on Facebook for updates on HB 3114 and other pending legislation that could affect your health and our state’s natural resources.

NEW BRAUNFELS—On March 6, nearly 200 concerned Comal County citizens filled the courthouse in New Braunfels to capacity. Rebecca Smith, an administrative law judge with The Texas State Office of Administrative Hearings (SOAH) steadfastly listened to a multitude of area residents passionately list personal and medical concerns from possible exposure to and inhalation of microscopic particulate matter generated by limestone quarrying and processing.

Despite Vulcan’s own press release just 24 hours earlier stating that they will be a good neighbor, it was highlighted repeatedly that TCEQ’s draft permitting process and Vulcan’s claims that it will follow the regulations, were not sufficient to ensure citizens’ short- and long-term health and well-being, quality of life, enjoyment of personal property, and minimization of environmental impacts over the Edwards Aquifer Recharge Zone, including water sufficiency.

In the initial stages of the preliminary hearing, the judge quickly garnered agreement from all legal representatives that any resident who spoke at the preliminary hearing and lived within a two-mile radius of the rock crusher would be named an affected party.

Those citizens outside the two-mile radius were then asked to verbally attest before the judge their own reasons as to why they too should have affected party status. Citizen after citizen bravely stood up, including physicians, professional engineers, geologists, and many active and retired military service men and women, who sought refuge in Comal County due to clean and abundant water as well as non-polluted air which ensures them an active life-style and enjoyment of outside activities.

One such commenter, Keith Randolph, PhD, a retired military veteran and experimental pathologist, who moved to Comal County just over 18 months ago stated,  “Current studies suggest Comal County citizens are already at risk of over-exposure to respirable particulate matter (PM).”

Randolph added, “Currently, exposure of Comal County residents to PM from a proposed industrial limestone processing facility such as the proposed Vulcan rock crusher is estimated by TCEQ based upon mathematical modeling estimates. In Comal County these modeling methods do not take into consideration any actual measurement of PM in the air as currently TCEQ does not have air sampling stations for this purpose in the County. They rely on assumed air modeling estimates.”

Shortly after a break for lunch, Judge Smith announced that those citizens who had earlier testified had merit to be granted affected party status. She furthermore expanded the radius to five miles from the crusher to address citizens’ concerns that the permit application was for a portable crusher for which neither the TCEQ nor Vulcan could guarantee that citizens would be notified publicly of such a move or not be affected by such a move.

The judge granted party status to the following groups: Comal ISD, Stop 3009 Vulcan Quarry/Friends of Dry Comal Creek, Harrison Ranch Group, Greater Edwards Aquifer (GEAA), and Smithson Valley Heritage Oaks HOA.

“We are very pleased with the fairness and patience demonstrated by the ALJ today,” stated Sabrina Houser-Amaya. “The next 180 days will go by quickly in terms of identifying and deposing expert witnesses, and other legal activities leading up the contested case hearing, which we expect to occur in mid-June. Once we receive the final timeline we will be posting, as all the persons named affected parties are encouraged to attend the contested case hearing. We will also be hosting a community education meeting so as keep everyone up to speed with our legal efforts,” stated Houser-Amaya.

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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.

Now What Happens?

It will be approximately 180 days before the judge renders a decision in the matter. But now that the six-month legal fight has begun, fundraising for legal fees and scientific experts is critical.

Were You Named an Affected Party?

On Wednesday, the judge instructed individuals who are named affected parties to align with a group. (The judge’s written order listing all affected parties is available here.)

Alignment with Us

Stop 3009 Vulcan Quarry/Friends of Dry Comal Creek is represented by a leading environmental law firm, Frederick, Perales, Allmon & Rockwell, who will be building the case, writing briefs, conducting discovery and deposition on the applicant, organizing expert testimony, documents, and more. Aligning with our group allows you to remain involved as a named affected party—and at a much lower cost to you in time and dollars.

Important to Know

Our attorney represents our group as a whole—not any one individual. Cost for legal representation and scientific experts in the six-month contested case hearing is estimated at $150,000. So far, we have raised over $30,000 and invested over 10,000 volunteer hours.

Not Named an Affected Party?

If you couldn’t make the meeting on Wednesday, you aren’t an officially named party—even though you are sure to be affected by Vulcan’s quarry! But you can stay in the game by becoming a contributor. We will carry on the fight for you—but we need your help!

How to Contribute

The minimum contribution to align or become a contributor is $500 per household.

To contribute by check (no credit card fees), make your check payable to and mail to: Stop 3009 Vulcan Quarry, P. O. Box 310431, New Braunfels, TX 78131.

To contribute by credit card online (fees are deducted), click here.

To inquire about a payment plan, please contact stop3009vulcanquarry@gmail.com.

March 6, 2019

Thanks to the nearly 200 well-informed, passionate Comal County citizens who took time in the middle of a busy weekday morning to make their presence known at the SOAH Preliminary Hearing!

We were pleased that the administrative law judge, Rebecca Smith, granted affected party status to all who requested it—approximately 80 additional households representing around 200 individuals—some of whom live nearly five miles from the proposed quarry. Most of these individuals have chosen to align with Stop 3009 Vulcan Quarry/Friends of Dry Comal Creek and are contributing to the fund for legal representation.

Comal ISD and one other group (Harrison) were also granted affected party status. We’ll be providing updates via Facebook and email in the upcoming weeks and months. It will be approximately six months before the judge renders a decision in the matter. But now that the legal fight has begun, fundraising for legal fees and scientific experts is critical. Please make plans to attend our fundraising dinner and auction on March 29. We sincerely appreciate your support!

We absolutely cannot do this without YOUR help!

Video 1

Video 2

Video 3

Video 4

Comal County Courthouse

• 9:00 am
• Arrive 30 minutes early to allow for parking and registration
• Main Courtroom, Second Floor
• 100 Main Plaza, New Braunfels, TX 78130

This is your last chance! To request to be an affected party in the eventual contested case hearing on the Vulcan quarry air quality permit, you must attend this preliminary hearing and show how you would personally be affected. Everyone can (and should!) attend this preliminary hearing and request to be an affected person—even if TCEQ has already denied your request.

If you think affected party status for you is a long shot (e.g., you live more than five miles away), please register anyway, request affected party status, and tell the judge how this rock crusher will negatively affect your quality of life, health, and property. It is important to get as many comments and citizens as possible on the record in opposition to this permit.

About the Preliminary Hearing

This preliminary hearing is a precursor to the subsequent contested case hearing. Most testimony at this preliminary hearing will likely be oral, but written documents will help you prepare and serve as references as you address the court.

Make sure you are adequately prepared to request affected party status. Feel free to use our documents and resources to do so. However, if you aren’t able to develop a comprehensive, detailed case, please don’t give up: use our easy guide. Also consider hiring legal counsel or contributing to cover legal costs of our group’s environmental attorney.

If you intend to align with Friends of Dry Comal Creek/Stop 3009 Vulcan Quarry, you will need to make a financial contribution.

At the Hearing

• The courtroom will be crowded: arrive 30 minutes early to register and get a seat.
• Most testimony will probably be oral, but bring three or four copies of any documents or evidence you wish to present to the judge.
• 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.
• Plan on staying to the end or at least until you are called—don’t give up! Depending on how many people participate, the hearing may last a few hours.

Frequently Asked Questions

1. I just found out about the planned quarry. Where do I start?
Reviewing resources from our January 30 meeting is the best place to start if you are new to this fight. We have guides, templates, samples, instructions, presentation documents, other helpful resources, and videos of the meeting itself.

2. I already requested (and was denied) affected party status. Why try again?
Even if Vulcan and TCEQ have said in the past that you are not an affected person, that no longer matters—the decision is not up to them! The SOAH Administrative Law Judge will make a final decision on March 6 as to your affected person status. This is why it’s so important to show up on March 6! If you aren’t there, you will automatically be excluded. But if you are there and make your request, the judge may very well grant you affected person status.

3. Do I need to mail any paperwork or submit anything to TCEQ online?
No. You do not need to submit anything prior to (or even on) March 6. But having a written document to reference—even something simple—will be helpful when orally presenting your affected party request to the judge or answering the specific questions that the court may have for you. If you already submitted a contested case hearing request a few months ago, that paperwork would be very helpful to have on hand.

4. I’m so overwhelmed/confused/busy. Maybe I’ll just sit this one out.
Please don’t give up! This hearing is critically important. If you really can’t develop a comprehensive, detailed argument, that’s OK. Please show up, register, and use our easy guide as your reference.

5. I can’t make it on March 6. Can someone else speak for me?
We strongly recommend you postpone or cancel any previous engagements that you have for the morning of March 6. However, if you absolutely cannot, you should create a sworn, notarized affidavit authorizing this person to represent you. This is unusual and should only be used in extenuating circumstances since your representative may be asked questions about you and your unique circumstances. In this case, it could be helpful to have a more comprehensive written document that your representative can submit or read from on your behalf.

6. Should I still show up if I’m not requesting affected party status?
Absolutely! You can make the greatest impact by requesting affected party status—even if you live several miles away. But if for whatever reason, you will not be doing this, yes, please show up and support your neighbors by filling up the courtroom!

Still have questions? Email us at stop3009vulcanquarry@gmail.com.

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

January 30, 2019

Presentation & Documents

You do NOT need to mail in or re-submit online any template or request. We are providing these documents to guide you and for easy reference at the SOAH hearing on March 6.

Questions? Check out our FAQ

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

Video

Bulverde Spring Branch Activity Center

• 6:30 – 8:00 pm (check in at 6:00 pm)
• 30280 Cougar Bend, Bulverde, TX 78163

Were you denied affected person status by TCEQ? Maybe you live more than one mile away from the proposed Vulcan rock crusher site? You have ONE LAST CHANCE to make your case.

On December 12, the TCEQ Commissioners granted the Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry “affected person” status, but failed to recognize many others. Join us to learn about the next steps you can take when addressing the Administrative Law Judge during the State Office of Administrative Hearing. YES—you get another bite at the apple, but you must do it in person!

We will outline the next steps, time lines, legal implications and discuss how as a community, we need to coalesce and continue to Stop 3009 Vulcan Quarry.

Top Reasons to Attend

1. News updates and recent developments on proposed Vulcan quarry.

2. Learn the benefits of receiving “affected person” status.

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

On December 12, TCEQ commissioners will decide who is and who is not an affected person. But December 3 is the next critical deadline. The recent batch of documents from Vulcan (Westward/Winstead), TCEQ Office of Public Council (OPIC), and TCEQ Executive Director (ED) consist of their recommendations to the TCEQ commissioners—who they think the commissioners should name as an affected person.

Our next step in the fight against the planned Vulcan quarry is the upcoming contested case hearing. This is a legal process similar to a civil trial that allows affected parties to present how the proposed quarry will harm their health, property, or natural resources. Residents, landowners, organizations, counties, cities, and school districts may submit hearing requests.

We recommend that everyone within a five-mile radius of the proposed quarry site submit a hearing request and request to be named an affected person. For families, we suggest a separate hearing request for each person in your household, including children.

Submit Your Hearing Request & Be Named an Affected Person

TCEQ Documents

August 23 Presentation & Documents

Free Assistance

Need help preparing your hearing request, or want someone to review it? Email us at stop3009vulcanquarry@gmail.com or message us on Facebook. We’ll also be providing in-person assistance at our Fall Yard Sale & Market on Saturday, September 29. (We are not attorneys and any information we provide should not be considered legal advice. Please consult an attorney for legal counsel.)

Consider Legal Options

• Go it alone—represent yourself (not recommended)
• Hire your own attorney
• Join Friends of Dry Comal Creek, represented by the law firm of Frederick, Perales, Allmon & Rockwell. Anticipated legal costs are approximately $200,000. Initial contribution for representation is $1000 per household, but additional future contributions will likely be required. Contact us at stop3009vulcanquarry@gmail.com for questions or to join our group for legal representation.

Send Now!

We are now in the 30-day window to submit hearing requests. The deadline is October 15, 2018. Do not wait until the last minute to submit your hearing request!

You may submit your hearing request by mail, online, or both. We recommend submitting both by mail and online to avoid any potential technical errors or delays.

Submitting by Mail

Bridget C. Bohac, Chief Clerk
TCEQ, MC-105
P.O. Box 13087
Austin, Texas 78711-3087

Submitting Online

1. Go to https://www.tceq.texas.gov/agency/decisions/cc/comments.html
2. Click the Comment Online button
3. In the Permit Number box, enter 147392L001, then click Next
4. Complete the comment form
5. Click Submit to TCEQ and wait to make sure your submission is successful

Confirm

Follow our Accessing Public Comments instructions. Make sure your request is listed and the Correspondence Type column reads Hearing Request.