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.