The Texas Commission on Environmental Quality has joined an aggregate company it regulates in appealing a judge’s decision that voided an air-quality permit issued to the aggregate producer.
Much at Stake
On March 5, 2021, two Texas Hill County environmental groups, Stop 3009 Vulcan Quarry and Friends of Dry Comal Creek won a lawsuit voiding the air-quality permit issued to Vulcan Materials. Vulcan needs the permit to turn a former ranch in Comal County into a 1500-acre open-pit limestone quarry and rock crushing plant. The property is in the middle of residential developments. It also sits atop the recharge zone for the Edwards Aquifer. That aquifer supplies drinking water for 2 million people.
The environmental groups’ celebration of the judge’s ruling was short-lived, however. On April 30th, the TCEQ joined Vulcan in filing an appeal.
Battle Started in 2017
The court battle between residents, Alabama-based Vulcan and the TCEQ has raged since June 2017 when Vulcan initially applied for a TCEQ air-quality permit. The groups objected. An administrative judge first supported the TCEQ and Vulcan. But District Court Judge Maya Guerra-Gamble overturned that decision. The most recent legal filing is an appeal of the appeal.
Response from Environmental Groups
In response, Stop 3009 Vulcan Friends of Dry Comal Creek said, “Unsurprisingly, TCEQ and Vulcan Construction Materials are filing a legal appeal, attempting to overturn the decision rendered by Judge 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 puzzling 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!”
Gist of Judge’s Ruling
I first reported on this issue on March 18, 2021. 459th Civil District Court Judge Guerra-Gamble ruled that:
- 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 State Office of Administrative Hearings (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.
This May 20, 2021, story by Stephanie Johnson in My Canyon Lake, an online newspaper, provides additional detail.
Whom Does TCEQ Represent?
However, some feel that the regulators have become too close with those they regulate. And there was an attempt in this year’s legislature to transfer regulation of aggregate mines to the Railroad Commission of Texas. The bill, HB4341, died in the House Environmental Regulation Committee. Notably, it would have created criminal offenses for making false statements in official documents such as permit applications and reports.
Finding Balance Between Over-Regulation and Under-Protection
If Texas is to continue to grow, it must find the right balance between over-regulation and under-protection. We must also find ways to live with the legacy of 3-mile-wide quarries, such as the one Vulcan proposes – if that is, indeed, the only way to grow.
Below is a picture of the San Jacinto West Fork. Twenty square miles of sand mines ring the river between I-69 and I-45. This area will be scarred forever.
Concrete lasts a few years, but the giant pits and the equipment concrete producers leave behind last forever. We must protect the environment that provides quality of life in order to attract new residents.
Posted by Bob Rehak on 6/4/2021
1375 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.