Court Rules in Favor of Comal County Neighbors in Rock Crusher Dispute

Calvin Clites Air Pollution, Environmental News

Comal County, on IH-35 between Austin and San Antonio, is rapidly urbanizing. The county is home to a growing number of families, many of whom came together to oppose the construction of the Vulcan Quarry Rock Crushing Plant in June 2019. Within 20km of Vulcan’s proposed facility there are already 14 operating quarries, most, with crushing operations, that contribute a significant amount of air pollution. Two citizen groups representing the neighbors to be affected, the Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry, hired Perales, Allmon and Ice to represent them in opposition to Vulcan’s permit application before the Texas Commission on Environmental Quality.

At the public meeting on the Vulcan Quarry application, the Friends raised their concerns over the presence of the state regulated carcinogen crystalline silica in Vulcan emissions, the level of health impact analyses required before permitting, and the sources and types of emissions that have to be included when modeling overall air quality near the Vulcan site. In November of 2019, the TCEQ rejected the Friends’ challenges to the permit and approved Vulcan’s application.  The Friends appealed that decision to court, asserting that the TCEQ had failed to protect the public’s health and physical property by failing to conduct a health review of the Vulcan quarry as required by law. They also opposed the decision because TCEQ and Vulcan excluded emissions from the quarry itself and from access roads and because the neighbors had been denied access to reputedly “trade secret” information regarding the silica and moisture content of the stone to be crushed. 

The neighbors by and large prevailed in their appeal.  In March of 2021, Travis County Judge Guerra Gamble issued a letter ruling that, “TCEQ’s silica emissions calculations are not representative of the site and are not supported by substantial evidence” and that “TCEQ’s determination that the Plant’s crystalline silica emissions will not negatively affect human health or welfare was not supported by substantial evidence”. In addition, Judge Gamble determined that “[Friends] were denied due process such that their substantial rights were prejudiced by: (1) the Administrative Law Judge’s ruling that Vulcan could maintain information from its 2016 subsurface investigation… as confidential under the trade secret privilege… and (3) TCEQ’s not requiring Vulcan to input emissions from quarries and roads into its modeling…” Consequently, Judge Gamble decided that “TCEQ’s final order on the Vulcan permit should be reversed and vacated”, preventing the construction and operation of the Rock Crushing Plant.

Perales, Allmon, and Ice congratulates the neighbors on their victory.  This decision will likely be appealed by the State and by Vulcan. That notwithstanding, the decision will prod TCEQ in future to better evaluate emissions from rock crushing plant facilities and help prevent the release of harmful air contaminants, like crystalline silica.

Friends of Dry Comal Creek and STOP 3009 Vulcan Quarry, Jeffrey Reeh, Terry Olson, Mike Olson, and Comal Independent School District v. Texas Commission on Environmental Quality and Vulcan Construction Materials, LLC, Cause No. D-1-GN-20-000941 (Travis County 2021).