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 20 kilometers of Vulcan’s proposed facility, there are already 14 operating quarries, most of which have 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 2019, the TCEQ rejected the Friends’ challenges to the permit and approved Vulcan’s application. The Friends appealed that decision to the trial court with review authority for TCEQ decisions. Friends asserted 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. Friends 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 ruled some of the data and calculations Vulcan and TCEQ used were not representative of site conditions 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 should have prevailed on various other points, probably the most significant of which was that Vulcan and TCEQ erred to exclude from computer modeling dust emissions from quarry activities and haul roads. 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.
Vulcan and TCEQ appealed that decision to the intermediate appellate court in Austin. The appellate court in September 2022 generally ruled against Friends in a controversial opinion. That opinion and accompanying judgment are, as of February 2023, under reconsideration. And, of course, there is always the possibility of a further appeal to and action by the State Supreme Court. Despite the unsettled state of this litigation, Friends is to be commended for having so far shielded its members from the harmful health and quality-of-life impacts that come with industrial-scale rock quarrying and crushing.
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, No. D-1-GN-20-000941 (353rd Dist. Ct., Travis County, Tex. Apr. 1, 2021).
Texas Commission on Environmental Quality and Vulcan Construction Materials, LLC, v. Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, Jeffrey Reeh, Terry Olson, Mike Olson, and Comal Independent School District, No. 03-21-00204-CV (Tex. App – Austin Sep. 29, 2022) (mem. op.), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=58f88256-b4c0-4975-b510-508d1156bedc&coa=coa03&DT=Opinion&MediaID=4f0c1d36-7491-427d-b092-105de2ec8534.