SOAH Judge Rules in Favor of Quarry Opponents
An extremely vocal coalition of area ranchers, business people, ex-military personnel and retired professionals convinced Administrative Law Judge Rebecca Smith to grant them “affected-party” status at a March 6 hearing to determine who has the right to challenge a Texas Commission on Environmental Quality (TCEQ) air permit that would allow Vulcan Construction Materials to turn the old Eric White Ranch near FM 3009 and SH-46 into a 1,500-acre open-pit limestone quarry.
Residents packed Comal County commissioners historic courtroom where they booed Winstead attorney Derek Seal, representing Vulcan, and were admonished by Judge Smith to respect all opinions at the State Office of Administrative Hearing (SOAH).
However, she ultimately agreed with the boisterous crowd that anyone who spoke at the hearing and lived within a five-mile radius of the portable rock crusher, where TCEQ will monitor air quality, has the right to speak at a contested-case hearing (CCH) in June.
Vulcan argued only those living within a two-mile radius of the rock crusher should be included at the CCH. However, residents shot back that the rock crusher can be moved and neither TCEQ nor Vulcan is required to publicly notify anyone.
Residents who were granted affected-party status must now legally ‘align’ themselves with one of the umbrella groups recognized at the hearing in order to streamline the upcoming legal battle.
Judge Smith granted affected-party status to Comal ISD, Friends of Dry Comal Creek/Stop 3009 Vulcan Quarry, Harrison Ranch Group, Greater Edwards Aquifer (GEAA), and Smithson Valley Heritage Oaks HOA.
Comal ISD Executive Director of Facilities & Construction Michael McCullar said trustees would have to authorize any legal costs associated with alignment.
Sabrina Houser Amaya, speaking for Friends of Dry Comal Creek, said she was surprised but happy with Judge Smith’s ruling.
“We are very pleased with the fairness and patience demonstrated by the ALJ today,” she said. “The next 180 days will go by quickly in terms of identifying and deposing expert witnesses and other legal activities leading up to the CCH, which we expect to occur in mid-June.”
Heading into the hearing, Houser Amaya had characterized the Office of Public Interest Council’s (OPIC) decision to consider only those living within a two-mile radius as “arbitrary and capricious and not based on any statutory law or legal limitation.”
For its part, Vulcan said it remains sincere about proving its commitment to the health and safety of the community.
“For more than a year, we’ve been listening and working with the community on developing a safe and responsible plan,” said Vulcan spokesperson Scott Burnham. “Yesterday’s preliminary hearing marked the beginning of a six-month-process, which we look forward to participating in as we continue our engagement with neighbors and the community. During that time, we will demonstrate that we have put forth a plan that is responsive to the community, protective of human health and the environment and reflective of doing things the right way.”
Houser Amaya said many of those in Friends of Dry Comal Creek/Stop 3009 Vulcan Quarry are retired professionals with scientific credentials which will enable them to challenge what they perceive as TCEQ’s lax and antiquated standards for measuring air quality.
Retired military veteran Keith Randolph, Ph.D, an experimental pathologist who moved to the area 18 months ago, said mathematical modeling estimates for Comal County do not consider actual measurement of particulate matter.
“Current studies suggest Comal County citizens are already at risk of over-exposure to respirable particulate matter,” he said. “Currently, exposure of Comal County residents to particulate matter from a proposed industrial limestone processing facility such as the proposed rock crusher is estimated by TCEQ based upon mathematical modeling estimates.”
Many of those who spoke at the hearing are retired veterans who served in harsh overseas environments and moved to the Texas Hill Country for their health as well as to enjoy outdoor hobbies like gardening.
They said they built the homes of their dreams before learning their new neighbor is a limestone quarry.
Now, several whose say their health suffers today from exposure to Agent Orange during the Viet Nam War face a new battle — this time, in their own backyards.