An ongoing legal battle to prevent the nation’s largest producer of construction aggregates from turning a former Comal County ranch at FM 3009 and State Highway 46 into a 1,500-acre limestone quarry returns to Texas Third Court of Appeals.
A coalition of quarry opponents is asking for a rehearing “en banc” or by the full court after a three-judge panel on Sept. 29 reversed a lower-court ruling stripping Vulcan Materials of the air-quality permit it needs to proceed with the controversial project.
Two motions for rehearing were filed Oct. 31 by Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry and by Reeh Group and Comal ISD. Click here and here to review those documents.
A decision on the rehearing is expected within the next several weeks.
“That opinion was authored by an unelected, retired judge, J. Woodfin Jones, ‘sitting by assignment,'” Stop 3009 Vulcan Quarry said in a statement Monday. “Jones is not one of the current six elected judges on the Texas Third Court of Appeals.”
The group wants a “full, elected court” to rule on its assertions that
- The standard of review applied by the panel is dramatically out-of-step with other decisions made by the court.
- The exemption Texas Commission on Environmental Quality (TCEQ) gave Vulcan from a health-and-safety analysis was based on an unreasonable application of extra-regulatory TCEQ policies.
- Emissions from additional on-site sources like quarry, blasting, stockpiles, roadways, product transport plus other emission sources within 10 miles should have, but weren’t, taken into account.
- Wholesale and unquestioned deference to TCEQ and exercise and unfettered and unlimited discretion by TCEQ in the air-permitting “scheme” is a denial of due process.
“The panel showed no regard for relevant legal issues raised by Texans living and working in the area and essentially concluded Vulcan’s claims seem fine, and we trust them, no need to verify — or even see — the underlying data,” David Drewa, communications director for Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment said in September.
Jones also ruled Vulcan did not need to disclose sample data used to run its air-pollution modeling.
In their motion for a rehearing, Reeh and Comal ISD argue that Vulcan, TCEQ and an administrative law judge denied them this data.
“The proceedings resulted in a ‘trust us we saw the data and you cannot.’ This is the pinnacle of denial of due process and an abuse of discretion.”
“…When one peels back the layers of the exemptions, exceptions and exclusions in this permitting case, all that is left is a hollow process that does not account for actual emissions, impacts or hazards to human health of physical property.”
In November 2019, TCEQ granted Vulcan an air-quality permit for a rock crusher. Its decision followed several years of legal wrangling with an alliance of Comal County citizens, community groups, and Comal ISD.
Under Texas law, TCEQ can only permit a facility if it finds no indication it will harm the public’s health and physical property.
Opponents claimed the quarry would destroy property values, negatively impact water supply and quality, threaten the environment, harm nearby caves, and create traffic nightmares for over 15,000 residents who didn’t realize they’d purchased homes near a proposed major industrial development.
The area is located between Bulverde, Spring Branch, Garden Ridge and New Braunfels and stretches across nearly three miles of the environmentally sensitive Edwards Aquifer Recharge Groups.
In March 2021, 459th Civil District Court Judge Maya Guerra Gamble agreed with them and overturned TCEQ’s decision to greenlight the permit.
TCEQ and Vulcan challenged her ruling to remand and vacate by filing a notice of appeal on April 30, 2021.
