After an administrative judge at the State Office of Administrative Hearings denied a motion Tuesday to compel Vulcan Materials Company to disclose additional information to opponents, a contested case hearing will proceed in June as regularly scheduled.
The hearing is the next step in legal battle over the construction of a proposed 1,500-acre quarry that would be built between New Braunfels and Bulverde.
Earlier this month, a motion was filed by attorneys for the Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry in ongoing legal proceedings to compel Alabama based-Vulcan to disclose additional core sample data.
The motion was denied Tuesday. Had the motion passed, it potentially would have pushed the contested case hearing into July.
Proceedings began with a preliminary hearing on March 6, which took place in New Braunfels at the Comal County Courthouse.
Similar to a civil trial, the upcoming contested case hearing includes expert witness testimony, depositions and discovery.
“Key to the case is the question of how much air pollution Vulcan will emit and how the pollutants produced by the rock crusher will affect the over 12,000 residents living nearby,” the Friends of Dry Comal County Creek said in a statement last week. “Since Vulcan is not yet operating, TCEQ has no relevant air pollution data. Therefore, TCEQ relies entirely on air modeling to predict how much pollution Vulcan will produce. And those models are only as good as the data they are given.”
That data, cherry-picked by Vulcan, is not very complete, Friends of Dry Comal Creek implied in their statement.
“Vulcan claimed the composition of limestone they will be mining is only 0.2 percent silica,” the statement read. “We know Vulcan extracted numerous core samples from the 1,500-acre site. They submitted only a single sample analysis to support their claim. This sample may have been a composite built from several separate samples, but even that is not clear.”
Further, there is no real process of oversight that holds Vulcan accountable, said David Drewa, a representative from the Friends of Dry Comal Creek.
“There’s no chain of custody, as far as I know, TCEQ has taken Vulcan’s word for what the sample was,” Drewa said. “We don’t know how many samples they took, we don’t know what the silica concentration was from the other samples they took, and obviously it would be in their best interest to present the sample that shows the lowest silica concentration.”
The Friends of Dry Comal Creek were surprised that Vulcan can get by with only showing a single core sample data, Drewa said.
“It’s really just kind of a black box,” Drewa said.
The contested case hearing will take place June 10-12 in Austin.
“For June … both sides present their arguments, both sides present their witnesses, both sides have a chance to cross examine the other witnesses, very similar to a civil trial,” Drewa said. “(They) put forward the arguments, put forward the data, put forward their witnesses.”
It may take up to three months for the judge to render a decision, Drewa said.
“Our hope would be that the judge agrees with us that the permit, as written — the permit application would endanger and call undo harm to the citizens living in the area,” Drewa said. “Best case, the SOAH judge sends it back to TCEQ and says, ‘This is unacceptable,’ that this permit needs to be denied.”
There could be an outcome where the SOAH judge allows the approval of the application, but with added stipulations and restrictions, Drewa said.
“(Such as), ‘We need to set up fence line monitoring to get real-time air quality, and it can only move forward if that is added to the permit,’ or, ‘We need to add 500-foot buffers around the entire property,” Drewa said.
Vulcan spokesman Scott Burnham said Vulcan has no new comments at this time.
In a statement released following the March 6 hearing, Burnham stated Vulcan ‘operates in one of the most regulated industries in the country.’
“We have presented a responsible plan that demonstrates we’re committed to Comal County and that we will operate in a safe and responsible manner,” Burnham said in the statement. “We’re also committed to engaging with the community and we look forward to participating in the remainder of the permitting process.”
Without a full accounting of the facts, the actual amount of pollution this facility produces will likely be much higher than the permit allows, Friends of Dry Comal Creek said in a statement.
“We’re disappointed that Vulcan continues to hide the facts from residents living near the proposed quarry,” Friends of Dry Comal Creek said to the Herald-Zeitung. “Comal County citizens deserve to know how much air pollution the facility would create — based on the complete set of data, not a single cherry-picked sample. Vulcan loves to call itself a good neighbor, but what is the company hiding from those living nearby?”