In what Comal County environmentalists called a “slap in the face,” a three-judge panel of the Third Court of Appeals has once again cleared the way for a proposed 1500-acre rock quarry between New Braunfels and Bulverde.
Early last week, the panel reversed a district court ruling to strip the approved Texas Commission on Environmental Quality air permit from Vulcan Materials for its proposed quarry in Comal County, just north of San Antonio, effectively restoring the TCEQ permit and allowing the Alabama-based construction materials company to resume development plans.
Environmental groups including an alliance of Comal County citizens, Preserve Our Hill Country Environment, and the Greater Edwards Aquifer Alliance, have been actively fighting the creation of the quarry since 2017, said David Drewa, director of communications for Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment.
“This decision is wrong — and a slap in the face to the thousands of concerned citizens in Comal County who have worked tirelessly over the past five years fighting to protect our families, our natural resources, and our beautiful Texas Hill Country from pollution generated by an out-of-state corporation,” Drewa said in a press release about the decision.
Vulcan did not respond to a request for comment on the ruling by time of publication.
The TCEQ granted an air permit to Vulcan Materials in 2019, for the portable rock crusher in its planned quarry. In an effort to cancel the permit, Friends of Dry Comal Creek and Stop 3009 Vulcan Quarry sued TCEQ in 2020.
Last year, trial court judge Maya Guerra Gamble ruled in favor of the environmental groups, reversing and vacating TCEQ’s approval of the Vulcan air permit.
Vulcan’s proposed open-pit limestone mining quarry would stretch across nearly two and a half miles of the Edwards Aquifer recharge zone, a 1,250 square-mile area where highly faulted and fractured Edwards Limestone allows large quantities of water to flow into the aquifer.
Neighbors have continued to express growing concerns about developing over this zone and its contributing areas, worried it could affect local water quality.
They’re also worried about growing air quality concerns in the region. The air permit would allow Vulcan’s rock crusher to emit over 95,000 pounds of particulate matter — including particulates dangerous for human health such as nitrogen oxide, sulfur dioxide, and carbon monoxide, Drewa said — into the Texas Hill Country air annually.
Retired Judge J. Woodfin “Woodie” Jones authored last week’s opinion, sitting in by assignment. Jones is not one of the current six elected judges on the Texas Third Court of Appeals.
Jones’ opinion uses the term “de minimis” five times, arguing that expected contamination levels — based on 2017 modeling data submitted by Vulcan — are so low that “no further analysis by the applicant or TCEQ staff is needed.”
His opinion also noted that while there is a chance Vulcan’s crystalline silica emissions would exceed established pollution limits, Vulcan need not disclose the sample data used to run its air pollution modeling to the public or TCEQ. While opponents and the trial court argued that the sample data Vulcan collected wasn’t reliable, Jones disagreed.
“The possibility that data from the other core samples from Vulcan’s 2016 investigation could show higher silica content levels is only speculation,” he said.
Breathing in very small crystalline silica particles can cause multiple diseases, including silicosis lung cancer, chronic obstructive pulmonary disease and kidney disease, according to the Occupational Safety and Health Administration.
Drewa told the San Antonio Report Monday the groups felt confident going into the appeals court, because they said Gamble’s ruling included a great deal of supporting evidence.
The new ruling, he said, sets the environmental groups “two steps back.”
“We were very happy with the District Court’s decision, that was fairly unprecedented for a judge to rule against TCEQ on a matter like this,” Drewa said. “We’re not so happy about [the Appeal’s Court ruling].”
In the wake of the new ruling, the environmental groups are assessing future options, including rehearing requests and appealing to the Texas Supreme Court, Drewa said.
“This is not the end of the road for us,” he said.
