This story has been updated.
The fight against the construction of a 1,500-acre quarry between New Braunfels and Bulverde isn’t over yet.
A ruling in September by a three-judge panel of the Third Court of Appeals, which Comal County environmentalists called “a slap in the face,” restored an air quality permit issued by the Texas Commission on Environmental Quality to Vulcan Materials, allowing construction of its Hill Country rock quarry to proceed.
Now, those who brought the original lawsuit against TCEQ have filed a request for a rehearing — this time by the full Third Court of Appeals.
Three environmental groups are behind the motion: Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment.
They are asking for a rehearing in part because the “standard of review” applied by the three-judge panel is “dramatically out of step with other decisions made by the court,” said David Drewa, director of communications for Stop 3009 Vulcan Quarry and Preserve Our Hill Country Environment.
“TCEQ simply decided, without any rule-making process or legal statute, to exempt the Vulcan rock crusher from a health effects review because the agency thought silica emissions would be low enough — and because they choose to ignore particulate matter pollution coming from sources other than the rock crusher,” Drewa told the San Antonio Report Thursday. “But there’s absolutely nothing in the Texas Clean Air Act or TCEQ rules that allow them to bypass the health and safety analysis — that is required by law — just because they think it’s not necessary.”
The groups claim the limited data Vulcan gave to the TCEQ in its air quality permit application was not complete, Drewa said — emissions from additional onsite sources, such as blasting and roadway emissions “should have been taken into account, but were not.”
Vulcan did not respond to a request for comment.
The TCEQ first granted an air quality 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, district court Judge Maya Guerra Gamble ruled in favor of the environmental groups, reversing and vacating TCEQ’s approval of the Vulcan air quality permit.
Vulcan’s proposed open-pit limestone mining quarry would stretch over nearly 2.5 miles of the Edwards Aquifer recharge zone, a 1,250 square-mile area where highly faulted and fractured Edwards limestone allows water to flow into the aquifer. The Edwards Aquifer is the primary water supply for more than 2 million people in the San Antonio and New Braunfels areas.
Residents have expressed growing concerns about development over this zone and its contributing areas, worried it could affect local water quality.
They’re also worried about the air quality in the region. The air quality permit issued by TCEQ would allow Vulcan’s rock crusher to annually emit more than 95,000 pounds of particulate matter — including those dangerous to human health such as nitrogen oxide, sulfur dioxide and carbon monoxide.
The September opinion, reversing Guerra Gamble, was authored by retired visiting Judge J. Woodfin “Woodie” Jones. Jones is not one of the six elected judges on the Texas Third Court of Appeals; Texas is using retired judges to help clear the backlog of cases caused by the pandemic.
Jones’ opinion used 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 district 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 wrote.
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.
The three-judge panel “showed no regard for relevant legal issues raised by Texans living and working in the area, and essentially concluded [that] Vulcan’s claims seem fine and we trust them,” Drewa said.
The environmental groups expect to hear a decision on their rehearing requests within the next several weeks, Drewa said.
“We want to hear from the elected judges,” Drewa said. “We’re pretty optimistic the full court will hear it.”
Correction: An earlier version of this story misstated one of the potential results of the ruling from the three-judge panel.