Mining opponents vow to continue lawsuit after AG opinion favors TCEQ permit process

STAFF WRITER CONNIE SWINNEY

A proposed rock crusher and quarry operation south of the Texas 71 and U.S. 281 intersection drew protests from residents. A lawsuit filed by the city of Marble Falls, two property owners, and a residential development challenged the Texas Commission on Environmental Quality’s permitting process. A recent opinon by Texas Attorney General Ken Paxton was in favor of TCEQ, but the plaintiffs said they’ll keep pressing legal action. File photo

A proposed rock crusher and quarry operation south of the Texas 71 and U.S. 281 intersection drew protests from residents. A lawsuit filed by the city of Marble Falls, two property owners, and a residential development challenged the Texas Commission on Environmental Quality’s permitting process. A recent opinion by Texas Attorney General Ken Paxton was in favor of TCEQ, but the plaintiffs said they’ll keep pressing legal action. File photo

AUSTIN — Opponents of a planned rock crushing facility south of Marble Falls vowed May 17 to continue with a lawsuit aimed at halting mining operations, despite the Texas attorney general’s defense of the state’s permitting process.

Lawyers for Attorney General Ken Paxton’s office defended the Texas Commission on Environmental Quality’s approval process in an opinion request stating TCEQ “could likewise be precluded from considering local zoning, land use, and other ordinances on standard permitting decision. …”

A state lawmaker’s inquiry prompted the attorney general’s opinion, while an anti-mining lawsuit looms in the 201st Judicial District Court of Travis County.

That legal action, filed in January, will pit the city of Marble Falls, Marble Falls 300 (Gregg Ranch Development), and private property owners Grant Dean and Paul King against TCEQ in a debate about what the plaintiffs see as the disregard for local consideration in permitting.

In response to the attorney general’s opinion, the Texas Municipal League, representing the city of Marble Falls, released a statement that Paxton and TCEQ have “lost sight of the fact that localities have an important role to play in safeguarding their residents from pollution problems faced by their communities.”

One of the plaintiffs in the lawsuit said the attorney general’s opinion renewed his vow to continue the court battle.

“We’re moving forward with the lawsuit,” said Dean, spokesman for the Texas Environmental Protection Coalition, and one of two private property owners listed in the lawsuit.

“The attorney general is entitled to his own opinion, but that’s not what we believe,” Dean said. “That remains to be proven in court.”

The legal action specifically disputes TCEQ’s granting of an air quality permit for Asphalt Inc. to build a rock crushing plant southwest of the U.S. 281-Texas 71 intersection without consideration for community recommendations, future residential development, or environmental concerns.

Cities including Marble Falls, Horseshoe Bay, and Round Mountain, property owners, and the nearby Baylor Scott & White Medical Center-Marble Falls launched a months-long battle against TCEQ in 2017, which included an online commenting period, staged protests, rallies, and petitions asking TCEQ to deny Asphalt Inc.’s permit and review the state’s regulatory and permitting practices.

Despite the contentious response, TCEQ approved Asphalt Inc.’s air quality permit.

In April, the 518-acre piece of property in question was listed for sale by Austin-based Orberg Properties.

The pending lawsuit stems from the proposed rock crusher, but it also challenges the TCEQ’s permitting process and how it monitors compliance of the permit.

“Unfortunately, this isn’t the first time that a city’s attempt to protect its residents from the harmful effects of air pollution has been thwarted,” Texas Municipal League said of the attorney general’s statement.

In 2013 and 2015, the city of Houston, armed with municipal air quality codes, went head to head with rock crushing operations in legal proceedings that eventually resulted in a Texas Supreme Court ruling against the municipality.

connie@thepicayune.com

12 Responses to “Mining opponents vow to continue lawsuit after AG opinion favors TCEQ permit process”

  1. steve says:

    Marble falls allows huber mining to exist and has for over 50 years. Gregg ranch developers are from Arizona and will never live here bUT are catered to. There were many names on the petition opposing ashpalt inc of folks who live hundreds of miles away aND would not be affected. And Mr dean obviously doesn’t respect our AGS opinion on these matters. Is he using his own money for legal costs to override Paxtons opinion? Also where are all these protesters now? Have they protested all the other quarries in burnet county? And yes there is a for sale sign on ashpalt Inc’s property but their permit is still valid according to tceq webpage.

    • JD says:

      They can legally sell their air permit to another mining company who may be capable of fighting the local elements, municipalities and the public. The new owner of the air permit however is required by the TCEQ to formerly have ownership changed from the old company to the new company – this is not a difficult process. Thus, there is no reason for Asphalt Inc. to request voidance of the air permit authorization especially if a much bigger mining company is willing buy their air permit and then spend money to fight the fight. And those bigger companies do exist. It is not out of question that these local entities may end up with another fight on their hands. After all this is said and done, the local entities may have wished for Asphalt Inc.

  2. JD says:

    Why should permitting by the state of Texas consider local ordinances within their decision process? What is your beef against the mining industry? They are heavily regulated already. Instead you prefer 500 homes (for example in quantity) squished together on small plots utilizing more water, causing more traffic and inherently more mobile sources of fuel emissions than that of a rock crushing plant and its operations? That is really stupid public complainers. You have no idea what you fight. All you fight with is emotion. Get a grip.

    • steve says:

      Jd I have no beef with the mining industry personally. It’s the home developers who have the biggest beef. They have a case of nimby. There might just be another quarry south of this one in blanco though and located just crow flys distance away.

    • DH says:

      Sounds like JD might have a conflict of interest regarding mining, regardless of its impact on a community and the environment. Perhaps the mining industry is well regulated, but enforcement of those regulations isn’t. For exmple, when the TCEQ received complaints about excessive dust generation by a couple of quarries north of Marble Falls, the TCEQ called both quarries to tell them an inspection was forthcoming. Results: TCEQ reported no air quality violations of either quarry, and the dust resumed shortly thereafter. This is typical of Texas regulatory agencies. Let’s hope JD never has to experience first hand a quarry being approved that will affect his quality of life so he won’t resort to becoming one those really stupid public complainers he detests so much.

      • JD says:

        I have no conflict. I understand regulation and capitalism. When I drive down a non-paved public road on a dry day, my vehicle makes a lot of dust too. My point. Texas is dusty. Our climate leads to natural dusty days. Dust does not kill. You all are making it out as if these crushers kill people and are the worst thing on Earth. People without jobs kill, steal, rob and commit crimes. Industry is heavily regulated and yes they are not perfect but neither are you or me or the public or our legal system, etc. BTW look it up fact housing developments near quarries and their values have increased overtime. You can’t say that for other industries. Just saying. Be careful what you fight against when your fight is based on ignorance and fear.

        • South MF says:

          That is one argument I have not yet heard; comparing driving down a dusty road to a rock mining operation and crusher capable of crushing hundreds of tons of rock per hour, multiple hours a day, 365 days a year for decades, possibly centuries. All of this happening less than a few football fields in length from your home. Apples to apples? No way. And if you have paid attention to these “ignorant” people’s arguments, dust is only one issue of the many, such as blasting, light pollution, water aquifer issues, runoff pollution, property values, future development, protecting investment, etc. The issue may appear to only be air quality, mostly because that is all TCEQ regulates. They (TCEQ) are much less concerned about water, which is another huge unanswered issue. These operations use massive amounts of water, as well as mine down hundreds of feet approaching and possibly breaching the water table. Most (all?) of this happening without any oversight, and on a self-reporting basis if there happens to be an issue. If you understand industry so well, you will know many infractions will go completely unreported when millions of dollars are on the line. A quick glance in the court reports of lawsuits related to this will prove this point. This is not uncommon, and it happened at the Old Castle quarry north of MF. Sustained high capacity use of a well, as well as pollution/run-off in close proximity to the water table, and MANY people who share this underground well may suffer significantly. To my knowledge, NOBODY considers this before issuing a permit. I would also be careful in voicing your opinion that all who oppose it are ignorant and unreasonable. If you were at the open forum a few months back, you would agree most are well informed, concerned citizens who are exercising their legal constitutional right to protest using legal pathways set up just for this reason. It’s fine to disagree on the issues at hand, but to take issue and criticize people for simply voicing their concerns peacefully and legally is itself concerning.

          • steve says:

            South mf. You mention light pollution. How much light will be Emmitted from all the proposed houses or commercial developments which may be built? You mention runoff pollution. Huber has flatrock creek running through it which eventually goes into lake travis. Any studies on the effect of that? You mention future development. There would still be developments in the area regardless of the quarry.71 has developments in the area of quarries, concrete plants and an asphalt plant. If they are truly that bad then why would these developments be happening?

          • JD says:

            You describe the public’s irrational fears well. Your reacts are dataless.

          • Monique says:

            South MF, I believe you are as dumb as a rock. If you don’t like dust, get out of Texas. We have had and HOPEFULLY will continue to be Texas, and mining is NO big deal. I grew up around the sand mines in McCullough County, and if you are so ignorant that is Brady, and I did not suffer from any illness. The run off you complain about comes from us letting you in our County. No the forum did not have well informed people. As you are probably not very good at working the rock crushing plants provide road materials, foundations for homes and JOBS!!!! What a thought. Just move out of Burnet County, or even better Texas.

  3. DJY says:

    Again, I find the irony of Marble Falls joining a law suit to fight a planned rock crushing operation when it has a rock crushing AND a blasting operation, within it’s city limits, to be beyond absurd. Not to mention, the huge trucks driving through downtown and the 5AM blasting. All of which are courtesy of the JM Huber Corporation. And, memo to JMH, if you really want to have a good response to your public forum, don’t schedule it at 8AM on a Saturday morning.

    • NotJustHypocritical... says:

      I find it most interesting, say bizarre, that self absorbed people like yourself move into and/or buy homes and property in or around existing industrial activity, like mining, then moan, complain, and threaten legal action to stop the industry. They were there first. They have every legal right to do business. Why don’t you either grow up and quit whining or even better for the community, move away…I am sure your ultra liberal friends in Austin would embrace your constantly attacking, self righteous mentality. (Ps…for the left leaning ‘you must have a conflict of interest’ accusers…not at all. Not my livelihood. Just so happens some of us still have enough common sense to see past the end of our own noses.)

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