Posted by: micotexas | February 17, 2010

Ranchland Oaks Attorney Comments to TCEQ

The following comments on the Air Permit were sent to the TCEQ today on behalf of the Ranchland Oaks Homeowner’s Association:

707 Rio Grande Street, Suite 200
Austin, Texas 78701
(512) 469-6000 / 482-9346 [facsimile]
February 17, 2010

Ms. LaDonna Castañuela
Office of the Chief Clerk, MC-105
Texas Commission on Environmental Quality
P.O. Box 13087
Austin, Texas 78711-3087

Re:  Comments:  Application No. 91393 by H. L Zumwalt Construction, Inc., seeking coverage under the Air Quality Standard Permit for a Permanent Rock and Concrete Crusher

Dear Ms. Castañuela:

These comments are submitted on behalf of the Ranchland Oaks Home Owners’ Association.  Ranchland Oaks subdivision adjoins the Zumwalt site on its west side.  Ranchland Oaks HOA is a membership organization that has among its objectives the preservation of the qualities of the natural environment that make the properties of its members desirable.

As you may imagine, Ranchland Oaks HOA (“Ranchland”) is not supportive of the Commission’s issuance to H.L. Zumwalt Construction, Inc., (“Zumwalt”) of authorization to operate its rock crusher pursuant to the agency’s standard permit for permanent rock and concrete crushers.  Ranchland believes registration of the Zumwalt operation would abet Zumwalt’s violation of 30 TAC § 101.4.

Ranchland also believes the Zumwalt application incompletely characterizes the environmental harms associated with the proposed Zumwalt operation.   Ranchland, additionally, believes the operation Zumwalt proposes is not, in fact, within the universe of projects evaluated by the protectiveness review that supports the standard permit and, therefore, may not be registered under the standard permit.  Finally, Ranchland believes the published notice of Zumwalt’s application for registration was flawed in a significant way, so that the agency has not yet acquired jurisdiction to issue the registration Zumwalt seeks.

Of course, hanging over the Zumwalt registration request is the fact of continuing litigation by the State of Texas, Bexar County and the Edwards Aquifer Authority against Mr. Zumwalt, personally, seeking recovery of $5.7 million in response costs for the 2006 mulch fire that burned for months uncontrolled outside Helotes.  (Cause No. D01-GV-08-001195, 345th Travis County District Court.)  Ranchland does not believe further state authorizations should be extended to Mr. Zumwalt or entities he controls, until he honors his existing obligations to the state.

Incomplete characterization of impacts.  Zumwalt, in its registration application, uses emission factors from the EPA document, Compilation of Air Pollutant Emission Factors, AP-42.  Some of these emission factors can under-predict expected emission rates.  For example, Zumwalt used an emission factor to calculate potential emissions from loading product into haul trucks.  The source for this emission factor is Table 11.19.2-2 (page 11.19.2-8 in the AP-42).  As shown in the table, this factor has a quality rating of “E” (on a scale of “A” to “E,” with “E” being the lowest).  Zumwalt should have calculated potential emissions using Equation (1) as given in Section 13 in the AP-42 (page 13.2.4-4).  This equation starts with a quality rating of A but drops to a quality rating of B using non-site specific parameters.  The higher quality rating indicates that Equation (1) should provide a more reliable emission estimate than the factor used by the applicant.  A quick calculation shows that Equation (1) will result in higher predicted emissions than the emissions predicted by Zumwalt.  For example, Zumwalt has calculated an emission rate of 0.0132 TPY of PM10 from loading crushed stone into trucks.  Using the more-probably representative emission factor of Equation (1) would have revealed an emission rate of at least 0.188 TPY from the same emission point.

These underestimations of emission factors affect not just “dust,” as we (i.e., members of the public) commonly understand it.  Respirable crystalline silica (CAS # 14808-60-7) is a carcinogen.  It is a pollutant released in the course of crushing limestone rock, such as Zumwalt proposes to crush.   In its application, Zumwalt represented a 3-acre, 2-screen rock crushing operation.  It predicted a total PM10 emission rate of 4.62 TPY.  This is more than three times (3x) the 1.486 TPY estimated by TCEQ in its protectiveness review for the standard permit, assuming a similar configuration for its hypothetical rock crusher.  See, Modeling Report – Rock Crusher Standard Permit, by Larry Buller, P.E., January 2, 2006.  Even at the lower TCEQ estimate of PM10 emissions, the agency found 5 instances annually of exceedances of the effects screening levels for silica.  At the higher emission rates, one would expect the number of exceedances to greatly increase.  And, of course, Zumwalt’s higher rates are, themselves, understated, based on the AP-42 quality-of-data guidelines.  Zumwalt did not, but should be made to, model the silica impacts from its proposed facility using credible AP-42 emission factors.

Cumulative impacts. The protectiveness review for the standard permit did not purport to address the circumstance of the Zumwalt application, i.e., a rock crushing operation nestled in close proximity to at least two other large rock crushing operations.  Thus, the protectiveness review did not address the situation at hand: a crusher from which emissions might, in combination with other known sources close at hand, give rise to NAAQS violations or health impacts.  Under this circumstance, Zumwalt should not be permitted under the standard permit, not, at least, in the absence of dispersion modeling that reflects the cumulative effects of it and
the other nearby sources.

Notice issue. Section (2)(C) of the Air Quality Standard Permit for Permanent Rock and Concrete Crushers provides:

“The applicant must publish notice at least once in a newspaper of general
circulation in the municipality in which the plant is proposed to be located or in the municipality nearest to the proposed location of the crusher. “

Zumwalt published notice of its application in the Hondo-Anvil Herald on December 31, 2009.  The Publisher’s Affidavit, signed by Hondo-Anvil Herald’s Office Manager Diane Cosgrove, shows that Ms. Cosgrove listed the Hondo-Anvil Herald as a newspaper of general circulation in Hondo, Texas.  It is not disputed that the Hondo-Anvil Herald is a newspaper of general circulation in Hondo, but it must be made clear that the location of the proposed facility is 5 miles east of Mico, Texas, on Farm-to-Market-Road 471, making the nearest municipality San Antonio, not Hondo.  The proposed location for the crusher is in the San Antonio Extra-Territorial Jurisdiction and is less than 10 miles from the city limit, whereas, Hondo is around 30 miles from the proposed site. The Permit Instructions and the TCEQ Publisher’s Affidavit Form itself require that publication occur in a newspaper of general circulation in the municipality or nearest municipality to the location of the crusher.   So, Zumwalt failed to publish notice in a proper newspaper.  Therefore, Zumwalt is not in compliance with TCEQ’s requirements and instructions for published notice.  Notice is jurisdictional, and failure to provide notice is a jurisdictional defect. See Railroad Comm ‘n v. Red Arrow Freight Lines, 167 S.W.2d 249 (Tex. Civ. App.-Austin 1942, writ ref’d n.r.e.).  Jurisdictional defects are significant. See id. (holding that omission of statutorily required notice and hearing renders order void).

In conclusion. This application for registration should be denied.

Ranchland Oaks may be contacted through the undersigned attorney at the address, phone number and fax numbers of Lowerre, Frederick, Perales, Allmon & Rockwell, as provided above.

Thank you for your attention to this very important matter.  Please let me know if you need any additional information.


David O. Frederick
Xc:   Client representatives
Rep. Tracy King
Sen. Carlos Uresti



  1. It must feel good to be an attorney that gets to fight for the good guys. I’m mailing my check today. Well done, Mr. Frederick.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: