TCEQ OKs Rock and Concrete Crushing Cluster in East Austin

The Dog's Head, a stretch of far East Austin's extraterritorial jurisdiction nestled in a bend of the Colorado River between U.S. 183 and SH 45, is currently a collection of dusty roads for rock and concrete crushers, and even more mining operations are moving in, despite health concerns from the surrounding residents. Meanwhile in the Lege, Senate Bill 471, a bill that looks to restrict the amount of investigation TCEQ must do on citizen complaints, passed the House Tuesday.

The Texas Commission on Environ­ment­al Quality, whose commissioners were called "reluctant regulators" by the Legislature's Sunset Commission staff last year, granted Ranger Excavating a permit last month for a permanent rock crushing plant at 300 Edwin Ln., despite 86 comments from those that live near it about the dust's possible health risks and many requests for a public meeting that never happened. The area is already home to Capitol Aggregates, Texas Concrete Materials, Aaron Concrete Contractors, Texas Materials–Hergotz Pit, and Marcelo's Sand & Loam, all located within a mile of each other – residents say dust from the crushers is a common nuisance, and they're concerned about its possible health effects. Marcelo's has now applied for another rock and concrete crushing permit in the same area, which hasn't been granted yet – its public comment period lasts till May 30.

"Our place is right at the dog's eyebrow" on Edwin Lane, says neighbor Martin Mehner, who worries about silica, a carcinogenic mineral found in concrete and rock dust. Christopher Lupone, who lives less than a mile from the proposed plant, says he's anxious about silicosis, a lung disease that can develop after breathing silica for years: "When I started reading about silicosis, it was enough of a question mark in my head ... Why wouldn't you put these things further away?" There are 250 homes within a mile of the Ranger permit.

Clustering concrete operations close together is common, says Public Citizen's Adrian Shelley, and "a standard permit process doesn't really provide an opportunity to account for the impacts of clustering." A TCEQ spokesperson told us that the standard permit applied for does not require a meeting or hearing; TCEQ will hold a public meeting if there is "significant public interest in an application" or if a state legislator requests one – significant interest being defined on a case-by-case basis.

And the agency's appraisal of a site before granting a permit can also be flawed: Dust varies by time of day and the weather, Mehner and Lupone say, and when the TCEQ investigator came to assess the problem for the Ranger permit, there was no dust. Shelley says there are even instances where "if the facility sees the investigators coming, then they might very quickly change their operations. That's not speculative, we know that happens."

The second permit is still pending, and Lupone and others have reached out to legislators and District 3 City Council Member José Velásquez, who told the Chronicle he contacted TCEQ to request a hearing on the two permits but "could not get a clear answer on whether we had jurisdiction since both properties are located in the ETJ." The last recourse may be an intervention on a legislator's part, but Sen. Sarah Eckhardt's office says she hasn't received any complaints about these permits yet. Shelley says even without a legislator's involvement, "the concern is that there were 86 comments made, and the agency doesn't see that as sufficient public interest to be granting a meeting. I don't know why they wouldn't be eager to have a meeting; bringing people together to discuss a permit can be the start of a good neighborly relationship," which could lessen the agency's administrative burden. "If anything, people are more likely to go the administrative complaint route if they can't go the friendly neighbor route," Shelley says.

Under the proposed legislation from Sen. Drew Springer, R-Muenster, citizens could have even less sway than they do now. SB 471 would give TCEQ discretion to refuse to investigate any complaint if it is unsubstantiated by the TCEQ in the last year, the complainant has complained at least five times in the last seven years, or a complaint is "repetitious or redundant." That last part creates a scenario where "you could be complaining for the first time, but if there have been repeated complaints previously, then your complaint could potentially be ignored," says Shelley.

Last year's sunset review of the agency found that of all of TCEQ's investigations, only 4.1% were initiated by citizen complaints. In a May 10 hearing on SB 471, the Greater Edwards Aquifer Alliance's Anna­lisa Peace said, "Persistent citizen complaints often indicate that the problem has not been fixed." Indeed, the Environ­mental Protection Agency is currently investigating TCEQ for its flawed permitting system.

For Shelley, "If you're in your own home and you feel like your safety or health is threatened by pollution, you're probably going to complain about that every day. I think most people would agree that you should be well within your rights to do that. An agency like the TCEQ is not exactly known for its reputation of aggressive enforcement. If [SB 471] is signed into law by the governor, which from here seems likely, that's going to provide circumstances under which TCEQ does not have to investigate complaints that are raised by Texans, and that's a real concern."

* Editor's note Thursday, May 25, 5:03pm: This story has been updated to clarify that it was the Legislature's Sunset Commission staff, not the commissioners themselves, who called the TCEQ “reluctant regulators.” The Chronicle regrets the error.