Will Texas commission grant permit for concrete batch plant in Mansfield? Not yet
More than an hour of deliberations over the future of a concrete batch plant near Mansfield did not bring the closure Tarrant County residents had hoped for on Wednesday.
Instead, three governor-appointed commissioners voted to delay the Texas Commission on Environmental Quality’s decision to grant or reject Bosque Solutions’ air quality permit application for another three weeks.
The application, which seeks to build a plant emitting 13.57 tons of particulate matter in a rural neighborhood just outside of Mansfield city limits, has been at the center of a three-year legal battle with far-reaching consequences for communities across Texas challenging the arrival of industrial facilities near their homes.
While a final vote has been postponed to June 9, commission chairman Jon Niermann outlined a roadmap for the case that will likely end in the TCEQ overruling a Texas judge’s recommendation to deny the permit. Over the next few weeks, the commission will draft a motion dissecting the judge’s order and overturning her legal interpretation of air quality regulations, Niermann said.
“Of our two choices, to deny the authorization or proceed on a different legal interpretation to authorize the facility, I’m in favor of doing that,” Niermann said. “Given all the work that goes into (the motion) and to make sure that we do it carefully, we need to continue this item yet another time in order to allow us to do that work.”
Bob McClacherty, who lives near the plant site, said he and the other eight residents who challenged the permit in court are planning to meet with their attorney, Adam Friedman, to discuss potential next steps. Like some of his neighbors, McClacherty has chronic obstructive pulmonary disease, known as COPD, and fears that the plant’s pollution would make it worse.
“I was very optimistic up until today, and I’m not quite so optimistic now,” McClacherty said. “There’s people that live closer to the plant than I do, and I know they have severe health problems, too. They’re going to be catching the brunt of it, but none of that even got entered into today. They didn’t look at the people affected or anything else.”
Plant’s path to Texas commission hearing
Bosque Solutions has faced opposition since businessman John Sheffield first applied for an air quality permit in May 2018. For months, residents protested outside Sheffield’s Arlington home. Hundreds of people showed up at a Kennedale restaurant for an October 2018 public meeting hosted by the TCEQ.
In 2019, nine homeowners living within 440 yards of the site at 7327 Gibson Cemetery Road sought a contested case hearing from the State Office of Administrative Hearings, citing health concerns. The hearing is similar to a civil trial in state district court and is the only venue for Texans to challenge TCEQ permit applications.
That hearing took place last August and ended with a November decision from Judge Joanne Summerhays, who recommended the rejection of the permit by the TCEQ. Summerhays’ decision was the first time a judge ruled against granting an air quality permit for a concrete batch plant in Texas, according to Friedman.
Bosque Solutions failed to prove the plant would meet emissions limits set out by the TCEQ, especially when it came to crystalline silica, Summerhays found. People who inhale very small crystalline silica particles are at increased risk of developing diseases like lung cancer, COPD, kidney disease and silicosis, an incurable lung disease, according to the Occupational Safety and Health Administration.
Friedman argued that emissions of crystalline silica — found in sand, a common ingredient at all concrete batch plants — are entirely prohibited by Texas regulations. Previously, concrete batch plant operators were exempt from filling out a section of the application about emissions limits.
But, unbeknownst to Bosque Solutions, that exemption was removed in 2012. Company lawyers said the TCEQ already took into account all possible emissions from a plant and therefore determined crystalline silica emissions would not cause health issues.
Sheffield, who spoke briefly at the Wednesday hearing, said he would “fully comply with any regulations” that the TCEQ puts on crystalline silica or other emissions.
‘Competing’ views of air regulations decide case
At an April commission meeting, TCEQ leaders appeared ready to send the case back to court for more evidence on whether Bosque Solutions’ plant could meet legal limits for crystalline silica. But, as Niermann said on Wednesday, it appears “very doubtful” that Bosque Solutions could prove that there would be zero emissions of silica from the facility.
“I was hoping to avoid getting into competing legal interpretations, but given where we are and that a remand would be futile and accepting more evidence is not going to accomplish anything, I think we just need to take up those competing legal interpretations and evaluate them,” Niermann said.
The case will come down to contrasting views of Texas air quality regulations, which do not mention crystalline silica by name but state that a chemical with “a limit value of less than 200 milligrams per cubic meter is not allowed under this section.” To Friedman, this means that the limit for silica emissions in Texas is zero.
Niermann sees it differently. That clause means silica is outside the scope of what Texas regulates, not that those emissions are not allowed at all, he said.
“Considering that an emission limit of zero is draconian and beyond what’s required to protect public health and the environment, I don’t think (Friedman’s argument) is the best reading,” Niermann said.
So what does this mean for Friedman, his clients and the future of Bosque Solutions’ permit application? If Niermann and the commissioners vote to reject the judge’s recommendation and grant the permit, Friedman can file for “judicial review opportunities in district court,” according to the TCEQ’s regulations. That option will cost both sides more in attorney fees, which have already soared past $130,000 for the nine homeowners outside of Mansfield.
In addition, Toby Baker, the executive director of the commission, is planning to bring back the exemption for concrete batch plants, according to Amy Browning, a TCEQ staff attorney. This means that plant operators will not be required to explain how they will meet emissions limits on their standard applications. Baker supports granting the Bosque Solutions permit in its current form.
More than 800 concrete batch permits have been approved since 2012, when the exemption was removed. State Rep. David Cook, the former mayor of Mansfield, asked the commissioners on Wednesday to not “change the rules” on homeowners based on their future plans to bring the exemption back.
“The case must be decided from the laws and science that were in effect and available in August of 2020 when Judge Summerhays conducted a full and fair hearing in accordance with the laws of the state of Texas, including the existing regulations of TCEQ,” Cook said. “That’s the fair thing to do and that’s the right thing to do in denying this application.”
For McClacherty, who lives on Gibson Cemetery Road, the ongoing legal challenges have been a “roller coaster” of emotions. Residents fear the neighborhood could turn into an industrial district within five years if the plant moves forward, he said, but McClacherty doesn’t plan to sell.
“They may buy up everybody else around me and build around me,” McClacherty said. “There are several people who said they’re not leaving, regardless of what happens.”
This story was originally published May 19, 2021 at 4:44 PM.
