Mansfield TX concrete plant headed for state commission ruling

Almost exactly three years ago, businessman John Sheffield applied for an air quality permit to build a concrete batch plant in a rural neighborhood just outside of Mansfield. It didn’t take long for nearby residents to catch wind of his plans for Bosque Solutions, which is seeking to emit 13.57 tons of particulate matter, including cement dust and sand, each year.

Neither Sheffield nor the residents who challenged the permit application could have imagined the costly legal battle that followed, resulting in a case with far-ranging implications for communities across Texas fighting the arrival of industrial facilities near their homes.

After years of hearings and months of protests outside Sheffield’s home in 2018, a Texas Commission on Environmental Quality meeting on Wednesday will decide the future of the Bosque Solutions permit, and whether both parties will have to put up more money for attorney fees. The “No Neighborhood Concrete Plant” GoFundMe page has raised more than $130,000 since 2019.

“We’re the only group that’s been successful up to this point,” said Roger Hurlbut, an attorney living near the plant site and an opposition organizer. “We’re testing the entire system of TCEQ regulations. If we cannot win this, no one’s going to be able to win.”

Adam Friedman, the attorney representing nine residents living within 440 yards of the plant’s proposed site at 7327 Gibson Cemetery Road, said that, to his knowledge, the Bosque Solutions case is only the second time a challenge to a concrete batch plant earned a contested case hearing from the State Office of Administrative Hearings — and the first time a judge agreed that the air quality permit should be denied by the TCEQ.

That decision, by Administrative Law Judge Joanne Summerhays, was issued in November after an August virtual hearing. But it’s still up to three governor-appointed commissioners to determine whether to grant the permit, Friedman said. Toby Baker, the executive director of the TCEQ, has continually recommended approval of the permit in its current form.

“We’re at the mercy of the commissioners, since we’ve made our case, we won our case and nobody has proven this facility is safe,” Friedman said in a phone interview. “We manage our expectations, and we remain hopeful. But Texas is a business friendly state, and that has its positives. What we’re seeing is sort of the negative side of it, when the business is impacting your livelihood.”

Whatever happens on May 19 has the power to influence contested case hearings and concrete batch permit proceedings for years to come, according to Friedman, who said there is a “very large cloud surrounding this case” that has little to do with the particulars of Bosque Solutions. The TCEQ has approved more than 800 concrete batch permits since 2012, and those cases could be thrown into question depending on this ruling, according to Hurlbut.

The stakes could not be higher for Tarrant County residents living just outside of Mansfield city limits. Patricia Baines, one of the nine people represented by Friedman, said the arrival of Bosque Solutions in her neighborhood would be life changing.

“I’m an avid gardener, and I spend probably three or four hours every day during the summer working in my yard,” Baines said. “To not be able to do that means I’m going to be a prisoner in my own home. I’m not going to be able to get out because of fear of inhaling something that’s going to damage my health.”

Several neighbors on Gibson Cemetery Road say their preexisting conditions and proximity to the plant would cause them severe health problems they otherwise would not experience due to particulate matter pollution. Sand is used at all concrete batch plants and creates emissions of minerals like crystalline silica, which can cause lung diseases after long-term exposure, according to the Occupational Safety and Health Administration.

Larry Smitherman Sr. shares a driveway with the plant site and can see Sheffield’s existing warehouses and other operations from his back yard. Smitherman has chronic obstructive pulmonary disease, known as COPD, which he believes would get worse if the plant moves forward.

“He wants to build a concrete plant dead even with my pond,” Smitherman said of Sheffield. “My grandkids and I are down there during the summer more than we’re at the house … It’s like my grandkids don’t matter.”

Attorneys representing Sheffield and Bosque Solutions did not respond to requests for comment. At an April hearing with TCEQ commissioners, Bosque Solutions attorney Patrick Larkin said the plant is not required to test for certain pollutants under the TCEQ’s regulations. The company’s lack of testing is “not evidence of harm” to human health, he added.

In 2019, Sheffield told the Star-Telegram the project would fully comply with TCEQ health regulations.

“The TCEQ has designed health standards for batch plant operations, which we are fully prepared to comply with,” Sheffield said. “These standards are designed to be fully protective of residential rural settings.”

Sand, silica dust at the heart of controversy

Since the beginning, Bosque Solutions has attracted opposition from residents and leaders in Mansfield. Hundreds of people turned out for an October 2018 public meeting in Kennedale hosted by the TCEQ, and several more requested contested case hearings in the spring of 2019. Contested case hearings are similar to civil trials in state district court and are the only venue for Texans to challenge permit applications through the TCEQ.

Under current regulations, only residents who live within 440 yards of a proposed concrete batch plant qualify for a contested case hearing. Several legislators, including state Rep. Nicole Collier of Fort Worth, have introduced bills to increase the distance to 880 yards and require stricter permits. Collier’s proposal would increase the list of people who can request a hearing, including representatives of schools, hospitals and churches.

Chuck Crook, an engineer who lives a half mile from the plant site, said he understands the need to build concrete batch plants, which produce materials for the construction of homes and roads to keep up with rapid growth across Texas. However, he fears the plant’s operations would hurt the health of neighbors and tank property values, making it difficult for people to sell their homes without taking a loss.

“Everything is made with concrete, but not in an inappropriate place like a residential neighborhood,” Crook said. “If they don’t help us, then there’s just no hope. I’ve been here 24 years. I want to die out here. But I want to die a natural death, not suffocate slowly.”

In November, Summerhays ruled that the TCEQ should deny the permit based on two central arguments, including Bosque Solutions’ failure to notify Fort Worth officials that the plant is in their extra-territorial jurisdiction, or a buffer area just outside of city limits. The application incorrectly stated the plant would not be built in the jurisdiction of any city, according to Summerhays.

In addition, Friedman argued that Bosque Solutions failed to prove its plant would comply with emissions limits set by the TCEQ. Before 2012, concrete batch plant applicants were exempt from meeting emissions and distance limits if their permit met all other requirements.

That exemption was removed from the standard permit during the 2012 rulemaking process, according to Summerhays. In turn, Bosque Solutions incorrectly skipped the question when asked if the plant would meet emissions standards, she wrote.

To prove this point, Friedman brought in an expert witness to testify that emissions from crystalline silica are prohibited by those 2012 regulations. Crystalline silica, a common mineral in the earth’s crust, is found in sand, which is used at all concrete batch plants, according to evidence submitted to the court.

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.

Sheffield’s team did not conduct testing or submit evidence showing how much of its 13.57 tons of emissions would be sand or contain crystalline silica, Summerhays found. To meet the requirements of the permit, Bosque Solutions must show evidence that it will meet emissions limits for any chemical or pollutant without a standard established by the Environmental Protection Agency, including silica, she wrote.

That claim has been contested by Bosque Solutions and Baker, the TCEQ executive director. The agency already took into account all possible emissions from a concrete batch plant when it created the permit application and therefore determined crystalline silica emissions would not cause health issues, according to Bosque’s attorneys.

Neither the TCEQ or Bosque Solutions provided evidence during the August hearing to contest Friedman’s argument that crystalline silica emissions were prohibited under current Texas regulations, according to Summerhays.

Leaders of the TCEQ continue to support granting the permit, although the agency’s independent Office of the Public Interest Counsel has recommended the rejection of the application. In April, Baker’s office wrote a letter stating that the amount of crystalline silica used in cement batch plant operations is “negligible” and that they meet the emissions limits set by Texas law.

“The Executive Director continues to support the determination that the permit would be protective of human health and the environment, general welfare, air quality, and that the permit will not cause a nuisance so long as the plant is operated in accordance with the requirements of the standard permit,” Baker’s office wrote in the April 29 letter.

Several paths for Bosque Solutions’ future

Residents expected the TCEQ to make a final decision on the permit application last month. But, after hearing from officials like state Rep. David Cook (R-Mansfield) during an April meeting, commission chairman Jon Niermann said he was “struggling to find a clear path” to address the “pickle” facing the TCEQ. He and the two other commissioners voted to postpone their decision to May 19 so they could study the issue more carefully.

Friedman, the attorney for Mansfield residents, has presented an argument that there is an “additional (emissions) limit above and beyond the limits set out” in the TCEQ’s permit, Niermann said.

“If you read the limit as setting a limit of zero emissions for silica, it leads to almost an absurd result that you cannot emit … any silica, which is a pretty key component of concrete batch plants,” Niermann said. “If you take that argument to a logical extreme, then you can’t authorize a concrete batch plant with a standard permit.”

TCEQ staff must “undertake with great urgency” a correction to the permit language that would bring some clarity and “avoid legal arguments” that would lead to an “absurd result,” Niermann said. To Dennis Martini, one of the nine residents challenging the permit, the commission wants a “mulligan” to avoid ruling in favor of the protestants.

“Now we find out that it doesn’t matter if we win in state court,” Martini said. “It doesn’t matter if we went there because the TCEQ can just say: ‘That’s too bad. We’re not going to listen to them.’ That isn’t right. They’ve got to be responsible to somebody.”

Baker, the executive director of the commission, wrote in his April 29 letter that the commissioners should send the case back to the State Office of Administrative Hearings because the commission has “developed additional information” showing how any company with a permit is meeting air quality standards, including those involving silica.

Remanding, or kicking the case back, to state district court would deal a big blow to the residents challenging the permit, according to Jan Hurlbut, who has fundraised and canvassed neighborhoods alongside her husband Roger.

“How is it that every representative and senator and commissioner and every person that lives around here objects to this for good and substantial reasons, and you have three commissioners that have the power to disregard all of that?” Jan Hurlbut said. “We’re in the here and now and they’re trying to create the future. They still lost this legally.”

While there are statutes of limitations that might protect the TCEQ from legal challenges to its cement batch plant permits, commissioners are “uneasy” because they do not want attorneys to re-litigate previous permits or to set a precedent that opposing residents can win by using the emissions limit argument, Friedman said.

Mansfield residents are upset because they had to meet strict deadlines and ensure accuracy in their legal filings, but the TCEQ is not applying the same standard to its own regulations, Roger Hurlbut said.

“Applicants have to be so accurate in every single detail and application filled out, but when it comes to the TCEQ, they give themselves a pass,” he said. “All they’re doing is covering themselves so that they don’t have to go back and redo all these other applications.”

Both sides of the case will have the chance to appeal the decision regardless of what the commissioners do on Wednesday, Friedman said. Bosque Solutions could also pursue a new permit application addressing the issues laid out in state district court.

Mansfield residents opposing the plant, who run a Facebook page posting regular updates, have been in contact with other groups of Texans hoping to keep industrial facilities out of their neighborhoods. Any group protesting a concrete batch plant has a long path ahead of them with the TCEQ, Roger Hurlbut said.

“The one job they have is to protect us by making sure these regulations are followed,” he said. “They don’t do it, and now they’re figuring out a way to get out of it. And they’re going to have a perfect zero win for anybody who’s ever protested.”