Boerne to Bergheim Coal. for Clean Env't v. Tex. Comm'n on Envtl. Quality

• Decision Date: 16 August 2022
• Docket Number: 08-20-00035-CV
• Parties: BOERNE TO BERGHEIM COALITION FOR CLEAN ENVIRONMENT, Appellant, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and Vulcan Construction Materials, LLC, Appellees.
• Court: Texas Court of Appeals

657 S.W.3d 382

BOERNE TO BERGHEIM COALITION FOR CLEAN ENVIRONMENT, Appellant,

v.TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and Vulcan Construction Materials, LLC, Appellees.

No. 08-20-00035-CV

Court of Appeals of Texas, El Paso.

August 16, 2022

Keith A. Courtney, for Appellee Vulcan Construction Materials, LLC.

Erin Snody, Mark A. Steinbach, Austin, for Appellee Texas Commission on Environmental Quality.

Mary Conner, Charles W. Irvine, Houston, for Appellant.

Before Rodriguez, C.J., Palafox J., and Ferguson, Judge, Ferguson, Judge (Sitting by assignment)

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

This is an appeal of a final judgment in a suit for judicial review of a state agency decision. Boerne to Bergheim Coalition for Clean Environment, Appellant, filed a suit for judicial review of the Texas Commission on Environmental Quality (TCEQ or Commission) Executive Director's approval of Vulcan Construction Materials, LLC's (Vulcan)¹ application for a standard air-quality permit.² The trial court affirmed the Executive Director's decision in a final judgment.

In its sole issue on appeal, Appellant urges Section 382.052 of the Texas Health and Safety Code required TCEQ to consider the adverse short-term and long-term side effects of air contaminants on individuals attending a Montessori school within 3,000 feet of the proposed concrete batch plant site, and TCEQ failed to do so. TCEQ acknowledges Section 382.052 applies to Vulcan's application and claims it complied with Section 382.052 ’s mandate in arriving at the Executive Director's decision. Vulcan argues its application precludes compliance with Section 382.052, but nevertheless agrees TCEQ considered the possible adverse effects on schoolchildren in proximity to the plant in arriving at its decision to grant the application.

We find Section 382.052 applies to Vulcan's application for its Boerne facility. We further find TCEQ complied with Section 382.052. Appellant's sole issue is overruled.

ADMINISTRATIVE BACKGROUND

TCEQ administers permits and other activities for pollution-producing stationary sources under the Federal Clean Air Act and the Texas Clean Air Act.³ The Texas Clean Air Act is codified in Chapter 382 of the Texas Health and Safety Code. See generally TEX. HEALTH & SAFETY CODE ANN. §§ 382.001 -.510. The Environmental Protection Agency (EPA) identifies emissions causing or contributing to air pollution and sets National Ambient Air Quality Standards for those pollutants. See 42 U.S.C. § 7409 (1977). Among others, the EPA set National Ambient Air Quality Standards for particulate matter with an aerodynamic diameter less than or equal to ten micrometers (PM₁₀) and less than or equal to 2.5 micrometers (PM_2.5). See 40 C.F.R. § 50.6 (2006) ; Id. § 50.13 (2016); Id. § 50.18 (2013). Each state is responsible for submitting with the EPA a plan specifying how it intends to implement and maintain the National Ambient Air Quality Standards. See 42 U.S.C. § 7407(a)(2004).

Under the Texas Clean Air Act, anyone seeking to construct or modify a facility that emits or may emit air contaminants must obtain a permit from TCEQ. TEX. HEALTH & SAFETY CODE ANN. § 382.0518(a). The Texas Clean Air Act contains a standalone requirement to consider potential adverse side effects on attendees at any school within 3,000 feet of a proposed facility in deciding whether to issue a construction permit. Id. § 382.052.⁴

Originally, all pre-construction permits under the Texas Clean Air Act required a case-by-case review by TCEQ's predecessor agency based on Best Available Control Technology (BACT) and an air-quality analysis prepared by the applicant for the specific facility seeking a permit.⁵ According to TCEQ, the data obtained in a BACT review and air-quality analysis is reviewed and audited by TCEQ staff, who use the information to prepare a permit containing general and special conditions unique to the facility by which the permit-holder must abide. See 30 TEX.ADMIN.CODE ANN. § 116.115 (2021) (Tex. Comm'n on Envtl. Quality, General and Special Conditions).

Later, the Legislature added standard permits under the Texas Clean Air Act. TCEQ's predecessor agency identified similar types of facilities to issue a standard permit for an entire category. TEX. HEALTH & SAFETY CODE ANN. § 382.05195(a). According to TCEQ, standard permits contain uniform requirements which are compliant with National Ambient Air Quality Standards and other public health standards. The EPA approved the use of standard permits in Texas's state implementation plan (Regular Standard Permits).⁶

Concrete batch plants prepare concrete mix and emit pollutants PM₁₀ and PM_2.5.⁷ Small concrete batch plants—those producing no more than 300 cubic yards of concrete mix per hour—are eligible for a Regular Standard Permit.⁸ TCEQ's predecessor agency, in developing the Regular Standard Permit, conducted a protectiveness review.⁹ The requirements of the Regular Standard Permit were based on a previously-issued permit by rule, which included BACT for concrete batch plants, distance limitations or setbacks based on emissions estimates, computer dispersion modeling, impacts analysis, and real-world plant observations. The protectiveness review applied "worst-case assumptions" for design, layout and operation conditions, as well as "worst-case emission control situations and hourly production rates ... which could be authorized by the applicable portions of [the Regular Standard Permit]." Based on these "worst-case" assumptions, TCEQ's protectiveness review determined facilities operating in compliance with the Regular Standard Permit were protective of human health and welfare, as discussed in Section D below. The air-dispersion modeling predicted compliance with National Ambient Air Quality Standards 99.9% of the time at distances greater than one hundred feet from the facility's central baghouse.¹⁰ TCEQ conducted a new protectiveness review, which included a separate review for PM_2.5, as part of the Standard Permit Amendments made effective in 2012.¹¹

The Regular Standard Permit provides for public participation, including the ability for members of the public to request a contested-case hearing. See TEX. HEALTH & SAFETY CODE ANN. § 382.056. However, due to delays in contested-case hearings because of concerns outside TCEQ's jurisdiction, such as concerns about traffic, safety, noise, appearance, and property values, the Legislature in 2003 added the Standard Permit for Concrete Batch Plant with Enhanced Controls (CBPEC).¹² It is another standard permit for concrete batch plants, but contains enhanced emissions controls and a less cumbersome public notice and hearing procedure than the Regular Standard Permit.¹³ Distance limitations and setbacks under the Standard Permit for CBPEC are equal to or exceed those previously determined as protective under the Regular Standard Permit.¹⁴ Additionally, although a public hearing is required and public comments are allowed and must be considered by the Commission, the hearing is non-evidentiary. See TEX. HEALTH & SAFETY CODE ANN. § 382.05199(e), (f). Within thirty-five days of the public hearing, the Executive Director must approve or deny the application based on the requirements set out in the statute and issue a response to public comments received. Id. § 382.05199(e), (h) - (i).

FACTUAL AND PROCEDURAL BACKGROUND

Vulcan produces construction aggregate materials and sought a permit to construct a concrete batch plant near Boerne, Texas (hereafter, the Boerne plant). The proposed site of the plant is approximately 2,000 feet from the Hill Country Montessori School. According to comments TCEQ received from members of the public in response to the permit application, children attending Hill Country Montessori School spend significant time outdoors at play and learning, including tending to gardens and training for school athletic events. Community members concerned about construction of the Boerne plant formed the Boerne to Bergheim Coalition for Clean Environment.

Initially, Vulcan applied for a Regular Standard Permit. In response, Appellant requested a contested case hearing. Vulcan withdrew its Regular Standard Permit application and filed a new application for a Standard Permit for CBPEC. TCEQ declared Vulcan's permit for the Boerne plant technically complete on February 2, 2018.

TCEQ held the public hearing on the Boerne plant in Boerne, Texas. Over 400 community members appeared, and more than 1,200 comments were submitted to TCEQ. Approximately a month after the hearing, TCEQ's Executive Director mailed the response to the community members’ comments and issued final approval of the permit application.

Appellant filed the instant lawsuit seeking judicial review of the TCEQ Executive Director's decision approving Vulcan's application of its Boerne plant. TCEQ answered and Vulcan intervened. After each party submitted briefs on the merits, the trial court affirmed TCEQ's decision approving Vulcan's application for the Boerne plant. This appeal followed. Of the four reasons Appellant urged the trial court as bases for overturning TCEQ's decision, only the school protectiveness review is at issue in this appeal.

DISCUSSION

In its sole issue, Appellant asks us to determine "[w]hether the Texas Clean Air Act, Section 382.052 of the Health & Safety Code requires TCEQ to consider the proximity of a local school when reviewing an application for an Air Quality Standard Permit for a Concrete Batch Plant with Enhanced Controls." Appellant claims it does, but TCEQ nevertheless failed to consider it when it granted Vulcan's application for a Standard Permit for a CBPEC. Vulcan, on the other hand, claims Section 382.052 does not apply to applications for Standard Permits for CBPEC and argues TCEQ was not under any obligation to consider the proximity of a school within 3,000 feet of the proposed site of its plant. TCEQ, in contrast, does not dispute Section 382.052 applies to applications for...