Testimony of Texas Office Director Adrian Shelley
June 28, 2021
Mr. David Munzenmaier, Air Permits Division
Texas Commission on Environmental Quality
12100 Park 35 Cir Austin, TX 78753
Re: CBP SP Amendment Registration for 2021-016-OTH-NR. Comments by Public Citizen Public Citizen appreciates the opportunity to provide these comments. We would welcome the opportunity to discuss our recommendations further. Please contact Adrian Shelley at firstname.lastname@example.org, 512-477-1155.
I. A Clerical Error, or Something More? TCEQ has said that the occasion for this rulemaking is a clerical error. TCEQ says that, during the 2012 revision of the standard permit for concrete batch plants (CBPs), a line was inadvertently deleted. That line is present in both the 2003 and the 2000 version of the standard permit for concrete batch plants. It reads: Facilities which meet the conditions of this standard permit do not have to meet the emissions and distance limitations listed in 30 TAC § 116.610(a)(1). This line is absent from the 2012 standard permit for CBPs. This omission was discovered during the administrative proceedings for a recent CBP permit application by Bosque Solutions, LLC, concrete batch plant permit application No. 152013. Nine interested parties, led by Jan and Roger Hurlbut, were represented by attorney Adam Friedman. As far as we are aware, Mr. Friedman was the first person to discover this omission since 2012. On June 9, 2021, Commissioners voted 2-1 against issuing a permit for Bosque Solutions. While that vote resolved the permitting matter, it did not resolve the question of the significance of the line deletion from the 2012 permit. The deletion at issue is an exemption from the emissions and distance limitations at 30 TAC § 116.610(a)(1) which reads: Any project that results in a net increase in emissions of air contaminants from the project other than water, nitrogen, ethane, hydrogen, oxygen, or greenhouse gases (GHGs) as defined in §101.1 of this title (relating to Definitions), or those for which a national ambient air quality standard has been established must meet the emission limitations of §106.261 of this title (relating to Facilities (Emission Limitations)), unless otherwise specified by a particular standard permit. This regulation requires standard permit applicants to comply with certain emissions limitations (those found at 30 TAC § 116.261) if their project will lead to emissions of pollutants other than the NAAQS and certain other common air contaminants. The regulation itself does contemplate exceptions (“unless otherwise specified by a particular standard permit”). The significance of the missing exception is a matter of dispute. In the Bosque Solutions case, Administrative Law Judge Kristofer S. Monson concluded that: In 2012, however, this exception was deleted from the standard permit. As a result, under the standard permit, the Plant is required to meet the emissions requirements in 30 TAC § 106.261, and by reference, § 106.262.1 This position was agreed to in testimony by TCEQ witness Mr. Donald Nelon, a Natural Resources Specialist in the Mechanical, Agricultural, and Construction Section of TCEQ Air Permits Division. ALJ Monson concluded that, “Under the applicable law, Bosque was required to demonstrate that the Application met the emissions requirements in 30 TAC §§ 106.261 and .262.”2 In the Commissioners Agenda discussion of the Bosque Solutions application, Commissioner Emily Lindley appeared to agree with Monson’s conclusion: “Bottom line, I think the applicant, Bosque, failed to demonstrate that its proposed facility is going to comply with crystalline silica emissions established in the rules.”3 TCEQ Chairman Niermann reached a different conclusion, arguing that this interpretation would lead to an “absurd result” that would render the current standard permit for concrete batch plants “useless.” Niermann said, ““It really threatens to throw the agency’s administration of the standard permits into disarray.”4
II. Absurd and Useless: The State of Concrete Batch Plant Permitting. The present confusion is a product of the current state of concrete batch plant permitting in Texas. Why are dozens of Texans commenting on an arcane error in an obscure permit? Why did a dozen state lawmakers request a comment deadline extension? If TCEQ really is just correcting a clerical error in permitting, why do so many people care? The answer is that thousands of people across Texas have been burned by concrete batch plant permitting. Plants cluster in poor and minority neighborhoods. They locate next to homes, schools, and places of worship. They operate day and night, sending noise, dust, and truck traffic into surrounding communities. They are the epitome of what the Father of Environmental Justice Dr. Robert Bullard calls “LULUs”: Locally Unwanted Land Uses. A great deal has been written about this subject over the years, including by Public Citizen. Comments that will be submitted in this rulemaking by Air Alliance Houston also detail issues with CBP permitting and siting in Texas. 1 See p. 14 of the Nov. 20, 2020 proposal for decision in TCEQ Docket No. 2019-0665-AIR; SOAH Docket No. 582-19-6473. 2 Id. at p. 15. 3 Samsel, Haley, “In ‘historic’ decision, Texas commission votes down plans for Mansfield concrete plant” Fort Worth Start-Telegram (10 June 2021) available at https://www.startelegram.com/news/local/article252030123.html. 4 Ibid. The Texas Commission on Environmental Quality has been unwilling or unable to solve these problems. The Commission has long taken the position that it lacks the authority to deny a permit application that is administratively complete. If an application is incomplete, TCEQ staff partner with the applicant for an unlimited round of “deficiency cycles” that amount to staff fixing deficient permit applications on behalf of applicants. A. The standard permit does not protect communities. The standard permit for CBPs is not adequately protective of people, their health, and their communities. There are significant blind spots in permitting at TCEQ. Cumulative impacts due to collocation of facilities is not accounted for. TCEQ considers single permit applications in a vacuum removed from other existing or pending facilities or applications. Background levels of ambient pollution are taken from monitors that are often tens of miles away from a proposed facility. This leads to unrealistic assumptions in areas where facilities are gathered. Aggregate Production Operations regularly cluster in specific areas, including near constructions sites. It is well documented that concrete batch plants are disproportionately located in low-income communities of color. There are clusters of plants, for example, in communities of color in West Dallas and in Houston’s Third and Fifth Wards. There is no accounting for environmental justice impacts in permitting at TCEQ. (Indeed, environmental justice is so taboo at TCEQ that the phrase itself is apparently banned by the agency.)
TCEQ also has no way to account for cumulative impacts from other facilities, other air contaminants, or co-vulnerabilities such as lack of access to healthcare. B. TCEQ should reconsider emissions and distance limitations. This rulemaking frames the insertion of an exception to 30 TAC § 116.610 as the correction of a clerical error. The exception at issue is from emissions and distance limitations found at 30 TAC § 106.261 and .262. The emissions limitations include: • 6.0 pounds per hour (lb/hr) and 10 tons per year (TPY) of certain contaminant including (among others): calcium carbonate, calcium silicate, cement dust, gypsum, limestone, marble, silicon, and silicon carbide. • 1.0 lb/hr of any chemical having a limit value (L) greater than 200 milligrams per cubic meter (mg/m3 ) or any chemical listed in Table 262. • No emissions of chemicals with a limit value of less than 200 mg/m3 The standard permit allows—or since 2012, was intended to allow—an exception from these emissions limits. This must be premised on an assumption or conclusion that the standard permit will be as health protective as the emissions limitations found in 261/262. Rather than simply correct a clerical error, we urge TCEQ to reconsider this conclusion in light of all available evidence of health effects of air contaminants from concrete batch plants. C. The standard permit does not clearly contain adequate and enforceable emissions limits. Wilma Subra is a chemist and technical advisor who for 40 years has provided technical assistance to citizens concerned with their environment by combining technical research and evaluation. Ms. Subra provided comments on the TCEQ proposal that we are submitting as an attachment to our comments at her request. Regarding the exemption at issue in this rulemaking, Ms. Subra concluded: 5 The exemption from emissions and distance limitations are not appropriate and are unacceptable. Concrete Batch Plants have been documented to release toxic chemicals into the air on a continuous and ongoing basis. These toxic chemicals consist of: Particulate Matter, Sulfur Dioxide, Nitrogen Oxide, Carbon Monoxide, Volatile Organic Compounds, Hazardous Air Pollutants, Benzene, Cumene, Formaldehyde, Methanol, Naphthalene, Phenol, Pyrene, Toluene, Xylene, Ethylbenzene, Chromium, Lead, Nickel. In conversation with Public Citizen staff, Ms. Subra also stated her position that emissions limits should be included in the permit in order to be clearly enforceable. Given these shortcomings in the standard permit for concrete batch plants, we do not believe that it is clearly health protective in a way that merits an exception from 30 TAC § 106.610(a)(1), and by association, 30 TAC § 116.261 and .261.
III. The 2012 Protectiveness Review is Deficient. Now we turn to a question that was asked and answered (in the negative) by TCEQ nine years ago: should applicants for a standard permit for a concrete batch plant complete an analysis of silica emissions? In the Bosque Solutions Contested Case, Adam Friedman argued for his clients that the missing exception meant that an emissions review should have been conducted under 30 TAC §106.261 and .262. Friedman contended that concrete batch plants must specifically conduct this review for silica emissions. ALJ Monson concluded that because of the 2012 clerical error, Friedman was correct: a silica analysis should have been done. In this rulemaking, the TCEQ contends that only a clerical correction is needed and (we assume) that all CBP permit issued under the 2012 standard permit are still valid.
This is a legally dubious conclusion and may subject the TCEQ to further legal challenges. Some commenters believe that no permit issued since 2012 is valid. Other commenters, including Air Alliance Houston, recommend TCEQ impose a moratorium on new CBP standard permits until a new protectiveness review can be completed for silica. Comments by Corey Williams at Air Alliance Houston detail why the previous protectiveness review of silica was inadequate. We agree with Mr. Williams’ analysis and affirm it here in our own comments. In addition to Mr. Williams’ comments about the adequacy of health-based standards for silica, we would like to add a few notes about weaknesses and possible errors in the TCEQ Interoffice Memorandum, Concrete Batch Plant Standard Permit Protectiveness Review, September 24, 2012 (the “protectiveness review,” available here). 5 Subra, Wilma “Comments on TCEQ Air Quality Standards for Concrete Batch Plant,” 22 June 2021. Included as an attachment to these comments. A. Modeling does not agree with distance limitations. The standard permit prohibits stationary equipment, stockpiles, and vehicles from being located or operated within 50 feet of a property line.6 The protectiveness review completed by the air permits division included an air quality analysis with dispersion modeling of the following emission generating facilities or activities, “material handling operations, truck loading, stock piles, cement silos, and an internal combustion engine to generate power for equipment at the site.”7 The modeling results from the air quality analysis are in Table 1 of the protectiveness review. Emissions are modeled at distances beginning at 100 feet and every 100 feet thereafter to 1,000 feet. But the standard permit for CBPS allows several of the modeled sources—including stockpiles and trucks—to be located within 50 feet of a property line. In order to show that the standard permit is in fact health protective (for all pollutants, not just silica), the modeling should have begun at 50 feet, as the permit allows some emissions sources to be located just 50 feet from neighbors. This is particularly important in certain communities, such minority communities in Houston, where CBPs are adjacent to homes. Because the 2012 protectiveness review included modeling that does not agree with the standard permit, we believe it is deficient and must be redone. B. An outdated model was used in defiance of EPA model preference. The protectiveness review used the ISCST3 model. This was not the preferred air dispersion model in 2012. The newer AERMOD model was adopted by EPA as the preferred model in November 2005. In the rulemaking adopting AERMOD, EPA reached the following conclusions: (1) AERMOD’s accuracy is adequately documented; (2) AERMOD’s accuracy is an improvement over ISC3ST’s ability to predict measured concentrations; and (3) AERMOD is an acceptable regulatory air dispersion model replacement for ISC3ST. 70 Fed. Reg. 68218, 68220 (9 Nov. 2005). In the protectiveness review, TCEQ at one point relies on EPA guidance from March 1, 2011 to support a modeling decision. It is odd that TCEQ would then ignore an earlier EPA rule from 2005 directing the use of a newer, more accurate model. We recommend that air dispersion modeling in the 2012 protectiveness review be redone with AERMOD, which is still the preferred model. 8 C. Modeling shows counterintuitive results for many pollutants. 6 See “Amendments to the Air Quality Standard Permit for Concrete Batch Plants” effective 21 Dec. 2012 at (8)(D)(ii) (temporary CBPs) and (9)(D)(ii) (permanent CBPs). 7 Id. at p. 1. 8 See 82 Fed. Reg. 5182 (17 Jan. 2017), “Revisions to the Guideline on Air Quality Models: Enhancements to the AERMOD Dispersion Modeling System and Incorporation of Approaches To Address Ozone and Fine Particulate Matter.” Second, the modeling results in Table 1 of the protectiveness review seem to show some contradictory, perhaps absurd, results. Modeling was conducted for both a 30 cubic yard per hour plant and a 300 cu. yd/hr. plant. Given that one plant is an order of magnitude larger than the other, one would expect the modeling results to show significant differences in modeled concentrations, with the 300 cu.yd./hr. plant showing more emissions. For several pollutants including formaldehyde (CHOH), carbon monoxide (CO), nickel (Ni), and sulfur dioxide (SO2) the results are identical.
There may be an explanation for this. For example: these pollutants might only be emitted by an onsite generator or engine, and in practice all facilities use the same engine operating for the same hours regardless of their size. For nitrogen dioxide (NO2), the results show identical hourly emissions but annual emissions that are nearly three times greater for the 300 cu.yd./hr. facility. It is hard to understand how identical hourly emissions can lead to dramatically different annual emissions. The 30 cu.yd./hr. facility is assumed to operate 24/7 for a full 8,760 hours or continuous yearly operation. The 300 cu.yd.hr. facility, because it has the additional 6,000 cu.yd./day limit, is modeled for the 24-hour standard using the maximum hourly rate of 300 cu.yd./hr. multiplied by (6,000/7,2000), where 6,000 cu.yd./hr. is the maximum daily production limit and 7,200 cu.yd./hr. is the theoretical maximum daily production. This difference in hours of operation only makes it more unusual that the 24-hour totals would be identical while the annual totals are so much greater for the 300 cu.yd./hr. facility. Again, there may be a plain explanation, but it is not evident in the protectiveness review. D. PM results seem to be in error, with the larger facility modeling smaller concentrations of pollution in one case. The biggest problem with the modeling results in the protectiveness review occurs in particulate matter emissions—certainly the emissions of greatest concern for a CBP. Also the emissions that one would guess would most closely track the size of the facility. PM emission at CBPs are largely a function of aggregate material throughput, and one would expect a model of a facility with roughly an order of magnitude more throughput to have proportionally more emissions. This is not the case in the modeled results. For PM10, concentrations for the 300 cu.yd./hr. facility at 100 feet are 133.01 µg/m3 . This is almost 89% of the PM10 NAAQS of 150 µg/m3 . This is close enough to the NAAQS that a closer examination, including modeling at 50 feet, seems warranted. PM10 emissions are only slightly higher for the 300 cu.yd./hr. case than for the 30 cu.yd./hr. case, perhaps 5 to 25 per cent higher. This is counterintuitive when one case is an order of magnitude larger than the other. If these results are accurate, they at least requires an explanation. Modeling of PM2.5 emissions seems to have reached an absurd result. In the following images taken from Table 2 of the protectiveness review you can see9 a comparison of PM2.5 modeling results from the 30 cu.yd./hr. case (top) to the 300 cu.yd./hr. case (bottom): 9 Sort of. This is the quality of the online versions unfortunately. The PM2.5 concentration in the 30 cu./yd.hr. case at 100 feet is 31.67µg/m3 , this is 90% of the twentyfour hour NAAQS of 35 µg/m3 . This raises a serious concern whether the modeled concentrations at 50 feet might have been above the twenty-four hour NAAQS. Comparing the PM2.5 concentrations in the 30 cu.yd./hr and 300 cu.yd./hr. cases, we see that for all but a few results the 30 cu.yd./hr. facility has larger emisisons than the 300 cu.yd./hr. facility. This result simply seems wrong. PM2.5 emissions must be a function of aggregate throughput. It seems impossible that a facility with ten times the throughput could have lower emissions. In this case, we are very skeptical there is an explanation. We assume there was an error in modeling or presentation of results. Furthermore, given that the 30 cu.yd./hr. model reached 90% of the OPM2.5 NAAQS, we are very concerned that a correction of this apparent error might lead to a modeled NAAQS violation. These issues lead us to conclude that there are clear deficiencies in the protectiveness review. These deficiencies, combined with other data about the adequacy of health-based standards presented by other commenters, strongly suggest that a new protectiveness review is needed. We recommend that the TCEQ acknowledge that there is more to this story than a single “clerical error.” If ALJ Morton’s approach to the problem were followed, and all CBP standard permit applicants since 2012 had completed a 261/262 review, perhaps the deficiencies in the protectiveness review would have been discovered sooner (and explained, if there is a simple explanation). If companies (and public health advocates) were aware that the standard permit for CBPs include this exemption, perhaps more independent scrutiny would have been given to the protectiveness review in the years since 2012. These things did not happen. The missing item in the 2012 standard permit is at least partially to blame for this.
IV. TCEQ will soon develop Best Management Practices for all Aggregate Production Operations. In this rulemaking, TCEQ staff have generously agreed to field all comments relating to the standard permit for concrete batch plants. Many of the comments received will accordingly be outside the scope of the “clerical error” at issue. In that spirit, we encourage TCEQ to seriously consider all issues raised by commenters. Again, correcting this clerical error would not have led to such significant public outcry if concrete batch plant permitting were protecting the health and safety of Texans. The 87th legislative session has just concluded and a large number of bills concerning the aggregate production operation (APO) industry were filed. One bill became law, SB 952 by Sen. Hinojosa and Rep. Walle (who originally filed the bill three sessions ago). This bill will make improvements to the plot plan submitted with permit applications. The state budget also includes the following provision:10 Aggregate Operations. Amounts appropriated above in Strategy C.1.1, Field Inspections and Complaint Response, to the Commission on Environmental Quality shall be used to adopt and make accessible on the commission’s internet website best management practices for aggregate production operations regarding nuisance issues relating to dust, noise, and light, and to conduct aerial observations at least twice per fiscal year to ensure enforcement of existing statutes and rules relating to aggregate operations. (Emphasis added.) This means that the TCEQ now has funding to develop best management practices for the APO industry. We encourage the agency to consider the comments it receives for this rulemaking in that context. To this end, I am attaching comments on best management practices I made to the House Interim Committee on Aggregate Production Operations. V. Conclusion. Again, we appreciate the opportunity to provide these comments. If you wish to discuss the issues raised, please contact Adrian Shelley at email@example.com, 512-477-1155.
Adrian Shelley Director, Public Citizen’s Texas Office
“Comments on TCEQ Air Quality Standards for Concrete Batch Plant” By Wilma Subra, Louisiana Environmental Action Network, 22 June, 2021. “Aggregate Production Operations best management practices,” Adrian Shelley, 30 Oct. 2020. 10 See S.B. 1 (enrolled version) at p. IX-113 (pdf p. 921) (modifying TCEQ Rider 21, found at p. VI-23 (pdf p. 645)), available at https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=87R&Bill=S