Please don’t be my neighbor: How to stop a concrete batch plant from opening in your backyard
Concrete industries in Texas generate more than $10 billion in annual revenues and, together with associated support industries, employ more than 100,000 Texans each year.[1] But concrete batch plants, where raw materials are combined to create ready-mix concrete, can create environmental hazards and nuisance conditions. Participating in the permitting or siting processes for these plants can halt construction of a plant or lead to better pollution limits and other community benefits.
Residential neighborhoods are increasingly fighting permit applications by concrete batch plants, with some success. In November 2020, an administrative judge ruled in favor of Tarrant County homeowners, issuing a recommendation that TCEQ deny a concrete batch plant’s application to operate in their neighborhood (located in an unincorporated area outside Fort Worth). And in Houston earlier this year, two years of community organizing and public pressure by residents of the Acres Homes neighborhood stopped a concrete batch plant from being permitted near their homes. One day before an administrative judge was set to hear arguments against the plant, the company withdrew its environmental permit application.
How are concrete batch plants regulated?
Concrete batch plants cannot begin construction of air pollution emitting facilities until the air pollution emissions are authorized by the Texas Commission on Environmental Quality (TCEQ). Cities regulate other aspects—including where the plant is allowed to locate, how much noise it can make, and the damage allowed from heavy trucks operating on roads. Zoning laws usually prohibit industry from locating near residences, but unincorporated areas and cities which don’t have zoning laws (e.g., Houston) fall into a blind spot. As zoning laws and land use restrictions vary by municipality, this article focuses on statewide TCEQ permitting.
TCEQ air emissions permits. There are two types of permits that authorize air pollution from a concrete batch plant: (i) a Standard Permit and (ii) an Individual New Source Review (NSR) Permit. Plants producing small amounts of concrete typically operate under Standard Permits and plants producing larger amounts have to operate under Individual NSR Permits.
A Standard Permit, which is most commonly used, is a generic permit for plants located at a site producing less than 300 yd/hr. There are two versions of the Standard Permit: (a) Concrete Batch Plant Standard Permit and (2) Concrete Batch Plant Standard Permit with Enhanced Controls (the “Enhanced Controls Standard Permit”). The Concrete Batch Plant Standard Permit is available for any permanent, temporary, or specialty concrete batch plant. The criteria and requirements for the Concrete Batch Plant Standard Permit, which are quite complicated, are discussed here and here. The Enhanced Controls Standard Permit is only available for permanent concrete batch plants. The Enhanced Controls Standard Permit does not include restrictions related to the co-location of rock crushers, concrete crushers, or asphalt plants on site, and the record-keeping requirements are much reduced as compared to those under the other standard permit. Both Standard Permits have a “no visible emissions” standard—which means that no more than 30 seconds of dusty air can be observed in any 6-minute period (for the Enhanced Controls Standard Permit, 5-minute period).
Any concrete batch plant may decide to seek to authorize its emissions pursuant to an Individual NSR Permit, but it is the only avenue for large-capacity plants (i.e., plants with greater than 300 yd/hr production). The criteria and requirements for the Individual NSR Permit are discussed here and here. The terms of the Individual NSR Permit may be crafted to address the particular needs of and risks posed by the plant. Many terms in an Individual NSR Permit for a plant will mirror those in permits for other plants, but there is no real standardization of terms.
Will I receive notice if an operator wants to locate a concrete batch plant in my neighborhood?
Under current law, there is no requirement that notice of air quality permit proceedings be provided to neighbors of a proposed concrete batch plant, regardless of which air quality permit the operator seeks. But you can request to be added to TCEQ’s permanent mailing list for a specific county (which will include all air, water, and waste notices in that county). To get on the permanent mailing list, you must send a request to the chief clerk.
After TCEQ receives a permit application and determines that the required information has been submitted, the agency issues a Notice of Receipt of Application and Intent to Obtain Permit (NORI). All NORIs contain instructions for submitting comments, getting on the mailing list, requesting a public meeting, and requesting s contested hearing.
The applicant is required to publish the NORI in a newspaper and on a sign posted at the proposed location.[2] You can search for notices on the TCEQ website.
An operator wants to open a concrete batch plant in my area. What can I do to prevent the operator from obtaining the required air emissions permit?
There are complex, permit-specific deadlines and requirements for who can participate in the permitting process and how. A high-level overview is provided below.
Submit comments. Any member of the general public can submit comments regarding an air emissions permit application or renewal using the TCEQ website. TCEQ is required to review and reply to timely filed comments in a formal Response to Comments before it issues the permit.
Submitting comments on pending permit applications is often a requirement for any additional participation in the permitting process. And in order for an issue to be considered at a contested case hearing, it must have been first raised in a comment or in a request for a contested case hearing during the public comment period by the affected person or group requesting the hearing.
If you submit a comment, request a public meeting, or request a contested case hearing regarding a specific permit application, TCEQ will automatically add you to the mailing list for that application.
Request a public meeting. A public meeting is intended for the taking of public comment. TCEQ is required to hold a public meeting if the executive director determines that there is substantial public interest in the application or if a legislator who represents the general area in which the facility is located or proposed to be located requests a public meeting. On certain applications, the TCEQ will also hold a public meeting if an interested person requests one.[3]
A request for a public meeting must be submitted to the chief clerk during the public comment period and must specify that it is a request for a “public meeting” (a request for a “public hearing” will be considered a request for a contested case hearing).
Request a contested case hearing. A contested case hearing is a legal proceeding similar to a civil trial in state district court, but the hearings are conducted by the State Office of Administrative Hearings in front of an administrative law judge. In a contested case hearing, the burden is on the applicant to prove by a preponderance of the evidence that the application complies with all applicable statutory and regulatory requirements.
The right to participate as a party in a contested case hearing and the right to offer comment at a public meeting are quite different. Any person may submit an oral or written statement concerning a permit application at the public hearing.[4] But only “affected persons” are entitled to a contested case hearing. An “affected person” is statutorily defined as anyone who lives in a permanent residence within 440 yards of the proposed plant.[5]
Protest the TCEQ’s decision. Once the executive director issues a decision approving a permit application, you can contest it by submitting a request for reconsideration. Any person may file a request for reconsideration; the request must be received by the chief clerk within 30 days of the date of the decision letter and must give reasons why the decision should be reconsidered.[6] The commissioners will consider a timely filed motion for reconsideration at their agenda meetings. Oral comments are not accepted at agenda meetings unless so specified by the commissioners, and requestors may, but are not required, to attend.
Seek judicial review after administrative remedies exhausted. Judicial review of a concrete batch plant permit is available only after a party has exhausted its administrative remedies. For example, a Texas court dismissed a suit seeking review of a permit where the plaintiff had failed to request a contested case hearing during the prescribed period after notice, even though the plaintiff had submitted comments and appeared through counsel at a public hearing on the permit.[7]
Experienced counsel can help you navigate the complex statutes and regulations governing public participation in the permitting process. If you believe a concrete batch plant is considering a site in your area, you should contact counsel early to discuss your options.
[1] Concrete Batch Plants, Texas Aggregates & Concrete Association (visited Dec. 14, 2020).
[2] Tex. Health & Safety Code Ann. §§ 382.056; 382.05199; 30 Tex. Admin. Code §§ 39.603 and 39.604 (Standard Permits); 116.128 (Individual NSR permits).
[3] 30 Tex. Admin. Code § 55.154.
[4] Tex. Health & Safety Code Ann. § 382.05199.
[5] Tex. Health & Safety Code Ann. § 382.058.
[6] 30 Tex. Admin. Code § 55.201.
[7] Rawls v. Tex. Comm’n on Envtl. Quality, 11-05-00368CV, 2007 WL 1849096, at *1 (Tex. App.—Eastland June 28, 2007, no pet.)