State rejects hearing requests regarding Midlothian cement plant’s pollution plan

More than a year of protests and organizing from Midlothian activists came down to a few minutes of discussion last week among top leaders at the Texas Commission on Environmental Quality. The result was not what Laura Hunt or Midlothian Breathe, her group fighting cement plant pollution in Ellis County, had hoped for.

State commissioners voted unanimously to reject hearing requests from 35 residents who argued that cement manufacturer Holcim US Inc.’s application to increase carbon monoxide emissions at its Midlothian plant would negatively affect their health and the environment.

Hunt, a pediatrician who co-founded Midlothian Breathe in September 2019 after learning of Holcim’s application, was among those who filed for a contested case hearing. Residents who believe they will be personally affected by an industrial permit are eligible to apply for hearings, which are similar to civil trials in state district court.

“It’s frustrating but not that surprising, and really overall, I just feel a kind of relief,” said Hunt, whose daughter experienced severe respiratory issues after the family moved to Midlothian in 2015. “It’s hard to be fighting something long term when you have limited ability to influence the outcome. Now with our offensive — air monitoring projects, more community education, legislative action — we honestly seem to have more power to influence those outcomes.”

After Midlothian Breathe successfully pushed for a public meeting in August, the commission gave initial approval to Holcim’s bid to burn more petroleum coke, a solid carbon material that resembles coal and can lead to particulate matter pollution, according to the Environmental Protection Agency. During the March 31 meeting, commissioners voted to make that decision final.

The permit gives Holcim permission to increase its maximum output of carbon monoxide from about 4,300 tons to 7,100 tons per year, the Star-Telegram reported last year. A recent analysis of state pollution data published by Paul Quinn College found that Holcim was the No. 1 industrial polluter in North Texas in 2019. Four of the top five industrial polluters in the region call Midlothian home, according to the report.

Jocelyn Gerst, a spokeswoman for Holcim, said the company has been in the Midlothian community for almost four decades and is committed to protecting the health of its 130-plus employees and the public.

“Our team has worked diligently to develop an application that meets federal and Texas air quality standards as we support the construction of critical infrastructure for communities, as well as home and commercial construction that promotes local and regional economic growth,” Gerst wrote in an email.

While the commissioners were unanimous in their vote to dismiss the hearing requests, there was disagreement within the Texas Commission on Environmental Quality about whether to allow the hearings to move forward.

In February, Garrett Arthur, a senior attorney with the commission’s independent Office of the Public Interest Counsel (OPIC), recommended that commissioners grant hearing requests from Hunt and 10 other applicants, including Midlothian Breathe.

The reason? All of those residents can be considered “affected persons” due to their proximity to Holcim as well as their personal concerns about health effects and air quality, according to Arthur. Because Holcim is classified as a “significant source of air emissions” by federal standards, even residents who live farther from the facility could be considered affected persons, Arthur wrote.

However, Toby Baker, the executive director of the agency, recommended the rejection of all contested case hearings because residents lived farther than a mile from Holcim and can’t prove they are at higher risk of suffering from emissions than other members of the general public.

Fewer than 10 of the people who requested a hearing cited a personal concern, and of those who did, the closest lives 1.21 miles from Holcim’s plant, commissioner Jon Niermann said during the March 31 meeting.

“The question in my mind is really whether at that distance a person is affected in a manner different from the general public,” Niermann said. “There would be considerable dispersion at more than a mile from the fenceline. At the distance of the nearest requester, it seems to me that a person is not affected in a manner different from the general public.”

Arthur, the senior attorney, wrote in February that there “are no distance restrictions imposed by law on whom may be considered an affected person” when it comes to cement plants. That’s not the case with concrete batch plants, where residents must live within 440 yards to be considered “affected.”

Hunt said the one-mile requirement is arbitrary and intentionally vague, especially given that Holcim owns nearly all of the property that makes up the land within one mile of the site.

“There’s nothing written into stone to really define what is the maximum distance where you can be considered an affected party,” Hunt said. “It’s a moving target, depending on the commissioners’ convenience and the convenience of industry.”

Jane Williams, a long-time environmental activist who chairs the Sierra Club’s National Clean Air Team, said Midlothian Breathe’s predicament is not unique to Texas.

“No matter what state you’re in, no matter what local jurisdiction you’re in, these cement plants are very savvy at getting local authorities to be friendly toward whatever they want to do,” Williams said. “You’re really in a David v. Goliath battle from the beginning. You’re fighting not only the industry, but also usually the process of the state government.”

Holcim’s permit will go through its final steps in the next few months, unless Midlothian Breathe or other residents decide to file for a rehearing from the commissioners. That option is still a “little up in the air,” Hunt said, as she and Midlothian Breathe consult with an environmental lawyer they retained in case their contested case hearing requests were granted.

In the meantime, Hunt remains involved with Texans for Responsible Aggregate Mining, a coalition of 16 activist groups that launched in September to fight for more statewide regulations on sand and gravel amines along with cement, concrete and asphalt plants.

More Midlothian residents have expressed interest in purchasing and deploying PurpleAir monitors, a brand of low-cost air quality sensors that have become increasingly popular among environmental activists in North Texas, Hunt said.

As COVID-19 restrictions ease, she hopes to engage neighbors at public events and bring more attention to the issues she has discovered through her research with Midlothian Breathe. The group plans to continue its role as “watchdog and interpreter for the community,” she said.

“One of our Midlothian Breathe members said the other day, unprompted: ‘There’s been some ups and downs with our group over time, but in spite of what’s happened, we’re in an upswing right now,’” Hunt said. “We’re in a good place.”