Tex. Comm'n on Envtl. Quality & Vulcan Constr. Materials v. Friends of Dry Comal Creek

1

Texas Commission on Environmental Quality and Vulcan Construction Materials LLC, Appellants v. Friends of Dry Comal Creek, Stop 3009 Vulcan Quarry, Jeffrey Reeh, Terry Olson, Mike Olson, and Comal Independent School District, Appellees

No. 03-21-00204-CV

Court of Appeals of Texas, Third District, Austin

September 29, 2022

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY, NO D-1-GN-20-000941, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Kelly and Jones ^[*]

OPINION

J Woodfin Jones, Justice

The Texas Commission on Environmental Quality (TCEQ) granted Vulcan Construction Materials LLC a permit to construct a rock-crushing plant in Comal County. Various parties who had opposed Vulcan's permit application before the agency including Friends of Dry Comal Creek (Friends), Jeffrey Reeh, and others (collectively, Protestants), filed separate suits for judicial review of the Commissioners' decision in Travis County District Court. Those suits were later consolidated. The trial court reversed the bulk of the Commissioners' decision and remanded the case to the agency. Vulcan and the TCEQ perfected this appeal. We will reverse the trial court's judgment and render judgment affirming the Commissioners' order.

Factual and Procedural Background

The TCEQ regulates air pollution from stationary sources pursuant to a delegation of authority under the Federal Clean Air Act (FCAA). See 42 U.S.C. § 7410(a). The FCAA requires the U.S. Environmental Protection Agency (EPA) to identify emissions that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. The EPA sets primary and secondary National Ambient Air Quality Standards (NAAQS) for certain pollutants, identified as "criteria pollutants." See id. §§ 7408(a), 7409(a). NAAQS are levels of air quality determined to protect the public health and welfare. The six criteria pollutants for which the EPA has promulgated NAAQS include particulate matter (PM) with a diameter of 10 microns or less (PM₁₀) and PM with a diameter of 2.5 microns or less (PM_2.5).^[1] To implement these standards, each state is required to submit for EPA approval a state implementation plan. See id. § 7407(a). Each plan must include a New Source Review (NSR) preconstruction permitting scheme to control emissions from new or modified sources of air pollutants. See id. § 7410(a)(2)(C).

The FCAA's and EPA's applicable regulations provide extensive requirements for the construction and modification of "major" sources of air pollution under NSR permitting programs. See Luminant Generation Co., L.L.C. v. EPA, 675 F.3d 917, 922 (5th Cir. 2012). The present case, however, involves regulation of a "minor" source of air pollution that does not meet the major-source thresholds for total annual emissions. For minor sources, the FCAA simply requires each state implementation plan to include an NSR permitting program that ensures the NAAQS are attained and maintained in the state. Id.; 42 U.S.C. § 7410(a)(2)(C).

The TCEQ administers the requirements of the FCAA for Texas under an EPA-approved state implementation plan that includes a minor-source NSR permitting scheme. See 40 C.F.R. § 52.2270. Although the FCAA does not contain specific requirements for evaluating minor sources, the TCEQ has adopted a six-step procedure for conducting a "full" minor-source NAAQS analysis.

For criteria pollutants, the applicant must demonstrate that a proposed facility will not cause or contribute to an exceedance of the NAAQS. This demonstration is usually made through an air-quality analysis (AQA) supported by air-dispersion modeling. Air-dispersion modeling is a computer-based simulation of how pollutants emitted from a facility will disperse in the atmosphere. For numerous non-criteria pollutants, i.e., contaminants for which the EPA has not established NAAQS, the TCEQ Toxicology Division has developed Effects Screening Levels (ESLs). ESLs are not standards but rather are guidelines established to provide a high degree of certainty of protectiveness of the public health and welfare. For non-criteria pollutants, the applicant conducts a health-effects analysis in which the applicant's modeling results are compared against the ESL for the pollutant at issue. Among the non-criteria pollutants for which the TCEQ has developed an ESL is crystalline silica, the contaminant at issue in this case.^[2]

A minor-source NAAQS analysis begins with air-dispersion modeling, which is performed to calculate the off-site ground-level concentration (GLC) of pollutants that will be emitted from a proposed facility. Modeling consists of a mathematical simulation of how pollutants from emission sources will disperse in the atmosphere and what the off-site GLCs of those pollutants will be at different distances and directions. This modeling is then used in an AQA, which is used to compare the anticipated maximum ground-level concentrations (GLC_max) of pollutants to the NAAQS (for a criteria pollutant) or to the TCEQ's applicable ESL (for a non-criteria pollutant).

While the EPA does not require the use of a preliminary impact analysis in minor-source NSR permits, TCEQ uses this analysis for both major- and minor-source permits. Initially, the GLC_max of each pollutant is compared to its Significant Impact Level (SIL). The SILs are set by the EPA as minimum thresholds. When the GLCmax of a criteria pollutant is below its SIL level, the EPA expects that emissions of the pollutant will be de minimis and not degrade air quality. Phrased differently, any GLCmax of a criteria pollutant that is below its SIL is deemed of such minimal impact that it could not cause or contribute to a violation of its NAAQS. Thus, when an applicant shows that the GLC_max for a criteria pollutant is below the applicable SIL, the NAAQS demonstration is usually complete for that pollutant, such that the remaining steps of the full minor-source NAAQS analysis need not be conducted. If, however, the GLC_max for a criteria pollutant exceeds its SIL, the applicant must conduct the additional steps of a full NAAQS analysis.

A full minor-source NAAQS analysis requires modeling the maximum allowable emissions from all on-property facilities and nearby off-property sources to determine the GLCmax. The applicant must then add a representative background concentration of pollutants to the GLC_max to account for emissions from facilities and other sources that are not explicitly modeled. This calculation produces a total maximum off-site GLC, which is then compared to the applicable NAAQS. To obtain authorization under an NSR permit, the applicant's full minor-source NAAQS analysis must demonstrate that the total maximum off-site GLC for each pollutant is less than the applicable NAAQS.

The process is similar for non-criteria pollutants. When the GLCmax of a non-criteria pollutant is below the applicable SIL level, the expected emissions are de minimis and the demonstration is usually complete for that pollutant. If the GLCmax for a non-criteria pollutant exceeds the SIL, however, the applicant must conduct a health-effects analysis in which the applicant's modeling results are compared to the ESL for that pollutant.

The TCEQ does not require a health-effects review for emissions of crystalline silica from rock crushers. The agency has learned from experience and data from throughout the United States that limestone rock-crushing facilities typically emit insignificant amounts of crystalline silica in the 10 micron or smaller range. Accordingly, modeling emissions of PM and comparing them to the NAAQS-or modeling emissions of crystalline silica and comparing them to the applicable ESL-is considered by the TCEQ a sufficient level of review.

The Texas Clean Air Act (TCAA) requires that a permit be obtained by anyone planning to construct a facility that may emit air contaminants:

(a) Before work is begun on the construction of a new facility or a modification of an existing facility that may emit air contaminants, the person planning the construction or modification must obtain a permit or permit amendment from the commission.

Tex. Health & Safety Code § 382.0518(a). The Act provides that a permit will be granted if two requirements are met:

(b) The commission shall grant within a reasonable time a permit or permit amendment to construct or modify a facility if, from the information available to the commission, including information presented at any hearing held under Section 382.056(k), the commission finds:

(1) the proposed facility for which a permit, permit amendment, or a special permit is sought will use at least the best available control technology [BACT], considering the technical practicability and economic reasonableness of reducing or eliminating the emissions resulting from the facility; and (2) no indication that the emissions from the facility will contravene the intent of this chapter, including protection of the public's health and physical property.

Id. § 382.0518(b). The statutory requirements are general, leaving much discretion to the TCEQ. The agency's relevant administrative rules likewise contain few detailed requirements:

(a) In order to be granted a permit, amendment, or special permit amendment, theapplication must include: . . . .

(2) information which demonstrates that emissions from the facility . . . meet all of the following.

(A) Protection of public health and welfare.

(i) The emissions from the proposed facility will comply with all rules and regulations of the commission and with the intent of the Texas Clean Air Act (TCAA), including protection of the health and property of the public.

30 Tex. Admin. Code § 116.111(a)(2)(A)(i) (2020) (Tex Comm'n on Env'l...