Restraint Of Trade, Texas Style

A case of state, county, and local officials potentially skirting the U.S. Constitution, restraining portland cement trade and foisting dubious environmental

DON MARSH, EDITOR [email protected]

A case of state, county, and local officials potentially skirting the U.S. Constitution, restraining portland cement trade and foisting dubious environmental compliance on concrete producers is brewing in the Lone Star State. It took a decisive turn last month with lawmakers’ questionable use of power and legislative process.

Identical bills (S.B. 1467, H.B. 2174) Sen. Wendy Davis (Ft. Worth, District 10) and Rep. Vicki Truitt (Southlake, District 98) introduced in the Texas Legislature allow government agencies procuring portland cement, directly or through contract awards, to give preference to suppliers milling powder with dry process versus wet process methods. The bills favor portland cement from a kiln that utilizes a dry raw material feed precalciner pyroprocessing technology, and stipulate preference to powder from an operation that meets or exceeds regulatory requirements for emissions of nitrogen oxide. A second Truitt bill (H.B. 2175) restricts Texas Department of Transportation to procurement of dry process-derived powder for work in large counties.

For those lacking the Texas dignitaries’ portland cement production insight: Wet process milling, an older technology, entails blending of raw mineral ingredients as a slurry to feed into cement rotary kilns, forming clinker at high temperature. More modern and energy efficient, dry process uses kiln exhaust to pre-heat raw materials prior to feeding into the rotary vessel. ASTM C 150-Specification for Portland Cement does not delineate Types I-V powder on the basis of wet or dry process, only finished product performance and gradation. S.B. 1467 and H.B. 2174 ignore ASTM C 150 and its role in specifications behind tens of billions of dollars invested annually in public works across Texas and the United States. H.B. 2175 ignores the overriding effect Federal Highway Administration guidelines would have on TexDOT projects it is funding.

The narrowly focused Davis and Truitt bills curtail or eliminate state or local agencies’ use of wet process-derived cement from the 1 million-ton/year Ash Grove Texas L.P. plant in Midlothian. Located just south of the Dallas-Fort Worth Metroplex, Midlothian is also home to Texas Industries and Holcim (US) Inc. mills. Countering the lawmakers’ language concerning nitrogen oxide (NOx) emissions, the North Texas Clean Air Coalition named Ash Grove the 2008 Working for Cleaner Air Employer of the Year award winner. The recognition followed installation of pollution controls reducing NOx emissions 64 percent Û to levels Ash Grove contends are lower than nine of Texas’ 13 dry process kilns.

Rep. Truitt and Sen. Davis have introduced their legislation as Ash Grove proceeds with a related lawsuit in U.S. District Court, Northern District of Texas, Dallas Division. The company challenges the legality of dry process cement-favoring procurement resolutions or motions approved by the cities of Dallas, Fort Worth, Arlington and Plano, Dallas County Schools and Tarrant County. Ash Grove seeks a preliminary injunction against the defendants, plus permanent injunction, recovery of legal fees and unspecified damages at trial.

A May 2007 Dallas City Council resolution authorized the city manager to specify dry process-derived cement as a base bid, or exert preference to suppliers using cement whose production meets an emissions benchmark of 1.7 tons of NOx/ton of clinker or less. The other defendants followed with similar measures up to November 2008, prompting Ash Grove’s appeal to the federal court. Upon filing suit, counsel Marshall Doke of Dallas-based Gardere Wynne Sewell LLP, noted, This is not a case about air quality. Ash Grove is alleging that the defendants ignored state and federal law by taking actions that stifled competition.

Stifling competition in construction materials is serious stuff. Certain Texas dignitaries might take to heart a point Gardere Wynne Sewell raises on the U.S. Supreme Court’s view of government officials’ liability for their actions: Ash Grove does not waive or intend to waive any claims it has against councilmembers and/or agents of the Defendants.