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 Downwinders At Risk - Articles: Ash Grove sues over Texas green cement resolutions

Wednesday, January 07, 2009

Ash Grove sues over Texas green cement resolutions

By DAN MARGOLIES
The Kansas City Star
Business Section

Overland Park-based Ash Grove Cement Co. is challenging “green cement” resolutions enacted by Texas municipal bodies requiring local governments to buy cement made using less-polluting methods.

In a lawsuit filed last week in federal court in Dallas, Ash Grove says the defendants, by enacting the resolutions, stifled competition and jeopardized scores of jobs and economic growth.

“This is not a case about air quality; rather, it is about whether the defendants, however well intentioned but misguided their goals might be, may ignore laws they do not wish to follow, may pass resolutions which are unfair, unwise and unlawful, and may take property away from Ash Grove in an arbitrary and capricious manner,” Ash Grove’s complaint states.

The suit names the cities of Dallas, Fort Worth, Arlington and Plano, Dallas County Schools and Tarrant County as defendants.

At issue are cement-purchasing resolutions passed first by Dallas in May 2007 and then by the other defendants. The resolutions require the municipalities to use cement manufactured by a dry kiln process or to give preference to kilns that emit no more than a certain amount of nitrogen oxide per ton of material used to make the cement.

Ash Grove operates a $200 million cement plant in Midlothian, Texas, that employs 124 people, according to its complaint. The plant uses so-called wet process kilns, which are more polluting than dry process kilns.

There are two other cement plants in Midlothian, which is just south of Dallas. The operator of one of the plants, Texas Industries Inc., indefinitely shuttered its four wet kilns in October. The company cited the economy and a shrinking construction market.

Ash Grove alleges that the green cement resolutions violate Texas law, which it says require municipal bodies to evaluate only the competence of the bidder and the quality and price of its products or services.

The suit also contends that the resolutions violate Ash Grove’s constitutional rights.

The suit drew an immediate response from Downwinders At Risk, a Dallas area pollution watchdog group, which decried it as an attempt to intimidate local officials.

“I don’t see Ford suing these cities for replacing their Crown Victorias with Priuses,” Downwinders spokesman Jim Schermbeck said in a written statement.

“Ash Grove is losing their largest customers over legitimate concerns about air pollution,” he said. “Rather than investing in a modern plant that would significantly reduce pollution, Ash Grove is investing in lawyers and suing those customers because of their legitimate concern.”

Downwinders said that Ash Grove’s kilns, which date back to 1965, are the oldest and dirtiest in North Texas.

In its complaint, Ash Grove says that it “takes its responsibility to the environment seriously” and has voluntarily reduced its nitrous oxide emissions by 46 percent between 2006 and 2008.

“Of the three cement manufacturing plants located in the Midlothian area,” it said, “Ash Grove’s Plant has the lowest total NOx emissions, representing less than approximately 25 percent of total NOx emissions from the three plants.”

The Dallas-Forth Worth region has until 2010 to comply with federal ozone standards. The Fort Worth Star-Telegram reported last December that Ash Grove was willing to slash pollution if Dallas and Fort Worth softened their green cement resolutions and Arlington agreed not to pass one. Arlington, however, went ahead and enacted its resolution a few weeks later.

Forbes magazine recently listed Ash Grove as the 372nd largest private company in the country, with estimated revenues of $1.27 billion in 2007 and 2,800 employees.

To reach Dan Margolies, call 816-234-4481 or send e-mail to dmargolies@kcstar.com.

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