Citizens Against the Landfill in Hempstead Michael McCall Wayne Knox And the City of Hempstead v. Texas Commission on Environmental Quality and Pintail Landfill, L.L.C. ( 2015 )

ACCEPTED
03-14-00718-CV
4673712
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 1:44:11 PM
JEFFREY D. KYLE
CLERK
Appeal No. 03-14-00718-CV
IN THE COURT OF APPEALS FOR FILED IN
3rd COURT OF APPEALS
THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN 3/27/2015 1:44:11 PM
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD;JEFFREY
MICHAEL D. KYLE
Clerk
McCALL; WAYNE KNOX; and THE CITY OF HEMPSTEAD,
Appellants,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
and PINTAIL LANDFILL, LLC,
Appellees.
BRIEF OF APPELLEE, TEXAS COMMISSION
ON ENVIRONMENTAL QUALITY
On Appeal From the 201st Judicial District Court,
Travis County, Texas, Cause No. D-1-GN-13-002918
KEN PAXTON NANCY ELIZABETH OLINGER
Attorney General of Texas Assistant Attorney General
State Bar No. 15254230
CHARLES E. ROY
First Assistant Attorney General CYNTHIA WOELK
Assistant Attorney General
JAMES E. DAVIS State Bar No. 21836525
Deputy Attorney General for Civil
Litigation DANIEL C. WISEMAN
Assistant Attorney General
JON NIERMANN State Bar No. 24042178
Chief, Environmental Protection Environmental Protection Division
Division P. O. Box 12548
Austin, TX 78711-2548
Tel: 512.475.4013 / Fax: 512.320.0052
ATTORNEYS FOR APPELLEE, TEXAS COMMISSION
ON ENVIRONMENTAL QUALITY
Date: March 27, 2015
ORAL ARGUMENT CONDITIONALLY REQUESTED
TABLE OF CONTENTS
Page
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. The TCEQ did not err by authorizing Pintail’s transfer
station’s activities by registration, rather than permit.
(Responsive to Appellants’ First Issue). . . . . . . . . . . . . . . . . . . . . . . . 1
2. The TCEQ’s issuance of the registration did not violate
any due process rights. (Responsive to Appellants’
Second Issue). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. The TCEQ did not err by issuing more than two notices
of deficiency. (Responsive to Appellants’ Third Issue). . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. The TCEQ did not err by authorizing Pintail’s transfer
station’s activities by registration, rather than permit.
(Responsive to Appellants’ First Issue). . . . . . . . . . . . . . . . . . . . . . . . 8
A. The TCEQ had authority to issue the registration for
Pintail’s Type V transfer station.. . . . . . . . . . . . . . . . . . . . . . 9
ii
1. The TCEQ has broad regulatory authority.. . . . . . . 11
2. The TCEQ’s rules provide for authorization by
registration for many solid waste management
activities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. The TCEQ properly interpreted 30 Tex. Admin.
Code § 330.9(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. 30 Tex. Admin. Code § 330.9(f) was not applied
to Pintail’s registration application... . . . . . . . . . . . . 15
III. The TCEQ’s issuance of the registration did not violate any
due process rights. (Responsive to Appellants’ Second Issue).. . . 18
IV. The TCEQ did not err by issuing more than two notices of
deficiency. (Responsive to Appellants’ Third Issue). . . . . . . . . . . . 21
A. The TCEQ is not limited to two NODs.. . . . . . . . . . . . . . . . 25
B. The TCEQ acted reasonably.. . . . . . . . . . . . . . . . . . . . . . . . 26
CONCLUSION AND PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
LIST OF ACRONYMS AND SHORTHAND TERMS. . . . . . . . . . . . . . . . . . . 34
INDEX TO APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
iii
INDEX OF AUTHORITIES
Cases Page
City of El Paso v. Pub. Util. Comm’n,
883 S.W.2d 179 (Tex. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
City of Plano v. Pub. Util. Comm’n,
953 S.W.2d 416 (Tex. App.—Austin 1997, no pet.). . . . . . . . . . . . . . . . . . . 7
City of Port Arthur v. Sw. Bell Tel. Co.,
13 S.W.3d 841 (Tex. App.—Austin 2000, no pet.). . . . . . . . . . . . . . . . . . . 21
Coastal Habitat Alliance v. Pub. Util. Comm’n,
294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.). . . . . . . . . . . . . . . 19, 20
Collins v. Tex. Natural Res. Conservation Comm’n,
94 S.W.3d 876 (Tex. App.—Austin 2002, no pet.). . . . . . . . . . . . . . . . . 8, 21
H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd.,
36 S.W.3d 597 (Tex. App.—Austin 2000, pet. denied). . . . . . . . . . . . . . . . . 8
KEM Tex., Ltd. v. Tex. Dep’t of Transp.,
No. 03-08-00468-CV, 2009 WL 1811102
(Tex. App.—Austin June 26, 2009, no pet.) (mem. op.). . . . . . . . . . . . . . . 19
McDaniel v. Tex. Natural Res. Conservation Comm’n,
982 S.W.2d 650 (Tex. App.—Austin 1998, pet. denied). . . . . . . . . . . . . . . 12
McMaster v. Pub. Util. Comm’n of Tex.,
No. 03-11-00571-CV, 2012 WL 3793257
(Tex. App.—Austin Aug. 31, 2012, no pet.) (mem. op.). . . . . . . . . . . . . . . 20
Phillips Petrol. Co. v. Tex Comm’n on Envtl. Quality,
121 S.W.3d 502 (Tex. App.—Austin 2003, no pet.). . . . . . . . . . . . . . . . . . . 8
iv
Cases (cont’d) Page
Proctor v. Andrews,
972 S.W.2d 729 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Reliant Energy, Inc. v. Pub. Util. Comm’n,
153 S.W.3d 174 (Tex. App.—Austin 2004, pet. denied). . . . . . . . . . . . . . . . 8
R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,
336 S.W.3d 619 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sierra Club v. Tex. Comm’n on Envtl. Quality,
No. 03-11-000102-CV, 2014 WL 7463875
(Tex. App.—Austin Dec. 3, 2014, no pet.).. . . . . . . . . . . . . . . . . . . . . . 27, 28
Stark v. Geeslin,
213 S.W.3d 406 (Tex. App.—Austin 2006, pet. denied). . . . . . . . . . . . . . . . 7
Tex. Citizens for a Safe Future,
336 S.W.3d 629.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Comm’n on Envtl. Quality v. Bosque River Coal.,
413 S.W.3d 403 (Tex. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Tex. Dep’t of Health v. Long,
659 S.W.2d 158 (Tex. App.—Austin 1983, no writ). . . . . . . . . . . . . . . . . . 29
Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc.,
665 S.W.2d 446 (Tex. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
v
Rules Page
30 Tex. Admin. Code
Ch. 305. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 29
Ch. 330. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 23, 29
§ 330.3(33). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§ 330.3(117). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 330.7.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 330.9.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
§ 330.9(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16
§ 330.9(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16
§ 330.9(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 13, 14, 15, passim
§ 330.9(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 18
§ 330.11.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 330.13.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 330.25.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tex. R. App. P.
38.1(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
38.1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutes
Tex. Health & Safety Code
Ch. 361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
§ 361.002(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 361.002(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 361.011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 361.061. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 361.090. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 361.111(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 361.321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
§ 361.321(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
§ 361.428(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
vi
Statutes (cont’d) Page
Tex. Water Code
§ 5.103(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
§ 5.351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
vii
STATEMENT OF THE CASE
This is an administrative appeal from the decision of the Texas Commission
on Environmental Quality (TCEQ1 or Commission) to issue Pintail LLC (Pintail) a
registration for a municipal solid waste (MSW) management site. The registration
authorizes Pintail to construct and operate a Type V transfer station. After the
registration was issued, Appellants Citizens Against the Landfill in Hempstead
(CALH),2 Michael McCall, Wayne Knox and the City of Hempstead (Hempstead)
filed suits appealing the agency’s decision. The district court consolidated the suits
into a single case. Pintail intervened to defend its registration. The district court
upheld the order.
ISSUES PRESENTED
1. The TCEQ did not err by authorizing Pintail’s transfer station’s activities
by registration, rather than permit. (Responsive to Appellants’ First Issue)
2. The TCEQ’s issuance of the registration did not violate any due process
rights. (Responsive to Appellants’ Second Issue)
3. The TCEQ did not err by issuing more than two notices of deficiency.
(Responsive to Appellants’ Third Issue)
1. A list of acronyms and shorthand terms follows the Certificate of Service page in
this brief.
2. The acronym CALH will usually be used to refer to Citizens against the Landfill
in Hempstead, Michael McCall, and Wayne Knox, collectively.
STATEMENT REGARDING ORAL ARGUMENT
Because the issues have been adequately addressed in the briefs, the
Commission does not believe that oral argument is necessary. However, if the Court
grants Appellants’ request for oral argument, the Commission asks to be heard.
STATEMENT OF FACTS
The TCEQ objects to the argumentative nature of portions of Appellants’
Statement of Facts. Rule 38.1(g), Texas Rules of Appellate Procedure, calls for a
Statement of Facts that is “without argument.” The Commission also objects to
Appellants’ Statement of the Case and Issues Presented as being argumentative and
assuming facts that are not supported by the record.
Solid waste management facilities in Texas require authorizations from the
TCEQ. The two most common types of authorizations are permits and registrations.
For example, an entity proposing to construct and operate a new municipal solid
waste landfill must obtain a permit.3 Some transfer stations only require a
registration.
On August 1, 2011, Pintail filed with the TCEQ an application for a
registration requesting authority to build and operate a municipal solid waste transfer
3. See T EX. H EALTH & S AFETY C ODE, Ch. 361 (Solid Waste Disposal Act); 30 T EX.
A DMIN. C ODE Ch. 330 (Municipal Solid Waste rules). Attached to this brief as Appendices
D and E are Texas statutes (excerpts and not whole chapters) and agency rules (excerpts)
relied upon.
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station.4 The proposed transfer station would be on the same site that Pintail was, by
an earlier-filed application, seeking authority to construct and operate a landfill.5
Pintail asked for its transfer station application to be processed in accordance with
30 Tex. Admin. Code § 330.9(b)(3), which requires a registration for a transfer station
used to transfer 125 tons per day or less of municipal solid waste. Over the course
of several months, the TCEQ’s Executive Director (ED) sent Pintail five Notice of
Deficiency letters (NODs) concerning its transfer station application, and Pintail
revised and supplemented the application several times.6
Unlike with a landfill permit application, there is no opportunity for a
contested-case hearing on a solid waste transfer station registration application.
There is, however, an opportunity for the public to make written comments on the
4. Generally speaking, a transfer station is a facility where waste or recyclable
materials are unloaded from collection vehicles and temporarily held until they are moved
to landfills or other facilities.
5. 1 A. 1 (registration application).
In this brief, citations to the Administrative Record will be in the following form:
[Volume number] A.R. [Item number]. At times, the citation will be followed by additional
information such as the title of the document or descriptive words about it. Citations to the
Clerk’s Record will be by C.R. followed by page number or numbers. There are two
supplemental Clerk’s Records; the TCEQ does not cite to documents in either one.
6. 2 A. 13, 4 A. 22, 5 A. 24, 5 A. 32, and 7 A. 39. Copies of the NOD
letters are attached to this brief as Appendix Item A.
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application. Here, the ED issued a formal written response to the public comments.7
After the ED considered the completed application and the public comments made in
response to it, the ED approved and issued the requested registration—No.
40259—on July 23, 2013.8 The registration authorized Pintail to receive up to 94
tons per day of waste for processing.9 It further provided:
The registrant is authorized to separate, store, and transfer construction
and demolition waste as defined in 30 TAC Section (§) 330.3(33), from
the construction and demolition of residential, community, commercial,
institutional, and recreational activities. All waste must be transferred
to an authorized disposal facility. The facility is also authorized to
recover recyclable materials and transfer the recovered recyclable
materials to an authorized facility.
The City filed a motion with the TCEQ Commissioners asking them to overturn
the ED’s decision;10 CALH also filed a motion to overturn.11 The motions were
7. 7 A. 53 (ED’s response to comments). A copy is attached to this brief as
Appendix Item B.
8. 7 A. 55 (issuance of registration). A copy is attached to this brief as Appendix
Item C.
9. Id., p. 3.
10. 8 A. 59 ([City of Hempstead’s] Motion to Overturn Issuance of Municipal Solid
Waste Facility Registration No. 40259).
11. 8 A. 58 (Citizens Against the Landfill in Hempstead’s Motion to Overturn the
Executive Director’s Approval of MSW Registration No. 40259 for a Type V Processing and
Recycling Facility).
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overruled by operation of law.12 Appellants brought this suit,13 challenging the
agency’s issuance of the registration. After briefing and a hearing, the district court
upheld the agency decision to issue the registration.
SUMMARY OF THE ARGUMENT
The district court judgment affirming the agency’s order should be affirmed.
The TCEQ acted within its discretion to authorize this transfer station by registration
rather than by permit. The Solid Waste Disposal Act requires permits for certain
facilities and less-stringent authorizations for others. However, for most facilities the
Legislature has given the TCEQ a choice, and the Act provides that the TCEQ may
require and issue permits for facilities like the transfer station at issue here.
Consistent with this grant of discretion, the TCEQ has promulgated rules that
provide for registration, rather than permitting, for applications for transfer stations
that, like this one, will transfer 125 tons of waste per day or less. Although
Appellants read the rule differently, they cannot overcome the plain reading of the
12. 8 A. 66 (October 17, 2013 letter overruling motions to overturn).
13. Three suits were consolidated under cause number D-1-GN-13-002918: Two
were filed by the City of Hempstead (Cause No. D-1-GN-13-002930, entitled City of
Hempstead, Texas v. Texas Commission on Environmental Quality and Pintail Landfill,
L.L.C.; Cause No. D-1-GN-13-003842, entitled City of Hempstead, Texas v. Texas
Commission on Environmental Quality); and one was filed by CAHL and two individuals
(Cause No. D-1-GN-13-003844, entitled Citizens Against the Landfill in Hempstead, Michael
McCall, and Wayne Knox v. Texas Commission on Environmental Quality.)
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rule or the deference due to the agency’s interpretation of its own regulations. The
same is true for Appellants’ other complaints regarding the application of the TCEQ’s
regulations. The TCEQ’s interpretation is supported by the rules’ plain language and,
in any event, is reasonable.
Nor did the TCEQ’s issuance of a registration in this case deprive Appellants
of due process. Their pleadings failed to identify any vested interest, nor did they
make the necessary “concrete assertions” about how any such interests would be
harmed by the issuance of a registration rather than a permit. In any event, even if
Appellants had made such a showing, this Court has made clear that a contested-case
hearing is not a requisite of due process. As the Legislature provided, Appellants
participated in the registration process by submitting comments, and the agency
responded to those comments. Appellants received all the process they were due.
Finally, Appellants’ complaints about the number of notices of deficiency
issued by the TCEQ are without merit. Appellants fail to cite a rule, statute, or case
that supports the argument that issuing more than two notices of deficiency is error.
Instead, Appellants rely on a flow chart attached to a report submitted to the
Legislature. But rather than binding the agency to a particular policy (something that
cannot be accomplished in such an informal manner), the flow chart merely provides
a general overview of the registration process. Ultimately, in the absence of an
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applicable rule or statute, the TCEQ enjoys discretion in the procedure by which it
conducts its proceedings. Issuing additional notices of deficiency is simply not
reversible error.
ARGUMENT AND AUTHORITIES
I. Standard of Review
This case primarily involves challenges to the agency’s interpretation of its
own statutes and rules. Statutory interpretation presents a question of law that courts
review de novo.14 A court’s primary objective is to effectuate the legislature’s intent.15
“When . . . a statutory scheme is subject to multiple interpretations, [courts] must
uphold the enforcing agency’s construction if it is reasonable and in harmony with
the statute.”16 If the statute can reasonably be read as the agency has ruled, and that
reading is in harmony with the rest of the statute, the court should accept the
interpretation, even over other reasonable interpretations.17
In contrast, an “agency’s construction of its rule is controlling unless it is
14. R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619,
624 (Tex. 2011).
15. Stark v. Geeslin, 213 S.W.3d 406, 416 (Tex. App.—Austin 2006, pet. denied).
16. Tex. Citizens for a Safe Future, 336 S.W.3d at 629.
17. City of Plano v. Pub. Util. Comm'n, 953 S.W.2d 416, 421 (Tex. App.—Austin
1997, no pet.).
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plainly erroneous or inconsistent” with the statute.18 “Because the interpretation
represents the view of the regulatory body that drafted and administers the rule, the
agency interpretation, if reasonable, becomes a part of the rule itself.”19
In cases such as this, the issue before courts is whether there is some basis in
the record for the agency’s action. “Under [the substantial-evidence] standard of
review, the proper test is whether the evidence in its entirety is sufficient that
reasonable minds could have reached the conclusion the agency must have reached.”20
Substantial evidence supports a decision if the decision is reasonable or rational.21
A court should affirm the agency’s decision if substantial evidence in the record
supports any permissible ground for the decision under the statute and rules.22
II. The TCEQ did not err by authorizing Pintail’s transfer station’s activities
by registration, rather than permit. (Responsive to Appellants’ First Issue)
Appellants contend that the TCEQ erred by authorizing a transfer station by a
18. Phillips Petrol. Co. v. Tex. Comm’n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex.
App.—Austin 2003, no pet.) (emphasis added).
19. Id. at 508.
20. H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., 36 S.W.3d 597, 602
(Tex. App.—Austin 2000, pet. denied).
21. Reliant Energy, Inc. v. Pub. Util. Comm’n, 153 S.W.3d 174, 206 (Tex.
App.—Austin 2004, pet. denied).
22. Collins v. Tex. Nat. Res. Conserv. Comm’n, 94 S.W.3d 876, 882 (Tex.
App.—Austin 2002, no pet.).
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registration rather than a permit.23 Their argument—that a permit was required since
processing and storage activities will take place at the transfer station facility—lacks
merit.
A. The TCEQ had authority to issue the registration for Pintail’s
Type V transfer station.
Pintail applied for a “Type V Registration” for its proposed facility,24
requesting the registration be processed in accordance with 30 Tex. Admin Code
§ 330.9(b)(3). The application indicated that the activities covered by the registration
would include storage and processing.25
The application explained that while, eventually, Pintail planned to operate the
proposed construction and demolition (C & D) waste processing and recycling
operation in conjunction with the proposed landfill, it sought the Type V registration
in order “to begin a C & D waste recycling and transfer operation prior to
commencement of landfill operations.”26
Pintail’s Type V registration will only accept C & D waste; it will not accept
23. Appellants’ Initial Brief, p. 29.
24. 1 A. 1 (Pintail’s Type V Registration Application).
25. 1 A. 1, p. 2.
26. 1 A. 1, p. I-1. Pintail also explicitly acknowledged that operation of the C &
D facilities in conjunction with the landfill will require further authorizations and it stated
that when such further authorizations are necessary, it will submit a request for them. Id.
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municipal solid waste, special wastes or industrial wastes.27 The registration
application described the activities at the transfer station:
! “[A]ll recyclable materials from the incoming waste will be
placed in roll-off boxes or other suitable containers in areas
separate from the waste processing area . . .”
! “The recyclable materials will be taken to an appropriate end-use
market, such as scrap metal recyclers, junk yards, concrete
crushing plants, compost facilities, or paper/cardboard/plastics
recyclers in the local Waller County or surrounding area.”
! “Any other wastes that are not recyclable will be placed in
transfer trailers or other suitable containers for landfill disposal.”
! “The roll-off boxes filled with recyclables will be hauled to their
respective markets as the boxes have been filled.”28
The application then stated that:
The transfer trailers or other suitable containers that contain non-
recyclables (i.e., waste) will be hauled to a landfill for disposal when full
or at a minimum of once per day, unless severe weather or other
unforeseeable conditions prohibit it. On average, the wastes will not be
allowed to accumulate on site for more than 24 hours. The maximum
time for wastes to remain at the site will be 72 hours.29
27. 1 A. 1, p. I-2. It also will not accept “lead acid storage batteries; used motor
vehicle oil; used oil filters; whole used or scrap tires; refrigerators, freezers, air conditioners
or other items containing chlorinated fluorocarbons (CFC); bulk or noncontainerized liquid
waste from nonhousehold sources; regulated hazardous waste; polychlorinated biphenyls
(PCB) waste; radioactive materials; or other wastes prohibited by TCEQ regulations.”
28. 1 A. 1, p. II-5.
29. 1 A. 1, p. II-5.
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1. The TCEQ has broad regulatory authority.
The Legislature’s charge to the Commission in the Texas Solid Waste Disposal
Act (the Act) is “to safeguard the health, welfare and physical property of the people
and to protect the environment by controlling the management of solid waste . . . .”30
On page 40 of their brief, Appellants appear to assert that the Act requires the
Commission to authorize solid waste management activities by permit rather than by
registration unless there is a specific exception to what Appellants call “the general
permitting requirement.” Unfortunately, Appellants’ mistaken view of the Act
informs the rest of their argument.
Although the statute instructs the Commission to require and issue permits to
some kinds of facilities,31 and forbids imposition of permitting requirements for other
kinds,32 for most facilities the Commission is explicitly given a choice. The Health
and Safety Code says:
Except as provided by Section 361.090 with respect to certain industrial
solid waste, the commission may require and issue permits authorizing
30. T EX. H EALTH & S AFETY C ODE § 361.002(a)(emphasis added). Section 361.011,
specific to municipal solid waste (but excepting municipal hazardous waste), also speaks of
controlling all aspects of management of such waste.
31. T EX. H EALTH & S AFETY C ODE §§ 361.002(b)(concerning hazardous waste
facilities) and 361.428(b)(concerning mixed municipal solid waste composting operations).
32. The TCEQ is not allowed to require permits for non-commercial, on-site
collection, handling, storage, processing, and disposal of non-hazardous industrial solid
waste. See T EX. H EALTH & S AFETY C ODE § 361.090.
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and governing the construction, operation, and maintenance of the solid
waste facilities used to store, process, or dispose of solid waste under
this chapter.33
The Austin Court of Appeals has held that the Solid Waste Disposal Act gives the
Commission “the authority to administer the act using different levels of regulation,
including both permitting and registration.”34
2. The TCEQ’s rules provide for authorization by registration
for many solid waste management activities.
The Commission’s rules regarding municipal solid waste are in 30 Texas
Administrative Code, Chapter 330.35 Subsection (a) of Rule 330.9, which is titled
“Registration Required,” explicitly states that storage and processing activities may
be authorized by a registration:
Except as provided in §§ 330.7, 330.11, 330.13, or 330.25 of this title
. . . no person may cause, suffer, allow or permit any activity of storage,
processing, removal, or disposal of any municipal solid waste (MSW)
unless that activity is authorized by a registration or other authorization
33. T EX. H EALTH & S AFETY C ODE § 361.061 (emphasis added).
34. McDaniel v. Tex. Natural Res. Conservation Comm’n, 982 S.W.2d 650, 652 (Tex.
App.—Austin 1998, pet. denied).
The Commission actually has four tiers of regulation for solid waste facilities: permit,
registration, notification and exempt.
35. Hereafter, some mentions of rules in 30 Tex. Admin. Code Chapter 330 will be
referred to simply by the specific rule number, i.e. Rule 330.9, rather than by a full citation.
-12-
from the commission. . . . 36
3. The TCEQ properly interpreted 30 Tex. Admin. Code
§ 330.9(b)(3).
Subsection (b) of Rule 330.9 describes specific types of MSW transfer stations
for which a registration is required, including at (b)(3): “a facility used in the transfer
of MSW that transfers or will transfer 125 tons per day or less.” Pintail applied for
a registration pursuant to this rule. The TCEQ evaluated the application and
determined that, since Pintail’s application indicates that the transfer station will
transfer less than 125 tons per day, it was eligible for a registration pursuant to the
rule.
Appellants argue that Rule 330.9(b)(3) cannot apply because there will be some
processing and storage occurring at the facility in conjunction with the transfer
activities. According to Appellants, 330.9(b)(3) only applies when transfer of MSW
is the only activity occurring at the transfer station. Appellants support their
argument by citing to various definitions of MSW management in other subchapters
of the MSW rules.
Appellants’ interpretation of the Commission’s rules is unreasonable because
it is too narrow. Their assertion that processing and storage are “distinct waste
36. 30 T EX. A DMIN. C ODE § 330.9(a) (emphasis added).
-13-
management activities”37 implies that a transfer station could somehow be operated
without these activities. But the fact that “transfer station,” “processing,” and
“storage” have different definitions does not mean that the Commission does not have
authority to authorize all of these activities by registration, rather than a permit.
These types of activities are not only typical of a transfer station, they are intrinsically
related to the transfer operation. The TCEQ’s Executive Director stated in his
response to CALH’s motion to overturn that “it would be nearly impossible to operate
a transfer station without the storage or processing of waste.”38 For example, the
processing definition in the rules is quite broad and includes “volume reduction.”39
Many transfer stations consolidate and transfer wastes by compaction. Appellants’
interpretation of Rule 330.9(b)(3) would mean that, in that case, the transfer station
could be authorized by registration, but a permit would be required for any
compaction. Since it would be impossible to operate a transfer station without some
processing or storage activities, Appellants’ interpretation would render the rule—
and the statutory provision it tracks, Tex. Health & Safety Code § 361.111(a)(3)—
a nullity.
37. Appellants’ Initial Brief at 35.
38. 8 A. 62, p. 4 (Executive Director’s Response to Motions to Overturn).
39. 30 T EX. A DMIN. C ODE § 330.3(117).
-14-
The district court correctly found that the TCEQ’s interpretation of its own rule
to include processing and storage activities that are incidental to the transfer of solid
waste when issuing a registration pursuant to Rule 330.9(b)(3) is reasonable. In this
case, the processing and storage activities that were incidental to the transfer station
activities were included in the registration for the operation of Pintail’s low-volume
transfer station.
Pintail is only authorized to engage in those activities it described in its
application that are necessary to the operation of the transfer station. These activities
are limited. For example, the registration states that the maximum storage time for
unprocessed and processed wastes is 72 hours, after which the wastes must be
transferred to an authorized disposal facility.40
4. 30 Tex. Admin. Code § 330.9(f) was not applied to Pintail’s
registration application.
The bulk of Appellants’ argument regarding their first issue concerns a rule that
the TCEQ did not apply when it evaluated Pintail’s application: Rule 330.9(f). That
rule states as follows:
(f) A registration is required for any new MSW Type V transfer station
that includes a material recovery operation that meets all of the
following requirements.
(1) Materials recovery. The owner or operator must recover 10%
or more by weight or weight equivalent of the total incoming waste
40. 7 A. 55, p. 3.
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stream for reuse or recycling; ensure that the incoming waste has already
been reduced by at least 10% through a source-separation program; or,
also operate one or more source-separation recycling programs in the
county where the transfer station is located and those source-separation
recycling programs manage a total weight or weight equivalent of
recyclable materials equal to 10% or more by weight or weight
equivalent of the incoming waste stream to all transfer stations to which
credit is being applied. The owner or operator must demonstrate in the
registration application the method that will be used to assure that the
10% requirement is achieved.
(2) Distance to a landfill. The transfer facility must demonstrate
in the registration application that it will transfer the remaining
nonrecyclable waste to a landfill not more than 50 miles from the
facility.
Appellants’ assertion that “330.9(f) expressly applies to any transfer station
that includes materials recovery operations”41 is incorrect. The rule says that a MSW
Type V transfer station that includes a material recovery operation and that meets all
of the requirements in subsections (a) and (b) must obtain a registration. It does not
say that all MSW Type V transfer stations that include a material recovery operation
must either comply with the requirements of subsections (a) and (b) or obtain a
permit.
The subsections of Rule 330.9 specify different instances in which a
registration is required. It is possible that a facility could come under more than one
of the subsections. For example, here it is possible that Pintail could have designed
41. Appellants’ Initial Brief at 32. (Emphasis in original.)
-16-
its operations to meet the requirements of 330.9(f) and then, accordingly, chosen to
apply to the TCEQ for a registration pursuant to that subsection of 330.9. However,
Pintail chose to apply for registration under 330.9(b)(3), and that is the subsection
that the TCEQ considered when evaluating Pintail’s application.
Finally, in their brief, Appellants make two incorrect statements regarding the
TCEQ’s argument below.42 First, Appellants state43 that “TCEQ attorneys adopted the
new interpretation that Rule 330.9(f) only applies to transfer stations that include a
material recovery operation if the facility exceeds the waste volume limitation set
forth in Rule 330.9(b)(3).” That is not and was not the TCEQ’s position.
Second, Appellants write44 that the “TCEQ contended for the first time in
hearing before the district court that the requirements of 330.9(f) were inapplicable
to this Facility.” This statement is misleading and inaccurate. Since none of the
Appellants mentioned Rule 330.9(f) in their opening briefs in district court,45 the
TCEQ’s responsive district court brief did not mention Rule 330.9(f). The first and
42. There is no transcript of the trial court proceedings, so all statements made by the
Appellants regarding the merits hearing are necessarily outside of the record.
43. Appellants’ Initial Brief at 32.
44. Appellants’ Initial Brief at 36.
45. C.R. 389-447 (Citizen’s Against the Landfill in Hempstead, Michael McCall, and
Wayne Knox’s Brief in Reply); C.R. 448-502 (City of Hempstead’s Reply Brief).
-17-
only mention of Rule 330.9(f) in the district court briefing was by CALH in its Reply
Brief.46 Thus, the first opportunity the TCEQ had to address 330.9(f) was at the
hearing. The TCEQ’s position on Rule 330.9(f) remains the same: the TCEQ did not
apply Rule 330.9(f) when issuing Pintail’s registration because the application was
submitted pursuant to a different rule—330.9(b)(3).
III. The TCEQ’s issuance of the registration did not violate any due process
rights. (Responsive to Appellants’ Second Issue)
CALH and Hempstead contend that the TCEQ’s issuance of a registration
rather than a permit violated their due process rights. However, as explained above,
there is no statutory right to a contested-case hearing: the Legislature granted the
TCEQ discretion to issue registrations for transfer stations like this one, rather than
requiring a more formal permitting process. Nor did Appellants properly allege a
vested property right that was infringed by the issuance of the registration. In the
absence of such a statutory right, or a demonstration that a vested property right has
been infringed by the agency action, the Constitution does not require a contested-
case hearing: “a person’s desire to intervene in a proceeding before [an agency] is not
a vested property interest entitled to protection under federal and state
46. C.R. 402-404, 408.
-18-
constitutions.”47
The first inquiry in a procedural due process claim is whether the plaintiff has
been deprived of a property or liberty interest deserving protection under the federal
or state constitutions.48 If a plaintiff fails to allege the deprivation of such an interest,
the plaintiff has failed to state a due process claim.49 Here, Appellants’ due process
claims fail because, among other reasons, they lack a vested property right that has
been infringed by the issuance of the registration.
In their pleadings before the district court, Appellants failed to identify a
property interest giving rise to their alleged due process rights. Hempstead’s live
petition gave no description of an affected property right, 50 and in its live petition,
CALH cited only to the Health & Safety Code as the source of its due process rights
and did not identify a vested property right allegedly affected by the issuance of the
registration.51 On appeal, Appellants baldly state that they “have property interests
47. Coastal Habitat Alliance v. Pub. Util. Comm’n, 294 S.W.3d 276, 286 (Tex.
App.—Austin 2009, no pet.).
48. KEM Tex., Ltd. v. Tex. Dep’t of Transp., No. 03-08-00468-CV, 2009 WL
1811102, at *6 (Tex. App.—Austin June 26, 2009, no pet.) (mem. op.).
49. Id.
50. C.R.223-233 (First Amended Original Pet., pp. 1-11).
51. C.R. 207-208 (Plaintiffs’ First Amended Pet., pp. 12-13).
-19-
that would be affected by the proposed facility.”52 As their only example of such
interests, Appellants claim in their briefing that CALH has members that reside near
the proposed location that rely on water wells and that Hempstead has water wells
nearby.
However, Appellants cannot show how the issuance of a transfer-station
registration deprives residents of their property rights. Indeed, there is no right to
exclude transfer stations from the vicinity of one’s property. Instead, Appellants
merely assert in their briefing that they rely on water wells near the location of the
proposed facility. They do not explain how that activity would be affected by the
proposed transfer station, and, more importantly, they did not make this showing
before the district court. Absent the requisite “concrete assertions” about the nature
of the alleged harm, this mere speculation is not sufficient to invoke due process
protections.53
Moreover, as this Court has held, the issuance of a permit in itself does not
deprive a neighboring landowner of any concrete liberty of property interest: “[T]he
issuance of a permit does not authorize any injury to persons or property or an
52. Appellants’ Initial Brief at 41.
53. See McMaster v. Pub. Util. Comm’n of Tex., No. 03-11-00571-CV, 2012 WL
3793257, (Tex. App.—Austin Aug. 31, 2012, no pet.) (mem. op.); see also Coastal Habitat
Alliance, 294 S.W.3d at 286-87.
-20-
invasion of any other property rights.”54 Even if a private property interest were at
issue, “due process never requires all the trial-like procedures of a statutory contested
case hearing.”55 Thus, even had Appellants identified a vested property interest at
stake in the proceeding, due process may be satisfied without the contested-case
hearing they sought.
Finally, Hempstead’s due process claims fail for the additional reason that, as
a municipality, Hempstead lacks due process rights against the State.56 In any event,
Appellants received all the process they were due: the opportunity to submit written
comments to the TCEQ concerning Pintail’s registration.57 Their due process claims
are without merit.
IV. The TCEQ did not err by issuing more than two notices of deficiency.
(Responsive to Appellants’ Third Issue)
After Pintail applied for a registration to construct and operate a solid waste
transfer station, staff of the TCEQ’s Executive Director sent several letters to the
54. Collins v. Tex. Natural Res. Conservation Comm’n, 94 S.W.3d 876, 883 (Tex.
App.—Austin 2002, no pet.).
55. Id. at 884.
56. City of Port Arthur v. Sw. Bell Tel. Co., 13 S.W.3d 841, 845 (Tex. App.—Austin
2000, no pet.) (citing Proctor v. Andrews, 972 S.W.2d 729, 734 (Tex. 1998)).
57. The ED considered and responded to the submitted comments. See 7 A. 53
(ED’s response to comments), attached to this brief as Appendix Item B.
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company noting deficiencies in its application. TCEQ engineering specialist Ruben
Meza, Jr. sent the first letter on August 15, 2011.58 Mr. Meza identified four pieces
of information that “must be provided prior to further application review.”59 They
appeared to be minor and routine: the signing qualifications of the person who signed
the application; a property owner affidavit with standard text to replace the one with
modified text; a date on the Core Data Form; and a “listing of all permits or
construction approvals received or applied for.” Once Pintail supplied that
information, Mr. Meza obviously undertook a more detailed, technical review of the
registration application. That review resulted in an October 27, 2011 notice of
deficiency (NOD) that listed 39 deficiencies, some of which were clearly minor.60 For
example, number 35 said, “Table 5-1, page IV-8, contains references to the facility’s
registration number, but does not provide the facility’s registration number. Please
revise this table to include the facility’s registration number (MSW 40259).”61 Other
deficiencies were more significant. Mr. Meza said in the letter (and subsequent ones)
that the additional information was necessary to show compliance with Title 30 of the
58. 2 A. 3 (August 15, 2011 letter from TCEQ staff member to Pintail).
59. Id.
60. 2 A. 13 (NOD 1).
61. Id. at page 6.
-22-
Texas Administrative Code Chapters 305 and 330. Many items cited a particular
agency rule on which the demand for information was based. Christine Bergren, a
manager in the TCEQ’s Waste Permits Division, who granted Pintail an extension of
time to respond to the NOD, described the October 27 letter as the “first technical
NOD letter.”62
After Pintail responded to the first technical NOD, Mr. Meza sent a second on
February 17, 2012.63 It listed 22 deficiencies, nearly half of which had not been noted
by Mr. Meza in the first NOD. The others concerned previously mentioned
deficiencies that had not been addressed to TCEQ’s satisfaction. Pintail responded
and Mr. Meza sent a follow-up NOD on April 12, 2012, with a list of 13
deficiencies.64 Most were deficiencies that had not been previously noted. Just three
concerned deficiencies that been identified earlier but had not been addressed to
62. 2 A. 16.
In general, TCEQ staff initially reviews an application for administrative
completeness and then reviews it for technical completeness. During administrative
completeness review, staff primarily determines whether application forms have been
completely filled out with appropriate information and filing fees have been paid. Technical
review is more rigorous. As appropriate, the application is reviewed by professionals such
as engineers, geologists, or hydrologists to determine if it meets the environmental and
health-related goals of applicable rules and statutes. If staff reviewers find deficiencies in
the information or have questions about it, they communicate that to the applicant, including
through notices of deficiency.
63. 4 A. 22 (NOD 2).
64. 5 A. 24 (NOD 3).
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TCEQ’s satisfaction. Pintail requested (and the TCEQ granted) additional time to
respond because some items required coordination with other agencies.65
On June 25, 2012, Mr. Meza sent a fourth NOD,66 noting just one deficiency.
It concerned a letter from Texas Department of Transportation saying the department
was working on information related to traffic in the area of the proposed facility but
needed a traffic impact assessment report from Pintail before it could complete its
work. TCEQ said in its NOD, “Please note that we cannot declare the RA technically
complete until TXDOT provides a determination regarding potential traffic impacts
for this site.” Pintail apparently sent information to TxDOT, but the TCEQ deemed
it inadequate in a fifth (and final) NOD dated August 16, 2012.67 Mr. Meza
complained that the traffic impact assessment report from Pintail to TxDOT contained
extensive information about the traffic that will be generated by the adjacent landfill
but did “not include a separate discussion regarding the proposed transfer station.”
He directed Pintail to provide the transfer station information to TxDOT.
Pintail responded to each NOD. Each successive NOD showed that Pintail had
cooperated and made considerable progress. Once Pintail had met all requirements,
65. 5 A. 27.
66. 5 A. 32 (NOD 4).
67. 7 A. 39 (NOD 5).
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its application was declared technically complete.68
A. The TCEQ is not limited to two NODs.
The TCEQ issues NODs when it needs additional information from an
applicant in order to make a better-informed decision. NODs are a normal and
expected part of the TCEQ’s review process. A thorough review of an application
will commonly result in NODs, and it is not uncommon for the agency to issue more
than two NODs on an application. No rule, statute, or case limits the number of
NODs an applicant for a solid waste transfer station registration may receive.
Appellants point to a sentence in an October 27, 2011 NOD letter from the
TCEQ’s Mr. Meza to Pintail saying that a “third notice of technical deficiency will
not be issued.” Appellants also cite what they describe as “TCEQ policies outlined
in the MSW registration process description, which is located in the TCEQ Sunset
Evaluation Report.”69 This appears to be a reference to a flow chart in a report to the
Legislature. Appellants contend that the sentence in Mr. Meza’s letter and the flow
chart express “clearly established TCEQ policy” that binds the TCEQ to issue no
more than two NODs.70 But Appellants are wrong.
68. 7 A. 54.
69. See Appellants’ Initial Brief at 43-44. Appellants also refer to another document
that they describe vaguely as “a consistent TCEQ instruction to its staff.” Id. at 45.
70. See, e.g., Appellants’ Initial Brief at 43.
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Mr. Meza’s letter is essentially part of a warning to Pintail that it needs to
submit the requested information or risk having its application returned. After all,
another sentence in the letter said just that: “Failure to submit a satisfactory response
to each of the noted deficiencies may result in the application being returned due to
technical deficiencies.”71 The flow chart does not establish a binding policy.72 Rather,
it merely provides a general overview of the registration process. It was included in
an agency report as a part of a general description of the agency’s various functions.
It lacks nuance, omits many details, and necessarily summarizes an example or a
process—for the benefit of persons in the Legislative branch who are not intimately
involved with it. The flow chart was not intended to limit the agency’s flexibility or
discretion in handling an application.
B. The TCEQ acted reasonably.
Appellants cited Water Code § 5.351 and Health & Safety Code § 361.321 as
the jurisdictional bases for their suits.73 Under those provisions, the issue is whether
71. 2 A. 13, p. 7 (NOD 1) (emphasis added).
72. Moreover, the TCEQ’s written response to public comments shows that the
agency does not have a rule that limits the number of NODs that an applicant may be sent,
the municipal solid waste section does not have a policy on the number of NODs, and the
decision on whether to return an application such as this is made on a case by case basis. 7
A. 53 (Responses 10 and 12 on p. 8).
73. C. R. 197 (CALH’s First Amended Petition, p. 2); C.R. 224 (City of Hempstead’s
First Amended Petition, p. 2.).
-26-
the agency’s action is invalid, arbitrary, unreasonable, or an abuse of discretion.74
The TCEQ’s discretion arises generally from its exclusive jurisdiction to authorize
and regulate certain activities (such as solid waste disposal) and its expertise in the
field.75 The long-standing test to determine whether an agency has acted arbitrarily
or unreasonably or has abused its discretion is if the agency fails to consider a factor
the Legislature directed it to consider, considers an irrelevant factor, or weighs only
relevant factors but still reaches a completely unreasonable result.76 Here, none of
those occurred, and the agency acted reasonably and did not abuse its discretion or
act arbitrarily.
The administrative record supports the reasonableness of TCEQ’s handling of
the NODs. It shows that TCEQ’s Mr. Meza did not point out all deficiencies in the
early NODs. It would have been unfair to return the application before Pintail had
been provided notice of and an opportunity to rectify all shortcomings in the
application. Evidence shows that Pintail did not ignore the NODs but rather
74. T EX. H EALTH & S AFETY C ODE § 361.321(e); see Tex. Comm’n on Envtl. Quality
v. Bosque River Coal., 413 S.W.3d 403, 404 (Tex. 2013) (where court describes its decision
in another case as concluding that the TCEQ did not abuse its discretion).
75. Sierra Club v. Tex. Comm’n on Envtl. Quality, No. 03-11-000102-CV, 2014 WL
7463875 at *5 (Tex. App—Austin Dec. 3, 2014, no pet.).
76. City of El Paso v. Pub. Util. Comm’n, 883 S.W.2d 179, 184 (Tex. 1994); Sierra
Club, 2014 WL 7463875 at *5.
-27-
endeavored to fully respond. Eventually, Pintail supplied the requested information.
Appellants have shown no valid reason for the TCEQ to punish that effort. In
addition, an April 2012 TCEQ interoffice memorandum shows there is flexibility in
the agency’s processes:
If the response to the 2nd NOD does not satisfactorily address the
deficiencies, the PM [Project Manager] should discuss the issues with
the TL [Team Leader] to determine the next course of action.77
This language clearly shows that applications aren’t necessarily returned when the
response to a second NOD fails to resolve all deficiencies.78 There is a need for the
agency to have flexibility since circumstances can vary widely.
In light of the substantial evidence supporting the agency’s action, the agency
reached a reasonable result and there was no abuse of discretion. “[T]he existence of
substantial evidence in the record supporting [an agency’s] decision is a factor—often
a dispositive factor—in determining whether [the agency] abused its discretion.”79
77. 8 A. 61, p. 4. (Office of Public Interest Counsel’s Response to Motions to
Overturn).
78. The attorney representing the ED in the agency proceeding reinforced this point.
He wrote that municipal solid waste “[a]pplications are typically not returned unless an
applicant chooses not to respond to NOD’s by providing additional or clarifying information
to address application deficiencies.” 8 A. 62, p. 4.
The ED’s response to public comments said, “The TCEQ MSW Permits Section does
not have a specific policy regarding the return of an application. The return of an application
is considered on a case by case basis.” 7 A. 53, p. 8.
79. Sierra Club, 2014 WL 7463875 at *5.
-28-
In addition, the TCEQ considered only relevant factors during its review: the
application, the rules and the statute. For example the third and fourth NODs showed
that the information was being requested to demonstrate compliance with 30 Texas
Admin. Code Chapters 305 and 330.80 In some instances, they pointed to specific
rule-based requirements for which they were demanding information.81
Any limitations on the number of opportunities to cure deficiencies would be
procedural requirements. Even if there had been a rigid two-NOD practice in the past
(and there wasn’t), it is well settled that a litigant does not have a vested right in a
judicial or administrative procedure.82 Thus, Appellants would have no lawful basis
to complain if the agency had changed past procedures so that more NODs were
allowed for this application.
Although Appellants’ argument on this issue spans about five pages, it is
“Throughout the long history of the substantial evidence rule the existence of
substantial evidence has been equated with fair and reasonable conduct on the part of the
agency. Conversely, agency decisions that are unsupported by substantial evidence have been
deemed arbitrary and capricious. Thus, the two terms have many times been considered two
sides of the same coin.” Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665
S.W.2d 446, 454 (Tex. 1984).
80. 5 A. 24 (NOD 3); 5 A. 32 (NOD 4).
81. Id.
82. Cf., Tex. Dep’t of Health v. Long, 659 S.W.2d 158, 160 (Tex. App.—Austin 1983,
no writ) (Legislature may make changes applicable to future procedural steps in pending
cases, and same legal principles should govern changes in administrative procedures; this
principle of law rests upon premise that no litigant has vested right in procedural remedy).
-29-
probably nonetheless fair to describe it as a bare assertion of error.83 Appellants failed
to cite a rule, statute, or case that supports their notion that it was “an abuse of
discretion, unlawful procedure, and an unreasonable error of law” to provide Pintail
more than two notices of deficiency.84 An agency like the TCEQ employs many
people who write many letters and memos and probably create numerous flow charts.
Taken to its extreme, Appellants’ argument—that words in mid-level employees’
memos or letters, and lines and arrows in flow charts, amount to binding policy
statements—would eviscerate rulemaking, which is the primary way for the agency
to establish binding policy85 and is done only by the agency’s Commissioners. For
all these reasons, the TCEQ urges the Court to overrule Appellants’ third issue.
CONCLUSION AND PRAYER
For the reasons in this brief, the Commission requests this Court to affirm the
decision below.
83. See Tex. R. App. P. 38.1(i) (a brief must “contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.”).
84. Appellants’ Brief at 47.
85. “[T]he commission must adopt rules when adopting . . . any agency statement of
general applicability that interprets or prescribes law or policy or describes the procedure or
practice requirements of an agency. . . .” Water Code § 5.103(c).
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Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General For Civil Litigation
JON NIERMANN
Chief, Environmental Protection Division
/s/ Nancy Elizabeth Olinger
NANCY ELIZABETH OLINGER
Assistant Attorney General
Texas Bar Number 15254230
/s/ Cynthia Woelk
CYNTHIA WOELK
Assistant Attorney General
Texas Bar No.21836525
Cynthia.Woelk@texasattorneygeneral.gov
/s/ Daniel C. Wiseman
DANIEL C. WISEMAN
Assistant Attorney General
Texas Bar No.24042178
Daniel.Wiseman@texasattorneygeneral.gov
Environmental Protection Division
P.O. Box 12548
Austin, Texas 78711-2548
Tel: (512) 463 2012
Fax: (512) 320 0052
ATTORNEYS FOR TEXAS COMMISSION
ON ENVIRONMENTAL QUALITY
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CERTIFICATE OF COMPLIANCE
I certify that the computer program used to prepare this document reported
that there are 6968 words in the pertinent parts of the document, per T.R.A.P.
9.4(i)(2).
/s/ Nancy Elizabeth Olinger
Nancy Elizabeth Olinger
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CERTIFICATE OF SERVICE
On March 27, 2015, I served the above and foregoing on each person on the
list below, by the method shown.
/s/ Nancy Elizabeth Olinger
Nancy Elizabeth Olinger
LIST OF PERSONS SERVED
Mr, Terry L. Scarborough Ms. Monica M. Jacobs
Mr. Michael L. Woodward monica.jacobs@kellyhart.com
mwoodward@hslawmail.com Ms. Diana L. Nichols
Ms. V. Blayre Pena diana.nichols@kellyhart.com
bpena@hslawmail.com KELLY HART & HALLMAN, LLP
Mr. Wesley P. McGuffey 301 Congress Avenue, Suite 2000
wmcguffey@hslawmail.com Austin Texas 78701
HANCE SCARBOROUGH, LLP Attorneys for Appellant City of
400 West 15th Street, Suite 950Austin, Hempstead
Texas 78701 Via 1st Class Mail & E-service
Attorneys for Appellants, CALH,
Michael McCall and Wayne Knox
Via 1st Class Mail & E-service
Mr. Paul R. Tough
ptough@msmtx.com
Mr. Brent W. Ryan
bryan@msmtx.com
McELROY, SULLIVAN, MILLER,
WEBER & OLMSTEAD, LLP
P. O. Box 12127
Austin. Texas 78711
Attorneys for Appellee Pintail Landfill,
LLC
Via 1st Class Mail & E-service
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LIST OF ACRONYMS AND SHORTHAND TERMS
Acronym or shorthand
Meaning
term
the Act Solid Waste Disposal Act (Texas Health & Safety Code,
Chapter 361)
A.R. Administrative Record
C&D Construction and Demolition
CALH Citizens Against the Landfill in Hempstead
ED Executive Director of the TCEQ
MSW Municipal Solid Waste
NOD Notice of Deficiency
TCEQ Texas Commission on Environmental Quality
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INDEX TO APPENDIX
Item Description
A Copies of Notice of Deficiency (NOD) Letters
(2 A. 13, 4 A. 22, 5 A. 24, 5 A. 32, 7 A. 39)
B Executive Director’s Response to Comments (7 AR 53)
C Issuance of Registration (7 A. 55)
D Statutes
Texas Health & Safety Code
§ 361.002
§ 361.011
§ 361.061
§ 361.090
§ 361.111
§ 361.321
§ 361.428
Texas Water Code
§ 5.103
§ 5.351
E Rules
30 Tex. Admin. Code
§ 330.3
§ 330.9
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