Texas Commission on Environmental Quality v. Exxon Mobil Corporation ExxonMobil Oil Corporation Pennzoil-Quaker State Company and Shell Oil Company

ACCEPTED

03-14-00667-CV

3957344

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/29/2015 6:24:01 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00667-CV

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS

AT AUSTIN 1/29/2015 6:24:01 PM

JEFFREY D. KYLE

Clerk

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,

Appellant,

v.

EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, PENNZOIL-QUAKER

STATE COMPANY, AND SHELL OIL COMPANY,

Appellees.

APPELLEES’ BRIEF

John R. Eldridge

State Bar No. 06513520

john.eldridge@haynesboone.com

Kent Rutter

State Bar No. 00797364

kent.rutter@haynesboone.com

Adam Sencenbaugh

State Bar No. 24060584

adam.sencenbaugh@haynesboone.com

HAYNES AND BOONE, LLP

1221 McKinney Street, Suite 2100

Houston, Texas 77010

Telephone: (713) 547-2000

Telecopier: (713) 547-2600

ATTORNEYS FOR APPELLEES

ORAL ARGUMENT REQUESTED

DESIGNATION OF RECORD REFERENCES

This brief follows the format suggested by the Bluebook: e.g., Clerk’s

Record: “(CR:1.)” See THE BLUEBOOK, A UNIFORM SYSTEM OF CITATION,

Practitioners’ Note P.7 at 19-20 (Columbia Law Review Ass’n et al. eds., 18th ed.

2005).

The record in this appeal consists of the clerk’s record, a supplemental

clerk’s record, the reporter’s record, and an administrative record. The

supplemental clerk’s record has been requested but has not yet been filed with the

Court. This brief uses the following conventions in citing the record:

Clerk’s Record:

CR:[page]

Supplemental Clerk’s Record:

Supp. CR at [page]

Reporter’s Record:

RR [vol]:[page]

Administrative Record:

AR [page]

-i-

TABLE OF CONTENTS

DESIGNATION OF RECORD REFERENCES ........................................................i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ..................................................................................... v

RESPONSE TO ISSUES PRESENTED ..................................................................ix

STATEMENT OF FACTS AND PROCEDURAL HISTORY ................................ 1

A.  History of the Voda Site ........................................................................ 1

B.  EPA performs a removal action for the Voda Site................................ 1

C.  The TNRCC initiates the state listing process without

reevaluating the Voda Site following the EPA’s removal

action ..................................................................................................... 2

D.  The TCEQ issues an administrative order for the Voda Site

pursuant to § 361.188 and § 361.272 of the SWDA ............................. 3

E.  PRPs named in the AO seek a rehearing but are denied ....................... 5

F.  ExxonMobil and Shell challenge the AO in Travis County

District Court ......................................................................................... 6

G.  The parties engage in broad discovery at the trial court ....................... 7

H.  The State reverses course and argues that review is limited

to an administrative record .................................................................... 8

SUMMARY OF THE ARGUMENT ........................................................................ 9

STATEMENT OF JURISDICTION........................................................................ 11

ARGUMENT ........................................................................................................... 13

I.  Appellees’ Response to Appellant’s Issue One ............................................. 13

A.  The TCEQ can issue administrative orders under § 361.188

and § 361.272, and both share common attributes relevant

to this appeal ........................................................................................ 13

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B.  The statutory history of the SWDA shows that

administrative orders have always been subject to the same

appellate standards .............................................................................. 15

1.  The original SWDA established a permitting

program to regulate solid waste ................................................ 15

2.  Following the Congressional passage of CERCLA,

the Texas legislature amended the SWDA to create a

Texas state Superfund program ................................................ 17

3.  The codified SWDA makes all administrative orders

subject to these same provisions ............................................... 22

C.  The current statute does not create mutually exclusive

orders with separate waivers of sovereign immunity.......................... 23

1.  Appearing in different sections using different

language does not make the orders mutually

exclusive.................................................................................... 23

2.  The SWDA appellate provisions distinguish between

appeals of Superfund orders and appeals of

permitting decisions, not separate kinds of Superfund

orders ......................................................................................... 25

3.  Forcing all appeals of Superfund orders into

§ 361.321 creates an absurd result ............................................ 28

II.  Appellees’ Response to Appellant’s Issue Two ............................................ 29

A.  The language of the AO demonstrates the Order was issued

under § 361.188 and § 361.272 ........................................................... 30

B.  Counsel for the Executive Director asked the

Commissioners to issue the Order under both § 361.188 and

§ 361.272 ............................................................................................. 32

C.  Understanding that the AO invokes both § 361.188 and

§ 361.272, the State described the Order as having been

issued under both sections for years.................................................... 33

- iii -

1.  The TCEQ repeatedly and unequivocally described

the AO as being issued under § 361.188 and

§ 361.272 ................................................................................... 33

2.  The State disclosed that it issued the AO under both

sections to obtain advantages of a § 361.272 order .................. 36

D.  Following the listing procedures of Subchapter F does not

insulate the AO from review under Subchapter K .............................. 37

E.  Reviewing an administrative order under § 361.322 does

not make Subchapter F redundant ....................................................... 38

F.  If the Commission is correct that it exceeded its powers

under the SWDA then the AO must be set aside ................................ 40

III.  Appellees’ Response to Appellant’s Issue Three .......................................... 41

A.  Texas courts are not constitutionally limited to review of

administrative orders only as to matters of law .................................. 42

B.  The Texas Supreme Court’s decision in City of Waco is not

controlling in this SWDA appeal ........................................................ 48

C.  The APA provisions authorizing pure substantial evidence

review on a contested-case record are not applicable to this

appeal ................................................................................................... 53

1.  The APA does not apply, and the available guidance

leads to different conclusions than advocated by the

State ........................................................................................... 54

2.  Outside of threshold standing questions, pure

substantial evidence requires a true contested-case

record under the APA ............................................................... 55

CONCLUSION ........................................................................................................ 59

CERTIFICATE OF COMPLIANCE ....................................................................... 61

CERTIFICATE OF SERVICE ................................................................................ 62

APPENDIX .................................................................................................. Tabs A-K

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TABLE OF AUTHORITIES

CASES

Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547 (Tex. 2000)................................................................................. 11

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) .............................................................................. 12

City of Waco v. Tex. Comm’n on Envtl. Quality,

346 S.W.3d 781 (Tex. App.—Austin 2011, pet. granted) .................................. 49

Collins v. Tex. Natural Res. Conservation Comm’n,

94 S.W.3d 876 (Tex. App.—Austin 2002, no pet.) ............................................ 58

Commercial Life Ins. Co. v. Tex. State Bd. of Ins.,

808 S.W.2d 552 (Tex. App.—Austin 1991, writ denied).......................43, 44, 46

County of Cameron v. Brown,

80 S.W.3d 549 (Tex. 2002)................................................................................. 12

Dep’t of Pub. Safety v. Petty,

482 S.W.2d 949 (Tex. Civ. App.—Austin 1972, writ ref’d n.r.e.) .................... 46

G.E. Am. Commc’n v. Galveston Cent. Appraisal Dist.,

979 S.W.2d 761 (Tex. App.—Houston [14th Dist.] 1998, no pet.) ................... 56

Gen. Servs. Comm’n v. Little-Tex Insulation Co.,

39 S.W.3d 591 (Tex. 2001)................................................................................. 42

Gerst v. Nixon,

411 S.W.2d 350 (Tex. 1967) ........................................................................ 47, 48

Heat Energy Advanced Tech., Inc. v. W. Dallas Coal. for Envtl. Justice,

962 S.W.2d 288 (Tex. App.—Austin 1998, pet. denied) ................................... 41

Heckman v. Williamson Cty.,

369 S.W.3d 137 (Tex. 2012) .............................................................................. 11

Houston Mun. Emps. Pension Sys. v. Ferrell,

248 S.W.3d 151 (Tex. 2007) .............................................................................. 11

-v-

Key Western Life Ins. Co. v. State Bd. of Ins.,

350 S.W.2d 839 (Tex. 1961) ........................................................................40, 46

Macias v. Rylander,

995 S.W.2d 829 (Tex. App.—Austin 1999, no pet.) ..............................44, 45, 46

Pub. Util. Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio,

53 S.W.3d 310 (Tex. 2001)................................................................................. 41

R.R. Street & Co. v. Pilgrim Enters.,

166 S.W.3d 232 (Tex. 2005) .............................................................................. 18

Ramirez v. Tex. State Bd. of Med. Exam’rs,

927 S.W.2d 770 (Tex. App.—Austin 1996, no writ) .............................. 55, 56, 59

Smith v. Houston Chemical Services, Inc.,

872 S.W.2d 252 (Tex. App.—Austin 1994, writ denied)................................... 57

Subaru of Am., Inc. v. David McDavid Nissan, Inc.,

84 S.W.3d 212 (Tex. 2002)................................................................................. 40

Tex. Comm’n of Licensing & Regulation v. Model Search Am., Inc.,

953 S.W.2d 289 (Tex. App.—Austin 1997, no writ) ......................................... 43

Tex. Dep’t of Ins. v. State Farm Lloyds,

260 S.W.3d 233 (Tex. App.—Austin 2008, no pet.) .......................................... 59

Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170 (Tex. 2004) ........................................................................ 42, 43

Tex. Natural Res. Conservation Comm’n v. Sierra Club,

70 S.W.3d 809 (Tex. 2002)........................................................................... 27, 28

Texas Comm’n on Envtl. Quality v. City of Waco,

413 S.W.3d 409 (Tex. 2013) .......................................................................passim

Texas Comm’n on Envtl. Quality v. Kelsoe,

286 S.W.3d 91 (Tex. App.—Austin 2009, pet. denied) ..................................... 57

Texas Comm’n on Envtl. Quality v. Sierra Club,

No. 03-12-00335-CV, 2014 WL 7464085 (Tex. App.—Austin

Dec. 30, 2014, no pet. h.) ........................................................................51, 52, 56

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Tex. State Bd. of Exam’rs in Optometry v. Carp,

388 S.W.2d 409 (Tex. 1965) .............................................................................. 47

Texas Water Comm’n v. Dellana,

849 S.W.2d 808 (Tex. 1993) .............................................................................. 51

TJFA, L.P. v. Tex. Comm’n on Envtl. Quality,

No. 03-10-00016-CV, 2014 WL 3562735 (Tex. App.—Austin

July 16, 2014, no pet.) (mem. op.) ...................................................................... 27

United Copper Indus., Inc. v. Grissom,

17 S.W.3d 797 (Tex. App.—Austin 2000, pet. dism’d) ............................... 57, 58

United States v. Bestfoods,

524 U.S. 51 (1998) .............................................................................................. 18

STATUTES

TEX. CONST. art. II, § 1 ............................................................................................ 42

42 U.S.C.A. §§ 9601–9628 ................................................................................17, 18

Tex. Health & Safety Code Ann. § 361.003(24) (West 2010) ....................17, 26, 28

Tex. Health & Safety Code Ann. § 361.061 (West 2010) ....................................... 27

Tex. Health & Safety Code Ann. § 361.181 (West 2010) ...........................13, 14, 31

Tex. Health & Safety Code Ann. § 361.188(b) (West 2010) ............................23, 24

Tex. Health & Safety Code Ann. § 361.271 (West 2010) ....................................... 15

Tex. Health & Safety Code Ann. § 361.272 (West 2010) ................................. 14, 31

Tex. Health & Safety Code Ann. § 361.274 (West 2010) ...................................5, 36

Tex. Health & Safety Code Ann. § 361.275 (West 2010) ....................................... 15

Tex. Health & Safety Code Ann. § 361.276 (West 2010) ................................. 15, 36

Tex. Health & Safety Code Ann. § 361.321 (West 2010) ....................................... 26

Tex. Health & Safety Code Ann. § 361.322 (West 2010) ................................ passim

Tex. Health & Safety Code Ann. § 401.229(a) (West 2010) .................................. 52

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Tex. Gov’t Code Ann. §§ 2001.171-178 (West 2008) ............................................ 54

Tex. Gov’t Code Ann. § 2001.060 (West 2008)...................................................... 55

Tex. Gov’t Code Ann. § 2001.174(2)(E) (West 2008) ............................................ 55

Tex. Water Code Ann. § 5.351 (West 2008) ........................................................... 51

SECONDARY SOURCES

Act approved June 2, 1969, 61st Leg., R.S., ch. 405,

1969 Tex. Gen. Laws 1320, 1320 (repealed 1989) recodified by

Act approved June 14, 1989, 71st Leg., R.S., ch. 678,

1989 Tex. Gen. Laws 2230 ...........................................................................15, 16

Act approved June 15, 1973, 63rd Leg., R.S., ch. 576,

1973 Tex. Gen. Laws 1595 ...........................................................................16, 17

Act approved June 12, 1985, 69th Leg., R.S., ch. 566,

1985 Tex. Gen. Laws 2166 (repealed 1989) recodified by Act

approved June 14, 1989, 71st Leg., R.S., ch. 678,

1989 Tex. Gen. Laws 2230 ...............................................................18, 19, 20, 21

Act approved June 14, 1989, 71st Leg., R.S., ch. 703,

1989 Tex. Gen. Laws 3212, 3217 ..................................................................21.22

BLACK’S LAW DICTIONARY at 857 (7th ed. 1999) ................................................... 11

- viii -

RESPONSE TO ISSUES PRESENTED

1. The Solid Waste Disposal Act authorizes the Commission to issue

administrative orders under § 361.188 and § 361.272, but these orders are

not mutually exclusive and are subject to the same appellate provisions.

2. The Commission issued the Administrative Order for the Voda Site pursuant

to § 361.188 and § 361.272 of the Solid Waste Disposal Act.

3. Judicial review of the Administrative Order for the Voda Site is

constitutional and appropriate under § 361.322 of the Solid Waste Disposal

Act.

- ix -

STATEMENT OF FACTS AND PROCEDURAL HISTORY

A. History of the Voda Site.

The Voda Petroleum State Superfund Site (the “Voda Site”) is comprised of

approximately 6.12 acres located in Gregg County, Texas. (AR 2907.) The Voda

Site was historically used by Voda Petroleum, Inc. as an oil blending and recycling

facility from approximately 1981 to 1991, when all operations ceased and the Voda

Site was abandoned. (AR 3126.)

B. EPA performs a removal action for the Voda Site.

In the mid-1990s, both the Environmental Protection Agency (“EPA”) and

the Texas Natural Resources Conservation Commission (“TNRCC”) investigated

the Voda Site to determine whether historic operations had resulted in the release

of hazardous substances. (AR 3030, 3495.) Part of this investigation included a

Hazard Ranking System (“HRS”) evaluation of the Voda Site. (AR 3495.) The

Voda Site scored a 23.6 on the HRS scale, which was too low to qualify the Voda

Site for the federal Superfund program. (AR 3509.) Instead, the Voda Site was

referred in 1995 to EPA for an immediate removal action. (AR 3029.) EPA’s

Action Memorandum seeking approval for the removal action indicated that

following the removal action “there is no potential for further state/local response.”

(AR 3033.)

EPA conducted the removal action in 1996, removing drums and above-

ground tanks of grease and corrosive wastes, including associated soil exposed to

these materials, and backfilling with clean soil. (AR 943.) After the removal action

was complete, EPA’s contractor sampled both on-site soils and groundwater as

part of a post-removal assessment. (AR 3127.) EPA issued a post-closure report

confirming the removal action had abated the imminent and substantial

endangerment and that cleanup activities at the site had met EPA’s health based

cleanup standards for industrial land usage. (AR 3128, 61877.) Following its

removal action, EPA sought recovery of its costs and entered into Administrative

Orders of Consent (“AOCs”) with companies that EPA had named as potentially

responsible parties (“PRPs”) for the Voda Site. (AR 61852.)

C. The TNRCC initiates the state listing process without

reevaluating the Voda Site following the EPA’s removal action.

More than four years after the EPA removal action, the TNRCC proposed

the Voda Site for listing on the Texas Superfund registry on November 17, 2000.

(AR 46233.) Although the Texas Solid Waste Disposal Act (“SWDA”) requires

the agency to ensure that a site exceed 5.0 on the HRS score to proceed with

listing, the Commission did not re-score the Voda Site to account for the EPA’s

work. The Commission sent correspondence to certain entities it believed had

historically shipped materials to the Voda Site. (AR 16708-16710.) The

Commission asserted that each recipient was potentially responsible for

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environmental investigation and eventual remediation at the Voda Site, informed

the recipients of the proposed listing, and included a Notice of Opportunity to

Make Good Faith Offer to conduct a Remedial Investigation/Feasibility Study

(“RI/FS”). (AR 08614-46109.) Several parties submitted written comments and

objections, noting that there was no empirical data to support an imminent and

substantial endangerment finding and no evidence to support listing the Voda Site

on the Texas Superfund registry. (AR 41577-41578.) Nevertheless, the State went

forward with its plan to list the Voda Site.

D. The TCEQ issues an administrative order for the Voda Site

pursuant to § 361.188 and § 361.272 of the SWDA.

A draft administrative order for the Voda Site was docketed for

consideration by the Commissioners at a public meeting of the Texas Commission

on Environmental Quality (“TCEQ”)1 on February 10, 2010. (AR 51125.) Agenda

Item No. 7 pertaining to the Voda Site was described on the docket as

“Consideration of a Final Administrative Order (Final Order) pursuant to Texas

Health and Safety Code Sections 361.188 and 361.272 for the Voda Petroleum,

Inc. State Superfund Site….” (AR 51127.)

Charmaine Backens, counsel for the Executive Director of the TCEQ,

presented the draft administrative order to the Commissioners. Following a brief

1

The TNRCC was renamed the Texas Commission on Environmental Quality effective

January 1, 2004.

-3-

description of the Voda Site and the remedial action plan, Backens testified that

“the Executive Director respectfully requests…recommends [sic] issuing this

Administrative Order for remedial activities at the Voda Petroleum State

Superfund Site pursuant to Chapter 361, sections 188 and 272 of the Health and

Safety Code.” (AR 50382.)

A handful of PRPs were granted approximately five minutes to address the

Commissioners regarding the agenda item, in which they argued that the

Commissioners should delay issuance of the administrative order and allow the

parties to present evidence to the Commission. Id. Counsel for the Executive

Director responded that “the law governing this case does not provide for an

adjudicatory hearing at this time” and noted that the Executive Director would not

directly address these objections, suggesting instead that the appropriate remedy

was to appeal to the district court. Id.

The Commissioners followed the Executive Director’s recommendation and

on February 12, 2010, issued a unilateral administrative order for the Voda Site

pursuant to § 361.188 and § 361.272 of the SWDA (“the Order” or “AO”).

(CR:29-108; App. A.) The AO named ExxonMobil and Shell—among

-4-

approximately 350 other entities—as responsible parties and ordered them to pay

the TCEQ’s response costs for the Voda Site.2 Id.

E. PRPs named in the AO seek a rehearing but are denied.

On March 12, 2010, Luminant, one of the parties named in the Order, filed a

motion for rehearing before the Commission. (AR 50870.) Luminant argued that

the SWDA requires the Commission to determine “the lowest cost alternative” to

remediate the Voda Site and that another contractor was prepared to present a

lower cost alternative remedy than had been adopted in the AO. (AR 50864.)

The TCEQ filed a written response to Luminant’s motion, first noting that

“the Commission issued the Order pursuant to Tex. Health and Safety Code §§

361.188 and 361.272 (West 2010).” (AR 49650; App B.) The TCEQ then argued

that Luminant was “not entitled to a rehearing because the law did not afford it a

hearing in the first instance. See Tex. Health & Safety Code Ann. § 361.274 (West

2010) (stating that ‘[a]n administrative order under Section 361.272 does not

require prior notice or an adjudicative hearing before the commission’.”) Id. To

drive the point home, the TCEQ concluded that “[b]ecause the Order was issued

under Sections 361.272 and 361.188 (Administrative Order 1), it did not require an

adjudicative hearing before the Commission.” (AR 49650; App. B.) The

2

Appellees ExxonMobil Oil Corporation, Exxon Mobil Corporation, Pennzoil-Quaker State

Company, and Shell Oil Company are referred to collectively as “ExxonMobil and Shell”

throughout this brief.

-5-

Commission did not timely grant Luminant’s request, and the AO became final on

April 8, 2010. (AR 10.)

F. ExxonMobil and Shell challenge the AO in Travis County District

Court.

On March 26, 2010, ExxonMobil and Shell filed their First Amended

Original Petition appealing the AO in Travis County District Court. (CR:4-27;

App. C.)3 ExxonMobil and Shell challenged the AO and the Commission’s actions

under the SWDA as well as § 37.001 of the Texas Uniform Declaratory Judgments

Act. Id.

On August 1, 2011, the TCEQ filed its Original Counter-Petition and Third-

Party Petition, pleading as follows: “On February 12, 2010, the TCEQ issued an

administrative order (“the Order”) under §§ 361.188 and 361.272 of the Act….”

(CR:127-169; App. D.)4 The TCEQ brought claims for cost recovery against

ExxonMobil and Shell and other PRPs pursuant to § 361.197(d), an action to

enforce the AO pursuant to § 361.321 and § 361.322(g), and injunctive relief

pursuant to § 361.273(2). Id.

3

Appellees filed their Original Petition on March 12, 2010. On May 18, 2010, the Amended

Petition was consolidated, along with nine other lawsuits filed by a number of other entities

named in the AO, into a new cause number. (CR:112-26.)

4

The TCEQ has filed two “supplements” to its Original Petition. However, neither supplement

revised or amended the factual allegations discussed herein. (CR:450-54.)

-6-

G. The parties engage in broad discovery at the trial court.

Although the State now argues judicial review of the AO is limited to the

TCEQ’s administrative record for the Voda Site, the State’s discovery at the trial

court contained no such limitations. Consistent with their live pleadings5 and each

successive amended scheduling order, the State spent nearly four years pursuing

unrestricted discovery on ExxonMobil and Shell. The Commission propounded

extensive written discovery on ExxonMobil and Shell and deposed corporate

representatives for both entities on a wide variety of issues outside the

administrative record. (Supp. CR at ___ [TCEQ’s First Written Discovery to

ExxonMobil Corporation and Shell Oil Company (served on September 10, 2013)];

(Supp. CR at ___ [TCEQ’s Notice of Oral Deposition (served on Sep. 20, 2012));

TCEQ’s Notice of Oral Deposition (served on Oct. 4, 2012)]. The State also

engaged in extensive expert discovery, designating eight state employee expert

witnesses, five non-state employee retained expert witnesses, and two non-retained

testifying expert witnesses which are presently identified to testify at trial, despite

the Commission’s current claim that the testimony of their own experts is actually

irrelevant to the case. (Supp. CR at ___ [Texas Commission on Environmental

Quality’s Amended Designation of Experts (served on May 10, 2013)].

5

Shortly before filing current Plea to the Jurisdiction, the Commission filed a Motion for

Leave to Amend Pleadings and Discovery. However, the trial court denied this motion via

written order on July 31, 2014.

-7-

H. The State reverses course and argues that review is limited to an

administrative record.

On December 18, 2013—approximately four years after the case was filed—

the State filed a Motion for Revised Discovery Control Plan in the trial court.

(Supp. CR at ___ [Texas Commission on Environmental Quality’s Motion for

Revised Discovery Control Plan (filed December 18, 2013)]. For the first time, the

State advanced the argument that: (1) the AO was issued exclusively under §

361.188 of the SWDA; and (2) judicial review of the AO was therefore limited to

an administrative record the TCEQ was in the process of compiling. Id. The trial

court rejected the State’s arguments and denied the motion via a written order

signed on March 4, 2014. The Commission did not seek an interlocutory appeal of

this order. (Supp. CR at ___ [Order Denying Motion for Revised Discovery

Control Plan (filed March 4, 2014)].

On July 15, the TCEQ recycled precisely these same arguments in a new

motion restyled as a “Plea to the Jurisdiction.” (CR:729-859.) Although the State’s

newly-filed plea did not contain any reference to sovereign immunity—in fact, the

words “sovereign immunity” did not even appear in the motion—the State argued

in a reply brief and at a subsequent hearing that because the AO was a strictly “188

Order” judicial review under any standard other than § 361.321 violated the state’s

immunity from suit. Following a hearing on this motion, the trial court rejected the

motion via written order on October 1, 2014. (CR:1151.)

-8-

SUMMARY OF THE ARGUMENT

The TCEQ issued a unilateral administrative order pursuant to two

provisions of the SWDA—§ 361.188 and § 361.272—ordering ExxonMobil and

Shell to pay millions of dollars to reimburse the State’s remediation of the Voda

Site. ExxonMobil and Shell were denied an adjudicatory hearing prior to issuance

and had no opportunity to present experts or cross-examine the State’s witnesses

regarding liability. Instead, the TCEQ invoked its broadest powers under the

SWDA to block any hearing and attempted to hold persons named in the order

jointly and severally liable for response costs. For nearly four years, these were

uncontested procedural facts while the parties litigated the case at the district court.

Following the Texas Supreme Court’s decision in City of Waco, the TCEQ

made a strategic decision to expand the boundaries of that holding in this case.

Although the AO was subject to judicial review based on a preponderance of the

evidence at the district court, the State attempts to whitewash the AO’s history and

the Commission’s own pleadings by claiming that it actually issued the Order

solely under § 361.188, which the State believes now entitles it to pure substantial

evidence review. But regardless of whether the Commission issued the Order

pursuant to § 361.188, § 361.272, or both, the SWDA presents the same appellate

remedy for both orders, and nothing from the statutory history or current text

indicates that these orders are mutually exclusive. Even if the SWDA did intend to

-9-

split appellate remedies between different SWDA administrative orders, there is no

doubt the TCEQ issued the AO for the Voda Site under § 361.272, and therefore

§ 361.322 is the appropriate appellate provision.

The Texas Supreme Court’s decision in City of Waco does nothing to change

this analysis. The City of Waco holding is limited to a threshold determination of

whether a third-party seeking to intervene in a permitting case is an “affected

person” sufficient to trigger a contested-case hearing. That case has no application

to an appeal by parties named responsible in a unilateral administrative order,

particularly when the relevant statute already provides an appropriate standard of

review.

After spending an enormous amount of time and money prosecuting this

case as both a § 361.188 and § 361.272 Order, the State is now erroneously

emboldened by City of Waco to believe it can simply issue Superfund enforcement

orders demanding millions of dollars in response costs without an agency hearing

or de novo review at the district court. Instead, the State suggests that pure

substantial evidence review of its own record is sufficient. But City of Waco deals

solely with a permitting issue rather than the more onerous cost recovery

enforcement. Moreover, the plain language of the SWDA unequivocally waives

sovereign immunity to judicial review of the Order and provides for de novo

review based on a preponderance of the evidence. In this type of action, City of

- 10 -

Waco does nothing to relieve the State of its ultimate burden to prove liability.

Potentially responsible parties are entitled to their day in court, and the trial court

has the power to hear their claims under a preponderance of the evidence standard.

STATEMENT OF JURISDICTION

ExxonMobil and Shell believe the Court is without jurisdiction to hear this

appeal. A plea to the jurisdiction challenges the trial court’s power to adjudicate

the subject matter of the controversy. Heckman v. Williamson Cty., 369 S.W.3d

137, 149 (Tex. 2012); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000). Black’s Law Dictionary defines “subject-matter jurisdiction” as

“[j]urisdiction over the nature of the case and the type of relief sought; the extent to

which a court can rule on the conduct of persons or the status of things.” BLACK’S

LAW DICTIONARY at 857 (7th ed. 1999). In the context of judicial review of an

administrative order, the issue of sovereign immunity requires an examination of

whether a statute provides a right to judicial review of agency action. Houston

Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007).

There is no question that the SWDA authorizes judicial review of the AO in

this case and that the State has waived immunity from suit. The trial court has the

power to either uphold or set aside the Order and to award attorneys’ fees to the

prevailing party. What the parties actually dispute is precisely what evidence the

trial court may consider in reviewing the Order. The State asserts the trial court is

- 11 -

limited to the Commission’s administrative record, while ExxonMobil and Shell

argue that the trial court can consider new evidence through a trial de novo. The

State’s plea is not a challenge to the trial court’s subject matter jurisdiction, but

instead a maneuver to set the procedures the trial court will use to enter an order

that it unquestionably has the power to enter.

Assuming this evidentiary question did implicate the court’s subject matter

jurisdiction, the State cannot maintain a plea to the jurisdiction in this case because

its own pleadings defeat its claim. In deciding a plea to the jurisdiction, the court

must not weigh the claims’ merits but should look to the pleadings and determine

if they allege facts that affirmatively demonstrate the court’s jurisdiction to hear

the case. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); County of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The State’s live pleadings

indicate that “[t]he Texas Legislature has defined the sole method for appealing the

Order at Tex. Health & Safety Code § 361.322.” (CR:675-87: App. E.)

ExxonMobil and Shell agree, as their Amended Petition invokes § 361.322 and

challenges the TCEQ to prove—by a preponderance of the evidence—that

Appellees are liable for the elimination of any release at the Voda Site. Therefore,

the court need not look past the parties’ own pleadings to determine that they have

alleged facts that affirmatively demonstrate both that the Court has jurisdiction to

- 12 -

hear this case and that the appropriate standard of review and burden of proof can

be found in § 361.322 of the SWDA.

ARGUMENT

I. Appellees’ Response to Appellant’s Issue One.

The Texas Solid Waste Disposal Act (“SWDA” or “Act”) does not create

mutually exclusive Superfund orders with separate waivers of sovereign immunity.

Although the Act empowers the Commission to issue an administrative order

before a remedial investigation/feasibility study has been conducted or at the

conclusion of the state Superfund listing process, either type of administrative

order is subject to the same appellate provisions.

A. The TCEQ can issue administrative orders under § 361.188 and

§ 361.272, and both share common attributes relevant to this

appeal.

The SWDA permits the Commission to issue an administrative order under

Subchapter F regarding a site “that may constitute an imminent or substantial

endangerment to public health and safety or the environment due to a release or

threatened release of hazardous substances into the environment.” Tex. Health &

Safety Code Ann. § 361.181 (West 2010). Pursuant to the Act, an Order issued

under § 361.188 comes at the conclusion of the listing process, which would

include investigating the site proposed for listing and recommending a remedial

action to cleanup any hazardous substances identified. Id. Such an order lists the

- 13 -

identified site on the state registry and provides the necessary details regarding the

proposed remedy for the hazardous substances found during the investigation. Id.

The Act also permits the Commission to issue an administrative order under

Subchapter K “to a person responsible for solid waste if it appears that there is an

actual or threatened release of solid waste that presents an imminent and

substantial endangerment to the public health and safety or the environment.” Id. at

§ 361.272. This administrative order need not necessarily come at the conclusion

of the Commission’s investigation of a site believed to harbor hazardous

substances. Instead, the order issued under § 361.272 must only identify a party

allegedly responsible for “solid waste”—not hazardous substances—and order the

party “to take any action necessary to provide and implement a cost effective and

environmentally sound remedial action plan designed to eliminate the release or

threatened release.” Id. at § 361.272(b)(2).

Although the power to issue administrative orders is found in two separate

sections of the SWDA, the two provisions are not mutually exclusive. Nothing in

the statute forbids the Commission from issuing an administrative order listing a

site alleged to contain “hazardous substances” and to issue that same order to a

person responsible for “solid waste” that presents an imminent and substantial

endangerment. Moreover, both types of orders share elements outlined in

Subchapters I, K, and L of the Act, including but not limited to:

- 14 -

 The four-part definition of a “person responsible for solid waste.” Tex.

Health & Safety Code Ann. § 361.271 (West 2010);

 Statutory defenses to liability. Id. at § 361.275;

 Apportionment of liability among potentially responsible parties. Id. at

§ 361.276; and

 An appellate provision. Id. at § 361.322.

Although the power to issue administrative orders can be found in two parts

of the SWDA—and orders under each subsection can arise at different times in

response to different threats to human health or the environment—the essential

features relevant to this appeal remain the same, and nothing within the SWDA

makes § 361.188 and § 361.272 orders mutually exclusive.

B. The statutory history of the SWDA shows that administrative

orders have always been subject to the same appellate standards.

1. The original SWDA established a permitting program to

regulate solid waste.

The SWDA was enacted in 1969 to control “the collection, handling,

storage, and disposal” of solid waste. Act approved June 2, 1969, 61st Leg., R.S.,

ch. 405, 1969 Tex. Gen. Laws 1320, 1320 (repealed 1989) recodified by Act

approved June 14, 1989, 71st Leg., R.S., ch. 678, 1989 Tex. Gen. Laws 2230 (App.

F.) In its original form, the SWDA divided powers between two state agencies—

the Texas State Department of Health was tasked with regulating municipal solid

- 15 -

waste while the Texas Water Quality Board was assigned industrial solid waste. Id.

at 1321 (App. F.) The original statute gave broad power to these agencies to:

 “require and issue permits authorizing and governing the

operation and maintenance of sites used for the disposal of solid

waste,” including the power to “revoke or amend any permit

issues.” Id. at 1322. (App. F.); and

 “establish minimum standards of operation for all aspects of

the management and control” of solid waste, including the

“collection, handling, storage, and disposal by incineration,

sanitary landfill, composting, or other method.” Id. at 1323. (App.

F.)

To effectuate enforcement, the Act imposed civil penalties for entities that

engaged in the “collection, storage, handling, or disposal of solid waste, or the use

or operation of a site for the disposal of solid waste, in violation of the Act.” Id. at

1326-27. (App. F.) Any “person affected by any ruling, order, decision, or other act

of the department or the board” enjoyed the right to “appeal by filing a petition in

the district court of Travis County.” Id. at 1328. (App. F.) The original SWDA

contained no definition for the term “person affected,” opening the door for a

broad judicial interpretation of standing to appeal permitting decisions. However,

the Legislature addressed this shortcoming in the following session, adding a

definition for “person affected” as:

“any person who is a resident of a county in which a site, facility, or

plant is to be located including any person who is doing business or

owns land in the county or adjacent or contiguous county and any

local government. Such person affected shall also demonstrate that he

has suffered or will suffer actual injury economic damage.”

- 16 -

Act approved June 15, 1973, 63rd Leg., R.S., ch. 576, 1973 Tex. Gen. Laws 1595

(current version at Tex. Health & Safety Code Ann. § 361.003(24) (West 2010))

(App. G.)

Missing from the original statute was the power to issue administrative

orders like the Order at issue in this case. As enacted, the SWDA did not empower

the state to clean up sites contaminated with solid waste or hazardous substances

and to order persons the state believed responsible for solid waste to execute and/or

fund such a cleanup. Instead, the statute regulated solid waste through the

permitting program. Although a person affected by a permitting decision could

seek judicial review under 8(g), this clause was not applicable to an administrative

order to clean up a contaminated site simply because the SWDA did not grant the

power to issue any such order under the terms of the original act.

2. Following the Congressional passage of CERCLA, the

Texas legislature amended the SWDA to create a Texas

state Superfund program.

The United States Congress passed the Comprehensive Environmental

Response, Compensation, and Liability Act (“CERCLA”) in 1980, giving the

federal government the power to identify parties responsible for the release of

hazardous substances and compel those parties to clean up the sites via

administrative orders or civil actions. 42 U.S.C.A. §§ 9601–9628. CERCLA also

permitted the government to clean up contaminated sites using the Superfund—a

- 17 -

trust fund—and then recover costs from responsible parties through civil litigation.

Id. CERCLA was triggered by the presence of abandoned hazardous waste dump

sites like the infamous Love Canal site in New York. A critical feature of

CERCLA was the creation of a broad liability scheme under which parties who

arranged for disposal of waste (i.e, a dump site’s customers) and transporters of the

waste could be found jointly and severally liable for all remediation costs. No

longer was liability limited to the site’s permit holder or operator. United States v.

Bestfoods, 524 U.S. 51, 55-56 (1998).

Five years after the passage of CERLCA, the Texas Legislature created the

state’s own Superfund program through a 1985 amendment to the SWDA. Act

approved June 12, 1985, 69th Leg., R.S., ch. 566, 1985 Tex. Gen. Laws 2166

(repealed 1989) recodified by Act approved June 14, 1989, 71st Leg., R.S., ch.

678, 1989 Tex. Gen. Laws 2230 (App. H.). Like CERCLA, the new provisions of

the SWDA created a broad liability scheme under which those who arrange for

disposal of waste or transport of waste can be held liable for remediation costs at

sites they do not own or operate. See, e.g., R.R. Street & Co. v. Pilgrim Enters.,

166 S.W.3d 232, 238 (Tex. 2005) (“SWDA, like CERCLA, provides mechanisms

for the clean-up of solid waste and for both governmental entities and private

parties to recover clean-up costs from those responsible for the waste.”). However,

instead of having the new liability scheme stand separately from the existing solid

- 18 -

waste permitting statute as Congress had done, the Texas Legislature embedded

these new provisions into the SWDA.

The 1985 amendments expanded the SWDA beyond permitting and

empowered the state to issue administrative orders to persons responsible for solid

waste,

“restraining such person or persons from allowing or continuing the

threatened release and requiring those persons to take actions

necessary to provide and implement a cost effective and

environmentally sound remedial action plan to designed to eliminate

the release or threatened release.”

Act approved June 12, 1985, 69th Leg., R.S., ch. 566, 1985 Tex. Gen. Laws 2166,

2176 (repealed 1989) recodified by Act approved June 14, 1989, 71st Leg., R.S.,

ch. 678, 1989 Tex. Gen. Laws 2230 (App. H.)

The 1985 amendments further empowered the state to survey and list “every

hazardous waste facility which may constitute an imminent and substantial

endangerment to public health and safety or the environment” and provided

guidelines for the “cleanup of a facility identified.” Id. at 2178, 2180 (App. H.)

Within those guidelines, the state was empowered as follows:

“whenever the department of water resources finds that there exists an

actual or threatened release of hazardous wastes at a hazardous facility

listed on the registry that presents an imminent and substantial

endangerment to the public health and safety of the environment, it

may order the owner and/or operator of such facility and/or any other

person responsible for the release or threatened release at such facility

(A) to develop a remedial action program, subject to the approval of

the department of water resources, at such facility; and (B) to

- 19 -

implement such program within reasonable time limits specified in the

order.”

Id. at 2180 (App. H.) To ensure the same basic elements for all administrative

orders issued under the new amendments, the statute made clear that “[t]he

provisions in Sections 8(g), 9, 10, and 11 of this Act relating to administrative

orders shall apply to orders issued pursuant to this paragraph.” Id. (App. H.)

The 1985 amendments also added a new appellate provision to the SWDA to

exclusively cover administrative orders issued pursuant to the new Superfund

program. While leaving the earlier appellate provision for the permitting program

unchanged, the new Section 9 placed the burden of proof on appeal of an

administrative order squarely on the state, providing that:

“The district court shall uphold an administrative order issued

pursuant to Section 8(g) if the department or the department of water

resources, by a preponderance of the evidence, proves: (1) that there is

an actual or threatened release of solid waste that is an imminent and

substantial endangerment to the public health and safety or the

environment; and (2) that the person made subject to the

administrative order is liable for the elimination of the release or

threatened release, in whole or in part.”

Id. at 2177 (App. H.)

In short, the 1985 amendments established the modern state Superfund

program, empowering the state to issue administrative orders and seek to recover

its costs under a handful of different circumstances, but made both types of orders

- 20 -

subject to certain procedural baselines, found in sections 8(g), 9, 10, and 11 of the

revised statute, including:

 A standard definition for persons responsible for solid waste. Id. at 2176

(App. H.);

 Allowing persons responsible for solid waste to prove a statutory defense by

a preponderance of the evidence. Id. (App. H.);

 Allowing persons responsible for solid waste to prove that the release is

divisible, therefore avoiding the consequences of joint and several liability.

Id. at 2176-77 (App. H.); and

 Granting the right to appeal an administrative order and placing the burden

on the state based on a preponderance of the evidence for the appeal. Id. at

2177 (App. H.)

Nothing in the 1985 amendments gave the State the power to issue

administrative orders under the new Superfund program without these provisions.

Subsequent amendments to the SWDA further clarified both the burden of

proof for an appeal of an administrative order and the class of persons who could

file such an appeal. The Legislature narrowed the standing for appeal of an

administrative order in 1989 to “any person subject to an administrative order

under 8(g),” replacing earlier language that effectively allowed any person to file a

petition appealing an administrative order issued under that provision. Act

approved June 14, 1989, 71st Leg., R.S., ch. 703, 1989 Tex. Gen. Laws 3212, 3217

(current version at Tex. Health & Safety Code Ann. § 361.322 (West 2010)) (App.

I.) The same bill clarified the standard of review for challenging the remedy

- 21 -

selection, adding a subsection “(h) If the appropriateness of the selected remedial

action is contested in the appeal of the administrative order, the remedial action

shall be upheld unless the court determines that the remedy is arbitrary or

unreasonable.” Id. at 3217 (App. I.) The bill also revised subsection (e), clarifying

that an appeal “does not prevent the state agency issuing the administrative order

from proceeding with the remedial action program under Subchapter F unless the

court enjoins the remedial action under its general equity jurisdiction.” Id. (App. I.)

3. The codified SWDA makes all administrative orders subject

to these same provisions.

Following codification, the SWDA retained the same procedural framework

outlined above. The procedure to list a site on the state Superfund list was

reorganized under “Subchapter F: Registry and Cleanup of Certain Hazardous

Waste Facilities.” The procedural building blocks of an administrative order

discussed above were reorganized into “Subchapter I: Enforcement, Administrative

Orders Concerning Imminent and Substantial Endangerment.” The appellate

provision was reorganized under “Subchapter K. Appeals; Joinder of Parties.” The

Commission retained the power to issue an administrative order either before or

after the listing process, but all administrative orders retained these elements.

- 22 -

C. The current statute does not create mutually exclusive orders with

separate waivers of sovereign immunity.

The State’s brief traces largely the same statutory history, but erroneously

concludes that the Legislature intended to create “two types of Superfund order”

that the State argues are “separate and distinct.” (Appellant’s Brief at 9.) The State

argues that the two types of orders are mutually exclusive for three reasons:

(1) they are contained in different sections; (2) they are expressed in different

language; and (3) they are subject to different appellate provisions that present an

irreconcilable conflict. Id. But as discussed below, none of these factors support

the conclusion that the Legislature intended to create mutually exclusive Superfund

orders with separate appellate provisions, and the statutory history combined with

the current structure of the Act lead to precisely the opposite conclusion.

1. Appearing in different sections using different language

does not make the orders mutually exclusive.

Although the Act empowers the TCEQ to issue orders in more than one part

of the statute, the text is clear that parties named in both § 361.188 and § 361.272

orders are subject to certain procedural protections which the TCEQ cannot

revoke. This was true when the 1985 amendments creating the Superfund program

were passed and remains true through the modern codification of the statute.

Pursuant to § 361.188(b), “the provisions in Subchapters I, K, and L relating to

administrative orders apply to orders issued under this section.” Tex. Health &

- 23 -

Safety Code Ann. § 361.188(b) (West 2010). This is the same cross-reference that

was in the statute when it was enacted in 1985. This incorporation of Subchapters

I, K, and L into “orders issued under this section” is not limited to what the State

self-servingly identifies as “relevant provisions.” (Appellant’s Brief at 16.) Instead

it is open ended and inclusive, and demonstrates that the Legislature intended all

“administrative orders” of the SWDA to share common procedural attributes,

including the same appellate provisions. Tex. Health & Safety Code Ann.

§ 361.188(b) (West 2010).

The structural link between orders issued under § 361.188 and § 361.272 is

not limited to this provision. Just as section § 361.188 of Subchapter F directly

incorporates Subchapters I, K, and L, a similar link between the two types of

orders is found within Subchapter K at § 361.322. That appellate provision—

limited to administrative orders issued under the Superfund program—states that

“[t]he filing of the petition does not prevent the commission from proceeding with

the remedial action program under Subchapter F unless the court enjoins the

remedial action under its general equity jurisdiction.” Tex. Health & Safety Code

Ann. § 361.322(e) (West 2010). Therefore, if the Commission issues an

administrative order before it has commenced with the remedial action program

under § 361.272, that cleanup program can continue just as it would have if the

order was issued under § 361.188 during the pendency of the appeal.

- 24 -

Although they appear in different sections of the Act and are expressed in

different language, § 361.188 and § 361.272 do not create mutually exclusive

orders. Instead, regardless of whether a Superfund order comes at the conclusion of

the listing and remedy selection process through § 361.188 or instead prior to the

remedial action program through § 361.272, the SWDA guarantees certain

protections to persons the state believes are responsible for solid waste.

2. The SWDA appellate provisions distinguish between

appeals of Superfund orders and appeals of permitting

decisions, not separate kinds of Superfund orders.

The State contends that because there are two separate appellate provisions

contained within the SWDA, the Legislature must have intended that a different

appellate provision would apply to each type of Superfund order, and thus the

orders are mutually exclusive. However, the State’s argument misunderstands the

structure of the SWDA and the role both provisions play in the context of the entire

Act. The two appellate provisions are principally aimed at different types of orders

or actions of the Commission. Therefore, they grant appellate remedies to different

categories of parties, establish different timetables to perfect an appeal, and feature

different burdens of proof and standards of review.

Section 361.321 of Subchapter K tracks the language of the 1969 Act and

states that “a person affected by a ruling, order, decision, or other act of the

commission may appeal the action by filing a petition in a district court of Travis

- 25 -

County.” Tex. Health & Safety Code Ann. § 361.321(a) (West 2010). The appeal

must be perfected within 30 days of the date that the offending act of the

Commission occurs. Id. at § 361.321(b). The provision grants an appellate remedy

not limited to formal commission orders, but to virtually any action by the

Commission. An appellant under § 361.321 is not a named party subject to an

administrative order, but instead is “a person affected” by the actions of the

Commission. Id. at § 361.321(b). The SWDA defines a “person affected” as one

who “has suffered or will suffer actual injury or economic damage and, if the

person is not a local government: (A) is a resident of a county, or a county adjacent

or contiguous to the county, in which a solid waste facility is to be located; or

(B) is doing business or owns land in the county or adjacent or contiguous county.”

Tex. Health & Safety Code Ann. § 361.003(24) (West 2010).

The modern § 361.321 does not state that it is limited to—or even applicable

to—administrative orders for Superfund cases. Id. at § 361.321(b). This is entirely

consistent with its statutory history, as the provision was adopted with the original

version of the SWDA in 1969, which did not empower the state to identify parties

responsible for the release of solid waste and to compel those parties to clean up

waste sites. As discussed above, the codified SWDA retains a solid waste

permitting program distinct from the Superfund program that allows the

Commission to issue permits for the construction, operation, and maintenance of

- 26 -

solid waste disposal facilities. See Tex. Health & Safety Code Ann. § 361.061

(West 2010). Hence, § 361.321 is directed at parties aggrieved by this permitting

process who can show that they meet the economic injury test under the statute—it

is not directed at parties named liable in Superfund orders. Both its statutory

history and its current role in the SWDA demonstrate clear legislative intent that

§ 361.321 is the appellate provision for the permitting program, not the Superfund

program. See, e.g., Tex. Natural Res. Conservation Comm’n v. Sierra Club, 70

S.W.3d 809, 811 (Tex. 2002) (appeal of solid waste permitting decision under

§ 361.321 following contested-case hearing at the agency); TJFA, L.P. v. Tex.

Comm’n on Envtl. Quality, No. 03-10-00016-CV, 2014 WL 3562735, at *1 (Tex.

App.—Austin July 16, 2014, no pet.) (mem. op.) (same).

In contrast, § 361.322 applies to “an administrative order issued under

361.272” of the SWDA. Tex. Health & Safety Code Ann. § 361.322(a) (West

2010). Instead of 30 days under § 361.321(b), the appeal must be perfected within

45 days of receipt of the order. Id. The section does not authorize appeals of solid

waste permits or other Commission actions, but is limited to administrative orders

issued under the Superfund program. Id.; see also Sierra Club, 70 S.W.3d at 812

(noting that § 361.322 was “not applicable” to appeal of permit decision). Instead

of restricting appeals to a “person affected” by a Commission action as defined in

the statute, § 361.322 is limited to a person “subject to” the administrative order on

- 27 -

appeal. Id. This too is consistent with the statutory history of the SWDA, as the

Legislature created both the power to issue administrative Superfund orders and

the right to appeal those orders within the 1985 amendments, granting the same

appellate remedy for all Superfund orders. The State has never enjoyed the power

to issue these administrative orders without the appellate provisions of the modern

§ 361.322.

3. Forcing all appeals of Superfund orders into § 361.321

creates an absurd result.

Ignoring the plain language of § 361.188(b)—which incorporates “all

provisions relating to administrative orders” into § 361.188 orders—the State

suggests that “[t]he proper reading of this section is that the relevant provisions of

the other subchapters apply to Section 361.188 orders, to the extent they do not

create contradictions or absurd results.” (Appellant’s Brief at 16.) Yet at the same

time, the State asks the Court to force Superfund appeals into an appellate

provision explicitly limited to entities surrounding the geographic area in which “a

solid waste facility is to be located.” Tex. Health & Safety Code Ann.

§ 361.003(24) (West 2010). But the statutory history of both appellate provisions

shows that the Legislature never intended to force appeals of Superfund orders into

the preexisting regime for permitting decisions. The separate appellate provisions

of Subchapter K were adopted alongside their respective programs—the permitting

- 28 -

program and the Superfund program—to provide appellate remedies to parties

aggrieved by either type of agency action.

Taking the State’s argument to its logical conclusion, a party’s standing to

appeal a Superfund order under the SWDA would not depend on whether or not

the entity was named in the administrative order per § 361.322, but instead would

turn on the entity’s geographic nexus to the site at issue pursuant to § 361.321.

Assuming the site in question even qualified as a “solid waste facility” under the

Act, parties who owned land or did business within the defined geographic zone

would have a right to appeal, while parties missing this geographic link would

have no clear appellate remedy. At the same time, the Commission is free to

identify and name in an administrative order persons it believes responsible for

solid waste without regard to their geography, and order them to remediate the site

or pay the State’s response costs. No such concept exists in the CERLCA

jurisprudence, and the Legislature never intended to create such an anomalous

appellate scheme for the Texas program.

II. Appellees’ Response to Appellant’s Issue Two.

The Administrative Order for the Voda Site was issued under both § 361.188

and § 361.272 of the SWDA. The AO is directed at both solid wastes and

hazardous substances, and plainly invokes the TCEQ’s powers under § 361.188

and § 361.272. Immediately before and after the AO was issued, the Commission

- 29 -

unambiguously declared that it issued the Order pursuant to both sections of the

Act, and the TCEQ has unequivocally pled the same procedural facts throughout

this litigation. In fact, the Commission’s live pleadings state that the Order was

issued under both § 361.188 and § 361.272 and that the sole method for appealing

the Order resides at § 361.322. Therefore, even if the State were correct that

§ 361.188 and § 361.272 orders are subject to different appellate provisions, the

AO for the Voda Site was issued under § 361.272, making application of § 361.322

appropriate for this Order.

A. The language of the AO demonstrates the Order was issued under

§ 361.188 and § 361.272.

The language used by the TCEQ in the AO demonstrates the Commission’s

intent and action to issue the Order under both § 361.188 and § 361.272. The very

first paragraph of the AO invokes the Commission’s power to issue the Order “as

authorized by Sections 361.188 and 361.272 of the Act.” (CR:29; App. A.) In

detailing the Chemicals of Concern at the Voda Site, the AO specifically invokes

“Sections 361.271 through 361.277 and 361.343 through 361.345” of the SWDA.

(CR:48; App. A.) The Order also names ExxonMobil and Shell as “responsible

parties (‘RPs’) pursuant to Section 361.271 of the Act” (CR:29; App. A.) and

announces the TCEQ’s conclusion that the “release or threatened release… has not

been proven to be divisible pursuant to Section 361.276 of the Act.” (CR:50; App.

A.) In the event there are disagreements between the Agreeing Respondents and

- 30 -

the Executive Director, the AO states such disagreements will be handled pursuant

to “Sections 361.321 and/or Sections 361.322 of the Act.” (CR:86; App. A.) And

the AO orders Respondents to preserve records “relating to each Respondent’s

potential liability or to any other person’s potential liability for the Site under

Section 361.271 of the Act.” (CR:78; App. A.) All of these provisions flatly

contradict the State’s position that the AO was issued solely under § 361.188.

The dual nature of the AO is even more apparent when looking at the

materials the Commission alleges are present at the Voda Site. Subchapter F of the

SWDA authorizes the TCEQ to identify and list sites where the release of

“hazardous substances” has allegedly endangered public health. Tex. Health &

Safety Code Ann. § 361.181(a) (West 2010). The term “solid waste” does not

appear within §§ 361.181-361.188 of the SWDA, which instead is focused

exclusively on the listing, cleanup, and remediation of sites containing “hazardous

substances.” Id. In contrast, Subchapter K authorizes the Commission to issue an

order to a person responsible for “solid waste” if a release of “solid

waste…presents an imminent and substantial endangerment.” Id. at § 361.272.

This provision makes no mention of hazardous substances.

The AO for the Voda Site is not limited to “hazardous substances” as would

be expected for an order limited solely to § 361.188, but instead declares parties

responsible for “the solid waste and/or hazardous substances at the Site.” (CR:29;

- 31 -

App. A.) The AO declares that certain substances “which are found at the Site, are

solid wastes as defined in Section 361.003(34) of the Act” and further alleges that

the PRPs are responsible for “solid wastes [that] were stored, processed, disposed

of, or discarded at the Site.” (CR:50; App. A.)

B. Counsel for the Executive Director asked the Commissioners to

issue the Order under both § 361.188 and § 361.272.

The State argues that “the TCEQ intended to issue a Section 361.188 order.”

(Appellant’s Brief at 23.) Yet the words of the counsel for the Executive Director

of the TCEQ—immediately before, during, and immediately after the AO was

issued—demonstrate the Commission’s intent to issue the AO pursuant to both

§ 361.188 and § 361.272, and a clear understanding that the TCEQ had done just

that. The Commission’s agenda item for the Voda Site was docketed as

“Consideration of a Final Administrative Order (Final Order) pursuant to Texas

Health and Safety Code Sections 361.188 and 361.272 for the Voda Petroleum,

Inc. State Superfund Site….” (AR 51127: App. J (emphasis added).) When counsel

for the Executive Director presented the administrative order to the Commission,

she asked the Commissioners to issue the order “pursuant to Chapter 361, sections

188 and 272 of the Health and Safety Code.” (AR 50382 (emphasis added).) And

when the TCEQ opposed Luminant’s rehearing request, it argued that “[b]ecause

the Order was issued under Sections 361.272 and 361.188 (Administrative Order

- 32 -

1), it did not require an adjudicative hearing before the Commission.” (AR 49650;

App. B (emphasis added).)

C. Understanding that the AO invokes both § 361.188 and § 361.272,

the State described the Order as having been issued under both

sections for years.

Since this case was filed in 2010, the State has understood the true nature of

the Order by repeatedly and unequivocally pleading that the AO was issued under

both § 361.188 and § 361.272 of the SWDA. These statements appeared in the

TCEQ’s Original Counter-Petition and Third-Party Petition, Response to Plea in

Abatement, Motions for Entry of Default, and their Motions for Entry of Agreed

Final Judgment. (CR:127-69; Tab D.) Following denial of the TCEQ’s Motion for

Leave to Amend, they remain the Commission’s live pleading in the case. The

State’s claim that the Commission intended to issue a purely § 361.188 Order is

flatly contradicted multiple times by the text of the Order and by the Commission’s

own justification for its actions.

1. The TCEQ repeatedly and unequivocally described the AO

as being issued under § 361.188 and § 361.272.

In its Original Counter-Petition and Third-Party Petition, the State pled that:

“On February 12, 2010, the TCEQ issued an administrative order (“the Order”)

under §§ 361.188 and 361.272 of the Act….” (CR:158; App. D.) The State further

pled that ExxonMobil and Shell “were ‘liable for the elimination of the release or

threatened release, in whole or in part,’ within the meaning of TEX. HEALTH &

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SAFETY CODE § 361.322(g)” and that “the Order should be upheld pursuant to

TEX. HEALTH & SAFETY CODE §§ 361.321 and 361.322(g).” (CR:164; App.

D.)

The State unequivocally repeated the same description of the AO—as an

order issued under § 361.188 and § 361.272—in myriad other filings at the trial

court:

 On October 20, 2011 Third-Party Defendant Howard Frelich filed a

Plea in Abatement along with his Original Answer. In its Response to

this Plea in Abatement, the TCEQ stated that “The Order was issued

pursuant to two sections of the Texas Solid Waste Disposal Act:

Tex. Health & Safety Code §§ 361.188 & 361.277 (sic).” As proof

that the AO relied on both sections, the State cited to the very first

paragraph of the AO—“Order sec. I at 1.” (Supp. CR at ___

[TCEQ’s Response to Plea in Abatement by Third-Party Defendant

Howard Freilich and Motion for Partial Summary Judgment at 9-10

(filed November 14, 2011) (emphasis added) (attachments omitted)].

 On July 30, 2012, the State moved for entry of an agreed final

judgment between the TCEQ and a group of approximately 154

potentially responsible parties (“PRPs”). In the agreed final judgment,

the State pled that “the TCEQ issued the Order under Sections

361.188 and 361.272 of the Act….” (Supp. CR at ___ [Agreed Final

Judgment, Cause No. D-1-GN-12-002297, Young Chevrolet, Inc., et

al. v. Texas Commission on Environmental Quality, in the 345th

Judicial District Court of Travis County, Texas at ¶ III. B. (filed July

30, 2012) (emphasis added) (attachments omitted)].

 On May 3, 2013, the State moved for entry of another agreed final

judgment between the TCEQ and a single PRP, Ark-La-Tex Waste

Oil Company, Inc. Once again, the State pled that “the TCEQ issued

the Order under Sections 361.188 and 361.272 of the Act….” (Supp.

CR at ___ [Agreed Final Judgment, Cause No. D-1-GN-13-003373,

Young Chevrolet, Inc., et al. v. Texas Commission on Environmental

Quality, in the 345th Judicial District Court of Travis County, Texas

- 34 -

at ¶ III. B. (filed September 26, 2013) (emphasis added) (attachments

omitted)].

 On February 4, 2014, the State moved for entry of default against

PRPs Billy D. Cox Truck Leasing, Inc. and SBC Holdings, Inc. f/k/a/

the Stroh Brewery Company. In ¶ 3 of those motions, the State noted

that “The TCEQ issued a Superfund Order on February 12, 2010,

(“the Order”) under Tex. Health and Safety Code §§ 361.188 and

361.272….” (Supp. CR at ___ [Motion for Partial Default Judgment

Against Billy D. Cox Truck Leasing, Inc. at ¶ 3 (filed February 4,

2014) (emphasis added); Motion for Partial Default Judgment Against

SBC Holdings, Inc., f/k/a The Stroh Brewery Company at ¶ 3 (filed

February 3, 2014) (emphasis added).].

Though the State has filed a handful of supplements to its pleadings at the

trial court, the Commission’s live pleadings directly contradict their core

arguments on appeal. The State’s Third Amended Answer acknowledged that

“[t]he Texas Legislature has defined the sole method for appealing the Order at

Tex. Health & Safety Code § 361.322.” (CR:678; App. E (emphasis added).) The

TCEQ concluded this Answer by pleading that “the standard of review in the

appeal of this Order is…whether: (a) TCEQ can prove, by a preponderance of the

evidence, the two factors listed in § 361.322(g)(1) and (2); (b) Plaintiffs can show

that the selection of the remedy by TCEQ was arbitrary or unreasonable; or

(c) Plaintiffs can show that the Order as a whole is ‘frivolous, unreasonable, or

without foundation with respect to a party named by the order.’ Id. at § 361.342.”

(CR:683; App. E (emphasis added).)

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2. The State disclosed that it issued the AO under both

sections to obtain advantages of a § 361.272 order.

The State’s discovery disclosures make clear why the Commission chose to

issue the AO under § 361.272 as well § 361.188. Pursuant to § 361.274, “[a]n

administrative order under Section 361.272 does not require prior notice or an

adjudicative hearing before the commission.” Tex. Health & Safety Code Ann.

§ 361.274 (West 2010). In stating why ExxonMobil and Shell were not entitled to

an agency hearing prior to issuing the AO, the State disclosed that “a party does

not have a right to an adjudicative hearing prior to a § 361.272 Order, pursuant to

Tex. Health & Safety Code § 361.274.” (Supp. CR at ___ [Texas Commission on

Environmental Quality’s Response to Request for Disclosure at 3-4 (served

September 6, 2012) (attachments omitted)].

Moreover, the State has steadfastly argued that ExxonMobil and Shell, as the

well as other PRPs, are jointly and severally liable for contamination at the Voda

Site. The statutory basis for joint and several liability under the SWDA is found in

§ 361.276, which states that “[i]f the release or threatened release is not proved to

be divisible, persons liable under Section § 361.272 or § 361.273 are jointly and

severally liable for eliminating the release or threatened release.” Tex. Health &

Safety Code Ann. § 361.276 (West 2010) (emphasis added). Nothing in

Subchapter F for a § 361.188 order establishes joint and several liability for

responsible parties, and § 361.276 does not state that persons declared by TCEQ to

- 36 -

be a responsible party under a § 361.188 order are jointly and severally liable. At

the trial court, the State disclosed that: “[t]he TCEQ is not required to prove

allocation of liability, because the responsible parties are jointly and severally

liable unless they can prove ‘divisibility’ by a preponderance of the evidence.”

(Supp. CR at ___ [Texas Commission on Environmental Quality’s Response to

Request for Disclosure at 3-4 (served September 6, 2012) (attachments omitted)].

In other words, the Commission invoked § 361.272 in an attempt to hold the PRPs

for the Voda Site jointly and severally liable under the SWDA.

D. Following the listing procedures of Subchapter F does not insulate

the AO from review under Subchapter K.

Despite explicitly referencing numerous provisions of Subchapter K

throughout the AO, the State argues that the AO arose exclusively under § 361.188

because the agency followed the listing requirements of Subchapter F of the

SWDA. Therefore, the State argues, the AO can only be reviewable under the pure

substantial evidence rule. But as discussed above, the issuance of an order under

§ 361.272 does not preclude the Commission from the listing process of § 361.181-

188. Tex. Health & Safety Code Ann. § 361.322(e) (West 2010). Thus, § 361.322

authorizes the Commission to proceed with investigation and remedy selection

during the appeal of the administrative order under § 361.322, and nothing in

§ 361.322 indicates that once the TCEQ proceeds with the remedial action program

of Subchapter F, the appellate remedies of § 361.322 are mooted.

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E. Reviewing an administrative order under § 361.322 does not make

Subchapter F redundant.

The State suggests that if an administrative order issued under § 361.188

were subject to review based on a preponderance of the evidence, it would make

the listing procedures of Subchapter F effectively redundant. This suggestion

misapprehends what occurs prior to issuance of an administrative order compared

to what occurs at the district court upon judicial review.

The TCEQ purposefully invoked § 361.272 and § 361.274 such that

ExxonMobil and Shell were not afforded a contested-case hearing prior to issuance

of the AO for the Voda Site. The Commission did not prove—by a preponderance

of the evidence to a neutral third party—that ExxonMobil and Shell were persons

responsible for solid waste at the Voda Site. Had ExxonMobil and Shell been

granted an adjudicative hearing, some procedures would be duplicated through

judicial review. However, the AO was issued without any such hearing, and the

district court will present the first opportunity for ExxonMobil and Shell to

challenge the AO and the first time the Commission will be required to carry its

statutory burden to prove ExxonMobil and Shell are responsible for solid waste.

The State further suggests that the extensive procedure to list a site on the

Superfund registry should entitle the Commission to substantial evidence deference

because the agency spent significant time and effort investigating the Site and

choosing an appropriate remedy. Yet from the perspective of a party subject to an

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administrative order, virtually none of the Commission’s purported expertise is

brought to bear on issues most relevant to the responsible party—namely, whether

they are in fact a person responsible for solid waste or hazardous substances. In

practice, the agency’s identification of persons responsible for solid waste consists

of little more than collecting invoices or manifests, many of which are decades old,

and making a list of every entity mentioned in the paperwork. The SWDA does not

mandate any standard for how this identification must take place nor what

evidentiary threshold must be crossed before a party is named in an order.

Although the Commission can issue administrative orders without

adjudicatory hearings, the potentially responsible party’s opportunity to establish

its innocence is delayed—not abrogated—by the SWDA. The appellate structure of

the SWDA allows those parties to challenge their status as PRPs and places the

burden on the Commission to ultimately prove them responsible at the district

court. When liability for such Sites routinely reaches into the millions of dollars,

the Legislature never intended the Commission’s unilateral order to be the final

word on liability.

In contrast, the Commission does expend technical resources in developing a

remedy it believes suitable for a proposed site. This can occur either before the

issuance of the administrative order under § 361.188 or after the issuance of the

administrative order under § 361.272. In either event, the SWDA makes review of

- 39 -

that remedy selection subject to greater deference than whether a party is

responsible for solid waste or whether the waste is divisible pursuant to the Act.

When a person subject to the order challenges the selected remedy, the

Commission is not required to prove it chose the best remedy by a preponderance

of the evidence, but instead the selected remedy is upheld “unless the court

determines that the remedy is arbitrary or unreasonable.” Tex. Health & Safety

Code Ann. § 361.322(h) (West 2010). In short, the Commission already receives

greater deference for issues where technical expertise was brought to bear, but the

Commission is not entitled to greater deference when simply naming parties it

believes responsible for the release of solid waste or hazardous substances.

F. If the Commission is correct that it exceeded its powers under the

SWDA then the AO must be set aside.

If the State is correct that “[a] single order cannot arise under both Sections

361.188 and 361.272” (Appellant’s Brief at 18.) the proper course of action is not

to grant the plea to the jurisdiction but to overturn the Order as a violation of law.

Administrative agencies “may exercise only those powers the law, in clear and

express statutory language, confers upon them.” Subaru of Am., Inc. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). Agencies cannot “create

for themselves any excess powers” and courts avoid implying any additional

authority to them. Id. (citing Key Western Life Ins. Co. v. State Bd. of Ins., 350

S.W.2d 839, 848 (Tex. 1961)). When an agency exceeds the authority granted it by

- 40 -

statute, the court should set aside the agency action. Pub. Util. Comm’n of Tex. v.

City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 315 (Tex. 2001); Heat Energy

Advanced Tech., Inc. v. W. Dallas Coal. for Envtl. Justice, 962 S.W.2d 288, 290

(Tex. App.—Austin 1998, pet. denied).

The Commission intended to and did issue an administrative order under

both § 361.188 and § 361.272. Now, the State argues that the Commission has no

such power under the statute. If this Court agrees that the Commission is without

power to issue the AO under both § 361.188 and § 361.272, then the Court should

set aside the Order as exceeding the Commission’s power under the statute.

III. Appellees’ Response to Appellant’s Issue Three.

Review of the AO pursuant to § 361.322 of the SWDA is proper under the

Act and the Texas Constitution. The SWDA contains the applicable standard of

review, placing the burden on the Commission to prove, by a preponderance of the

evidence, that ExxonMobil and Shell are responsible for solid waste. The pure

substantial evidence review procedures found in the APA are not applicable to this

appeal, and the Texas Supreme Court’s decision in City of Waco regarding certain

threshold questions of standing for affected persons under the Texas Water Code is

not relevant to this Order.

- 41 -

A. Texas courts are not constitutionally limited to review of

administrative orders only as to matters of law.

The State argues that courts are empowered to review administrative orders

only “as to matters of law” and that to do otherwise would offend the separation of

powers doctrine of the Texas Constitution. (Appellant’s Brief at 35.) Yet the

separation of powers doctrine only prohibits the Legislature from authorizing de

novo judicial review of quasi-legislative acts that address broad questions of public

policy or promulgate rules for future application. The AO is not a quasi-legislative

act, and thus judicial review under § 361.322 does not violate the separation of

powers doctrine.

The Texas Constitution divides the state’s government into three coequal

branches, and forbids any branch from exercising a power properly vested in a

coordinate branch. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d

591, 600 (Tex. 2001). Article II, Section 1 of the Texas Constitution provides as

follows:

The powers of the Government of the State of Texas shall be divided

into three distinct departments, each of which shall be confided to a

separate body of magistracy, to wit: Those which are Legislative to

one; those which are Executive to another, and those which are

Judicial to another; and no person, or collection of persons, being of

one of these departments, shall exercise any power properly attached

to either of the others, except in the instances herein expressly

permitted.

TEX. CONST. art. II, § 1.

- 42 -

Under Texas law, “a person may obtain judicial review of an administrative

action only if a statute provides a right to judicial review, or the action adversely

affects a vested property right or otherwise violates a constitutional right.” Tex.

Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d

170, 172 (Tex. 2004). The separation of powers doctrine generally prohibits a court

from reviewing the actions of an administrative agency absent statutory

authorization. Tex. Comm’n of Licensing & Regulation v. Model Search Am., Inc.,

953 S.W.2d 289, 291 (Tex. App.—Austin 1997, no writ).

This Court explained the test for determining whether judicial review of an

agency’s order violates the separation of powers doctrine in Commercial Life

Insurance Company v. Texas State Board of Insurance, 808 S.W.2d 552, 554-55

(Tex. App.—Austin 1991, writ denied). The plaintiff in Commercial Life sought

judicial review of a final order issued by the Texas State Board of Insurance. Id. at

553. The insurance code provided that “such causes of action ‘shall be tried and

determined upon a trial de novo’ and, moreover, ‘the substantial evidence rule shall

not apply.’” Id. at 553-54. The Insurance Board argued that the statute violated the

separation of powers doctrine and the Insurance Board’s decision was subject only

to substantial evidence review. Id. at 555. The trial court in Commercial Life

accepted the Insurance Board’s argument, refusing to hold a trial de novo as

- 43 -

required by the statute, and, based on the record, sustained the Insurance Board’s

order on the ground that it was supported by substantial evidence. Id. at 554.

This Court reversed. This Court first identified the proper test for

constitutionality as “whether the reviewing court is required to exercise a function

that is deemed nonjudicial.” Id. at 556. Explaining this dichotomy, the Court

wrote:

An inquiry by a court is nonjudicial and unconstitutional if it looks to

the future and changes existing conditions by making a new rule

which is to be applied thereafter. However, a court engages in a

judicial inquiry if it investigates, declares and enforces liabilities as

they stand on present or past facts and under laws already in

existence. Thus, the court’s action is adjudicatory in nature if its

action is particular and immediate rather than general and future.

Id.

The Court held that the Insurance Board’s decision was “quasi-judicial and not

legislative in nature” such that trial de novo at the district court was permissible

under the separation of powers doctrine. Id.

This Court reiterated the appropriate test for determining whether review of

an administrative order violates the separation of powers doctrine eight years later

in Macias v. Rylander, 995 S.W.2d 829, 832-33 (Tex. App.—Austin 1999, no

pet.). In that case, the Texas Comptroller issued an order temporarily suspending

Macias’s broker’s license. Id. at 831. Macias sought judicial review of the

Comptroller’s order. Id. Although the statute called for judicial review via trial de

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novo, the Comptroller convinced the district court to review the Comptroller’s

order pursuant to the substantial evidence rule, arguing that pure de novo review

violates the Texas Constitution. Id. at 832. The district court upheld the suspension

based on substantial evidence review and Macias appealed. Id.

Writing for the Court, Justice Yeakel framed the issue on appeal as “whether

a trial de novo of the Comptroller’s charges against Macias violates the

constitution, allowing only substantial-evidence review confined to the agency

record.” Id. at 832. Justice Yeakel first identified the relevant separation of powers

doctrine, noting that “[i]f the function of the agency is legislative, judicial review is

constrained by the substantial-evidence rule because the court may not substitute

its judgment for that which is considered to be a legislative function.” Id. at 832. In

contrast, “when an agency has acted in a judicial or quasi-judicial capacity, a court

may conduct a trial de novo without violating separation-of-powers principles.” Id.

at 833.

Drawing the distinction between the legislative and judicial, Justice Yeakel

explained that “an administrative agency acts in a legislative capacity when it

addresses broad questions of public policy and promulgates rules for future

application ‘to all or some part of those subject to its power.’” Id. But a “judicial

inquiry…typically involves an investigation of present or past facts and a

determination of liability based on laws already in existence.” Id. Applying this

- 45 -

framework to the facts of Macias, Justice Yeakel held that the Comptroller’s

actions were judicial in nature because instead of “promulgating rules that would

broadly affect customs brokers as a whole,” the Comptroller had only “engaged in

a factual inquiry into the conduct of a particular individual.” Id. Finding that “the

district court erred in conducting a substantial-evidence review of the

Comptroller’s order” the Court decided to “remand this case to the district court for

consideration by trial de novo.” Id.

The State advances the same argument presented by the Insurance Board in

Commercial Life and the Comptroller in Macias, suggesting that the separation of

powers doctrine requires that the trial court may only review the AO under the

substantial evidence test as to matters of law. Yet the State makes no effort to

explain how issuance of the AO was a quasi-legislative, as opposed to a quasi-

judicial, act. Unlike a quasi-legislative action, the AO does not address “broad

questions of public policy” nor promulgate “rules for future application.” Macias,

995 S.W.2d at 833. Instead, it fits squarely within the quasi-judicial framework

because it “investigates, declares and enforces liabilities as they stand on present or

past facts and under laws already in existence.” Commercial Life Ins. Co., 808

S.W.2d at 556. The AO purports to make specific factual findings about materials

ExxonMobil and Shell shipped to the Voda Site, the alleged release of those

materials, and the harm allegedly caused—all predicates to alleged liability under

- 46 -

the SWDA. Therefore, review of the AO under the statutory provisions of the

SWDA does not violate the separation of powers doctrine. See also Key W. Life

Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 847 (Tex. 1961); Dep’t of Pub. Safety

v. Petty, 482 S.W.2d 949, 952 (Tex. Civ. App.—Austin 1972, writ ref’d n.r.e.).

The State relies upon Texas State Board of Examiners in Optometry v. Carp,

388 S.W.2d 409, 415-16 (Tex. 1965) to argue that review of the AO under

§ 361.322 would violate the separation of powers doctrine. Yet the Texas Supreme

Court explicitly identified the activity at issue in Carp—adopting a code of

professional responsibility applicable to all Optometrists in the state—as “quasi-

legislative in nature.” Id. at 414. The facts presented by Carp have no application

to the AO, and the holding only highlights the distinction between quasi-legislative

acts that set rules applicable to all parties and quasi-judicial acts that determine the

rights of responsibilities of the parties subject to the particular order.

The State also relies on the 1967 decision in Gerst for the sweeping

suggestion that all judicial review of agency decisions is limited to questions of

law. Gerst v. Nixon, 411 S.W.2d 350, 352 (Tex. 1967). That case dealt with an

application to the Savings and Loan Commission for a charter to open a new

savings and loan association. The Court in Gerst defined certain acts—including

the issuance of permits to do business under the Savings and Loan Act—as

administrative functions that were not subject to judicial review de novo. Id. at

- 47 -

354. (“The granting or withholding of a permit, certificate or authority to do

business in a statutorily regulated commercial endeavor is an administrative

function.”). Following the opportunity for a formal hearing at the agency level, the

court in Gerst held that de novo review of this type of administrative function was

impermissible, and determined that the trial court should review the decision on the

application under the substantial evidence rule. Id. In short, Gerst was directed at a

permitting decision that was reached following the opportunity for a hearing at the

agency level, and has no application to the facts of this AO.

B. The Texas Supreme Court’s decision in City of Waco is not

controlling in this SWDA appeal.

The State relies on the Texas Supreme Court’s decision in Texas

Commission on Environmental Quality v. City of Waco, 413 S.W.3d 409 (Tex.

2013) (App. K) to argue that judicial review of the AO is limited to the

“administrative record” provided by the TCEQ. Yet the State misapprehends the

significance of that decision at both the Court of Appeals and Supreme Court

levels.

The central issue in City of Waco was a threshold determination on whether

a third-party could intervene and force a contested-case hearing for an existing

permit modification. Under the Texas Water Code, interested third-parties may

object to requested permit modifications during a comment period and may attempt

to intervene and force the applicant into a contested-case hearing. However, only

- 48 -

an “affected person” has standing to receive a contested-case hearing. Therefore, a

threshold determination must be made as to whether the objecting party is an

“affected person” with standing to request a contested-case hearing.

In City of Waco, a concentrated animal feeding operation sought to modify

its existing water-quality permit from the TCEQ. The City objected to the proposed

permit modification and sought to initiate a contested-case hearing. The

Commission determined that the City was not an “affected person” entitled to force

a contested-case hearing, and the Executive Director issued the amended permit.

The City appealed to the district court, which affirmed the Commission’s decision.

This Court reversed, holding that the Commission acted arbitrarily as a matter of

law. City of Waco v. Tex. Comm’n on Envtl. Quality, 346 S.W.3d 781, 827 (Tex.

App.—Austin 2011, pet. granted). This Court also summarized and restated a prior

line of cases which held that pure substantial evidence review was not possible

absent the opportunity to develop a record through a contested-case or adjudicative

hearing. Id. at 818. However, this Court based its holding on its conclusion that the

agency had “acted arbitrarily by relying on a factor that is irrelevant to the City’s

standing to obtain a hearing.” Id. at 823. Therefore, the Commission’s decision

could be overturned as arbitrary “independently and apart from whether substantial

evidence could be found to support those findings.” Id. at 819.

- 49 -

The Texas Supreme Court reversed and reinstated the Commission’s

decision to deny the City’s request. City of Waco, 413 S.W.3d at 425. The Texas

Supreme Court found that the Commission’s actions were not arbitrary and that

there was evidence in the record to support the Commission’s conclusion that the

City was not entitled to force a contested-case hearing. Id. In finding that the

Commission’s action was not arbitrary, the Texas Supreme Court did not articulate

what standard of review it used to uphold the TCEQ’s threshold determination on

whether the City was an affected person entitled to force a contested-case hearing.

Nor did the Texas Supreme Court address this Court’s extensive analysis regarding

the inapplicability of pure substantial evidence review in the absence of a factual

record developed in a contested-case proceeding. In fact, the words “substantial

evidence” are absent from the Texas Supreme Court’s analysis of the agency’s

actions. Instead, the Texas Supreme Court gave deference to the agency’s answer

to the threshold statutory question of whether the permit was exempt from the

hearing requirement under the statute.

The State suggests that City of Waco should be interpreted to mean that all

the Commission’s actions are subject to review only under the substantial evidence

standard, regardless of the statute involved or the procedures afforded the

aggrieved party at the agency level. But this over-reads the limited issue at stake in

City of Waco. The issue on appeal was not the agency’s ultimate decision on the

- 50 -

merits of the permit, but what the Texas Supreme Court characterized as a

“threshold determination of whether the party is an ‘affected person’” sufficient to

intervene in the application process of a third party. Id. at 410. While both cases

involve activities by the TCEQ, their similarities largely end there, as the present

case has no connection to the Texas Water Code, permitting, or the standing of

third parties—rather it involves the appeal of an agency order under liability-

declaring provisions of the SWDA. The TCEQ’s determination on right-to-hearing

decisions for third parties is not analogous to enforcement of a unilateral

administrative order against an entity that the agency alone has determined to be

responsible for environmental contamination.

More importantly, the decision in City of Waco came in the context of an

appeal under § 5.351 of the Texas Water Code, which itself does not supply any

standard of review. Tex. Water Code Ann. § 5.351 (West 2008). Through case law,

the Texas Supreme Court has held that such decisions are subject to “substantial

evidence review.” Texas Water Comm’n v. Dellana, 849 S.W.2d 808, 809-10 (Tex.

1993). In contrast, this case is brought under the appellate provisions of the

SWDA, which places an affirmative burden of proof on the agency to prove certain

facts by a preponderance of the evidence to the satisfaction of the district court.

Tex. Health & Safety Code Ann. § 361.322 (West 2010).

- 51 -

The State further argues that a post-City of Waco decision from this Court,

Texas Commission on Environmental Quality v. Sierra Club, No. 03-12-00335-

CV, 2014 WL 7464085 (Tex. App.—Austin Dec. 30, 2014, no pet. h.), “reinforced

[the State’s] interpretation.” (Appellant’s Brief at 39.)6 In that case, a waste control

company applied to the TCEQ for a permit to construct and operate two facilities

for the disposal of low-level radioactive waste under the Texas Radiation Control

Act (“TRCA”). Similar to the Water Code provisions at issue in City of Waco, the

TRCA requires the TCEQ to hold a contested-case hearing on the merits of an

application if a “person affected” requests one. Tex. Health & Safety Code Ann. §

401.229(a) (West 2010). Two members of the Sierra Club sought to intervene and

force the applicant to defend its permit application through the contested-case

process. Id. at *2. This Court identified “the critical, or threshold, inquiry in

contested-case hearing requests—and importantly the focus of the parties to this

appeal—is whether the person requesting the hearing is an ‘affected person.’” Id.

at *4. Applying the holding from City of Waco, the Court held it must review “a

TCEQ determination regarding affected-person status for an abuse of discretion.”

Id. Upon review, this Court found a reasonable basis for the agency’s decision to

deny the hearing request. Id. at *9. And consistent with City of Waco, this Court

6

The opinion cited by Appellant was withdrawn by the Court on December 30, 2104, and

substituted with the opinion discussed herein.

- 52 -

determined that the Commission was not required to hold a contested-case hearing

simply to determine whether or not it was required to hold a contested-case

hearing. Id. at 10.

No court interpreting or applying City of Waco has adopted the State’s

position that all TCEQ decisions—including those with specific statutory appellate

provisions to the contrary—are subject to review only through pure substantial

evidence. The cases citing City of Waco only reiterate its application to the limited,

threshold inquiry of whether a party is an affected person sufficient to trigger a

contested-case hearing. Consequently, the issues before the Court are neither

controlled nor informed by City of Waco or its limited progeny.

C. The APA provisions authorizing pure substantial evidence review

on a contested-case record are not applicable to this appeal.

Ignoring the statutory language for judicial review of the AO, the State tries

to shoehorn judicial review of the case into pure substantial evidence review under

Texas Government Code § 2001.174 with the claim that the Court should “look to

the APA” to “interpret the existing law of administrative review.” (Appellant’s

Brief at 36.) Yet by its express terms, Texas Government Code § 2001.174 does

not apply because there was no contested-case hearing at the TCEQ and because

the SWDA already provides the appropriate standard of review. If the Court does

choose to look to the APA, the lessons drawn should only reinforce the trial court’s

decision denying the State’s plea.

- 53 -

1. The APA does not apply, and the available guidance leads

to different conclusions than advocated by the State.

The statutory basis for pure substantial evidence review advanced by the

State is found in the Administrative Procedures Act (“APA”), Texas Government

Code Chapter 2001. Texas Gov’t Code Ann. §§ 2001.171-178 (West 2008). By its

express terms, this APA provision is limited to the appeal of a contested-case

hearing. Id. at § 2001.171. When an aggrieved party appeals an administrative

order issued after a contested-case hearing, the APA provides that the scope of

judicial review “is as provided by the law under which review is sought.” Id. at

§ 2001.172. If the law under which review is sought grants a right to trial de novo

of the administrative order, the APA provides the relevant procedures for this de

novo review under § 2001.173. If the law under which review is sought instead

allows only substantial evidence review of the contested-case order—or if it does

not define a scope of review—the APA outlines the procedures for that review in

§ 2001.174. None of these three situations are applicable to the AO in this case.

Absent express application, to the extent the APA offers any guidance for

how the Court should determine the proper procedure for the appeal of the AO, the

State draws precisely the wrong conclusions. First, the Commission suggests the

Court should ignore the statutory appellate provisions of the SWDA and simply

substitute substantial evidence review under § 2001.174. But even when the APA

applies, it does not supplant the statutory provisions of the law under which review

- 54 -

is sought as reflected in § 2001.172, but is expressly subject to the specific statute

under which the administrative order is being reviewed. Second, the State has

argued that administrative orders can only be reviewed as to questions of law based

on the separation of powers doctrine. Yet Subchapter K of the APA establishes that

administrative orders can be reviewed via trial de novo at the district court, even if

they are issued following a contested-case hearing at the agency.

2. Outside of threshold standing questions, pure substantial

evidence requires a true contested-case record under the

APA.

The APA standard of “substantial evidence” permits the reviewing court to

reverse if the decision is “not reasonably supported by substantial evidence

considering the reliable and probative evidence in the record as a whole.” Texas

Gov’t Code Ann. § 2001.174(2)(E) (West 2008) (emphasis added). The “record as

a whole” within which the court looks for substantial evidence is the contested-

case record, not any type of informal record developed in a non-contested-case

proceeding. In fact, the items identified as part of such a record in the APA—

pleadings, evidence received, offers of proof, etc.—demonstrates that the “record

as a whole” is an adjudicative record. Id. at § 2001.060. Therefore, pure substantial

evidence review under the APA presupposes an open, adjudicative hearing where

both sides may present evidence and cross-examine testifying witnesses. See, e.g.,

Ramirez v. Tex. State Bd. of Med. Exam’rs, 927 S.W.2d 770, 773 (Tex. App.—

- 55 -

Austin 1996, no writ) (rejecting argument that Legislature created right of judicial

review under substantial-evidence rule while depriving parties of opportunity for

contested-case hearing); G.E. Am. Commc’n v. Galveston Cent. Appraisal Dist.,

979 S.W.2d 761, 767 (Tex. App.—Houston [14th Dist.] 1998, no pet.)

(“Substantial evidence review cannot have been the proper standard because there

is no record from the appraisal review board hearing.”).

The City of Waco case recognized a limited exception to the link between

pure substantial evidence review and a contested-case hearing, i.e., the “threshold

determination of whether the person seeking the [contested-case] hearing is an

affected person” sufficient to challenge a permitting decision. Sierra Club, 2014

WL 7463875, at *5. Those decisions can be reviewed by the trial court for abuse of

discretion. None of the features applicable to this limited exception are present in

this case. This is a Superfund case in which the TCEQ has declared ExxonMobil

and Shell liable, not a permitting case brought by a third-party. ExxonMobil and

Shell challenged a unilateral administrative order, not a denial of their contested-

case hearing request. Perhaps most importantly, the relevant statute contains a

standard of review, and there is no basis for substituting a standard of review other

than the one called for in the statute.

The State ignores these prerequisites for pure substantial evidence review

and points to a handful of cases to argue that the Court should apply pure

- 56 -

substantial evidence review to this appeal of a state Superfund order. Those cases

are readily distinguished. The aggrieved party in Smith v. Houston Chemical

Services, Inc., 872 S.W.2d 252 (Tex. App.—Austin 1994, writ denied) was

appealing a permitting decision under § 361.321 following a contested-case

hearing on its application for a solid waste disposal permit. Likewise in Texas

Commission on Environmental Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App.—

Austin 2009, pet. denied), the aggrieved party challenged a decision of the

executive director about the administrative completeness of his application for a

solid waste permit. However, the case was not decided on substantive grounds

because the party failed to timely appeal the executive director’s decision. Id. at

97.7

The State also relies upon United Copper to claim that the AO should only

be reviewed under the pure substantial evidence rule. United Copper Indus., Inc. v.

Grissom, 17 S.W.3d 797 (Tex. App.—Austin 2000, pet. dism’d). But like City of

Waco, United Copper was focused on whether a third-party was an affected person

sufficient to intervene in a permitting matter, and more specifically, what formal

procedures the agency must adopt to make that threshold determination. United

Copper applied to the Commission for an air quality permit to construct and

7

The Court’s observation in Kelsoe about whether a contested-case hearing was required

before the executive director could determine if a permit application was administratively

complete—even if it were somehow relevant to this Superfund case—was dicta.

- 57 -

operate two copper melting furnaces. Id. at 799. Shortly after receiving notice of

the application, Grissom, an adjacent landowner, sought a hearing on United

Copper’s permit. Id. at 800. The Commission denied his request, and Grissom

appealed to the district court. Id. at 800-01. The district court found that the

Commission erred by denying Grissom’s request without first providing him an

opportunity to present his evidence at a preliminary adjudicative hearing, and

remanded the case to the Commission for such a hearing. Id. at 801. This Court

affirmed, determining that Grissom was an affected person under the rule and that

the agency had erred by denying Grissom a meaningful opportunity to present

evidence in support of his hearing request. Id. at 806.

United Copper was curtailed by Collins two years later (which the State also

relies upon) which itself was distinguished by the Texas Supreme Court in City of

Waco. Whereas the landowner in United Copper was given a hearing to prove he

was an affected person sufficient to intervene in the permitting process, the

landowner in Collins (who received no such hearing) was unable to show that he

was an affected person under the statute, and this Court upheld the agency’s

decision to deny his request for a contested-case hearing on the permit. Collins v.

Tex. Natural Res. Conservation Comm’n, 94 S.W.3d 876, 885 (Tex. App.—Austin

2002, no pet.). In either event, the relative rights of third-parties to intervene in a

- 58 -

permit dispute has no application to an administrative order naming parties liable

under the Superfund program.

This case is not an appeal of a permit decision under § 361.321 following a

contested-case hearing, but instead challenges a unilateral state Superfund order

under § 361.322. Because parties subject to the order have not been afforded any

hearing prior to issuance of the AO, the trial court may only uphold the order if the

Commission “proves by a “preponderance of the evidence” the factors in

§ 361.322(g). The “use of the term prove” suggests that the Legislature intended

evidence to be presented—and that the agency could not rely on its own non-

adjudicative agency record to justify its actions. See Ramirez v. Tex. State Bd. of

Med. Exam’rs, 927 S.W.2d 770, 773 (Tex. App.—Austin 1996, no writ); Tex.

Dep’t of Ins. v. State Farm Lloyds, 260 S.W.3d 233, 245 (Tex. App.—Austin 2008,

no pet.) (“Absent an administrative record, no substantial evidence review is

required or even possible.”).

CONCLUSION

For each of the reasons discussed above, Appellees request that this Court

affirm the trial court’s order denying Appellant’s Plea to the Jurisdiction, or in the

alternative, overturn the Order as a violation of the Commission’s power under the

SWDA.

- 59 -

Dated: January 29, 2015.

Respectfully submitted,

/s/ John Eldridge

John R. Eldridge

State Bar No. 06513520

john.eldridge@haynesboone.com

Kent G. Rutter

State Bar No. 00797364

kent.rutter@haynesboone.com

HAYNES AND BOONE, LLP

1221 McKinney Street, Suite 2100

Houston, Texas 77010-2007

Telephone: (713) 547-2000

Telecopier: (713) 547-2600

Adam H. Sencenbaugh

State Bar No. 24060584

adam.sencenbaugh@haynesboone.com

HAYNES AND BOONE, LLP

600 Congress Avenue, Suite 1300

Austin, Texas 78701

Telephone: (512) 867-8489

Telecopier: (512) 867-8606

ATTORNEYS FOR APPELLEES EXXON

MOBIL CORPORATION, EXXONMOBIL

OIL CORPORATION, PENNZOIL-

QUAKER STATE COMPANY, AND

SHELL OIL COMPANY

- 60 -

CERTIFICATE OF COMPLIANCE

TEX. R. APP. P. 9.4(i)(3)

I hereby certify that this Brief contains a total of 14,210 words, excluding

the parts of the brief exempted under TEX. R. APP. P. 9.4(i)(1), as verified by

Microsoft Word 2010. This Brief is therefore in compliance with TEX. R. APP. P.

9.4(i)(2)(B).

/s/ Adam Sencenbaugh

Adam Sencenbaugh

- 61 -

CERTIFICATE OF SERVICE

In accordance with the Texas Rules of Appellate Procedure, certify that a

true and correct copy of the Appellees’ Brief, with appendix, was served by

electronic service on the following parties or attorneys of record on this 29th day

of January, 2015:

Attorneys Parties

Thomas H. Edwards Texas Commission on Environmental

Quality

Craig J. Pritzlaff

Linda Secord

Assistant Attorney General

Office of the Attorney General

Environmental Protection Division

P. O. Box 12548, Capitol Station

Austin, TX 78711-2548

NON PARTIES TO APPEAL:

Janessa M. Glenn Cabot Norit Americas, Inc.

R. Steven Morton

MOLTZ MORTON & GLENN, LLP

5113 Southwest Parkway, Suite 120

Austin, TX 78735-8969

John E. Leslie Howard Freilich/ d/b/a Quick Stop

JOHN LESLIE | PLLC Brake and Muffler

1216 Florida Dr., Suite 140

Arlington, TX 76015-2393

Cynthia J. Bishop Baxter Oil Service

C BISHOP LAW PC

P. O. Box 612994

Dallas, TX 75261-2994

- 62 -

Paul Craig Laird II Frank Kosar, d/b/a Rite Way Truck Rental

ASHLEY & LAIRD, L.C.

800 W. Airport Fwy., Suite 880

Irving, TX 75062-6274

Billy D. Cox Billy D. Cox Truck Leasing, Inc.

128 Red Oak Ln.

Flower Mound, TX 75028-3501

David F. Zalkovsky, Agent Central Transfer & Storage Co.

11302 Ferndale Rd.

Dallas, TX 75238-1020

George E. Kuehn SBC Holdings, Inc., f/k/a The Stroh

BUTZEL LONG Brewery Company

301 E. Liberty St., Suite 500

Ann Arbor, MI 48102-2283

/s/ Adam Sencenbaugh

Adam Sencenbaugh

- 63 -

APPENDIX

App. A — Administrative Order (CR:29-108)

App. B — TCEQ’s Response to Motion for Rehearing

App. C — Plaintiffs’ First Amended Original Petition (CR:4-27)

App. D — Texas Commission on Environmental Quality’s Original

Counter-Petition and Third-Party Petition and Request for

Disclosure (CR:127-169)

App. E — TCEQ’s Third Original Answer, responding to Shell and Exxon

Mobil, and Plea to the Jurisdiction (CR:675-687)

App. F — Act approved June 2, 1969, 61st Leg., R.S., ch. 405, 1969 Tex.

Gen. Laws 1320, 1320 (repealed 1989) recodified by Act

approved June 14, 1989, 71st Leg., R.S., ch. 678, 1989 Tex.

Gen. Laws 2230

App. G — Act approved June 15, 1973, 63rd Leg., R.S., ch. 576, 1973

Tex. Gen. Laws 1595 (current version at Tex. Health & Safety

Code Ann. § 361.003(24) (West 2010)

App. H — Act approved June 12, 1985, 69th Leg., R.S., ch. 566, 1985

Tex. Gen. Laws 2166 (repealed 1989) recodified by Act

approved June 14, 1989, 71st Leg., R.S., ch. 678, 1989 Tex.

Gen. Laws 2230

App. I — Act approved June 14, 1989, 71st Leg., R.S., ch. 703, 1989 Tex.

Gen. Laws 3212, 3217 (current version at Tex. Health & Safety

Code Ann. § 361.322 (West 2010)

App. J — TCEQ Agenda, February 10, 2010

App. K — Texas Commission on Environmental Quality v. City of Waco,

413 S.W.3d 409 (Tex. 2013)

APP. A

Administrative Order

(CR:29-108)

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

DOCKET NUMBER 2009-1706-SPF

IN THE MATTER OF § BEFORE THE

THE SITE KNOWN AS § TEXAS COMMISSION ON

VODA PETROLEUM, INC. § ENVIRONMENTAL QUALITY

STATE SUPERFUND SITE §

AN ADMINISTRATIVE ORDER

I. Introduction

On February 1 Q, 201 Q , the Texas Commission on Environmental Quality

("Commission" or "TCEQ") considered the Executive Director's ("ED") allegations of the

existence of a release or threat of release of solid wastes and/or hazardous substances into

the environment on, at or from the Yoda Petroleum, Inc. State Superfund Site ("Site") that

poses an imminent and substantial endangerment to the public health and safety or the

environment pursuant to the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE,

Chapter 361 (the "Act"), and the ED's requested relief including issuance of a Commission

order to require persons responsible for such solid wastes or hazardous substances to perform

the Work, including conducting the Remedial Activities, as authorized by Sections 361.188

and 361.272 of the Act.

After proper notice, the TCEQ makes the following Findings of Fact and Conclusions of

Law:

II. Findings of Fact

A. For purposes of this Administrative Order ("AO"), TCEQ has ideµtified the

following persons that are potentially responsible parties ("PRPs") for' the solid

waste and/or hazardous substances at the Site:

AAMCO Transmissions

AR Oil Co

A T P Results Inc

29

AT&T

Adena Exploration Inc

Allstate Transmissions

Amber Refining Inc

American Airlines Inc

American Auto

American Marazzi Tile Inc

American Norit Company Inc

American Spill Control Inc

Andrews Motor & Transmission

Anvil Shop

Aratex Services Inc

Archer Auto

Arco Oil and Gas Corporation

Ark-La-Tex Waste Oil Co Inc

Ashco Production Inc

Auto Precision Motors Inc

Autohaus

Aviation Properties Inc

Axelson Inc

Aycock Oil Corporation

B B Wells Waste Oil Inc

Page 2 - Yoda Petroleum, Inc., Stale Superfund Site

30

BE &Kinc

Basil Oil Field Service Inc

Baxter Oil Service

Bayou State Oil Corporation

Ben E Keith Company

Ben Griffin Tractor Company

Big Three Industrial Gas Inc

Billy D Cox Truck Leasing Inc

Bishops Auto

Blake Janet DBA D & D Radiator & Muffler

Borden Inc

Bright Truck Leasing Corporation

Brookhollow Exon Car Care

Brown & Root Inc

Brown Express Inc

Brunson Oil

Brushy Creek Saltwater Disposal Inc

Buck Resources Inc

Bule Diamond

Burland Enterprises Inc

CPL Industries

Cabot Corporation

Page 3 - Yoda Petroleum, Inc., State Superfund Site

31

Can-Am Distributors and Warehouse Inc of Texas

Capacity of Texas Inc

Carraway Co

Carrier Air Conditioning

Cematco Inc

Central Power and Light Company

Central Texas Iron Works

Central Transfer & Storage Co

Champie Hill Mobil

Champion International Corporation

Channel Shipyard Company Inc

Chaparral Steel Company

Chief Oil & Chemical

Cities Service Company

Cities Service Pipe Line Company

City Motor Supply Inc

City of Dallas

City of Garland

City of Jefferson

City of Plano

City of University Park

Clarke Checks Inc

Page 4 - Yoda Petrolewn, Inc., State Superfund Site

32

Clements Oil Corporation

Cliffs Automotive

Coker Automotive Center Inc

Collin County

Complete Auto Transit Inc

Continental Can Company USA Inc

Continental Car Wash

Continental Trailways Inc

Converter Shop Inc

Coors Distributor

Custom-Bilt Cabinet and Supply Inc

Custom-Crete Inc

Daljet Inc

Dallas Area Rapid Transit

Dallas Dressed Beef Company Inc

Dallas Lift Trucks Inc

Dallas Power & Light Company

Damson Gas Processing Corp

Davison Petroleum Products

Davison, TM

Delmar Disposal Co

Deloach Texaco

Page 5 - Yoda Petroleum, Inc., State Superfund Site

33

Delta Distributors Inc

Diamond Shamrock

Dillingham & Smith Mechanical and Sheet Metal Contractors Inc

Dixie Oil

Donco Saltwater Disposal System

Double A & Y Corp

Dowell Schlumberger Incorporated

Dunlap-Swain

Durham Transportation Inc

EC Incorporated

East Texas Gas

Eastern ECC Company

Fina

The Firestone Tire and Rubber Company

First Interstate Bank of Dallas

Fort Sill

Fox &Jacobs

Franks Oil Service

Fred Jordan Inc

Fred Taylor GMC Truck Sales Inc

Freilich Howard DBA Quick Stop Brake & Muffler

Fruin-Colnon Corporation

Page 6 - Voda Petroleum, Inc., State Superfund Site

34

G B Boots Smith Corporation

Gelco Truck Leasing Division Gelco Corporation

General Electric Company

General Telephone Company of the Southwest

General Tire Inc

General Truck Leasing Inc

Georgia-Pacific Corporation

Gifford-Hill Cement Compariy of Texas

Goff Willie

Grantham Oil Service

Greyhound Lines Inc

Grubbs Enterprises Ltd

Gulf States Oil & Refining Co

Gulf Stream Oil

H & H Oil Services

H &P Trans

Halliburton Energy Services Inc

Harris Bros Co

Harry Vowell Tank Trucks Inc

Hartsell Oil

Haynes Resources Inc

Hearne Ave Exxon

Page 7 - Yoda Petrnlewn, Inc., State Superfund Site

35

Herod Oil Inc

Hertz Penske Truck Leasing Inc

The Highland Pump Company Inc

Holloway Welding & Piping Co

Hunt Oil Company

Hydraulic Service and Supply Company

Industrial Lubricants Co

Industrial Solvents Gulf Division of Industrial Solvents Corporation

Ingersoll-Rand Company

Inland Container Corporation

International Electric Corporation

International Paper Company

J & E Die Casting Co Division of Cascade Die Casting Group Inc

Jam es T Gentry Inc

Janks Texaco

Jeffco

J errys Waste Oil

John Crawford Firestone Inc

Johnson Controls Inc

Jones Environmental Inc

Joy Manufacturing Company

Jubilee Oil Service

Page 8 - Yoda Petrolemn, Inc., State Superfund Site

36

Juna Oil & Gas Co Inc

K & F Oil & Gas Management Inc

KRNN

Kayo Oil Company

Kel.lys Truck Terminal Inc

Kennys Mobil

Ko:mr Frank DBA Rite Way Truck Rental

LA Transit

L D Baker Inc DBA Baker Gulf Service

L & J Recovery Ltd

LTV Energy Products Company

Lake Country Trucking Inc

Lance Inc

Larry Gulledge Exxon

Las Colinas Service Center Inc

Lockheed Missiles & Space Company Inc

Lone Star Dodge Inc

Lone Star Logistics Inc

Long Mile Rubber Co

The Lubrizol Corporation

M Lipsitz & Co Inc

M & M Oil Salvage Inc

Page 9 - Yoda Petroleum, Inc., State Superfund Site

37

MacMillan Bloedel Containers

Manvel Salt Water Disposal Company

Manville Sales Corporation

Marathon Battery Company

Martin-Decker

Mathews Trucking Company Inc

McAlister Construction Company

McBane Crude

McDonalds

Mega Lubricants Inc

Melton Truck Lines Inc

Metal Services Inc

Metro Aviation Inc

Metro Ford Truck Sales Inc

Millers Gulf

Minit Oil Change Inc

Mobil Oil Corporation

Modem Tire Service Inc

Mohawk Laboratories

Monsanto Company1

Moore James

1

Only to the extent that Solutia Inc. is not excluded under applicable federal bankruptcy law.

Page 10- Voda Petroleum, Inc., State Superfund Site

38

Morgan Oil

Morgan, Troy L Jr

Mr Transmission

Murphy Brothers Service Center Inc

National Oilwell Inc

National Scientific Balloon Facility

National Supply Co

Naval Air Station Dallas

Navarro Petroleum Corp

Nobles Transmission

North Highland Mobil

Northwest Oil

Norwel Equipment Company

Nucor Corporation

Occidental Chemical Corporation

Oilwell Division of United States Steel Corporation

Olympic Fastening Systems Inc

On the Spot Oil Change

Owens Mobil

Oxendine, Von K DBA Oxendine Transmission

Oxy Cities Service NGL Inc

P N B Corporation

Page 11 - Yoda Petroleum, Inc., Stale Superfund Site

39

Pantera Crude Inc

Paramount Packaging Corporation Texas

Parawax

Parrott Oil Corp

Pauls Oils Service

Pearl Brewing Company

Pelican Energy of LA Inc

Pen Roy Oil of Odessa Inc

Pengo Industries Inc

Pennwalt Corporation

Pepsi Cola

Performance Friction Products Formerly Coltec Automotive Products

Division of Coltec Industries Inc

Peterbilt Motors Company

Petro Chem Environmental Sen·ices Inc

Petroleum Distributors Inc

Petroleum Market Products

Petroleum Refiners Unlimited Inc

Petroleum Stripping Inc

Pipes Equipment Co Inc

Pitts

Pool Company

Post Office Vehicle Maintenance Facility

Page 12 - Yoda Petroleum, Inc., State Superfund Site

40

Presbyterian Hospital of Dallas

Prestige Ford

Preston Management Company

Preston Oil Service

Production Operators Inc

R & C Petroleum Inc

R & K Auto Repair Inc

Ralph Wilson Plastics

Rayco Oil Company

Reed Tool Company

Reeves Oil Co Inc

Repetro Inc

Retail Graphics Printing Company

Rhodes Oil

Richards-Gebaur AFB

Roadway Express Inc

Robison Cecil

Rock Tenn Converting Company

Rockwall

Rollins Leasing Corp

Royle Container

Ruan Leasing Company

Page 13 - Yoda Petroleum, Inc., State Superfund Site

41

Ryder Truck Rental Inc

SETI

SKI Oil Incorporated

The Sabine Mining Company

Safeway

Santos Radiator

Schepps Dairy Inc

Schlumberger Well Services Division of Schlumberger Technology

Corporation

Sears Roebuck and Co

Senco Marketing

Service Oil Co

Servion Inc

Shell Oil Company

Shippers Car Line Inc

Shore Company Inc

Shreveport Truck Center

Sitton Oil

Snappy Lube Inc

Snow Coil Inc

S.ooner Refining Co Inc

South Coast Products Inc

Southeast Tex-Pack Express Inc

Page 14 - Vada Petroleum, Inc., State Superfund Site

42

Southern Gulf

Southern Plastics Inc

Southland Sales Corporation

Southwest Disposal

Southwestern Bell Telephone Company

Southwestern Electric Power Company

Southwestern Petroleum Corporation

Specialty Oil

Sprague Electric Company

Star Solvents Inc

Steel City Crane Rental Inc

Stemco Inc

Steve D Thompson Trucking Inc

The Stroh Brewery Company

Sullivan Transfer & Storage

Summit White GMC Trucks Inc

Sun Engine Sales Inc

T E C Well Service Inc

TanA Co

Tannehill Oil Products

Taylor Rental Center

Texaco Chemical Company

Page 15 - Yoda Petroleum, Inc., State Superfund Site

43

Texas Gas Transmission Corporation

Texas Industrial Disposal Inc

Texas Industries Inc

Texas Mill Supply- Longview Inc

Texas State Technical Institute Airport

Texas Utilities Generating Company

Thompson Trans

Toneys Garage

Trailways Inc

Tri con

Trinity Industries Inc

Triple L Disposal

Tri-State Oil Tools Inc

Triton Aviation Services Inc

Truckstops of America

Tuneup Masters Inc of Texas

Twin City Transmission Service Inc

Union Oil 76 Truck Stop

United Gas Pipe Line Company

United Press International

United States Army Corps of Engineers Mat Sinking Unit

Vanguard Sales

Page 16 - Yoda Petroleum, Inc., Stale Superfund Sile

44

Varo hlc

Vault Oil & Gas

Viking Freight Service hlc

Yoda Petroleum hlc

Volvo White Truck Corporation

· W F B Tank Bottom Reclaiming 9orp

WW Waste Oil

Warren Petroleum Company

Westmoreland Joint Venture

Western Auto Supply Company

Westland Oil Company hlc

Willamette fudustries Inc

Woodline Motor Freight

Woods Operating Co Inc

Wray Ford Inc

Yates SWD Corp

Young Chevrolet hlc

Zavala Energy Inc

and these parties

1. are the owners or operators of the Site;

2. owned or operated the Site at the time of processing, storage, or disposal of

any solid waste;

Page 17 • Voda Petroleum, Inc., State Superfund Site

45

3. by contract, agreement, or otherwise, an·anged to process, store, or dispo;e

of, or arranged with a transporter for transport to process, store, or dispose of

solid waste owned or possessed by the PRPs or by any other person or entity

at the Site; or

4. accepted solid waste for transport to the Site as selected by the PRP.

B. Reserved.

C. The following PRPs entered into this AO as Agreeing Respondents but do not admit

liability regarding the Site except for the purpose of enforcing this AO.

There are no Agreeing Respondents.

D. When ranked, the Site had a State Superfund Hazard Ranking System ("HRS") score

of23.6.

E. The portion of the Site used for ranking on the State Registry of Superfund Sites is

described as follows:

All that certain lot, tract or parcel of land being situated in the David Ferguson

Survey, Gregg County, Texas and being a part of a 6.12 acre tract ofland conveyed

from Chaco, Inc. to Ultra Oil, Inc. in deed recorded in Vol. 1212, Page 252, Deed

Records, Gregg County, Texas and being more particularly described as follows:

BEGINNING at a 12" x 12" fence comer post on the north ROW ofDuncan Road,

said point being the SE comer of a 50 acre tract conveyed from Charles McBride to

Chaco, Inc. in deed recorded in Vol. 1206, Page 83, Deed Records, Gregg County,

Texas and also being the SE comer of the herein described tract;

THENCE along the SBL of the above mentioned 6.12 acre tract, also being the north

ROW of Duncan Road:

N 89 deg. 47' 06" W, a distance of 199.02 feet;

S 63 deg. 18' 26" W, a distance of57.72 feet;

S 89 deg. 55' 54" W, a distance of 120.65 feet to a Yi" iron rod for this most

southerly SW comer, same being N 89 deg. 55' 54" E, 200.00 feet from the

SW comer of said 6.12 acre tract;

THENCE N 00 deg. 56' 53" W, a distance of200.00 feet to a W' iron rod for comer;

Page 18 - Yoda Petrolewn, Inc., State Superfund Site

46

THENCE S 89 deg. 14' 07" W, a distance of 200.00 feet to a W' iron rod for this

most northerly SW comer, same being located on the east ROW of Charise Drive and

the WBL of said 6.12 acre tract and beingN 00 deg. 56' 53" W, 200.00 feet from the

SW comer of same:

THENCE N 00 deg. 56' 56" W, along the east ROW of said Charise Drive, a distance

of 271.25 feet to a 5/8" iron rod for this NW comer, same being the NW comer of

said 6.12 acre tract;

THENCE N 89 deg. 03' E, along the NBL of said 6.12 acre tract, a distance of 578.45

feet to a 5/8" iron rod for this NE comer, same being the NE comer of said 6.12 acre

tract; ·

THENCE S 00 deg. 04' 55" E along the EBL of said 6.12 acre tract, a distance of

452. 78 feet to the Place of BEGINNING of the herein described tract and containing

5.201 acres.

The remainder, a contiguous 0.92 acre tract ofland, is described as follows:

All that certain lot, tract or parcel of land being situated in the David Ferguson

Survey, Gregg County, Texas and being a part of a 6.12 acre tract ofland conveyed

from Chaco, Inc., to Ultra Oil, Inc., in deed recorded in Vol. 1212, page 252, Deed

Records, Gregg County, Texas, and being more particularly described as follows:

BEGINNING at a 5/8" iron rod set in the BBL of Charise Drive; THENCE North .

with the BBL of Charise Drive 200 feet to a Yi'' iron rod; THENCE North 89 deg. 14'

07" E, 200 feet to Yz" iron rod for comer, THENCE S 00 deg. 56' 53" E, a distance

of200 feet to Yz" iron rod for comer: THENCE S 89 deg. 55' 54" W with the said

SBL of said 6.12 acre tract, 200 feet to the point of BEGINNING, containg· [sic] 1

acre of land, more or less, together with all improvements situated thereon.

F. . The Site consists of the area listed in Paragraph E above. In addition, the Site

includes any areas outside the area listed in Paragraph E above where as a result,

either directly or indirectly, of a release of solid waste or hazardous substances from

the area described in Paragraph E above, solid waste or hazardous substances have

been deposited, stored, disposed of, or placed or have otherwise come to be located.

G. The Site was proposed for listing on the State Registry of Superfund Sites in the

Texas Register on November 17, 2000. 25 Tex. Reg. 11594-95 (Nov. 17, 2000).

H. The Site historically has been used as a waste oil recycling facility.

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I. The Chemicals of Concern at the Site include those substances listed in Exhibit B.

The substances listed in Exhibit B have been processed, deposited, stored, disposed

of, or placed or have otheiwise come to be located on the Site.

J. The substances listed in Exhibit B have been documented in surface and subsurface

soil and groundwater at the Site.

K. The substances listed in Exhibit B are:

1. substances designated under Section 31l(b)(2)(A) of the Federal Water

Pollution Control Act, as amended (33 United States Code ("U.S.C.") Section

1321);

2. elements, compounds, mixtures, solutions, or substances designated under

Section 102 of the Comprehensive Environmental Response, Compensation,

and Liability Act("CERCLA")(42 U.S.C. Section9601 et seq., as amended);

3. hazardous wastes having the characteristics identified under or listed under

Section 3001 of the Federal Solid Waste Disposal Act, as amended (42

U.S.C. Section 6921), excluding wastes, the regulation of which has been

suspended by Act of Congress;

4. toxic pollutants listed under Section 307(a) of the Federal Water Pollution

Control Act (33 U.S.C. Section 1317);

5. hazardous air pollutants listed under Section 112 of the Federal Clean Air

Act, as amended (42 U.S.C. Section 7412); or

6. any imminently hazardous chemical substances or mixtures with respect to

which the administrator ofthe Environmental Protection Agency ("EPA") has

taken action under Section 7 of the Toxic Substances Control Act (15 U.S.C.

Section 2606).

L. The substances listed in Exhibit B include the following: garbage; rubbish; refuse;

sludge from a waste treatment plant, water supply treatment plant, or air pollution

control facility; or other discarded material, including solid, liquid, semisolid, or

contained gaseous material resulting from industrial, municipal, commercial, mining,

and agricultural operations and from community and institutional activities, or

hazardous substances, for the purposes of TEX. HEALTH & SAFETY CODE Sections

361.271through361.277 and 361.343 through 361.345.

M. The substances listed in Exhibit B are solid wastes or hazardous substances.

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N. Solid wastes or hazardous substances at the Site listed in Exhibit Bare, or potentially

are, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,

escaping, leaching, dumping, or disposing into the enviromnent.

0. Potential pathways for human exposure to the solid wastes or hazardous substances

listed in Exhibit B include incidental ingestion of, inhalation of or dermal exposure

to surface and/or subsurface soil, and ingestion of or dermal exposure to

groundwater.

P. Exposure to levels of dichloroethylene, cis-1,2-; benzene; propylbenzene, n-; MTBE

(methyl tertiary-butyl ether); tetrachloroethylene; toluene; trichloroethane, 1,1,1-;

trichloroethylene; trimethylbenzene, 1,2,4-; trimethylbenzene, 1,3,5-; vinyl chloride;

xylene, m-; xylene, o-; xylene, p-; dichloroethylene 1,1-; and dichloroethane, 1,2-

found at the Site poses an unacceptable carcinogenic risk or an unacceptable toxicity

risk.

Q. The solid wastes or hazardous substances at the Site are not capable of being

managed separately under the remedial action plan.

R. On November 6, 2000, the Com.mission provided written notice of the proposed

listing of the Site on the State Registry to each PRP identified as of that date at the

PRP's last known address.

S. On September 12, 2008, the Commission provided written notice of the public

meeting and of the opportunity to comment on the proposed Remedy as specified in

Sections 361.187(b) and (c) of the Act to each PRP identified as of that date at the

PRP's last known address.

T. On September 12, 2008, each PRP identified as of that date was provided an

opportunity to fully fund or perform the proposed Remedial Activities, as specified

in Sections 361.187(d) and 361.133(c) of the Act.

U. No voluntary actions have been undertaken at the Site by any PRPs.

V. The Remedy Selection Document ("RSD") for the Site is attached to this AO as

Exhibit A.

W. The remedy adopted in Exhibit A is selected as the Remedy to be implemented in

accordance with this AO.

ID. Conclusions of Law and Determinations

A. The PRPs listed in Section II (Findings of Fact) Paragraph A are responsible parties

("RPs") pursuant to Section 361.271 of the Act.

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B. Some ofthe substances referenced in Section II (Findings ofFact) Paragraph I, which

are found at the Site, are hazardous substances as defined in Section 361.003(11) of

the Act.

C. Some ofthe substances referenced in Section II (Findings ofFact) Paragraph I, which

are found at the Site, are solid wastes as defined in Section 361.003(34) of the Act.

D. Hazardous substances were deposited, stored, disposed of, or placed or otherwise

came to be located at the Site; and solid wastes were stored, processed, disposed of,

or discarded at the Site.

E. The Site is a facility as defined in Section 361.18l(c) of the Act.

F. The Site is a solid waste facility as defined in Section 361.003(36) of the Act.

G. "Imminent and substantial endangerment" is defined by rule as follows: A danger is

imminent if, given the entire circumstances surrounding each case, exposure of

persons or the environment to hazardous substances is more likely than not to occur

in the absence of preventive action. A danger is substantial if, given the current state

of scientific knowledge, the harm to public health and safety or the environment

which would result from exposure could cause adverse environmental or health

effects. 30 TEX. ADMIN. CODE Section 335.342(9).

H. There has been a release (as defined in Section 361.003(28) ofthe Act) or threatened

release of hazardous substances or solid wastes into the environment at the Site that

poses an imminent and substantial endangerment (as defined in 30 TEX. ADMIN.

CODE Section 335.342(9)) to the public health and safety or the environment; and

therefore, the Site will be listed on the State Registry of Super.fund Sites as per

Section V (Order) Paragraph A.

I. The release or threatened release of hazardous substances or solid wastes into the

environment at or from the Site has not been proven to be divisible pursuant to

Section 361.276 of the Act.

J. The actions required by this AO are reasonable and necessary to protect the public

health and safety or the environment.

K. The Site is ineligible for listing on the National Priorities List ("NPL") because the

HRS score was below 28.5.

L. Funds from the Federal Government are unavailable for the Remedial Activities at

this Site because it is ineligible for the NPL.

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N. Exhibits and Definitions

A. The following exhibits are incorporated by reference into this AO:

"Exhibit A" Remedy Selection Document

"Exhibit B" List of Solid Wastes and Hazardous Substances at the Site

"Exhibit C" Field Sampling Plan Contents Outline

B. The following terms have the meaning set out below:

"Agreeing Respondent" The PRPs listed in Section II (Findings of Fact)

Paragraph C that fund or perform the Work and have

agreed to the terms and conditions of this AO as

evidenced by signing a consent form.

"Chemicals of Concern" Any chemical that has the potential to adversely affect

ecological or human receptors due to its concentration,

distribution, and mode of toxicity.

"Day'' A calendar day.

"Defaulting Performing Any Performing Party that fails to comply with the

Party'' terms or conditions of this AO.

''Demobilization'' The dismantling and removal of all construction

equipment from the Site.

"Effective Date" The Day ten (10) Days after the issue date of this AO.

"Executive Director The Executive Director of the TCEQ or a designee.

(ED)"

"include" Use of the term include, in all its forms, in this AO is

intended to express an enlargement or illustrative

application specifying a particular thing already

included within the preceding general words. It is not

used as a term of limitation.

"Institutional Control" A legal instrument which indicates the limitations on or

the conditions governing use of the property which

ensures protection of human health and the

environment in accordance with 30 TEX. ADMIN. CODE

Chapter 350 and as required by the Remedy.

"Parties" Collectively, the Respondents and the Commission.

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"Performing Parties" Collectively, the Agreeing Respondents and persons

that did not enter into this AO but that fund or perform

the Work.

"Post Construction All Remedial Activities at the Site, subsequent to

Activities (PCA)" issuance of the Approval of RA Completion, required

to complete the Remedial Activities in accordance with

this AO.

"Post Construction Cost· An estimate of the cost to perform all of the PCA for as

Estimate" long as post constmction activities are needed.

"Project Manager" The individual designated by the ED to oversee

implementation of the Work and to coordinate

communications with the Agreeing Respondents or, if

there are no Agreeing Respondents to this AO, the

Performing Parties.

"Remedial Action (RA)" Those Remedial Activities, except for Post

Construction Activities, undertaken at the Site,

including on-site physical construction and any

required institutional controls, to implement the

Remedy. The areal extent of the RA is not limited to

the Site. It includes all suitable areas in proximity to

the Site necessary for implementation of the Remedial

Activities.

"Remedial Activities" The RD, RA, PCA, and any other actions required to

implement and maintain the Remedy pursuant to the

RSD and 30 TEX. ADMIN. CODE Chapter 335,

Subchapter Kand 30 TEX. ADMIN. CODE Chapter 350.

"Remedial Activities The individual, company, or companies retained by the

Contractors" Agreeing Respondents, or if there are no Agreeing

Respondents to this AO, by the Performing Parties to

undertake any or all phases of the Remedial Activities.

Remedial Activities Contractors cannot assume the role

of any quality assurance official required by this AO.

"Remedial Design (RD)" Those Remedial Activities during which engineering

plans and technical specifications are developed for the

Remedy.

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"Remediation Goals" Cleanup standards or other measures of achievement of

the goals of the Remedy, consistent with the Act, 30

TEX. ADMIN. CODE Chapter 335, Subchapter Kand 30

TEX. ADMIN. CODE Chapter 350, determined by ED to

be necessary at the Site to achieve and to maintain the

Remedy.

"Remedy" The Remedy adopted for the Site in the Remedy

Selection Document to clean up or control exposure at

the Site in accordance with all applicable laws and

regulations·and to be implemented in accordance with

this AO. The Remedy includes all applicable

requirements contained in the Act, 30 TEX. ADMIN.

CODE Chapter 335, Subchapter Kand 30 TEX. ADMIN.

CODE Chapter 350.

"Remedy Selection The document that was developed for the Site, based

Document (RSD)" on Site specific information, that specifies the Remedy,

and that was adopted by the ED and TCEQ after the

opportunity for public review and comment.

"Responsible Parties" The PRPs listed in Section II (Findings ofFact)

Paragraph A.

"Respondents" . Collectively, the Agreeing Respondents, the RPs, and

the Performing Parties.

"Samples" Samples of environmental media taken pursuant to and

in accordance with this AO.

"Sections" Those major divisions ofthis AO designated by Roman

numerals.

"Site Coordinator" The individual designated by the Agreeing

Respondents, or if there are no Agreeing Respondents

to this AO, the Performing Parties to oversee the

Remedial Activities Contractors and the

implementation of the Remedial Activities and to

coordinate communications with the ED.

"Site Representative" A person designated by the Project Manager that is

authorized to oversee the Remedial Activities.

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"Substantial The point, as determined by the ED in his sole

Completion" discretion, at which the Work (or a specified part

thereof) has been substantially completed in accordance

with any work plans or documents required to be

developed pursuant to this AO.

"Work" All activities to be undertaken or performed m

accordance with and as required by this AO.

V. Order

Therefore, the TCEQ orders:

A. The Site will be listed on the State Registry of Superfund Sites.

B. Reserved.

C. Respondents shall reimburse the Hazardous and Solid Waste Remediation Fee

Account for all of the ED's costs of the Remedial fuvestigation ("Rf') and the

Feasibility Study ("FS"), including the oversight costs of these activities.

Respondents shall reimburse the Hazardous and Solid Waste Fee Account for all

uncompensated Pre-Remedial Investigation costs, including oversight costs of these

activities.

The RPs and any Defaulting Performing Parties shall reimburse the Hazardous and

Solid Waste Remediation Fee Account for all costs incurred by the ED in

implementing and in overseeing the Work and for any costs incurred by the ED for

activities other than the RI and FS to the extent that such costs have not been paid.

Reimbursement is to be made within forty-five (45) Days after the ED transmits a

Demand L1::tter stating the amount owed. Payment is to be paid by cashiers check or

money ord.er. All payments and accompanying letters or documentation should

contain the following information: "Yoda Petroleum, Inc. State Superfund Site,"

"Cost Recovery Funds for the Hazardous and Solid Waste Remediation Fee Account

(Fund 550} ofthe State ofTexas," "PCA Code 50482," "Docket Number 2009-1706-

SPF," and "TCEQ Project Manager, Carol Boucher, P.G." All payments and

accompanying letters or documentation should be mailed to: Cashier's Office, MC-

214, TCEQ, Re: Yoda Petroleum, Inc. State Superfund Site, P.O. Box 13088, Austin,

TX 78711.-3088. All checks and money orders shall be payable to the "Texas

Commission on Environmental Quality," or "TCEQ." The requirement to make such

payments will survive the termination of this AO in accordance with Section XXXIII

(Termination of the Administrative Order).

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D. This AO applies to and is binding upon Respondents, their agents, succ

This text is long and has been trimmed here. Open the source document for the complete record.