# Texas Commission on Environmental Quality v. Exxon Mobil Corporation ExxonMobil Oil Corporation Pennzoil-Quaker State Company and Shell Oil Company > Texas Court of Appeals, 3rd District (Austin) · January 29, 2015 URL: https://www.frixlaw.com/law-library/cases/4044015 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 29, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4044015 ## Opinion text 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 - ii - 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 - iv - 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 - vi - 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 - vii - 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 -2- 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 & - 33 - 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).) - 35 - 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. - 37 - 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 - 38 - 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 - 44 - 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4044015. Public record. Not legal advice.