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

ACCEPTED

03-14-00667-CV

4324209

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/2/2015 8:23:31 AM

JEFFREY D. KYLE

CLERK

No. 03-14-00667-CV

FILED IN

IN THE 3rd COURT OF APPEALS

AUSTIN, TEXAS

3/2/2015 8:23:31 AM

THIRD COURT OF APPEALS JEFFREY D. KYLE

Clerk

AT AUSTIN

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,

Appellant,

v.

EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION,

PENNZOIL-QUAKER STATE COMPANY AND SHELL OIL COMPANY,

Appellees.

Appealed from the 345th Judicial District Court of

Travis County, Texas

APPELLANT’S REPLY BRIEF

KEN PAXTON JON NIERMANN

Attorney General of Texas Chief, Environmental

CHARLES E. ROY Protection Division

First Assistant Attorney THOMAS H. EDWARDS

General Lead Counsel

JAMES E. DAVIS Assistant Attorney General

Deputy Attorney General for Tex. Bar No. 06461800

Civil Litigation Thomas.Edwards@TexasAttorney

General.gov

(cont’d)

APPELLANT REQUESTS ORAL ARGUMENT

CRAIG J. PRITZLAFF

Assistant Attorney General

Tex. Bar No. 24046658

Craig.Pritzlaff@TexasAttorney

General.gov

LINDA SECORD

Assistant Attorney General

Tex. Bar No. 17973400

Linda.Secord@TexasAttorney

General.gov

Office of the Attorney General

Environmental Protection

Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Tel: (512) 463-2012

Fax: (512) 320-0911

ATTORNEYS FOR APPELLANT,

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

-ii-

TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -vi-

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. STATEMENTS OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Appellant’s Statement of Facts is not Controverted. . . . . . . . . . . . . 1

B. Appellees’ Statement of Facts Focuses on Irrelevancies. . . . . . . . . . 1

II. REPLY TO APPELLEES’ SUMMARY OF THE ARGUMENT.. . . . . . . . 3

III. REPLY TO APPELLEES’ STATEMENT OF JURISDICTION. . . . . . . . . 3

IV. REPLY CONCERNING ISSUE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The plain language of § 361.322 limits that section to appeals

of § 361.272 orders.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The language and structure of the SWDA create separate

orders and separate appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. The current language of the statute correctly reflects the

intent of the Legislature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. The pre-codification statutory history shows separate

orders and separate appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Cross-references between subchapters do not merge the

ordering sections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Section 361.188(b) merely incorporates provisions from

other subchapters into § 361.188 orders. . . . . . . . . . . . . . . . . . . . . 11

2. Section 361.322(e) does not merge the orders. . . . . . . . . . . . . . . . . 11

D. The term “person affected” does not limit § 361.321 to permit

appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. The definition of “person affected” is broad enough to

cover persons named in Superfund orders. . . . . . . . . . . . . . . . . . . 13

-iii-

2. Under Appellees’ interpretation, there might be no appeal

for § 361.188 orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3. Under Appellees’ interpretation, only permit matters and

§ 361.272 orders could be appealed. . . . . . . . . . . . . . . . . . . . . . . . . 15

E. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

V. REPLY CONCERNING ISSUE TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. The content of the Order shows that it was issued under

Subchapter F.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. Contrary statements did not change the essential nature of the

Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. The State’s prior pleadings did not waive, agree to, or confer

jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. The State’s pleadings did not create waivers of sovereign

immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Prior judgments and motions did not create waivers of

sovereign immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3. The State did not seek to obtain the advantages of a

§ 361.272 order by saying that it issued the Order under

both sections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

D. Section 361.322(e) does not merge § 361.188 and § 361.272

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

E. Reviewing this Order under § 361.322 would make

Subchapter F redundant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

F. The Order was properly issued under § 361.188. . . . . . . . . . . . . . . 28

G. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

VI. REPLY CONCERNING ISSUE THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . 29

A. The constitutionality of § 361.322 is not at issue. . . . . . . . . . . . . . . 31

1. Tex. Gov’t Code § 2001.174 restates existing law. . . . . . . . . . . . . 31

-iv-

2.

The Legislature’s decision to allow the review of this

§ 361.188 order under the “invalid, arbitrary or

unreasonable” standard is consistent with the emerging

law in this area. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

B. The Texas Supreme Court’s decision in City of Waco is

pertinent to this SWDA appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

1. City of Waco did not merely make a “threshhold

determination”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

C. The “invalid, arbitrary or unreasonable” standard of

§ 361.321(e) equates to the standard of Tex. Gov’t Code

§ 2001.174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

1. Tex. Gov’t Code § 2001.174 was intended to be a

restatement of the law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2. Review under the substantial evidence standard does not

require a contested case hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . 40

VII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

VIII. PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

APPENDIX

-v-

INDEX OF AUTHORITIES

CASES

Berry v. Tex. Democratic Party, 449 S.W.3d 633 (Tex. App.—Austin 2014,

no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 33

City of Waco v. Tex. Comm’n on Envtl. Quality, 346 S.W.3d 781 (Tex.

App.—Austin 2011), rev’d, 413 S.W.3d 409 (Tex. 2013).. . . . . . . 19, 34, 40

Commercial Life Ins. Co. v. Tex. State Bd. of Ins., 808 S.W.2d 552 (Tex.

App.—Austin 1991, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Comptroller v. Landsfeld, 352 S.W.3d 171 (Tex. App.—Fort Worth 2011,

pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997). . . . . . . . . . . . . . . . . . . 23

G.E. Am. Commc’n v. Galveston Cent. Appraisal Dist., 979 S.W.2d 761

(Tex. App.—Houston [14th Dist.] 1998, no pet.). . . . . . . . . . . . . . . . . . . 41

Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Gilder v. Meno, 926 S.W.2d 357 (Tex. App.—Austin 1996, writ denied).. . . 41

Hosner v. DeYoung, 1 Tex. 764 (1847). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Macias v. Rylander, 995 S.W.2d 829 (Tex. App.—Austin 1999, no pet.). . . . 32

McLane Co., Inc. v. Strayhorn, 148 S.W.3d 644 (Tex. App.—Austin 2004,

pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

-vi-

Metzger v. Metzger, No. 01-04-00893-CV, 2007 WL 1633445 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (mem. op.). . . . . . . . . . . 22

Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265 (Tex. 1999). . . . . . . . . . . 6

Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012). . . . . . . . . . . 33

Ramirez v. Tex. State Bd. of Med. Exam’rs, 927 S.W.2d 770 (Tex. App.—

Austin 1996, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

S. Canal Co. v. State Bd. of Water Eng’rs, 318 S.W.2d 619 (Tex. 1958)). . . . . . 34

Saudi v. Brieven, 176 S.W.3d 108 (Tex. App.—Houston [1st Dist.] 2004,

pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sierra Club v. Tex. Comm’n on Envtl. Quality, No. 03–11–00102–CV, 2014

WL 7463875 (Tex. App.—Austin Dec. 30, 2014, no pet. h.). . . . . . . . . . 38

Smith v. Houston Chem. Servs., Inc., 872 S.W.2d 252 (Tex. App.—Austin

1994, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993). . . . . . 15

Tex. Comm’n on Envtl. Quality v. City of Waco, 413 S.W.3d 409 (Tex.

2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-39, 41

Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App.—

Austin 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Tex. 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.). . . . . . . 36-38

-vii-

Tex. Dep’t of Ins. v. State Farm Lloyds, 260 S.W.3d 233 (Tex. App.—

Austin 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Tex. Water Comm'n v. Lindsey, 855 S.W.2d 750 (Tex. App.—Beaumont

1993, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . 33

Tourneau Houston, Inc. v. Harris Cnty. Appraisal Dist., 24 S.W.3d 907

(Tex. App.—Houston [1st Dist.] 2000, no pet.. . . . . . . . . . . . . . . . . . . . . 22

United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797 (Tex. App.—Austin

2000, pet. dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United Servs. Auto. Ass’n v. Brite, 215 S.W.3d 400 (Tex. 2007). . . . . . . . . . . . . 6

Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351 (Tex. 2005). . . . . . . . . . . . . 21

STATUTES

Act of June 6, 1990, 71st Leg., 6th C.S., ch. 10, art. 2, § 29, 1990 Tex. Gen.

Laws 47, 66-80 (amended 1997) (current version at Tex. Health &

Safety Code §§ 361.181-.202). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws

2230, 2616-64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Act of May 24, 1989, 71st Leg., R.S., ch. 703, § 5, 1989 Tex. Gen. Laws

3212, 3218-32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

-viii-

Tex. Gov’t Code § 2001.001-.902.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Tex. Gov’t Code § 2001.174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 39, 42

Tex. Gov’t Code § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 33

Tex. Health & Safety Code ch. 361, subch. F. . 1, 7, 8, 10-12, 16-18, 26, 28, 29

Tex. Health & Safety Code ch. 361, subch. I, K and L. . . . . . . . . . . . . . 5, 11, 17

Tex. Health & Safety Code § 361.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex. Health & Safety Code § 361.003(24). . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Tex. Health & Safety Code § 361.188. . . . . 3, 8, 10-12, 14-19, 21, 25, 26, 28-30,

32, 33, 44

Tex. Health & Safety Code § 361.188(b). . . . . . . . . . . . . . . . . . . 5, 11, 17, 18, 25

Tex. Health & Safety Code § 361.252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tex. Health & Safety Code § 361.271. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex. Health & Safety Code § 361.272. . 6, 8, 10-12, 14-17, 19-21, 25, 26, 28-30,

44

Tex. Health & Safety Code § 361.274. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. Health & Safety Code § 361.276. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Health & Safety Code § 361.321. . . . . . . . . 4, 6, 9-16, 21, 24, 29, 32, 42-44

-ix-

Tex. Health & Safety Code § 361.321(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Tex. Health & Safety Code § 361.321(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Health & Safety Code § 361.321(e). . . . . . . . . . . . . . . . . . . 6, 25, 32, 39, 42

Tex. Health & Safety Code § 361.322. . . . . . 4-6, 8, 10, 11, 14, 17, 24, 26, 30, 31

Tex. Health & Safety Code § 361.322(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Tex. Health & Safety Code § 361.322(e). . . . . . . . . . . . . . . . . . . 6, 10-12, 25, 26

Tex. Health & Safety Code § 361.322(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 31

Tex. Health & Safety Code § 361.322(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex. Health & Safety Code §§ 361.181-.188.. . . . . . . . . . . . . . . . . . . . 2, 7, 16, 26

Tex. Rev. Civ. Stat. Ann. art. 4477-7, § 13. . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Tex. Rev. Civ. Stat. Ann. art. 4477-7, § 8(g).. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Rev. Civ. Stat. Ann. art. 4477-7, § 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Rev. Civ. Stat. Ann. art. 4477-7, § 9(b).. . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Tex. Rev. Civ. Stat. Ann. art. 4477-7, § 9(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Texas Solid Waste Disposal Act, Tex. Health & Safety Code § 361.001-

.966 (West 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

-x-

RULES

Tex. R. App. P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

-xi-

ARGUMENT AND AUTHORITIES

This case involves issues of first impression under the Texas Solid

Waste Disposal Act, Tex. Health & Safety Code § 361.001-.966 (West 2010)

(hereinafter “SWDA”).

I. STATEMENTS OF FACTS

A. Appellant’s Statement of Facts is not Controverted

Appellant showed the steps the TCEQ took in investigating, listing,

preparing to remediate the Voda Site and issuing the Order (Appellant’s

Br. 1-5), in accordance with Subchapter F of the SWDA. (Appellant’s Br.

23). Appellees do not contradict these facts, and they must be accepted as

true. Tex. R. App. P. 38.1(g).

B. Appellees’ Statement of Facts Focuses on Irrelevancies

Appellees focus on three areas in their Statement of Facts. Although

none are relevant to this appeal, the State will address them to clarify the

record.

Appellees describe response actions by the U.S. Environmental Protec-

1

tion Agency (“EPA”) at the Voda Site, with the implication that the TCEQ

need not have taken any further remedial action. (Appellees Br. 1-3.)

However, Appellees ignore the fact that EPA contemplated a subsequent

State-led investigation and remedial action to address soil contamination at

depth, and groundwater contamination on and migrating off of the Site.

(AR 61923-24, AR 943, AR 59594-60117 and AR 60253-83.)

Second, Appellees complain that they lacked the opportunity to be

heard before the Commission. (Appellees Br. 3-5.) Appellees had many

opportunities to present information to the TCEQ during the 15-year

Superfund process, see Tex. Health & Safety Code §§ 361.181-.188, and they

submitted detailed input. (See, e.g., CR 910-12, with references to the

administrative record.) Appellees chose not to appear at the Commission

meeting regarding approval of the Order (AR 50382; video file), and not to

join Luminant’s Motion for Rehearing (AR 50864-89).

Finally, Appellees address the subsequent history of the appeal in the

District Court, with the implication that the TCEQ’s pleadings and state-

2

ments there are relevant to the issue of subject-matter jurisdiction. (Appel-

lees Br. 6-8.) They are not relevant, however, because the TCEQ cannot

confer jurisdiction by such statements. (See infra at sec. V.C.1.)

II. REPLY TO APPELLEES’ SUMMARY OF THE ARGUMENT

Appellees make various conclusory statements, none of which deny

that the Order was issued under Subchapter F procedures and contained

the “laundry list” of items required of a § 361.188 order. (Appellees’ Br. 9-

11.)

Appellees assert that, “Potentially responsible parties are entitled to

their day in court.…” (Appellees’ Br. 11.) This, together with statements in

their Statement of Facts, suggests a Due Process argument. But this inter-

locutory appeal is only about subject-matter jurisdiction. The District Court

can consider issues of equity and Due Process after this Court determines

subject-matter jurisdiction.

III. REPLY TO APPELLEES’ STATEMENT OF JURISDICTION

Appellees’ argument rests on an inference that a waiver of sovereign

3

immunity anywhere in a statute applies to all causes of action (or, in this

case, appellate provisions) in the statute. To the contrary, waivers of

sovereign immunity are strictly construed and must be expressed in clear

and unequivocal terms. See Berry v. Tex. Democratic Party, 449 S.W.3d 633,

640 (Tex. App.—Austin 2014, no pet. h.) (citations omitted); see also Tex.

Gov’t Code § 311.034. Thus, a waiver limited to one action is inapplicable

to other actions, even in the same statute.

Appellees argue that, “What the parties actually dispute is precisely

what evidence the trial court may consider in reviewing the Order.… The

State’s plea is not a challenge to the trial court’s subject matter jurisdic-

tion.…” (Appellees’ Br. 11-12.) To the contrary, the State is asserting that,

for this type of order, the District Court has subject-matter jurisdiction

under § 361.321 but not under § 361.322. (Appellant’s Br. 32-38.) This is a

plea to the jurisdiction, therefore, not merely a dispute over the evidence.

Essentially, this Court is being asked to decide whether the District Court

will exercise its original fact-finding jurisdiction or its appellate jurisdiction

4

over the Order.

Appellees further assert that, “the State cannot maintain a plea to the

jurisdiction in this case because its own pleadings defeat its claim.” (Appel-

lees’ Br. 12.) However, the State’s pleadings cannot confer jurisdiction by

consent, waiver or estoppel. (See sec. V.C.1, infra.)

IV. REPLY CONCERNING ISSUE ONE

Appellees attempt to show that the two types of order, despite being in

different sections of the statute and having different elements and proce-

dures, are “not mutually exclusive.” (Appellees’ Br. 14.) They reason that

“both types of orders share elements outlined in Subchapters I, K, and L of

the Act, including but not limited to: … [a]n appellate provision. Id. at

§ 361.322.” (Appellees’ Br. 14-15.) To the contrary, while the orders have

some elements in common (due to § 361.188(b)), they cannot both be

appealed under § 361.322.

A. The plain language of § 361.322 limits that section to

appeals of § 361.272 orders

The plain language of the statute says that § 361.322 is limited to the

5

appeals of § 361.272 orders: “Any person subject to an administrative order

under Section 361.272 may appeal the order by filing a petition.…” SWDA

§ 361.322(a) (emphasis added). See also id. §§ 361.322(g) and (h) (referring to

“the administrative order.”)

Conversely, § 361.321 applies generally to a “ruling, order, decision, or

other act of the commission,” but contains the following exclusion: “Except

as provided by Section 361.322(e) [read 361.322(g)], in an appeal from an

action of the commission … the issue is whether the action is invalid,

arbitrary, or unreasonable.” Id. § 361.321(e). (See Appellant’s Br. 13 con-

cerning the outdated reference to § 361.322(e).) Thus, the two appellate

sections are separate and have different standards of review.

The fact that § 361.322 refers to § 361.272 orders, and does not mention

any others, indicates that the Legislature did not intend for it to apply to

any other type of order. See United Servs. Auto. Ass’n v. Brite, 215 S.W.3d

400, 403 (Tex. 2007), citing Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d

265, 273–74 (Tex. 1999) (referring to the “doctrine of expressio unius est

6

exclusio alterius—the inclusion of a specific limitation excludes all others—a

statutory interpretation tool of some use under [certain] circumstances.”).

Each appellate section stands alone.

B. The language and structure of the SWDA create separate

orders and separate appeals

1. The current language of the statute correctly reflects the

intent of the Legislature

Appellees refer to the statutory history in an attempt to show that both

types of order have always been subject to the same appellate standards.

(Appellees’ Br. 15-29.) One problem with this analysis is that what is now

Subchapter F, including §§ 361.181-.188, was substantially rewritten in

1989-90, and the appellate cross-references were codified at the same time.

The Legislature codified the SWDA in the Regular Session of 1989. See

Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230,

2616-64. (App. 1:2616-64.) In that same session, it enacted amendments

that were not codified. See Act of May 24, 1989, 71st Leg., R.S., ch. 703, § 5,

1989 Tex. Gen. Laws 3212, 3218-32. (App. 2:3218-32.) Those amendments

7

included a substantial rewriting of § 13 (now Subchapter F), to the extent

that they practically created a new program. Id. (App. 2:3218-32.) The next

year, in the Sixth Called Session, the Legislature codified the new amend-

ments. See Act of June 6, 1990, 71st Leg., 6th C.S., ch. 10, art. 2, § 29, 1990

Tex. Gen. Laws 47, 66-80 (amended 1997) (current version at Tex. Health &

Safety Code §§ 361.181-.202). (App. 3:66-80.)

In the same act that codified the new Subchapter F, the Legislature also

incorporated the uncodified amendment to § 9(b) (now § 361.322(a)) and

included this reference: “Any person subject to an administrative order

under Section 361.272 may appeal the order by filing a petition.…” Id. § 28,

1990 Tex. Gen. Laws 64-65 (current version at Tex. Health & Safety Code

§ 361.322(a)). (App. 3:64-65.) They also amended § 361.321(c) with the

cross-reference, “[e]xcept as provided by Section 361.322(a)....” Id. at 64

(current version at Tex. Health & Safety Code § 361.321(c)).

If the Legislature had wanted § 361.188 orders to be appealed under

§ 361.322, this was the perfect opportunity to say so. But they did not, and

8

instead left § 361.188 orders to be appealed under § 361.321, the general

appellate section. The relevant language has not changed in the interven-

ing 25 years.

The legislative intent is clear from the text, and the statutory history

does not show a different intent before codification. The plain language

shows that each separate ordering section has an independent appellate

section.

2. The pre-codification statutory history shows separate

orders and separate appeals

Even if there were some ambiguity in the current text, and a review of

the statutory history were necessary, that history does not support the

conclusions Appellees attempt to draw.

First, Appellees provide an extensive statutory history (Appellees’ Br.

13-22), only to draw the same conclusions, as to the pre-codification

statute, that they drew regarding the current statute (compare Appellees’ Br.

15 with id. at 21). That history does not alter any conclusions about the

meaning of the statute.

9

For example, after the 1985 amendments, the “preponderance of the

evidence” clause of § 9(c) (now § 361.322(e)) was made applicable only to

§ 8(g) (now § 361.272) orders; the “invalid, arbitrary or unreasonable”

standard of § 9 (now § 361.321) applied to all the rest (e.g., to § 361.188).

That language carries forward to the present statute. In other words, the

codifiers correctly carried forward the prior meaning to the current statute.

Appellees acknowledge that the 1989 amendments limited the applica-

bility of § 9(b) (now § 361.322) appeals to “any person subject to an admin-

istrative order under 8(g)” (now § 361.272). (Appellees’ Br. 21.) The same

bill, they acknowledge, allowed the TCEQ to continue the remedial action

program under § 13 (now Subchapter F), unless enjoined, and added the

other provisions now found at § 361.322. (Appellees’ Br. 22.) However,

they do not acknowledge the obvious conclusion: that the pre-codified

statute, like the current version, had separate appellate provisions for the

different types of orders.

10

C. Cross-references between subchapters do not merge the

ordering sections

1. Section 361.188(b) merely incorporates provisions from

other subchapters into § 361.188 orders

Appellees argue that § 361.188 and § 361.272 orders are not mutually

exclusive, although they appear in different sections and use different

language. (Appellees’ Br. 23.) One reason, they say, is that § 361.188(b)

incorporates the provisions of Subchapters I, K and L into § 361.188 orders,

“including the same appellate provisions.” (Appellees’ Br. 23-24.) This is

illogical, however, since both §§ 361.321 and 361.322 are in Subchapter K—

and both cannot apply to the same § 361.188 order. The difference is that

§ 361.322 appeals are expressly limited to § 361.272 orders, while § 361.321

appeals are applicable generally.

2. Section 361.322(e) does not merge the orders

Appellees point out that § 361.322(e) allows the Subchapter F process

to continue even after a § 361.272 order is appealed (unless enjoined).

(Appellees’ Br. 24.) However, this clause does not make the orders any less

11

separate or distinct.

Section 361.272 orders are useful in certain circumstances:

(1) When an order is needed quickly to address exigent circum-

stances, and there is insufficient time to complete the exhaustive

Subchapter F procedures;

(2) When the remedy is fairly obvious and straightforward (such

as the removal of all contaminated material), because a full-blown

remedial investigation would be unnecessary; and

(3) When a stopgap is needed initially to stabilize the site while

the full Superfund process is carried out under Subchapter F.

Section 361.322(e) is designed to facilitate option (3). The fact that the

TCEQ can conduct a full investigation and issue a § 361.188 order, while a

§ 361.272 order is on appeal, does not make the orders any less separate or

distinct. In fact, it shows that they are separate orders.

D. The term “person affected” does not limit § 361.321 to

permit appeals

Appellees assert that the SWDA appellate provisions distinguish

between Superfund and permitting orders, not between different kinds of

Superfund orders. (Appellees’ Br. 25.) The reason, they say, is that the

12

term “person affected” in § 361.321 limits that section to permitting ap-

peals. (Appellees’ Br. 25-27.) They say, “[b]oth 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.” (Appellees’ Br. 27, citations omitted.)

To the contrary, while it is undoubtedly true that the definition of

“person affected” in § 361.003(24) applies to permitting decisions, it does

not follow that the same term in § 361.321 limits that section to the appeals

of permit matters.

1. The definition of “person affected” is broad enough to

cover persons named in Superfund orders

A person named in a Superfund order is affected by the order. That

person is required to be responsible for a share of the response costs

incurred at the site, and thus has an economic interest in the outcome. That

person can “demonstrate[] that the person has suffered or will suffer actual

injury or economic damage,” within the meaning of id. § 361.003(24).

Likewise, the person named in the Superfund order was determined to

13

have done business at the site (see definition of “Person Responsible for

Solid Waste” at id. § 361.271), and was therefore “doing business … in the

county” within the meaning of id. § 361.003(24)(B).

Definitions in the SWDA apply “unless the context requires a different

definition.” Id. § 361.003. In context, this definition is broad enough to

encompass persons named in Superfund orders, for purposes of appeals

under § 361.321.

2. Under Appellees’ interpretation, there might be no appeal

for § 361.188 orders

Appeals under § 361.322 are limited, by the plain language of that

section, to orders issued under § 361.272. If § 361.321 were restricted to

non-Superfund matters, then there would be no clear, unambiguous

waiver of immunity for § 361.188 orders. Since this Order was procedurally

and substantively a § 361.188 order (see Issue Two, sec. V, infra), Appellees

would have no appeal in the present case.

The TCEQ does not argue that the Legislature intended for there to be

no appeal for a § 361.188 order. The most reasonable interpretation is that

14

“persons affected,” in the case of a § 361.188 order, is meant to include the

persons named in the order.

3. Under Appellees’ interpretation, only permit matters and

§ 361.272 orders could be appealed

Appellees undoubtedly overstate their argument in saying that

“§ 361.321 is the appellate provision for the permitting program… .”

(Appellees’ Br. 27.) In fact, § 361.321 is the general appellate provision for

the SWDA.

Matters other than permitting decisions have been appealed under

§ 361.321. See, e.g., Tex. Water Comm’n v. Lindsey, 855 S.W.2d 750, 752 (Tex.

App.—Beaumont 1993, writ denied) (appeal of an agency letter determin-

ing PRP status; appeal may be taken under § 361.321 and venue is proper

in Travis County.) See also, Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 441, n.2 at 442, 450 (Tex. 1993) (a constitutional review of

administrative penalty sections in several statutes, including the then-

existing § 361.252 of the SWDA; assuming that such orders could be

appealed, but holding that prepayment procedures violated the Open

15

Courts doctrine.)

E. Conclusion

The Legislature contemplated, considered, and enacted two different

types of administrative orders for Superfund actions. Section 361.188

orders are issued when the TCEQ completes the procedures set forth in

Subchapter F, whereas § 361.272 orders are reserved for situations where

circumstances demand quicker action. Each order has its own independent

mechanism for appeal. Appellees’ arguments that the appellate remedies

set forth in § 361.321 are restricted to non-Superfund actions are erroneous.

V. REPLY CONCERNING ISSUE TWO

Appellees’ response to Issue Two is notable for what it does not say. It

does not assert that the TCEQ failed to do any of the things required under

§§ 361.181-.188, or that the Order is missing any of the “laundry list” of

requirements in § 361.188. It does not contradict the facts the TCEQ set out

in this regard (Appellant’s Br. 1-5). The TCEQ asserts that this is a § 361.188

order because it was issued in accordance with all the procedural and

16

substantive requirements of Subchapter F of the SWDA. Appellees do not

controvert this argument.

Appellees’ argument is otherwise, and somewhat contradictory. First,

they assert that the Order “was issued under both § 361.188 and § 361.272

of the SWDA.” (Appellees’ Br. 29.) Then they say, “the AO for the Voda

Site was issued under § 361.272, making application of § 361.322 appropri-

ate for this Order.” (Appellees’ Br. 30.)

Their reasoning depends on two arguments: First, that the TCEQ made

various statements, both at the agency level and before the District Court,

to the effect that the Order was issued under both sections. Second, they

say that certain provisions of Subchapters I, K and L have been incorpo-

rated into the Order pursuant to § 361.188(b), and this converts the Order

to a § 361.272 order. However, neither of these arguments challenges the

essential nature of the Order or affects the subject-matter jurisdiction of the

courts.

17

A. The content of the Order shows that it was issued under

Subchapter F

Appellees assert that several parts of the Order incorporate authorities

from subchapters other that Subchapter F. (Appellees’ Br. 30.) These

include the definition of “solid waste” as well as “hazardous substances”

among the materials at the Site, the definition of “responsible parties,” the

divisibility of the release, the list of Chemicals of Concern, etc. (Appellees’

Br. 30-32.) They conclude that “these provisions flatly contradict the

State’s position that the AO was issued solely under § 361.188.” (Appellees’

Br. 31.)

This argument, however, ignores the language of § 361.188(b)—that

“[t]he provisions in Subchapters I, K, and L relating to administrative

orders apply to orders issued under this section.” SWDA § 361.188(b).

Appellees have admitted that this clause “is open ended and inclusive, and

demonstrates that the Legislature intended all ‘administrative orders’ of

the SWDA to share common procedural attributes.…” (Appellees’ Br. 24.)

The fact that § 361.188(b) incorporates elements from other subchapters

18

does not turn the Order into a § 361.272 order.

B. Contrary statements did not change the essential nature of

the Order

Appellees refer to various statements by the TCEQ to the effect that the

Order was issued under both sections. These statements all relate back to a

boilerplate clause in the preamble to the Order itself, which said that the

Executive Director’s requested relief included a Superfund order “as

authorized by Sections 361.188 and 361.272 of the Act.” (AR 50383.)

Prior to the Supreme Court’s opinion in City of Waco, Texas case law

held that, “substantial-evidence review on an agency record is simply ‘not

possible’ absent the opportunity to develop that record through a con-

tested-case or adjudicative hearing.” City of Waco v. Tex. Comm’n on Envtl.

Quality, 346 S.W.3d 781, 818 (Tex. App.—Austin 2011), rev’d, 413 S.W.3d

409 (Tex. 2013). The parties believed that, if the matter were appealed,

some judicial fact-finding was inevitable in the trial court. The agenda

notice and the statement by the staff attorney simply reflected the boiler-

plate in the preamble to the Order, and were not statements about the

19

anticipated standard of review on appeal. In presenting the Order to the

Commission, the staff attorney summarized the actions the TCEQ took in

compliance with the Subchapter F program. (AR 50382; video file, oral

statement at 1:18.)

The TCEQ’s statement in its Reply to Luminant’s Motion for Rehearing

(concerning the lack of need for an adjudicative hearing) did not affect

substantive rights. (See Appellees’ Br. 32-33; AR 49650.) The TCEQ rea-

soned that no hearing was required for a § 361.272 order, by virtue of Tex.

Health & Safety Code § 361.274—however, no hearing was required for

either type of order. (AR 49650.) The TCEQ was not saying that a hearing

was precluded by the combined effects of both ordering sections, simply

that no hearing was required under either section. Substantive rights were

not affected by any assertion about the Order being issued under both

sections.

The TCEQ cannot waive sovereign immunity though its own state-

ments. (See sec. V.C.1, infra.) The Order is defined by its substance and the

20

procedures used to create it, and the Appellees do not contest that it has all

the characteristics of a § 361.188 order. It follows from the plain language

of the statute that appeal is under § 361.321. The TCEQ lacks the power to

waive sovereign immunity and admit that the Order is something that it is

not, or that appeal is proper under a different section.

C. The State’s prior pleadings did not waive, agree to, or confer

jurisdiction

Appellees refer to various pleadings and agreed judgments in which

the State said that the Order was issued under both §§ 361.188 and 361.272.

(Appellees’ Br. 33-34.) However, the State’s prior pleadings cannot defeat

this plea.

1. The State’s pleadings did not create waivers of sovereign

immunity

The parties to lawsuits—in their pleadings or otherwise—cannot

waive, agree to, or confer jurisdiction. See, e.g., Comptroller v. Landsfeld, 352

S.W.3d 171, 174 (Tex. App.—Fort Worth 2011, pet. denied) (subject matter

jurisdiction “may not be conferred by waiver or estoppel.”) (citing Van

21

Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 354 (Tex. 2005)). See also

Metzger v. Metzger, No. 01-04-00893-CV, 2007 WL 1633445, *7 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (mem. op.) (“Subject-matter

jurisdiction cannot be conferred by consent, waiver, or estoppel at any

stage of a proceeding.”), citing Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied) (quoting Tourneau Houston,

Inc. v. Harris Cnty. Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.—Houston

[1st Dist.] 2000, no pet.)).

Only the Texas Legislature, and not an agency, can waive sovereign

immunity:

This Court has long recognized that it is the Legislature’s sole prov-

ince to waive or abrogate sovereign immunity.… The Legislature

may consent to suits against the State by statute or by resolu-

tion.… Legislative consent to sue the State must be expressed in

clear and unambiguous language.

Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex.

2002) (citations and internal quotation marks omitted, emphasis added).

See also McLane Co., Inc. v. Strayhorn, 148 S.W.3d 644, 649 (Tex. App.—

22

Austin 2004, pet. denied) (“It is for the legislature alone ‘to waive or abrogate

sovereign immunity.’”) (emphasis added), citing Fed. Sign v. Tex. S. Univ.,

951 S.W.2d 401, 409 (Tex. 1997).

2. Prior judgments and motions did not create waivers of

sovereign immunity

Appellees refer to two agreed final judgments and two motions for

default judgment, which recited that the Order was issued under both

sections. (Appellees’ Br. 34-35.) However, Appellees do not say how the

parties to those judgments were affected by those statements, nor how

Appellees themselves were affected. In fact, those statements simply

reflected the boilerplate statement in the preamble to the Order. The scope

and type of order, and the appellate provisions applicable to each type of

order, were not at issue in any of those proceedings.

Neither the identity of the Order nor the language it contains has ever

been in dispute. In the agreed final judgments, all causes of action related

to the Order were being compromised and settled. (The judgments were

severed and filed in separate cases. However, the text of each can be seen

23

with the TCEQ’s notices of lodging. (See CR 275-436, 458-556.)) All claims

related to the Order were being dismissed. Neither the settling parties’ nor

Appellees’ rights were affected by the boilerplate statements.

Appellees also refer to a statement in the TCEQ’s Third Amended

Original Answer that the “sole method for appealing the Order” is at Tex.

Health & Safety Code § 361.322. (Appellees’ Br. 35, CR 678.) That state-

ment was in the context of a plea to the jurisdiction seeking to dismiss a

claim under the Uniform Declaratory Judgment Act on the grounds of

redundancy. (CR 677-79.) The motion should have said that the “sole

method” of appeal was under § 361.321. However, the underlying argu-

ment was still sound—that the UDJA action offered nothing but redundant

remedies. In context, the statement did not draw a distinction between two

different sections of the SWDA, but between remedies offered in the UDJA

versus the SWDA. Moreover, the statement did not create a waiver of

sovereign immunity.

If any party’s pleadings are to be binding, it is those of Appellees—

24

who expressly limited their prayer for relief to whether “the TCEQ’s

Administrative Order is invalid, arbitrary, or unreasonable and therefore

must be overturned pursuant to Texas Health & Safety Code § 361.321(e).”

(CR 25.)

3. The State did not seek to obtain the advantages of a

§ 361.272 order by saying that it issued the Order under

both sections

Appellees assert that, “the Commission invoked § 361.272 in an

attempt to hold the [potentially responsible parties (“PRP’s”)] for the Voda

Site jointly and severally liable under the SWDA.” (Appellees’ Br. 37.) To

the contrary, the TCEQ did not invoke § 361.272 for that reason, because it

was not necessary to do so. Section 361.276 (“Apportionment of Liability”)

is made applicable to § 361.188 orders by virtue of § 361.188(b). The fact

that the TCEQ asserted there is joint and several liability for this Order

does not make it a § 361.272 order.

D. Section 361.322(e) does not merge § 361.188 and § 361.272

orders

Appellees say that, “the issuance of an order under § 361.272 does not

25

preclude the Commission from the listing process of § 361.181-188.” (Ap-

pellees’ Br. 37, citing § 361.322(e).) While this is true, it does not lead to the

conclusion that the ordering sections are somehow merged. (See discussion

of § 361.322(e) at sec. IV.C.2, supra.)

The TCEQ may work through the Subchapter F process, and even

issue a § 361.188 order, after the issuance and appeal of a § 361.272 order.

Appellees imply that this has some relevance to the current situation, but it

does not. In the present case, the TCEQ did the Subchapter F process first,

and then issued the § 361.188 Order. Section 361.322(e) is irrelevant.

E. Reviewing this Order under § 361.322 would make

Subchapter F redundant

In a trial court brief, the TCEQ asserted that “[r]eview under Section

361.322 would render Subchapter F redundant.” (CR 1091.) The reason

was that the TCEQ would not go through the “elaborate, time-consuming

and expensive,” Subchapter F process if it had to re-prove liability at trial

by preponderance of the evidence anyway. (CR 1092.) “That practical

consideration would turn Subchapter F into surplusage, which would be

26

contrary to the intent of the Legislature.” Id. In the present case, it would

mean that the TCEQ had wasted 15 years, and a lot of money, establishing

findings that would have to be re-established by a preponderance of the

evidence.

Appellees do not address this argument directly. Instead, they respond

by complaining that they were not offered a contested-case hearing before

the agency, and did not have the opportunity to show that they were not

“persons responsible for solid waste.” (Appellees’ Br. 38-39.) However,

Appellees had numerous opportunities to show that they were not PRP’s

and present other information to the TCEQ. The Legislature did not

provide a redundant contested-case hearing as part of that process.

Appellees do not address the question of subject-matter jurisdiction;

instead, they complain about the supposed effects of a substantial evidence

review. When they suggest that the Order will be “the final word on

liability,” (Appellees’ Br. 39), they grossly overstate the applicable standard

of review. Appellees’ arguments about their own liability are premature in

27

this interlocutory appeal.

Further, their distinction between agency expertise on liability versus

remedy selection is misplaced. (See Appellees’ Br. 38-39.) Essentially, they

are saying that they question the agency’s expertise when it comes to

determining their own liability. However, the agency has expertise in

determining PRP status; it must go through the relevant procedures set out

in Subchapter F, and did so for this Order in detail. (AR 12512-16706.)

F. The Order was properly issued under § 361.188

The TCEQ asserted that: “[a] single order cannot arise under both

Sections 361.188 and 361.272.” (Appellant’s Br. 18.) The rationale was that,

“[t]he orders must be separate and distinct because they have different

deadlines for appeal,” and “each appellate section provides for a different

standard of review.” Id.

From this, Appellants illogically conclude that the remedy is “to

overturn the Order as a violation of law.” (Appellees’ Br. 40.) They arrive

at this conclusion only by assuming that the TCEQ issued the Order

28

“under both § 361.188 and § 361.272.” (Appellees’ Br. 41.) Since that is the

matter in controversy, their argument lacks logic and must fail. This Order

was properly issued under § 361.188—not § 361.272, and not both.

G. Conclusion

The TCEQ’s boilerplate language in the preamble to the Order is not

controlling or dispositive as to the nature of the Order, nor are the TCEQ’s

statements or pleadings. What is controlling is the substance of the Order

and the process the TCEQ followed leading up to its entry. Appellees do

not dispute that the TCEQ completed the procedures set forth in Sub-

chapter F. If the TCEQ had intended to issue a § 361.272 order, it would

have done so early in the process rather than at the end. The Order was

properly issued under § 361.188 and is properly reviewed under § 361.321.

VI. REPLY CONCERNING ISSUE THREE

The TCEQ asserted that “[b]ecause of the doctrine of Sovereign Immu-

nity, the courts lack jurisdiction to review the Order under any section

other than Section 361.321.” (Appellant’s Br. 32.) The premises of that

29

argument were that (a) the ordering sections are mutually exclusive, and

(b) this Order was issued under § 361.188. (Appellant’s Br. 32.)

Appellees respond that “[j]udicial review of the Administrative Order

for the Voda Site is constitutional and appropriate under § 361.322 of the

[SWDA].” (Appellees’ Br. -ix-.) However, they start with different pre-

mises. They posit that “the substantial evidence review procedures found

in the APA are not applicable to this appeal” (Appellees’ Br. 41), and then

argue that “judicial review under § 361.322 does not violate the separation

of powers doctrine.” (Appellees’ Br. 42.)

In other words, Appellees are saying that an order issued under

§ 361.272 is properly appealed under § 361.322, and there is no constitu-

tional impediment to doing so. Even assuming that argument to be sound,

it is irrelevant here because the present case involves a § 361.188 order—as

established in Issues One and Two, above. Appellees do not controvert the

essence of the TCEQ’s jurisdictional argument.

30

A. The constitutionality of § 361.322 is not at issue

1. Tex. Gov’t Code § 2001.174 restates existing law

The TCEQ asserted that “[u]nder the Separation of Powers Doctrine,

the courts review administrative orders only as to matters of law.” (Appel-

lant’s Br. 35.) That was in the context of an argument showing that the

Texas Administrative Procedure Act (“APA”) (specifically, Tex. Gov’t

Code § 2001.174) codified the Legislature’s understanding of the existing

law of judicial review of state agency actions. (Appellant’s Br. 35-37.)

Appellees do not controvert the proposition that Tex. Gov’t Code

§ 2001.174 restated existing law. Instead, they argued that “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.” (Appellees’ Br.

42.)

However, issues concerning the constitutionality of the “preponder-

ance of the evidence” requirement in § 361.322(g) are irrelevant here. Given

31

that this Order was issued under § 361.188, it is properly reviewed under

the “invalid, arbitrary or unreasonable” standard of § 361.321(e). (See also,

argument and authorities at sec. VI.C.1, infra.)

Appellees cite cases in which statutes required trials de novo for

certain agency decisions. (Appellees’ Br. 43-46, citing Commercial Life Ins.

Co. v. Tex. State Bd. of Ins., 808 S.W.2d 552 (Tex. App.—Austin 1991, writ

denied) and Macias v. Rylander, 995 S.W.2d 829 (Tex. App.—Austin 1999,

no pet.). The issue in each case was whether those requirements violated

the Separation of Powers doctrine (they did not). See Commercial Life, 808

S.W.2d at 554-55; Macias, 995 S.W.2d at 832-33. Again, however, that is

irrelevant here because § 361.321 does not require a trial de novo.

Meanwhile, in the present case, the TCEQ has shown that the review

of this Order under the “invalid, arbitrary or unreasonable” standard of

§ 361.321(e) is conducted in the same manner as review under the provi-

sions of Tex. Gov’t Code § 2001.174. (Appellant’s Br. 37-38.)

32

2. The Legislature’s decision to allow the review of this

§ 361.188 order under the “invalid, arbitrary or unreason-

able” standard is consistent with the emerging law in this

area

The issue in this interlocutory appeal is whether the courts have

subject-matter jurisdiction to consider an appeal of an agency order under

one section of a statute, when the only proper appeal is under a different

section. This raises a question of Sovereign Immunity, since the State has

not waived its immunity generally. Each waiver must be in “express and

unequivocal terms.” See Berry, 449 S.W.3d at 640, quoting Prairie View A&M

Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012); see Tex. Gov’t Code

§ 311.034. “‘[N]o state can be sued in her own courts without her consent,

and then only in the manner indicated by that consent.’” Tooke v. City of

Mexia, 197 S.W.3d 325, 331 (Tex. 2006) quoting Hosner v. DeYoung, 1 Tex.

764, 769 (1847).

The Separation of Powers doctrine, which is similar but not identical,

holds that judicial review (when authorized) may not re-determine the

facts found by the agency. The distinction was explained by this Court, as

33

follows:

[A]n administrative agency’s order made within its discretionary

statutory and constitutional authority is ordinarily shielded by

sovereign immunity from suit, such that there is no right to judi-

cial review, unless and until the Legislature has waived that

immunity by conferring a right of judicial review.… However,

even while the Legislature generally has the prerogative to waive

sovereign immunity to permit judicial review, Texas courts have

long held separation-of-powers principles bar the judiciary—even

where the Legislature has purported to grant such broad review

powers—from redetermining the fact findings of agencies exercis-

ing their administrative functions.

City of Waco, 346 S.W.3d at 815 (Tex. App.—Austin 2011), rev’d on other

grounds, 413 S.W.3d 409 (Tex. 2013) (citing Gerst v. Nixon, 411 S.W.2d 350,

353–54 (Tex.1966) and S. Canal Co. v. State Bd. of Water Eng’rs, 318 S.W.2d

619, 622-24 (Tex. 1958)) (other citations omitted). That distinction is still

valid.

B. The Texas Supreme Court’s decision in City of Waco is

pertinent to this SWDA appeal

The TCEQ asserted that “[a] contested case hearing is not required for

review of this Order under substantial evidence,” referring to the Supreme

Court’s City of Waco decision. (Appellant’s Br. 38-39, citing Tex. Comm’n on

34

Envtl. Quality v. City of Waco, 413 S.W.3d 409 (Tex. 2013).) Appellees

responded that “[t]he Texas Supreme Court’s decision in City of Waco is not

controlling in this SWDA appeal.” (Appellees’ Br. 48.) To the contrary, the

Supreme Courts rulings in that case—and this Court’s subsequent applica-

tions of those rulings—define the proper approach here.

1. City of Waco did not merely make a “threshhold determina-

tion”

Appellees would limit the applicability of City of Waco by saying that

the case “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.” (Appellees’ Br. 10, 48.) However, that

was not the relevant characteristic of the case. The case actually turned on

the finding that the amended permit would not “significantly increase or

materially change the authorized discharge of waste” and would therefore

qualify for a statutory exemption from the contested-case requirement. City

of Waco, 413 S.W.3d at 424-25 (Tex. 2013). The TCEQ made a fact-based

determination from the information, evidence, documents, and arguments

35

that interested parties presented to the agency, and the Court upheld that

determination. Id. (“We conclude that there is evidence in the record to

support the Commission’s determination.…”) In the present case, the

TCEQ made a similar determination respecting the Site remedy and Appel-

lees’ status as PRP’s.

In City of Waco, the Texas Supreme Court upheld TCEQ’s decision

because there was reasonable support in the agency record for the decision.

Id. at 424-25. Ultimately, that is what the TCEQ is requesting in the present

case. When applying the Supreme Court’s holding and analysis, this Court

has recognized that an agency’s decision is often found not to be arbitrary

or capricious if the factual basis for the decision is supported by substantial

evidence in the agency record. See Tex. Comm’n on Envtl. Quality v. Sierra

Club, No. 03-12-00335-CV, 2014 WL 7464085, *5 (Tex. App.—Austin Dec.

30, 2014, no pet. h.)

Appellees attempt to distinguish City of Waco by saying that, “the

present case has no connection to the Texas Water Code, permitting, or the

36

standing of third parties.…” (Appellees’ Br. 51.) However, these distinc-

tions are irrelevant. Appellees are still making the assumption that the

“preponderance of the evidence” burden of proof applies. (Appellees’ Br.

51.) But it does not, and such analysis is beside the point. After City of

Waco, the courts can review an agency order by the “abuse of discretion”

standard (including the substantial evidence component), even in the

absence of a contested case or adjudicative hearing below. The relevant

provision, § 361.321, mandates such a standard of review. That is the

holding and the relevance of City of Waco.

Appellees attempt to distinguish the recent Sierra Club case, which

follows the City of Waco precedent. (See Appellees’ Br. 52-53, citing Sierra

Club, 2014 WL 7464085.) Appellees admit that, “[a]pplying the holding

from City of Waco, [this Court] held it must review ‘a TCEQ determination

regarding affected-person status for an abuse of discretion.’” (Appellees’

Br. 52, citing Sierra Club, 2014 WL 7464085 at *4.) Appellees do not say why

that case is distinguishable from the present case—presumably because it

37

involves party standing in a permit matter. But this Court cited City of

Waco throughout the opinion and noted that, “[i]n making a decision

regarding affected-person status, TCEQ enjoys the discretion to weigh and

resolve matters that may go to the merits of the underlying application.…”

Sierra Club, 2014 WL 7464085 at *5, citing Sierra Club v. Tex. Comm’n on

Envtl. Quality, No. 03–11–00102–CV, 2014 WL 7463875 at *12 (Tex. App.—

Austin Dec. 30, 2014, no pet. h.) (other citations omitted).

To summarize, this Court has recently considered two different TCEQ

decisions—each within the agency’s discretion, on the substance of the

applications, without contested case hearings—and reviewed them on the

administrative record based on the abuse of discretion standard. These

precedents support the TCEQ’s interpretation of City of Waco.

Finally, Appellees mischaracterize the State’s position as saying that

“all TCEQ decisions—including those with specific statutory appellate

provisions to the contrary—are subject to review only through pure

substantial evidence.” (Appellees’ Br. 53.) By contrast, the State’s actual

38

position is that City of Waco and its progeny allow a substantial evidence

review on appeal, even without a contested case hearing before the agency,

when the relevant statute provides for such review. That is entirely consis-

tent with precedent, and describes the present situation.

C. The “invalid, arbitrary or unreasonable” standard of

§ 361.321(e) equates to the standard of Tex. Gov’t Code

§ 2001.174

1. Tex. Gov’t Code § 2001.174 was intended to be a restate-

ment of the law

Appellees argue that the provisions of the APA contained at Tex.

Gov’t Code § 2001.174 do not apply here, because of the express terms of

that section. (Appellees’ Br. 53-54.) But this ignores the TCEQ’s actual

argument: that the Legislature intended the APA to be a restatement of

existing law, not a new form of judicial review of agency actions. (Appel-

lant’s Br. 36.) Following this argument, the “invalid, arbitrary or unreason-

able” standard of § 361.321(e) simply means that the Order must be re-

viewed under the standards of APA § 2001.174, of which substantial

evidence is an important part. (Appellant’s Br. 37.) Appellees do not

39

controvert the TCEQ’s actual argument.

2. Review under the substantial evidence standard does not

require a contested case hearing

Appellees argue that “Outside of threshold standing questions, pure

substantial evidence requires a true contested-case record under the APA.”

(Appellees’ Br. 55-59.) However, they cite several cases that have been

effectively overruled. One is Ramirez v. Tex. State Bd. of Med. Exam’rs, 927

S.W.2d 770, 773 (Tex. App.—Austin 1996, no writ), which rejected the

argument that the Legislature created a right of judicial review under the

substantial evidence rule while depriving parties of an opportunity for a

contested case hearing. However, that case was cited in this Court’s

opinion in City of Waco, 346 S.W.3d at 818, and was thus effectively over-

ruled by the Supreme Court’s subsequent opinion. (See Appellant’s argu-

ment at CR 1099-1100.)

Appellees also cite 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.”).

40

(Appellees’ Br. 59.) Like Ramirez, that case has been effectively overruled

by City of Waco.

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

979 S.W.2d 761, 767 (Tex. App.—Houston [14th Dist.] 1998, no pet.), and

quote: “Substantial evidence review cannot have been the proper standard

because there is no record from the appraisal review board hearing.”

(Appellees’ Br. 56.) The Fourteenth Court of Appeals concluded that,

because there was no record to review, the correct standard of review was

substantial evidence de novo—so that the court could create a record. G.E.

Am., 979 S.W.2d 767. However, substantial evidence de novo has been

rejected by this Court as the default standard of review. See Gilder v. Meno,

926 S.W.2d 357, 361 (Tex. App.—Austin 1996, writ denied). In addition, like

the Ramirez case, the holding has been effectively overruled by the Su-

preme Court in City of Waco. Finally, the TCEQ has compiled an exhaustive

record in this case, and thus the rationale of G.E. American does not apply.

G.E. American is simply not a good precedent here. (See CR 1101.)

41

Appellees attempt to distinguish various cases that are, in fact, good

law. See, e.g., Smith v. Houston Chem. Servs., Inc., 872 S.W.2d 252, 257 n.2

(Tex. App.—Austin 1994, writ denied). Smith interprets § 361.321—the

same section that defines the standard of review in the present case—and

found that the language of § 361.321(e) implies substantial evidence review

under the provisions of § 2001.174 of the APA. Smith is on point because it

interprets the exact section that is at issue in the present case. Smith, 872

S.W.2d at 257 n.2 (“To render [this statute] understandable, and to protect

against its possible violation of the separation-of-powers mandate of the

Constitution of the State of Texas, we construe subsection (a) [of § 361.321]

as authorizing suits for judicial review in a district court of Travis County

in accordance with APA § 2001.001-.902.).

Appellees also argue that the Kelsoe case was not decided on substan-

tive grounds. (Appellees’ Br. 57, citing Tex. Comm’n on Envtl. Quality v.

Kelsoe, 286 S.W.3d 91, 97 (Tex. App.—Austin 2009, pet. denied) (petitioner

asserted that “section 361.321 of the health and safety code only appl[ies]

42

after a contested case hearing, but the plain language of the statute[] does

not support that conclusion; the statute[] speak[s] of seeking review of any

‘ruling, order, decision, or other act.’”). Kelsoe, 286 S.W.3d at 95. Even so,

the case shows this Court’s recent interpretation of the section that is at

issue here; thus, it has precedential value.

Smith and Kelso are not distinguishable on the basis of contested case

hearing because those appeals were filed under the broad language of

§ 361.321.

Appellees attempt to distinguish United Copper Indus., Inc. v. Grissom,

17 S.W.3d 797 (Tex. App.—Austin 2000, pet. dism’d), principally on the

grounds that it is limited to “affected person” issues. (Appellees’ Br. 57-

58.) However, the TCEQ cited that case for various propositions—

principally, that “the APA, interpreting existing law, supports the proposi-

tion that the Order must [be] reviewed under the substantial evidence

standard.” (Appellant’s Br. 37.) This is a general interpretation of the

statute, and is not limited to issues of party status.

43

VII. CONCLUSION

Appellant has shown that there are two separate ordering provisions

within the SWDA, and that each has a separate appellate provision. The

proposition that these sections are merged is not supported by the plain

language of the statute, its history, or by case law.

Appellees essentially admit that the order was procedurally and

substantively issued under § 361.188, but then argue that it was also issued

under § 361.272 because those sections were merged. This proposition is

likewise unsupported by statutory interpretation or existing precedents.

Given that this Order was issued under § 361.188, and that the statute

provides for appeal under § 361.321, it follows that appeal under any other

section is beyond the subject-matter jurisdiction of the courts. This conclu-

sion is entirely consistent with emerging precedents in administrative law.

VIII. PRAYER

Appellant prays that the District Court’s denial of its Plea to the

Jurisdiction be reversed, for the reasons stated in its initial brief and this

44

Reply Brief.

Respectfully submitted this 2nd day of March, 2015.

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil

Litigation

JON NIERMANN

Chief, Environmental Protection

Division

/s/ Thomas H. Edwards

THOMAS H. EDWARDS

Assistant Attorney General

Tex. Bar No. 06461800

Thomas.Edwards@TexasAttorney

General.gov

CRAIG J. PRITZLAFF

Assistant Attorney General

Tex. Bar No. 24046658

Craig.Pritzlaff@TexasAttorney

General.gov

45

LINDA SECORD

Assistant Attorney General

Tex. Bar No. 17973400

Linda.Secord@TexasAttorney

General.gov

Office of the Attorney General

Environmental Protection Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Tel: (512) 463-2012

Fax: (512) 320-0911

ATTORNEYS FOR APPELLANT,

THE TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Word

Perfect 13.0 and contains 7,471 words, as determined by the computer

software’s word-count function, excluding the sections of the document

listed in Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Thomas H. Edwards

THOMAS H. EDWARDS

46

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document was

served by electronic service on the following parties or attorneys of record

on the 2nd day of March, 2015, and by email the same day.

Attorneys Parties

John R. Eldridge Exxon Mobil Corporation,

HAYNES AND BOONE, L.L.P. ExxonMobil Oil Corporation,

1221 McKinney St., Ste. 2100 Pennzoil-Quaker State Company

Houston TX 77010-2020 and Shell Oil Company

Telephone: (713) 547-2000

Facsimile: (713) 547-2600

John.Eldridge@haynesboone.com

Adam H. Sencenbaugh “

HAYNES AND BOONE, L.L.P.

600 Congress Ave., Ste. 1300

Austin TX 78701-2579

Telephone: (512) 867-8489

Telecopier: (512) 867-8606

Adam.Sencenbaugh@

haynesboone.com

Janessa M. Glenn Cabot Norit Americas, Inc.

R. Steven Morton

MOLTZ MORTON & GLENN, LLP

5113 Southwest Pkwy, Ste. 120

Austin TX 78735-8969

jglenn@mmandg.com

47

John E. Leslie Howard Freilich, d/b/a Quick Stop

JOHN LESLIE * PLLC Brake and Muffler

1216 Florida Dr., Ste. 140

Arlington TX 76015-2393

Tel: (817) 505-1291

Arlingtonlaw@aol.com

Cynthia J. Bishop Baxter Oil Service

C BISHOP LAW PC

P.O. Box 612994

Dallas TX 75261-2994

cbishop@cbishoplaw.com

Paul Craig Laird II Frank Kosar, d/b/a Rite Way

ASHLEY & LAIRD, L.C. Truck Rental

800 W. Airport Fwy., Ste. 880

Irving TX 75062-6274

pcl880@aim.com

George E. Kuehn SBC Holdings, Inc., f/k/a The Stroh

BUTZEL LONG Brewery Company

301 E. Liberty St., Ste 500

Ann Arbor MI 48104-2283

Tel: 734-213-3257

Fax: 734-995-1777

kuehn@butzel.com

/s/ Thomas H. Edwards

THOMAS H. EDWARDS

48

APPENDIX

49

APPENDIX TO APPELLANT’S REPLY BRIEF

TABLE OF CONTENTS

Tab

1 Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws

2230, 2616-64

2 Act of May 24, 1989, 71st Leg., R.S., ch. 703, § 5, 1989 Tex. Gen. Laws

3212, 3216-32

3 Act of June 6, 1990, 71st Leg., 6th C.S., ch. 10, art. 2, §§ 28, 29, 1990

Tex. Gen. Laws 47, 64-80 (amended 1997) (current version at Tex.

Health & Safety Code §§ 361.181-.202, 361.322(a))

TAB 1

71st LEGISLATURE-REGULAR SESSION

CHAPTER 678

H.B. No. 2136

AN ACT

relating to the adoption of a nonsubstantlve revision of the statutes relating to health and safety,

Including conforming amendments, repeals, and penalties.

Be it enacted by the Legislature of the State of Texas:

SECTION 1. ADOPTION OF CODE. The Health and Safety Code is adopted to read

as follows:

HEALTH AND SAFETY CODE

Contents

TITLE 1. GENERAL PROVISIONS

Chapter 1. General Provisions

[Chapters 2-10 reserved for expansion]

TITLE 2. HEALTH

SUBTITLE A. TEXAS DEPARTMENT OF HEALTH

Chapter 11. Organization of Texas Department of Health

Chapter 12. Powers and Duties of Texas Department of Health

Chapter 18. Health Department Hospitals and Respiratory Facilities

[Chapters 14-80 reserved for expansion]

SUBTITLE B. TEXAS DEPARTMENT OF HEALTH PROGRAMS

Chapter 81. Primary Health Care

Chapter 82. Maternal and Infant Health Improvement

Chapter 88. Phenylketonuria and Other Heritable Diseases

Chapter 84. Hypothyroidism

Chapter 85. Chronically Ill and Disabled Children's Services

Chapter 86. Special Senses and Communication Disorders

Chapter 87. Abnormal Si->al Curvature in Children

Chapter 88. Pediculosis of Minors

Chapter 89. Children's Outreach Heart Program

Chapter 40. Epilepsy

Chapter 41. Hemophilia

Chapter 42. Kidney Health Care

Chapter 48. Oral Health Improvement

[Chapters 44-60 reserved for expansion]

SUBTITLE C. INDIGENT HEALTH CARE

Chapter 61. Indigent Health Care and Treatment Act

[Chapters 62-80 reserved for expansion]

SUBTITLE D. PREVENTION, CONTROL, AND REPORTS OF DISEASES

2230

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

[Sections 361.258-361.270 reserved for expansion]

SUBCHAPTER I. ENFORCEMENT; ADMINISTRATIVE ORDERS CONCERNING

. IMMINENT AND SUBSTANTIAL ENDANGERMENT

Sec. 361.271. PERSONS RESPONSIBLE FO-R SOLID WASTE

Sec. 361.272. ADMINISTRATIVE ORDERS CONCERNING IMMINENT AND SUB-

STANTIAL ENDANGERMENT

Sec. 361.273. INJUNCTION AS ALTERNATIVE TO ADMINISTRATIVE ORDER

Sec. 361.274. NO PRIOR NOTICE CONCERNING ADMINISTRATIVE ORDER

Sec. 361.275. DEFENSES

Sec. 361.276. APPORTIONMENT OF LIABILITY

Sec. 361.277. JUDGMENT BY STATE AGAINST NONSETTLING PARTY; ACTION

FOR CONTRIBUTION BY NONSETTLING PARTY

Sec. 361.278. LIABILITY OF ENGINEER OR CONTRACTOR

Sec. 361.279. CONTRACTS WITH STATE

Sec. 361.280. REMEDIES CUMULATIVE

[Sections 361.281-361.300 reserved for expansion]

SUBCHAPTER J. ENFORCEMENT; EMERGENCY ORDER;

CORRECTIVE ACTION

Sec. 361.301. EMERGENCY ORDER

Sec. 361.302. ISSUANCE OF ORDER BY COMMISSION

Sec. 361.303. CORRECTIVE ACTION

[Sections 361.304-361.320 reserved for expansion]

SUBCHAPTER K. APPEALS; JOINDER OF PARTIES

Sec. 361.321. APPEALS

Sec. 361.322. APPEAL OF ADMINISTRATIVE ORDER ISSUED UNDER SECTION

361.272; JOINDER OF PARTIES

Sec. 361.323. JOINDER OF PARTIES IN ACTION FILED BY STATE

[Sections 361.324-361.340 reserved for expansion]

SUBCHAPTER L. COST RECOVERY

Sec. 361.341. COST RECOVERY BY STATE

Sec. 361.342. COST RECOVERY BY APPEALING OR CONTESTING PARTY

Sec. 361.343. APPORTIONMENT OF COSTS

Sec. 361.344. COST RECOVERY BY LIABLE PARTY OR THIRD PARTY

Sec. 361.345. CREATION OF RIGHTS

CHAPTER 361. SOLID WASTE DISPOSAL ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 361.001. SHORT TITLE. This chapter may be cited as the Solid Waste Disposal

Act. (V.A,C.S. Art. 4477-7, Sec. 1 (part).)

Sec. 361.002. POLICY. It is this state's policy and the purpose of this chapter to

safeguard the health, welfare, and physical property of the people and to protect the

environment by controlling the management of solid waste, including accounting for

hazardous waste that is generated. (V.A.C.S. Art. 4477-7, Sec. 1 (part).)

Sec. 361.003. DEFINITIONS. Unless the context requires a different definition, in

this chapter:

(1) "Apparent recharge zone" means that recharge zone designated on maps pre-

pared or compiled by, and located in the offices of, the commission.

(2) "Board of health" means the Texas Board of Health.

2616

HEALTH A"i:O SAFETY CODE Ch. 678, § 1

t 361.003

(3) "Class I industrial solid waste" means an industrial solid waste or mixture of

industrial solid waste, including hazardous industrial waste, that because of its concen-

tration or physical or chemical characteristics:

(A) is toxic, corrosive, flammable, a strong sensitizer or irritant, or a generator of

sudden pressure by decomposition, heat, or other means; and

(B) poses or may pose a substantial present or potential danger to human health or

the environment if improperly processed, stored, transported, or otherwise managed.

(4) "Commission" means the Texas Water Commission.

(5) "Commissioner" means the commissioner of health.

(6) "Composting" means the controlled biological decomposition of organic solid

waste under aerobic conditions.

(7) "Department" means the Texas Department of Health.

(8) "Disposal" means the discharging, depositing, injecting, dumping, spilling, leak-

ing, or placing of solid waste or hazardous waste, whether containerized or uncontainer-

ized, into or on land or water so that the solid waste or hazardous waste or any

constituent thereof may be emitted into the air, discharged into surface water or

groundwater, or introduced into the environment in any other manner.

(9) "Executive director" means the executive director of the commission.

(10) "Garbage" means solid waste that is putrescible animal and vegetable waste

materials from the handling, preparation, cooking, or consumption of food, including

waste materials from markets, storage facilities, and the handling and sale of produce

and other food products.

(11) "Hazardous waste" means solid waste identified or listed as a hazardous waste

by the administrator of the United States Environmental Protection Agency under the

federal Solid Waste Disposal Act, as amended by the Resource Conservation and

Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).

(12) "Industrial solid waste" means solid waste resulting from or incidental to a

process of industry or manufacturing, or mining or agricultural operations.

(13) "l..-Ocal government" means:

(A) a county;

(B) a municipality; or

(C) a political subdivision exercising the authority granted under Section 361.165.

(14) "Management" means the systematic control of the activities of generation,

source separation, collection, handling, storage, transportation, processing, treatment,

recovery, or disposal of solid waste.

(15) "Municipal solid ·waste" means solid waste resulting from or incidental to

municipal, community, commercial, institutional, or recreational activities, and includes

garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and

other solid waste other than industrial solid waste.

(16) "Notice of intent to file an application" means the notice filed under Section

361.063.

(17) "Person" means an individual, corporation, organization, government or govern-

mental subdivision or agency, business trust, partnership, association, or any other

legal entity.

(18) "Person affected" means a person who demonstrates that the person 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.

(19) "Processing" means the extraction of materials from or the transfer, volume

reduction, conversion to energy, or other separation and preparation of solid waste for

2617

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

1361.003

reuse or disposal. The term includes the treatment or neutralization of hazardous

waste designed to change the physical, chemical, or biological character or composition

of a hazardous waste so as to neutralize the waste, recover energy or material from the

waste, render the waste nonhazardous or less hazardous, make it safer to transport,

store, or dispose of, or render it amenable for recovery or storage, or reduce its volume.

The term does not include activitieP. concerning those materials exempted by the

administrator of the United States Environmental Protection Agency under the federal

Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act

of 1976, as amended (42 U.S.C. Section 6901 et seq.), unless the commission or

department determines that regulation of the activity under this chapter is necessary to

protect human health or the environment.

(20) "Radioactive waste" means waste that requires specifi..! licensing under Chapter

401 and the rules adopted by the board of health under that law.

(21) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying,

discharging, escaping, leaching, dumping, or disposing into the environment. The term

does not include:

(A) a release that results in an exposure to a person solely within a workplace,

concerning a claim that the person may assert against the person's employer;

(B) an emission from the engine exhaust of a motor vehicle, rolling stock, aircraft,

vessel, or pipeline pumping station engine;

(C) a release of source, by-product, or special nuclear material from a nuclear

incident, as those terms are defined by the Atomic Energy Act of 1954, as amended

(42 U.S.C. Section 2011 et seq.), if the release is subject to requirements concerning

financial protection established by the Nuclear Regulatory Commission under Section

170 of that Act;

(D) for the purposes of Section 104 of the federal Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), or

other response action, a release of source, by-product, or special nuclear material

from a processing site designated under Section 102(a)(l) or 302(a) of the Uranium

Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Sections 7912 and 7942); and

(E) the normal application of fertilizer.

(22) "Remedial action" means an action consistent with a permanent remedy taken

instead of or in addition to a removal action in the event of a release or threatened

release of a hazardous waste into the environment to prevent or minimize the release of

hazardous waste so that the hazardous waste does not mi~ rate to cause an imminent

and substantial danger to present or future public health .,nd safety or the environ·

ment. The term includes:

(A) actions at the location of the release, including storage, confinement, perimeter

protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of

released hazardous waste or contaminated materials, recycling or reuPe, diversion,

destruction, segregation of reactive waste, dredging or excavations, repair or replace-

ment of leaking containers, collection of leachate and runoff, on-site treatment or

incineration, provision of alternate water supplies, and any monitoring reasonably

required to assure that those actions protect the public health and safety or the

environment; and

(B) the costs of permanent relocation of residents, businesses, and community

facilities if the administrator of the United States Environmental Protection Agency

or the executive director determines that, alone or in combination with other mea-

sures, the relocation:

(i) is more cost-effective than and environmentally preferable to the transporta·

tion, storage, treatment, destruction, or secure disposition off-site of hazardous

waste; or

(ii) may otherwise be necessary to protect the public health or safety.

(23) "Removal" includes:

(A) cleaning up or removing released hazardous waste from the environment;

2618

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.003

(B) taking necessary action in the event of the threat of release of hazardous waste

into the environment;

(C) taking necessary act.ion to monitor, assess, and evaluate the release or threat of

release of hazardous waste;

(D) disposing of removed material;

(E) erecting· a security fence or other measure to limit access;

(F) providing alternate water supplies, temporary evacuation, and housing for

threatened individuals not otherwise provided for;

(G) acting under Section 104(b) of th~ federal Comprehensive Environmental Re-

sponse, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.);

(H) providing emergency assistance under the federal Disaster Relief Act of 1974

(42 U.S.C. Section 5121 et seq.); or

(I) taking any other necessary action to prevent, ·,ninimize, or mitigate damage to

the public health and welfare or the environment that may otherwise result from a

release or threat of release.

(24) "Rubbish" means nonputrescible solid waste, excluding ashes, that consists of:

(A) combustible waste materials, including paper, rags, cartons, wood, excelsior,

furniture, rubber, plastics, yard trimmings, leaves, and similar materials; and

(B) noncombustible waste materials, including glass, crockery, tin cans, aluminum

cans, metal furniture, and similar materials that do not burn at ordinary incinerator

temperatures (1,600 to 1,800 degrees Fahrenheit).

(25) "Sanitary landfill" means a controlled area of land on which solid waste is

disposed of in a'!cordance with standards, rules, or orders established by the board of

health or the rummission.

(26) "Sludge" means solid, semisolid, or liquid waste generated from a municipal,

commercial, or industrial wastewater treatment plant, water supply treatment plant, or·

air pollution control facility, excluding the treated effluent from a wastewater treat-

ment plant.

(27) This subdivision expires on delegation of the Resource Conservation and Recov-

ery Act authority to the Railroad Commission of Texas. "Solid waste" means garbage,

rubbish, refuse, sludge from a waste treatment plant, water supply treatment plant, or

air pollution control facility, and other discarded material, including solid, liquid,

semisolid, or contained gaseous material resulting from industrial, municipal, commer-

cial, mining, and agricultural operations and from community and institutional activi-

ties. The term does not include:

(A) solid or dissolved material in domestic sewage, or solid or dissolved material in

irrigation return flows, or industrial discharges subject to regulation by permit issued

under Chapter 26, Water Code;

(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used

to fill land if the object of the fill is to make the land suitable for the construction of

surface improvements; or

(C) waste materials that result from activities associated with the exploration,

development, or production of oil or gas or geothermal resources and other substance

or material regulated by the Railroad Commission of Texas under Section 91.101,

Natural Resources Code, unless the waste, substance, or material results from

activities associated with gasoline plants, natural gas or natural gas liquids process-

ing plants, pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by the administrator of the United States Environmental Protection

Agency under the federal Solid Waste Disposal Act, as amended by the Resource

Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.).

(28) This subdivision is effective on delegation of the Resource Conservation and

Recovery Act authority to the Railroad Commission of Texas. "Solid waste" means

garbage, rubbish, refuse, sludge from a waste treatment plant, water supply treatment

plant, or air pollution control facility, and other discarded material, including solid,

2619

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

1381.003

liquid, semisolid, .or contained gaseous material resulting from industrial, municipal,

commercial, mining, and agricultural operations and from community and institutional

activities. The term does not include:

(A) solid or dissolved material in ,domestic sewage, or solid or dissolved material in

irrigation return flows, or industrial discharges subject to regulation by permit issued

under Chapter 26, Water Code;

(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used

to fill land if the object of the fill is to make the land suitable for the construction of

surface improvements; or

(C) waste materials that result from activities associated with the exploration,

development, or production of oil or gas or geothermal resources and other substance

or material regulated by the Railroad Commission of Texas under Section 91.101,

Natural Resources Code.

(29) "Solid waste facility" means all contiguous land, including structures, appurte-

nances, and other improvements on the land, used for processing, storing, or disposing

of solid waste. The term includes a publicly or privately owned solid waste facility

consisting of several processing, storage, or disposal operational units such as one or

more landfills, surface impoundments, or a combination of units.

(30) "Solid waste technician" means an individual who is trained in the practical

aspects of the design, operation, and maintenance of a solid waste facility in accordance

with standards, rules, or orders established by the board of health or commission.

(31) "Storage" means the temporary holding of solid waste, after which the solid

waste is processed, disposed of, or stored elsewhere. (V.A.C.S. Art. 4477-7, Sec. 2

(part).) .

[Sections 361.004-361.010 reserved for expansion]

SUBCHAPTER B. POWERS AND DUTIES OF TEXAS DEPARTMENT OF HEALTH

AND TEXAS WATER COMMISSION

Sec. 361.011. DEPARTMENT'S JURISDICTION: MUNICIPAL SOLID WASTE. (a)

The department is responsible for the management of municipal solid waste, excluding

hazardous municipal waste, and shall coordinate municipal solid waste activities, exclud-

ing activities concerning hazardous municipal waste.

(b) The board of health shall guide the department in its mana'gement of municipal solid

waste, excluding hazardous municipal waste.

(c) 'l'he department shall accomplish the purposes of this chapter by controlling all

aspects of the management of municipal solid waste, excluding management of hazardous

municipal waste, by all practical and economically feasible methods consistent with its

powers and duties under this chapter and other law.

(d) The department has the powers and duties specifically prescribed by this chapter

and all other powers necessary or convenient to carry out its responsibilities under this

chapter.

(e) In matters under the department's jurisdiction, the department shall consult with:

(1) the commission concerning water pollution control and water quality aspects; and

(2) the Texas Air Control Board concerning air pollution control and ambient air

quality aspects. (V.A.C.S. Art. 4477-7, Sec. 3(a).) ·

Sec. 361.012. DEPARTMENT'S JURISDICTION: MUNICIPAL SOLID WASTE

AND INDUSTRIAL SOLID WASTE. When both municipal solid waste and industrial

solid waste, except Class I industrial solid waste that is not routinely collected with

municipal solid waste and hazardous waste, are involved in any activity of management of

solid waste, the department has jurisdiction over the activity. (V.A.C.S. Art. 4477-7, Sec.

3(c) (part).) ,,

2620

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.018

Sec. 361.013. SOLID WASTE FACILITY FEE. (a) The department shall charge an

annual fee for each solid waste facility authorized by the department to be operated or

maintained under this chapter.

(b) The board of health shall adopt fees according to a schedule in which the amount of

the fees is reasonably related to one or more of the following factors:

(1) the population served by the facility;

(2) the volume of waste handled by the facility; or

(3) the type and size of the facility.

(c) The board of health shall set the amount of fees under this section and Sections

361.014 and 361.065 to collect enough revenue to meet the expenses of performing the

solid waste management, control, and permit duties of the department.

(d) The fees collected under this section shall be deposited to the credit of the general

revenue fund. (V.A.C.S. Art. 4477-7, Secs. 4(k)(2), (4).)

Sec. 361.014. SOLID WASTE TRANSPORTATION FEE. (a) The department shall

charge an annual fee to transporters of solid waste who are required to register with the

department by rule adopted under this chapter.

(b) The board of health by rule shall adopt fees according to a schedule in which the

amount of the fees is reasonably related to:

(1) the volume or the type of waste transported; or

(2) both the volume and type of waste.

(c) The board of health shall set the amount of the fees under this section and Sections

361.013 and 361.065 to collect enough revenue to meet the expenses of performing the

solid waste management, control, and permit duties of the department. (V.A.C.S. Art.

4477-7, Secs. 4(k)(3), (4) (part).)

Sec. 361.015. DEPARTMENT'S JURISDICTION: RADIOACTIVE WASTE. The de-

partment is the state agency under Chapter 401 that regulates radioactive waste activities

not preemptively regulated by the federal government. (V.A.C.S. Art. 4477-7, Sec. 3(d)

(part).)

Sec. 361.016. MEMORANDUM OF UNDERSTANDING BY BOARD OF HEALTH.

The board of health by rule shall adopt:

(1) any memorandum of understanding between the department and any other state

agency; and

(2) any revision of a memorandum of understanding. (V.A.C.S. Art. 4477-7, Sec.

3(i).)

Sec. 361.017. COMMISSION'S JURISDICTION: INDUSTRIAL SOLID WASTE

AND HAZARDOUS MUNICIPAL WASTE. (a) The commission is responsible for the

management of industrial solid waste and hazardous municipal waste and shall coordinate

industrial solid waste activities and hazardous municipal waste activities.

(b) The commission shall accomplish the purposes of this chapter by controlling all

aspects of the management of industrial solid waste and hazardous municipal waste by all

practical and economically feasible methods consistent with its powers and duties under

this chapter and other law.

(c) The commission has the powers and duties specifically prescribed by this chapter

and all other powers necessary or convenient to carry out its responsibilities under this

chapter.

(d) In matters under the commission's jurisdiction, the commission shall consult with:

(1) the department concerning the public health aspects; and

(2) the Texas Air Control Board concerning the air pollution control and ambient air

quality aspects. (V.A.C.S. Art. 4477-7, Sec. 3(b).)

Sec. 361.018. COMMISSION'S JURISDICTION OVER HAZARDOUS WASTE COM-

PONENTS OF RADIOACTIVE WASTE. (a) The commission has the powers under this

chapter necessary or convenient to carry out its responsibilities concerning the regulation

2621

Ch. 678, § 1 7lst LEGISLATURE-REGULAR SESSION

1381.018

of the management of hazardous waste components of radioactive waste under the

department's jurisdiction.

(b) The commission shall consult with the department concerning regulation and

management under this section.

(c) The commission may not adopt rules or engage in management activities under this

section that conflict with state or federal laws and rules concerning the regulation of

radioactive waste. (V.A.C.S. Art. 4477-7, Sec. 3(d) (part).)

Sec. 361.019. APPROVAL BY APPROPRIATE STATE AGENCY IF MIXING CER·

TAIN WASTES. (a) Class I industrial solid waste and hazardous waste may be accepted in

a municipal solid waste facility if authorized in writing by the department with the

written approval of the commission.

(b) Solid waste under the department's jurisdiction may be accepted in an industrial

solid waste facility if authorized in writing by the commission with the written approval

of the department. (V.A.C.S. Art. 4477-7, Sec. B(c) (part).)

Sec. 361.020. STATE SOLID WASTE PLANS. (a) The department and the commission

are each authorized to develop a state solid waste plan for solid waste under their

respective jurisdictions and the state agencies shall coordinate the solid waste plans.

(b) In developing a solid waste plan for solid waste under its jurisdiction, the depart-

ment shall consider the preference of municipal solid waste management methods under

Section 36!.022.

(c) Before the department or the commission adopts its solid waste plan or makes

significant amendments to the plan, the Texas Air Control Board must have the opportu-

nity to comment and make recommendations on the proposed plan or amendments and

shall be given such reasonable time to do so as specified by the agency. (V.A.C.S. Art.

4477-7, Sec. 4(b).)

Sec. 361.021. INTERAGENCY COORDINATION COUNCIL. (a) The interagency

coordination council shall coordinate the activities of its member agencies concerning the

regulation of solid waste and solid waste management facilities and the enforcement of

the applicable solid waste laws and rules.

(b) The council is composed of the executive head, or the executive head's designated

representative, of the following agencies:

(1) the commission;

(2) the department;

(3) the Texas Air Control Board; and

(4) the Railroad Commission of Texas.

(c) The commission's representative is the council chairman.

(d) The council shall meet at least quarterly to review the solid waste regulatory and

enforcement activities of the previous quarter and coordinate planned activities in the

interest of efficiency and cooperation, including:

(1) the consideration of the use of waste exchange programs;

(2) the establishment of a clearinghouse for scientific and engineering information

concerning hazardous waste management;

(3) the coordination of hazardous waste research and development activities;

(4) the coordination and development of consistent agency rules relevant to the

regulation of hazardous waste activities;

(5) the evaluation of means to assist small quantity hazardous waste generators and

~ffected communities in the effective and safe management an.:: tiisposal of their

regulated waste;

(6) the assessment of any preapplication public interactions with applicants to evalu-

ate their effectiveness and to consider developing rules to incorporate those activities if

appropriate;

2622

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.023

(7) the consideration of the use of incentives to er.courage waste minimization and

reusing and recycling waste, and the use of resource recovery and detoxification

equipment; and '

(8) the evaluation of the feasibility of household hazardous waste collection and

disposal programs.

(e) The chairman shall prepare a report summarizing each quarterly meeting. The

report shall be submitted for approval by a majority of agencies represented on the

council. The report is a public document. (V.A.C.S. Art. 4477-7, Secs. 8(g)(l), (2).)

Sec. 861.022. PUBLIC POLICY CONCERNING MUNICIPAL SOLID WASTE AND

SLUDGE. (a) To protect the public health and environment, it is the state's public policy

that, in generating, treating, storing, and disposing of municipal solid waste or municipal

sludge, the methods listed under Subsections (b) and (c) are preferred to the extent

economically and technologically feasible and considering the appropriateness of the

method to the type of solid waste material or sludge generated, treated, disposed of, or

stored.

(b) For municipal solid waste, not including sludge, the following methods are pre-

ferred, in the order listed:

(1) minimization of waste produ1..tion;

(2) reuse or recycling of waste;

(8) treatment to destroy or reprocess waste to recover energy or other beneficial

resources if the treatment does not threaten public health, safety, or the environment;

or

(4) land disposal.

(c) For municipal sludge, the following methods are preferred, in the order listed:

(1) minimization of sludge production and concentrations of heavy metals and other

toxins in sludge;

(2) treatment of sludge to reduce pathogens and recover energy, produce beneficial

by-products, or reduce the quantity of sludge;

(8) marketing and distribution of sludge and sludge products if the marketing and

distribution do not threaten public health, safety, or the environment;

(4) applying sludge to land for beneficial use;

(5) land treatment; or

(6) landfilling.

(d) In adopting rules to implement public policy concerning municipal solid waste

management, the board of health shall consider the preference of municipal solid waste

management methods under this section. (V.A.C.S. Art. 4477-7, Secs. 8(e)(8), (4); 4(c)

(part).)

Sec. 861.028. PUBLIC POLICY CONCERNING HAZARDOUS WASTE. (a) To pro-

tect the public health and environment, it is the state's public policy that, in generating,

treating, storing, and disposing of hazardous waste, the following methods are preferred

to the extent economically and technologically feasible, in the order listed:

(1) minimization of waste production;

(2) reuse or recycling of waste, or both;

(8) treatment to destroy hazardous characteristics;

(4) treatment to reduce hazardous characteristics;

(5) underground injection; and

(6) land disposal.

(b) Under Subsection (a)(8), on-site destruction is preferred, but it shall be evaluated in

the context of other relevant factors such as transportation hazard, distribution of risk,

quality of destruction, operator capability, and site suitability. (V.A.C.S. Art. 4477-7,

Secs. 8(e)(l), (2).)

2623

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

I 381.024

Sec. 361.024. RULES AND STANDARDS. (a) The board of health and the commission

may each adopt rules consistent with this chapter and establish minimum standards of

operation for the management and control of the solid waste under their respective

jurisdictions under this chapter.

(b) In developing rules concerning hazardous waste, the commission shall consult with

the State Soil and Water Conservation Board, the Bureau of Economic Geology of The

University of Texas at Austin, and other appropriate state sources.

(c) The minimum standards set by the commission for on-site storage of hazardous

waste must be at least the minimum standards set by the manufacturer of the chemical.

(d) Rules adopted by the commission under Section 361.036 and Sections

361.097-361.108 for solid waste facilities may differ according to the type or hazard of

hazardous waste managed and the type of waste management method used. (V.A.C.S.

Art. 4477-7, Sec. 4(c) (part).)

· Sec. 361.025. EXEMPT ACTIVITIES. (a) The commission and the Railroad Commis·

sion of Texas shall jointly prepare an exclusive list of activities that are associated with oil

and gas exploration, development, and production and are therefore exempt from regula·

tion under this chapter.

(b) 'lhe list shall be adopted by rule and amended as necessary. (V.A.C.S. Art. 4477-7,

Sec. 3(f) (part).)

Sec. 361.026. ASSISTANCE PROVIDED BY DEPARTMENT AND COMMISSION.

(a) The department and the commission may individually or jointly:

(1) provide educational, advisory, and technical services concerning solid waste

management to other state agencies, regional planning agencies, local governments,

special districts, institutions, and individuals; and

(2) assist other state agencies, regional planning agencies, local governments, special

districts, and institutions in acquiring federal grants for:

(A) the development of solid waste facilities and management programs; and

(B) research to improve solid waste management.

(b) The department or the commission individually may engage in the programs and

activities under this section only as the participation by it concerns the management and

control of the solid waste under its jurisdiction.

(c) If the department and the commission do not participate jointly, each shall coor·

dinate efforts undertaken individually so that separate but similar programs and activities

are compatible. (V.A.C.S. Art. 4477-7, Sec. 4(h) (part).)

Sec. 361.027. TRAINING OF SOLID WASTE TECHNICIANS. (a) The department

and the commission may each:

(1) develop a program to train solid waste technicians to improve the competency of

those technicians; and

(2) issu~ letters of competency.

(b) The owner or operator of a solid waste facility is encouraged to employ as site

manager a solid waste technician holding a letter of competency from the appropriate

agency.

(c) The department and the commission may each:

(1) prescribe standards of training required for the program;

(2) determine the duration of the letter of competency;

(3) award one or more categories of letters of competency with each category

reflecting a different degree of training or skill;

(4) require a reasonable, nonrefundable fee, in an amount determined from time to

time. by the agency, to be paid by participants, deposited to the credit of the general

revenue fund, and used to administer the program;

(5) extend or renew letters of competency issued by the agency; and

2624

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.031

(6) withdraw a letter of competency for good cause, which may include a violation of

this chapter or a rule of the agency concerning the technician's duties and responsibili-

ties. (V.A.C.S. Art. 4477-7, Sec. 4(g).)

Sec. 361.028. INDUSTRIAL SOLID AND HAZARDOUS WASTE MATERIALS EX·

CHANGE. (a) The commission shall establish an industrial solid and hazardous waste

materials exchange that provides for the exchange, between interested persons, of

information concerning:

(1) particular quantities of industrial solid or hazardous waste available in this state

for recovery; .

(2) persons interested in acquiring certain types of industrial solid or hazardous

waste for purposes of recovery; and

(3) methods for the treatment and recovery of industrbl solid or hazardous waste.

(b) The industrial solid and hazardous waste materials exchange may be operated under

one or more reciprocity agreements providing for the exchange of information described

by Subsection (a) for similar information from a program operated in another state.

(c) The commission may ~1ntract for a private person or public entity to establish or

operate the industrial solid and hazardous waste materials exchange.

(d) The commission may prescribe rules concerning the establishment and operation of

the industrial solid and hazardous waste exchange, including the setting of a necessary

subscription fee to offset the cost of participation in the program.

(e) The commission may seek grants and contract support from federal and other

sources to the extent possible and may accept gifts to support its purposes and programs.

(V.A.C.S. Art. 4477-7, Sec. 4A, as added by Ch. 139, Acts 70th Leg., Reg. Sess., 1987.)

Sec. 361.029. COLLECTION AND DISPOSAL OF HOUSEHOLD MATERIALS

THAT COULD BE CLASSIFIED AS HAZARDOUS WASTE. (a) The board of health and

the commission shall provide by rule for interested persons to engage in activities that

involve the collection and disposal of household materials that could be classified as

hazardous waste.

(b) The rules must specify the necessary requirements concerning the training of

persons involved in the collection and disposal of those household materials.

(c) A person is not liable for damages as a result of any act or omission in the course of

advertising, promoting, or distributing educational materials concerning the collection or

disposal of those household materials in accordance with the rules. This subsection does

not preclude liability for damages as a result of gross negligence of or intentional

misconduct by the person. (V.A.C.S. Art. 4477-7, Sec. 4(n).)

Sec. 361.030. FEDERAL FUNDS. The department or commission may individually or

jointly accept funds from the federal government for purposes concerning solid waste

management and spend money received from the federal government for those purposes

in the manner prescribed by law and in accordance with agreements as are necessary and

appropriate between the federal government and the agency. (V.A.C.S. Art. 4477-7, Sec.

4(h) (part).)

Sec. 361.031. FINANCIAL ASSISTANCE TO LOCAL GOVERNMENTS. (a)-The de-

partment and the commission may administer and spend state funds provided to them by

legislative appropriations, or otherwise, to make grants to local governments for:

(1) solid waste planning;

(2) installation of solid waste facilities; and

(3) administration of solid waste programs.

(b) The grants made under this chapter shall be distributed in a manner determined by

the state agency to which the appropriation is made.

(c) The amount of financial assistance granted by the state through the department or

commission to a local government under this chapter must be matched by local govern·

ment funds at least in equal amounts. (V.A.C.S. Art. 4477-7, Sec. 4(i).)

2625

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

1361.032

Sec. 361.032. INSPECTIONS; RIGHT OF ENTRY. (a) The department and the com-

mission are each authorized to inspect and approve solid waste facilities used or proposed

to be used to store, process, or dispose of the solid waste under the agency's jurisdiction.

(b) Agents or employees of the department, the commission, or local governments have

the right to enter at any reasonable time public or private property in the govornmental

entity's jurisdiction, including a municipality's extraterritorial jurisdiction, to inspect and

investigate conditions concerning solid waste management and control.

(c) Agents or employees may not enter private property with management in residence

without notifying the management, or the person in charge at the time, of their presence

and presenting proper credentials.

(d) Agents or employees inspecting an establishment shall observe the establishment's

rules on safety, internal security, and fire protection. (V.A.C.S. Art. 4477-7, Secs. 4(d),

7(a).)

Sec. 361.033. INSPECTIONS REQUIRED BY ENVIRONMENTAL PROTECTION

AGENCY. (a) The commission shall inspect regulated hazardous waste management and

disposal facilities periodically as required by the United States Environmental Protection

Agency under the federal Solid Waste Disposal Act, as amended by the Resource

Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).

(b) In supplementing the inspections under Subsection (a), the commission shall give

priority to inspecting and reinspecting those facilities, including generators, considered

most likely to be in noncompliance or most likely to pose an environmental or public

health threat, regardless of whether the facilities are characterized as major or non-major

facilities.

(c) The commission may randomly perform Jess comprehensive checks of facilities to

supplement the more comprehensive inspections required by the United States Environ-

mental Protection Agency. (V.A.C.S. Art. 4477-7, Sec. 7(c).)

Sec. 361.034. REPORTS. (a) The commission shall submit a report to the presiding

officers of the legislature and the governor not later than January 1 of each odd-num-

bered year. The report must include:

(1) a summary of a performance report of the imposed hazardous waste permit and

disposal fees, if the fees are approved by the legislature, and related activities to

determine the appropriateness of the fee structure;

(2) an evaluation of progress made in accomplishing the state's public policy concern-

ing the preference of waste management methods under Section 361.023; and

(3) projections for three years from the due date of the report of the volume of waste

by type of waste, disposition of waste, and remaining waste disposal capacity.

(b) To develop the reports required under Subsection (a), the commission shall adopt

rules requiring a person who generates, stores, treats, or disposes of hazardous waste to

submit annually to the commission a report detailing projections of waste volume,

disposition, and remaining capacity, concerning each facility owned or operated by the

person. The report required under this subsection shall be submitted to the commission

by March 1 of each year. (V.A.C.S. Art. 4477-7, Sec. 3(h) (part).)

Sec. 361.035. RECORDS AND REPORTS; DISPOSAL OF HAZARDOUS WASTE. (a)

The commission by rule shall require operators of solid waste facilities for disposal of

hazardous waste to maintain records and to submit to the commission reports necessary

for the commission to determine the amount of hazardous waste disposal.

(b) The commission by rule shall establish the date on which a report required by this

section is to be submitted. (V.A.C.S. Art. 4477-7, Sec. 13a.)

Sec. 36~.036. RECORDS AND MANIFESTS REQUIRED; CLASS I INDUSTRIAL

SOLID WASTE OR HAZARDOUS WASTE. The commission by rule shall require a

person who generates, transports, processes, stores, or disposes of Class I industrial solid

waste or hazardous waste to provide recordkeeping and use a manifest or other appropri-

ate system to assure that the waste is transported to a processing, storage, or disposal

facility permitted or otherwise authorized for that purpose. (V.A.C.S. Art. 4477-7, Sec.

4(c) (part).)

2626

HEALTH AND SAFETY CODE Ch. 678, § 1

1361.062

Sec. 861.087. ACCESS TO HAZARDOUS WASTE RECORDS. (a) Authorized agents

or employees of the commission have access to and may examine and copy during regular

business hours any records pertaining to hazardous waste management and control.

(b) Except as provided by this subsection, records copied under Subsection (a) are public

records. If the owner of the records shows to the satisfaction of the executive director

that the records would divulge trade secrets if made public, the commission shall consider

the copied records confidential.

(c) Subsection (b) does not require the commission to consider the composition or

characteristics of solid waste being processed, stored, disposed of, or otherwise handled to

be held confidential. (V.A.C.S. Art. 4477-7, Secs. 7(b), (d).)

Sec. 861.088. ANNUAL INSPECTION REPORT. (a) In January of each year, the

commission shall publish an annual inspection report that:

(1) summarizes the commission's inspection strategy and the results of inspections

conducted during the previous fiscal year; and

(2) lists each hazardous waste treatment, storage, and disposal facility not inspected.

(b) The report must identify each hazardous waste facility inspected and include a list

of:

(1) each facility that is in compliance with hazardous waste regulations, including

each facility with an exemplary record of compliance over the preceding three years;

(2) each facility that has only minor or clerical violations; and

(8) each facility that has substantive, nonclerical violations, including each facility

that has been adjudicated during the preceding three years to have committed substan-

tive, nonclerical violations resulting in an actual release of hazardous waste that

presented an imminent and substantial endangerment to the pubJir. health and safety or

the environment.

(c) The report must identify the substantive, nonclerical violations and either summa-

rize correcti\'e actions or describe the status of unNsolved violations.

(d) The report shall be submitted to the governor, lieutenant governor, and speaker of

th~ house. The commission shall provide notice of the report's availability by publishing

notice in the Texas Register. (V.A.C.S. Art. 4477-7, Secs. 7(e), (f), (g).)

Sec. 861.089. CONSTRUCTION OF OTHER LAWS. Except as specifically provided

by this chapter, this chapter does not diminish or limit the authority of the department,

the commission, the Texas Air Control Board, or a local government in performing the

powers, functions, and duties vested in those governmental entities by other law.

(V.A.C.S. Art. 4477-7, Sec. 14.)

[Sections 861.040-861.060 reserved for expansion]

SUBCHAPTER C. PERMITS

Sec. 861.061. PERMITS; SOLID WASTE FACILITY. Except as provided by Section

861.090 with respect to certain industrial solid waste, the department and the commission

may each require and issue permits authorizing and governing the construction, opera-

tion, and maintenance of the solid waste facilities used to store,_l?rocess, or dispose of the

solid waste over which it has jurisdiction under this chapter. (V.A.C.S. Art. 4477-7, Sec.

4(e) (part).)

Sec. 861.062. COMPATIBILITY WITH COUNTY'S PLAN. (a) Before the department

issues a permit to construct, operate, or maintain a solid waste facility to process, store,

or dispose of solid waste in a county that has a local solid waste management plan

approved by the board of health under Chapter 868 (Comprehensive Municipal Solid

Waste Management, Resource Recovery, and Conservation Act), the department must

consider whether the solid waste facility and the proposed site for the facility are

compatible with the county'n approved local solid waste management plan.

(b) Until a local solid waste management plan is approved by the board of health and

adopted by rule, the department may not consider the plan and its contents in the review

of an application for a solid waste facility permit. (V.A.C.S. Art. 4477-7, Sec. 4(o).)

... 2627

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

1381.063

Sec. 361.063. PREAPPLICATION J,OCAL REVIEW COMMITTEE PROCESS. (a)

The department and the commission shall encourage applicants for solid waste facilities

under the jurisdiction of the department or for hazardous waste management facilities to

enter into agreements with affected persons to resolve issues of concern. During this

process, persons are encouraged to identify issues of concern and work with the applicant

to resolve those issues.

(b) The l\greement shall be made through participation in a local review committee

process that includes a good faith effort to identify issues of concern, describe them to

the applicant, and attempt to resolve those issues before the hearing on the permit

application begins. A person is not required to be a local review committee member to

participate in a local review committee process.

(c) If an applicant decides to participate in a local review committee process, the

applicant must file with the department or commission, as appropriate, a notice of intent

to file an application, setting forth the proposed location and type of hazardous waste

management facility. A copy of the notice shall be delivered to the county judge of the

county in which the facility is to be located. In addition, if the proposed facility is to be

located in a municipality or the extraterritorial jurisdiction of a municipality, a copy of the

notice shall be delivered to the mayor of the municipality. The filing of the notice with

the department or commission, as appropriate, initiates the preapplication review process.

(d) Not later than the 15th day after the date the notice of intent is filed under

Subsection (c), the local review committee shall be appointed. The board of health and

commission shall adopt rules concerning the composition and appointment of a local

review committee.

(e) The local review committee shall meet not later than the 21st day after the date the

notice of intent is filed under Subsection (c). The preapplication review process must

continue for 90 days unless the process is shortened or lengthened by agreement between

the applicant and the local review committee.

(f) The commission, as appropriate, may award to a person, other than the applicant,

who has participated in the local review committee process under this section concerning

an application for a hazardous waste management facility all or a part of the person's

reasonable costs for technical studies and reports and expert witnesses associated with

the presentation of evidence at the public hearing concerning issues that are raised by the

person in the local review committee process and that are unresolved at the beginning of

the hearing on the permit application. The total amount of awards granted to all persons

under this subsection concerning an application may not exceed $25,000. In determining

the appropriateness of the award, the commission shall consider whether:

(1) the evidence or analysis provided by the studies, reports, and witnesses is

significant to the evaluation of the application;

(2) the evidence or analysis would otherwise not have been provided in the proceed-

ing; and

(3) the local review committee was established in accordance with commission rules.

(g) Except as provided by Subsection (k), if an applicant has not entered into a local

review committee process, the commission, in determining the appropriateness of an

award of costs under Subsection (f), shall waive any requirement that the person affected

has participated in a local review committee process.

(h) Except as provided by Subsection (k), costs awarded by the commission under

Subsection (f) are assessed against the applicant. Rules shall be adopted for the award of

those costs. Judicial review of an award of costs is under the substantial evidence rule as

provided by the Administrative Procedure and Texas Register Act (Article 6252-13a,

Vernon's Texas Civil Statutes).

(i) A local review committee shall:

(1) interact with the applicant in a structured manner during the preapplication

review stage of the permitting process and, if necessary, during the technical review

stage of the permitting process to raise and attempt to resolve both technical and

nontechnical issues of concern; and

2628

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.067

(2) produce a fact-finding report docu~enting resolved and unresolved issues and

unanswered ques~ions.

(j) The appli<;ant inust submit the report required under Subsection (i)(2) to the agency

with its permit application.

(k) If an applicant, after reasonable efforts to determine if local opposition exists to its

proposed facility, including discussing the proposed facility with the county judge and

other elected officials, does not enter into a local review committee process because of no

apparent opposition or, because a local review committee is not established despite the

applicant's good faith efforts, costs may not be assessed against the applicant under

Subsection (f).

(l ) This section does not apply to:

(1) a solid waste or hazardous waste management facility for which an application

was filed, or that was authorized to operate, as of September 1, 1985;

(2) amendments to applications that were pending on September 1, 1987; or .

. (8) changes in waste storage or processing operations at existing sites at which waste

management activities were being conducted on September 1, 1987. (V.A.C.S. Art.

4477-7, Sec. 4(e)(12).)

Sec. 861.064. PERMIT APPLICATION FORM AND PROCEDURES. If the depart-

ment or the commission exercises the power to issue permits for solid waste facilities

under this subchapter, the agency exercising the power, to the extent not otherwise

provided by this subchapter, shall prescribe:

(1) the form of and reasonable requirements for the permit application; and

(2) the procedures for processing the application. (V.A.C.S. Art. 4477-7, Sec. 4(e)

(part).)

Sec. 861.065. PERMIT APPLICATION FEE. (a) The department shall charge a fee

for the submission to and review by the department of a permit application under this

subchapter. ·

(b) The board of health by rule shall adopt fees according to a schedule in which the

amount of the fees is reasonably related to one or more of the following:

(1) the population to be served by the facility;

(2) the volume of waste to be handled by the facility;

(8) the type and size of the facility; or

(4) the cost of the permit application review.

(c) The board of health shall set the amount of the fees under this section and Sections

861.018 and 861.014 to collect enough revenue to meet the expenses of performing the

solid waste management, control, and permit duties of the department.

(d) The fees collected under this section shall be deposited to the credit of the general

revenue fund. (V.A.C.S. Art. 4477-7, Secs. 4(k)(l), (4).)

Sec. 861.066. STJBMISSION OF ADMINISTRATIVELY COMPLETE PERMIT AP-

PLICATION. (a) An applicant must submit any portion of an application that the

department or the commission determines is necessary to make the application administra-

tively complete not later than the 270th day after the applicant receives notice from the

department or the commission that the additional information or material is needed.

(b) If an applicant does not submit an administratively complete application as required

by this section, the application is considered withdrawn, unless there are extenuating

circumstances. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(B) (part), as amended by Ch. 299, Acts

70th Leg., Reg. Bess., 1987.)

Sec. 861.067. REVIEW OF PERMIT APPLICATION BY OTHER GOVERNMENTAL

ENTITIES. (a) If the department or the commission determines that a permit application

submitted to it is administratively complete, it shall mail a copy of the application or a

summary of its contents to:

(1) the Texas Air Control Board;

2629

Ch. 678, §. 1 71st LEGISLATURE-REGULAR SESSION

1311.087

(2) the other state agency;

(3) the mayor and health authority of a municipality in whose territorial limits or

extraterritorial jurisdiction the solid waste facility is located; and 1 •

(4) the county judge and the health authority of the county in which the facility is

located.

(b) A governmental entity to whom the information is mailed shall have a reasonable

time, as prescribed by the state agency to which the application was originally submitted,

to present comments and recommendations on the permit application before the agency

acts on the application. (V.A.C.S. Art. 4477-7, Sec. 4(e)(l).)

Sec. 361.068. WHEN APPLICATION IS ADMINISTRATIVELY COMPLETE. A per-

mit application is administratively complete when:

(1) a complete permit application form and the report and fees required to be

submitted with a permit application have been submitted to the department or the

commission; and

(2) the permit application is ready for technical review in accordance with the rules of

the board of health or commission. (V.A.C.S. Art. 4477-7, Sec. 2(1).)

Sec. 361.069. DETERMINATION OF LAND USE COMPATIBILITY. The department

or the commission in its discretion may, in processing a permit application, make a

separate determination on the question of land use compatibility, and, if the site location

is acceptable, may at another time consider other technical matters concerning the

application. A public hearing may be held for each determination in accordance with

Section 361.088. (V.A.C.S. Art. 4477-7, Sec. 4(e)(2) (part).)

Sec. 361.070. SOLE PERMIT HEARING. (a) Except for a permit described under

Section 361.071, all participation in the review of a permit application must be through one

agency hearing, which shall be the sole permit hearing.

(b) The department or the commission shall conduct the hearing as the lead agency in

accordance with the division of their jurisdiction. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(i)

(part).)

Sec. 361.071. PERMIT FROM OTHER AGENCIES. The owner or operator of a

hazardous waste or solid waste management facility is not required to obtain a permit

from any agency of the state other than the department or commission to store, process,

treat, dispose of, or destroy solid waste or hazardous waste unless:

(1) a permit is required under the new source review requirements of Part C or D,

Title I, of the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) for a major source

or a major modification; or

(2) a permit is required by the Railroad Commission of Texas under Chapter 27,

Water Code. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(i) (part).)

Sec. 361.072. JOINT RULES OR MEMORANDA OF AGREEMENT WITH DEPART-

MENT OR COMMISSION. (a) The Texas Air Control Board and other agencies that might

otherwise have jurisdiction for permitting hazardous or solid waste facilities shall enter

into joint rules or memoranda of agreement with the department 01· the commission.

(b) The joint rules or memoranda of agreement:

(1) must include the criteria that the Texas Air Control Board or other agency that

might otherwise have jurisdiction may prescribe for use by the lead agency in address-

ing the concerns of the Texas Air Control Board or other agency in the permitting

process; and

(2) shall at a minimum be consistent with the applicable requirements of the United

States Environmental Protection Agency for state ·program authorization under the

federal Solid Waste Disposal Act, as amended by the Resource Conservation and.

Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).

(c) Consistent with Section 361.070, the joint rules or memoranda of agreement must

provide for .the incorporation of provisions in the permits of the department or the

commission for off-site waste management facilities concerning units t'h,at are:

2630

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.073

(1) not otherwise subject to the permitting requirements of the department or

commission; and

(2) subject to the permitting requirements of the Texas Air Control Board or other

relevant agency. .

(d) It is the intent of the legislature that:

(1) to the extent practicable in conformance:with Sections 361.070-861.078, the lead

agency shall defer to the policies, rules, and interpretations of the Texas Air Control

Board on the effect on air quality of the proposed hazardous waste or solid waste

management activities; and

(2) the Texas Air Control Board remain the state's principal authority in matters of

air pollution control. (V.A.C.S. Art. 4477-7, Se~. 4(e)(4)(A)(i) (part), (ii) (part).)

Sec. 361.073. AIR CONTROL BOARD REVIEW OF PERMIT APPLICATION. (a)

Except as otherwise provided by Sections 361.070-861.083, the Texas Air Control Board

shall perform a technical review of the air quality aspects of a permit application for a

solid waste or a hazardous waste management facility concerning the criteria established

under Section 361.072. ' ·

(b) Except for a permit application for a facility that incinerates or burns solid or

hazardous waste, this section does not apply tO an application for:

(1) a hazardous waste management facility that existed on September 11 1987; or

(2) the expansion of a hazardous waste land disposal facility that existed on Septem-

ber 1, 1987.

(c) The Texas Air Control Board shall complete its review under this section and

forward recommendations or proposed permit provisions to the lead agency within the

time established by the lead agency rules for the.completion of technical review of the

application. •

(d) The lead agency shall incorporate into its proposed action all recommendations or

proposed permit provisions submitted by' the Texas Air Control Board, unlP.sa the lead

agency determines that the recommendations or proposed permit provisions are less

stringent than applicable requirements of the United States Environmental Protection

Agency for state program authorization under the federal Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.

Section 6901 et seq.). If the Texas Air Control Board's proposed permit· provisions

conflict with provisions proposed by the lead agency technical staff, the staffs of the two

agencies shall attemp~ to resolve the conflict before the technical review of the application

ends.

(e) If a contested case hearing on a permit application is not held by the lead agency,

the Texas Air Control Board's recommendations or proposed permit provisions shall be

incorporated into the permit issued by the lead agency. If a contested case hearing is

held, the Texas Air Control Board shall develop and present the state's evidence and

testimony concerning the air quality aspects of the application. Any party, including the

lead agency, is entitled to cross-examine any testifying witness of the Texas Air Control

Board.

(f) At the conclusion of the presentation of testimony, the hearing examiner shall give

the Texas Air Control Board at least 30 days in which to submit:

(1) proposed· findings of fact and conclusions' of law; and

(2) if applicable, proposed permit language, concerning the air quality aspects of the

application that relate to the criteria established under Section 361.072.

(g) The hearing examiner and the final decision-makiril body of the lead agency must

accept the information submitted by the Texas Air Control Board under Subsection (f)

unless that body finds that the recommendations of the Texas Air Control Board are not

supported by a preponderance of the evidence.

(h) The Texas Air Control Board may seek judicial review of the air quality aspects of a

final decision of the lea~ agency. Both the lead agency and the Texas Air Control Board

2681

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

1381.073

may enforce the terms of a permit issued by the lead agency concerning air quality.

(V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(ii) (part).)

Sec. 861.074. CERTAIN PERMIT APPLICATIONS NOT AFFECTED. (a) Permit

applications for hazardous waste or solid waste management facilities for which contested

evidentiary hearings have commenced at the Texas Air Control Board before September

1, 1985, or appeals from decisions of the Texas Air Control Board on those applications,

are not affected by Sections 861.072-861.078 and 861.075-861.078.

(b) An applicant may not withdraw a permit application to circumvent the intent of

Subsection (a). (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(ii) (part).)

Sec. 861.075. DELEGATION OF AIR CONTROL BOARD AUTHORITY. The Texas

Air Control Board may delegate to its executive director the powers and duties conferred

on the board under Sections 861.072 and 861.078. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(ii)

(part).)

Sec. 861.076. OTHER STATE AGENCIES' REVIEW OF PERMIT APPLICATION.

(a) An agency other than the Texas Air Control Board may review the lead agency's

proposed action concerning a permit application and determine if its concerns have been

adequately addressed if the agency:

(1) might otherwise have jurisdiction for permitting the facility; and

(2) requested an opportunity to review the lead agency's proposed action.

(b) The other agency may review the lead agency's proposed action:

(1) after the lead agency completes its technical review of the permit application; and

(2) for a period of 20 days after the date on which the lead agency's technical review

period ends.

(c) If the other agency determines that its concerns have not been adequately ad-

dressed, the other agency's sole remedy concerning the permit is to present its concerns

in the permit proceedings of the lead agency.

(d) The other agency is entitled to:

(1) request a hearing;

(2) intervene as a n,atter of law;

(8) seek judicial review; and

(4) enforce each aspect of a lead agency permit concerning the other agency's

jurisdiction. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(iii).)

Sec. 861.077. EXEMPTION OF CERTAIN FACILITIES THAT BURN HAZARDOUS

WASTE. Sections 861.070-861.076 do not apply to a facility that burns hazardous waste

unless the facility is required to obtain a permit for the burning from the commission

under rules adopted by the commission under a state hazardous waste regulatory

program. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(iv).)

Sec. 861.078. MAINTENANCE OF STATE PROGRAM AUTHORIZATION UNDER

FEDERAL LAW. This subchapter does not abridge, modify, or restrict the authority of

the commission to adopt rules under Subchapters B and C, to issue permits and to enforce

the terms and conditions of the permits, concerning hazardous waste management to the

extent necessary for the commission to receive and maintain state program authorization

under Section 8006 of the federal Solid Waste Disposal Act, as amended by the Resource

Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).

(V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(A)(v).)

Sec. 861.079. NOTICE CONCERNING RECEIPT OF PERMIT APPLICATION;

HEARING PROCEDURES. (a) The board of health and the commission by rule shall

establish procedures for public notice and a public hearing under Section 861.080 or

861.081.

(b) To improve the timeliness of notice to the public of a public hearing under Section

861.080 or 861.081, public notice of receipt of the permit application shall be provided at

the time a permit application is administratively complete as determined by the depart-

ment or the commission. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(B) (part).)

2632

HEALTH AND SAFETY CODE Ch. 678, § 1

I 381.083

Sec. 861.080. HEARING CONCERNING PERMIT APPLICATION FOR HAZARD·

OUS INDUSTRIAL SOLID WASTE FACILITY. A hearing on an application for a permit

concerning a hazarqous industrial solid waste facility must include one session held in the

county in which the facility is located. (V.A.C.S. Art. 4477-7, Sec. 4(e)(4)(B) (part).)

Sec. 861.081. NOTICE OF HEARING CONCERNING APPLICATION FOR LAND·

FILL PERMIT. (a) The department shall give public notice of an opportunity for a

hearing on an application for a landfill permit at least once each week for two consecutive

weeks beginning not later than the 14th day from the last day allowed to request the

hearing.

(b) The notice shall be published in the newspaper of the largest general circulation

that is published in the county in which the ·proposed landfill will be located, unless a

newspaper is not published in the county, in which case the notice shall be published in a

),ewspaper of general circulation in the county.

(c) The department shall mail notice to each residence, business, and owner of real

property located within one mile of the proposed landfill listed in the real property records

of the county in which the landfill is sought to be permitted as of the date the department

determines the permit application is administratively complete. The notice must be sent

by certified or registered mail, return receipt requested, and be deposited with the United

States postal service not more than 45 days or less than 80 days before the date of the

hearing.

(d) The department shall presume that the notice requirements under Subsection (c)

have been complied with on the applicant's verification to the department that the

mailings were deposited as required by that subsection unless it is demonstrated by at

least 85 percent of the affected parties that the applicant did not comply with that

subsect;on.

(e) Hearings under this section shall be conducted in accordance with the hearing rules

adopted by the department and the applicable provisions of the Administrative Procedure

and Texas Register Act (Article 6252-18a, Vernon's Texas Civil Statutes). (V.A.C.S. Art.

4477-7, Sec. 4(e)(4)(B), as amended by Ch. 78J, Acts 70th Leg., Reg. Seas., 1987.)

Sec. 861.082. APPLICATION FOR HAZARDOUS WASTE PERMIT; NOTICE AND

HEARING. (a) A person may not process, store, or dispose of hazardous waste without

having first obtained a hazardous waste permit issued by the commission.

(b) On its own motion or the request of a person affected, the commission may hold a

public hearing on an application for a hazardous waste permit in accordance with this

subchapter.

(c) The commission by rule shall establish procedures for public notice and public

hearing.

(d) The commission may include any requirement in the permit for remedial action by

the applicant that the commission determines is necessary to protect the public health and

safety and the environment.

(e) A person who, on or before November 19, 1980, began on-site processing, storing, or

disposing of hazardous waste under this section and who has filed a hazardous waste

permit application in accordance with commission rules may continue to process, store, or

dispose of hazardous waste until the commission apprcves or denies the application,

except as provided by Section 861.110. (V.A.C.S. Art. 4477-7, Sec. 4(f)(2).)

Sec. 861.088. EVIDENCE OF NOTICE OF HEARING. (a) Before the department or

the commission may hear testimony in a contested case, evidence must be placed in the

record to show that proper notice of the hearing was given to affected persons.

(b) If mailed notice to an affected person is required, the departrr.ent, commission, or

other party to the hearing sholl place evidence in the record that notice was mailed to the

affected person's address as i.hown by the appropriate county tax rolls at the time of the

mailing.

(c) The affidavit of the department or commission employee responsible for the mailing

of the notice, attesting that the notice was mailed to the address shown by the tax rolls at

2633

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSION

1381.083

the timi of mailing, is prima facie evidence of proper mailing. (V.A.C.S. Art. 4477-7, Sec.

4(c)(4)(C) (part).)

Sec. 361.084. COMPLIANCE SUMMARIES. (a) The board of health and the commis-

sion each by rule shall establish a procedure to prepare compliance summaries relating to

the applicant's solid waste management activities under each agency's jurisdiction.

(b) TJ..c compliance summaries shall be made available to the applicant and any

interest~d person after the lead agency has completed its technical review ..of the permit

application and before the issuance of the public notice concerning an opportunity for a

hearing on the permit application.

(c) Evidence of compliance or noncompliance by an applicant for a solid waste facility

permit with agency rules, permits, or other orders concerning solid waste management

may be:

(1) offered by a party at a hearing concerning the application; and

(2) admitted into l'Vidence subject to applicable rules of evidence.

(d) The agency shall consider all evidence admitted, including compliance history, in

determining whether to issue, amend, extend, or renew a permit. (V.A.C.S. Art. 4477-7,

Sec. 4(e)(ll).)

Sec. 361.085. FINANCIAL ASSURANCE BY PERMIT APPLICANT. (a) Before a

permit may be issued, amended, extended, or renewed for a solid waste facility to store,

process, or dispose of hazardous waste, the commission shall determine the type or types

of financial assurance that may be given by the applicant to comply with rules adopted by

the commission requiring financial assurance.

(b) Before hazardous waste may be received for storage, processing, or disposal at a

solid waste facility for which a permit is issued, amended, extended, or renewed, the

commission shall require the permit holder to execute the required financial assurance

conditioned on the permit holder's satisfactorily operating and closing the solid waste

facility.

(c) An agency may condition issuance, amendment, extension, or renewal of a permit

for a solid waste facility, other than a solid waste facility for disposal of hazardous waste,

on the permit holder's executing a bond or giving other financial assurance conditioned on

the permit holder's satisfactorily operating and closing the solid waste facility.

(d) The agency to which the application is submitted shall require an assurance of

financial responsibility as may be necessary or desirable consistent with the degree and

duration of risks associated with the processing, storage, or disposal of upecified solid

waste.

(e) Financial requirements established by the agency must at a minimum be consistent

with the federal requirements established under the federal Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.

Section 6901 et seq.).

(f) The department and the commission may each:

(1) receive funds as the beneficiary of a financial assurance arrangement established

under this section for the proper closure of a solid waste management facility; and

(2) spend the funds from the financial assurance arrangement to close the facility.

(g) If liability insurance is required of an applicant, the applicant may not use a claims

made policy as security unless the applicant places in escrow, as provided by the

department or commission, an amount sufficient to pay an additional year of premiums

for renewal of the policy by the state on notice of termination of coverage.

(h) In addition to other forms of financial assurance authorized by rules of the board of

health or commission, the agency may au tho. ize the applicant to use a letter of credit if

the issuing institution or another institution that guarantees payment under the letter is:

(1) a bank chartered by the state or the federal government; and

(2) federally insured and its financial practices are regulated by the state or the

federal government. (V.A.C.S. Art. 4477-7, Sec. 4(e)(5).)

2634

HEALTH AND SAFETY CODE Ch. 678, § 1

1381.090

Sec. 361.086. SEPARATE PERMIT FOR EACH FACILITY. (a) A separate permit is

required for each solid waste facility.

(b) A permit under this subchapter may be issued only to the person in whose name the

application is made and only for the facility described by the permit.

(c) A permit may not be transferred without first giving written notice to and receiving

written approval of the agency that issued the permit. (V.A.C.S. Art. 4477-7, Secs. 4(e)(2)

(part), (7).)

Sec. 361.087. CONTENTS OF PERMIT. A permit issued under this subchapter must

include:

(1) the name and address of each person who owns the land on which the solid waste

facility is located and the person who is or will be the operator or person in charge of

the facility;

(2) a legal description of the land on which the facility is located; and

(3) the terms and conditions on which the permit is issued, including the duration of

the permit. (V.A.C.S. Art. 4477-7, Sec. 4(e)(2) (part).)

Sec. 361.088. PERMIT ISSUANCE, AMENDMENT, EXTENSION, AND RENEWAL:

NOTICE AND HEARING. (a) The department or the commission may amend, extend, or

renew a permit it issues in accordance with reasonable procedures prescribed by the

department or commission, as appropriate.

(b) The procedures prescribed by Section 361.067 for a permit application apply to an

application to amend, extend, or renew a permit.

(c) Before a permit is issued, amended, extended, or renewed, the agency to which the

application is submitted shall provide an opportunity for a hearing to the applicant and

persons affected. The agency may also hold a hearing on its own motion. (V.A.C.S. Art.

4477-7, Secs. 4(e)(3), (4).)

Sec. 361.089. PERMIT AMENDMENT OR REVOCATION; NOTICE AND HEAR·

ING. (a) The department or commission may, for good cause, amend or revoke a permit it

issues for reasons pertaining to public health, air or water pollution, or land use, or for a

violation of this chapter or other applicable laws or rules controlling the management of

solid waste.

(b) Except as provided by Section 361.110, the department or commission shall notify

each governmental entity listed under Section 361.067 and provide an opportunity for a

hearing to the permit holder and persons affected. The department or commission may

also hold a hearing on its own motion.

(c) The board of health and the commission by rule shall establish procedures for public

notice and any public hearing under this section.

(d) Hearings under tltis section shall be conducted in accordance with the hearing rules

adopted by the department or commission and the applicable provisions of t:1e Administra·

tive Procedure and Texas Register Act (Article 6252-lSa, Vernon's Texas .Civil Statutes).

(V.A.C.S. Art. 4477-7, Sec. 4(e)(8).)

Sec. 361.090. REGULATION AND PERMITI'ING OF CERTAIN INDUSTRIAL SOL-

ID WASTE DISPOSAL. (a) The commission may not require a permit under this chapter

for the collection, handling, storage, processing, and disposal of industrial solid waste that

is disposed of within the boundaries of a tract of land that is:

(1) owned or otherwise effectively controlled by the owners or operators of the

particular industrial plant, manufacturing plant, mining operation, or agricultural

operation from which the waste results or is produced; and

(2) located within 50 miles from the plant or operation that is the source of the

industrial solid waste.

(b) This section does not apply to:

(1) waste collected, handled, stored, processed, or disposed of with solid waste from

any other source or sources; or

(2) hazardous waste.

2 Tex.Seu.laws Bd.Vol. 'Bll-21 2635

Ch. 678, § 1 71st LEGISLATURE-REGULAR SESSidN

1361.090

(c) This section does not change or limit any ·authority the 'commission may have

concerning: '

(1) the requirement of permits and the coqtrol of water quality, or otherwise, under

Chapter 26, Water Code; or · · · · ~

(2) the authority under Section 361.303.

(d) The commission may adopt rules under Section 361.024 to control the collection,

handling, storage, processing, and disposal of the industdal solid waste to which this

section applies to protect the property of others, public property and rights-of-way,

groundwater, and other rights requiring protection. .

(e) Th9 commission may require a person who disposeo or plans to dispose of industrial

solid waste and claims to be exempt under this section to submit to the commission

information that is reasonably required to enable the commission to determine if this

section applies to the waste disposal activity. (V.A.C.S. Art. 4477-:-7, Sec. 4(f)(l).)

Sec. 361.091. ENCLOSED CONTAINERS OR VEHICLES; PE~MITS; INSPEC-

TIONS; CRIMINAL PENALTY. (a) A solid waste site or operation permitted as a Type

IV landfill may not accept solid waste that is in a completely enclosed container or

enclosed vehicle unless:

(1) the solid waste is transported on a route approved by the department and

designed to eliminate putrescible, hazardous, or infectious waste;

(2) the solid waste is delivered to the site or rperation on a date and time designated

and approved by the department to eliminate putrescible, hazardous, or infectious

waste; ·

(3) the transporter possesses a special vermit.issued by the department that includes

the approved route, date, and time; and

(4) a department inspector is present to verify that the solid waste is free of

putrescible, hazardous, or infectious waste.

(b) The department may issue the special permit under this section and charge a

reasonable fee to cover the costs of the permit. The board of health may adopt rules of

procedure necessary to carry out the permit program.

(c) The department may employ one or more inspectors and other employees necessary

to inspect and determine if Type IV landfills are free of putrescible, hazardous, or

infectious waste. The department shall pay the compensation and expenses of inspectors

and other necessary employees employed under this subsection, but the holders of .Type

IV landfill permits shall reimburse the department for the compensation and expenses as

provided by this section. ·

(d) The department shall notify each holder of a Type IV landfill permit of the

compensation and expenses that are required annually for the inspection of the landfills.

(e) The department shall hold a public hearing t

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