# Texas Commission on Environmental Quality v. Exxon Mobil Corporation ExxonMobil Oil Corporation Pennzoil-Quaker State Company and Shell Oil Company > Texas Court of Appeals, 3rd District (Austin) · March 2, 2015 URL: https://www.frixlaw.com/law-library/cases/4051463 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** March 2, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4051463 ## Opinion text 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 appli201a-l; 3201a-2; 3201a-2.1; 320la-3; 3201a-4; 3955; 3956; 3957; 3958; 3959; 3959a; 3960; 3961; 3962; 3963; 3964; 3965; 3966; 3967; 3968; 3969; 3970; 3971; 3972; 3972.l; 3972.2; 3972.3; 3972b; 3972c; 4414b; 4414c; 4418f-l; 4418g-2; 4418g-3; 4418h; 4419b-l; 4419b-1.5; 4419b-2; 4419c; 4419g; 4419h; 4420a; 4420b; 4421; 4436; 4436a-2; 4436a-3; 4436a-4; 4436b; 4437; 4437a; 4437b; 4437c; 4437c-1; 4437c-2; 4437d; 4437e; 4437e-1; 4437e-2; 4437e-3; 4437f; 4437f-1; 4437f-2; 4437f-3; 4437g; 4437h; 4438a; 4438b; 4438c; 4438d; 4438e; 4438f; 4442a; 4442c; 4443a; 4446; 4447d; 4447d-1; 4447d-2; 4447e; 4447e-1; 4447e-2; 4447f; 4447i; 4447j; 4447k; 44471; 4447n; 44470; 44470-l; 4447p; 4447q; 4447r; 4447s; 4447t; 4447u; 4447v; 4447w; 4447x; 4447y; 4474; 4475; 4476; 4476-la; 4476-5; 4476-5a; 4476-5b; 4476-5d; 4476-5e; 4476-5f; 4476-5g; 4476-6b; 4476-7; 4476-8; 4476-9; 4476-10; 4476-lOb; 4476-lOc; 4476-11; 4476-18; 4476-13a; 4476-14; 4476-15; 4476-15a; 4476-15b; 4476-15d; 4476-16; 4476a; 4477; 4477c; 4477e; 4477f; 4477-1; 4477-lc; 4477-2; 4477-5; 4477-5a; 4477-5b; 4477-6; 4477-6a; 4477-6b; 4477-7; 4477-7a; 4477-7c; 4477-7d; 4477-7e, as added by Chapters 162, 406, and 810, Ar.ts of the 70th Leg., R.S., 1987; 4477-7f; 4477-8; 4477-Sa; 4477-9a, Articles II and III and Section l .01; 4477-9b; 4477-10; 4477-11; 4477-12; 4477-20; 4477-30; 4477-40; 4477-41; 4477-50; 4477-60; 4477-70; 4477-80; 4478; 4478a; 4479; 4480; 4481; 4482; 4483; 4484; 4485; 4486; 4487; 4488; 4489; 4490; 4491; 4492; 4493; 4493a; 4494; 4494a; 4494b; 4494c; 4494c-l; 4494d; 4494e; 4494f; 4494g; 4494h; 4494i; 4494i-1; 4494j; 4494k; 44941; 4494m; 4494m-1; 4494n; 4494n-1; 4494n-2; 4494n-3; 44940; 4494p; 4494r; 4494r-1; 4494r-2; 4494r-2.1; 4494r-3; 4494r-4; 4494r-5; 4494s; 4494~ 4512.8; 4583; 4583a; 4584; 4585; 4585A; 4586; 4587; 4589; 4590; 4590.1; 4590-2; 4590-4; 4590-5; 4590-6; 4590f; 4590f-1; 4590h; 4596d; 5182b; 5182c; 5221c; 556lcc; 556lc-1; 556lc-2; 5561c-2a; 5561c-3; 6145a; 6145b; 6145c; 8876; 9002; 9013; 9201; 9202; and 9203. (2) Subchapter D, Chapter 76, Parks and Wildlife Code. (3) Chapter 301, Acts of the 70th Legislature, Re~lar Session, 1987 (designated by Vernon's Texas Session Law Service as Article 1528,J-1, but printed in Vernon's Texas Civil Statutes as Article 1527j-1); and Section 9, Chapter 236, Acts of the 70th Legislature, Regular Session, 1987. SECTION 14. LEGISLATIVE INTENT OF NO SUBSTANTIVE CHANGE. This Act is enacted under Article III, Section 43, of the Texas Constitution. This is intended as a recodification only, and no substantive change in the Jaw is intended by this Act. SECTION 15. EFFECTIVE DATE. This Act takes effect September 1, 1989. SECTION 16. EMERGENCY. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule 1s hereby suspended. Passed by the House on April 27, 1989, by a non-record vote; and that the House concurred In Senate amendments to H.B. No. 2136 on May 18, 1989, by a non-record vote; passed by the Senate, with amendments, on May 16, 1989, by a viva-voce vote. Approved June 14, 1989. Effective Sept. 1, 1989. 3165 TAB 2 Ch. 702, § 1 71et LEGISLATURE-REGULAR SESSION (5) the Texas Juvenile Probation Commission; (6) the Texas Department of Human Services; (7) the Texas Department of Corrections; (8) the Texas Employment Commission; (9) the Texas Commission on Alcohol and Drug Abuse,· (10) the Texas Department of Mental Health and Mental Retardation,· and (11) the Texas Department of Health. SECTION 2. The importance of this legislation and the crowded condition of the calendars in both ho [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4051463. Public record. Not legal advice.