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

ACCEPTED

03-14-00718-CV

4288348

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/25/2015 6:42:32 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00718-CV

IN THE COURT OF APPEALS FILED IN

3rd COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS, AUSTIN, TEXAS

AT AUSTIN, TEXAS 2/25/2015 6:42:32 PM

JEFFREY D. KYLE

Clerk

CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD; MICHAEL

MCCALL; WAYNE KNOX; AND THE CITY OF HEMPSTEAD,

Plaintiffs/Appellees,

v.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND

PINTAIL LANDFILL, L.L.C., Defendants/Appellants.

From 201st District Court,

Travis County, Texas

APPELLANTS CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD,

MICHAEL MCCALL, WAYNE KNOX, AND CITY OF HEMPSTEAD’S

BRIEF

KELLY HART & HALLMAN LLP HANCE SCARBOROUGH, LLP

Monica M. Jacobs Terry L. Scarborough

State Bar No. 24007433 State Bar No. 17716000

Diana L. Nichols Michael L. Woodward

State Bar No. 00784682 State Bar No. 21979300

301 Congress Avenue, Suite 2000 V. Blayre Pena

Austin, TX 78701 State Bar No. 24050372

Telephone: (512) 495-6400 Wesley P. McGuffey

Facsimile: (512) 495-6401 State Bar No. 24088023

400 W. 15th Street, Ste. 950

ATTORNEYS FOR THE Austin, TX 78701

CITY OF HEMPSTEAD Telephone: (512) 479-8888

Facsimile: (512) 482-6891

ATTORNEYS FOR APPELLANTS

CITIZENS AGAINST THE LANDFILL

IN HEMPSTEAD, MICHAEL

MCCALL, AND WAYNE KNOX

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 53.2(a), the parties to the

judgment at issue in this appeal are:

Citizens Against the Landfill in Hempstead, Michael McCall, and Wayne Knox

APPELLANTS/PLAINTIFFS

HANCE SCARBOROUGH, LLP

Terry L. Scarborough

Michael L. Woodward

V. Blayre Pena

Wesley P. McGuffey

400 W. 15th Street, Ste. 950

Austin, TX 78701

ATTORNEYS FOR APPELLANTS CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD,

MICHAEL MCCALL, AND WAYNE KNOX

City of Hempstead

APPELLANT/PLAINTIFF

KELLY HART & HALLMAN LLP

Monica M. Jacobs

Diana L. Nichols

301 Congress Avenue, Suite 2000

Austin, Texas 78701

ATTORNEYS FOR APPELLANT, CITY OF HEMPSTEAD

Texas Commission on Environmental Quality

APPELLEE/DEFENDANT

OFFICE OF THE ATTORNEY GENERAL OF TEXAS,

ENVIRONMENTAL PROTECTION DIVISION

Nancy Elizabeth Olinger

Cynthia Woelk

Daniel C. Wiseman

P.O. Box 12548

Austin, TX 78711-2548

ATTORNEYS FOR APPELLANT, TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

2

Pintail Landfill, LLC

APPELLEE/DEFENDANT

MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, L.L.P.

Brent W. Ryan

Paul R. Tough

P.O. Box 12127

Austin, Texas 78711

ATTORNEYS FOR APPELLANT, PINTAIL LANDFILL, LLC

3

TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ……………………………….…………2

TABLE OF CONTENTS ………………………………………………….………4

INDEX OF AUTHORITIES ………………………………………………………6

INDEX OF APPENDICIES………………………………………………..………9

STATEMENT OF THE CASE ……………………………………………..……11

STATEMENT REGARDING ORAL ARGUMENT ……………………………13

ISSUES PRESENTED ……………….……………….…………………….……14

STATEMENT OF THE FACTS ……………………..……………………..……16

SUMMARY OF THE ARGUMENT ……………………………….……………26

ARGUMENT ………………………………………………………..……………29

THE REGISTRATION MUST BE REVERSED BECAUSE TCEQ’S

APPROVAL OF APPLICANT’S REGISTRATION FAILED TO FOLLOW

THE CLEAR, UNAMBIGUOUS LANGUAGE OF ITS

REGULATIONS...........................................................................................29

A. Standard of Review……………………………….…………………30

B. TCEQ’s Spontaneous Interpretation of 30 Texas Administrative Code

§§ 330.9(f) and 330.9(b)(3).…………………………………………31

C. TCEQ Failed to Follow the Clear, Unambiguous Language of Its

Regulations.………………………………………………………… 33

1. TCEQ Failed to Follow the Clear, Unambiguous Language of

30 Texas Administrative Code § 330.9(b)(3).…….…….……35

2. TCEQ Failed to Follow the Clear, Unambiguous Language of

30 Texas Administrative Code § 330.9(f).…………...………36

4

3. TCEQ Failed to Follow the Clear, Unambiguous Language of

its Regulations Defining Transfer Station and Waste

Separation/Recycling Facility.……………………..…………37

D. A Loophole Big Enough to Drive a Truck Through: Even if the

Regulations Were Ambiguous, TCEQ’s Interpretation Would Not Be

Entitled to Deference Because it is Plainly Erroneous or Inconsistent

with the Regulation or its Underlying Statutes.…………….….……39

THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY

AUTHORIZING THE FACILITY THROUGH REGISTRATION RATHER

THAN A PERMIT.……………………………..……………………….…40

THE REGISTRATION SHOULD BE REVERSED BECAUSE TCEQ

ALLOWED AN EXCESSIVE NUMBER OF NOTICES OF DEFICIENCY

WELL BEYOND ITS PUBLICLY PRONOUNCED POLICY.……..……42

PRAYER …………………………………………………………………………48

CERTIFICATE OF SERVICE …………………………………………..….……50

5

INDEX OF AUTHORITIES

Constitution Provisions

Article 1, Section 19 of the Texas Constitution……………………….…………..41

Statutes

Texas Health and Safety Code

§ 361.002(a)……………………………………………………………16, 40

§ 361.061..………………………………………………..…..……….. 16, 40

§ 361.086(a)….……………………….……………………………..… 16, 40

§ 3611.0861……………………………………………….……..……..18, 40

§ 361.088……………………………………………….…………...….41, 42

§ 361.0665……………………………………………….……………..41, 42

§ 361.0666………………………………………………….…………..41, 42

§ 361.067…………………………………………...……..……………41, 42

§ 361.079………………………………………………….……………41, 42

§ 361.0791……………………………………………..………….……41, 42

§ 361.081………………………………………………….……………41, 42

§ 361.089…………………………………………………….……………..17

§ 361.321 (e)……………………………………………………………….30

Tex. Gov’t Code §§ 2001.174(2)(A)-(F)……………………………………..30, 31

6

Rules

30 Texas Administrative Code

§ 39, subchapter H…………………...………………….………………….17

§ 55 (f)……………………………………………………………………..17

§ 50.139 (b)………………………..………………….……………………18

§ 330……………………………..………………….…………………passim

§ 330.3(157)…..………………..…...……….…………………26, 29, 37, 38

§ 330.3 (174)………………….……………………………21, 26, 29, 37, 38

§ 330.7(a)….………...………………...………..………….......14, 16, 17, 26

§ 330.9(a)…………..…………………….….………………….…………16

§ 330.9(b)(3)……………..………………..14, 21, 26, 29, 31, 32, 34, 35, 39

§ 330.9(f)…………….……….14, 17, 21, 22, 26, 29, 31, 32, 33, 34, 36, 37

§ 330.11………………………………………………...………………16, 26

§ 330.13……………………………………………………...…………16, 26

Cases

CenterPoint Energy Houston Elec., LLC v. PUC,

408 S.W. 3d 910 (Tex. App. – Austin 2013, pet denied)………29, 31, 33, 39

County of Dallas v. Wiland,

216 S.W.3d 344, 347 (Tex. 2007)……………………………..…..……….42

Moore v. State,

739 S.W. 2d 347, 349 (Tex. Crim. App. 1987)………………….…………39

7

PUC v. Gulf States Utilities Co.,

809 S.W. 2d 201 (Tex. 1991)…………………….……….……29, 31, 33, 39

Railroad Comm’n of Texas v. Home Transp. Co.,

670 S.W.2d 319, 325 (Tex. App. – Austin 1984, no writ)…………....……33

Rodriguez v. Service Lloyds Ins. Co.,

997 S.W.2d 248, 254 (Tex. 1999)……………………….…..…33, 34, 35, 38

SWEPI, LP v. Railraod Comm’n of Texas,

314 S.W. 3d 253 (Tex. App. – Austin 2010, pet denied)……………...….33

Tex. Dept. of Transp.. V. Needham,

82 S.W. 3d 314, 318 (Tex. 2002)………………………………………35, 38

TGS-NOPEC Geophysical Co. v. Combs,

340 S.W.3d 432, 439 (Tex. 2011)………………………...……………35, 38

United Copper v. Grissom,

17 S.W.3d 797 (Tex. App.—Austin 2000)…………………………..…….31

Other Authority

31 Tex. Reg. 2506………………………………………………........……17, 18, 34

31 Tex. Reg. 2548……..………………………………………………..........……17

8

INDEX OF APPENDICIES

Appendix A Final Judgment dated September 4, 2014

Appendix B Traditional Municipal Solid Waste Disposal: A Guide for Local

Governments

Appendix C 31 Tex. Reg. 2506 (March 24, 2006);

31 Tex. Reg. 2548 (March 24, 2006)

Appendix D Guidelines for Utilizing the Source-Separated Recycling Permit

Exemption for Municipal Solid Waste Transfer Facilities.

Appendix E Waller County’s Request for Determination and Denial of

Permit Application and Registration Application

Appendix F CALH’s Comments on Pintail Landfill Transfer Station

Appendix G Text of Statutes (Tab 1–Tab 14), Regulations (Tab 15–Tab 23),

and Constitutional Provisions (Tab 24).

Tab 1 Texas Health & Safety Code § 361.002(a)

Tab 2 Texas Health & Safety Code § 361.061

Tab 3 Texas Health & Safety Code § 361.086(a)

Tab 4 Texas Health & Safety Code § 361.0861

Tab 5 Texas Health & Safety Code § 361.088

Tab 6 Texas Health & Safety Code § 361.0665

Tab 7 Texas Health & Safety Code § 361.0666

Tab 8 Texas Health & Safety Code § 361.067

Tab 9 Texas Health & Safety Code § 361.079

Tab 10 Texas Health & Safety Code § 361.0791

9

Tab 11 Texas Health & Safety Code § 361.081

Tab 12 Texas Health & Safety Code § 361.089

Tab 13 Texas Health & Safety Code § 361.321(e)

Tab 14 Texas Government Code §§ 2001.174(2)(A)-(F)

Tab 15 30 Texas Administrative Code § 50.139 (b)

Tab 16 30 Texas Administrative Code § 330.3(157)

Tab 17 30 Texas Administrative Code § 330.3 (174)

Tab 18 30 Texas Administrative Code § 330.7(a)

Tab 19 30 Texas Administrative Code § 330.9(a)

Tab 20 30 Texas Administrative Code § 330.9(b)(3)

Tab 21 30 Texas Administrative Code § 330.9(f)

Tab 22 30 Texas Administrative Code § 330.11

Tab 23 30 Texas Administrative Code § 330.13

Tab 24 Article 1, Section 19 of the Texas Constitution

10

STATEMENT OF THE CASE

On August 16, 2013, CALH and City of Hempstead (“Plaintiffs” or

“Appellants”) timely filed Motions to Overturn the issuance of Registration No.

40259 to Pintail Landfill, LLC (“Applicant” or “Pintail”) with the Texas

Commission on Environmental Quality (“TCEQ”).1 On August 23, 2013, TCEQ’s

General Counsel requested further briefing on Motions to Overturn filed by

Plaintiffs.2 On September 11, 2013, response briefs to the Motions to Overturn

were filed by the TCEQ Public Interest Counsel, the TCEQ Executive Director,

and Pintail.3 TCEQ’s Public Interest Counsel recommended denial of the

registration because TCEQ violated its own NOD policy.4 On September 20,

2013, reply briefs were filed by Plaintiffs.5 On October 11, 2013, Plaintiffs’

Motions to Overturn were overruled by operation of law.6 Plaintiffs exhausted

administrative remedies and timely appealed the issuance of Registration No.

40259 to Travis County District Court.7 Plaintiffs filed briefs on the merits.8

1

R.R. at Joint Ex. 1, Administrative Record (“AR”) Vol. 8, Item 58 and 59 (CALH’s and City’s

Motions to Overturn).

2

R.R. at Joint Ex. 1, AR Vol. 8, Item 60 (Letter from TCEQ General Counsel Requesting

Briefing).

3

R.R. at Joint Ex. 1, AR Vol. 8, Items 61, 62 and 63 (Responses to Motions to Overturn).

4

R.R. at Joint Ex. 1, AR Vol. 8, Item 61.

5

R.R. at Joint Ex. 1, AR Vol. 8, Items 64 and 65 (Replies to Responses to Motions to Overturn).

6

See R.R. at Joint Ex. 1, AR Vol. 8, Item 66.

7

C.R. at 3 (relating to CALH); C.R. at 49 (relating to City).

8

Supp. C.R. at 3 (Supplemented February 11, 2015); Supp. C.R. at 207 (Supplemented February

11, 2015).

11

Defendants TCEQ and Pintail filed response briefs.9 Plaintiffs filed reply briefs.10

On September 3, 2013, a hearing was held on the administrative appeal in district

court.11 On September 4, 2013, the district court denied Plaintiffs’ requests for

relief, finding that it “must affirm” the decision of TCEQ’s Executive Director to

issue the registration.12 On October 6, 2013, Plaintiffs timely filed a Joint Motion

for New Trial.13 Neither TCEQ nor Pintail filed substantive responses to

Plaintiffs’ Motion for New Trial. On October 16, 2013, the district court denied

Plaintiffs’ Joint Motion for New Trial.14 On November 14, 2013 and November

18, 2013, respectively, Plaintiffs timely filed notices of appeal.15 Plaintiffs file this

Joint Appellants’ Brief to challenge the district court’s ruling.16

9

Supp. C.R. at 3 (Supplemented January 26, 2015); Supp. C.R. at 97 (Supplemented January 26,

2015).

10

C.R. at 389 (CALH Reply Brief); C.R. at 448 (City Reply Brief).

11

C.R. at 503 (Final Judgment).

12

C.R. at 503 (Final Judgment).

13

C.R. at 505 (Plaintiffs’ Joint Motion for New Trial).

14

C.R. at 674 (Order denying Plaintiffs’ Joint Motion for New Trial).

15

C.R. at 675 (CALH’s Notice of Appeal); C.R. at 678 (City’s Notice of Appeal).

16

Plaintiffs file this brief jointly, but reserve the right to file separate reply briefs in this appeal.

12

STATEMENT REGARDING ORAL ARGUMENT

Texas agencies, including the Texas Commission on Environmental Quality

(“TCEQ”), are required to follow their regulations and underlying statutes. In the

case of TCEQ, these are the regulations and statutes that are designed to protect

our health and our environment. Maintaining these safeguards as they were

intended is important to the preserve Texans’ heath and natural resources. The

decisional process regarding these important issues would be significantly aided by

oral argument. Oral argument will bring clarity to the written arguments presented

by the briefs and appreciably aid the Court in its consideration of the issues and in

determining the correct result.

13

ISSUES PRESENTED

I. Issue 1

An agency is required to follow the clear, unambiguous language of its own

regulations. TCEQ Rule 330.7(a) generally requires a permit for Municipal Solid

Waste (“MSW”) facilities, but there are specific exceptions. Rule 330.9(b)(3)

allows transfer stations that transfer 125 tons of municipal solid waste per day or

less to qualify for registration, rather than requiring a permit. Rule 330.9(f) allows

transfer stations that include materials recovery operations to qualify for

registration, but only if certain requirements set forth in the rule are met. TCEQ

issued a registration to a transfer station that includes a materials recovery facility,

but the facility does not meet the requirements of Rule 330.9(f). Did the trial court

err in its judgment upholding this registration when TCEQ failed to follow the

clear, unambiguous language of its regulations?

II. Issue 2

TCEQ rules and the Solid Waste Act generally require a permit for an MSW

facility. The permitting process provides affected persons the opportunity for

hearing. On the other hand, the registration process does not provide an

opportunity for hearing. Plaintiffs assert that TCEQ acted in violation of its

permitting requirement by utilizing a registration to authorize this Facility. Under

the permitting requirements, Plaintiffs would have had a statutory right to a hearing

14

as affected persons. Did the trial court err in its judgment denying all claims that

due process rights were violated when there was no opportunity for hearing on this

registration authorization?

III. Issue 3

The TCEQ publicly pronounced its policy regarding technical notices of

deficiency (NODs) in letters to the regulated entities, instructions to its staff

members, communications with the public, and representations to the Texas

legislature. TCEQ’s stated policy is to allow no more than two (2) NODs before

returning an MSW registration application. In this case, TCEQ allowed six (6)

NODs and two (2) extensions of time, which is far more than the two (2) NOD

limit. Did the trial court err in its judgment upholding this registration when more

than two (2) NODs were issued?

15

STATEMENT OF THE FACTS

A. Statutory and Regulatory Framework

The Texas Solid Waste Disposal Act (the “Act”) was enacted “to safeguard

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

environment by controlling the management of solid waste.”17 The Act authorizes

Texas Commission on Environmental Quality (“TCEQ”) to issue permits

governing the construction, operation, and maintenance of solid waste facilities.18

The Act generally requires that a person apply for and obtain a separate permit for

each solid waste facility.19

To implement its statutory authority under the Act, TCEQ promulgated rules

found in Title 30, Chapter 330 of the Texas Administrative Code (“TCEQ Rules”).

The TCEQ Rules generally require a permit for any storage, processing, or

disposal of any solid waste unless the activity is exempted from permitting

requirements and authorized through a less rigorous process.20 These less rigorous

authorization processes include registration, notification, and exemption of certain

waste management activities from permitting or registration. Consistent with its

17

Tex. Health & Safety Code Ann. § 361.002(a) (West 2010).

18

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

19

Tex. Health & Safety Code Ann. § 361.086(a) (West 2010).

20

30 Tex. Admin. Code § 330.7(a) (2014) (relating to “Permit Required”); 30 Tex. Admin. Code

§ 330.9(a) (2014) (relating to “Registration Required”); 30 Tex. Admin. Code § 330.11 (2014)

(relating to “Notification Required”); 30 Tex. Admin. Code § 330.13 (2014) (relating to Waste

Management Activities Exempt from Permitting, Registration, or Notification).

16

rules, the TCEQ repeatedly and habitually acknowledges its general permit

requirement.21

To obtain a solid waste permit, an applicant must show that the facility will

be designed, constructed, and operated in a manner that complies with applicable

TCEQ regulations designed to protect the public’s health, welfare, and property.22

The permitting process involves substantial opportunities for affected persons to

participate, including the opportunity to request and participate in a contested case

hearing before TCEQ.23 After the public participation process is complete,

including any contested case hearing, TCEQ decides whether to grant or deny the

permit.24 The Executive Director may not issue a permit without an opportunity

21

See C.R. at 401–02 (CALH’s Reply Brief at 12–13 (citing 30 Tex. Admin. Code § 330.7(a)

(2014) (relating to “Permit Required”); TCEQ Publication No. RG-469, Traditional Municipal

Solid Waste Disposal: A Guide for Local Governments (listing transfer station registration

exceptions in 330.9(b) and stating, “If none of these criteria can be met, a permit is required”);

31 Tex. Reg. 2548; 31 Tex. Reg. 2506 (“The commission adopts new §330.9, Registration

Required, to list all MSW management activities that are exempt from permitting requirements

but that still require commission approval by registration.”); TCEQ Waste Permits Division

Publication titled “Guidelines for Utilizing the Source-Separated Recycling Permit Exemption

for Municipal Solid Waste Transfer Facilities” at 1 (“What is the Source-Separated Recycling

Permit Exemption? The source-separated recycling permit exemption, described in 30 TAC

§330.9(f), allows qualifying MSW transfer facilities to operate under a registration instead of a

permit. . . . This provision to operate under a registration instead of a permit is distinct from

other provisions for registration of a transfer facility based on the population of the area served,

waste acceptance rate, and location within a permitted facility (30 TAC §330.9(b)).”).

22

30 Tex. Admin. Code Ch. 330 (2014) (TCEQ Rules for solid waste permitting program).

23

See 30 Tex. Admin. Code Ch. 330 (2014); 30 Tex. Admin. Code Ch. 39, Subch. H (2014)

(TCEQ rules setting forth the public notice requirements for permits); 30 Tex. Admin. Code Ch.

55, Subch. F (2014) (TCEQ rules for requesting a contested case hearing on permit applications).

24

Tex. Health and Safety Code Ann. § 361.089 (West Supp. 2013).

17

for hearing and a final decision from the TCEQ commissioners unless the

application is not opposed by an affected person.25

The Act provides certain narrow exceptions to the general permitting

requirement, which are reflected in the TCEQ Rules. Specifically, the Act allows

certain types of facilities to be authorized by a mere registration, rather than by a

permit.26 An applicant seeking authorization by registration must file an

application, but unlike the permitting process, the registration process does not

include an opportunity for a contested case hearing. Moreover, unlike permit

approval, the Executive Director has exclusive authority to review and approve

registrations without a vote by TCEQ commissioners.27

In accordance with the Act’s provisions, TCEQ Rule 330.9 allows

authorization of certain specific and precisely defined types of facilities pursuant to

a registration, rather than a permit.28 Rule 330.9 was expressly promulgated “to

list all those MSW management activities that are exempt from permitting

requirements but that still require commission approval by registration.”29 Thus,

an applicant for a registration must be seeking approval for one of the specific

types of facilities specified in Rule 330.9 and must meet the applicable

requirements of 330.9 for that particular type of waste management activity.

25

Tex. Water Code Ann. § 5.122 (West 2008).

26

Tex. Health and Safety Code Ann. §§ 361.0861, 361.111 (West 2010).

27

30 Tex. Admin. Code § 50.139(b) (2014).

28

30 Tex. Admin. Code § 330.9 (2014).

29

31 Tex. Reg. 2502 (March 24, 2006), at 2506 (emphasis added).

18

B. The Proposed Solid Waste Complex

Pintail Landfill, LLC (“Applicant” or “Pintail”) wishes to construct and

operate a large solid waste complex within the extraterritorial jurisdiction of the

city of Hempstead.30 The complex would consist of two solid waste facilities: 1) a

223-acre, 410-foot high landfill (the “Landfill”); and 2) a transfer station/material

recovery facility to be located at the same site as the Landfill.31 This appeal

pertains to the transfer station/material recovery facility, but information is

provided below relating to the larger proposed Landfill for context.

C. The Pending Landfill Permit Application

The Applicant has filed an application for a Type I municipal solid waste

(“MSW”) permit to authorize construction and operation of the proposed

Landfill.32 The Applicant filed Parts I and II of the Landfill application on July 22,

2011, and filed Parts III and IV of the Landfill application on January 20, 2012.33

The Landfill is proposed to be constructed and operated on top of the sandy

recharge zone of the regional aquifer that serves as the sole source of drinking

water for the citizens of the city of Hempstead and other nearby residents.34

30

R.R. at Joint Ex. 1, AR Vol. 1, Item 1, (Registration Application for MSW Facility), at p. I-1.

31

See generally R.R. at Joint Ex. 1, AR Vol. 1, Item 1 (Registration Application Transmittal

Letter), p. 2; AR Vol. 1, Item 1 (Registration Application), at p. I-1.

32

R.R. at Joint Ex. 1, AR Vol. 7, Item 53, p. 5.

33

APPENDIX E: R.R. at Joint Ex. 1, AR Vol. 67, p. 4-10 (Waller County’s Request for

Determination and Denial of Permit Application and Registration Application).

34

APPENDIX F: R.R. at Joint Ex. 1, AR Vol. 67, p. 2 (CALH’s Comments on Pintail Landfill

Transfer Station).

19

Accordingly, the proposed Landfill has generated considerable public concern and

opposition, having received 1,302 hearing requests at the time CALH filed its reply

to responses to its motion to overturn this registration.35

A number of commenters, including attorneys for Waller County, asked

TCEQ to uphold Waller County Ordinance 2001-001, which prohibits developing

a landfill at this location.36 These commenters pointed out that the proposed

landfill did not qualify for the statutory grandfathering provision because only

Parts I and II, which requested only a land use determination rather than an actual

permit, had been filed at the time the ordinance was passed, and Parts I through IV

are required for a landfill application seeking a permit.37 Furthermore, commenters

asserted that the transfer station/materials recovery registration application did not

qualify the proposed landfill for the statutory grandfathering provision because the

registration application was incomplete at the time of final passage of the

ordinance on August 26, 2011.38 The proposed landfill is currently the subject of a

contested case hearing.

D. The Registration

35

R.R. at Joint Ex. 1, AR Vol. 8, Item 65 (CALH’s Reply to Responses to MTO’s).

36

See e.g., APPENDIX E: R.R. at Joint Ex. 1, AR Vol. 67 (Waller County’s Request for

Determination and Denial of Permit Application and Registration Application).

37

APPENDIX E: R.R. at Joint Ex. 1, AR Vol. 67, p. 4-10 (Waller County’s Request for

Determination and Denial of Permit Application and Registration Application).

38

APPENDIX E: R.R. at Joint Ex. 1, AR Vol. 67, pp. 1-4, 9 (Waller County’s Request for

Determination and Denial of Permit Application and Registration Application).

20

On August 2, 2011, the Applicant filed its application for MSW Facility

Registration No. 40259 (the “Registration Application”), requesting authority to

operate a transfer station/materials recovery facility (the “Facility”).39 On the first

page of its Registration Application, the Applicant explains that the Facility will

transfer and recycle waste at the same location as the proposed Landfill in order to

initiate a market for incoming waste materials.40 Claiming authority under

Rule 330.9(b)(3), the Applicant improperly utilized the registration process to

authorize its transfer station/materials recovery facility.41 Rule 330.9(b)(3) allows

registration for transfer station facilities that transfer less than 125 tons of waste or

less per day. Rule 330.9(b)(3) expressly applies only to transfer station facilities

only, and does not authorize the registration of materials recovery, waste

separation, or recycling facilities.42

Importantly, Applicant did not claim to use Rule 330.9(f) to authorize its

registration. That rule does apply to transfer stations that include materials

recovery operations, such as the facility proposed by the Applicant. The rule

requires “any new MSW Type V transfer station that includes a materials recovery

operation” to meet two qualifications: (1) it must recover at least ten percent of the

waste stream for recycling, and (2) it must send the remaining waste to a landfill

39

R.R. at Joint Ex. 1, AR Vol. 1, Item 1, (Registration Application for MSW Facility).

40

R.R. at Joint Ex. 1, AR Vol. 1, Item 1, (Registration Application for MSW Facility).

41

R.R. at Joint Ex. 1, AR Vol. 1, Item 1, p. 2 (Registration Application for MSW Facility).

42

The terms “materials recovery facility,” “recycling facility,” and “waste separation facility”

are used interchangeably in TCEQ rules. See 30 Tex. Admin. Code 330.3(174).

21

facility within 50 miles (the so-called “10/50 requirement”).43 It is undisputed that

Applicant did not meet the 10/50 requirement. In Part II of the Registration

Application, Applicant openly fails to meet the requirement, stating (1) that

materials will be recovered at a rate not to interfere with proper operations of the

facility, and (2) that waste materials will be transported to a landfill within 100

miles.44

During TCEQ’s registration review process, CALH commented that

registration was inappropriate for this facility because the recycling activities

exceeded those authorized for registration, and therefore permitting was required.45

E. TCEQ’s Extended Review of the Registration

During review of the Registration Application, the TCEQ allowed more than

two (2) technical notices of deficiency (“NODs”) and afforded multiple extensions

of time for the Applicant to respond to the deficiencies.46 This conduct violated

TCEQ’s own repeatedly published policies.47 The six NOD’s and two letters

granting extensions were mailed to Pintail on August 15, 2011 (NOD), October 27,

43

30 Tex. Admin. Code § 330.9(f) (2014).

44

R.R. at Joint Ex. 1, AR Vol. 1, Item 1, p. II-3 (Registration Application) (“The facility will

recover recyclable materials at a rate not to interfere with proper operations of the facility. Non-

recyclable materials will be transported to a properly permitted Type I or Type IV landfill that is

located within 100 miles of the proposed facility.”).

45

R.R. at Joint Ex. 1, AR Vol. 9, Item 67, pp. 3-6 (CALH’s Comments submitted by Hance

Scarborough, LLP).

46

R.R. at Joint Ex. 1, AR Vol. 8, Item 61, p. 3-4 (Office of Public Interest Counsel’s Response to

Motions to Overturn).

47

Id.

22

2011 (NOD), December 2, 2011 (letter granting extension), February 17, 2012

(NOD), April 12, 2012 (NOD), May 8, 2012 (letter granting extension), June 25,

2012 (NOD), and August 16, 2012 (NOD).48 Notably, the second NOD from the

TCEQ dated October 27, 2011 stated,

Failure to submit a satisfactory response to each of the noted

deficiencies may result in the application being returned due to

technical deficiencies. Please note we do not anticipate granting an

extension of time to fulfill this request. Also, please be aware that a

third notice of technical deficiency will not be issued.49

The TCEQ’s policy banning more than two NOD’s was also published in its TCEQ

Sunset Evaluation Report dated October 2009.50 The policy is also described in

TCEQ’s Municipal Solid Waste (“MSW”) Permit Application Review Process

document for its staff.51 Finally, the policy specifically applicable to a registration

request is dictated to TCEQ staff as follows:

Review the second NOD response. If the application still has

significant deficiencies, prepare a letter for the Section Manager’s

signature returning the application with an explanation why the

application is being returned. If the deficiencies are very minor in

nature, work with the applicant/consultant to resolve them. There are

no third NODs.52

48

See R.R. at Joint Ex. 1, AR Index, Items 3, 13, 16, 22, 24, 27, 32, and 39.

49

R.R. at Joint Ex. 1, AR Vol. 2, Item 13 (NOD Letter and Policy Notice to Pintail).

50

R.R. at Joint Ex. 1, AR Vol. 8, Item 61, p. 3–4 (citing TCEQ Sunset Self-Evaluation Report,

Sec. VII, p. 248).

51

R.R. at Joint Ex. 1, AR Vol. 8, Item 59, p. 7 (“There will be no 3rd NOD…” and only a few

minor deficiencies may be addressed within one week.).

52

R.R. at Joint Ex. 1, AR Vol. 8, Item 65, Exhibit 1, p. 3 of “Registration Application

Procedures” document (CALH’s Reply to Responses to MTO’s).

23

As a result of the numerous NOD’s and deficiencies in the Registration

Application, Pintail had eleven (11) different versions of the application.53 These

versions are dated August 1, 2011, August 8, 2011, August 29, 2011; November

16, 2011; January 18, 2012; March 15, 2012; May 1, 2012; May 31, 2012; July 20,

2012; September 14, 2012, and October 18, 2012.54 Despite the excessive number

of NOD’s, the Registration was issued by the Executive Director on July 23,

2013.55

F. Citizens Against the Landfill in Hempstead (“CALH”).

Citizens Against the Landfill in Hempstead (CALH)56 is an organization

created to protest the Applicant’s proposed MSW complex near Hempstead, Texas,

and to inform the public about the issues related to the proposed MSW facilities.

CALH has over 400 members comprised of Waller County landowners, residents,

business owners, businesses, and many other affected parties who have legitimate

reasons to oppose the proposed MSW complex. Several of CALH’s members own

land, reside, and work adjacent to and near the proposed facility site, and would be

affected in a manner distinct from members of the general public. Plaintiff

Michael McCall is a resident of Waller County and lives less than a mile from the

53

R.R. at Joint Ex. 1, AR Vol. 7, Item 55, p. 6 (MSW Registration No. 40259).

54

R.R. at Joint Ex. 1, AR Vol. 7, Item 55, p. 6 (MSW Registration No. 40259).

55

R.R. at Joint Ex. 1, AR Vol. 7, Item 55, p. 1 (MSW Registration No. 40259 (referring to the

facility as a Type V Transfer Station, but authorizing registrant to “store and process wastes, and

to recycle recovered materials…”)).

56

For purposes of this document, CALH also includes Appellants Michael McCall and Wayne

Knox.

24

proposed site of the Landfill. Plaintiff Wayne Knox is a resident of Waller County

who owns and operates Pipe and Valve. Pipe and Valve is located in Waller

County directly across from the proposed Facility.

G. The City of Hempstead.

The City of Hempstead (the “City”) is a home rule municipality with a

growing and diverse population of approximately 5,800 residents located in

northern Waller County, Texas. The proposed landfill complex would be located

within the City’s extraterritorial jurisdiction and very near the important junction

of State Highway 6 and U.S. Highway 290, which serves as the gateway into the

City. The City supplies water to its residents from wells located near the proposed

landfill complex.

25

SUMMARY OF THE ARGUMENT

This Court has held that rules must be followed. When an agency fails to

follow the clear, unambiguous language of its own regulation, the court must

reverse the agency’s action. TCEQ did not follow its rules when it issued a

registration to this Facility, so the issuance must be reversed. At least four rules

were broken:57

1) 30 Texas Administrative Code § 330.9(b)(3). This registration rule

expressly applies only to transfer stations, and TCEQ broke this rule by

applying it to a materials recovery, or recycling, facility.

2) 30 Texas Administrative Code § 330.9(f). This registration rule applies to

transfer stations with materials recovery operations (i.e. this Facility).

TCEQ broke this rule by failing to apply it. It was not claimed as authority

for registration and its requirements (the “10/50 requirements”) were

ignored.

3) 30 Texas Administrative Code § 330.3(157). This rule defines a transfer

station as a facility that transfers waste and does nothing more. TCEQ broke

this rule by treating a materials recovery facility as a transfer station.

4) 30 Texas Administrative Code § 330.3(174). This rule defines materials

recovery, waste separation, and recycling facilities. TCEQ broke this rule

by treating a materials recovery facility as a transfer station.

If a facility does not qualify for registration (or any other permitting

exemption), the law requires a permit and allows affected persons to request a

57

Five rules were broken if Rule 330.7(a) is counted, which generally requires a permit. This

rule states: “Except as provided in §§330.9, 330.11, 330.13, or 330.25 of this title (relating to

Registration Required; Notification Required; Waste Management Activities Exempt from

Permitting, Registration, or Notification; and Relationship with County Licensing System), no

person may cause, suffer, allow, or permit any activity of storage, processing, removal, or

disposal of any solid waste unless such activity is authorized by a permit or other authorization

from the commission.”

26

hearing. By issuing this registration, TCEQ eviscerated the permit requirement of

its rules. TCEQ impermissibly expanded the scope of 330.9(b), which expressly

applies only to “transfer station facilities.” A transfer station is not a materials

recovery or recycling facility. Therefore, TCEQ failed to follow the plain

language of its own rules. Accordingly, reversal is required.

The permitting process is important because it provides affected persons an

opportunity for contested case hearing. The registration process does not. The

opportunity for hearing invokes obligatory statutory protections that provide a

meaningful evidentiary hearing for affected persons. Plaintiffs affected by the

improperly registered solid waste facility and its larger landfill counterpart were

denied their opportunity for hearing by this registration issuance. Because a permit

was required and the permitting process provides opportunity for a hearing, the

affected persons were denied their rights to due process. Accordingly, issuance of

the registration should be reversed.

Finally, the registration should be reversed because of excessive Notices of

Deficiency (“NOD’s”). The TCEQ arbitrarily disregarded its publicly pronounced

policy that only two NOD’s are issued to applicants. According to the TCEQ own

Public Interest Counsel, the public must have confidence that the TCEQ applies its

stated policies, including its two NOD policy, in a uniform manner. The TCEQ

repeatedly expressed its NOD policy to the legislature, its staff, applicants, and

27

affected persons. The policy expressed is clear. Applications are required to be

returned after unsuccessful resolution of two (2) NOD’s. The TCEQ acted

arbitrarily and unreasonably violated its publicly pronounced NOD policy when it

issued six (6) NODs and two (2) extensions of time to respond to Applicant.

Therefore, issuance of the registration should be reversed.

28

ARGUMENT

I. THE REGISTRATION MUST BE REVERSED BECAUSE TCEQ’S

APPROVAL OF APPLICANT’S REGISTRATION FAILED TO

FOLLOW THE CLEAR, UNAMBIGUOUS LANGUAGE OF ITS

REGULATIONS.

Issuance of this registration must be reversed because this Facility is not just

a transfer station. Rule 330(b)(3) only allows registration for transfer station

facilities that transfer less than 125 tons of waste per day. This Facility is not a

transfer station—it is a transfer station with a materials recovery operation.

Therefore, the 10/50 requirements of Rule 330.9(f) apply. TCEQ and Applicant,

however, ignored this rule and its requirements. As discussed further below, TCEQ

failed to follow the clear, unambiguous language of at least four of its regulations

when it improperly issued a registration for Applicant’s transfer station/materials

recovery facility (the “Facility”) utilizing Rule 330.9(b)(3).58 Therefore, the Court

must reverse the agency’s action as arbitrary and capricious.59

Additionally, even if a rule is ambiguous or leaves room for policy

determinations, a court may not defer to an agency’s interpretation that is plainly

erroneous or inconsistent with the regulation or its underlying statutes.60 TCEQ’s

unauthorized interpretation of its rules is plainly erroneous and inconsistent with

58

See 30 Tex. Admin. Code §§330.9(f), 330.9(b)(3), 330.3(157), and 330.3(174) (2010).

59

PUC v. Gulf States Utilities Co., 809 S.W.2d 201, 207 (Tex. 1991); CenterPoint Energy

Houston Elec., LLC v. PUC, 408 S.W.3d 910, 917 (Tex. App.—Austin 2013, pet. denied).

60

Id.

29

the underlying statute because it creates a dangerous loophole that eviscerates the

permitting requirement of the Solid Waste Act and TCEQ Rules. Accordingly, the

registration of this Facility must be reversed.

A. Standard of Review

In this appeal brought under Texas Health and Safety Code § 361.321(a), the

issue is whether the action of TCEQ was invalid, arbitrary, or unreasonable.61 The

Third Court of Appeals specifically addressed this standard of review in Smith v.

Houston Chemical Services, Inc., opining that the issue of whether the action is

invalid, arbitrary, or unreasonable was intended to incorporate the provisions of

Administrative Procedures Act (“APA”), Texas Government Code

§ 2001.174(2)(A)–(F).62 In accordance with these provisions, a reviewing court

shall reverse or remand the case for further proceedings if substantial rights of the

appellant have been prejudiced because the administrative findings, inferences,

conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency's statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the

61

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

62

872 S.W.2d 252, 257 n 2 (Tex. App.—Austin 1994, writ denied).

30

reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.63

This case raises a question of rule construction, which courts review de

novo.64 Courts interpret administrative rules, like statutes, under traditional

principles of statutory construction.65 When an agency fails to follow the clear,

unambiguous language of its own regulation, the court must reverse the agency’s

action as arbitrary and capricious.66 Furthermore, the agency’s decision is

reversible upon a finding of any errors listed in Texas Government Code

§ 2001.174(2)(A)–(F).67

B. TCEQ’s Spontaneous Interpretation of 30 Texas Administrative

Code §§ 330.9(f) and 330.9(b)(3).

The first public pronouncement of TCEQ’s interpretation of 330.9(b)(3) was

at the hearing on this appeal in district court. At that hearing, the district court

asked the Applicant why it claimed it did not need to register under Rule 330.9(f)

and satisfy the 10/50 requirements. For the first time, the Applicant presented a

new interpretation of Rule 330.9(f) and 330.9(b)(3) that was not asserted at the

agency level, was not asserted in briefing, and flew in the face of TCEQ definitions

63

Tex. Gov’t Code Ann. § 2001.174(2)(A)–(F) (West 2008).

64

CenterPoint, 408 S.W.3d at 916.

65

Id.

66

Gulf States Utilities, 809 S.W.2d at 207; CenterPoint, 408 S.W.3d at 917.

67

United Copper v. Grissom, 17 S.W.3d 797, 801 (Tex. App.—Austin 2000, pet. dism’d).

31

and the plain language of both rules.68 Even though 330.9(f) expressly applies to

any transfer station that includes materials recovery operations, Applicant argued

that the 10/50 requirements of 330.9(f) only apply to transfer stations that include

material recovery operations if the facility exceeds the volume limitation of 125

tons of waste per day that is imposed by Rule 330.9(b)(3). As discussed later, this

reading plainly contradicts the rules.

At the same hearing, the court asked TCEQ’s attorneys to explain a guidance

document appearing to apply the requirements of Rule 330.9(f) to transfer stations

with material recovery operations. After a brief deliberation among the TCEQ

attorneys, they deferred to the Applicant’s interpretation of the rules. Thus, also

for the first time, TCEQ attorneys adopted the new interpretation that Rule 330.9(f)

only applies to transfer stations that include a material recovery operation if the

facility exceeds the waste volume limitation set forth in Rule 330.9(b)(3).

As discussed below, Applicant and TCEQ’s reading of the rules disregards

their plain language and therefore is impermissible. Furthermore, Applicant and

TCEQ’s position ignores relevant TCEQ guidance on the very rule at issue –

330.9(f). Also as discussed below, TCEQ’s own guidance document69 emphasizes

that, to receive a registration, any transfer station that includes a materials recovery

68

See C.R. at 512–14 (Plaintiff’s Joint Motion for New Trial at 8–10).

69

See APPENDIX D: TCEQ Waste Permits Division Publication titled “Guidelines for

Utilizing the Source-Separated Recycling Permit Exemption for Municipal Solid Waste Transfer

Facilities.”

32

facility must meet the 10/50 rule requirements set forth in Rule 330.9(f). The

guidance document further explains that this requirement is distinct from other

provisions for registration in Rule 330.9(b).70

C. TCEQ Failed to Follow the Clear, Unambiguous Language of Its

Regulations.

When an agency fails to follow the clear, unambiguous language of its own

regulation, the court must reverse the agency’s action as arbitrary and capricious.71

A rule’s plain language must be followed unless it is ambiguous.72 If a rule is

ambiguous or leaves room for policy determinations, a court may not defer to an

agency’s interpretation that is plainly erroneous or inconsistent with the regulation

or its underlying statutes.73

A court construes an administrative rule in the same manner it construes a

statute.74 The court’s primary objective is to give effect to the agency’s intent.75

As the Texas Supreme Court has explained, other than the plain language of the

rule itself, the “best source” of an agency’s intent is found in the Texas Register,

where the agency publishes its notice of the proposed rule and its “explanation of

70

Id.

71

Gulf States Utilities, 809 S.W.2d at 207 (Tex. 1991); CenterPoint, 408 S.W.3d at 917.

72

CenterPoint, 408 S.W.3d at 916.

73

Id.

74

Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999); SWEPI, LP v.

Railroad Comm’n, 314 S.W. 3d 253, 260 (Tex. App. –Austin 2010, pet. denied); Railroad

Comm’n of Texas v. Home Transp. Co., 670 S.W.2d 319, 325 (Tex. App. –Austin 1984, no writ).

75

Rodriguez, 997 S.W.2d at 254 (Tex. 1999); CenterPoint, 408 S.W.3d at 917; SWEPI, 314

S.W.3d at 260; Home Transp. Co., 670 S.W.2d at 325.

33

the rule.”76 Here, in the notice published in the Texas Register, TCEQ explained

that Rule 330.9 was adopted “to list all those MSW management activities that are

exempt from permitting requirements but that still require commission approval by

registration.”77

TCEQ failed to follow the clear, unambiguous language of at least four of its

regulations when it issued a registration for the Facility. First, TCEQ failed to

follow Rule 330.9(b)(3), the provision under which Applicant claimed authority

for registration. This rule expressly applies only to transfer station facilities.

Second, TCEQ failed to follow Rule 330.9(f), which requires that any transfer

stations facilities with materials recovery operations must meet the 10/50

requirements. It is undisputed that the Facility is a transfer station with materials

recovery operations, and that the 10/50 requirements were not met. Third, TCEQ

failed to follow the clear, unambiguous language of its own definitions. TCEQ

rules specifically define both types of facilities at issue, transfer stations and waste

separation/recycling facilities (also referred to as a materials recovery facilities),

and these facilities engage in different waste management activities. Because

TCEQ failed to follow the plain language of its rules, the registration of this

Facility must be reversed.

76

Rodriguez, 997 S.W.2d at 254.

77

APPENDIX C: 31 Tex. Reg. 2502 (March 24, 2006), at 2506 (emphasis added).

34

1. TCEQ Failed to Follow the Clear, Unambiguous Language

of 30 Texas Administrative Code § 330.9(b)(3).

TCEQ and Applicant have improperly claimed authority to register the

Facility under Rule 330.9(b)(3), which applies only to transfer station facilities that

transfer less than 125 tons of waste per day. Applying this rule to other types of

facilities in addition to transfer stations controverts the plain language of the Rule

itself. Rule 330.9(b)(3) expressly applies to “transfer station facilities,” not

recycling facilities or any other types of waste management facilities.78 The rule

states that “[a] registration is required for an MSW transfer station facility that is

used in the transfer of MSW to a solid waste processing or disposal facility….”79

As discussed below, transfer station facilities and recycling facilities are separately

defined in TCEQ regulations, each involing distinct waste management activities.

TCEQ and reviewing courts are bound to construe these terms by their regulatory

definitions only.80 Because TCEQ failed to follow the clear, unambiguous

language of its own regulation, the Court must reverse the agency’s action as

arbitrary and capricious.

78

30 Tex. Admin. Code § 330.9(b) (2014).

79

30 Tex. Admin. Code § 330.9(b) (2014).

80

Tex. Dept. of Transp. V. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (“But if a statute defines a

term, a court is bound to construe that term by its statutory definition only.”) (emphasis added);

see also TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“If a statute

… assigns a particular meaning to a term, we are bound by the statutory usage.”); id. at 438

(“We interpret administrative rules, like statutes, under traditional principles of statutory

construction.”); Rodriguez, 997 S.W.2d at 254 (“We construe administrative rules, which have

the same force as statutes, in the same manner as statutes.”).

35

2. TCEQ Failed to Follow the Clear, Unambiguous Language

of 30 Texas Administrative Code § 330.9(f).

TCEQ failed to follow Rule 330.9(f), which requires any new MSW Type V

transfer station that includes a materials recovery operation to meet two

qualifications: (1) it must recover at least ten percent of the waste stream for

recycling, and (2) it must send the waste to a landfill within 50 miles (the so-called

“10/50 requirement”). It is undisputed that the Facility is not merely a transfer

station facility, but includes a material recover operation.81 Thus, the requirements

of Rule 330.9(f) expressly apply to this Facility because they apply to “any new

MSW Type V transfer station that includes a material recovery operation.”82

Even though this rule fits like a glove, the Applicant did not meet its

requirements. Indeed, in Part II of Applicant’s Registration Application, Applicant

openly states (1) that materials will be recovered at a rate not to interfere with

proper operations of the facility, and (2) that waste materials will be transported to

a landfill within 100 miles.83 This fails to meet the applicable 10/50 requirements,

and therefore, the registration must be reversed.

As previously discussed, TCEQ contended for the first time in hearing

before the district court that the requirements of 330.9(f) were inapplicable to this

81

C.R. at 509 (Plaintiff’s Joint Motion for New Trial, Note 10 and accompanying text).

82

30 Tex. Admin. Code § 330.9(f) (2014) (emphasis added).

83

R.R. at Joint Ex. 1, AR Vol. 1, Item 1, p. II-3 (Registration Application) (“The facility will

recover recyclable materials at a rate not to interfere with proper operations of the facility. Non-

recyclable materials will be transported to a properly permitted Type I or Type IV landfill that is

located within 100 miles of the proposed facility.”).

36

Facility. This assertion fails because it conflicts with the plain language of the

rule, which expressly applies to “any” Type V transfer station that includes a

material recovery operation.

Furthermore, this assertion is surprising because TCEQ’s published

guidance on Rule 330.9(f)84 emphasizes that, to receive a registration, any transfer

station that includes a materials recovery facility must meet the 10/50 rule

requirements set forth in Rule 330.9(f). The guidance document explains that Rule

330.9(f) is distinct from other provisions for registration of a transfer facility

based on the population of the area served, waste acceptance rate, and location

within a permitted facility (30 TAC §330.9(b)).”85 Further, the guidance document

does not suggest that applicants wishing to operate a materials recovery facility

may use Rule 330.9(b) if they self-impose waste acceptance limitations. On the

contrary, Rule 330.9(f) expressly applies to “any … station that includes a material

recovery operation,”86 regardless of waste acceptance rates.

3. TCEQ Failed to Follow the Clear, Unambiguous Language

of its Regulations Defining Transfer Station and Waste

Separation/Recycling Facility.

Registration of this Facility violates the clear, unambiguous language of

Rules 330.3(157) and 330.3(174), which define transfer station and waste

84

See APPENDIX D: TCEQ Waste Permits Division Publication titled “Guidelines for

Utilizing the Source-Separated Recycling Permit Exemption for Municipal Solid Waste Transfer

Facilities.”

85

Id.

86

30 Tex. Admin. Code § 330.9(f) (2014).

37

separation/recycling facilities, respectively.87 When an agency’s rules expressly

define a term, a court is bound to construe the term by that regulatory definition

only.88 The term “transfer station” in Rule 330.9(b) cannot include a material

recovery facility, because that would be inconsistent with the express definitions of

a “transfer station” and “material recovery facility” set forth in the TCEQ’s own

rules.

The term “transfer station” is expressly defined in the TCEQ rules as “[a]

facility used for transferring solid waste from collection vehicles to long haul

vehicles….”89 That definition is not ambiguous, and it plainly does not include a

“material recovery facility,” which is also expressly defined in the rules and is a

completely different kind of facility – i.e., one where “recyclable materials are

removed from the waste stream” for recycling.90 Moreover, since TCEQ expressly

provided different definitions for the term “transfer station” and the term “material

87

30 Tex. Admin. Code § 330.3(157) (“Transfer station—A facility used for transferring solid

waste from collection vehicles to long-haul vehicles (one transportation unit to another

transportation unit).”); 30 Tex. Admin. Code § 330.3(174) (“Waste-separation/recycling facility-

-A facility, sometimes referred to as a material recovery facility, in which recyclable materials

are removed from the waste stream for transport off-site for reuse, recycling, or other beneficial

use.”)

88

Tex. Dept. of Transp. V. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (“But if a statute defines a

term, a court is bound to construe that term by its statutory definition only.”) (emphasis added);

see also TGS-NOPEC Geophysical, 340 S.W.3d at 439 (“If a statute … assigns a particular

meaning to a term, we are bound by the statutory usage.”); id. at 438 (“We interpret

administrative rules, like statutes, under traditional principles of statutory construction.”);

Rodriguez, 997 S.W.2d at 254 (“We construe administrative rules, which have the same force as

statutes, in the same manner as statutes.”).

89

30 Tex. Admin. Code § 330.3(157) (2014) (emphasis added).

90

Id. § 330.3(174) (emphasis added).

38

recovery facility,” the Court must presume that the agency intended there to be a

meaningful difference between the two terms.91 In short, under the plain language

of the TCEQ rules, the term “transfer station” as used in Rule 330.9(b) means a

transfer station, and nothing more. It does not mean a transfer station and a

material recovery facility.

D. A Loophole Big Enough to Drive a Truck Through: Even if the

Regulations Were Ambiguous, TCEQ’s Interpretation Would Not

Be Entitled to Deference Because it is Plainly Erroneous or

Inconsistent with the Regulation or its Underlying Statutes.

Even if the regulations were ambiguous, the Facility registration must be

reversed because TCEQ’s interpretation of §330.9(b)(3) is plainly erroneous and

inconsistent with the regulation or its underlying statutes.92 TCEQ’s interpretation

of 330.9(b)(3) is plainly erroneous because it leads to an absurd result. Reading

this rule to allow activities beyond the stated “transfer” activities would eviscerate

the Act and TCEQ Rules’ permitting requirement for many MSW storage,

processing, and disposal facilities. Indeed, under TCEQ’s impromptu

interpretation, so long as a facility called itself a “transfer station” and transferred

less than 125 tons per day of MSW, it would be able to perform any other MSW

91

See Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987). Also, there is certainly

nothing in the TCEQ rules that would support any suggestion that the term “transfer station” is

an umbrella term encompassing various kinds of facilities, like, for example, the term “Type V

Facility.”

92

Gulf States, 809 S.W.2d at 207; CenterPoint, 408 S.W.3d at 917 (Tex. App.—Austin 2013,

pet. denied) (holding that if a rule is ambiguous or leaves room for policy determinations, a court

may not defer to an agency’s interpretation that is plainly erroneous or inconsistent with the

regulation or its underlying statutes.).

39

waste management activities at that facility, including long-term storage,

processing activities such as recycling, and even land disposal. This cannot be the

state of law, and is plainly erroneous.

As discussed at length above, TCEQ’s interpretation is inconsistent with its

regulations. Furthermore, the interpretation is also inconsistent with the Act. The

stated purpose of the Act is “to safeguard the health, welfare, and physical property

of the people and to protect the environment by controlling the management of

solid waste.”93 The Act authorizes TCEQ to issue permits governing the

construction, operation, and maintenance of solid waste facilities,94 and the Act

generally requires that a person apply for and obtain a separate permit for each

solid waste facility.95 Furthermore, the Act provides certain specific exceptions to

the general permitting requirement, which are reflected in the TCEQ Rules (as

discussed above). Specifically, the Act allows certain types of facilities to be

authorized by a mere registration, rather than by a permit.96 The TCEQ’s

interpretation is inconsistent with the Act because it would result in registration of

solid waste management activities that should require a permit under the Act.

II. THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY

AUTHORIZING THE FACILITY THROUGH REGISTRATION

RATHER THAN A PERMIT.

93

Tex. Health & Safety Code Ann. § 361.002(a) (West 2010).

94

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

95

Tex. Health & Safety Code Ann. § 361.086(a) (West 2010).

96

Tex. Health & Safety Code Ann. §§ 361.0861, 361.111 (West 2010).

40

Circumventing the permitting requirements of the Act and the TCEQ Rules

is not harmless error because it denies affected persons due process in the form of a

contested case hearing.97 CALH, the City, and other affected persons, were

entitled to a contested case hearing prior to authorization of this Facility. This

Facility is actually part of the proposed Landfill that has not been permitted, and

which is the subject of an ongoing contested case hearing. This registration

improperly denied these requestors their opportunity for hearing on the storage and

recycling component of the larger Landfill facility.

No one has disputed CALH or the City’s standing, and each is a party in the

ongoing contested case hearing for the Pintail Landfill at the same location as this

Facility. CALH members and City of Hempstead have property interests that

would be affected by the proposed facility. For example, CALH has members that

reside adjacent to the proposed location and rely on water wells as their sole source

of domestic water, and the City supplies water to its residents from wells located

near the Facility. The legislature has determined that a contested case hearing is

the process that is due to protect the property interests of affected persons and has

codified the requirements in the Health and Safety Code.98 Where there is a

97

Article 1, Section 19 of the Texas Constitution (due process).

98

See Tex. Health & Safety Code Ann. §§ 361.088, 361.0665, 361.0666, 361.067, 361.079,

361.0791, and 361.081 (relating to various application notice requirements, published notice

requirements, mailed notice requirements, hearing notice requirements, and contested case

hearing requirements for MSW permit applications).

41

statutory right to a hearing and a right to a hearing under applicable rules, denial of

the hearing is a violation of procedural due process.99

CALH and the City’s interests should have been afforded the protection of

the permitting process. The permitting process, unlike the registration process,

triggers statutorily granted due process rights to notice and a contested case

hearing by virtue of the Texas Health and Safety Code.100 Here, the issuance of a

registration when a permit was required denied members of CALH, the City, and

all other affected persons their right to notice and a contested case hearing, as

required under the Health and Safety Code for MSW permit applications.101

III. THE REGISTRATION SHOULD BE REVERSED BECAUSE TCEQ

ALLOWED AN EXCESSIVE NUMBER OF NOTICES OF

DEFICIENCY WELL BEYOND ITS PUBLICLY PRONOUNCED

POLICY.

The TCEQ failed to follow its publicly stated policy controlling Notice of

Deficiency (“NOD”) procedures. A NOD is sent by TCEQ to notify applicants of

deficiencies in their applications and allows them to submit additional information

to address the deficiencies. TCEQ publicly represented that they employ a limit of

99

County of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex. 2007) (holding that “the deputies were

discharged without the hearing before the civil service commission promised by system rules to

determine whether just cause existed, and thus they were denied procedural due process.”)

(emphasis added).

100

See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079,

361.0791, and 361.081 (relating to various application notice requirements, published notice

requirements, mailed notice requirements, hearing notice requirements, and contested case

hearing requirements for MSW permit applications).

101

See id.

42

two NOD’s. TCEQ should follow its own public policy pronouncements. Even

TCEQ’s own Public Interest Counsel agrees, stating “the public must have

confidence that the TCEQ applies its stated policies, including the two NOD

policy, to all applicants in a uniform manner.”102

This Registration Application should have been returned to Pintail because

excessive Technical Notices of Deficiency (NOD’s) were allowed in violation of

clearly established TCEQ Policy. During the review, Pintail was afforded at least

six (6) separate NOD’s and two (2) extensions of time to respond to the NOD’s

from the TCEQ.103 This is in direct conflict with the TCEQ’s previous warnings to

Pintail and the TCEQ policies outlined in the MSW registration process

description, which is located in the TCEQ Sunset Evaluation Report. In its First

Technical NOD dated October 27, 2011, the TCEQ flatly warned Pintail that the

TCEQ did not “anticipate granting an extension of time to fulfill this request,” and

that a “third notice of technical deficiency will not be issued.”104 The public

should be entitled to rely on the clear and unambiguous policies and directives of

the TCEQ when the TCEQ evaluates applications that could have catastrophic

effects on the health, safety, and financial well being of affected parties.

102

R.R. at Joint Ex. 1, AR Vol. 8, Item 61, p. 3–4 (Office of Public Interest Counsel’s Response

to MTO).

103

See R.R. at Joint Ex. 1, AR Index, Items 3, 13, 16, 22, 24, 27, 32, and 39.

104

R.R. at Joint Ex. 1, AR Vol. 2, Item 13 (NOD Letter and Policy Notice to Pintail).

43

Instead, Pintail got at least eleven (11) bites at the apple to supply required

information and respond to the numerous concerns outlined by the TCEQ staff

regarding this “transfer station” and recycling facility.105 As stated in the MSW

Registration No. 40259 itself, the registration request was submitted on August 1,

2011, and ten (10) additional revisions were submitted on August 8, 2011, August

29, 2011; November 16, 2011; January 18, 2012; March 15, 2012; May 1, 2012;

May 31, 2012; July 20, 2012; September 14, 2012, and October 18, 2012.

In the initial Technical NOD106 dated October 27, 2011, the TCEQ reviewer

of the Registration Application wrote, “we do not anticipate granting an extension

of time to fulfill this request. Also, please be aware a third notice of technical

deficiency will not be issued.” (emphasis added).107 The reviewer also stated in

the same correspondence that “Failure to submit a satisfactory response to each of

the noted deficiencies may result in the application being returned due to technical

deficiencies.” These statements by staff are consistent with TCEQ policies, as

recently expressed in its TCEQ Sunset Evaluation Report.108 As stated in the

report, which contains a flowchart of the MSW registration review process,

105

R.R. at Joint Ex. 1, AR Vol. 7, Item 55, p. 6 (MSW Registration No. 40259).

106

Although this Technical NOD was labeled the First Technical NOD, there was actually

correspondence from the TCEQ dated August 15, 2011 that was labeled “Preliminary Review”

asking for information to be added to the original registration request.

107

R.R. at Joint Ex. 1, AR Vol. 2, Item 13 (NOD Letter and Policy Notice to Pintail).

108

R.R. at Joint Ex. 1, AR Vol. 8, Item 61, p. 3–4 (citing TCEQ Sunset Self-Evaluation Report,

Sec. VII, P. 248).

44

registration requests are returned to the applicant after an applicant unsuccessfully

resolves the Second NOD.109

The registration review process documents from 2009-2010 and 2010-

Current reveal a consistent TCEQ instruction to its staff, applicable to all

registrants:

“Review the second NOD response. If the application still has

significant deficiencies, prepare a letter for the Section Manager’s

signature returning the application with an explanation why the

application is being returned. If the deficiencies are very minor in

nature, work with the applicant/consultant to resolve them. There are

no third NODs.” (second emphasis added).110

According to the registration procedures, only very minor deficiencies may

be addressed, and there are no third NODs. A consultation between the reviewer

and team leader to determine the next course of actions (i.e., whether the issues are

easily addressed minor issues) is consistent with the stated procedure.

Regardless of these statements and the dissonance with applicable TCEQ

policies, on December 2, 2011, an extension was granted to allow Pintail additional

time to respond to the First NOD.111 Pintail did respond on January 18, 2012, but

the response was again inadequate, as the reviewer sent another request for

additional information on February 17, 2012.112 And, even though it is labeled

109

R.R. at Joint Ex. 1, AR Vol. 8, Item 58, Ex. 2 at 248.

110

R.R. at Joint Ex. 1, AR Vol. 8, Item 65, Ex. 1, p. 3 of registration procedures document

(CALH’s Reply to Responses to Motion to Overturn).

111

R.R. at Joint Ex. 1, AR Vol. 2, Item 16.

112

R.R. at Joint Ex. 1, AR Vol. 4, Item 22.

45

“First Technical Notice of Deficiency,” the letter is clearly an indication that

Pintail did not submit a satisfactory response to each of the noted deficiencies in

the first technical notice of deficiency. As such, it appears the Registration

Application should have been returned at this time. However, not only was the

Application not returned, Pintail was granted yet another extension to respond to

the Third Technical NOD.113 Despite the statements from TCEQ staff that there

would not be more than two (2) NOD’s, this pattern continued for a total of at least

six (6) NOD’s.114

The registration should have been returned after Pintail’s failure to address

TCEQ’s concerns in the Second NOD, in accordance with the TCEQ’s policy and

the TCEQ staff’s statements. Allowing Pintail to continue to inadequately respond

to more than two (2) Technical NOD’s is a departure from the stated policy, and

should not be allowed by the Commission. For this reason alone, the

Commission’s approval of MSW Registration No. 40259 is marred by abuse of

discretion, unlawful procedure, and unreasonable errors of law. Accordingly,

issuance of the registration should be reversed.

The TCEQ has argued that it is entitled to publicly pronounce its policy

113

R.R. at Joint Ex. 1, AR Vol. 5, Item 24. Interestingly, this Technical NOD was not given a

number (nor were the two subsequent NODs of June 25, 2012 and August 16, 2012, given a

number), but by our count it is actually the Fourth NOD when you count the “Preliminary

Review”.

114

See R.R. at Joint Ex. 1, AR Index, Items 3, 13, 16, 22, 24, 27, 32, and 39.

46

controlling NOD procedures, yet not follow that policy because it is not

incorporated into TCEQ rules.115 Appellants respectfully disagree. The TCEQ

should be bound to follow its public pronouncements. Without such a

requirement, the public will lose trust in their state environmental regulators. Here,

the Registration Application should have been returned to Pintail after the

unsuccessful resolution of the Second NOD. Instead, Pintail received six (6)

separate NOD’s resulting in eleven (11) different versions of the Registration

Application. The TCEQ’s refusal to follow its own publicly pronounced NOD

policy harmed CALH and its members, harmed the City, and harmed the public of

Texas. Such refusal was an abuse of discretion, unlawful procedure, and an

unreasonable error of law, and accordingly, was invalid, arbitrary, or unreasonable.

For this reason, Appellants respectfully request that registration of this Facility be

reversed by the Court.

115

R.R. at Joint Ex. 1, AR Vol. 7, Item 53, p. 8 (Response to Comment 10).

47

PRAYER

TCEQ acted in violation of its own rules and policies, and in abrogation of

the due process rights of affected persons, in granting the Registration Application

and issuing Registration No. 40259. Therefore, CALH and the City respectfully

pray that the trial court's Judgment affirming the TCEQ’s action be reversed, and

that Court reverse, or suspend and set aside, the Registration and remand this

matter to TCEQ for further proceedings consistent with this Court’s opinion.

CALH and the City further pray for all other and further relief, both general and

special, at law and in equity, to which they may be justly entitled.

Respectfully submitted,

HANCE SCARBOROUGH, LLP

400 W. 15th Street, Ste. 950

Austin, TX 78701

Telephone: (512) 479-8888

Facsimile: (512) 482-6891

By: _______________________

Terry L. Scarborough

State Bar No. 17716000

Michael L. Woodward

State Bar No. 21979300

mwoodward@hslawmail.com

V. Blayre Pena

State Bar No. 24050372

bpena@hslawmail.com

Wesley P. McGuffey

State Bar No. 24088023

wmcguffey@hslawmail.com

48

ATTORNEYS FOR APPELLANTS CITIZENS

AGAINST THE LANDFILL IN HEMPSTEAD,

MICHAEL MCCALL, AND WAYNE KNOX

KELLY HART & HALLMAN LLP

301 Congress Avenue, Suite 2000

Austin, Texas 78701

Telephone: (512) 495-6400

Facsimile: (512) 495-6401

By: /s/ Diana L. Nichols

Monica M. Jacobs

State Bar No. 24007433

Monica.Jacobs@kellyhart.com

Diana L. Nichols

State Bar No. 00784682

Diana.Nichols@kellyhart.com

ATTORNEYS FOR THE CITY OF

HEMPSTEAD

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this

brief contains 8,319 words. This is a computer generated document created in

Microsoft Word, using 14 point typeface for all text, except for footnotes, which

are in 12-point typeface. In making this certificate of compliance, I am relying on

the word count provided by the software used to prepare the document.

Terry L. Scarborough

49

CERTIFICATE OF SERVICE

I hereby certify that a copy of Appellants’ Brief was served on the following

counsel of record on February 25, 2015, via certified mail, return receipt requested,

and/or the electronic filing system:

Nancy Elizabeth Olinger

Nancy.Olinger@texasattorneygeneral.gov

Cynthia Woelk

Cynthia.Woelk@texasattorneygeneral.gov

Daniel C. Wiseman

Daniel.Wiseman@texasattorneygeneral.gov

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Environmental Protection Division (MC-066)

P.O. Box 12548

Austin, TX 78711-2548

ATTORNEYS FOR TCEQ

Paul R. Tough

ptough@msmtx.com

Brent W. Ryan

bryan@msmtx.com

MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP

P.O. Box 12127

Austin, TX 78711

ATTORNEYS FOR THE PINTAIL LANDFILL, LLC

Terry L. Scarborough

50

APPENDIX A

DC BK14248 PG410

Olsp

Disp code: CVD r ClS _ _ _ _......._..........,

CAUSE NO. D-1-GN-13-002918

CITIZENS AGAINST THE § IN THE DISTRICT COURT

LANDFILL IN HEMPSTEAD, §

MICHAEL McCALL, WAYNE §

KNOX, and CITY OF §

HEMPSTEAD, §

Plaintiffs, §

§

v. § TRAVIS COUNTY, TEXAS

§

TEXAS COMMISSION ON §

ENVIRONMENTAL QUALITY §

and PINTAIL LANDFILL, LLC, § 201ST JUDICIAL DISTRICT

Defendants. §

FINAL JUDGMENT

On September 3, 2014, this cause came on for hearing on the merits before

the Court. All parties appeared through their counsel of record. The Court, having

considered the pleadings, briefs, and Administrative Record, and having heard the

arguments of counsel, is of the opinion and finds that this Court must affirm the

July 23, 2013 decision of the Executive Director of the Texas Commission on

Environmental Quality ("Executive Director") to approve and issue Registration

No. 40259 to Pintail Landfill, LLC.

Page I of2

503

DC BK14248PG411

According! y,

IT IS, THEREFORE, ORDERED that the Executive Director's July 23,

2013 decision to approve and issue Registration No. 40259 to Pintail Landfill, LLC

be and is in all things AFFIRMED.

IT IS FURTHER ORDERED that all relief not expressly granted herein is

DENIED, and this judgment finally disposes of all parties and all claims and is

appealable.

IT IS FURTHER ORDERED that each party shall bear its/his own costs.

SIGNED this day of

Page2of2

504

APPENDIX B

TCEQ REGULATORY GUIDANCE

Small Business and Environmental Assistance Division

RG-469 ~ Revised July 2013

Traditional Municipal Solid

aste Disposal: uide

for local overnments

Contents

Traditional Waste Management-Landfills ....................................... 2

Types of Landfills................................................................................................................................. 3

Initial Collection.................................................................................................................................... 4

Transportation ............................,......................................................................................................... 4

Consolidation......................................................................................................................................... 4

Operations............................................................................................................................................... 6

Cleaning Up Your Community .......................................................... 8

Waste from Disposal of Nuisance and Abandoned Buildings ............................................. 8

Special Collection Days...................................................................................................................... 9

Collection Days for Household Hazardous Waste ................................................................... 10

.......... ...... . .................. Agric:µl _tµra~ W.Ci.ste f> ~$tiC:ic:Jgs .'.'.:c •.'.'.'. ,, '.'.'.'. ,_.. ·.~:·:.'.'.'.'."'.'''. ,,,,::,_-_., •• _•• ,, ·-~'::,,. ·:, ,,,,._. ._._.,,, ,,:, ,: , ,., •• , ,_. •• ,,,,: ._,,,,,,_._..,. _11 __

Storm Debris ................................................................................ ., ........................................................ 11

Preventing Illegal Dumping.............................................................................................................. 13

Don't Mess with Texas Water .......................................................................................................... 13

Options for Material Diversion ....................................................................................................... 13

Material .................................................................................................................................................... 14

Optio11 ........ :.............................................................................................................................................. 14

Benefits ...............................................................................................................................,.................... 14

Additional Requirements for MSW Facilities ................................... 14

Supervisor or Manager ...................................................................................................................... 14

Financial Assurance ............................................................................................................................ 15

Water Regulations .............. ;................................................................................................................ 16

Air-Pollution Control ............................................................................................................. ,. .... ., ..... 16

Reports ..................................................................................................................................................... 17

Fees ............................................................................................................................................................ 19

Statewide and Regional Planning ................. "............................................................................... 19

fuspectlons: What to Expect oao-Qt1•0--oo"'"'ci•G<11011-qe11q.cia ...... °' .. "'"'o•o•ooeoaaaoocaaf1ooocaoC1.•a..,C1Q .. a 20

Texas Councils of Governments ....................................................... 2n_

For More fuforma.tion Qi>Cl-i:l ... 'l'c;l•QO<>lllCIC>qCIOOGQOCl&O•aao.oa•oo.gQCIOQCIQfl,-ClaaaQU•a.aoa. .. 11000 ... Q<;i-4•00.;a.a,oo 22

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY • PO BOX 13087 • AUSTIN, TX 78711-3087

The TCEQ i"s sn £qua[ ~pportunity employer, The agency does nat allow disoiminaliun on the baS;iS of r.ece, col-or, rerigion, national orig.in, se:x-, disability. agE\ s.axual orientation, or\reteran slatus.

h1 compliance wil.!1 thB Americans wiCTl Dis:abif"r:.ies Act., th1s dm;ument may be reqLiesle-11 iri alternate formals by conlactlng the TCEa. at 512·239-0028. fax: 512-239-4468, ar 800-REL!\Y-TX

(TDD), or by writing PO Box: 130S7, Au~n TI\ 7B7ii~30B1. We authorize you lo IJSe or reproduce any D.rlgtnal rnate:r:ial ctmlairied In. this pubacation--ths:t Is, rmjl mElerial W& dicl nof obtairi from

o!hersuL1rces. Plense acknowledg~ tha TCCO. as your source. Pririied on recycled paper.

420

Traditional Municipal Solid Waste Disposal: A Guide for local Governments TCEQ publication Pub. No. RG-469

Who Should Use This Guide?

This document is intended to help local officials and governments

understand and comply with the rules on landfills and management of

municipal solid waste (MSW), and the associated authorizations, reports,

and fees. This publication is not a substitute for the actual rules.

Authorities and Regulations

Texas has been authorized by the U.S. Environmental Protection Agency to

manage its MSW program. Texas statutes are consistent ·with the federal

rules, but MSW in Texas is managed specifically in accordance with Title

30, Texas Administrative Code, Chapter 330 (30 TAC 330) and Title 5,

Texas Health and Safety Code, Chapters 361and363. Municipal solid waste

is defined in 30 TAC 330.3(88) as:

Solid waste resulting from or incidental to municipal,

community, commercial, institutional, and

recreational activities, including garbage, rubbish,

ashes, street cleanings, dead animals, abandoned

automobiles, and all other solid waste other than

industrial solid waste.

Other rules for MSW in Texas are found in 30 TAC 332 (for composting)

and30 TAC 328 (for recycling). You can obtain the most current, official

copy of state ru1es by contacting the Secretary of State's office, at 512-305-

.· ··· ··· ····· ··· 9623; or visiting our website, at<www.tceq.state.tx.us/goto/rules.,.]Jdf> ...

Your local city and county authorities may also have regulations that affect

your facility's v.raste management operations. Contact your local

government to determine if your operations are authorized.

The federal rules for MSW are contained in Title 40, Code of Federal

Regulations, Parts 257 and 258. These rules can be obtained by contactll1g

the U.S. Government Printing Office at 866-512-1800, or by visiting the

GPO website, at <wv,rvv.ecfr.gov>.

Traditional Waste Management~landfiUs

The traditional waste-management solution is the landfill. A local

government must determine which kinds of landfill and which procedures

for the collection, transportation, consolidation, and disposal of waste are

appropriate for its community. From collection to disposal in a landfill, each

phase has a number of rules that apply.

Ju!y2013

421

TCEQ publication Pub. No. RG-469 Traditional Municipal Solid Waste Disposal: A Guide for local Governments

Types of landfills

Type I and IV landfills

(30 TAC 330.5)

Type I landfills are the standard and most common landfills for the disposal

of routine MSW in Texas. They-may accept most types of household and

putrescible waste. Type IV landfills may accept brush, construction and

demolition waste, and rubbish, but may not accept household or putrescible

waste. Household waste is defined as:

Any solid waste (including garbage, trash, and

sanitaiywaste in septic tanks) derived from

households (including single and multiple residences,

hotels and motels, bunkhouses, ranger stations, crew

quarters, campgrounds, picnic grounds, and day-use

recreation areas); does not include brush.

[30 TAC 330.3(64)]

Putrescible waste is defined as:

Organic wastes, such as garbage, wastewater treatment

plant sludge, and grease trap waste, that are capable of

being decomposed by microorganisms with sufficient

rapidity as to cause odors or gases or are capable of

providing food for or attracting birds, animals, and disease

vectors. [30 TAC 330.3(119)]

····· · Arid Exemptlandfills ··

(30'TAC 330.5)

In the case of small municipal governments in arid areas of the state, the

TCEQ may authorize arid exempt landfills, which are generally exempt

from regulations on liners and groundwater monitoring in 30 TAC 330,

Subchapters H and J. To operate as an arid exempt landfill, the facility must

first be authorized by the TCEQ in accordance with 30 TAC 330.5(b). To

qualify as such, an arid-exempt (AE) landfill must:

"' Accept less than 20 tons per day, based on an annual average of

authorized waste in either a Type I-AE or Type IV-AE landfill unit (a

discrete area: of land or excavation that receives waste). A facility1-vith

both unit types may have a total waste acceptance of 40 tons per day.

., Serve a community that has no practical alternative for waste

management.

" Be in an area that receives no more than 25 inches of annual average

precipitation based on data from the nearest official recording station for

the most recent 30-year reporting period.

Jufy2013 3 422

Traditional Municipal Solid Waste Disposal: A Guide for Local Governments TCEQ publication Pub. No. RG-469

Initial Collection

(30 TAC 330, Subchapter C)

Collection of MSW is regulated by 30 TAC 330, Subchapter C. To minimize

odo:rs and nuisance conditions, waste that contains put:rescible material

must be collected at least weekly. All collection vehicles must be builtt

operated, and maintained to prevent loss of waste, whether ljquid or solid;

minimize health and safety hazards; and preclude odors and fly breeding.

Waste collection is usually the largest portion of an MSW budget.

To help local governments increase the efficiency of waste collection

and thereby lower its costs, the EPA prepared the guidance

docmnent Getting More for Less: Improving Collection Efficiency

(EPA 530-R-99-038). EPA publications on waste can be found at

<www.epa.gov/wastes/inforesources/pubs/ >. Some of the principal

methods for cutting costs are changing the frequency of collections,

improving routing, and using automated equipment.

Transportation

(30 TAC 330, Subchapter C)

MSW transporters are regulated by 30 TAC 330, Subchapter C. It is the

transporter's responsibility to ensure that waste is delivered to a facility

that is authorized to accept that type of waste. Transporters must maintain

records for a minimum of three years, which document? that each load of

waste was taken to an authorized MSW facility. In addition, if a discharge of

. .... . ...... ...... ... waste occurs during transport, the waste hauler m:usttakeiuunediate :;icJiqµ .

to contain the waste and deliver it to an authorized facility.

Consolidation

(30 TAC 330, Subchapters A and E)

Consolidation of waste is an interim waste-management solution for

lowering operational costs. Money is saved by storing waste at a facility

before transporting it to its final disposal destination. A few large-volume

trucks then take the waste to the final disposal facility, rather than

nIDnerous small trucks traveling the distance-saving both fuel and labor.

There are various consolidation options, including transfer stations and

citizen collection stations. Depending on size of the population served or the

volume of waste handled, your facility may require authorization from the

TCEQ, ranging from notification to permit. Authorization requirements for

each consolidation option are covered later in this document.

4 July2013

423

TCEQ publication Pub. No. RG-469 Traditional Municipal Solid Waste Disposal; A Guide for local Governments

In areas of the state that are underserved by waste-collection services or do·

not have access to proper disposal facilities, funds may be available to study

the feasibility of a waste consolidation facility. Contact your local council of

governments (COG) to determine whether there are grants available for this

kind of study.

Transfer Stations

A transfer station is defined at 30 TAC 330.3(157) as:

A facility used for transferring solid waste from

collection vehicles to long-haul ve4icles (one

transportation unit to another transportation unit). It

is not a storage facility such as one where individual

residents can dispose of their wastes in bulk storage

containers that are serviced by collection vehicles.

Transfer facilities offer an alternative when the landfill is so far away

that it is not economical for each waste-collection vehicle to make

round trips. Transfer stations allow local waste haulers to temporarily store.

waste and then use large-volume trucks to haul waste to the distant landfill.

Though transfer stations save money, they have their uwn operating

expenses. It is important to determine whether a transfer facility would

be cost effective. The EPA's Waste Transfer Station: A Manual for

Decision Making (EPA 530-R-02-002) can help local governments with

cost analysis .

. .Operating a transfer station :typically requires. a registration or a permit...

However, small communities may be able to establish low-volume transfer

stations with just a notification. To qualify for this type of authorization, the

community must control the facility, comply with local ordinances, notify

adjacent landowners, and haul collected waste to a final disposal facility at

least weekly. A low-volume transfer station may store, at most, 40 cubic

yards of waste.

To start a low-volume transfer station, a local government

must submit a Notice ofintent to Operate a Low-Volume Transfer

Station (Form TCEQ-20370). TCEQ forms can be found at

<WWW. tceq.texas.gov/search_forms.html>.

Transfer stations that cannot meet the 40-cubic-yard limit vvill have to

obtain either a registration or a permit. To be eligible for registration as a

transfer station, the facility must meet one of the follmv:ing criteria:

" It serves a municipality,;.vith a population of fewer than 50,000.

a It serves a county ·with a population of fewer than 85,000.

July 2013 5

424

Traditional Municipal Solid Waste Disposal: A Guide for Local Governme11is TCEQ publication Pub. No. RG-469

., It transfers or proposes to transfer no more than 125 tons per day of

MSW.

"' It is within the permitted boundaries of an MSW Type I or Type IV

facility.

If none of these criteria can be met, a permit is :required.

.All transfer stations must follow the operating procedures outlined

in 30 TAC 330, Subchapter E, which include, but are not limited to,

record.keeping, safety procedures, and maintaining sanitary conditions.

Templates for the preparation of site operating plans fo:r a transfer station

can be found on the TCEQ's website, at <'NWW.tceq.state.tx.us/goto/

msw_sop>. Transfer facilities are also required to submit annual reports on

the volume of waste accepted. See the "Reports'~ section of this document,

under "Additional Requirements."

Citizen Collection Stations

A second waste-consolidation option, used when door-to-door waste pickup

service is not cost effective, is a citizen collection station (CCS). CCSs are

temporary holding facilities where residents can take their household waste

for storage until it can be transported to an MSW disposal facility. The

collection facility should be located in an area that is convenient and easily

accessible. It gives a community the ability to conveniently and legally

dispose of household waste.

CCSs are regulated by 30 TAC 330.n(e) and 330.213. If your local

government would like to establish a citizen collection facility, it must

.-··· siibiiiif:aNonceofintenno- Operate aCitizen's Collectio11 Statimi-('.Form

TCEQ-20429, available at <~Nwvv.tceq.texas.gov/search_forms.html> ). The

containers provided at the facility should be compatible with the type and

quantity of household waste accepted. To prevent illegal dumping, you

should post rules governing the use of the CCS facility (including who may

use it and what may or may not be deposited), collect waste on a scheduled

basis, and-if possible-have an on-site operator supervising the facility.

CCSs must follow the same standards as landfills for safety, prevention of

scavenging, and control of litter and odor.

Operations

(30 TAC 330, Subchapter D)

All registered or permitted MSVv disposal facilities must follow the site

operating plan (SOP) designed and approved specifically for that site. The

SOP describes the day-to-day procedures for facility operations. You can

find a few of the key elements for an SOP below.·

6 July 2013

425

TCEQ pubucation Pub. No. RG-469 Traditional Municipal Solid Waste Disposal: A Guide for Local Governments

Unloading

It is the generator's responsibility not to send unauthorized material to a

landfill for disposal, and it is the landfill operator's responsibility to prevent

the disposal of unauthorized waste or disposal in the wrong location. It is

imperative that a trained operator visually screen all collected and unloaded

waste to prevent disposal of unauthorized material. Unloading should be

confined to as small an area as practical, and the facility's SOP should

define the maximum size and number of unloading areas.

The operator must:

"' reject unauthorized waste

.. arrange to have unauthorized material removed by the generator or

transporter

.. maintain the facility's operating records of visual load inspections and

rejected materials

.. list unauthorized materials

a on signs posted at the entrance

a on bills

o on fliers handed out to haulers at the gate

Daily Cover

To control disease and nuisance conditions, it is critical to control odors

with daily cover. Waste must be covered at least daily in Type I and

.'fypel-:i\Ef<l-c:iliti~s,. Cl.11Cl.\!Veel<lyirl 'fyp~ IY 3Jl<:l'fyp~ lV-:-AEfadlities. If ..

the facility would like to use an alternative daily cover, it must secure

approval from the TCEQ in accordance with 30 TAC 330.165. For more

information about alternative daily covers, contact the Waste Permits

Division at 512-239-2335.

Preventing Nuisance Conditions

Ponding of water over waste or cover, ·windblm<\lll litter or waste, and

scavenging must be managed to prevent nuisance conditions. Ponded water

must be removed, and the surface filled in and re-graded within seven days

of the occurrence. When the facility is operating, windblown solid waste

must be removed daily from around the site, along fences and access roads,

at the gate, and along any public roads connected to the facility's entrances

(at a minimum, two miles in either direction from the entrances). To help

prevent scavenging, the perimeter of the site must be controlled by means

of artificial barriers, natural barriers, or a combination of the tlNo.

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Special Waste

Facilities operating in compliance with Chapter 330 may obtain

authorization to accept some special wastes not specifically identified in

330.171(c). Special waste approvals will be waste-specific or site-specific. To

receive authorization for a waste that your permit does not currently allow

in accordance with 30 TAC 330.171(b), contact the TCEQ. Additional

information is available in Special Waste Regulations in Texas CfCEQ

. publication RG-029).

Note: Certain waste streams are prohibited from MSW facilities. See

30 TAC 330.15 for a comprehensive list.

Cleaning Up Your Community

Every community deals with waste beyond everyday household waste.

These other waste streams can be offensive to the senses~ as well as take up

limited landfill space. Local governments can take a proactive approach to

managing these wastes-planning saves both labor and landfill capacity.

As you develop your recycling or disposal strategy, you can determine

whether your cleanup will generate revenue or cost money. If your cleanup

is not properly budgeted, your local government may be stuck with

materials that it cannot properly dispose of or recycle. Stockpiling materials

without the prospect of recycling them could be considered abandonment,

plus it increases your risk of creating nuisance conditions.

Waste from Disposal of Nuisance and Abandoned Buildings

[30 TAC 330.7(i)]

Counties or municipalities with 12,000 or fewer people. may obtain a permit

by rule (PBR) to dispose of demolition waste from properties with nuisance

or abandoned buildings. The PBR applies to buildings that have been

acquired by a county or municipality by bankruptcy, tax delinquency, or

condemnation. Disposal can only occur on land that is owned or controlled

by the county or municipality, and that receives 25 inches average annual

rainfall or less.

To claim this PBR, contact the MSW Permits Section for a simple

application form. You must submit the form to the TCEQ, and the agency

must acknowledge receipt, before you begin construction of the disposal

site. The complete rules appear in 30 TAC 330.7(i).

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For more information or help with claiming this PBR, call the TCEQ's MSW

Permits Section at 512-239-2335 or the TCEQ's Small Business and Local

Government Assistance section at 800-447-2827.

Special Collection Days

If your community would like to hold a special collection day for residents

that deters illegal dumping and beautifies the community, preparation is

key. To have a successful event, you must plan each component of the

cleanup-from acceptance to final disposal-well in advance.

A permit, registration, notification, or other authorization is not required

for a collection point for wastes collected and received in sealed plastic bags

from such activities as periodic citywide cleanup campaigns and cleanup of

rights-of-way or roadside parks.

One of the major priorities of a public collection event is to arrange for final

disposal of every waste stream before the collection date. If waste remains

at the collection area for an extended period of time, it creates ai1 "out-of-

sight, out-of-mind'' mentality and promotes illegal dumping. Ideally, all

wastes should be removed immediately following the event or as soon as

possible to avoid the creation and maintenance of a nuisance, or the

endangerment of human health or the environment. Options for final

disposal include recycling, composting, and using landfills. With each

option, you should consider several basic questions:

...... .. . ....... Recycling

., What materials do we want to recycle?

.. Who accepts these materials for recycling?

.. Is more than one recycling company required to meet the needs of our

cleanup?

"' Are these companies reputable and reliable?

Composting and mulching

.. Is there a demand for compost or mulch?

"' Where vvill we store the processed and unprocessed material?

"' Should we hire a company to compost or mulch the materials that are

collected?

" Will we use our ovm equipment and workforce to process materials?

o Should we promote household composting at the event? (If so, see the

TCEQ'sMulching and Composting [GI-036], available at

<wvvv.r.tceq. texas.gov/publications/ search_pubs.hhnl >.)

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Using lam:.Ums

" What waste does. the landfill accept?

" Does the landfill have the available capacity?

General

® What wastes will not be accepted during the collection?

"' How will we prevent dumping of unaccepted w~te?

" If unacceptable waste is found, how vvill we dispose of it?

" What is our plan to prevent and, if necessary, contain spills?

" Is TCEQ authorization required for the collection?

Collection Days for Household Hazardous Waste

(30 TAC 335, Subchapter N)

Often, residents store household hazardous waste (HHW) because they are

unsure of how to properly dispose of it. Although HHW can usually be

legally disposed of in the normal trash, there are better disposal options that

local governments can arrange. For more information, contact the TCEQ's

Pollution Prevention and Education Section at 512-239-3100.

Operational Plan

An HHW collection requires more time to plan than other types of

collection events. The TCEQ requires notification and development of a:n

............. ..................... opera,ti()l1(ll plai:i i11 (lCC()r~aJ1C~ vvitli 30 'fAq 3.35, §11b~J:iap~er ~- .. .

To hold an HHW collection, you must:

" Complete the notification no later than 45 days before the collection date.

" Develop and address in your operational plan all the components

identified in 30 TAC 335, Subchapter N.

"' Make your operational plan readily available upon request by the TCEQ.

" Include the following key components~along with other appropriate

measures-in your operational plan:

e safety measures

"' - training about collection for employees or volunteers

" a determination of the types and amounts of waste expected

.. ar:rangements for the proper disposal of all the wastes collected

Contact the TCEQ's Pollution Prevention and Education Section at

512-239-3100 for a list of companies that conduct HHW collections and

that package, transport, and dispose of hazardous waste. You can also

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arrange for other HHW programs in the area to take the wastes from your

collection. The contact information for these programs is available from the

Pollution Prevention and Education Section or online at

<www.tceq.texas.gov/gotojhhw-contacts>.

Agricultural Waste Pesticides

Improper disposal of waste pesticide can have serious adverse effects on the

environment, such as groundwater contamination. Take special care to

recycle or properly dispose of all pesticides.

Empty Plastic Pesticide Containers

Plastic pesticide containers that have been triple rinsed or pressure washed

and rendered unusable are not considered hazardous waste, and can be

disposed of ill an MSW facility that is permitted to accept this special waste.

Not all landfills choose to accept pesticide containers, however, even if

the containers have been properly rinsed, and the landfills that do accept

them usually charge a fee. Instead of disposing of these containers,

consider recycling them. For more information, see USAg Recycling, at

<www.usagrecycling.com>.

Storm Debris

At one time or another, every local government will be faced -with managing

.. debris caused by tornadoes, hurricanes, .hail, or winds.. Ifimproperly

managed, the cleanup and removal of storm debris can unnecessarily cost

thousands of dollars in transportation charges and disposal fees alone.

Table 1 (under "Options for Material Diversion," below}, lists options for

recycling different materials.

In general, outdoor burning is prohibited in Texas. If your local government

would like an exception, you will need to meet specific requirements and

obtain approval from the appropriate TCEQ regional office before doing

any burning. You -will also need to check local ordinances or other

regulations about outdoor burning. If there is a burn ban in your county, the

TCEQ will not approve any exception to the rule. For additional information

concerning outdoor burning in Texas, :including a copy of the rule, consult

the TCEQ's Outdoor Burning in Texas (Pub. No. RG-049).

Note: It is strictly prohibited to burn any electrical insulation, treated

lumber, plastics, non-wooden construction or demolition materials, heavy

oils, asphaltic materials, potentially explosive materials, chemical wastes, or

items that contain natural or synthetic rubber (such as tires).

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Planning for the Inevitable

Initiate and destgn a plan that fits your specific area. Texas is a big state;

some options may not be practical for all areas. You should develop a plan

for the transport, storage, processing, and disposal of various forms of

storm debris. This should include identification of suitable sites to

temporarily store, segregate, or process large amounts of debris following a

disaster. You should consider requesting that residents set appliances,

household hazardous waste, brush, construction debris, and putrescible

wastes in separate piles for pickup after a storm. Tell contract haulers to

maintain separation of materials during the collection, transport, and

storage of storm debris to maximize your options for recycling waste and

minimize waste-disposal costs. Before designing your plan, you should

consider the following:

Available landfill space

" Where is the closest landfill?

" What is its disposal capacity?

" What types of waste does it accept?

Recycling options

.. What recycling options are available in or near the area?

o What do we need to do to make certain that materials are adaptable for

recycling?

......... " Wl1i~~ specific n1aterials are not recyclable in this area?

labor resources (available workforce)

o Are there labor sources in the city or county?

.. Are there optional labor sources (such as prison or jail inmates) in

the area?

" Is it possible to recruit volunteers from the community?

Avallable equipment (hauling trucks, loaders, chippers, grinders,

storage trailers)

o What equipment is available for cleaning up storm debris?

" Is there access to chippers and grinders?

"' Can we borrow equipment from surrounding communities?

" Can we establish a memorandum of understanding for mutual aid with

neighboring communities?

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Available storage locations

.. Where could source-separated materials (those sorted at their origin) be

temporarily stored?

.. Do storage areas have adequate space for processing source-separated

materials if required?

In an emergency, recycling is not always the most time-efficient way to

manage storm debris, but if you prepare in advance, you will most likely

make after-storm cleanup a more cost-effective, manageable experience.

Preventing Illegal Dumping

Many communities across Texas are facing problems with illegal dumping.

Not only is it offensive to the senses, it can drain local government

resources. The city or county often becomes responsible for the collection

and disposal of the trash left at an illegal dump site. The labor and disposal

costs associated-with these sites can eat away at a local government's

budget. To help combat illegal dumping in your community, see the TCEQ's

Prevent Illegal Dumping: A Guide for Local Governments (RG-455).

Don't Mess with Texas Water

The Don't Mess -with Texas Water program offers local governments

another tool to help prevent illegal dumping. The TCEQ, Texas Department

of Transportation, and participating communities are working together to

.... pla~~ ~igll.~ ()]]_ ~~jor llighway vvater crossings that notify drivers ~fa tali~

free number to call to report illegal dumping.

The TCEQ forwards calls from the toll-free number to the appropriate

law-enforcement agency to handle complaints of illegal dumping in a ·

participating area.

For more information on the program or to find out how your cormnunily

can participate, visit our Web page at <WWl-v.tceq.texas.gov/goto/

durnpreport>.

Options for Material Diversion

Once waste is collected, separating sources of ,,vaste is critical to the success

of any cleanup activity. Depending on your area and the options available,

separating materials at the time of the cleanup can save you hundreds or

even thousands of dollars. For recycling services in your area, visit Earth

911's recycling website at <earth911.org/recycling>. Below are some ideas

for managing recyclable waste.

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Table 1. Options for Material Diversion

Material Opt.ion Benefits

Chipped wood: Clean, Mulch Prevents soil erosion, controls weeds,

untreated lumber, wooden retains soil moisture, protects plants,

shingles, tree limbs, brush adds nutrients to the soil

Wood shavings, cardboard, Use in Adds nutrients to the soil, prevents

paper compost runoff, protects plants from diseases

and pests, retains soil moisture

Appliances (white goods) Recycle Conserves landfill space and natural

resources

Metal: Signs, poles, sheet Recycle Conserves landfill space and natural

metal, mobile home frames, resources

bicycles, swing sets,

trampolines

Cinder block, concrete, Recycle Conserves landfill space and natural

brick, glass resources

Electronic equipment Recycle Best management practice to prevent

groundwater contamination

Glass Recycle Conserves landfill space and natural

resources

Plastics Recycle Conserves landfill space and natural

resources

Additional Requirements for MSW Facilities

Supervisor or Manager

According to 30 TAC 30, Subchapters A and F, all MSW facilities that

require a permit or regisiTation must employ at least one licensed person to

supervise or manage the facility. The license requirements for the various

types of facilities are as outlined in Table 2.

Unless otherwise specified in their permit, all MSW facilities must have a

supervisor who holds the license level indicated in Table 2. Provisional

licenses are valid for two years and may not be renewed. Any missing

requirements must be completed before the standard license can be

obtained.

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Table 2. Licenses Required for Different Facilities

Level of

license

Type ofMSW Facility Required

All landfill facilitiesa and Type IX landfill mining Class A

facilities

Tyl_)e V storage or processing facilities not Class A

otherwise specified, Type IX energy or material- orClassB

recovery facilities, Type VI demonstration

facilities, and permitted or registered compost

facilities

a Landfill facilities include these types of landfills:

Type!

Typel-AE

Type IV

TypeIV-AE

The following are exempt from the supervisor license requirement:

<> . Type IX beneficial landfill gas-recovery facilities

"' Animal crematories, dual-chamber incinerators, aJ.1d air-curtain

incinerators operating in accordance vv:ith an MSW PBR

"' MSW facilities exempt from permitting or registration

"' Nuisance and abandoned buildings

o demolition waste disposal sites.

-.. the tCkQ will adrrzfriister field ciiiriions to faCilifies that do not have the

required licensed supervisor or manager.

Financial Assurance

(30 TAC 330, Subchapter L, and 30 TAC 37, Subchapter R)

Most MSVV facilities are required to demonstrate financial assurance for

closure, post-closure, and corrective-action costs. They must be able to

show that they are capable of paying the projected costs of closing the

facility and the associated post-closure, as well as the costs of any required

corrective action. The following mechanisms can be used to demonstrate

financial assurance: a trust fund, a surety bond guaranteeing payment or

perlormance, insurance, or a corporate financial test.

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Water Regulations

Wastewater

To protect the waters of the state, all MSW facilities must comply with the

Texas Pollutant Discharge Elimination System (TPDES). Any liquids that

the facility produces must be disposed of in a manner that will not cause

surface water or groundwater pollution. You should determine how to

handle. any wastewater that your operation creates, such as vehicle wash

water or water that has come into contact with waste. With the wastewater

system's approval, your wastewater may be discharged to the local sanitary

sewer. To disch:n:ge directly into the waters of Texas, your facility must have

a TPDES permit.

Stormwater

To prevent stormwater from being contaminated with solid waste, landfills

must obtain a stormwater permit. You can get coverage through either the

Multi-Sector General Permit No. TXR.050000 or an individual permit. The

application process for the general permit is much simpler, less expensive,

and less time-consuming than that for an individual permit.

To apply for the general permit, you must:

o develop a Storm Water Pollution Prevention Plan (SWP3) and

e file the Notice of Intent (Form TCEQ-10382) with the TCEQ.

Templates to help you develop an SWP3 are available online at

· <www;tceq.texas.gov/assistance/water/sw-industrial.html>

For assistance on obtaining coverage and meeting the requirements of the

permit, contact the TCEQ's Small Business and Local Government

Assistance Section at 800-447-2827.

Ai!·~Pollution Control

Landfill Air Authorizations

MSW facilities are required to have applicable air authorizations based on

the activities _at the site. There are three categories of air authorizations for

MSW sites: permit by rule (PBR), stand:n:d permit, or a new source review

case-by-case permit.

The simplest, least expensive, and least time-consuming air authorization to

obtain is the PBR106.534, Municipal Solid Waste Landfills and Transfer

Stations. This air authorization is for cell Oandfill-unit) construction and

activities related to waste disposal; it is not intended for other activities. See

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TCEQ publication Pub. No. RG-469 Traditional Municipal Solid Waste Disposal: A Guide for Local Governments

the section "Additional Air Authorizations" to find out if there are activities

at your facility that require other air authorizations. When claiming a PBR

106.534 air authorization, your facility must follow the requirements in 30

TAC 106.534 and 30 TAC 330, Subchapter U.

If a landfill operation cannot meet the requirements of PBR 106.534, then

the MSW air standard permit may be required. Depending on the level of

activity at the landfill, a general operating permit may be required. To

determine what level of permit is required for your facility, see the reference

guide for reviewers of air permits, Municipal Solid Waste Landfills

(MSWLF) and Transfer Stations (PDF), at

<wi..vw.tceq.state. tx.us/ goto /mswlf>.

Additional Air Authorizations

MSW facilities using PBR 106.534 may conduct activities that require

additional air authorizations. The most common PBRs and standard

permits that MSW facilities obtain are:

106.181, Used-Oil Combustion Units

106.183, Boilers, Heaters, and Other Combustion Devices

106.261, Facilities (Emissions and Distance Limitations)

106.433, Surface Coat Facility

106.436, Auto Body Refinishing Facility

106-451, Wet Blast Cleaning

106.{52, Dry Abrasive Cleaning

10 6.{54, Degreasing Units

106-472, Organic and Inorganic Liquid Loading and Unloading

....... 106.492, Flares

106-496, Air Curtain Incinerators

106.512, Stationary Engines and Turbines

Standard Permit for Temporary Rock Crushers

Standard Permit for Electric Generating Units

Reports

(30 TAC 330.675)

The TCEQ requires reports from registered and permitted facilities that

track the amounts and types of waste they store, treat, process, recover,

recycle, or dispose of in the state, enabling the agen_cy to equitably assess

fees. In addition, the state tracks the available disposal capacity for future

waste. It is important that the facility operator submit the required report

by the due date. Late reports are sufficient cause for the TCEQ to revoke a

permit or registration.

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Measuring Waste

To accurately record waste for reporting to the agency, the facility must

measure or weigh waste received at the gate, prior to disposal or

processing. For quarterly reporting, the waste accepted is reported as it was

recorded at the gate,. whether compacted/uncompacted tons or compacted/

uncompacted cubic yards. For annual reporting, the total waste accepted

must be reported in tons; if you use volumetric measurements in your

facility's records, you can convert them to short tons.

Small Community Equivalent Factor

If your landfill or h·ansfer station serves. fewer than 5,000 people, you may

use a population-equivalent factor instead of mail!]:aining records of the

actual amount of waste deposited. Under this system, the amount of waste

is calculated as 1 ton per person a year. The report must document the

population served by the facility and reflect any changes in population since

the previous report.

Quarterly Report:

You must submit a quarterly solid-waste summary report to the TCEQ no

later than 20 days following the end of each fiscal quarter. Table 3 lists the

due dates.

Table 3. Due Dates for Quarterly Reports

Quarterly Report Due Date

1st Qtr (Sep-Nov) Dec20

2nd Qtr (Dec-Feb) Mar20

3rd Qtr (Mar-May) Juu20

4th Qtr (Jun-Aug) Sep20

Annual Report

The operator must submit an annual summary of the yearly totals and

the year-end status of the facility. An operator must file a separate report

for each facility that has a unique permit or registration number. For

more information on how to determine your year-end-status, refer

to instructions and guidance for the MSW Annual Report at

<www.tceq.texas.gov/ assets /public/permitting/waste/msw/

MSWAnnualRpt_Online_Instructions.pdf>.

Operators of facilities such as transfer stations, shredders, balers, and

methane extractors-also known as facilities not for disposal-must

submit annual reports to the TCEQ. Online reporting is available or you

18 Ju!y2013 437

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can submit a hard-copy report. For more information, go to

<www.tceq.texas.gov/goto/msw-annual>.

Fees

(Texas Health and Safety Code :361.013)

A collection fee is required for all solid waste disposed of within the state

and from transporters who are required to register with the state. The

amount may be raised or lowered in accordance with spending levels

authorized by the Texas Legislature. The TCEQ calculates the fee using

information from the facility's quarterly solid-waste summary reports. We

will generate a billing statement quarterly and forward it to the applicable

pe'rmittee or registrant. For additional information, see Municipal Solid

Waste Reporting and Disposal Fee (RG-289).

Statewide and Regional Planning

Each council of governments develops a regional solid waste plan. The

TCEQ aids the COGs in their efforts to ensure proper waste management by

permitting and registering facilities, licensing operators, and requiring all

registered or permitted facility operators to report the types and amounts of

waste processed or disposed of at a facility. COGs can use the information

reported to the TCEQ to monitor capacity in their regions .

.. .COG Permit Review

After the TCEQ conducts an administrative revie1v of each MSW permit

application, the application is forwarded to the appropriate COG for review.

The COG's review considers the compatibility of the proposed facility with

the region's MSW plan, along vvith the viability of the proposed facility and

the need for it.

COG Solid Waste Grants

As part of its waste planning efforts, the TCEQ administers a Regional Solid

v\Taste Grants Program, which supports regional planning of solid-waste

management by the state's 24 regional COGs, as well as a pass-through

grant program administered by the COGs to fund regional and local solid-

waste management projects. The CO Gs also use these funds to invent01y

closed MSW landfills.

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Inspections: What to Expect

To ensure compliance with MSW rules, inspections by a TCEQ

representative are required. We conduct routine inspections on an

established timeline using standardized checklists, and you can request a

copy of the applicable checklist before the inspection. However, if there are

consumer complaints~ operational problems, or :requests for assistance, or if

the facility is an unsatisfactory verformer, we may inspect inore frequently.

Immediately after the inspection, the TCEQ investigator will go over the

findings in an exit interview. Then you will receive from us one of three

mailed letters: a compliance letter, if there were no violations found; a

notice of violation (NOV) ·with a compliance schedule to resolve the

violations; o:r a notice of enforcement, if violations are of a serious enough

nature to warrant automatic enforcement.

We may begin formal enforcement if you have not resolved the violations

after issuance of an NOV and you have not requested a justifiable extension.

If you receive an NOV, be certain to respond in writing within the time

stated in the letter, explaining your actions to resolve any violations, and

including pictures if possible. Send the response "return receipt requested"

to the :regional office of the TCEQ, and keep a copy for your files.

For additional information on the inspection and enforcement process, see

The TCEQ Has Inspected Your Business: What Does This Mean to You?

(RG-344), or contact the Enforcement Division at 512-239-2545, or the·

Small Business and Local Govermnent Assistance Section at 800-447-2827.

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Texas Councils of Governments

Name Abbrev. Website

Alamo Area Council of Governments AACOG wwv,r.aacog:.con1

Ark-Tex Council of Governments ARK-TEX wwvv.atcolf.011<

Brazos Valley Council of Governments BVCOG wwv-1.bvcog.or?;

Capital Area Council of Governments CAP COG \.'/"WW.caDCOl!'.Onr

Central Texas Council of Governments CTCOG www.ctcol!'.org

Coastal Bend Council of Governments CB COG cbcog98.on;:

Concho Valley Council of Governments CVCOG vvww.cvcog.orn:

Deep East Texas Council of Governments DETCOG ·wwvv.detco!!".orn

East Texas Council of GDvernments ETCOG w·wv•.etco!!:.org

Golden Crescent Regional Planning Commission GCRPC WWlv.gcrnc.org

Heart of Texas Council of Governments HOTCOG WWllf.hotcog.or.e:

Houston-Galveston Area Council H-GAC v;wv•.h-lfac.com

Lower Rio Grande Valley Development Council LRGVDC www.lrgvdc.org

Middle Rio Grande Development Council MRGDC ·wwvv.mrgdc.org

Nortex Rerional Planning Commission NORTEX vvwv•.nortexrpc.org

North Central Texas Council of Government NCTCOG wwvv.nctco!f.dst.tx.us

Panhandle Regional Planning Commission PRPC www.nrnc.cm!:.tx.us

Permian Basin Regional Planning Commission PBRPC www.pbroc.org

Rio Grande Council of Governments RGCOG www.riOCO!!".Ore:

South East Texas Re?;ional Planning Commission SETRPC wwv•.setrnc.ore:

South Plains Association of Governments SPAG www.snai<.om:

South Texas Development Council STDC www.stdc.cog.tx.us

Texoma Council·ofGovernments TEXOMA ...... · wwv,r.texoma:cog.tx.us ··

West Central Texas Council of Governments WCTCOG WVIW.WCtCO!!,'.OU;

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For More Information

There are a variety of good sources available for further information.

Here is a basic list with contact information.

To find a publication or form mentioned in this document:

TCEQ website,

<www·.tceq. texas.gov/publications/ search_pubs.html>

or <www.tceq.texas~gov/ search_forms.html>

For confidential assistance on environmental compliance for small

businesses and local governments:

Small Business and Local Government Assistance Hotline, 800-447-2827

or <www.TexasEnviroHelp.org>

To report ...

" A spill (24 hours a day):

Spill Reporting, 800-832-8224

<II An environmental complaint or violation:

Environmental Violations Hotline, 888-777-3186

For information on ...

Waste authorizations:

<$

TCEQ Waste Permits Division, 512-239-2335 ·

" Air permits:

TCEQ Air Permits Division, 512-239-1250

e Water quality issues:

TCEQ Water Quality Division, 512-239-4671

<$ Financial assurance:

·· TCEQ FinancialAssuranceOffice; 512~239~0300 ··

.. The investigation process:

Your regional TCEQ office

" Enforcement:

TCEQ Enforcement Division, 512-239-2545

"' Household hazardous waste programs:

TCEQ Pollution Prevention and Education Section 512-239- 7

3100

., Councils of Governments:

Texas Association of Regional Councils,

512-478-4715 or <Vv\'\T\V.txregionalcouncil.org>

" Federal MSvV programs:

EnvironmentalProtectionAgency, Region 6,

800-887-6063 or

<wvvw.epa.gov/ epawaste/nonhaz/municipalfindex.htm>

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APPENDIX C

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Volume 31 Number 112L_ _ _ _ March 24, 2006

415

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a section of the Staff

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Diana Muniz

416

but are currently required by §106.496(g)(4)(i) to have separate in this chapter. The commission adopts new §330.9(m)(1 )(E) -

authorization from the executive director at landfills. As a (H) to require owners or operators of mobile treatment units to

streamlining initiative, the commission adopts new §330.7(g) provide the chemical preparations that will be used as part of

to eliminate the need for a separate authorization from the the treatment process, evidence of competency, a description

executive director at MSW facilities. of the management and disposal of process waters generated

during treatment events, and a written contingency plan to de-

The commission also adopts an air PBR in new §330.7(h) for air

scribe how waste will be managed in the event of equipment

emissions at MSW landfill facilities if the owner or operator com-

breakdown. This additional information is necessary to ensure

plies with new Subchapter U, Standard Air Permits for Municipal

that all waste and treatment residues will be properly treated.

Solid Waste Landfill Facilities and Transfer Stations.

The commission adopts new §330.9(m)(1 )(i) to require owners

The commission repeals §330.8, Notification Requirements, and or operators of medical waste mobile treatment units to provide

moves the requirements of this section with changes to new evidence of financial assurance using procedures specified in

§330.11, Notification Required. Subchapter L of this chapter and 30 TAC Chapter 37, Subchap-

ter R, Financial Assurance for Municipal Solid Waste Facilities,

The commission adopts new §330.9, Registration Required, to

to ensure that money is available to provide for the removal of all

list all MSW management activities that are exempt from per-

waste and waste residues if the owner or operator abandons the

mitting requirements but that still require commission approval

medical waste mobile treatment unit. A cost estimate of the cost

by registration. To promote communication and coordination

to remove and dispose of waste and disinfect the waste treat-

with TCEQ's regional offices, the commission requires in new

ment equipment shall be submitted prior to initiating operation or

§330.9(a) that a person shall submit a claim for a registration

in conjunction with the transition from operating under a registra-

by rule in duplicate with one copy sent directly to the TCEQ's

tion to operating under the new registration by rule. The commis-

regional office. The commission moves the requirements

sion changes an incorrect rule reference in new §330.9(m)(4) to

from §330.73(b)(1) and (c)(1) to new §330.9(a); §330.4(d)

refer to the annual fees enumerated in §330.1221 (I). The com-

to new §330.9(b); §330.4(g) to new §330.9(c); §330.4(h) to

mission extends the requirement to notify the executive direc-

new §330.9(d); §330.4(k) to new §330.9(e); §330.4(q) to new

tor of changes to the registration in new §330.9(m)(6) from 15

§330.9(f); §330.4(s) to new §330.9(g); §330.4(t) and §330.72(h)

days to 30 days to allow additional reporting flexibility. Since the

to new §330.9(h); §330.4(u) to new §330.9(i); and §330.402

registrations under the former rules expire on an annual basis,

to new §330.9U). The commission adopts new §330.9(h)(5)

the commission intends to transition these authorizations from a

to state that transporters who only adjust septage pH during

registration to a registration by rule upon expiration of each reg-

transportation are not subject to the registration requirement

istration.

of §330.9(h), but must instead register under §312.142. The

commission adopts this provision to provide clarity about which To reduce the level of agency approvals of low-impact waste

rules apply to transporters who adjust septage pH during trans- management activities and to facilitate treatment of medical

portation. waste throughout Texas, the commission adopts new §330.9(n)

to allow the registration of facilities that will store or process

The commission adopts a solid waste registration by rule for

untreated medical waste that is received from off-site sources,

Type IX facilities that recover landfill gas for beneficial use. New

as described in new §330.1205(b).

§330.9(k) replaces §330.4(n) and §330.70. Since owners or op-

erators of such facilities must receive separate commission au- The commission will now require a solid waste registration for

thorizations for air emissions from these facilities, the commis- owners or operators of new liquid waste transfer facilities that re-

sion adopts the Type IX facility registration by rule to streamline ceive 32,000 gallons per day (gal/day) or less or will be located

the authorization process for these low-impact waste manage- on, or at, other commission authorized facilities. These facilities

ment activities. had been authorized through a notification, but the commission

believes that these facilities are best evaluated through the reg-

The commission adopts a solid waste registration by rule for

istration process. All existing liquid waste transfer facilities will

transporters of untreated medical waste that are not the gen-

be allowed to continue operation as a notification to the com-

erator. The commission adopts this solid waste registration by

mission. The commission replaces §330.4(r) and §330.66(a)(1)

rule to streamline the authorization process for low-impact waste

with new §330.9(0) for new liquid waste transfer facilities that

management activities. The commission replaces §330.1005(b)

receive 32,000 gal/day or less and new §330.11(e)(4) for exist-

with new §330.9(1). Drivers' names and license numbers are no

ing facilities. The commission replaces §330.66(a)(7) with new

longer required as part of the registration by rule. The commis-

§330.9(p) for new liquid waste transfer facilities located on, or at,

sion deletes this requirement since this information does not im-

other commission authorized facilities and new §330.11 (e )(7) for

pact whether the vehicle meets the requirements in this chapter.

existing facilities.

Since the registrations expire on an annual basis, the commis-

sion intends to transition these authorizations from a registration The commission repeals §330.10, Closure, and moves the re-

to a registration by rule upon expiration of the registration. quirements of this section to new §330.21.

The commission adopts a solid waste registration by rule for The commission repeals §330.11, Relationships with Other Gov-

owners or operators of mobile treatment units conducting on-site ernmental Entities. The commission moves the requirements of

treatment of medical waste that are not the generator. The com- §330.11(a) to new Subchapter U, and §330.11(b) - (i) to new

mission replaces §330.1010(b), (d), and (e) with new §330.9(m). §330.23(a) - (h).

The commission adopts the solid waste registration by rule to

The commission adopts new §330.11, Notification Required, to

streamline the authorization process. The commission elimi-

clarify those persons that do not need commission approval for

nates the requirement for drivers' names and license numbers as

certain MSW management activities but who still must notify the

part of the registration by rule since this information does not im-

commission before starting MSW management activity at a lo-

pact whether the mobile treatment unit meets the requirements

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