The opinion
ACCEPTED
03-14-00718-CV
4682548
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 8:34:20 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00718-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 8:34:20 PM
IN THE THIRD COURT OF APPEALS
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD; MICHAEL MCCALL, WAYNE
KNOX; AND THE CITY OF HEMPSTEAD,
Appellants,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND PINTAIL LANDFILL, LLC,
Appellees.
On Appeal from the 201st Judicial District Court, Travis County
Honorable Scott H. Jenkins, Presiding
BRIEF OF APPELLEE PINTAIL LANDFILL, LLC
MCELROY, SULLIVAN, MILLER, WEBER & LAW OFFICE OF MICHAEL S.
OLMSTEAD, L.L.P. TRUESDALE, PLLC
Brent W. Ryan Michael S. Truesdale
State Bar No. 17469475 State Bar No. 00791825
P.O. Box 12127 801 West Avenue, Suite 201
Austin, TX 78711 Austin, TX 78701
512-327-8111 512-482-8671
512-327-6566 (fax) 866-847-8719 (fax)
bryan@msmtx.com mike@truesdalelaw.com
COUNSEL FOR APPELLEE PINTAIL LANDFILL, LLC
STATEMENT REGARDING THE RECORD ON APPEAL
The clerk’s record consists of a single volume, cited as “CR page #”, a
supplemental clerk’s record filed on January 26, 2015, cited as “1Supp.CR page
#”, and a supplemental clerk’s record filed on February 11, 2015, cited as
“2Supp.CR page #”.
The reporter’s record consists of a single volume that memorializes the
parties’ joint offer of an exhibit referenced as the “administrative record”. That
exhibit consists of two boxes containing seventy documents divided into eleven
volumes, cited herein as “Vol# A.R. Ex#”. The reporter’s record was filed
electronically, but a paper certified copy of the original administrative record was
transmitted to the clerk of this Court.
i
TABLE OF CONTENTS
STATEMENT REGARDING THE RECORD ON APPEAL ..................................i
TABLE OF CONTENTS..........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT..............................................vi
ISSUES PRESENTED.............................................................................................vi
1. Did the TCEQ have the discretion to approve Pintail’s facility by way of
a registration pursuant to Rule 330.9(b)(3) rather than requiring it to
obtain a permit? In following the registration process, did the TCEQ
violate Appellants’ due process rights by affording all process due
thereunder but not the heightened process available in connection with
permit proceedings? ......................................................................................... vi
2. When neither statute nor agency rule prescribes any specific procedures
for doing so, does the TCEQ have the discretion to choose when and
how often to request that an applicant provide additional information
deemed useful in processing an application? ................................................... vi
INTRODUCTION .................................................................................................... 1
STATEMENT OF FACTS ....................................................................................... 3
A. What this appeal is not about............................................................................. 3
B. An overview of the regulations governing the facility at issue ......................... 4
C. Pintail’s facility .................................................................................................. 5
D. Appellants’ active participation in the registration process............................... 7
E. The application process...................................................................................... 8
F. Subsequent challenges to the registration .......................................................... 9
G. The district court appeal .................................................................................. 10
SUMMARY OF ARGUMENT .............................................................................. 10
ARGUMENTS AND AUTHORITIES................................................................... 12
I. Standard of Review.......................................................................................... 12
II. The TCEQ properly authorized Pintail’s facility by way of a registration...... 13
A. TCEQ’s registration of Pintail’s facility fit within its broad regulatory
discretion ......................................................................................................... 14
B. Neither of the Rule 330.9 sections relied upon by Appellants
demonstrate any error in the registration of Pintail’s facility.......................... 18
1. Why Rule 330.9(b)(3) applies to Pintail’s facility ................................. 18
2. Why Pintail did not have to invoke Rule 330.9(f) ................................. 21
ii
a. 330.9(f) does not apply to “all” new facilities, just those
that meet all of it provisions..................................................... 21
b. A transfer station facility may also store, separate, and
process materials for recycling................................................. 22
C. Due process issues do not justify disturbing TCEQ’s approval of the
registration application. ................................................................................... 25
1. Appellants’ due process arguments are derivative of their rule-
based arguments – Appellants received all process to which they
were entitled under the governing statutes and rules ............................. 25
2. Appellants’ rights to a contested case hearing in connection with
Pintail’s application for a separate landfill permit are not undercut
by TCEQ’s approval of the transfer station by registration ................... 26
3. The existence of any “property rights” does not morph the
procedures that are otherwise authorized by law ................................... 27
4. Authorization of the facility by registration rather than permit did
not implicate any constitutionally protected rights ................................ 28
5. Absent a statutory or rule-based right to a hearing, the use of a
registration process could not violate any due process rights ................ 28
III. The trial court correctly affirmed TCEQ’s issuance of the registration
over Appellants’ “too many NODs” argument ............................................... 29
A. Appellants waived any complaint about the number of NODs ....................... 30
B. Texas law does not treat agency statements about internal procedures as
equivalents to promulgated rules or statutes ................................................... 30
1. No rules or statutes limit the TCEQ to issuing only 2 NODs ................ 30
2. TCEQ’s so-called “policy statements” do not set any “2 NOD”
limits....................................................................................................... 31
3. Informal TCEQ statements do not constrain the discretion of the
agency to consider more, rather than less, information.......................... 33
C. Practical reasons demonstrate why the statements at issue were not
binding as if they were rules or statutes .......................................................... 34
CONCLUSION....................................................................................................... 36
PRAYER FOR RELIEF.......................................................................................... 37
CERTIFICATE OF SERVICE ............................................................................... 38
CERTIFICATE OF COMPLIANCE ...................................................................... 38
iii
INDEX OF AUTHORITIES
Cases
Combs v. Entertainment Publications, Inc.,
292 S.W.3d 712 (Tex. App.—Austin 2009, no pet.) .............................. 33, 34
Fleetwood Community Home v. Bost,
110 S.W.3d 635 (Tex. App.—Austin 2003, no pet.) .................................... 12
Fredonia State Bank v. General American Life Ins. Co.,
881 S.W.2d 279 (Tex. 1994) ........................................................................ 30
Heritage on the San Gabriel Homeowners Assoc. v. Tex.
Comm’n on Envt’l Qual.,
393 S.W.3d 417 (Tex. App.—Austin, 2012, pet. denied) ...................... 12, 15
McDaniel v. Texas Nat. Res. Conserv. Comm'n,
982 S.W.2d 650 (Tex. App.—Austin 1998, pet. denied) ................. 14, 16, 17
Monk v. Huston,
340 F.3d 279 (5th Cir. 2003) ......................................................................... 27
Southwestern Public Serv. Co. v. Public Util. Comm’n,
962 S.W.2d 207 (Tex. App.—Austin 1998, pet. denied) ............................. 12
Starr County v. Starr Indus. Servs.,
584 S.W.2d 352 (Tex. Civ. App.—Austin, 1979, writ ref’d n.r.e.).............. 33
Statutes
Tex. Health & Safety Code §§ 361.011 et seq........................................................ 14
Tex. Health & Safety Code § 361.011(a)................................................................ 14
Tex. Health & Safety Code § 361.011(b) ............................................................... 14
Tex. Health & Safety Code § 361.061 .................................................................... 14
Tex. Health & Safety Code § 361.321 .................................................................... 15
Tex. Water Code § 5.351 ........................................................................................ 15
iv
Rules
Tex. R. App. P. 9.4.................................................................................................. 39
Tex. R. App. P. 9.5.................................................................................................. 38
Tex. R. App. P. 25.1(e) ........................................................................................... 38
Tex. R. App. P. 38.1(i)............................................................................................ 29
Regulations
30 Tex. Admin. Code ch. 39 ................................................................................... 15
30 Tex. Admin. Code ch. 50 ................................................................................... 15
30 Tex. Admin. Code ch. 55 ................................................................................... 15
30 Tex. Admin. Code ch 80 .................................................................................... 15
30 Tex. Admin. Code § 312.13(b) .......................................................................... 25
30 Tex. Admin. Code § 312.13(c) .......................................................................... 25
30 Tex. Admin. Code §§ 328 et seq.......................................................................... 4
30 Tex. Admin. Code § 328.1 ................................................................................. 17
30 Tex. Admin. Code §328.2(3) ............................................................................... 6
30 Tex. Admin. Code § 328.4(a) .................................................................... 4, 5, 18
30 Tex. Admin. Code § 328.4(c) .............................................................................. 4
30 Tex. Admin. Code § 328.4(d) .................................................................... 5, 6, 18
30 Tex. Admin. Code § 330.11 ............................................................................... 15
30 Tex. Admin. Code §§ 330 et seq.......................................................................... 4
30 Tex. Admin. Code § 330.13 ............................................................................... 15
30 Tex. Admin. Code § 330.003(117) .................................................................... 24
30 Tex. Admin. Code § 330.3(122) ........................................................................ 17
30 Tex. Admin. Code § 330.3(157) ........................................................................ 18
30 Tex. Admin. Code § 330.3(33) ............................................................................ 4
30 Tex. Admin. Code § 330.5(a)(3).................................................................. 18, 23
30 Tex. Admin. Code § 330.69 ............................................................................... 17
30 Tex. Admin. Code § 330.7................................................................................. 15
30 Tex. Admin. Code § 330.9 ................................................................................. 19
30 Tex. Admin. Code § 330.9(a) ............................................................................ 20
v
STATEMENT REGARDING ORAL ARGUMENT
This is not a complicated case. It does not raise questions regarding “health”
or “the environment” as Appellants’ statement insinuates. Rather, it presents
straight-forward issues concerning the interpretation and application of agency
rules and the discretion an agency has in construing and implementing its own
rules. The issues have been briefed by able and well-respected counsel at the
agency level, at the district court level, and now before this Court, and it is not
likely that oral argument will substantially aid this Court in disposing of this
appeal. Accordingly, Pintail does not separately request oral argument, but only
asks that it be allowed to participate and present oral argument if this Court grants
Appellants’ request.
ISSUES PRESENTED
1. Did the TCEQ have the discretion to approve Pintail’s facility by way of a
registration pursuant to Rule 330.9(b)(3) rather than requiring it to obtain a
permit? In following the registration process, did the TCEQ violate
Appellants’ due process rights by affording all process due thereunder but
not the heightened process available in connection with permit proceedings?
2. When neither statute nor agency rule prescribes any specific procedures for
doing so, does the TCEQ have the discretion to choose when and how often
to request that an applicant provide additional information deemed useful in
processing an application?
vi
TO THE HONORABLE COURT OF APPEALS:
Appellee Pintail Landfill, LLC (Pintail) files this Brief of Appellee, and in
support of the judgment below, states as follows:
INTRODUCTION
This case asks whether the Texas Commission on Environmental Quality
(TCEQ) complied with its statutory mandate and authority and its own rules when
it authorized Pintail’s transfer station by way of a registration. Pursuant to broad
authority granted to it by the Legislature, the TCEQ has adopted rules establishing
a regulatory program for facilities that manage municipal solid waste. Under those
rules, some types of facilities (including landfills and other disposal facilities) must
be authorized by TCEQ-issued permits. Other types of facilities (including
transfer stations where relatively small volumes of waste are processed) must be
authorized by registrations issued by the TCEQ. And certain other types of
facilities (including citizen collection stations and pet cemeteries) can be
authorized to operate simply by filing a notification with the TCEQ.
In this case, the TCEQ properly concluded that Pintail’s proposed facility fit
within a rule requiring the registration of municipal solid waste facilities that
transfer less than 125 tons per day of materials. Appellants argue that, because
waste will be separated and stored for very short periods of time before being
transferred to other locations, Pintail’s facility cannot be treated as a “transfer
1
station” and must be treated as a “material recovery operation” facility that, they
argue, cannot be authorized by a registration.
This case implicates two subsections of section 330.9 of the Texas
Administrative Code, Title 30, each requiring a facility that meets its requirements
to be authorized by a registration. Pintail and the TCEQ relied on Rule 330.9(b)(3)
as requiring Pintail’s facility to be registered, while Appellants argue that, unless
the facility fit within Rule 330.9(f), it could not have been authorized by
registration.
Appellants misconstrue how section 330.9 operates. Rule 330.9(f) is not the
exclusive provision by which Pintail’s facility could be authorized by registration.
Instead, a facility is required to obtain authorization by registration if it meets the
conditions in any of the subdivisions of section 330.9. Pintail invoked the separate
provisions of Rule 330.9(b)(3) because it sought to do that which is covered by that
rule: operate a Type V transfer station that would transfer less than 125 tons of
waste per day. Because Pintail’s facility fits squarely within that rule, the TCEQ
properly authorized Pintail’s facility by way of a registration. And, as there is no
assertion that Appellants were denied participation under the registration process,
their denial of due process arguments necessarily fail.
Finally, no rule or statute prohibits the TCEQ from asking for additional
information when it processes applications for facilities. In fact, such a rule would
2
have a series of significant unintended consequences that would undermine the
rulemaking process, hamstring agencies from doing their jobs, punish good faith
applicants, and ultimately frustrate the efficient operation of state agencies as they
work with the private sector. As the TCEQ acted well within its discretion, no
error is shown below.
STATEMENT OF FACTS
A. What this appeal is not about
Though Appellants’ brief not-so-subtly attempts to blur the distinction
between two separate proceedings before the TCEQ (the transfer station
registration proceeding and the landfill permit proceeding), this case is not about
Pintail’s separate efforts to obtain a permit to operate a landfill. Pintail has filed a
permit application for a proposed landfill, TCEQ has concluded the application is
technically complete (satisfies all applicable permitting requirements), and that
application is now the subject of a contested case hearing in which Appellants are
participating. That application ultimately will stand or fall based upon its own
merits.
But whatever happens in connection with the landfill has no bearing on the
issue of whether Pintail’s separate transfer facility was properly reviewed and
approved by TCEQ pursuant to rules for registrations rather than for permits.1
1
See, e.g., 1Supp.CR 69 (TCEQ’s “Public Comments” Letter, Response, at 4)
(explaining that “[b]ecause the landfill permit application and the transfer station
3
Appellants’ complaints about the landfill are outside the scope of review of the
process used to approve Pintail’s transfer station,2 ultimately generating nothing
more than a distraction from the questions they raise in this appeal. With that
clarification in mind, the primary issue raised by this appeal may be addressed: Did
TCEQ properly authorize Pintail’s transfer operation by way of a registration
pursuant to Rule 330.9(b)(3)?
B. An overview of the regulations governing the facility at issue
Related TCEQ regulations apply to recycling facilities and municipal solid
waste (MSW) facilities. As a general rule, recycling facilities are governed by
rules contained in Chapter 328 of the Texas Administrative Code, 30 Tex. Admin.
Code §§ 328 et seq., while Chapter 330 applies to municipal solid waste facilities,
id., §§ 330 et seq. And the rules applicable to a particular facility may depend
upon a number of factors that ultimately determine whether the TCEQ may
authorize the facility by a permit, by registration, by notification, or by some other
means.
As a general rule, recycling facilities are exempt from the permitting and
registration requirements of Chapter 330 if they satisfy the conditions set forth in
registration are separate and independent, a decision by the commission on one of the
applications will have no bearing on the other.”).
2
See id. at 68 (noting that comments made regarding the landfill permit were outside the
scope of review of the transfer station registration application).
4
Rule 328.4. 30 Tex. Admin. Code § 328.4(a).3 If a facility does not satisfy those
conditions, it may be required to obtain a permit or registration as a municipal solid
waste facility under the provisions of Chapters 330 or 332. 30 Tex. Admin. Code
§ 328.4(c).
C. Pintail’s facility
Pintail sought TCEQ authorization to construct and operate a transfer station
facility where it would separate, store and process construction and demolition
waste4 and recover recyclable materials from that waste. 1A.R. 1, §I (“Type V
Registration Application”). The transfer station for which Pintail sought approval
is a 100’ by 100’ metal building on a concrete slab. Id., §IIIA-3, 2.2. Trucks
would bring materials into the building where recyclable materials would be
separated from construction debris and sorted into various components (wood,
metal, concrete, and cardboard) for transfer to recycling facilities, with the residual
waste remaining at the facility for no longer than 72 hours before being separately
transferred to a landfill for disposal. CR 22. Pintail’s operation would involve the
processing of no more than 94 tons of material per day (approximately 18 truck
loads). 1Supp.CR 70.
3
Waste separation and recycling facilities that satisfy all of the conditions of Rule 328.4
may be authorized by mere notification pursuant to Rule 328.5 See 30 Tex. Admin. Code
§ 328.5; see also 30 Tex. Admin. Code § 330.11(a).
4
“Waste resulting from construction or demolition projects; includes all materials that are
directly or indirectly the by-products of construction work or that result from demolition
of buildings and other structures, including, but not limited to, paper, cartons, gypsum
board, wood, excelsior, rubber, and plastics.” 30 Tex. Admin. Code § 330.3(33).
5
Pintail’s facility is a recycling-focused transfer station, and, pursuant to
Chapter 328, such facilities are generally excused from any registration or
permitting requirements.5 But, in order for a recycling facility to operate without a
permit or registration, the facility must comply with the operational requirements
of Chapter 328. One such requirement is a limit on the amount of non-recyclable
materials that may be processed at the facility:
A facility that processes recyclable material that contains more than
incidental amounts of non-recyclable waste must obtain a permit or
registration as applicable under Chapter 330 or Chapter 332 of this
title unless the executive director approves its request for alternative
compliance.6
At the time Pintail prepared and submitted its application for registration, it
could not determine the precise percentage of non-recyclable solid waste that
might remain after the separation of recyclable materials. So Pintail conservatively
assumed that more than “incidental” amounts of non-recyclable waste would
remain, and filed with TCEQ an application for registration under Chapter 330 as
required by § 328.4(d). See 1A.R. 1, et. seq.
5
See 30 Tex. Admin. Code § 328.4(a). Such facilities may be authorized by notification
pursuant to Rules 328.5 and 330.11(a).
6
30 Tex. Admin. Code §328.4(d) (emphasis added). “Incidental amounts” is defined as
“Non-recyclable waste that accompanies recyclable material despite reasonable efforts to
maintain source-separation and that is no more than 10% by volume or scale weight of
each incoming load, and averages no more than 5% of the total scale weight or volume of
all materials received in the last six-month period, as substantiated by the facility's
records.” 30 Tex. Admin. Code §328.2(3).
6
Pintail determined that the transfer station for which it sought authorization
fit within the provisions of Rule 330.9(b)(3), such that registration of the facility
would be required thereunder. That rule provides:
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 from any
of the following: … (3) a facility used in the transfer of MSW that transfers
or will transfer 125 tons per day or less.
30 Tex. Admin. Code § 330.9(b)(3). The invocation of Rule 330.9(b)(3) was
consistent with agency guidelines promulgated in TCEQ Publication No. RG-469,
“Traditional Municipal Solid Waste Disposal: A Guide for Local Governments.”
That publication notes that “To be eligible for registration as a transfer station, the
facility must meet one of the following criteria . . . It transfers or proposes to
transfer no more than 125 tons per day of MSW.” See CR 424-25.
Because Pintail’s transfer station facility is intended to transfer a type of
municipal solid waste (MSW) – construction or demolition waste – and was
intended to transfer less than 125 tons per day, it fit within the parameters of Rule
330.9(b)(3). Thus, Pintail’s application invoked that rule in its request for
authorization by way of a registration. See 1A.R. 1 at I, p.2.
D. Appellants’ active participation in the registration process
From the outset, Appellants have been active and vocal participants in the
transfer station application review process at the TCEQ. For example, counsel for
Appellants provided written comments and provided comments at the TCEQ
7
public meeting concerning the application. See, e.g., 1Supp.CR 64-67 (listing
Appellants’ counsel as offering comments either in writing or at the meeting); see
also 9A.R. 67 (containing CALH’s comments as to the transfer station).
Additionally, they filed other miscellaneous items with the TCEQ in connection
with the application, see, e.g., 7A.R. 41 (letter from CALH’s counsel); 7A.R. 2
(letter from City of Hempstead’s counsel); and, after the application was approved,
they filed motions to overturn, see 2Supp.CR 88 (CALH’s Motion to Overturn)7;
CR 92 (City of Hempstead’s Motion to Overturn).
E. The application process
After Pintail filed its application, the TCEQ requested that Pintail provide
additional information on a number of different topics so that it could go forward
with consideration of the application. It did so by way of a “Notice of Deficiency”
or “NOD”. 2A.R. 13. Pintail responded in good faith and addressed the identified
matters. 2A.R. 17; 3A.R. 18. As the TCEQ continued its review of Pintail’s
application and the additional information it provided, the TCEQ made another
request to Pintail by way of a second Notice of Deficiency. 4A.R. 22. This second
notice requested various new categories of information not previously identified,
and sought additional follow-up on several categories identified in the first NOD.
7
Although in the trial court and on appeal, Appellants CALH, Michael McCall, and
Wayne Knox have proceeded as co-parties, the individuals did not join CALH in its
Motion to Overturn, which was filed exclusively in the name of CALH. 2Supp. CR 88.
8
Id. Again, Pintail responded in good faith, addressing the matters requested by the
TCEQ. 5A.R. 29. This process continued several more times during the TCEQ’s
consideration of Pintail’s application, with each successive agency request seeking
fewer and fewer new categories of information from Pintail.8 On July 13, 2013,
TCEQ’s executive director provided written responses to public comments that had
been filed regarding Pintail’s application. See CR 64-96 (categorizing and
responding to comments). The TCEQ ultimately declared the application
technically complete, 7A.R. 54, and on July 23, 2013, issued a registration
authorizing the facility, 7A.R. 55, CR 20.
F. Subsequent challenges to the registration
As noted, both CALH and City of Hempstead filed motions to overturn
TCEQ’s issuance of the registration. CR 92; 1Supp. CR 88. The Office of Public
Interest Counsel (OPIC) at the Texas Commission on Environmental Quality filed
responses to those motions, CR 116, as did the TCEQ’s executive director, 8A.R.
62, and Pintail, 8A.R. 63. Thereafter, the motions were overruled by operation of
law, 8A.R. 66, and CALH and the City of Hempstead perfected appeal to the
district court.
8
The entire chain of “Notices of Deficiencies” are found at 1Supp.CR 37-62.
9
G. The district court appeal
At the district court, the parties filed briefs and submitted a joint
administrative record, and then presented oral arguments on their briefs. (By
agreement of the parties, that argument was not transcribed beyond the
announcements of counsel and the offer of the administrative record as the parties’
joint exhibit. RR 1-7.) On September 4, 2014, the Honorable Scott Jenkins
rendered judgment affirming TCEQ’s approval of Pintail’s registration, CR 503,
and on October 16, 2014, he overruled Appellants’ motion for new trial, CR 674.
SUMMARY OF ARGUMENT
Registration (in response to Appellants’ issues 1 and 2): The TCEQ
properly allowed Pintail to apply for a registration for its facility pursuant to Rule
330.9(b)(3) because it had a reasonable basis to conclude that Pintail’s facility fit
within that rule. Appellants’ reliance on Rule 330.9(f) and their arguments that,
because Pintail’s facility did not meet the requirements of that rule it could not be
authorized by registration and instead was required to obtain a permit, are
misplaced. Rule 330.9(f) is not the exclusive rule requiring/allowing the
registration of a facility, and neither Pintail’s application nor TCEQ’s approval
relied on it to justify using the registration process.
Instead, Pintail invoked, and TCEQ relied on, Rule 330.9(b)(3) as the
applicable authority for approval of Pintail’s facility by way of a registration. 30
Tex. Admin. Code § 330.9(b)(3). Pintail’s facility fits squarely within that
10
provision given the anticipated low volume of materials that would be transferred
on a daily basis. Appellants’ arguments that a transfer station facility cannot also
provide separation, storage and processing of materials and still fit within Rule
330.9(b)(3) offend both the realities of what happens on a daily basis at transfer
stations across the state (as the TCEQ is well aware), and the literal language of the
applicable rules.
Appellants separate due process arguments necessarily fail as well. There is
no question that the registration process only provides certain participatory rights
to the public, and that Appellants were afforded and exercised all such rights. Nor
is it disputed that the registration process does not afford any right to a contested
case hearing. Accordingly, Appellants were afforded all process that was due under
the authorization procedures applicable to Pintail’s application.
Excessive “Notices of Deficiencies” (in response to issue 3): Appellants
waived any complaint about the number of “notices of deficiencies” (NODs) by
citing no authority demonstrating error below or justifying the vacatur of the
agency’s approval of Pintail’s registration application. In any event, neither
statutes nor rules constrain the number of NODs the TCEQ may issue when
reviewing an application, and the TCEQ was well within its discretion in making
more than two requests while processing Pintail’s application, particularly when
successive requests by the agency sought new categories of information not
11
previously identified as deficient by the TCEQ. Finally, numerous practical
problems plague the procedures Appellants urge this Court to require the TCEQ to
follow. These problems would result in significant unintended consequences that
would delay or shut down meritorious projects simply because an agency is being
diligent in identifying information it needs to review in passing on an application.
In short, no error, let alone reversible error, is shown in the district court’s
ruling affirming the TCEQ’s order.
ARGUMENTS AND AUTHORITIES
I. Standard of Review
While couched in terms of whether the trial court erred in affirming TCEQ’s
approval of Pintail’s facility by registration, the premise of each of Appellants’
asserted theories is that the Executive Director of TCEQ abused his discretion by
issuing the registration, either because he misinterpreted agency rules or because of
how the agency interacted with Pintail in processing the application. See Brief at
14-15.
Findings, inferences, conclusions, and decisions of administrative agencies
are subject to deference, and an agency’s interpretation or construction shall not be
disturbed unless it is plainly erroneous or inconsistent with the language of the
statute, regulation, or rule. Heritage on the San Gabriel Homeowners Assoc. v.
Tex. Comm’n on Envt’l Qual., 393 S.W.3d 417, 424 (Tex. App.—Austin, 2012,
pet. denied). A reviewing court may not substitute its judgment for that of the
12
agency, and the issue is not whether the agency reached the correct conclusion, but
whether there is some reasonable basis in the record for its action. See
Southwestern Public Serv. Co. v. Public Util. Comm’n, 962 S.W.2d 207, 215 (Tex.
App.—Austin 1998, pet. denied); Fleetwood Community Home v. Bost, 110
S.W.3d 635, 639 (Tex. App.—Austin 2003, no pet.). Under that standard, Judge
Jenkins properly concluded that the actions of the TCEQ must be affirmed because
they were based on appropriate interpretations of the agency’s own rules and
supported by a reasonable basis in the record.
II. The TCEQ properly authorized Pintail’s facility by way of a
registration
In responding to public comments, the TCEQ observed that Pintail’s
application met “the requirements for a registration in accordance with 30 TAC
§ 330.9(b)(3), for a facility used in the transfer of C&D waste that will transfer 125
tons per day or less.” 1Supp. CR 69 (TCEQ’s July 16, 2013 “Public Comment
Letter Response” at 5). Then, in its “Registration for Municipal Solid Waste
(MSW) Management Site,” the TCEQ authorized the “Pintail Landfill Transfer
Station,” and authorized Pintail “to store and process wastes, and to recycle
recovered materials” in accordance with restrictions and limitations set forth in the
registration document. CR 20. The TCEQ treated the facility as a “Type V
Transfer Station”, CR 22, § I.A., and authorized Pintail “to separate, store, and
transfer construction and demolition waste, as defined in 30 TAC 330.3(33), from
13
the construction, and demolition of residential, community, commercial,
institutional, and recreational activities.” Id. §II.B. The registration further
authorized Pintail to recover and transfer recyclable materials to an authorized
facility and required all remaining waste to be transferred to an authorized disposal
facility. Id. The TCEQ acted well within its rules and its discretion in doing so –
it had a reasonable basis to conclude that a facility processing less than 125 tons
per day fit within Rule 330.9(b)(3).
A. TCEQ’s registration of Pintail’s facility fit within its broad regulatory
discretion
This case asks whether the TCEQ complied with its statutory authority and
its own rules when approving Pintail’s application for registration of its transfer
station. It did.
TCEQ’s authority is conferred by statute: the Solid Waste Disposal Act,
Chapter 361 of the Texas Health and Safety Code. See Tex. Health & Safety
Code, §§ 361.011 et seq. The TCEQ has been directed by the Legislature to
“control[] all aspects of the management of municipal solid waste,” and tasked to
do so “by all practical and economically feasible methods”. Tex. Health & Safety
Code, §§ 361.011(b). That statute gives the TCEQ extremely broad authority, and
does not impose any primary or default means by which it must exercise that
authority. Section 361.061 of the Texas Health & Safety Code further empowers,
but does not mandate, the TCEQ to require and issue permits for the construction
14
and operation of solid waste facilities: “…the commission [TCEQ] may require
and issue permits authorizing and governing the construction, operation, and
maintenance of solid waste facilities used to store, process, or dispose of municipal
solid waste…” Id. § 361.061. Thus, while the enabling statutes confer the power
on the TCEQ to manage facilities through a permit process, those statutes do not
require it to do so.
As an alternative to requiring and issuing permits, the Commission may use
other methods of control. See McDaniel v. Texas Natural Resource Conservation
Commission, 982 S.W.2d 650, 652 (Tex. App.—Austin 1998, pet. denied).
Pursuant to its statutory mandate and authority, the TCEQ has adopted rules
establishing a variety of mechanisms for approving different types of facilities.9
These mechanisms include permitting,10 registration,11 and notification,12 and the
rules allow some activities to be conducted without any permitting, registration or
notification.13 Each of these different authorization mechanisms entails different
requirements for information to be submitted to the TCEQ in the application
process, and different levels of opportunity for public participation.14
9
See generally, 30 Tex. Admin. Code, ch. 330, and § 330.5.
10
30 Tex. Admin. Code § 330.7.
11
Id. § 330.9.
12
Id. § 330.11.
13
Id. § 330.13.
14
For example, rules governing permitting require that a variety of different notices be
provided to the public at various times in the process (see, e.g., 30 Tex. Admin. Code ch.
15
In essence, Appellants contend that Pintail’s facility did not fit within
provisions of section 330.9 providing for the authorization by registration and
because it did not, the TCEQ had no discretion but to require the facility to be
permitted. But that argument – that the TCEQ lacked the authority to allow the
operation of municipal solid waste facilities by registration instead of by permit –
has been rejected by this Court. In McDaniel, this Court upheld the issuance of a
registration authorizing a facility for the disposal of sewage sludge, a form of
municipal solid waste. 982 S.W.2d at 652. In that case, the plaintiff complained
that the TNRCC15 lacked authority to authorize a sludge disposal facility by way of
registration, and that it should have required the applicant to invoke the permitting
process instead. Id. at 651. This Court recognized that, throughout the Solid
Waste Disposal Act, the agency “is given the authority to administer the Act using
different levels of regulation, including both permitting and registration.” Id. at
39); allow interested persons to file comments and/or request public meetings concerning
the application (see generally 30 Tex. Admin. Code ch. 50), and allow affected persons to
request contested case hearings (see generally 30 Tex. Admin. Code ch. 55, 80), move to
reconsider a decision (30 Tex. Admin. Code ch. 55), and appeal a TCEQ decision to
district court (see Tex. Health & Safety Code § 361.321; Tex. Water Code § 5.351).
In contrast, rules governing the registration process afford fewer opportunities for
public participation. They require an applicant to provide public notice of the filing of a
registration application (see 30 Tex. Admin Code ch. 39), and allow interested persons to
file comments, request public meetings, and, in the event a registration is approved, move
to overturn the approval (see generally Tex. Admin Code ch. 55), and appeal the TCEQ’s
decision to district court (see Tex. Health & Safety Code § 361.321; Tex. Water Code
§ 5.351). Rules governing registrations do not contain provisions for contested case
hearings. See McDaniel, 982 S.W.2d at 652.
15
The Texas Natural Resource Conservation Commission was a predecessor agency to
the Texas Commission on Environmental Quality.
16
652. This Court acknowledged that the permitting process allows certain
individuals to request a contested case hearing, while the registration process does
not. Id., n.3 (citing 30 Tex. Admin. Code §§ 312.13(b, c) (1998)). Even so, this
Court upheld the Commission’s regulation of municipal solid waste activities
through registrations to be “reasonable and consistent with its powers and duties
under the Act.” Id. at 653.
In considering the registration program at issue in McDaniel (for sewage
sludge disposal facilities), this Court recognized the steps required prior to
approval of the registration:
• An applicant must notify the commission of the proposed
activity.
• An applicant must submit information to allow the Commission
to determine whether the activities comply with its rules.
• The Commission can only approve the registration after
reviewing it in light of the rules governing the activity.
• If the Commission approves the registration, it must provide
notice and an opportunity to comment.
Id.
Those same procedural safeguards are also present in the TCEQ’s
registration program for transfer stations like Pintail’s. See generally 30 Tex.
Admin. Code § 330.69. These procedural safeguards were complied with in the
processing of Pintail’s application for registration, and the TCEQ determined that
the proposed facility would comply with the substantive requirements of the
17
TCEQ’s rules.16 Accordingly, the TCEQ acted within its discretion in authorizing
Pintail’s facility by registration. As in McDaniel, the TCEQ’s use of the
registration process in connection with Pintail’s facility was reasonable and
consistent with its powers and duties under the Solid Waste Disposal Act.
B. Neither of the Rule 330.9 sections relied upon by Appellants
demonstrates any error in the registration of Pintail’s facility
1. Why Rule 330.9(b)(3) applies to Pintail’s facility
The TCEQ has been directed by the legislature to establish regulations that
support the diversion of materials from solid waste streams and to promote the
economic recovery and reuse of materials. 30 Tex. Admin Code § 328.1. To
comply with those directives and facilitate recycling, TCEQ Rule 328.4(a)
provides that recycling facilities are exempt from both registration and permitting
requirements if they comply with all of the conditions of that section. One
requirement relates to the amount of “incidental waste”, as defined by Rule
328.2(3), that may be processed at a facility. If a facility processes more than an
“incidental amount of waste,” then it is not exempt, and instead must obtain a
permit or registration, as applicable, under Chapter 330 or 332. 30 Tex. Admin.
Code § 328.4(d).
Pintail’s facility is intended as a Type V transfer station at which recyclable
materials would be separated from construction and demolition waste. See 1A.R.
16
See 7A.R. 55.
18
1, §I (applying for Type V transfer station); CR 22 (registering a Type V transfer
station). A Type V facility is defined in Rule 330.5(a)(3):
Separate solid waste processing facilities are classified as Type V. These
facilities include processing plants that transfer, incinerate, shred, grind,
bale, salvage, separate, dewater, reclaim, and/or provide other storage or
processing of solid waste.
30 Tex. Admin. Code § 330.5(a)(3). And a “transfer station” is defined in Rule
330.3(157) as:
a facility used for transferring solid waste from collection vehicles to long-
haul vehicles (one transportation unit to another transportation unit). It is not
a storage facility as one where individual residents can dispose of their waste
in bulk storage containers that are serviced by bulk collection vehicles.
30 Tex. Admin. Code § 330.3(157).
This transfer station is intended to be a facility where incoming collection
trucks arrive with construction and demolition waste and debris, where the loads
would be processed and separated, then transported by other trucks taking the
recyclable materials to appropriate facilities for recycling and the residual waste to
a landfill for disposal. See, e.g., 1A.R. 1, §IIIA-6 (describing intended process).
The facility is a transfer station because in addition to separating recyclable
materials in incoming loads from the remaining solid waste, the facility will be
used for transferring the residual solid waste to permitted facilities for disposal.
Using a facility for transferring solid waste does not preclude using the
facility for other processing, such as separation, and temporary storage. Because
19
Pintail’s Type V facility will process recyclable materials that will or may contain
more than incidental amounts of solid waste, the TCEQ properly authorized the
facility by way of registration as a transfer station, a facility that is used for
transferring solid waste.
Because it was anticipated that Pintail’s facility could process more than an
incidental amount of waste, Pintail considered whether its facility fit within any of
the sections of section 330.9 that allow MSW facilities to be authorized by
registration. Section 330.9 identifies a variety of circumstances requiring that a
facility be authorized by registration, and Rule 330.9(a) requires an applicant
submitting a registration application to also submit a statement justifying the
facility’s eligibility for registration. 30 Tex. Admin. Code § 330.9(a). Pintail
invoked Rule 330.9(b)(3) as supporting its registration application “for a Type V
Transfer Station that will transfer 125 tons per day or less, in accordance with
§ 330.9(b)(3).” 1A.R. 1 at I-2. Its application indicated the facility would involve
storage and processing of materials, but not disposal, and that the facility would
serve as a transfer station. Id.
As noted, that description placed Pintail’s facility squarely within the
registration provision in Rule 330.9(b)(3), which requires registration of “an MSW
transfer station facility that is used in the transfer of MSW to a solid waste
processing or disposal facility from . . . (3) a facility used in the transfer of MSW
20
that transfers or will transfer 125 tons per day or less.” 30 Tex. Admin. Code
§ 330.9(b)(3). Pintail’s facility would process and temporarily store construction
and demolition waste and separate it into recyclable and non-recyclable
components before transferring all materials to their respective final destinations.
The facility thus constitutes a transfer station subject to the provisions of Rule
330.9(b)(3).
2. Why Pintail did not have to invoke Rule 330.9(f)
Appellants argue that a permit was required for Pintail’s facility because
Pintail cannot satisfy the provisions of Rule 330.9(f), contending that the facility
cannot be viewed as a transfer station but must be viewed as a material recovery
facility. But Pintail did not have to invoke that rule and could instead rely on Rule
330.9(b)(3), the provision that squarely fits its circumstances.
a. 330.9(f) does not apply to “all” new facilities, just those that
meet all of it provisions
Appellants argue that Rule 330.9(f) applies to any transfer station that
includes material recovery operations, but the text of the rule simply does not
support that argument. By suggesting Rule 330.9(f) is the exclusive provision for
authorizing a new MSW processing facility such as Pintail’s, Appellants’
interpretation does violence to the very rule they quote.
The operative language of Rule 330.9(f) provides as follows: “A
registration is required for any new MSW Type V transfer station that includes a
21
material recovery operation that meets all of the following requirements. . . .” 30
Tex. Admin. Code § 330.9(f). Appellants read the applicability of the rule as if it
ended eighteen words into the provision (“A registration is required for any new
MSW Type V transfer station that includes a material recovery operation. . .”) and
without regard to the other applicability conditions that follow. While they read
the rule as applying to any transfer station that includes a material recovery
operation, the rule’s applicability requires more than that.
By its own terms, Rule 330.9(f) has four requirements that must be met
before it applies to a particular facility: the facility must (1) be a “new MSW Type
V transfer station”, that (2) “includes a material recovery operation” which, in turn,
“meets all of the following requirements” such that the facility satisfies (3) a 10%
minimum recycling provision and (4) a requirement that remaining waste be
disposed of at a landfill located within 50 miles. See 30 Tex. Admin. Code
§ 330.9(f). If a new material recovery facility meets all those conditions, then Rule
330.9(f) applies; if not, the rule is inapplicable. But whether Rule 330.9(f) applies
or does not apply does not prohibit an applicant from invoking some other
subsection of 330.9 that is applicable to a facility’s particular circumstances.
b. A transfer station facility may also store, separate, and
process materials for recycling
Appellants argue that because Pintail’s facility has been authorized to
engage in activities such as processing, separating and storing waste, it is by
22
definition a “material recovery facility” and thus, by definition, it cannot also be a
“transfer station.” Brief at 38. But that argument not only misconstrues the
common sense interpretation of those rules, it also disregards the TCEQ’s
discretion in construing its own rules.
The fact that the TCEQ’s approval authorizes storage and processing does
not disqualify this facility from being authorized by way of a registration. Storage
and processing are part of the normal operations of a Type V transfer station. In
fact, TCEQ’s rules recognize that Type V facilities include “processing plants that
transfer, incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, and/or
provide other storage or processing of solid waste” 30 Tex. Admin. Code
§ 330.5(a)(3) (emphasis added).
Pintail’s registration authorizes storage and processing of non-putrescible
construction and demolition waste from residential, community, commercial,
institutional and recreational activities. CR 22. The registration specifies that the
maximum storage time for unprocessed and processed wastes is 72 hours, and that
within that time the waste must be transferred to an authorized disposal facility. Id.
Storage and processing occur at Type V transfer stations every day across the state,
and in fact it would be impossible to operate a transfer station without the storage
or processing of waste.17
17
The transfer of waste is included within the definition of “processing” in TCEQ’s rules:
23
This view of the rules is not novel: it was shared by the Office of Public
Interest Counsel in its “Response to Motions to Overturn”. See 2Supp.CR 120-22.
There, OPIC observed that activities such as storage, processing, or removal of
solid waste may be authorized by a registration, and that the language contained in
Pintail’s registration must be read in the context of the overall authorization,
wherein the authority to separate, store, process, and recover materials is
conditioned upon the prompt transfer of all such material from the facility. Id.
Indeed, even the TCEQ’s own publication, “Traditional Municipal Solid
Waste Disposal: A Guide for Local Governments,” described the agency’s
interpretation of transfer stations as involving a storage component:
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.
CR 424 (emphasis added).
The TCEQ was thus well within its discretion in concluding that Pintail’s
facility fit within the registration provisions of Rule 330.9(b)(3).
Activities including, but not limited to, the extraction of materials,
transfer, volume reduction, conversion to energy, or other separation and
preparation of solid waste for reuse or disposal, including the treatment or
neutralization of waste, designed to change the physical, chemical, or
biological character or composition of any waste to neutralize such waste,
or to recover energy or material from the waste, or render the waste safer to
transport, store, dispose of, or make it amenable for recovery, amenable for
storage, or reduced in volume.
30 Tex. Admin. Code, § 330.3(117) (emphasis added).
24
C. Due process issues do not justify disturbing TCEQ’s approval of the
registration application.
Appellants’ “due process” argument fails for at least the following reasons.
Appellants were afforded all process that is due under the applicable registration
procedures, as they were given the opportunity to be heard by public comment and
at a public meeting, and were given the opportunity to be heard by way of motions
to overturn the approval of Pintail’s registration. Moreover, any rights Appellants
have to participate in a contested case hearing concerning Pintail’s proposed
landfill were not limited by the procedures applicable to the transfer station
registration. Finally, TCEQ’s use of registration procedures rather than permitting
procedures for approval of Pintail’s transfer station did not implicate any
constitutionally protected rights, and any interest Appellants may have had did not
alter the level of process provided by statute or rule.
1. Appellants’ due process arguments are derivative of their rule-
based arguments – Appellants received all process to which they
were entitled under the governing statutes and rules
Appellants do not dispute that procedures for registration applications
provide for less extensive public participation than do procedures governing permit
applications. The permitting process allows certain individuals to request a
contested case hearing in connection with an application, while the registration
process does not. See 30 Tex. Admin. Code §§ 312.13(b),(c).
25
Appellants complain that by authorizing Pintail to use a registration process,
the TCEQ deprived them of the right to request a contested case hearing in
connection with the transfer station that they would have had under permitting
procedures. Notably, they do not argue that they were denied the participation due
under the registration procedure rules. That distinction is key because it confirms
that the due process argument depends entirely on a finding that the wrong
approval scheme (registration rather than permitting) was used in the first instance,
and that argument is thus entirely derivative of Appellants’ argument that the
TCEQ should have followed permitting procedures instead of registration
procedures in processing Pintail’s transfer station application. To the extent the
TCEQ properly authorized Pintail’s facility by registration as discussed above,
Appellants have no due process argument to make, as they received all process
they were due under the registration procedures.
2. Appellants’ rights to a contested case hearing in connection with
Pintail’s application for a separate landfill permit are not
undercut by TCEQ’s approval of the transfer station by
registration
Appellants next argue that TCEQ’s authorization of the transfer station by
way of a registration denied them the opportunity for a hearing on the storage and
recycling component of Pintail’s proposed landfill facility. Brief at 41. But that
argument inappropriately collapses the two proceedings. As the TCEQ properly
noted, the landfill permit application and the transfer station registration
26
application were “subject to different requirements and must be reviewed
independently.” CR at 68. Appellants are being afforded their right to a contested
case hearing – but in the proper context, i.e., in connection with their challenge to
the landfill permit.
3. The existence of any “property rights” does not morph the
procedures that are otherwise authorized by law
“The constitutional right to due process is not . . . an abstract right to
hearings conducted according to fair procedural rules. Rather, it is the right not to
be deprived of life, liberty or property without such procedural protections.”18
Appellants allege they have property interests that would be affected by the
proposed facility. Brief at 41. But they cite to no authority that would entitle them
to a contested case hearing to advocate in support of those rights when the
governing rules only allow for public comment, public meeting, and the motion to
overturn process. Under the governing rules, Appellants were entitled to comment
on the application, participate in a public meeting concerning the facility, and file
motions to overturn and replies. They cite to nothing saying that simply because
they made the naked assertion of a property interest,19 they were somehow entitled
to additional process not otherwise afforded by applicable law.
18
Monk v. Huston, 340 F.3d 279, 282-83 (5th Cir. 2003).
19
Appellants do not even allege how the approval of the registration for Pintail’s Type V
Facility will have any impact on the property interests they assert. Nor do they point to
any evidence in the record that TCEQ’s approval of Pintail’s Type V Facility would, or
27
4. Authorization of the facility by registration rather than permit
did not implicate any constitutionally protected rights
Appellants’ due process argument fails for another reason: even if the
registration process implicated any constitutionally protected interests, such a fact
would not entitle them to more process than what they were afforded. Even if, as
they argue, they had property interests that would be affected by the transfer
station (a point they do not substantiate and that Pintail does not concede), such a
fact would not entitle them to more process than otherwise due by statute or rule to
any other similarly-situated party. Whatever interests Appellants may have might
entitle them to invoke the full spectrum of opportunities to be heard and to contest
Pintail’s application under the means afforded by rule and statute, but whatever
those interests may be, they do not confer additional rights to be heard that do not
otherwise exist.
5. Absent a statutory or rule-based right to a hearing, the use of a
registration process could not violate any due process rights
Appellants’ argument ultimately collapses upon itself. Appellants conclude
by asserting that “[w]hen there is a 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.” Brief at 41- 42. As a general proposition, that statement is true. But
Appellants point to no statutory right to a hearing that attaches to an application for
even could, have any impact on any groundwater or groundwater rights or other property
rights.
28
a registration, nor can they point to any rule entitling them to a hearing under such
circumstances. So, here, the converse of Appellants’ position controls: in the
absence of a statutory right to a hearing or a right to a hearing under applicable
rules, procedural due process does not require that a hearing be provided.
Appellants’ constitutional due process claims are unfounded.
III. The trial court correctly affirmed TCEQ’s issuance of the registration
over Appellants’ “too many NODs” argument
Appellants’ final argument fails for three essential reasons. First, the
argument is waived in its entirety pursuant to Texas Rule of Appellate Procedure
38.1(i) because Appellants cite no authority to demonstrate the existence of a legal
principle they claim was violated, or to demonstrate that any such violation
required the underlying order to be vacated.
Second, Appellants’ argument depends upon rules that do not exist. No
authority limits TCEQ to two requests for information from an applicant for
approval of a transfer station. Instead, the TCEQ has the discretion to determine
when additional information regarding a proposed facility is necessary and to work
with an applicant to obtain that information to assist with the processing of an
application.
Finally, were this Court to adopt the position advocated by Appellants and
transform internal operating procedures, summaries, and guidelines into general
and inflexible rules, the result would not only utterly undermine the ability of
29
agencies to fulfill their statutory duties, but would undercut the transparency and
the opportunity for public participation provided by formal rulemaking procedures.
A. Appellants waived any complaint about the number of NODs
In support of their theory, Appellants do not cite a single legal authority.
They cite no authority which they contend limits the number of NODs an agency
may issue, no authority holding that statements made regarding how the agency
processes applications can have the force and effect of statutes or rules that bind
the agency, and no authority saying that any departure from any statement an
agency may make about processing applications somehow renders the approval of
an otherwise valid and meritorious application void and subject to being set aside
after the fact. In the absence of any references to authorities to support these
theories, Appellants have waived any error. See Fredonia State Bank v. General
American Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994). This issue should be
disregarded in its entirety.
B. Texas law does not treat agency statements about internal procedures as
equivalents to promulgated rules or statutes
1. No rules or statutes limit the TCEQ to issuing only 2 NODs
There are no statutory provisions or TCEQ rules that limit TCEQ to issuing
only two NODs during its review of an application for a registration (or any other
type of authorization) for a municipal solid waste facility. Because Appellants
have not and cannot identify any statute or rule that was violated by the issuance of
30
more than two NODs, their request to have the TCEQ’s approval of Pintail’s
registration invalidated on this basis must be denied.
2. TCEQ’s so-called “policy statements” do not set any “2 NOD”
limits.
On appeal, Appellants argue that the back-and-forth process between the
TCEQ and Pintail was “in direct conflict” with “the TCEQ policies outlined in the
MSW registration process description, which is located in a 2009 TCEQ Sunset
Evaluation Report.” Brief at 43. The “outlined policy” they reference is a flow
chart demonstrating the typical path by which applications are processed. See CR
146. Such a demonstrative aid does not prescribe an agency’s discretion, does not
limit the number of requests it can make of a particular applicant in processing an
application, and does not mandate that, in lieu of requesting additional information,
an agency return what appears to be an otherwise meritorious application.
Appellants also quote a TCEQ document that purports to provide
instructions on how applications should be processed. See Brief at 45, n. 100
(citing to Exhibit 3 to CALH’s Reply to Responses to Motion to Overturn, found at
8A.R. 65) (the quoted document is also found at 2Supp.CR 152, with the paragraph
quoted by Appellants found on page 154). Notably, while Appellants quote this
document as constraining the agency’s discretion in processing applications and
mandating that an application be returned after an insufficient response to a second
NOD, by its own terms it does no such thing.
31
In evaluating a response to a second NOD, the document indicates that the
staff should exercise discretion to decide whether “significant” deficiencies still
exist, in which case the application should be returned. But the corollary is that if
the application is not returned, then any deficiencies found by the agency were not
significant enough to warrant such a disposition. That document also references
the staff’s discretion to continue working with an applicant to resolve deficiencies
in an application that are identified in the course of the agency’s review. The
distinction between significant and insignificant deficiencies, and the discretion to
classify any deficiencies, confirms that the agency retains the power to continue
working with an applicant, and to seek additional information in support of an
application, even after receiving a response to a second NOD. That distinction
defeats Appellants’ argument, and the document sets forth no policy mandating the
automatic rejection of an application after a deficient response to a second NOD.
More relevant is the TCEQ’s April 11, 2012 internal memorandum
contained in the record as an exhibit to the City of Hempstead’s motion to
overturn, but not cited by Appellants on appeal. See CR 167. That memorandum
is more relevant because it is sourced (shows who it is from and to whom it is
directed); and because its effective date was prior to the issuance of the third NOD
to Pintail. The policy in effect when Pintail’s application was being processed
simply did not refer to any limits on the number of NODs. Instead, it directed that
32
“[i]f the response to the 2nd NOD does not satisfactorily address the deficiencies,
the [project manager] should discuss the issues with the [team leader] to determine
the next course of action.” CR 169.
Moreover, Appellants’ superficial summary of what happened below
disregards the reality of what had been requested by the TCEQ of Pintail.
Consistent with its discretion to continue working with applicants to resolve
deficiencies, the TCEQ’s successive requests either (1) identified entirely new
topics of information that staff had not previously requested of Pintail and,
accordingly, for which Pintail could hardly be blamed for having not previously
produced,20 or (2) identified follow-up matters to be addressed after responses to
earlier inquiries. Whether the TCEQ staff continued to work with Pintail by way
of a document called a “Notice of Deficiency” or by way of letters simply asking
for more information on particular topics should not be fatal to the application.
3. Informal TCEQ statements do not constrain the discretion of the
agency to consider more, rather than less, information
Even if any statements referenced by Appellants could be considered agency
statements of general applicability describing policy or procedure, they cannot
constitute enforceable rules governing the processing of Pintail’s application. That
20
Indeed, had TCEQ rejected Pintail’s application based upon its successive requests for
new categories of information, such a rejection would have been subject to challenge as
being arbitrary and capricious because Pintail has the right to know what is expected of it
so it may comply. See Starr County v. Starr Indus. Servs., 584 S.W.2d 352, 356 (Tex.
Civ. App.—Austin, 1979, writ ref’d n.r.e.).
33
is the very point of Combs v. Entertainment Publications, Inc., 292 S.W.3d 712
(Tex. App.—Austin 2009, no pet.). In Combs, when the Comptroller attempted to
rely on letters sent to trade associations as setting forth agency policy, this Court
recognized that even if the letters could be considered “rules”, they were
necessarily invalid and unenforceable because they had not been adopted pursuant
to the rule-making requirements of the Administrative Procedure Act (Tex. Gov’t
Code, Subchapter B, §§2001.021-041). 292 S.W.3d at 723.
For the same reason, any statement by the TCEQ, its Executive Director, or
any unidentified member of the agency staff, to the effect that there is a limit on
the number of NODs to be used in processing an application for registration cannot
constitute a valid and enforceable rule, unless adopted pursuant to the rule-making
procedures established by the Administrative Procedure Act. As nothing shows
that the statements Appellants rely upon as setting a two NOD limit were adopted
in compliance with that Act, the claim of an enforceable limit on the number of
NODs must fail.
C. Practical reasons demonstrate why the statements at issue were not
binding as if they were rules or statutes
Finally, various practical reasons demonstrate the mischief inherent in the
result advocated by Appellants.
If the TCEQ were obligated to reject a registration application simply
because, after a second NOD, it identified additional information it would like to
34
review, perverse results would occur. The TCEQ would be deprived of a means to
seek additional information on a topic whose relevance only becomes apparent as a
result of its review of other information provided in response to earlier agency
inquiries. If a “2 NOD limit” were in place, the agency would be forced to do one
of three things, none of which are desirable: (1) wait to request information from
an applicant until it completes an initial review of all information provided (even
though interim requests for additional information may facilitate a more efficient
review of the application); (2) refrain from making any request for additional
categories of potentially relevant information after the second NOD and decide
whether to grant or deny an application without the benefit of all relevant
information, or (3) arbitrarily deny or return an application if, after two requests, it
becomes apparent that additional information may be relevant to the agency’s
review. None of these options are optimal and none advance the goal of assisting
the agency in making informed decisions that will protect the public health and
environment while facilitating necessary and legitimate projects.
A limit on the number of NODs may be something that could serve a useful
purpose under certain circumstances, such as discouraging haphazard filings. But
when the agency and the applicant engage in documented, ongoing, good faith
efforts to exchange relevant information, such a working relationship between the
agency and the applicant should be encouraged rather than stifled by an arbitrary
35
limit on requests for information. An operating procedure designed to discourage
ill-advised filings should not be transformed into a sword to kill off more
complicated, nuanced, and sophisticated applications on the ground that, despite
the good faith of all parties, an agency determines it would be in the public’s
interest if it were to review more information before making a decision.
In short, the TCEQ’s discretion in issuing more than two requests for
additional information regarding Pintail’s facility (captioned as NODs or
otherwise) was not constrained by any legally binding limitation. The process used
to approve Pintail’s registration application does not demonstrate an abuse of
discretion.
CONCLUSION
Appellants have not made any showing as required under the standard for
review in the provision they invoke as the basis for this appeal, Health and Safety
Code section 361.321(e). Specifically, they make no showing that the TCEQ’s
actions were invalid, arbitrary, or unreasonable. Nor have Appellants shown that
the TCEQ violated any statutory or regulatory requirements, or otherwise abused
its discretion. Instead, the record demonstrates a reasonable basis supporting the
TCEQ’s actions. Under these circumstances, the district court did not err in
affirming the TCEQ’s approval of Pintail’s registration.
36
PRAYER FOR RELIEF
Wherefore, premises considered, Pintail Landfill, LLC respectfully prays
that this Court affirm the judgment of the district court in all respects.
Respectfully submitted,
/S/ Michael S. Truesdale
Michael S. Truesdale
LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
State Bar No. 00791825
801 West Avenue, Suite 201
Austin, TX 78701
512-482-8671
866-847-8719 (fax)
mike@truesdalelaw.com
MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD,
L.L.P.
Brent W. Ryan
State Bar No. 17469475
P.O. Box 12127
Austin, TX 78711
512-327-8111
512-327-6566 (fax)
bryan@msmtx.com
COUNSEL FOR APPELLEE
PINTAIL LANDFILL, LLC
37
CERTIFICATE OF SERVICE
On March 27, 2015, the undersigned certifies that he served a copy of this
Brief of Appellants on the following in the manner listed below, in compliance
with Texas Rules of Appellate Procedure 9.5 and 25.1(e):
V. Blaire Peña Monica M. Jacobs
Terry L. Scarborough Diana L. Nichols
Michael L. Woodward Shana L. Horton
Hance Scarborough, LLP Kelly Hart & Hallman LLP
400 West 15th Street, Suite 9500 301 Congress Avenue, Suite 2000
Austin, TX 78701 Austin, Texas 78701
Attorneys for Citizens Against the Attorneys for City of Hempstead
Landfill in Hempstead
Ken Paxton, Attorney General of Texas
Charles E. Roy, First Assistant Attorney General
James E. Davis, Deputy Attorney General for Civil Litigation
Jon Nierman, Chief Environmental Protection Division
Nancy Olinger, Assistant Attorney General
Cynthia Woelk, Assistant Attorney General
Daniel C.Wiseman, Assistant Attorney General
P.O. Box 12548, Capitol Station (MC-066)
Austin, TX 78711-2548
Attorneys for the Texas Commission on Environmental Quality
/s/ Michael S. Truesdale
Michael S. Truesdale
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief complies with the word limitation
contained in Texas Rule of Appellate Procedure 9.4(i)(2)(E) in that the brief
contains a total of 8,761 words, excluding parts of the brief exempted by Tex. R.
App. P. 9.4(i)(1), as calculated by the word count tool of Microsoft Word (2008)
for Mac.
/s/ Michael S. Truesdale
Michael S. Truesdale
38