“When the police seize property for a criminal investigation, however, due process does not require them to provide the owner with notice of state-law remedies.”
How later courts described this case
- “When the police seize property for a criminal investigation, however, due process does not require them to provide the owner with notice of state-law remedies.”
- notice of post- answer default
- required statement of facts not filed
- “Despite the Legislature’s intent to expedite termination proceedings, it cannot do so at the expense of a parent’s constitutional right to notice.”
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00446-CV
7113707
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/25/2015 10:24:30 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00446-CV
IN THE FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS FOR THE 9/25/2015 10:24:30 PM
AUSTIN, TEXAS
THIRD COURT OF APPEALS DISTRICTJEFFREY D. KYLE
Clerk
AUSTIN, TEXAS
______________
BAXTER OIL SERVICE, LTD.
APPELLANT
VERSUS
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
APPELLEE
______________
APPEAL FROM THE 345TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS
NO. D-1-GN-10-000772
BRIEF OF APPELLANT
PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP
Elliott S. Cappuccio
Texas State Bar No. 24008419
Leslie Sara Hyman
Texas State Bar No. 00798274
Etan Z. Tepperman
Texas State Bar No. 24088514
2161 NW Military Highway, Suite 400
San Antonio, Texas 78213
(210) 222-9494 (Telephone)
(210) 892-1610 (Facsimile)
Attorneys for Appellant
APPELLANT REQUESTS ORAL ARGUMENT
NO. 03-15-00446-CV
IN THE
COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
______________
BAXTER OIL SERVICE, LTD.
APPELLANT
VERSUS
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
APPELLEE
______________
IDENTITY OF PARTIES AND COUNSEL
Appellant: Appellate Counsel for Appellant:
Baxter Oil Service, Ltd. Elliott S. Cappuccio
Leslie Sara Hyman
Etan Z. Tepperman
Pulman, Cappuccio,
Pullen, Benson & Jones, LLP
2161 NW Military Highway, Suite 400
San Antonio, Texas 78213
–i–
Trial Counsel for Appellant:
Cynthia J. Bishop
C Bishop Law PC
P. O. Box 612994
Dallas, Texas 75261
Appellee: Counsel for Appellee:
Texas Commission on Environmental Thomas H. Edwards
Quality Craig J. Pritzlaff
Office of the Attorney General
P. O. Box 12548, Capital Station
Austin, Texas 78711
– ii –
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................... i
TABLE OF CONTENTS ....................................................................................................... iii
INDEX OF AUTHORITIES ................................................................................................... iv
STATEMENT OF THE CASE ................................................................................................. 1
ORAL ARGUMENT STATEMENT ........................................................................................ 2
ISSUES PRESENTED ............................................................................................................ 2
STATEMENT OF FACTS ...................................................................................................... 3
SUMMARY OF THE ARGUMENT ....................................................................................... 8
ARGUMENT ....................................................................................................................... 9
I. Baxter Was Deprived of Due Process ......................................................................... 9
A. Baxter Is Entitled To Due Process .............................................................. 9
B. “Adequate” Notice is an Essential Element of Due Process ..................... 11
C. The Notice to Baxter Did Not Provide Baxter Sufficient Information ..... 15
1. The TCEQ Did Not Provide Any Notice of the
Right to Appeal the Order ................................................................. 15
2. Constructive Notice of Appellate Rights Is Inadequate
Given the Circumstances and Conditions of This Case ..................... 18
3. The TCEQ Did Not Provide Adequate Notice of the
of the Issues or Consequences .......................................................... 22
D. Because it Lacked Sufficient Information, the Order
Violated Due Process and Was Void ........................................................ 24
II. Because the Order is Void, it May be Collaterally Attacked
at Any Time and the Trial Court Erred in Granting
the TCEQ’s Plea to the Jurisdiction ................................................................. 27
CONCLUSION AND PRAYER ........................................................................................... 29
CERTIFICATE OF COMPLIANCE ...................................................................................... 31
CERTIFICATE OF SERVICE .............................................................................................. 31
– iii –
INDEX OF AUTHORITIES
Cases Page
Armstrong v. Manzo,
380 U.S. 545 (1965) ..............................................................................................10
Barrera-Montenegro v. United States,
74 F.3d 657 (5th Cir. 1996) ...................................................................................14
Baxter v. Colvin,
No. 14-CV-01306, 2014 WL 6985149 (N.D. Cal. Dec. 10, 2014) .......................13
Boddie v. Connecticut,
401 U.S. 371 (1971) ..........................................................................................9, 10
Bradford v. Edelstein,
467 F. Supp. 1361 (S.D. Tex. 1979) ................................................................12, 18
Buckner Trucking, Inc. v. United States,
354 F. Supp. 1210 (S.D. Tex.1973) .......................................................................22
Butland v. Bowen,
673 F. Supp. 638 (D. Mass. 1987) ...........................................................................13
Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res.
Conserv. Comm’n,
124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied) ......................................28
Chow v. Dole,
677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no writ).........................18
City of Celina v. Dynavest Joint Venture,
253 S.W.3d 399 (Tex. App.—Austin 2008, no pet.),
rev’d on other grounds, Rusk State Hospital v. Black,
392 S.W.3d 88 (Tex. 2012)....................................................................................28
City of Dallas v. VSC, LLC,
347 S.W.3d 231 (Tex. 2011) ......................................................................20, 21, 22
City of Waco v. Roddey,
613 S.W.2d 360 (Tex. App.—Waco 1981, no writ) ..............................................12
– iv –
INDEX OF AUTHORITIES (CONTINUED)
Cases (Continued) Page
City of West Covina v. Perkins,
525 U.S. 234 (1999) ..........................................................................19, 20, 21, 22
Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532 (1985) ..............................................................................................10
Consolidation Coal Co. v. Georgia Power Co.,
781 F.3d 129 (4th Cir. 2015) .................................................................................26
Dusenbery v. United States,
534 U.S. 161 (2002) ..............................................................................................20
FCC v. Pottsville Broadcasting Co.,
309 U.S. 134 (1940) ..............................................................................................13
Fuentes v. Shevin,
407 U.S. 67 (1972) ..................................................................................................9
Gonzalez v. Sullivan,
914 F.2d 1197 (9th Cir. 1990) .........................................................................13, 27
Hess & Clark, Division of Rhodia, Inc. v. Food and Drug Administration,
495 F.2d 975 (D.C. Cir. 1974) ...............................................................................13
Houston v. Fore,
412 S.W.2d 35 (Tex. 1967).............................................................................. 11, 29
In re Guardianship of B.A.G.,
794 S.W.2d 510 (Tex. App.—Corpus Christi 1990, no writ) ............................27, 28
In re E.R.,
385 S.W.3d 552 (Tex. 2012)............................................................................28, 29
In re Ruffalo,
390 U.S. 544 (1968) ..............................................................................................13
Joint Anti-Facist Comm. v. McGrath,
341 U.S. 123 (1951) .......................................................................................... 9, 11
–v–
INDEX OF AUTHORITIES (CONTINUED)
Cases (Continued) Page
Jones v. Flowers,
547 U.S. 220 (2006) ..............................................................................................20
L.B.L. Oil Co. v. Int’l Powers Serv., Inc.,
777 S.W.2d 390 (Tex. 1989)..................................................................................18
Langdale v. Villamil,
813 S.W.2d 187 (Tex. App.—Houston [14th Dist.] 1991, no writ) ......................12
Lesikar v. Rappeport,
33 S.W.3d 282 (Tex. App.—Texarkana 2000, no pet) ..........................................28
Logan v. Zimmerman Brush Co.,
455 U.S 422 (1982) .........................................................................................10, 14
Lopez v. Lopez,
757 S.W.2d 721 (Tex. 1988)..................................................................................18
Mathews v. Eldridge,
424 U.S. 319 (1976) ..................................................................................... Passim
Memphis Light, Gas, & Water Div. v. Craft,
436 U.S. 1 (1978) ..................................................................................................18
Misium v. Misium,
902 S.W.2d 195 (Tex. App.—Eastland 1995, no writ)..........................................18
Moss v. Malone,
880 S.W.2d 45 (Tex. App.—Tyler 1994, writ denied) ..........................................18
Mosser v. Plano Three Venture,
893 S.W.2d 8 (Tex. App.—Dallas 1994, no writ) ........................................... 11, 12
Mullane v. Central Hanover Bank Trust Co.,
339 U.S. 306 (1950) ..................................................................................... Passim
Navato v. Sletten,
560 F.2d 340 (8th Cir.1977) ..................................................................................13
– vi –
INDEX OF AUTHORITIES (CONTINUED)
Cases (Continued) Page
North Alabama Express, Inc. v. United States,
585 F.2d 783 (5th Cir.1978) ..................................................................................13
N.Y. Life Ins. Co. v. Brown,
84 F.3d 137 (5th Cir. 1996) .............................................................................27, 28
Peralta v. Heights Med. Ctr. Inc.,
485 U.S. 80 (1988) ................................................................................................14
Roman Catholic Diocese of Dallas v. County of Dallas Tax Collector,
228 S.W.3d 475 (Tex. App.—Dallas 2007, no pet.) ..............................................28
Rotello v. State,
492 S.W.2d 347 (Tex. Civ. App.—Houston [1st Dist.] 1973,
writ ref’d n.r.e., per curiam) ..................................................................................18
Security State Bank & Trust v. Bexar Cty.,
397 S.W.3d 715 (Tex. App.—San Antonio 2012, pet. denied) .......................27, 28
Stubbs v. Stubbs,
685 S.W.2d 643 (Tex. 1985)..................................................................................18
Tramco Enter., Inc. v. Indep. Am. Sav. Ass’n,18
739 S.W.2d 944 (Tex. App.—Fort Worth 1987, no writ) ......................................18
Valero South Texas Processing Co. v. Starr County Appraisal District,
954 S.W.2d 863 (Tex. App.—San Antonio 1997, no writ) ................................... 11
Villegas v. Carter,
711 S.W.2d 624 (Tex. 1986) ..................................................................................18
Vine St. LLC v. Borg Warner Corp.,
776 F.3d 312 (5th Cir. 2015) ...........................................................................25, 26
Walker v. City of Hutchison,
352 U.S. 112 (1956) .................................................................................. 11, 18, 22
– vii –
INDEX OF AUTHORITIES (CONTINUED)
Cases (Continued) Page
Williams v. Holley,
653 S.W.2d 639 (Tex. App.—Waco 1983, writ ref’d n.r.e.) .................................12
Wolff v. McDonnell,
418 U.S. 539 (1974) ..............................................................................................13
Constitutions
U.S. Const. amend. XIV ........................................................................................2, 9
Tex. Const. art. 1, § 19 ...............................................................................................9
Statutes
Tex. Health & Safety Code § 361.188 ....................................................................... 5
Tex. Health & Safety Code § 361.272 ....................................................................... 5
Tex. Health & Safety Code § 361.321 ...............................................................18, 26
Tex. Health & Safety Code § 361.322 ...............................................................18, 26
Secondary Sources
Webster’s New International
Dictionary of the English Language (2nd ed. 1935) ...............................................23
– viii –
STATEMENT OF THE CASE
Nature of the Case Appellee, the Texas Commission on Environmental
Quality (the “TCEQ”), sued Appellant, Baxter Oil
Service, Ltd. (“Baxter”), in order to enforce an
administrative order. CR 283–424. Baxter filed a
motion for summary judgment, attempting to negate
elements of the TCEQ’s claim. CR 1458–1581.
In addition to responding to Baxter’s motion for
summary judgment on the merits, the TCEQ filed a
plea to the jurisdiction claiming that Baxter
impermissibly sought a collateral attack of the
TCEQ’s administrative order. CR 1582–1703.
After further briefing by both parties, CR 1704–1934,
and a hearing, RR 1–56, the trial court granted the
TCEQ’s plea to the jurisdiction. CR 1592.
Trial Court The Honorable Amy Clark Meachum of 345th Judicial
District Court, Travis County, Texas.
Trial Court’s Disposition The trial court granted the TCEQ’s plea to the
jurisdiction and dismissed Baxter’s motion for
summary judgment. CR 1592.
–1–
ORAL ARGUMENT STATEMENT
Baxter Oil Service, Ltd. requests oral argument because this appeal turns on
whether the administrative order issued by the Texas Commission on
Environmental Quality is void, which itself turns on whether the order contains
sufficient information to comply with the demands of due process.
The determination of whether a notice of potential deprivation complies with due
process is a fact intensive one requiring balancing three factors. No bright line rule
exists. Oral argument would facilitate the Court’s understanding of the facts
presented below and how the balancing test applies to those facts.
ISSUES PRESENTED
Whether the trial court erred in granting the TCEQ’s plea to the jurisdiction
because (1) due process clause of the 14th Amendment to the United States
Constitution requires adequate notice and an opportunity to be heard before a
person is deprived of a property interest by the state, (2) an administrative order
that violates a person’s due process rights is void; and (3) an administrative order
that is void for failing to comport with due process can be collaterally attacked.
–2–
STATEMENT OF FACTS
Sam Baxter (“Sam”) is the owner of Baxter Oil Service, Ltd. (“Baxter”).
CR 1329, 1473. He founded the small family-operated business in the fall of 1983
and has managed all aspects of Baxter’s operations since that time. CR 1329,
1473. Baxter’s business for over 30 years has been transporting and brokering fuel
for customers who burn fuel for energy recovery, re-sell fuel, or sell blended fuel
products. CR 1329, 1473. The materials Baxter sells, brokers, or otherwise uses in
its business are not intended for disposal, but rather for re-use. CR 1329, 1473.
In the 1980s, Baxter sold petroleum products to the Voda Petroleum Company
(“Voda Petroleum”), amongst others. CR 1329, 1473. The products Baxter sold to
Voda Petroleum were intended for resale and did not require processing by Voda
Petroleum. CR 1323, 1329. Sam was never an owner or operator of
Voda Petroleum. CR 1373. To Sam’s recollection, Baxter never transferred
materials to Voda Petroleum. CR 1330, 1473. Rather, Voda Petroleum picked up
the products from Baxter. CR 1330, 1473. Baxter sold to Voda Petroleum
products such as No. 4 oil, naptha, transformer oil, on-spec used oil fuel,
natural gas condensate, and “‘light ends.’” CR 1329, 1473. Baxter had other
customers for these products. CR 1329, 1474. However, Baxter chose to sell to
Voda Petroleum because Baxter was able to charge it higher prices. CR 1330,
1473.
–3–
Voda Petroleum had complete control over the products it bought from Baxter.
CR 1330, 1475. Baxter had no role in making waste disposal decisions, or any
decisions for that matter, for Voda Petroleum. CR 1330, 1475. The only business
Baxter had with Voda Petroleum was selling fuel products for use or resale.
CR 1323–24, 1475. Waste disposal was never part of Baxter’s business with
Voda Petroleum. CR 1324, 1330, 1475. Sam had no knowledge of any disposal
occurring at Voda Petroleum’s facility. CR 1330, 1475.
Voda Petroleum’s facility (the “Voda Site”) sat on 6.12 acres of land in
Gregg County, Texas. CR 445. Appellee, the Texas Commission on
Environmental Quality (“TCEQ”), contends that the Voda Site was used as a
waste oil recycling facility from 1981 to 1991. Id. In 1995, the TCEQ conducted
an investigation to determine if Voda Petroleum’s operations caused environmental
contaminants to enter the groundwater or soil at the Voda Site. Id.
After conducting investigations into a site’s potential risk to public health and the
environment resulting from releases or potential releases of hazardous substances,
a site is given a Hazard Ranking System (“HRS”) score. Id. The HRS score
assigned to the Voda Site by the TCEQ was not severe enough to qualify the
Voda Site as federal “Superfund Site.” Id. The TCEQ referred the matter to the
United States Environmental Protection Agency (the “EPA”). Id.
–4–
The EPA investigated the Voda Site and on March 27, 1996, issued an action
memorandum. CR 446. That action memorandum stated that the Voda Site
contained hazardous substances, had received crude oil, and had large quantities of
oil that were subject to the United States Clean Water act and the United States Oil
Pollution Act. Id. As part of the EPA’s removal action, various sources of
contamination were removed from the Voda Site. Id. By late 1997, the EPA’s
remediation efforts were completed. Id. On-site soil and ground-water was tested
and the results showed that the EPA’s efforts had minimized threats of direct
human contact and inhalation. Id. The EPA sought to recover its removal costs
from various potentially responsible parties. Id. Although Baxter denied liability,
in 2000 it settled the EPA’s demand for cleanup costs for $10,000. CR 1324.
Three years after the EPA concluded its removal action, the TCEQ proposed
listing the Voda Site on the State Superfund Registry on November 17, 2000.
CR 447. The TCEQ never re-scored the Voda Site under the HRS following the
EPA’s removal action. Id. From 2001 to 2008, the TCEQ conducted remedial
investigations and a feasibility study at the Voda Site. CR 448.
After years of investigations, the TCEQ issued the Voda Site State Superfund
Order (“the Order”) pursuant to section 361.188 and 361.272 of the Texas Health
& Safety Code on February 12, 2010. CR 1733–1812. The Order, when counting
the accompanying exhibits, is 79 pages long. Id. Numerous obligations are
–5–
imposed on the “responsible parties,” such as: (1) reimbursing the TCEQ for its
past investigative costs, CR 1758; (2) designing and implementing a remedial
action, CR 1761–74; and (3) obtaining Post Construction Financial Assurance,
CR 1773–74. Nothing in the Order, including its exhibits, stated that Baxter was
liable for any amounts of money. CR 1733–1812. Nothing in the Order, including
its exhibits, stated that the Order was final and appealable. Id. Nothing in the
Order, including its exhibits, stated that Baxter or any of the other potentially
responsible parties had the right to appeal the Order. Id. And nothing in the Order,
including its exhibits, stated how much the Voda Site’s remediation efforts will
cost. Id.
The Order was accompanied by a short cover letter, simply stating to
“[p]ersons on the attached mailing list . . . [e]nclosed is a copy of an administrative
order issued by the Commission regarding the above referenced matter.
Should you have any questions, please contact . . . [the] Chief Clerk.” CR 1813.
That letter was sent to Baxter and hundreds of other potentially responsible parties
on February 19, 2010. CR 1813–31.
Young Chevrolet, Inc., a potential responsible party listed on the Order, initiated
the proceeding below on March 12, 2010, by filing suit against the TCEQ to appeal
the Order. CR 5–110. Other potentially responsible parties filed lawsuits against
the TCEQ, and on May 18, 2010, all of the cases involving the Voda Site were
–6–
consolidated in the trial court. CR 221–245. On August 8, 2011, the TECQ filed a
counterclaim against all the plaintiffs in the pending actions and in the same
pleading, instituted a third-party action against numerous potentially responsible
parties who did not appeal the Order. CR 283–424. Baxter was one of these
third-party defendants. CR 303. On March 12, 2012, Sam, on behalf of Baxter,
sent a letter to counsel for the TCEQ in response to the Order, enclosing an answer
setting forth Baxter’s defenses to liability under the Order. CR 1883–85.
On November 15, 2013, Baxter, through counsel, filed an answer in the proceeding
below. CR 578–81.
Baxter filed a motion for summary judgment on March 27, 2015, on the
grounds that Baxter negated two essential elements of the TCEQ’s third-party
lawsuit because Baxter did not send solid waste to the Voda Site and never
intended to dispose of solid waste at the Voda Site. CR 1458–1581. On April 17,
2015, the TCEQ filed a plea to the jurisdiction, requesting the district court to
dismiss Baxter’s summary judgment motion. CR 1582–1703. The TCEQ
contended that the Order was final and unappealable and could not be collaterally
attacked by Baxter. CR 1588–92. The district court granted the TCEQ’s plea to
the jurisdiction on June 29, 2015, dismissing Baxter’s motion for summary
judgment without consideration of the merits. CR 1952. This appeal followed.
CR 1953–55.
–7–
SUMMARY OF THE ARGUMENT
The trial court erred in granting the TCEQ’s plea to the jurisdicton. By the
Order entered in connection with the Voda Site, the TCEQ attempts to impose
monetary obligations on Baxter. Baxter is entitled to due process before it is
deprived by the TCEQ of such property. Due process requires both adequate
notice and an opportunity to be heard. The Order fails to comport with due process
because it does not provide adequate notice. Specifically, the Order not only fails
to inform Baxter of its appellate remedies, but affirmatively misrepresents the
finality of the Order. The Order also fails to inform Baxter of the possible scope of
its liability, thereby depriving Baxter of key information necessary to determining a
proper response.
Because the Order fails to comport with due process, it is void. And because
the Order is void, it may be collaterally attacked. Accordingly, the TCEQ’s plea to
the jurisdiction, which argued that Baxter could not collaterally attack the Order by
means of a summary judgment motion, was without merit.
–8–
ARGUMENT
I. Baxter Was Deprived of Due Process
A. Baxter Is Entitled To Due Process
The Fourteenth Amendment to the Constitution of the United States provides
that no person shall be deprived of property without due process of law. 1
In Fuentes v. Shevin, 407 U.S. 67 (1972), the United States Supreme Court
observed:
The constitutional right to be heard is a basic aspect of the duty of
government to follow a fair process of decisionmaking when it acts to
deprive a person of his possessions. The purpose of this requirement
is not only to ensure abstract fair play to the individual. Its purpose,
more particularly, is to protect his use and possession of property from
arbitrary encroachment – to minimize substantively unfair or mistaken
deprivations of property.
Id. at 80–81; see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The ‘right
to be heard before being condemned to suffer grievous loss of any kind, even
though it may not involve the stigma and hardships of a criminal conviction, is a
principle basic to our society.’”) (quoting Joint Anti-Facist Comm. v. McGrath,
341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)).
Although the required procedures may vary according to the interests at stake in
particular contexts,2 “the fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”
1
Article 1, section 19 of the Texas Constitution states: “No citizen of this State shall be deprived
of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the
due course of the law of the land.”
2
Boddie v. Connecticut, 401 U.S. 371, 378 (1971).
–9–
Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). The United States Supreme Court has specifically held that
“the Due Process Clauses protect civil litigants who seek recourse in the courts,
either as defendants hoping to protect their property or as plaintiffs attempting to
redress grievances.” Logan v. Zimmerman Brush Co., 455 U.S 422, 429 (1982).
Arguing by analogy to cases involving the right of access to courts,
Logan reaffirmed a long line of cases upholding the fundamental nature of the right
to be heard:
[A]t least where interests of basic importance are involved, “absent a
countervailing state interest of overriding significance, persons forced
to settle their claims of right and duty through the judicial process
must be given a meaningful opportunity to be heard.”
Logan, 455 U.S. at 430 n.5 (quoting Boddie, 401 U.S. at 377). The Supreme Court
has “described ‘the root requirement’ of the Due Process Clause as being ‘that an
individual be given an opportunity for a hearing before he is deprived of any
significant property interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (quoting Boddie, 401 U.S. 379).
Baxter, like all United States citizens, is entitled to due process. The Order and
the TCEQ’s third-party lawsuit against Baxter demonstrate that the TCEQ seeks to
deprive Baxter of property – a certain portion of the potentially millions of dollars
it will cost to remediate the Voda Site. CR 1448. The amount of money Baxter
– 10 –
may be liable for could be substantial. Therefore, before the TCEQ can deprive
Baxter of its property – in this case money – Baxter is entitled to due process.
B. “Adequate” Notice is an Essential Element of Due Process
In order to be afforded an opportunity to be heard, a party must have notice of
the opportunity. For this reason, the United States Supreme Court has repeatedly
recognized that the “essence of due process” requires that a person whose property
interests are in jeopardy receive both “‘notice of the case against him and an
opportunity to meet it.’” Mathews, 424 U.S. at 348 (quoting McGrath, 341 U.S. at
171–72 (Frankfurter, J., concurring)).
Texas courts are equally adamant that due process demands adequate notice.
“[N]otice must be reasonably calculated to inform parties of proceedings which
may directly and adversely affect their legally protected interests.” Houston v.
Fore, 412 S.W.2d 35, 39 (Tex. 1967) (citing Walker v. City of Hutchison,
352 U.S. 112 (1956)); see, e.g., Valero South Texas Processing Co. v. Starr County
Appraisal District, 954 S.W.2d 863 (Tex. App.—San Antonio 1997, no writ)
(“In other words, to meet the constitutional requirement of due process, the notice
must be reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.”); see also Mosser v. Plano Three Venture, 893 S.W.2d 8, 12–13
(Tex. App.—Dallas 1994, no writ) (holding that it is a “fundamental requirement of
– 11 –
due process” to provide sufficient notice that “apprise[s] interested parties of the
pendency of the action and afford them an opportunity to respond”); Langdale v.
Villamil, 813 S.W.2d 187 (Tex. App.—Houston [14th Dist.] 1991, no writ)
(“A fundamental element of due process is adequate and reasonable notice of
proceedings.”); Williams v. Holley, 653 S.W.2d 639, 640 (Tex. App.—Waco 1983,
writ ref’d n.r.e.) (“The right of a party to be heard in a contested case is
fundamental and failure to give adequate notice of the trial setting constitutes lack
of due process.”); City of Waco v. Roddey, 613 S.W.2d 360, 365 (Tex. App.—
Waco 1981, no writ) (“‘Procedural due process’ requires notice that is reasonably
calculated to inform parties of proceedings that may directly and adversely affect
their legally protected interests.”).
The Supreme Court has emphasized that “when notice is a person’s due . . .
[t]he means employed must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it.” Mullane v. Central Hanover
Bank Trust Co., 339 U.S. 306, 315 (1950). In other words, notice is “adequate”
only when it “inform[s] the recipient of a procedure for resolving disputes and . . .
provide[s] a reasonable length of time to employ that procedure.” Bradford v.
Edelstein, 467 F. Supp. 1361, 1373 (S.D. Tex. 1979). Adequate notice should thus
“specify the nature of the facts and evidence” at issue in order to allow
“the affected party to prepare an informed response.” Hess & Clark, Division of
– 12 –
Rhodia, Inc. v. Food and Drug Administration, 495 F.2d 975, 983 (D.C. Cir. 1974);
see also Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (“[p]art of the function of
notice is to give the charged party a chance to marshall the facts in his defense and
to clarify what the charges are, in fact”). In addition, a party must be notified in
advance of the precise issues to be raised at a hearing. In re Ruffalo, 390 U.S. 544,
550 (1968); Navato v. Sletten, 560 F.2d 340 (8th Cir. 1977); North Alabama
Express, Inc. v. United States, 585 F.2d 783, 786 (5th Cir. 1978) (citing FCC v.
Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940)).
Notice cannot be adequate when it is misleading. Misleading notices thus
violate due process. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990)
(holding that misleading notice violates due process because it “introduces a high
risk of error into the . . . decisionmaking process”); Baxter v. Colvin,
No. 14-CV-01306, 2014 WL 6985149, at *4 (N.D. Cal. Dec. 10, 2014) (citing to
Gonzalez, 914 F.2d at 1203, in holding that an “ambiguous and misleading” order
violates due process “because it did not clearly inform plaintiff how and whether
she could pursue her right to an oral hearing with the ALJ while also objecting to
his decision on its merits”); Butland v. Bowen, 673 F. Supp. 638, 641
(D. Mass. 1987) (“Notice that affirmatively misleads…clearly violates the
Constitutional guarantee of due process.”).
Because due process is required by the United States Constitution, a party’s due
– 13 –
process rights may be violated even when a state follows its own procedures.
Logan, 455 U.S. at 432 (“Each of our due process cases has recognized, either
explicitly or implicitly, that because ‘minimum [procedural] requirements [are] a
matter of federal law, they are not diminished by the fact that the State may have
specified its own procedures that it may deem adequate for determining the
preconditions to adverse official action.”); Peralta v. Heights Med. Ctr. Inc.,
485 U.S. 80, 86 (1988) (concluding that Texas bill-of-review requirements must
yield to constitutional demands of due process). “Although [a government agency]
is under no obligation to employ extraordinary means to notify an interested party,
when the government has in its possession information that would enable it to
provide adequate notice to an interested party,” it must do so.
Barrera-Montenegro v. United States, 74 F.3d 657, 660 (5th Cir. 1996)
(emphasis added). Assessing the adequacy of a particular form of notice requires
balancing the “interest of the State” against “the individual interest sought to be
protected by the Fourteenth Amendment.” Mullane, 339 U.S. at 314. Since 1976,
the test for determining whether notice is adequate to satisfy due process balances
three factors: (1) the private interest at stake; (2) the risk of an erroneous
deprivation along with the value of additional notice; and (3) the burden imposed
on the government by the additional notice. Mathews, 424 U.S. at 335.
– 14 –
C. The Notice to Baxter Did Not Provide Baxter Sufficient Information
Assuming for the sake of argument that the Order was the TCEQ’s attempt to
give notice to Baxter of the imminent deprivation of his property, the Order failed
to comport with due process in two ways. First, the Order did not provide Baxter
with notice of the right to appeal the Order and in fact was misleading on this point
thereby leaving Baxter with insufficient information with which to determine how
to fight the Order. Second, the Order did not provide Baxter with any information
about the extent of the property deprivation, thereby leaving Baxter with
insufficient information with which to determine whether to fight the Order.
1. The TCEQ Did Not Provide Any Notice of the Right to Appeal the
Order
The TQEC’s communications to the Voda Superfund Site Potential Responsible
Persons (“PRPs”) such as Baxter were not reasonably calculated to inform them of
an opportunity for a hearing. The TCEQ failed to provide any indication that the
Order could be appealed or the consequences of not appealing, namely that Baxter
could be liable for millions of dollars of response costs and other financial
obligations. This failure violated Baxter’s due process right to an adequate notice.
The cover letter to the Order (addressed to “Persons on the attached mailing
list”) consists of a two-sentence communication from the Chief Clerk of the
TCEQ. CR 1813. The first sentence merely indicates that a copy of the
administrative order is enclosed. Id. The second sentence states: “Should you
– 15 –
have any questions, please contact … the Chief Clerk.” Id. Nothing in the cover
letter indicates that Baxter or the other PRPs have the right to be heard to challenge
the Order.
Likewise, nothing in the 62–page Order itself even hints that a PRP has any
right to be heard in a challenge to the Order. CR 1733–94. Although the Order
contains references to various sections of the Texas Solid Waste Disposal Act, not
one of those references is to the section of that Act that explains how to challenge
the Order. Consequently, a PRP reading the entirety of the Order, its exhibits and
the cover letter would not acquire a single clue that a PRP has an opportunity to
appeal the Order.
To the contrary, the Order is misleading in that it creates the impression that no
right to appeal exists. A PRP reading the Order and getting to page 60
(and looking for some chance to object to the Order) might be encouraged by
§ XXXII, titled “Opportunity to Conference.” CR 1792. However, the final
sentence to section B of § XXXII makes clear that “The conference is not an
evidentiary hearing, does not constitute a proceeding to challenge this AO, and
does not give Agreeing Respondents or, if there are no Agreeing Respondents to
this AO, the Performing Parties the right to seek review of this AO.” Id.
(emphasis added). Although this would have been one logical place to provide
– 16 –
some notice to PRPs of the right to challenge the Order, no mention is made of a
PRP’s right to seek judicial review of the Order.
The express denial of any “right to seek review” of the Order expressed in
§ XXXII is reinforced by § XXXV titled “Sovereign Immunity.” CR 1793.
The first sentence of § XXXV states: “The Parties hereby agree that nothing in
this AO waives the State of Texas’ sovereign immunity relating to suit, liability,
and the payment of damages.” CR 1793. To a PRP not familiar with section
361.321 of the Solid Waste Disposal Act, § XXXV suggests that Texas’ sovereign
immunity precludes any opportunity to sue the State of Texas in order to challenge
the Order. Section XXXV would have been another logical place to provide some
notice to PRPs of a PRP’s right to seek review of the Order. But the lay reader of
this clause is understandably left with the impression that taking on the State of
Texas, shielded as it is by sovereign immunity, would be against the law.
It is undisputed that a party has a due process right to be notified of trial settings
or other procedural requirements. In such cases, a party’s rights to confront the
adverse party and to present evidence to a court are at stake – and adequate notice
– 17 –
is essential for a party to activate those rights.3 In other words, “the right to a
hearing is meaningless without notice.” Walker, 352 U.S. at 114.
The TCEQ’s failure to notify Baxter of the opportunity to be heard is directly
analogous. Receiving the Order, even by certified mail, is meaningless if nothing
in the Order, its exhibits, the cover letter or any other communication from the
TCEQ to the PRPs indicates that there is a right to appeal the Order.
See Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 45 (1978) (holding that
notice to a utility’s customers was insufficient to satisfy due process because it was
not reasonably calculated to inform them of an opportunity for a hearing);
Bradford, 467 F. Supp. at 1373 (holding that for notice to be adequate, “it must
inform the recipient of a procedure for resolving disputes”).
2. Constructive Notice of Appellate Rights Is Inadequate Given the
Circumstances and Conditions of This Case
Baxter acknowledges that the procedure for challenging the Order is contained
in sections 361.321 and 361.322 of the Texas Health and Safety Code.
As described above, however, the Order is affirmatively misleading. It informs the
3
See L.B.L. Oil Co. v. Int’l Powers Serv., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (notice of post-
answer default); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (notice of trial setting);
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Stubbs v. Stubbs, 685 S.W.2d 643, 645
(Tex. 1985) (required statement of facts not filed); Misium v. Misium, 902 S.W.2d 195
(Tex. App.—Eastland 1995, no writ); Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.—
Tyler 1994, writ denied); Tramco Enter., Inc. v. Indep. Am. Sav. Ass’n, 739 S.W.2d 944, 948
(Tex. App.—Fort Worth 1987, no writ) (required notice of trial setting); Chow v. Dole,
677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no writ) (required trial setting);
Rotello v. State, 492 S.W.2d 347, 349 (Tex. Civ. App.—Houston [1st Dist.] 1973, writ ref’d
n.r.e., per curiam).
– 18 –
reader that the TCEQ has sovereign immunity, discusses an “Opportunity to
Conference” that that does not constitute a challenge to the Order, and otherwise
implies that the Order is non-appealable. CR 1792–93. The Order’s misleading
nature violated Baxter’s due process rights.
While certain case law might seem to indicate that publically-available statutes
are sufficient to satisfy due process, the cases are distinguishable. For example, in
City of West Covina v. Perkins, 525 U.S. 234 (1999), the United States Supreme
Court stated that “in prior cases in which we have held that post-deprivation
state-law remedies were sufficient to satisfy the demands of due process and the
laws were public and available, we have not concluded that the State must provide
further information about those procedures.” Id. at 241. However, the holding in
West Covina was articulated in the context of the specific deprivation at issue in
that case, i.e., the deprivation of personal property 4 by the police for a criminal
investigation. Id. at 240 (“When the police seize property for a criminal
investigation, however, due process does not require them to provide the owner
with notice of state-law remedies.”). West Covina is distinguishable, however,
because in that case the plaintiff was provided with specific information about his
remedy: “One of the detectives told Perkins he needed to obtain a court order
4
In the West Covina case, “the police seized a number of items, including photos of Marsh
[the suspect in the homicide], an address book, a 12–gauge shotgun, a starter pistol, ammunition,
and $2,629 in cash.” In contrast, the owners of Baxter face the loss of their business (their only
source of income) and all of their property and savings.
– 19 –
authorizing the property’s return.” Id. at 237. Here, Baxter was not provided with
any similar information about its rights or a potential remedy and instead was
misled about the availability of those remedies.
The West Covina decision, while citing Mullane, did not refer to Mullane’s
“notice reasonably calculated” standard or even attempt to apply it. Id. at 240.
The United States Supreme Court has subsequently endorsed Mullane’s
“notice reasonably calculated” standard. See, e.g., Dusenbery v. United States,
534 U.S. 161 (2002) (three years after the West Covina decision); Jones v. Flowers,
547 U.S. 220 (2006) (four years after the West Covina decision). It is fair to
conclude that the “notice reasonably calculated, under all the circumstances”
standard remains the relevant and appropriate method of analysis.
The Texas Supreme Court applied City of West Covina in another property
seizure case in City of Dallas v. VSC, LLC, 347 S.W. 3d 231 (Tex. 2011). In VSC,
the city’s police department seized a number of vehicles from VSC, a licensed
vehicle storage facility. Id. at 234. Several days after the initial seizure, VSC sued
the city, asserting a lien for fees related to the vehicles’ storage and contending that
the city’s actions amounted to an unconstitutional taking. The Texas Supreme
Court observed that “[t]he facts in this case mirror those in West Covina. The
police legally seized VSC’s property, and VSC was aware of what property was
seized and by whom.” Id. at 239. Describing the key factor in West Covina, the
– 20 –
Texas Supreme Court observed that “[r]ather than seek a court order, Perkins sued
the officers and alleged that the remedies for the property’s return did not satisfy
due process.” Id. at 238–39. In other words, VSC, represented by counsel, took
immediate legal action but chose the wrong potential remedy. The Texas Supreme
Court concluded “that VSC’s actual notice of the vehicles’ seizures was
constitutionally sufficient and that it therefore had the burden of pursuing the
chapter 47 remedy” that the court held was proper. Id. at 238. Citing to the
Texas Code of Criminal Procedure, the court pointed out that “[e]ven if it failed to
participate in the chapter 47 proceedings, VSC might have had, in certain cases, a
second post-deprivation option available to it.”
Unlike VSC, Baxter has no such second option. In stark contrast to the facts in
West Covina and VSC, Baxter, unrepresented by counsel, was confronted with a
lengthy, misleading Order that offered no information connecting Baxter to the
Voda Site and strongly implied that the Order was final and could not be
challenged.
Due process is flexible and what constitutes adequate notice varies according to
the facts and circumstances of each case. Neither West Covina nor VSC hold that
statutory notice is always sufficient to satisfy due process. To the contrary, the
Texas Supreme Court acknowledged that the United States Supreme Court has
“recognized ‘the impossibility of setting up a rigid formula as to the kind of notice
– 21 –
that must be given.’” Id. at 238 (quoting Walker, 352 U.S. at 115). Instead, the
“notice required will vary with circumstances and conditions.” Id.
Adequate notice based on the facts and circumstances in West Covina and VSC
does not amount to adequate notice to Baxter. As discussed below, applying the
appropriate test, Baxter was entitled to notice of its appellate rights in the Order.
3. The TCEQ Did Not Provide Adequate Notice of the Issues or
Consequences
In addition to notice of the right to be heard, due process requires that
“the notice as published must reasonably apprise any interested person of the issues
involved in the proceeding.” Buckner Trucking, Inc. v. United States,
354 F. Supp. 1210, 1219 (S.D. Tex. 1973). The Order contains a maze of
cross-references that would confuse anyone but an experienced Superfund attorney
but it does not contain any information about the extent of possible remedial costs.
In addition to failing to give adequate notice of the right to be heard, therefore, the
Order failed to give Baxter adequate notice of the issues or consequences
to Baxter.
Except for the fact that Baxter was on the Order’s mailing list, nothing in the
TCEQ’s Order provides any information linking Baxter to the Voda Site.
The Order is confusing as to whether Baxter is even liable and, therefore, subject
to the Order’s financial obligations. Section II.A lists the entities
(including Baxter) that are referred to as “potentially responsible parties” or
– 22 –
“PRPs.” CR 1733–49. Then, without any supporting finding of fact or analysis,
all of the potentially responsible parties are suddenly and automatically
transformed into “responsible parties” by Conclusion of Law and Determination
III.A on page 25 of the Order. CR 1757. No explanation is given in the Order or
elsewhere as to how this transformation occurred. Although the Texas Solid Waste
Disposal Act does not define “potentially responsible parties,” the word “potential”
and its adverb form “potentially” have commonly accepted dictionary definitions
such as “existing in possibility, not in actuality . . . expressive of possibility; as a
potential use.” Webster’s New International Dictionary of the English Language
1932 (2nd ed. 1935). Consequently, a PRP such as Baxter might reasonably
conclude that because it has been designated a “potentially responsible party”
something more must be done (such as a fact-finding hearing) to transform him
from a possible responsible party into an actual responsible party.
Likewise, the Order fails to explain the possible scope of its consequences.
While it describes possible penalties for failing to comply, CR 1785–88, it does not
even hint at the possible financial exposure, let alone explain that Baxter could be
liable for millions of dollars in remedial obligations. Such notice did not provide
Baxter sufficient information of a potential deprivation of its property. A challenge
to the Order, assuming Baxter somehow knew that it was entitled to one, would be
enormously expensive to a small business. The only knowledge of the potential
– 23 –
size of the loss faced by Baxter was with the TCEQ. Given this fact, and the
confusing nature of the Order, the TCEQ had a legal and constitutional duty to
explicitly describe the implications to Baxter to allow Baxter to decide whether to
challenge the Order.
D. Because it Lacked Sufficient Information, the Order Violated Due
Process and Was Void
Assessing the adequacy of a particular form of notice requires balancing the
“interest of the State” against “the individual interest sought to be protected by the
Fourteenth Amendment.” Mullane, 339 U.S. at 314. Since 1976, the test for
determining whether notice is adequate to satisfy due process balances three
factors: (1) the private interest at stake; (2) the risk of an erroneous deprivation
along with the value of additional notice; and (3) the burden imposed on the
government by the additional notice. Mathews, 424 U.S. at 335.
Applying the three-part balancing test to the situation before the Court reflects
that the notice to Baxter was not adequate to satisfy due process. With respect to
the criterion of the private interest at stake, the Order itself provides the evidence.
Although the Order is silent on the potential scope of harm, PRPs that are subject
to the Order face apparently unlimited financial costs, burdens, and risks.
In addition to the multi-million dollar remediation project at the Voda Petroleum
Superfund Site, those subject to the Order must pay for a long-term,
post construction insurance, bond or its equivalent. CR 1773–74. In addition, if
– 24 –
permits are required to carry out the Order, the responsible parties must obtain
them and incur all consequent expenses. CR 1760.
For Baxter, a very small, family-owned business, the financial obligations and
requirements set forth in the Order could be devastating. All of its meager assets
would be quickly consumed if it were compelled by the TCEQ to make even a
small portion of the expenditures required by the Order.
The second factor consists of two components: the risk of an erroneous
deprivation along with the value of additional notice. Mathews, 424 U.S. at 335.
The risk of an erroneous deprivation is demonstrated by Baxter’s motion for
summary judgment – Baxter did not generate any solid waste. CR 1464–67.
Baxter sold only valuable and useful fuel products to Voda as it has to all of its
other customers since 1983. CR 1473. In fact, Baxter sold products to Voda
Petroleum over other customers because Voda Petroleum paid higher prices. Id.
Based on federal cases interpreting federal environmental protection statutes and
regulations that are similar to the Texas Solid Waste Disposal Act, Baxter should
not be liable in any way for the remediation costs at the Voda Site and therefore
was erroneously held liable in the Order. See Vine St. LLC v. Borg Warner Corp.,
776 F.3d 312, 317–19 (5th Cir. 2015); see also Consolidation Coal Co. v.
Georgia Power Co., 781 F.3d 129, 147–49 (4th Cir. 2015).
– 25 –
The value of additional notice, that is, the value of a notice that would have
informed Baxter and the other PRPs of their right to appeal the Order and more
clearly informed them of the implications, is virtually self-evident. In addition to
securing a right to appeal the Order, additional (i.e. adequate) notice leading to a
hearing or other presentation of the issues and evidence would serve to clarify the
liability issues at an earlier stage of the proceedings. This would avoid the
unnecessary expenditure of the Court’s resources – as well as the resources of the
parties, including the TCEQ.
The third factor – the burden on the government of additional notice –
also weighs in Baxter’s favor because the TCEQ’s burden would be miniscule.
Consider the burden that would be imposed on the TCEQ by adding the following
five simple sentences to the cover letter to the Order:
You have been found liable for response costs and other obligations as
set forth in the attached Order. Those costs could exceed $_____.
Pursuant to section 361.321 and/or 361.322 of the Texas Health and
Safety Code, you have the right to appeal this Order. Your appeal
must be filed with the TCEQ within 30 days of the date of this Order.
Failure to file an appeal will adversely affect your right to challenge
this Order.
These five sentences (or a similarly concise notice) would not even require a
second page for the TCEQ’s cover letter. The amount of additional ink required by
this notice would be negligible. Gonzalez, 914 F.2d at 1203 at 1203 (“Requiring
notices to accurately state how a claimant might appeal an initial decision does not
– 26 –
impose a significant financial or administrative burden on the Secretary.”). For all
practical purposes this additional notice would require no additional expense or
effort by the TCEQ.
Accordingly, the Mathews factors weigh in favor of Baxter. To comply with
due process, the Order should have contained at least a range of possible expense
and some kind of notice of a potentially responsible party’s appellate remedies.
Because it did not, the Order was void. See Security State Bank & Trust v.
Bexar Cty., 397 S.W.3d 715, 723 (Tex. App.—San Antonio 2012, pet. denied);
see also N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996) (holding that
a judgment is void if a court that rendered it “acted in a manner inconsistent with
due process”); In re Guardianship of B.A.G., 794 S.W.2d 510, 513 (Tex. App.—
Corpus Christi 1990, no writ) (holding that a guardianship order entered in
violation of due process is void).
II. Because the Order is Void, it May be Collaterally Attacked at Any Time
and the Trial Court Erred in Granting the TCEQ’s Plea to the
Jurisdiction
As Baxter demonstrated above, the Order is void because the lack of notice to
Baxter of appellate remedies and the scope of the financial consequences of the
Order violates Baxter’s due process rights. A void administrative agency’s order
can be collaterally attacked. City of Celina v. Dynavest Joint Venture
253 S.W.3d 399, 403 (Tex. App.—Austin 2008, no pet.) rev’d on other grounds,
– 27 –
Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012). Void administrative
orders that violate a person’s due process rights should be subject to collateral
attacks, just like void judgments. See, e.g., In re E.R., 385 S.W.3d 552, 566
(Tex. 2012); Security State Bank and Trust, 397 S.W.3d at 723–24 (holding that a
judgment is void and subject to collateral attack where a person’s due process
rights were violated). 5
No set procedure or statute of limitations exists for a collateral attack.
In re E.R., 385 S.W.3d at 566; Roman Catholic Diocese of Dallas v. County of
Dallas Tax Collector, 228 S.W.3d 475, 480 (Tex. App.—Dallas 2007, no pet.).
A statutory time frame to act in a direct attack does not have any bearing on a
collateral attack involving a due process violation – a collateral attack is
permissible even if done well beyond a statutory deadline. In re E.R.,
385 S.W.3d at 566 (“Despite the Legislature’s intent to expedite termination
proceedings, it cannot do so at the expense of a parent’s constitutional right to
notice.”). In other words, there was no time-bar to Baxter’s collateral attack.
5
Baxter recognizes that some cases have described only two circumstances under which
administrative orders are void in a manner that subjects them to collateral attack – when an
agency exceeds its authority or when an order is procured by extrinsic fraud. See Chocolate
Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv. Comm’n, 124 S.W.3d 844, 853
(Tex. App.—Austin 2003, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 613 (Tex. App.—
Texarkana 2000, no pet.). Those cases did not involve orders entered without adequate notice
and thus the courts had no opportunity to consider the implications of an order entered in
violation of due process. Orders that fail to comply with due process are void.
See Security State Bank & Trust, 397 S.W.3d at 723; see also N.Y. Life Ins. Co., 84 F.3d at 143;
In re Guardianship of B.A.G., 794 S.W.2d at 513. The types of void orders subject to collateral
attack should thus include constitutionally infirm orders.
– 28 –
The only basis for the TCEQ’s plea to the jurisdiction was its claim that
Baxter’s summary judgment motion was an improper collateral attack on the
Order. CR 1587–92. Because Baxter was entitled to collaterally attack the void
Order at any time, there was nothing depriving the trial court of jurisdiction to hear
Baxter’s summary judgment motion. The trial court therefore erred in granting the
TCEQ’s plea to the jurisdiction.
CONCLUSION AND PRAYER
“When notice is a person’s due, process which is a mere gesture is not due
process.” Mullane, U.S. at 657. In this case, although Baxter received the Order,
nothing in the Order, its cover letter, or its exhibits explained the scope of the
possible ramifications of the Order to Baxter and nothing in the Order, its cover
letter, or its exhibits even hinted that Baxter had a right to appeal the Order. To the
contrary, the Order suggested that it was final and not subject to challenge.
This “process” does not even rise to the level of a mere gesture. The TCEQ’s
“process’ was not reasonably calculated to inform parties of proceedings that may
directly and adversely affect their legally protected interests.”
Houston, 412 S.W.2d at 35. Obviously, the TCEQ was not “desirous of actually
informing” Baxter and the other PRPs of their right to protect their interests.
It would be fundamentally unfair and a clear violation of the United States
Constitution for Baxter to be deprived of its property in such a manner.
– 29 –
Because the Order was void, Baxter’s motion for summary judgment was a
permissible collateral attack. Therefore, this Court should reverse the decision of
the district court granting the TCEQ’s plea to the jurisdiction and remand so that
the district court can consider Baxter’s summary judgment motion.
WHEREFORE, Appellant Baxter Oil Service, Ltd. prays that the trial court’s order
granting Appellee’s plea to the jurisdiction be reversed and this case remanded for
further proceedings on Baxter’s summary judgment motion. Appellant prays for
such other relief to which it is entitled.
Respectfully submitted,
PULMAN, CAPPUCCIO,
PULLEN, BENSON & JONES, LP
2161 NW Military Highway, Suite 400
San Antonio, Texas 78213
www.pulmanlaw.com
(210) 222-9494 Telephone
(210) 892-1610 Facsimile
By: /s/ Leslie Sara Hyman
Elliott S. Cappuccio
Texas State Bar No. 24008419
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
Texas State Bar No. 00798274
lhyman@pulmanlaw.com
Etan Z. Tepperman
Texas State Bar No. 24088514
etepperman@pulmanlaw.com
ATTORNEYS FOR APPELLANT
– 30 –
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)((3), I certify that,
excluding those parts allowed to be excluded, the above and foregoing Brief of
Appellant contains 7,096 words.
/s/ Leslie Sara Hyman
Leslie Sara Hyman
CERTIFICATE OF SERVICE
I certify that on the 25th day of September 2015, the foregoing Brief of
Appellant was served in accordance with the Texas Rules of Appellate Procedure
addressed as follows:
Via Email to thomas.edwards@texasattorneygeneral.gov:
Mr. Thomas H. Edwards
Via Email to craig.pritzlaff@texasattorneygeneral.gov:
Mr. Craig Pritzlaff
Office of the Attorney General
Environmental Protection Division
P. O. Box. 12548, Capitol Station
Austin, Texas 78711
/s/ Leslie Sara Hyman
Leslie Sara Hyman
– 31 –
NO. 03-15-00446-CV
IN THE
COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
______________
BAXTER OIL SERVICE, LTD.
APPELLANT
VERSUS
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
APPELLEE
______________
APPEAL FROM THE 345TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS
NO. D-1-GN-10-000772
APPENDIX TO BRIEF OF APPELLANT
Tab Description
1 Order Granting the TCEQ’s Plea to
the Jurisdiction – CR 1952
2 Fourteenth Amendment to the United States
Constitution
3 February 12, 2010 Texas Commission on
Environmental Quality Administrative Order
– CR 1733-1812
{00050417}
Tab 1
Tab 1
DC BK15181 PG560
Filed in The District Court
of Travis County, Texas
JUN 2 9 2015 NS
At I \"~t.,~M.
CAUSE NO, D-I-GN-lO-000772 Velva L. Price, District Clerk
INRE: § IN THE DISTRICT COURT OF
§
VODA PETROLEUM STATE § TRA VIS COUNTY, TEXAS
§
SUPERFUND SITE UTIGA nON § 345 th JUDICIAL DISTRICT
ORDER GRANTING TCEQ'S PLEA TO THE JURISDICTION AS TO
BAXTER'S MOTION FOR SUMMARY JUDGMENT
On April 17, 2015, the Texas Commission on Environmental Quality (TCEQ),
Defendant, filed a Plea to the Jurisdiction seeking to dismiss the Motion for Summary
Judgment filed by Baxter Oil Service, Ltd. ("Baxter"). After considering the motion, the
pleadings, the documents on file and the arguments of counsel, the Court GRANTS the
TCEQ's plea.
It is therefore ORDERED that the Motion for Summary Judgment filed by Baxter is
dismissed. /? ~.Jh
SIGNED this ~'cia; of _ _-3I1~~_IL_e
___ 2015.
A~
DISTRICT JUDGE
1952
Tab 2
Tab 2
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....
United States Code Annotated
Constitution of the United States
Annotated
Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection;
Apportionment of Representation; Disqualification of Officers; Public Debt; Enforcement
U.S.C.A. Const. Amend. XIV-Full Text
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE PROCESS; EQUAL
PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF OFFICERS; PUBLIC
DEBT; ENFORCEMENT
Currentness
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice
of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or
other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same,
or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such
disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United
States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal
and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
{00050429} © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....
<Section 1 of this amendment is further displayed in separate documents according to subject matter,>
<see USCA Const Amend. XIV, § 1-Citizens>
<see USCA Const Amend. XIV, § 1-Privileges>
<see USCA Const Amend. XIV, § 1-Due Proc>
<see USCA Const Amend. XIV, § 1-Equal Protect>
<sections 2 to 5 of this amendment are displayed as separate documents,>
<see USCA Const Amend. XIV, § 2,>
<see USCA Const Amend. XIV, § 3,>
<see USCA Const Amend. XIV, § 4,>
<see USCA Const Amend. XIV, § 5,>
U.S.C.A. Const. Amend. XIV-Full Text, USCA CONST Amend. XIV-Full Text
Current through P.L. 114-49 approved 8-7-2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
{00050429} © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Tab 3
Tab 3
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
DOCKET NUMBER 2009-1706-SPF
IN THE MATTER OF § BEFORE THE
THE SITE KNOWN AS § TEXAS COMMISSION ON
VODA PETROLEUM, INC. § ENVIRONMENTAL QUALITY
STATE SUPERFUND SITE §
AN ADMINISTRATIVE ORDER
I. Introduction
On FEbruary 10, 2010 , the Texas Commission on Environmental Quality
("Commission" or "TCEQ") considered the Executive Director's ("ED") allegations of the
existence of a release or threat of release of solid wastes and/or hazardous substances into
the environment on, at or from the VodaPetroleum, Inc. State Superfund Site ("Site") that
poses an imminent and substantial endangerment to the public health and safety or the
environment pursuant to the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE,
Chapter 361 (the "Act"), and the ED's requested relief including issuance of a Commission
order to require persons responsible for such solid wastes or hazardous substances to perform
the Work, including conducting the Remedial Activities, as authorized by Sections 361.188
and 361.272 of the Act.
After proper notice, the TCEQ makes the following Findings of Fact and Conclusions of
Law:
II. Findings of Fact
A. For purposes of this Administrative Order (,"AO"), TCEQ has identifie4 the
following persons that are potentially responsible parties ('"PRPs") (at the solid .
waste and/or hazardous substances at the Site:
AAMCO Transmissions
AR Oil Co
A T P Results Inc
Exhibit A
1733
AT&T
Adena Exploration fuc
Allstate Transmissions
Amber Refining fuc
American Airlines fuc
American Auto
American Marazzi Tile fuc
American Norit Company fuc
American Spill Control fuc
Andrews Motor & Transmission
Anvil Shop
Aratex Services fuc
Archer Auto
Arco Oil and Gas Corporation
Ark-La-Tex Waste Oil Co fuc
Ashco Production fuc
Auto Precision Motors fuc
Autohaus
Aviation Properties fuc
Axelson fuc
Aycock Oil Corporation
B B Wells Waste Oil fuc
Page 2 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1734
BE&KInc
Basil Oil Field Service Inc
Baxter Oil Service
Bayou State Oil Corporation
Ben E Keith Company
Ben Griffin Tractor Company
Big Three Industrial Gas Inc
Billy D Cox Truck Leasing Inc
Bishops Auto
Blake Janet DBA D & D Radiator & Muffler
Borden Inc
Bright Truck Leasing Corporation
Brookhollow Exon Car Care
Brown & Root Inc
Brown Express Inc
Brunson Oil
Brushy Creek Saltwater Disposal Inc
Buck Resources Inc
Bule Diamond
Burland Enterprises Inc
CPL Industries
Cabot Corporation
Page 3 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1735
Can-Am Distributors and Warehouse me of Texas
Capacity of Texas Inc
Carraway Co
Carrier Air Conditioning
Cematco Inc
Central Power and Light Company
Central Texas Iron Works
Central Transfer & Storage Co
Champie Hill Mobil
Champion International Corporation
Channel Shipyard Company Inc
Chaparral Steel Company
Chief Oil & Chemical
Cities Service Company
Cities Service Pipe Line Company
City Motor Supply Inc
City of Dallas
City of Garland
City of Jefferson
City of Plano
City ofUniversity Park
Clarke Checks Inc
Page 4 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1736
Clements Oil Corporation
Cliffs Automotive
Coker Automotive Center Inc
Collin County
Complete Auto Transit Inc
Continental Can Company USA Inc
Continental Car Wash
Continental Trailways Inc
Converter Shop Inc
Coors Distributor
Custom-Bilt Cabinet and Supply Inc
Custom-Crete Inc
Daljet Inc
Dallas Area Rapid Transit
Dallas Dressed Beef Company Inc
Dallas Lift Trucks Inc
Dallas Power & Light Company
Damson Gas Processing Corp
Davison Petroleum Products
Davison, T M
Delmar Disposal Co
Deloach Texaco
Page 5 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1737
Delta Distributors Inc
Diamond Shamrock
Dillingham & Smith Mechanical and Sheet Metal Contractors Inc
Dixie Oil
Donco Saltwater Disposal System
Double A & Y Corp
Dowell Schlumberger Incorporated
Dunlap-Swain
Durham Transportation Inc
ECIncorporated
East Texas Gas
Eastern ECC Company
Fina
The Firestone Tire and Rubber Company
First Interstate Bank of Dallas
Fort Sill
Fox & Jacobs
Franks Oil Service
Fred Jordan Inc
Fred Taylor GMC Truck Sales Inc
Freilich Howard DBA Quick Stop Brake & Muffler
Fruin-Colnon Corporation
Page 6 - Voda Petrolewn, Inc., State Superfund Site
Exhibit A
1738
G B Boots Smith Corporation
Gelco Truck Leasing Division Gelco Corporation
General Electric Company
General Telephone Company ofthe Southwest
General Tire Inc
General Truck Leasing Inc
Georgia-Pacific Corporation
Gifford-Hill Cement Compariy of Texas
Goff Willie
Grantham Oil Service
Greyhound Lines Inc
Grubbs Enterprises Ltd
Gulf States Oil & Refining Co
Gulf Stream Oil
H & H Oil Services
H & P Trans
Halliburton Energy Services Inc
Harris Bros Co
Harry Vowell Tank Trucks Inc
Hartsell Oil
Haynes Resources Inc
Hearne Ave Exxon
Page 7 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1739
Herod Oil Inc
Hertz Penske Truck Leasing Inc
The Highland Pump Company Inc
Holloway Welding & Piping Co
Hunt Oil Company
Hydraulic Service and Supply Company
Industrial Lubricants Co
Industrial Solvents Gulf Division of Industrial Solvents Corporation
Ingersoll-Rand Company
Inland Container Corporation
International Electric Corporation
International Paper Company
J & E Die Casting Co Division of Cascade Die Casting Group Inc
James T Gentry Inc
Janks Texaco
Jeffco
J errys Waste Oil
John Crawford Firestone Inc
Johnson Controls Inc
Jones Environmental Inc
Joy Manufacturing Company
Jubilee Oil Service
Page 8 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1740
Juna Oil & Gas Co Inc
K & FOil & Gas Management mc
KRNN
Kayo Oil Company
Kellys Truck Tenninal Inc
Kennys Mobil
Kosar Frank DBA Rite Way Truck Rental
LA Transit
L D Baker Inc DBA Baker Gulf Service
L & J Recovery Ltd
LTV Energy Products Company
Lake Country Trucking mc
Lance Inc
Larry Gulledge Exxon
Las Colinas Service Center Inc
Lockheed Missiles & Space Company Inc
Lone Star Dodge Inc
Lone Star Logistics Inc
Long Mile Rubber Co
The Lubrizol Corporation
M Lipsitz & Co Inc
M & M Oil Salvage Inc
Page 9 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1741
MacMillan Bloedel Containers
Manvel Salt Water Disposal Company
Manville Sales Corporation
Marathon Battery Company
Martin-Decker
Mathews Trucking Company Inc
McAlister Construction Company
McBane Crude
McDonalds
Mega Lubricants Inc
Melton Truck Lines Inc
Metal Services Inc
Metro Aviation Inc
Metro Ford Truck Sales Inc
Millers Gulf
Minit Oil Change Inc
Mobil Oil Corporation
Modem Tire Service Inc
Mohawk Laboratories
Monsanto Company1
Moore James
I Only to the extent that Solutia Inc. is not excluded under applicable federal bankruptcy law.
Page 10 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1742
Morgan Oil
Morgan, Troy L Jr
Mr Transmission
Murphy Brothers Service Center Inc
National Oilwell Inc
National Scientific Balloon Facility
National Supply Co
Naval Air Station Dallas
Navarro Petroleum Corp
Nobles Transmission
North Highland Mobil
Northwest Oil
Norwel Equipment Company
Nucor Corporation
Occidental Chemical Corporation
Oilwell Division of United States Steel Corporation
Olympic Fastening Systems Inc
On the Spot Oil Change
Owens Mobil
Oxendine, Von K DBA Oxendine Transmission
Oxy Cities Service NGL Inc
P N B Corporation
Page 11 - Voda Petrolewn, Inc., State Superfund Site
Exhibit A
1743
Pantera Crude Inc
Paramount Packaging Corporation Texas
Parawax
Parrott Oil Corp
Pauls Oils Service
Pearl Brewing Company
Pelican Energy of LA Inc
Pen Roy Oil of Odessa Inc
Pengo Industries Inc
Pennwalt Corporation
Pepsi Cola
Performance Friction Products Formerly Cohec Automotive Products
Division of Coltec Industries Inc
Peterbilt Motors Company
Petro Chern Environmental Services Inc
Petroleum Distributors Inc
Petroleum Market Products
Petroleum Refiners Unlimited Inc
Petroleum Stripping Inc
Pipes Equipment Co Inc
Pitts
Pool Company
Post Office Vehicle Maintenance Facility
Page 12 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1744
Presbyterian Hospital of Dallas
Prestige Ford
Preston Management Company
Preston Oil Service
Production Operators Inc
R & C Petroleum Inc
R & K Auto Repair Inc
Ralph Wilson Plastics
Rayco Oil Company
Reed Tool Company
Reeves Oil Co Inc
Repetro Inc
Retail Graphics Printing Company
Rhodes Oil
Richards-Gebaur AFB
Roadway Express Inc
Robison Cecil
Rock Tenn Converting Company
Rockwall
Rollins Leasing Corp
Royle Container
Ruan Leasing Company
Page 13 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1745
Ryder Truck Rental Inc
SETI
SKI Oil Incorporated
The Sabine Mining Company
Safeway
Santos Radiator
Schepps Dairy Inc
Schlumberger Well Services Division of Schlumberger Technology
Corporation
Sears Roebuck and Co
Senco Marketing
Service Oil Co
Servion Inc
Shell Oil Company
Shippers Car Line Inc
Shore Company Inc
Shreveport Truck Center
Sitton Oil
Snappy Lube Inc
Snow Coil Inc
Sooner Refining Co Inc
South Coast Products Inc
Southeast Tex-Pack Express Inc
Page 14 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1746
Southern Gulf
Southern Plastics Inc
Southland Sales Corporation
Southwest Disposal
Southwestern Bell Telephone Company
Southwestern Electric Power Company
Southwestern Petroleum Corporation
Specialty Oil
Sprague Electric Company
Star Solvents Inc
Steel City Crane Rental Inc
Stemco Inc
Steve D Thompson Trucking Inc
The Stroh Brewery Company
Sullivan Transfer & Storage
Summit White GMC Trucks Inc
Sun Engine Sales Inc
T E C Well Service Inc
Tan A Co
Tannehill Oil Products
Taylor Rental Center
Texaco Chemical Company
Page 15 - Voda Petrolewn, Inc., State Superfund Site
Exhibit A
1747
Texas Gas Transmission Corporation
Texas hIdustrial Disposal hIc
Texas hIdustries Inc
Texas Mill Supply- Longview hIc
Texas State Technical hIstitute Airport
Texas Utilities Generating Company
Thompson Trans
Toneys Garage
Trailways hIc
Tricon
Trinity hIdustries hIc
Triple L Disposal
Tri-State Oil Tools hIc
Triton Aviation Services Inc
Truckstops of America
Tuneup Masters hIc of Texas
Twin City Transmission Service hIc
Union Oil 76 Truck Stop
United Gas Pipe Line Company
United Press hItemational
United States Army Corps of Engineers Mat Sinking Unit
Vanguard Sales
Page 16 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1748
Varo Inc
Vault Oil & Gas
Viking Freight Service Inc
Voda Petroleum Inc
Volvo White Truck Corporation
W F B Tank Bottom Reclaiming Corp
W W Waste Oil
Warren Petroleum Company
Westmoreland Joint Venture
Western Auto Supply Company
Westland Oil Company Inc
Willamette Industries Inc
W oodline Motor Freight
Woods Operating Co Inc
Wray Ford Inc
Yates SWD Corp
Young Chevrolet Inc
Zavala Energy Inc
and these parties
1. are the owners or operators of the Site;
2. owned or operated the Site at the time of processing, storage, or disposal of
any solid waste;
Page 17 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1749
>
3. by contract, agreement, or otherwise, arranged to process, store, or dispose
of, or arranged with a transporter for transport to process, store, or dispose of
solid waste owned or possessed by the PRPs or by any other person or entity
at the Site; or
4. accepted solid waste for transport to the Site as selected by the PRP.
B. Reserved.
C. The following PRPs entered into this AO as Agreeing Respondents but do not admit
liability regarding the Site except for the purpose of enforcing this AO.
There are no Agreeing Respondents.
D. When ranked, the Site had a State Superfund Hazard Ranking System ("HRS") score
of23.6.
E. The portion ofthe Site used for ranking on the State Registry of Superfund Sites is
described as follows:
All that certain lot, tract or parcel of land being situated in the David Ferguson
Survey, Gregg County, Texas and being a part of a 6.12 acre tract ofland conveyed
from Chaco, Inc. to Ultra Oil, Inc. in deed recorded in Vol. 1212, Page 252, Deed
Records, Gregg County, Texas and being more particularly described as follows:
BEGINNING at a 12" x 12" fence comer post on the north ROW of Duncan Road,
said point being the SE comer of a 50 acre tract conveyed from Charles McBride to
Chaco, Inc. in deed recorded in VoL 1206, Page 83, Deed Records, Gregg County,
Texas and also being the SE comer of the herein described tract;
THENCE along the SBL ofthe above mentioned 6.12 acre tract, also being the north
ROW of Duncan Road:
N 89 deg. 47' 06" W, a distance of 199.02 feet;
S 63 deg. 18' 26" W, a distance of57.72 feet;
S 89 deg. 55' 54" W, a distance of 120.65 feet to a liz" iron rod for this most
southerly SW comer, same being N 89 deg. 55' 54" E, 200.00 feet from the
SW comer of said 6.12 acre tract;
THENCE N 00 deg. 56' 53" W, a distance of200.00 feet to a liz" iron rod for comer;
Page 18 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1750
THENCE S 89 deg. 14' 07" W, a distance of 200.00 feet to a Yz" iron rod for this
most northerly SW comer, same being located on the east ROW ofCharise Drive and
the WBL of said 6.12 acre tract and being N 00 deg. 56' 53" W, 200.00 feet from the
SW comer of same:
THENCE N 00 deg. 56' 56" W, along the east ROW of said Charise Drive, a distance
of 271.25 feet to a 5/8" iron rod for this NW comer, same being the NW comer of
said 6.12 acre tract;
THENCEN 89 deg. 03'E, along the NBL of said 6.12 acre tract, a distance of578.45
feet to a 5/8" iron rod for this NE comer, same being the NE comer of said 6.12 acre
tract;
THENCE S 00 deg. 04' 55" E along the EBL of said 6.12 acre tract, a distance of
452.78 feet to the Place of BEGINNING ofthe herein described tract and containing
5.201 acres.
The remainder, a contiguous 0.92 acre tract ofland, is described as follows:
All that certain lot, tract or parcel of land being situated in the David Ferguson
Survey, Gregg County, Texas and being a part of a 6.12 acre tract ofland conveyed
from Chaco, Inc., to Ultra Oil, Inc., in deed recorded in Vol. 1212, page 252, Deed
Records, Gregg County, Texas, and being more particularly described as follows:
BEGINNING at a 5/8" iron rod set in the EBL of Charise Drive; THENCE North
with the EBL ofCharise Drive 200 feet to a Yz" iron rod; THENCE North 89 deg. 14'
07" E, 200 feet to Yz" iron rod for comer, THENCE S 00 deg. 56' 53" E, a distance
of 200 feet to Yz" iron rod for comer: THENCE S 89 deg. 55' 54" W with the said
SBL of said 6.12 acre tract, 200 feet to the point of BEGINNING, containg [sic] 1
acre of land, more or less, together with all improvements situated thereon.
F. The Site consists of the area listed in Paragraph E above. In addition, the Site
includes any areas outside the area listed in Paragraph E above where as a result,
either directly or indirectly, of a release of solid waste or hazardous substances from
the area described in Paragraph E above, solid waste or hazardous substances have
been deposited, stored, disposed of, or placed or have otherwise come to be located.
G. The Site was proposed for listing on the State Registry of Superfund Sites in the
Texas Register on November 17,2000. 25 Tex. Reg. 11594-95 (Nov. 17,2000).
H. The Site historically has been used as a waste oil recycling facility.
Page 19 - Voda Petroleum, inc., State Superfund Site
Exhibit A
1751
I The Chemicals of Concern at the Site include those substances listed in Exhibit B.
The substances listed in Exhibit B have been processed, deposited, stored, disposed
of, or placed or have otherwise come to be located on the Site.
J. The substances listed in Exhibit B have been documented in surface and subsurface
soil and groundwater at the Site.
K. The substances listed in Exhibit Bare:
1. substances designated under Section 311(b)(2)(A) of the Federal Water
Pollution Control Act, as amended (33 United States Code ("U.S.C.") Section
1321);
2. elements, compounds, mixtures, solutions, or substances designated under
Section 102 ofthe Comprehensive Environmental Response, Compensation,
and Liability Act ("CERCLA") (42 U.S.C. Section 9601 etseq., as amended);
3. hazardous wastes having the characteristics identified under or listed under
Section 3001 of the Federal Solid Waste Disposal Act, as amended (42
U.S.C. Section 6921), excluding wastes, the regulation of which has been
suspended by Act of Congress;
4. toxic pollutants listed under Section 307(a) ofthe Federal Water Pollution
Control Act (33 U.S.c. Section 1317);
5. hazardous air pollutants listed under Section 112 of the Federal Clean Air
Act, as amended (42 U.S.C. Section 7412); or
6. any imminently hazardous chemical substances or mixtures with respect to
which the administrator ofthe Environmental Protection Agency ("EPA") has
taken action under Section 7 ofthe Toxic Substances Control Act (15 U.S.C.
Section 2606).
L. The substances listed in Exhibit B include the following: garbage; rubbish; refuse;
sludge from a waste treatment plant, water supply treatment plant, or air pollution
control facility; or other discarded material, including solid, liquid, semisolid, or
contained gaseous material reSUlting from industrial, municipal, commercial, mining,
and agricultural operations and from community and institutional activities, or
hazardous substances, for the purposes of TEX. HEALTH & SAFETY CODE Sections
361.271 through 361.277 and 361.343 through 361.345.
M. The substances listed in Exhibit B are solid wastes or hazardous substances.
Page 20 - Voda Petrolewn, Inc., State Superfund Site
Exhibit A
1752
N. Solid wastes or hazardous substances at the Site listed in Exhibit B are, or potentially
are, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment.
O. Potential pathways for human exposure to the solid wastes or hazardous substances
listed in Exhibit B include incidental ingestion of, inhalation of or dermal exposure
to surface and/or subsurface soil, and ingestion of or dermal exposure to
groundwater.
P. Exposure to levels of dichloroethylene, cis-l ,2-; benzene; propylbenzene, n-; MTBE
(methyl tertiary-butyl ether); tetrachloroethylene; toluene; trichloroethane, 1,1,1-;
trichloroethylene; trimethylbenzene, 1,2,4-; trimethylbenzene, 1,3,5-; vinyl chloride;
xylene, m-; xylene, 0-; xylene, p-; dichloroethylene 1,1-; and dichloroethane, 1,2-
found at the Site poses an unacceptable carcinogenic risk or an unacceptable toxicity
risk.
Q. The solid wastes or hazardous substances at the Site are not capable of being
managed separately under the remedial action plan.
R. On November 6, 2000, the Commission provided written notice of the proposed
listing of the Site on the State Registry to each PRP identified as of that date at the
PRP's last known address.
S. On September 12, 2008, the Commission provided written notice of the public
meeting and of the opportunity to comment on the proposed Remedy as specified in
Sections 361.187(b) and (c) of the Act to each PRP identified as of that date at the
PRP's last known address.
T. On September 12, 2008, each PRP identified as of that date was provided an
opportunity to fully fund or perform the proposed Remedial Activities, as specified
in Sections 361.187(d) and 361. 133(c) of the Act.
U. No voluntary actions have been undertaken at the Site by any PRPs.
V. The Remedy Selection Document ("RSD") for the Site is attached to this AO as
Exhibit A.
W. The remedy adopted in Exhibit A is selected as the Remedy to be implemented in
accordance with this AO.
III. Conclusions of Law and Determinations
A. The PRPs listed in Section II (Findings of Fact) Paragraph A are responsible parties
("RPs") pursuant to Section 361.271 of the Act.
Page 21 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1753
B. Some ofthe substances referenced in Section II (Findings of Fact) Paragraph I, which
are found at the Site, are hazardous substances as defined in Section 361.003(11) of
the Act.
C. Some ofthe substances referenced in Section II (Findings ofF act) Paragraph I, which
are found at the Site, are solid wastes as defined in Section 361.003(34) ofthe Act.
D. Hazardous substances were deposited, stored, disposed of, or placed or otherwise
came to be located at the Site; and solid wastes were stored, processed, disposed of,
or discarded at the Site.
E. The Site is a facility as defined in Section 361.181(c) ofthe Act.
F. The Site is a solid waste facility as defined in Section 361.003(36) ofthe Act.
G. "Imminent and substantial endangerment" is defined by rule as follows: A danger is
imminent if, given the entire circumstances surrounding each case, exposure of
persons or the environment to hazardous substances is more likely than not to occur
in the absence of preventive action. A danger is substantial if, given the current state
of scientific knowledge, the harm to public health and safety or the environment
which would result from exposure could cause adverse environmental or health
effects. 30 TEX. ADMIN. CODE Section 335.342(9).
H. There has been a release (as defined in Section 361.003(28) ofthe Act) or threatened
release of hazardous substances or solid wastes into the environment at the Site that
poses an imminent and substantial endangerment (as defined in 30 TEX. ADMIN.
CODE Section 335.342(9» to the public health and safety or the environment; and
therefore, the Site will be listed on the State Registry of Superfund Sites as per
Section V (Order) Paragraph A.
1. The release or threatened release of hazardous substances or solid wastes into the
environment at or from the Site has not been proven to be divisible pursuant to
Section 361.276 ofthe Act.
J. The actions required by this AO are reasonable and necessary to protect the public
health and safety or the environment.
K. The Site is ineligible for listing on the National Priorities List ("NPL") because the
HRS score was below 28.5.
L. Funds from the Federal Government are unavailable for the Remedial Activities at
this Site because it is ineligible for the NPL.
Page 22 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1754
IV. Exhibits and Definitions
A. The following exhibits are incorporated by reference into this AO:
"Exhibit A" Remedy Selection Document
"Exhibit B" List of Solid Wastes and Hazardous Substances at the Site
"Exhibit C" Field Sampling Plan Contents Outline
B. The following terms have the meaning set out below:
"Agreeing Respondent" The PRPs listed in Section II (Findings of Fact)
Paragraph C that fund or perform the Work and have
agreed to the terms and conditions of this AD as
evidenced by signing a consent form.
"Chemicals of Concern" Any chemical that has the potential to adversely affect
ecological or human receptors due to its concentration,
distribution, and mode oftoxicity.
"Day" A calendar day.
"Defaulting Performing Any Performing Party that fails to comply with the
Party" terms or conditions ofthis AD.
"Demobilization" The dismantling and removal of all construction
equipment from the Site.
"Effective Date" The Day ten (10) Days after the issue date of this AO.
"Executive Director The Executive Director of the TCEQ or a designee.
(ED)"
"include" Use of the term include, in all its forms, in this AD is
intended to express an enlargement or illustrative
application specifying a particular thing already
included within the preceding general words. It is not
used as a term of limitation.
"Institutional Control" A legal instrument which indicates the limitations on or
the conditions governing use of the property which
ensures protection of human health and the
environment in accordance with 30 TEX. ADMIN. CODE
Chapter 350 and as required by the Remedy.
"Parties" Collectively, the Respondents and the Commission.
Page 23 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1755
"Performing Parties" Collectively, the Agreeing Respondents and persons
that did not enter into this AO but that fund or perform
the Work.
"Post Construction All Remedial Activities at the Site, subsequent to
Activities (PCA)" issuance of the Approval ofRA Completion, required
to complete the Remedial Activities in accordance with
this AO.
"Post Construction Cost An estimate of the cost to perform all of the PCA for as
Estimate" long as post construction activities are needed.
"Proj ect Manager" The individual designated by the ED to oversee
implementation of the Work and to coordinate
communications with the Agreeing Respondents or, if
there are no Agreeing Respondents to this AO, the
Performing Parties.
"Remedial Action (RA)" Those Remedial Activities, except for Post
Construction Activities, undertaken at the Site,
including on-site physical construction and any
required institutional controls, to implement the
Remedy. The areal extent of the RA is not limited to
the Site. It includes all suitable areas in proximity to
the Site necessary for implementation of the Remedial
Activities.
"Remedial Activities" The RD, RA, PCA, and any other actions required to
implement and maintain the Remedy pursuant to the
RSD and 30 TEX. ADMIN. CODE Chapter 335,
Subchapter K and 30 TEX. ADMIN. CODE Chapter 350.
"Remedial Activities The individual, company, or companies retained by the
Contractors" Agreeing Respondents, or if there are no Agreeing
Respondents to this AO, by the Performing Parties to
undertake any or all phases ofthe Remedial Activities.
Remedial Activities Contractors cannot assume the role
of any quality assurance official required by this AO.
"Remedial Design (RD)" Those Remedial Activities during which engineering
plans and technical specifications are developed for the
Remedy.
Page 24 - Voda Petroleum, inc., State Superfund Site
Exhibit A
1756
"Remediation Goals" Cleanup standards or other measures of achievement of
the goals of the Remedy, consistent with the Act, 30
TEX. ADMIN. CODE Chapter 335, Subchapter K and 30
TEX. ADMIN. CODE Chapter 350, determined by ED to
be necessary at the Site to achieve and to maintain the
Remedy.
"Remedy" The Remedy adopted for the Site in the Remedy
Selection Document to clean up or control exposure at
the Site in accordance with all applicable laws and
regulations and to be implemented in accordance with
this AO. The Remedy includes all applicable
requirements contained in the Act, 30 TEX. ADMIN.
CODE Chapter 335, Subchapter K and 30 TEX. ADMIN.
CODE Chapter 350.
"Remedy Selection The document that was developed for the Site, based
Document (RSD)" on Site specific information, that specifies the Remedy,
and that was adopted by the ED and TCEQ after the
opportunity for public review and comment.
"Responsible Parties" The PRPs listed in Section II (Findings of Fact)
Paragraph A.
"Respondents" , Collectively, the Agreeing Respondents, the RPs, and
the Performing Parties.
"Samples" Samples of environmental media taken pursuant to and
in accordance with this AO.
"Sections" Those major divisions ofthis AO designated by Roman
numerals.
"Site Coordinator" The individual designated by the Agreeing
Respondents, or if there are no Agreeing Respondents
to this AD, the Performing Parties to oversee the
Remedial Activities Contractors and the
implementation of the Remedial Activities and to
coordinate communications with the ED.
"Site Representative" A person designated by the Project Manager that is
authorized to oversee the Remedial Activities.
Page 25 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1757
"Substantial The point, as determined by the ED in his sole
Completion" discretion, at which the W ork (or a specified part
thereof) has been substantially completed in accordance
with any work plans or documents required to be
developed pursuant to this AD.
"Work" All activities to be undertaken or performed m
accordance with and as required by this AD.
V. Order
Therefore, the TCEQ orders:
A. The Site will be listed on the State Registry of Superfund Sites.
B. Reserved.
C. Respondents shall reimburse the Hazardous and Solid Waste Remediation Fee
Account for all of the ED's costs of the Remedial Investigation ("RI") and the
Feasibility Study ("FS"), including the oversight costs of these activities.
Respondents shall reimburse the Hazardous and Solid Waste Fee Account for all
uncompensated Pre-Remedial Investigation costs, including oversight costs ofthese
activities.
The RPs and any Defaulting Performing Parties shall reimburse the Hazardous and
Solid Waste Remediation Fee Account for all costs incurred by the ED in
implementing and in overseeing the Work and for any costs incurred by the ED for
activities other than the RI and FS to the extent that such costs have not been paid.
Reimbursement is to be made within forty-five (45) Days after the ED transmits a
Demand Letter stating the amount owed. Payment is to be paid by cashiers check or
money order. All payments and accompanying letters or documentation should
contain the following information: "Voda Petroleum, Inc. State Superfund Site,"
"Cost Recovery Funds for the Hazardous and Solid Waste Remediation Fee Account
(Fund 550) ofthe State of Texas," "PCA Code 50482," "Docket Number 2009-1706-
SPF," and "TCEQ Project Manager, Carol Boucher, P.G." All payments and
accompanying letters or documentation should be mailed to: Cashier's Office, MC-
214, TCEQ, Re: VodaPetroleum, Inc. State Superfund Site, P.O. Box 13088, Austin,
TX 78711-3088. All checks and money orders shall be payable to the "Texas
Commission on Environmental Quality," or "TCEQ." The requirement to make such
payments will survive the termination ofthis AD in accordance with Section XXXIII
(Termination of the Administrative Order).
Page 26· Voda Petroleum, Inc., State Superfund Site
Exhibit A
1758
D. This AO applies to and is binding upon Respondents, their agents, successors, and
assigns. Respondents are jointly and severally responsible for carrying out the Work.
Perfonnance of any or all of the Work by the Perfonning Parties or Agreeing
Respondents shall not excuse any other Respondent from such perfonnance. Upon
perfonnance by any Respondent of Remedial Activities, either alone or in
conjunction with other Perfonning Parties, such Respondent shall, from such
perfonnance forward, become a Perfonning Party. Such perfonnance by a
Respondent of some ofthe Remedial Activities does not excuse the Respondent from
perfonnance of those Remedial Activities that took place prior to the Respondent
becoming a Perfonning Party or any other preexisting requirement of this AO. No
change in the ownership or corporate status and no acquisition of a Respondent will
alter its respective responsibilities under this AO.
E. Respondents that own or lease real property at the Site shall provide a copy of this
AO to all of their lessees or sub lessees of the Site until such time as this AO is
tenninated in accordance with Section XXXIII (Termination of the Administrative
Order) and to any prospective owners or successors before all or substantially all
property rights, stock, or assets are transferred.
F. Respondents shall provide a copy of this AO to all cOl1tractors, subcontractors,
laboratories, and consultants retained by Respondents to perfonn any or all of the
Work within thirty (30) Days after the Effective Date or on the date such services are
retained, whichever date occurs later. Notwithstanding the terms of any contract,
Respondents remain responsible for compliance with this AO and for ensuring that
their contractors and agents comply with this AO.
G. Within forty-five (45) Days after the Effective Date each Respondent that owns real
property at the Site shall record a copy or copies ofthis AO, with all exhibits, in the
appropriate office where land ownership and transfer records are filed or recorded,
and shall ensure that the recording ofthis AO is properly indexed to each and every
property comprising any part or all of the Site so as to provide notice to third parties
of the issuance and terms of this AO with respect to those properties. Each
Respondent that owns real property comprising all or any part ofthe Site shall, within
sixty (60) Days after the Effective Date, send notice of such recording and indexing
to the ED. The obligations and restrictions of this AO run with the land and are
binding upon any and all persons who acquire any interest in any real property
comprising all or any part ofthe Site.
Not later than ninety (90) Days before any transfer of any property interest in any
property included within the Site and in accordance with Section XII (Notices and
Submittals) Respondents that own or lease such real property shall submit the
transfer documents to the ED.
Page 27 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1759
H. In accordance with Section 361.1855 ofthe Act and for the purpose of selecting the
Remedy, the ED has selected commercial/industrial as the appropriate land use for
the Site. Any change in use of any or all of the Site must comply with Section
361.190 ofthe Act.
1. A qualified Remedial Activities Contractor shall direct and supervise all aspects of
the Remedial Activities. Within ten (10) Days after the Effective Date each
Respondent that is not an Agreeing Respondent shall notify the ED of its intent to
perform the Work.
In addition to fulfilling the requirements of Section VIII (Project Manager/Site
Coordinator) Paragraph C, within ten (10) Days after the Effective Date, Agreeing
Respondents or, if there are no Agreeing Respondents, Performing Parties shall
notifY the ED in writing of the name, title, qualifications, relevant licenses, and
permits ofthe Site Coordinator and Remedial Activities Contractor proposed to be
used in carrying out the Remedial Activities. The Agreeing Respondents shall
demonstrate or, ifthere are no Agreeing Respondents, the Performing Parties shall
demonstrate that each proposed Remedial Activities Contractor has any licenses
necessary to do business in the State of Texas and permits necessary to perform any
or all ofthe Remedial Activities. If at any time the Agreeing Respondents or, ifthere
are no Agreeing Respondents, Performing Parties propose to use a different Remedial
Activities Contractor, the Agreeing Respondents or Performing Parties, as
appropriate, shall notifY the ED before the new Remedial Activities Contractor
performs any of the Remedial Activities. The Agreeing Respondents' Site
Coordinator shall be the Project Manager's and Site Representative's point of
contact for all Performing Parties. All Performing Parties must coordinate with and
cooperate with any Agreeing Respondents in the performance of any and all of the
Work.
J. The Remedy may be modified as specified in 30 TEX. ADMIN. CODE Section
335.349. Except as specified in the previous sentence and in Section xvrn
(Extension of Deadlines), the terms of this AO maybe amended upon approval by
the Commission after notice to all Respondents.
K. Respondents shall provide all the necessary information and assistance for TCEQ's
Community Relations personnel to implement the Community Relations Plan.
L. All ED-approved final submittals, documents, plans, and reports required to be
developed and approved by the ED pursuant to this AO will be incorporated in and
enforceable under this AO.
M. In complying with this AO, Respondents shall at all times comply with the
requirements of the Act and 30 TEX. ADMIN. CODE Chapter 335, Subchapter K and
30 TEX. ADMIN. CODE Chapter 350, as applicable.
Page 28 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1760
VI. Remedial Activities
A. The Respondents shall undertake the Remedial Activities in the following phases:
Remedial Design ("RD");
Remedial Action ("RA"); and
Post Construction Activity ("PCA").
The ED may, in his sole discretion, waive, in writing, a requirement to submit any
report, submittal, document or plan otherwise required to be submitted by this AO.
B. Remedial Design
1. Not later than ten (10) Days after the Effective Date, Respondents shall
submit a Design Concept Memorandum ("DCM") to the ED for review,
comment, and approval. Respondents must submit a DCM that includes:
a. Description of key performance and design criteria for the Remedy
necessary to meet the requirements of the Remedy Selection
Document;
b. Identification of all significant design options that may be considered
by the design professional to meet the required performance and
design criteria and the proposed option( s) to meet those criteria; and,
c. Identification ofpotential problems and umesolved issues which may
affect the timely completion of the RD, RA and PCA, and proposed
solutions to those problems.
2. Within thirty (30) Days after the ED approves the DCM, Respondents shall:
a. Obtain written landowner consent for any institutional control to be
placed on the land records for any or all ofthe Site as required by this
AO or by TCEQ rule and submit a copy ofthe consent to the ED; and
b. Submit a Preliminary RD to the ED for review, comment, and
approval.
3. The Respondents shall submit a Preliminary RD that meets the requirements
as set forth in this Section and consists of a 30% completion of all sections
ofthe following RD submittals:
Page 29 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1761
RA Schedule;
RA Field Sampling Plan ("RA FSP");
Remedial Action Construction Quality Assurance Project Plan ("RA C-
QAPP");
RA Plans and Specifications;
RA Health and Safety Plan ("RA HASP"); and
Post Construction Activity Plan ("PCA Plan").
4. The RA Schedule will describe the sequence, dependency on other activities,
and duration of each activity to be conducted during the RA including Project
Milestones (which will be subject to the provisions of Section XXI
(Stipulated Penalties), Paragraph D) and the specific mobilization date to
begin the RA.
5. The RA Sampling and Analysis Plan (RA SAP) and RA C-QAPP will
describe the means of assuring quality during the RA and will specify a
quality assurance official ("Respondent QA Official"), independent of the
RA Contractors, to conduct a quality assurance program during the RA.
a. The RA SAP will be comprised of the RA FSP and the "Texas
Commission on Environmental Quality Superfund Cleanup Section,
Remediation Division, Quality Assurance Project Plan for the
Superfund Program" (Program QAPP) which is most current as ofthe
Effective Date ofthis AO. The RA SAP will address sampling and
analysis relating to environmental parameters which may present
toxic risk to human health or the environment. Respondents and their
contractors and subcontractors, including analytical laboratories, shall
strictly adhere to all requirements of the approved RA SAP.
h. The Program QAPP text will not be altered. Alterations to the
Program QAPP necessitated byproject specific circumstances will be
effected by appropriate notation in Section 8.0 "Exceptions,
Additions and Changes to the Program QAPP" of the RA FSP.
c. The RA FSP will include:
i) All data required by the Program QAPP and the contents
outline attached as Exhibit C to this AO;
Page 30 - Voda Petroiewn, Inc., State Superfund Site
Exhibit A
1762
ii) Data Quality Objectives ("DQO's") which provide for the
collection and analysis of a sufficient quantity and quality of
data to demonstrate attainment ofthe Remediation Goals and
to demonstrate protection of off-site receptors from exposure
to Chemicals of Concern during the RA; DQO's will be
developed in accordance with EPA "Guidance for the Data
Quality Objectives Process, EPA QAlG-4"; and
iii) A perimeter air monitoring plan including the action levels
necessary to protect off-site receptors from exposure to the
Chemicals of Concern; the Chemicals of Concern to be
sampled; the kinds of sampling techniques to be used to
sample; the number, type, and location of monitors; the
calibration methods and schedule; and the sampling and
reporting frequency.
d. In regard to laboratories and laboratory analytical work, Respondents
shall:
i) Ensure that all contracts with laboratories utilized by
Respondents for analysis of Samples provide for access to
those laboratories by the ED's personnel and the ED's auth-
orized representatives to assure the accuracy of laboratory
results related to the Site.
ii) Ensure that each laboratory it may use is qualified to conduct
the proposed work. This includes use of methods and
analytical protocols for the Chemicals of Concern in the
media of interest within detection and quantitation limits
consistent with both QAlQC procedures and approved DQOs
for the site. The Respondent QA Official shall provide written
certification that it has reviewed the laboratory's Quality
Assurance Plan and capabilities and has determined that:
(a) The laboratory has a documented quality assurance
program in place that is generally consistent with
National Environmental Laboratory Accreditation
Conference (NELAC) standards;
(b) The laboratory has demonstrated and documented
proficiency with each sample preparation and
determinative combination to be used on the project;
Page 31 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1763
(c) The laboratory has documented standard operating
procedures for each of the methods required for the
proj ect; and,
(d) The laboratory has the capability of meeting the
analytical objectives for the project.
A table which presents the laboratory's method detection
limits and quantitation limits and the preliminary remediation
goal for each analyte of concern, and a table that presents the
laboratory's control limits for quality control parameters, i.e.,
surrogates, matrix spike/matrix spike duplicate samples, and
laboratory control samples must be submitted along with the
certification letter and must be submitted attached or inserted
into the RA FSP.
iii) Ensure that all laboratories used for analysis of Samples are
acceptable to the ED. A laboratory may be deemed
unacceptable for any ofthe following reasons:
(a) repeated or numerous deficiencies found in the
laboratory quality assurance program during the ED's
or EPA's laboratory inspections;
(b) repeated or numerous deficiencies III laboratory
performance;
(c) debarment by EP A; or
(d) failure to comply with any requirement or criteria of
the Program QAPP or this AO.
iv) Ensure that all data submitted to the agency is produced by
laboratories accredited by TCEQ according to 30 TEX.
ADMIN. CODE Chapter 25 (relating to Environmental Testing
Laboratory Accreditation and Certification) Subchapters A
andB.
6. The RA C-QAPP will describe the activities necessary to ensure that the
Remedy is constructed to meet or exceed all design criteria, plans,
specifications, and all applicable Remediation Goals. The RA C-QAPP will
address sampling and analysis relating to physical properties of constructed
engineered controls which must meet specified criteria to ensure the long-
term performance of those features (e.g. physical soil properties of soil
Page 32 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1764
backfill or constructed clay caps, physical properties of geotextiles and liner
materials, leak testing of piping systems and containment vessels, etc.). At a
minimum, the RA C-QAPP will include the following elements:
a. The responsibility and authority of organizations and key personnel
involved in designing and constructing the RA;
b. The qualifications ofthe Respondent QA Officiales) and supporting
inspection personnel;
c. The observations and tests that will be used to ensure that the
construction meets or exceeds all design criteria, plans and
specifications and all applicable Remediation Goals;
d. The sampling activities, sample size, methods for determining
locations, frequency of sampling, acceptance and rejection criteria,
and methods for ensuring that corrective measures are implemented;
and
e. Detailed reporting requirements.
7. The RA Plans and Specifications will establish the sequences, procedures and
requirements to be implemented at the Site including at a minimum:
a. Demolition activities including monitor well closure,
decontamination, environmental controls, and disposal.
b. Excavation activities including: establishment of limits of initial
excavation for surface and subsurface soils with provisions for field
controls; excavation materials handling including stockpiling;
excavation confmnation sampling; backfill procedures; air emissions
control; stormwater management; cross-contamination prevention;
and equipment and personnel decontamination procedures and
facilities.
c. Estimated quantities of material to be excavated and estimated
quantities of materials to be disposed of off-site.
d. Site restoration activities, including backfill materials, compaction,
and final cover.
e. Plans including at a minimum:
i) Site plan;
Page 33 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1765
ii) Demolition plan;
iii) Excavation plan, plan view;
iv) Excavation plan, sections;
v) Monitor well construction details;
vi) Final Site grading plan;
vii) Construction details; and
viii) All other plans and specifications necessary to describe
sequences, procedures, and requirements to conduct the
Remedial Activities in a manner protective of human health
and the environment.
8. The RA HASP will specify the procedures that are sufficient to protect on-
site personnel and the public from the physical, chemical and/or biological
hazards of the site. The HASP will address all requirements of 29 CFR
Chapter XVII - "Occupational Safety and Health Administration (OSHA),
Department of Labor," 40 C.F.R. § 35.6015(a)(21) "Health and Safety Plan,"
and all applicable safety regulations, ordinances and statutes pertaining to the
safety of on-site personnel and the public. The HASP and any revisions or
addenda will be reviewed and signed by a Board Certified Industrial
Hygienist.
The TCEQ relies on the Respondent in the preparation of an adequate HASP.
However, TCEQ reserves the right to review and provide comments on the
Respondent's HASP. If TCEQ provides comments, they constitute only
general safety guidelines which are not intended to cause the Respondent to
reduce the level of protection. Any language in the comments or in this AO
which appears to give the TCEQ the right to direct or control the
Respondent's means, methods and details of the Work shall be deemed to
mean that the Respondent will follow TCEQ's desires only as to the results
ofthe Work. The Respondent is solely responsible for preparing an adequate
HASP, for complying with the RD and the applicable safety laws and
regulations, for performing the Work in a safe manner and for protecting the
health and safety of on-site personnel and the public. The Respondent shall
address the TCEQ's comments and concerns and if necessary submit a
revised HASP. TCEQ notation of "approval," "acceptance," or similar
language in response to a HASP submittal for review shall not alter the
responsibilities of the parties as described in this Section. In the event that
TCEQ notes a HASP "approved" or "accepted" or uses similar language to
Page 34· Voda Petroleum, Inc., State Superfund Site
Exhibit A
1766
indicate that there are no further comments, such notation shall be deemed to
mean only:
We have reviewed your HASP under the AO provision reserving the right for
TCEQ to review and provide comments constituting general safety guidelines
(not intended to cause the Respondent to reduce the level ofprotection). The
reviewer(s) might not be Board Certified Industrial Hygienist or any other
type ofsafety professional. We have no comments (or further comments) at
this time on your HASP. We recognize this HASP as your final HASP. Ifyou
change this HASP you must submit a revision or addendum for review and
potential comment in accordance with this AD.
Do not rely on TCEQ review or comments (or lack thereof) on your HASP
for any purposes.
By telling you we have no comments (or further comments) we are not
assuming responsibility for your means, methods, details or sequences, nor
are we assuming any duty of protection to you, your employees, your
subcontractors or suppliers, or their employees, or to any third party. Any
language in the comments or in this AO which appears to give the TCEQ the
right to direct or control your means, methods and details of the Work shall
be deemed to mean that you will follow TCEQ's desires only as to the results
ofthe Work. You are solely responsible for preparing and implementing an
adequate HASP, for complying with the RD and the applicable safety
regulations, ordinances and statutes, for peiforming the Work in a safe
manner and for protecting the health and safety of on-site personnel and the
public.
9. The PCA Plan will describe all sequences, procedures and requirements for
implementing the PCA. The peA Plan will, at a minimum, include the
following:
a. A Post Construction Sampling and Analysis Plan ("PC SAP") and
Post Construction Quality Assurance Project Plan ("PC-QAPP")
meeting the criteria established herein for the RA SAP and RA C-
QAPP but addressing all sampling and analyses relating to PCA;
b. Post Construction Plans and Specifications necessary to assure that
the Remedial Activities attain and maintain the Remediation Goals;
c. A PCA Schedule describing the sequence, dependency on other
activities, and duration of each activity to be conducted during the
PCA including Project Milestones (which will be subject to Section
Page 35 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1767
XXI Stipulated Penalties Paragraph D), and the specific mobilization
date to begin the PCA;
d. A Post Construction Cost Estimate providing an estimate for a
qualified third party to perform all of the tasks necessary for post
construction for as long as PCA are needed, in accordance with the
PCA Schedule; and
e. A Post Construction Activities HASP ("PCA HASP") which meets
all ofthe requirements specified above for the RA HASP but which
is appropriate to protect on-site personnel and the public from any
physical, chemical andlor biological hazards ofthe site relating to the
Post Closure period and activities.
10. Within thirty (30) Days after the ED provides written comments to the Site
Coordinator on the Preliminary RD, Respondents shall submit a Pre-Final RD
to the ED forreview, comment, and approval. The Pre-Final RD will consist
of 95% RD submittals. Respondents shall address the ED's comments on
the Preliminary RD and submit a summary note which clearly and explicitly
indicates how each comment by the ED on the Preliminary RD has been
satisfactorily addressed and which will also identify all other revisions or
changes from the Preliminary RD.
11. Within twenty (20) Days after the ED provides the Site Coordinator with the
ED's written comments on the Pre-Final RD, Respondents shall submit the
Final RD, prepared and sealed by a Professiomil Engineer registered in the
State of Texas, to the ED. The Final RD will consist of 100% complete RD
submittals except the PCA Plan. A Professional Engineer shall include a
certification that the design was prepared to attain all Remediation Goals
upon implementation. Respondents shall address the ED's comments on the
Pre-Final RD and submit a summary note which clearly and explicitly
indicates how each of the ED's comments on the Pre-Final RD has been
satisfactorily addressed and which will also identify all other revisions or
changes from the Pre-Final RD.
12. The ED will notify the Site Coordinator of his approval or disapproval of the
Final RD including written comments. Within fifteen (15) Days after the ED
provides written comments to the Site Coordinator, Respondents shall
resubmit the Final RD, in both clean and redline, strikeout format, with a
summary note which clearly and explicitly indicates how each of the ED's
comments on the previous draft of the Final RD has been satisfactorily
addresse4 and which will also discuss all other revisions or changes from the
previous draft of the Final RD.
Page 36 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1768
13. The ED will notify the Site Coordinator of his approval or disapproval of
each resubmittal of the Final RD. Each resubmittal will be submitted as
specified in Paragraph 12 above. Disapproval of the first resubmittal, and
each subsequent resubmittal, is subj ect to assessment of stipulated penalties
in accordance with Section XXI (Stipulated Penalties).
14. Upon the ED's approval, the documents comprising the Final RD will be
incorporated as requirements into and will be enforceable under this AD.
C. Remedial Action
1. Respondents and Respondents' contractors and subcontractors shall not
mobilize to the Site until the Final RD is approved by the TCEQ. Under no
circumstance will mobilization occur prior to TCEQ approval of the RA
HASp. 2 The Respondents will be responsible for initiating, maintaining, and
supervising all safety precautions and programs required for the protection of
all persons who may be affected by the Work, the Work, and any property
which maybe affected by the Work.
2. As soon as practicable after the award of any contract to ship solid wastes
and/or hazardous substances from the Site and prior to any such actual
shipment, Respondents shall submit to the Project Manager a written
certification containing all relevant information regarding such shipments.
The certification will include:
a. The name and location ofthe facility to which the solid wastes and/or
hazardous substances are to be shipped;
b. The type and quantity ofthe solid wastes and/or hazardous substances
to be shipped;
c. The expected schedule for the shipment of the solid wastes and/or
hazardous substances; and
d. The method of transportation and the name, address, and phone
number ofthe transporter.
3. In addition, Respondents shall certify that:
a. No enforcement order is currently imposed on any selected receiving
facility or transporter by any regulating authorities;
2TCEQ 's "approval" or "acceptance" of the HASP will be given the meaning as explained in Section VI
(Remedial Activities) Paragraph B.8.
Page 37 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1769
b. The selected receiving facility and transporter are permitted to accept
the specific solid wastes and/or hazardous substances to be shipped
from the Site by all appropriate regulating authorities; and
c. After appropriate inquiry, they have no knowledge that either the
selected receiving facility or transporter is non-compliant with any
federal, state, or local requirement.
4. The ED may inspect the Remedial Activities and/or the Site at any time to
evaluate compliance with this AO.
5. At least ten (1O) Days prior to the expected date of achieving Substantial
Completion ofthe RA,the Site Coordinator shall conduct a pre-Substantial
Completion inspection and shall develop and submit to the ED a preliminary
punch list identifying any nonconformance with the requirements of the RA
Plans and Specifications.
6. At the same time that the Performing Parties submit the Substantial
Completion punch list, they shall schedule a Substantial Completion
inspection by the ED. The Site Coordinator shall accompany the ED during
the Substantial Completion inspection.
7. Within 10 Days after the ED's on-site inspection, the Respondents shall
submit to the ED in writing a revised punch list incorporating any
deficiencies identified by the ED during the Substantial Completion
inspection, indicating those deficiencies that are completely addressed and
providing a proposed schedule and list of activities necessary to complete the
RA. The ED will notify the Site Coordinator in writing of his approval or
disapproval of the revised punch list.
If the ED disapproves the revised punch list, the ED will provide written
comments to the Site Coordinator. Within ten (10) Days after the ED
provides written comments to the Site Coordinator on the revised punch list,
Respondents shall submit a final punch list, in both clean and redline,
strikeout format, with a summary note that clearly and explicitly indicates
how each of the ED's comments on the revised punch list has been
satisfactorily addressed. The ED will notify the Site Coordinator of his
approval or disapproval ofthe final punch list with comments. If disapproved
by the ED, within fifteen (IS) Days after the ED provides written comments,
Respondents shall resubmit the final punch list. The ED will notify the Site
Coordinator of his approval or disapproval of each resubmittal of the final
punch list. Disapproval of the first resubmittal and each subsequent
resubmittal is subj ect to assessment of stipulated penalties in accordance with
Section XXI (Stipulated Penalties).
Page 38 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1770
8. When Respondents believe that they have completed the RA, they shall
submit a certification to the ED that the RA is complete. Ifthe ED identifies
RA items to be corrected or completed, Respondents shall immediately
correct or complete these items.
9. Within forty five (45) Days after Respondents certify that the RA is complete,
Respondents shall submit to the ED a draft RA Report, containing the
following:
a. A certification from a Professional Engineer licensed in the State of
Texas that the RA has been completed in compliance with the Final
RD and this AO and that the RA is complete;
b. All data collected during the RA and documentation of compliance
with the terms of the RA Quality Assurance Project Plan and the RA
Construction Quality Assurance Plan;
c. Copies of waste manifests for all Class II, Class I, and hazardous
wastes and substances disposed of off-site;
d. As-built drawings showing:
i) Areas and depths of excavation, with verification sample
results by grid area;
ii) Final site plan with topographic contours;
e. Progress photographs;
f. Proposed areas for soil and groundwater that will require land use
restrictions and/or other deed notices, certifications, or restrictions;
and,
g. Proposed language for any institutional controls in accordance with
and as required by this AO and TCEQ rules.
10. The ED will notify the Site Coordinator of his approval or disapproval ofthe
draft RA Report. If the ED disapproves the draft RA Report, the ED will
provide written comments to the Site Coordinator.
11. Within fifteen (15) Days after the ED provides written comments to the Site
Coordinator on the draft RA Report, Respondents shall submit a final RA
Report, in both clean and redline, strikeout format, with a summary note
which clearly and explicitly indicates how each ofthe ED's comments on the
Page 39 - Voda Petro!ewn, Inc., State Superfund Site
Exhibit A
1771
draft RA Report has been satisfactorily addressed and which also discusses
all other revisions or changes from the draft RA Report.
12. The ED will notify the Site Coordinator of his approval or disapproval ofthe
final RA Report with comments.
13. If disapproved by the ED, within fifteen (15) Days after the ED provides
written comments, Respondents shall resubmit the RA Report as specified in
Paragraph 11 above. Each resubmittal will also be submitted in accordance
with Paragraph 11 above.
14. The ED will notify the Site Coordinator of his approval or disapproval of
each resubmittal of the final RA Report including written comments.
Disapproval of the first resubmittal and each subsequent resubmittal· is
subject to assessment of stipulated penalties in accordance with Section XXI
(Stipulated Penalties).
15. Within thirty (30) Days after approval of the final RA Report and after
obtaining the required written landowner consent in accordance with
Paragraph B.2 of this Section, Respondents shall:
a. record a copy or copies of any required institutional controls in
compliance with the requirements found in 30 TEX. ADMIN. CODE
Chapter 350.111 in the appropriate local or county office where land
ownership and transfer records are filed or recorded;
b. ensure that the recording ofthese documents is properly indexed and
recorded to each and every property at the Site in the appropriate
office where land ownership and transfer records are filed so as to
provide notice to third parties concerning those properties; and
c. send evidence of such recording, landowner consent, and indexing to
the ED.
16. After he approves the finalRA Report, receives evidence of the filing of any
institutional control from each property owner or other person as required by
Section V (Order) Paragraph G, and determines that the financial assurance
requirements of Paragraph E below have been satisfied, the ED will issue an
Approval ofRA Completion to the Agreeing Respondents, or ifthere are no
Agreeing Respondents to this AO, any Performing Parties.
Page 40 - Voda Petroleum, Inc., State Superfund Site
Exhibit A
1772
D. Post Construction Activity
1. Concurrent with the submittal ofthe preliminary punch list for the Substantial
Completion inspection, the Site Coordinator shall 1) submit a list of the
name, title, qualifications, relevant licenses and permits of the Remedial
Activities Contractors proposed to be used in carrying out any or all of the
PCA and 2) submit to the ED a Revised PCA Plan.
2. The ED will notify the Site Coordinator of his approval or disapproval of the
Revised PCA Plan including written comments to the Site Coordinator.
3. Within fifteen (15) Days after the ED provides written comments to the Site
Coordinator, Respondents shall submit the Final PCA Plan, in both clean and
redline, strikeout format, with a summary note which clearly and explicitly
indicates how each of the ED's comments on the Revised PCA Plan has been
satisfactorily addressed and which will also discuss all other revisions or
changes from the Revised PCA Plan.
4. The ED will notify the Site Coordinator of his approval or disapproval ofthe
submittal and each resubmittal ofthe Final PCA Plan. Each resubmittal will
be submitted as specified in Paragraph 3 above. Disapproval of the first
resubmittal and each subsequent resubmittal is subject to assessment of
stipulated penalties in accordance with Section XXI (StipUlated Penalties).
5. Upon the ED's approval ofthe final PCA Plan, Respondents shall begin the
PCA in accordance with the schedule included in the PCA Plan.
6. The Agreeing Respondent(s) shall submit a Five Year Review report to the
TCEQ for TCEQ' s approval no later than five (5) years after the ED approves
the Final Remedial Action for the Site. The Five Year Review report must
be conducted in accordance with the U.S. Environmental Protection Agency's
"Comprehensive Five-Year Review Guidance." The Agreeing Respondent(s)
shall submit Five Year Review reports for the Site to the TCEQ every five (5)
years unless and until the TCEQ approves cessation.
E. Post Construction Financial Assurance
1. Respondents shall provide financial assurance in the minimum amount ofthe
final Post Construction Cost Estimate and shall maintain such financial
assurance for the full duration ofthe PCA. Within ten (10) Days ofthe ED's
approval of the PCA Plan, Respondents shall submit a written proposal for
providing financial assurance to the ED for approval.
Page 41 - Yoda Petroleum, Inc., State Superfund Site
Exhibit A
1773
2. Subject to the ED's approval, financial assurance may be demonstrated by
one or a combination of the following mechanisms: letter of credit, surety
bond guaranteeing payment, surety bond guaranteeing performance, fully
funded trust, insurance, escrow account or other approved mechanism. Each
financial assurance document will be issued by an institution with the
authority to issue the document whose operations are regulated and examined
by a federal or state agency.
3. Within fifteen (15) Days after the ED provides written approval of
Respondents' proposed financial assurance mechanism to the Site
Coordinator, Respondents shall submit the necessary financial assurance
documents to the ED. The ED will notify the Site Coordinator of his
approval or disapproval ofthe financial assurance documents with comments.
If disapproved by the ED, within fifteen (15) Days after the ED provides
written comments to the Site Coordinator, Respondents shall resubmit the
financial assurance documents, in both clean and redline, strikeout fonnat,
with a summary note which clearly and explicitly indicates how each ofthe
ED's comments on the previous draft of the financial assurance documents
has been satisfactorily addressed and which will also discuss all other
revisions or changes from the previous draft of the financial assurance
documents.
4. The ED will notify the Site Coordinator of his approval or disapproval, with
comments, of each resubmittal ofthe financial assurance documents. Each
resubmittal will be submitted in accordance with Paragraph 3 above.
Disapproval of the first resubmittal and each subsequent resubmittal is
subj ect to assessment of stipulated penalties in accordance with Section XXI
(Stipulated Penalties).
VII. Failure to Attain Remediation Goals or Findings of Significant Difference
A. If at any point in the Remedial Activities the Performing Parties conclude that the
Remedial Activities as implemented in accordance with this AO will not attain the
Remediation Goals, or ifthe Performing Parties find that conditions at the Site differ
from those that form the basis of the RSD and significantly change the scope,
performance or costs of the Remedial Activities, then the Performing Parties shall
take the actions specified in this Section.
B. Within ten (10) Days after the Performing Parties initially determine that a failure to
attain Remediation Goals or that a significant difference in the scope, performance
or cost of the Remedial Activities as described in this Section exists, Performing
Parties shall notify the ED of that determination with a description of its basis.
Page 42· Voda Petroleum, Inc., State Superfund Site
Exhibit A
1774
C. Not later than sixty (60) Days after the initial assertion of a failure to attain
Remediation Goals or of a significant difference in the scope, performance or cost
of the Remedial Activities, the Performing Parties shall submit a Failure Evaluation
Report to the ED for his approval.
D. The Performing Parties shall submit a Failure Evaluation Report that meets the
requirements ofthis Section. The Failure Evaluation Report will include a discussion
of the following: the data related to the failure to attain Remediation Goals or to the
assertion of a significant difference, conclusions concerning all such data, and any
known cause of the failure to attain Remediation Goals or of the significant
difference, and a recommendation for any necessary additional studies. Data
presented in the Failure Evaluation Report will comply with the DQOs.
E. The ED will not consider the failure of a design element or remedial action that is not
required by this AO to be the basis for a failure to attain the Remediation Goals.
F. The ED will consider differences in the quantity or extent of contaminants as the
basis for a determination of a significant difference only when such differences are
so significant as to cause the Remedy not to be the lowest cost alternative that is
technologically feasible and reliable and that effectively mitigates and minimizes
da
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