# Baxter Oil Service, Ltd. v. Texas Commission on Environmental Quality > Texas Court of Appeals, 3rd District (Austin) · September 25, 2015 URL: https://www.frixlaw.com/law-library/cases/4073720 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** September 25, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4073720 ## Opinion text 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.... 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) [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4073720. Public record. Not legal advice.