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

ACCEPTED
03-14-00718-CV
4925658
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/16/2015 7:57:20 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00718-CV

IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS, AUSTIN, TEXAS
AT AUSTIN, TEXAS 4/16/2015 7:57:20 PM
JEFFREY D. KYLE
Clerk
CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD; MICHAEL
MCCALL; WAYNE KNOX; AND THE CITY OF HEMPSTEAD,
Plaintiffs/Appellants,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND
PINTAIL LANDFILL, L.L.C., Defendants/Appellees.

From 201st District Court,
Travis County, Texas

APPELLANTS CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD,
MICHAEL MCCALL, WAYNE KNOX, AND CITY OF HEMPSTEAD’S
REPLY BRIEF

KELLY HART & HALLMAN LLP HANCE SCARBOROUGH, LLP
Monica M. Jacobs Terry L. Scarborough
State Bar No. 24007433 State Bar No. 17716000
Diana L. Nichols Michael L. Woodward
State Bar No. 00784682 State Bar No. 21979300
301 Congress Avenue, Suite 2000 V. Blayre Pena
Austin, TX 78701 State Bar No. 24050372
Telephone: (512) 495-6400 Wesley P. McGuffey
Facsimile: (512) 495-6401 State Bar No. 24088023
400 W. 15th Street, Ste. 950
ATTORNEYS FOR THE Austin, TX 78701
CITY OF HEMPSTEAD Telephone: (512) 479-8888
Facsimile: (512) 482-6891

ATTORNEYS FOR APPELLANTS
CITIZENS AGAINST THE LANDFILL
IN HEMPSTEAD, MICHAEL
MCCALL, AND WAYNE KNOX

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS

TABLE OF CONTENTS ……………………………………………..……………2

INDEX OF APPENDICIES………………………………………………………...3

INDEX OF AUTHORITIES ……………………………………………………….4

ARGUMENT ………………………………………………………………………8

THE RULE INTERPRETATIONS ADVANCED BY APPELLEES
IMPERMISSIBLY CONTRADICTS THE PLAIN LANGUAGE OF THE
RULES THEY CLAIM TO INTERPRET.....................................................8

A. Straight From the Horse’s Mouth: A Concise Statement of Appellants’
Argument……………………………………………………………..9

B. A Requirement Must Require Something: Appellees Impermissibly
Interpret 30 Texas Administrative Code § 330.9(f) As Applying to Any
Transfer Station/Waste Separation Facility Only If Its Requirements
Are Met……………………………………………………………..11

C. Appellees Impermissibly Interpret 30 Texas Administrative Code
§ 330.9(b)(3), Arguing Anything Besides the Clear, Unambiguous
Language of the Rule..……………………………………………….14

1. TCEQ’s Argument on Rule 330.9(b)(3) Misses the Point,
Misconstrues the Argument, and Exudes Misunderstanding.…16

2. It’s Not a Sasquatch: A Generally Applicable Permit
Requirement Does Exist………………………………………19

3. Rules are Rules: TCEQ Does Not Have the Authority to Violate
or Otherwise Ignore Its Rules.………………………………..22

4. Don’t Believe the Hype: The Transfer Station/Materials
Recovery Facility Does Not and Could Not Qualify for a Permit
Exemption Under Rule 328, Because a Waste Stream Is Not
Recyclable Material…………………………………………..24

2
 5. Not All Type V Facilities Are Equal. Transfer Facility ≠
Incinerator ≠ Material Recovery Facility……………………26

THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY
AUTHORIZING THE FACILITY THROUGH REGISTRATION RATHER
THAN A PERMIT.………………………………………………………..28

ALWAYS KEEP YOUR WORD: THE REGISTRATION SHOULD BE
REVERSED BECAUSE TCEQ ALLOWED AN EXCESSIVE NUMBER
OF NOTICES OF DEFICIENCY WELL BEYOND ITS PUBLICLY
PRONOUNCED POLICY.………………………………………………...30

PRAYER ………………………………………………………………………….35

CERTIFICATE OF COMPLIANCE ……………………………………………..36

CERTIFICATE OF SERVICE ……………………………………………………37

INDEX OF APPENDICIES

Appendix A Notices of Deficiencies

Appendix B MSW Permit 2382
MSW Permit 2379

3
 INDEX OF AUTHORITIES

Statutes

Texas Health and Safety Code

§ 361 ………………………………………………………………………19

§ 361.061..……………………………………………..…………………..19

§ 361.086(a)….……………………….………………..………………….19

§ 361.0861……………………………………………..……………….13, 20

§ 361.088……………………………………………………...………..29, 30

§ 361.0665……………………………………………………………...29, 30

§ 361.0666……………………………………………………………...29, 30

§ 361.067…………………………………………………………….…29, 30

§ 361.079……………………………………………………………….29, 30

§ 361.0791………………………………………………….………..…29, 30

§ 361.081……………………………………………………………….29, 30

§361.092………………………………………………………………..14, 20

§ 361.111(a)(4)……………………………………………………………..13

§ 361.111(a)(1)-(4)…………………………………………………………20

Rules

30 Texas Administrative Code

§ 55.201(b)(4)………………………………………………………………29

4
§ 55.203…………………………………………………………………….29

§ 80.109(a)………………………………………………………………….29

§ 80.109(b)(5)………………………………………………………………29

§ 312………………………………………………………………………..23

§ 328………………………………………………………………………..24

§ 328.2(3)…………………………………………………………………...26

§ 328.2(6)…………………………………………………………………...26

§ 328.4……………………………………………………………………...25

§ 328.4(d) ………………………………………………………………24, 26

§ 330………………………………………………………………………..24

§ 330(88)……………………………………………………………………19

§ 330.3……………………………………………………………………...18

§ 330.3(a) …………………………………………………………………..18

§ 330.3(117)……………………………………………………………..…17

§ 330.3(122) ………………………………………………………………..25

§ 330.3(157)…..…………………...……………………………..8, 15, 18, 27

§ 330.3(174)……………………………………………………...8, 12, 15, 18

§ 330.5(a)(3)………………………………………………………………..27

§ 330.7……………………………………………………………………...25

§ 330.7(a)….………………………...……………….........................8, 20, 21

5
 § 330.9………………………………………………….11, 13, 18, 20, 21, 25

§ 330.9(b) ………………………………………………………………21, 27

§ 330.9(b)(3) …………………………………………8, 9, 14, 15, 16, 17, 19

§ 330.9(c) …………………………………………………………………..13

§ 330.9(f) …………………………………………………8, 10, 11, 12, 13, 14

§ 330.9(f)(1) & (2) …………………………………………………………10

§ 330.9(j) …………………………………………………………………..13

§ 330.9(b)–(p)………….……………………………….…………………..21

§ 330.11…………………………………………………………………….20

§ 330.13…………………………………………………………………….20

§ 330.25…………………………………………………………………….20

§ 332………………………………………………………………………..24

Cases

CenterPoint Energy Houston Elect., LLC v. PUC
408 S.W. 3d 910 (Tex. App. – Austin 2013, pet denied)…………....8, 13, 22

County of Dallas v. Wiland,
216 S.W.3d 344, 347 (Tex. 2007)…………………………………….........29

Alton McDaniel v. Texas Natural Resource Conservation Commission
982 S.W.2d 650; 1998 (Tex. App. – Austin 1998, pet. denied)…………23, 24

PUC v. Gulf States Utilities Co.
809 S.W. 2d 201 (Tex. 1991) ………………………………………..8, 13, 22

Rodriguez v. Service Lloyds Ins. Co.,
997 S.W.2d 248, 254 (Tex. 1999)………………………………………….18

6
Tex. Comm’n on Envtl. Quality v. Kelsoe
286 S.W.3d 91 (Tex. App. – Austin 2009……………….…………………32

Tex. Dept. of Transp.. V. Needham
S.W. 3d 314, 318 (Tex. 2002)………………………………………………18

TGS-NOPEC Geophysical Co. v. Combs
340 S.W.3d 432, 439 (Tex. 2011) …………………………………………..18

Other Authority

31 Tex. Reg. 2506…………………………………………………………11, 14, 21

31 Tex. Reg. 2548……..………………………………………………………20, 21

7
TO THE HONORABLE COURT OF APPEALS:

Appellants Citizens Against the Landfill in Hempstead (“CALH”) and City of

Hempstead (“City”) file this Reply Brief of Appellants, and in support, state as

follows:

ARGUMENT

I. THE RULE INTERPRETATIONS ADVANCED BY APPELLEES
IMPERMISSIBLY CONTRADICT THE PLAIN LANGUAGE OF THE
RULES THEY CLAIM TO INTERPRET.

At the heart of this matter are four (or five) TCEQ rules.1 In their briefs,

Appellees present their interpretations of two TCEQ registration rules at issue, 30

Texas Administrative Code § 330.9(b)(3) and 30 Texas Administrative Code

§ 330.9(f). Appellees’ interpretations are impermissible because they contravene

the plain language of the rule.2 Further, Appellees’ interpretations are impermissible

because they are plainly erroneous and inconsistent with the regulation or its

underlying statute.

Largely avoiding the clear, unambiguous language of the applicable rules,

Appellees attempt to support their impermissible interpretations by arguing a

1
30 Tex. Admin. Code § 330.9(b)(3) (authorizing registration for certain transfer stations); 30 Tex.
Admin. Code § 330.9(f) (authorizing registration for certain transfer stations/material recovery
facilities); 30 Tex. Admin. Code § 330.3(157) (defining transfer station); 30 Tex. Admin. Code
§ 330.3(174) (defining waste-separation/recycling facility/material recovery facility); 30 Tex.
Admin. Code § 330.7(a) (relating to and titled “permit required”).
2
When an agency fails to follow the clear, unambiguous language of its own regulation, the court
must reverse the agency’s action as arbitrary and capricious. PUC v. Gulf States Utilities, 809
S.W.2d 201, 207 (Tex. 1991); CenterPoint Energy v. PUC, 408 S.W.3d 910, 917.

8
number of points that are not at issue or serve only to confuse the issue. These

arguments often miss the point, misconstrue Appellants’ argument, and fail to

acknowledge the applicability of regulatory definitions mandated by TCEQ rule.

Appellees’ arguments ultimately fail because there is a permit requirement in TCEQ

rules and in the controlling statute, TCEQ cannot violate or ignore its rules, the

permit and registration exception for source-separated recyclable materials does not

apply to this facility, and a transfer station is not the equivalent to any other Type V

processing facility. Not only do Appellees’ arguments fail, their interpretation

endangers the proper permitting of solid waste processing activities across our state.

A. Straight From the Horse’s Mouth: A Concise Statement of
Appellants’ Argument.

Appellants’ first argument is often misrepresented in Appellees’ briefs.

Rather than refuting each occurrence, Appellants’ argument is concisely presented

below for convenient comparison.

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

regulations when it issued Registration No. 40259 for Pintail’s transfer

station/material recovery facility (“Pintail’s Facility” or “Facility”). First, TCEQ

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

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

facilities, and this rule was violated when TCEQ allowed it to be used as registration

authority for a materials recovery operation. Second, TCEQ failed to follow Rule

9
330.9(f), which allows registration for any transfer station facility with materials

recovery operations that meets the 10/50 requirements.3 It is undisputed that the

Facility is a transfer station with materials recovery operations, and that the 10/50

requirements were not met. This is the only registration authorization available for

materials recovery activities at a transfer station without an already permitted landfill

attached. Thus, TCEQ’s refusal to apply this rule’s requirements is impermissible.

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

definitions. TCEQ rules specifically define both types of facilities at issue, transfer

stations and waste separation/recycling facilities (also referred to as a materials

recovery facilities), and these facilities engage in different waste management

activities. TCEQ is required to follow its definitions, which are codified as TCEQ

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

of this Facility must be reversed.

It should be noted that Appellants are not challenging the authority of TCEQ

to issue registrations. Appellants fully acknowledge TCEQ’s authority to register

certain transfer stations, to register certain transfer stations with materials recovery

operations, to register certain recycling facilities, and to register any other type of

waste management activity that is allowed by law. In fact, permissible TCEQ

3
The so-called 10/50 requirements are found at 30 Texas Administrative Code § 330.9(f)(1)&(2).
They require a minimum 10% recovery rate and disposal at an existing permitted facility within
50 miles in order to qualify for registration.

10
registrations form the heart of this case. The key is, when exercising its authority,

TCEQ must follow its rules. In this case it did not, so reversal is required.

B. A Requirement Must Require Something: Appellees
Impermissibly Interpret 30 Texas Administrative Code § 330.9(f)
As Applying to Any Transfer Station/Waste Separation Facility
Only If Its Requirements Are Met.

The first relevant rule at issue is 330.9(f). Rule 330.9(f) is intended to allow

a qualifying transfer station/material recovery facility to obtain a registration rather

than a permit.4 The rule reads, “(f) A registration is required for any new MSW

Type V transfer station that includes a material recovery operation that meets all of

the following requirements. (1) Materials recovery. [10% recovery rule]. (2)

Distance to landfill. [50 mile disposal rule].”

Upon adoption of 30 Texas Administrative Code § 330.9 to allow registration

instead of permitting, TCEQ recognized and pronounced that the rule lists all of the

permitting exceptions that are eligible for registration. 31 Tex. Reg. 2506 (“The

commission adopts new §330.9, Registration Required, to list all MSW management

activities that are exempt from permitting requirements but that still require

commission approval by registration.”)

Appellees do not rely on 330.9(f) as registration authority, and Appellees’

interpretation of 330.9(f) correctly bars its use for registration of this facility.

4
See 31 Tex. Reg. 2506.

11
However, their interpretation continues to ignore the language of the rule,

specifically, the word “any” and the defined term, “material recovery operation.”

Appellees argue that the 10/50 rule requirements of 330.9(f) do not apply to this

transfer station/materials recovery facility, even though the rule expressly applies to

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

operation….” Appellees argue that the requirements of Rule 330.9(f) (the 10/50

rule) only apply to a transfer station/materials recovery facility that already meets

the 10/50 rule.5 In other words, Appellees argue that if the rule’s requirements are

not met, the rule does not apply.

In its best light, Appellees’ interpretation means that if rule 330.9(f)’s

requirements are not met, then the rule does not allow registration of a transfer

station/materials recovery facility. Appellees argue, however, that if the rule’s 10/50

requirements are not met, the facility may simply be registered as a transfer station,

despite the fact that it is actually a transfer station and material recovery facility.

Appellees’ interpretation ignores the word “any” and the term “material recovery,”

which is defined in rule 330.3(174).6 Because Appellees’ interpretation contravenes

5
Pintail’s Brief at 21-22; TCEQ’s Brief at 16.
6
30 Tex. Admin. Code 330.3(174) (“Waste-separation/recycling facility--A facility, sometimes
referred to as a material recovery facility, in which recyclable materials are removed from the
waste stream for transport off-site for reuse, recycling, or other beneficial use.”)

12
the clear, unambiguous language of the rule itself, it is impermissible.7 However,

even if their interpretation did not contravene the rule’s language, the registration

would fail because there is no other applicable registration authority available.

Appellants do concede that registration for waste separation/material

recovery/recycling activities could be properly granted through a different

registration provision, but those provisions must expressly apply to those activities,

and cannot apply without a preexisting permitted landfill under current rules. In

order to qualify waste separation/recycling/materials recovery activities for

registration, one of the specific provisions allowing these specific activities to be

registered must be met.

These statutorily prescribed registration provisions available for recycling

activities are listed in Rule 330.9, and include 330.9(c) (for registration of a waste

separation/recycling facility within the boundaries of an existing, existing permitted

MSW landfill, with statutory authority originating in Texas Health and Safety Code

361.0861), 330.9(f) (for a transfer station that includes a material recovery operation

and meets the 10/50 requirements, with statutory authority originating in Texas

Health and Safety Code 361.111(a)(4)), and 330.9(j) (for certain material recovery

operations from an existing landfill, with statutory authority originating in Texas

7When an agency fails to follow the clear, unambiguous language of its own regulation, the court
must reverse the agency’s action as arbitrary and capricious. Gulf States Utilities, 809 S.W.2d at
207 (Tex. 1991); CenterPoint, 408 S.W.3d at 917.

13
Health and Safety Code 361.092). TCEQ Rule 330.9(f) is the only provision

allowing materials recovery that could have been utilized, because there is not an

existing landfill. Because the requirements of 330.9(f) were not met, a registration

is not available and this facility requires a permit.

C. Appellees Impermissibly Interpret 30 Texas Administrative Code
§ 330.9(b)(3), Arguing Anything to Distract from the Clear,
Unambiguous Language of the Rule.

The second relevant registration rule at issue is 330.9(b)(3). Appellees

purport to rely on this rule for registration authority. Rule 330.9(b)(3) is intended to

allow qualifying transfer stations to obtain a registration rather than a permit. See

31 Tex. Reg. 2506 (“The commission adopts new §330.9, Registration Required, to

list all MSW management activities that are exempt from permitting requirements

but that still require commission approval by registration.”) The rule reads,

(b) A registration is required for an MSW transfer station facility that
is used in the transfer of MSW to a solid waste processing or disposal
facility from any of the following: … (3) a facility used in the transfer
of MSW that transfers or will transfer 125 tons per day or less;

30 Tex. Admin. Code § 330.9(b)(3).

Appellees argue that a transfer station that includes a materials recovery

operation may be registered under Rule 330.9(b)(3), even though the rule expressly

applies only to MSW transfer station facilities. Appellees interpretation

impermissibly expands the scope of Rule 330.9(b)(3) in contravention of the rule’s

clear, unambiguous language, because Rule 330.9(b)(3) expressly applies only to

14
MSW transfer station facilities. Transfer station facilities are defined by rule, and

are separately defined from materials recovery facilities. There is a clear distinction

between these types of waste processing activities. See 30 Tex. Admin. Code §

330.3(157) (defining transfer station); 30 Tex. Admin. Code § 330.3(174) (defining

materials recovery facility/waste separation facility/recycling facility).8

All of the Appellees interpretations contravene the plain language, “transfer

station facility,” which is a term defined by rule. Additionally, the mere fact that a

facility “is used in the transfer” of waste does not eliminate the rule’s express

application to “transfer station” facilities only, and it does not change the regulatory

definition of “transfer station.” Given the rule’s express application to “transfer

station” facilities, the words “is used in the transfer” serve the purpose of describing

the activities of a transfer station consistently with its regulatory definition. There

is no indication that the words “is used in the transfer” expand the applicability of

rule 330.9(b)(3), and such a reading contravenes the clear, unambiguous language

of TCEQ rules 330.9(b)(3), 330.3(157), and 330.3(174).

8
30 Tex. Admin. Code § 330.3(157) (“Transfer station--A facility used for transferring solid waste
from collection vehicles to long-haul vehicles (one transportation unit to another transportation
unit). It is not a storage facility such as one where individual residents can dispose of their wastes
in bulk storage containers that are serviced by collection vehicles.”); 30 Tex. Admin. Code
§ 330.3(174) (Waste-separation/recycling facility--A facility, sometimes referred to as a material
recovery facility, in which recyclable materials are removed from the waste stream for transport
off-site for reuse, recycling, or other beneficial use.)

15
 Appellees offer a number of justifications for violating the plain language of

TCEQ rules, but they miss the mark. The arguments largely dodge the language of

the rules at issue, and upon inspection, they do not justify Appellees’ proposed

interpretations. Their arguments fail because: 1) TCEQ’s argument fails to

distinguish between transfer activities and materials recovery/waste separation

activities, fails to acknowledge the applicability of TCEQ rules’ definitions, and

even inadvertently admits that the claimed registration authority does not apply by

stating that no MSW will be transferred at the facility; 2) a permit is generally

required for waste management activities unless an exception applies; 3) TCEQ

cannot violate or ignore its rules; 4) the permit and registration exception for source-

separated recyclable materials does not and could apply to this facility because it

accepts a waste stream; and 5) a transfer station is not equivalent to any Type V

processing facility, and Appellees’ interpretation endangers the proper permitting of

all other Type V solid waste processing facilities.

1. TCEQ’s Argument on Rule 330.9(b)(3) Misses the Point,
Misconstrues the Argument, and Exudes Misunderstanding.

TCEQ’s argument regarding rule 330.9(b)(3) completely misses the mark.

TCEQ’s argument is fundamentally flawed because it misconstrues Appellants’

argument as complaining that no processing or storage may occur at a transfer

16
station.9 Appellants do not challenge registration of all processing activities, but

only challenge registration of materials recovery/waste separation/recycling

activities at a transfer station using Rule 330.9(b)(3) as justification. In reality,

transfer activities and materials recovery/waste separation/recycling activities are

each a subset, or different type of waste processing activity, which is a much more

broadly defined term.10 Even incineration of waste is a processing activity.11

TCEQ argued that processing activities are incidental and necessary to operate

a transfer station.12 This argument has very little relevance because processing is

such a broad term. Because the scope of the term “processing” includes both transfer

activities and material recovery activities, it follows that processing would be a

necessary activity to transfer waste (because transfer is a form of processing). The

more relevant observation is that materials recovery/waste separation/recycling

activities (another distinct form of processing) are most certainly not necessary to

9
TCEQ Brief at 13.
10
30 Tex. Admin. Code § 330.3(117) (“Processing--Activities including, but not limited to, the
extraction of materials, transfer, volume reduction, conversion to energy, or other separation and
preparation of solid waste for reuse or disposal, including the treatment or neutralization of waste,
designed to change the physical, chemical, or biological character or composition of any waste to
neutralize such waste, or to recover energy or material from the waste, or render the waste safer to
transport, store, dispose of, or make it amenable for recovery, amenable for storage, or reduced in
volume.”).
11
Id.
12
TCEQ Brief at 15.

17
the transfer of waste from one transportation unit to another transportation unit, nor

are those activities incidental to transfer activities.13

Further, TCEQ appears to misrepresent the applicability of its own

definitions. On page 13 of is brief, TCEQ appears to imply that definitions of MSW

management activities in Rule 330.3 (such as transfer station and waste

separation/materials recovery/recycling facility) do not apply to registration Rule

330.9 because they appear in a different subchapter.14 This is flat wrong. Not only

are the definitions and registration rules in the same subchapter (Subchapter A), the

definitions would apply even if they were not. The definitions of Rule 330.3 apply

to the entire Chapter 330 regarding municipal solid waste. See 30 Tex. Admin. Code

§ 330.3(a) (stating “[t]his section contains definitions for terms that appear

throughout this chapter.”). The TCEQ and reviewing courts are bound to construe

these terms by their regulatory definitions only.15

13
See 30 Tex. Admin. Code § 330.3(157); see also 30 Tex. Admin. Code § 330.3(174).
14
TCEQ Brief at 13 (stating “Appellants support their argument by citing to various definitions of
MSW management in other subchapters of the MSW rules. Appellants’ interpretation of the
Commission’s rules is unreasonable…”).
15
Tex. Dept. of Transp. V. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (“But if a statute defines a
term, a court is bound to construe that term by its statutory definition only.”) (emphasis added);
see also TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“If a statute
… assigns a particular meaning to a term, we are bound by the statutory usage.”); id. at 438 (“We
interpret administrative rules, like statutes, under traditional principles of statutory construction.”);
Rodriguez v. Service Lloyds Ins., 997 S.W.2d 248, 254 (“We construe administrative rules, which
have the same force as statutes, in the same manner as statutes.”).

18
 Finally, in another section of TCEQ’s brief, TCEQ inadvertently admits by

implication that the registration authority of Rule 330.9(b)(3) does not apply at all,

because Pintail’s facility “will not accept municipal solid waste” and will only accept

construction and demolition waste.16 Because Rule 330.9(b)(3) applies only to a

“MSW transfer station facility that is used in the transfer of MSW,” TCEQ has

inadvertently refuted its own argument that the registration authority of Rule

330.9(b)(3) applies to Pintail’s facility. TCEQ’s statement, however, is inaccurate.

MSW is broadly defined, and does include construction and demolition waste.17

2. It’s Not a Sasquatch: A Generally Applicable Permit
Requirement Does Exist.

TCEQ’s brief also implies that there is no general permitting requirement in

the statute or in its rules, and this too is false. TCEQ has authority to regulate solid

waste activities, but its authority is not unfettered. It is restricted by the terms of the

controlling Texas Health and Safety Code Chapter 361, and by TCEQ rules. Texas

Health & Safety Code § 361.061 grants TCEQ the power to require and issue

permits, while Texas Health & Safety Code § 361.086(a) expressly requires a

separate permit at each solid waste facility. The statute states, “[e]xcept as provided

in Subsection (d) [which does not apply here], a separate permit is required for each

16
TCEQ Brief at 10.
17
30 Tex. Admin. Code § 330.3(88) (“Municipal solid waste--Solid waste resulting from or
incidental to municipal, community, commercial, institutional, and recreational activities,
including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all
other solid waste other than industrial solid waste.”)

19
solid waste facility.” Read together, these sections require TCEQ permits at solid

waste facilities, unless an exception applies. Exceptions to the permit requirement

that allow or mandate registration are codified in the Health & Safety Code and have

been duplicated in the TCEQ rules.18 A permit is required if no exception applies.

TCEQ’s brief denies the existence of a general permitting requirement. This

is surprising, because this permit requirement has been repeatedly recognized and

documented by TCEQ in almost every imaginable way. It has been codified in

TCEQ rules, recited in Texas Register notices, and pronounced in TCEQ guidance

documents. TCEQ rule 330.7(a) codifies the general permit requirement and

requires a permit unless an exception to the permitting requirement is applicable to

the activities of the facility.19 These permitting exceptions allow solid waste

management activities to be authorized by registration, notification, or to be

completely exempt from permitting, registration, or notification.20

TCEQ acknowledged the permitting requirement applicable to processing

facilities, including transfer stations, when it refused to remove the word “transfer”

from the definition of “processing.” See 31 Tex. Reg. 2548 (reinserting “transfer”

back into the definition of “processing” to keep the permitting requirement for

18
See, e.g., Tex. Health & Safety Code 361.0861; Tex. Health & Safety Code 361.111(a)(1)–(4);
Tex. Health & Safety Code 361.092.
19
30 Tex. Admin. Code § 330.7(a) (relating to title, “Permit Required”).
20
30 Tex. Admin. Code §§ 330.9, 330.11, 330.13, and 330.25.

20
transfer facilities).21 TCEQ also recognizes the permitting requirement applicable

to transfer stations in its relevant regulatory guidance document, which plainly states

that a permit is required if a transfer station does not qualify for registration.22

There are limited exceptions to the permitting requirement that allow MSW

management activities to be authorized by registration, and these exceptions are

specifically enumerated in TCEQ’s registration rule 330.9.23 Upon adoption of

Rule 330.9 to allow registration instead of permitting, TCEQ pronounced that the

rule lists all of the permitting exemptions that are eligible for registration: “The

commission adopts new §330.9, Registration Required, to list all MSW management

activities that are exempt from permitting requirements but that still require

commission approval by registration.” (emphasis added).24 The generally applicable

permit requirement appears in the Health & Safety Code, the TCEQ rules, the Texas

21
The comment and response states in full: “Comment: HCPES [Harris County Attorney’s Office
and Harris County Public Health and Environmental Services, Pollution Control Division]
commented that the proposed deletion of the term “transfer” from the definition of processing
would change the meaning of §330.7(a) relating to Permit Required. By this proposed definition
change, transfer stations would no longer be required to obtain permits to operate. HCPES
stated that by their nature, transfer stations require agency and public review of the
permitting process unless exempted due to a location on an existing landfill or if they meet
registration requirements under §330.9(b). Response: The commission agrees with this
comment and has reinserted the term “transfer” back into the definition of processing in
response to these comments and also to be consistent with THSC, §361.003, Definitions.” 31 Tex.
Reg. 2548 (emphasis added).
22
See Initial Brief of Appellants, Appendix B (TCEQ Publication No. RG-469, Traditional
Municipal Solid Waste Disposal: A Guide for Local Governments (listing transfer station
registration exceptions in 330.9(b) and stating, “If none of these criteria can be met, a permit is
required”)).
23
30 Tex. Admin. Code § 330.9(b)–(p).
24
31 Tex. Reg. 2506 (emphasis added).

21
Register, and TCEQ guidance documents. Given its frequent appearance in relevant

authority, TCEQ’s argument against a permit requirement must fail.

3. Rules Are Rules: TCEQ Does Not Have the Authority to
Violate or Otherwise Ignore Its Rules.

Appellees argue that TCEQ has broad regulatory authority, implying that this

authority gives the agency license to expand the applicability of Rule 330.9(b)(3)

beyond the regulatory definition of transfer station to include materials recovery

operations. Appellees also argue that TCEQ has authority to ignore Rule 330.9(f),

which expressly applies to any transfer station with a materials recovery operation.

Furthermore, Appellees necessarily argue that TCEQ is not bound by its regulatory

definitions.

Appellees’ arguments fail because TCEQ must follow its rules, including

applicable definitions. The rules cannot be ignored; they cannot be selectively

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

regulation, the court must reverse the agency’s action as arbitrary and capricious.25

A rule’s plain language must be followed unless it is ambiguous.26 If a rule is

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

25
Gulf States Utilities, 809 S.W.2d at 207 (Tex. 1991); CenterPoint, 408 S.W.3d at 917.
26
CenterPoint, 408 S.W.3d at 916.

22
agency’s interpretation that is plainly erroneous or inconsistent with the regulation

or its underlying statutes.27

Appellees cite McDaniel v. TNRCC as support for the proposition that TCEQ

has the authority to issue registrations, but again, that issue is not in dispute here.

982 S.W.2d 650 (Tex. App.—Austin 1998, pet. denied). Appellants fully

acknowledge TCEQ’s authority to issue registrations. The point is that the TCEQ

must follow its rules when issuing a registration. McDaniel is an example of the

agency following its rules that were promulgated for registration: “[t]he TNRCC

acted in compliance with its own properly promulgated rules and issued the

requested registration.”28 However, the case is largely irrelevant because it involves

different registration rules (that were actually followed), different application

procedures, and different environmental concerns. McDaniel is a case about

beneficial application of sewage sludge that properly qualified for registration under

the applicable “Sludge Use, Disposal, and Transportation” rules, which are in an

entirely different chapter of TCEQ’s rules. 982 S.W.2d 650 (Tex. App.—Austin

2009, pet. denied); see also 30 Tex. Admin. Code § 312.

Worth noting, Appellee Pintail’s brief fails to mention the crucial fact that the

TNRCC’s registration rules were followed in McDaniel. This omission is

27
Id.
28
McDaniel v. TNRCC, 982 S.W.2d 650, 653 (Tex. App.—Austin 2009, pet. denied).

23
misleading, because the instant case is squarely about whether TCEQ followed its

applicable registration rules. Upon inspection, McDaniel supports the Appellant’s

position. Like other applicable case law, it acknowledges and applies the

requirement that rules must be followed: “[w]hen an agency fails to follow its own

rules, reversal and remand is required if a showing of harm or prejudice is made.”29

Unlike in McDaniel, in this case TCEQ did not follow its rules.

4. Don’t Believe the Hype: The Transfer Station/Materials
Recovery Facility Does Not And Could Not Qualify for a
Permit Exemption Under Rule 328, Because a Waste Stream
Is Not Recyclable Material.

This Facility is not exempt from permitting and registration requirements

under 30 Texas Administrative Code Chapter 328, because the Facility will accept

a stream of waste (which is not classified as recyclable material) and will separate

recyclable materials from that waste stream. Under the relevant rule, “[a] facility

that processes recyclable material that contains more than incidental amounts of non-

recyclable waste must obtain a permit or registration as applicable under Chapter

330 or Chapter 332 of this title unless the executive director approves its request for

alternative compliance.”30 The permitting and registration exception for facilities

29
Id. at 654.
30
30 Tex. Admin. Code § 328.4(d).

24
processing recyclable material is completely inapplicable to this case and serves only

to cause confusion.

A waste stream is not “recyclable material.” The permit and registration

exception under TCEQ rule 328.4 do not apply to this facility or this registration

because by its plain language, it addresses “recyclable material.” By definition,

“recyclable material” only ceases to be solid waste after it “has been recovered or

diverted from the nonhazardous waste stream” and is useful in the manufacture of

products.31 Because this Facility will accept a waste stream prior to separation of

recyclable materials out of that waste stream, it cannot qualify for the “recyclable

materials” permit exemption for its materials recovery/waste separation/recycling

facility. Guidance on TCEQ’s webpage confirms this interpretation of the rules by

stating, “[f]acilities that separate recyclable materials from a municipal solid waste

stream must be permitted or registered as a municipal solid waste processing facility

in accordance with 30 TAC Chapter 330, Section (§) 330.7 or 330.9” (emphasis in

original).32 As previously discussed, the Pintail facility does not qualify for

authorization by registration, so it must be permitted.

31
30 Tex. Admin. Code § 330.3(122) (“Recyclable material--A material that has been recovered
or diverted from the nonhazardous waste stream for purposes of reuse, recycling, or reclamation,
a substantial portion of which is consistently used in the manufacture of products that may
otherwise be produced using raw or virgin materials. Recyclable material is not solid waste.
However, recyclable material may become solid waste at such time, if any, as it is abandoned or
disposed of rather than recycled, whereupon it will be solid waste with respect only to the party
actually abandoning or disposing of the material.”)
32
C.R. at 505 (CALH and City’s Joint Motion for New Trial, page 13, Ex. 3).

25
 Additionally, “incidental amounts,” as referenced in rule 328.4(d), is defined

in the rules. This definition also confirms that the exception applies only to source-

separated recyclable materials, or material that at the point of generation, was

separated, collected, and transported separately from MSW waste.33 Finally, Pintail

admits that the recyclable materials permitting and registration exception does not

apply to the Facility, and that it was not claimed as authority. Pintail’s brief admits

that Pintail anticipated processing “more than an incidental amount of waste,” and

therefore, the permitting and registration exception for recyclable materials could

not apply.34 However, Pintail completely fails to inform the Court that it could not

have ever qualified for the permit and registration exemption because it will be

handling waste. Pintail’s Facility will accept a waste stream, not source-separated

recyclable materials used to make products. Because Pintail’s Facility is a materials

recovery facility that accepts a waste stream, it never could have qualified and this

provision is completely inapplicable and irrelevant to this case.

5. Not All Type V Facilities Are Equal. Transfer Facility ≠
Incinerator ≠ Material Recovery Facility.

33
See 30 Tex. Admin. Code § 328.2(3) (defining incidental amounts of non-recyclable waste as
no more than 10% of any incoming load and requiring reasonable efforts to maintain source-
separation of recyclable material from waste); see also 30 Tex. Admin. Code § 328.2(6) (defining
source-separated recyclable material as being recyclable material that has been at the point of
generation, separated, collected, and transported separately from MSW waste).
34
Pintail’s Brief at 20.

26
 Appellee Pintail’s argument relies on an audacious assertion that the

permitting exception used to register the Type V transfer station activities (30 Tex.

Admin. Code §330.9(b)) can be expansively utilized as registration authority for

materials recovery waste processing activities at the facility, and even more broadly,

for any additional activities included within the definition of a Type V facility.

Appellee implies that all Type V facilities are subject to the same regulatory

permitting requirements, but they are not. Type V facilities include all kinds of solid

waste processing. In addition to waste transfer activities, Type V facilities

incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, store, and process

solid waste in other ways. Conversely, a transfer station is separately defined in

TCEQ rules, and its definition only includes waste transfer activities.35 A transfer

station is a very narrow subset of all Type V facilities that merely performs a waste

transportation function.36 In short, a Type V transfer station and a Type V facility

are not the same thing. A transfer station is just one kind of Type V facility.

35
30 Tex. Admin. Code §330.3(157).
36
30 Tex. Admin. Code §330.5(a)(3) (“MSW facility - Type V. Separate solid waste processing
facilities are classified as Type V. These facilities include processing plants that transfer,
incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, and/or provide other storage or
processing of solid waste. Owners or operators shall follow the minimum design and operational
requirements prescribed in Subchapter E of this chapter (relating to Operational Standards for
Municipal Solid Waste Storage and Processing Units); Subchapter F of this chapter; Subchapter
G of this chapter; Subchapter H of this chapter, if required; Subchapter K of this chapter;
Subchapter L of this chapter, if financial assurance is required; Subchapter M of this chapter; and
Chapter 37, Subchapter R of this title, except that owners and operators of recycling facilities who
store combustible material are required to comply with Chapter 37, Subchapter J of this title
(relating to Financial Assurance for Recycling Facilities). Groundwater monitoring may be

27
 TCEQ regularly issues permits, rather than registrations, to Type V processing

facilities that store, process, compost, and recycle waste.37 Under Appellees’

erroneous reading, any company with knowledge of Pintail’s permitting loophole

could seek to avoid the permitting requirement in the same way that Pintail has. As

long as an applicant transferred less than 125 tons of MSW per day, there would be

no need to seek a permit for any other processing activities. The required permitting

process for Type V facilities that incinerate, shred, grind, bale, salvage, separate,

dewater, reclaim, and/or provide other storage or processing of solid waste could be

completely avoided and the affected public would not even have an opportunity for

hearing. This interpretation cannot be correct because it would undermine or even

eliminate the permitting requirement for Type V solid waste processing facilities.

II. THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY
AUTHORIZING THE FACILITY THROUGH REGISTRATION
RATHER THAN A PERMIT.

Appellees’ argument that due process was not violated hinges on the

erroneous assertion registration was appropriate and therefore, no statutory or rule-

required by the executive director and shall be maintained in accordance with the requirements of
Subchapter J of this chapter.”).
37
C.R. at 389 (CALH Reply Brief at 17) (citing MSW Permit No. 2382, issued May 1, 2014
(authorizing storage, processing, composting, and recycling recovered materials by permit); see
also MSW Permit No. 2379, issued November 9, 2012 (authorizing storage, processing, and
recycling recovered materials by permit). At the time CALH filed its Reply Brief in the District
Court proceeding, both of these permits were available on TCEQ’s webpage titled “Municipal
Solid Waste Applications Posted on the Internet.” Because they are no longer posted on the
TCEQ’s webpage at this time, a copy of each permit is provided in Appendix B.

28
based right to a contested case hearing was denied. However, because a permit is

required, affected persons do have a statutory right to a contested case hearing.38

Additionally, affected persons have a right to a contested case hearing under TCEQ

rules.39 Where there is a statutory right to a hearing and a right to a hearing under

applicable rules, denial of the hearing is a violation of procedural due process.40

CALH and the City are both parties in the ongoing contested case hearing for

the Pintail Landfill at the same location as this Facility. CALH members and City

of Hempstead have property interests that would be affected by the proposed facility.

For example, CALH has members that reside adjacent to the proposed location and

rely on water wells as their sole source of domestic water, and the City supplies

water to its residents from wells located near the Facility. The Facility is also located

within the City’s extraterritorial jurisdiction. In a contested case proceeding, the

presiding judge has the authority to make the determination of affected status to

identify parties.41 Typically, the facts above would be sufficient to demonstrate

38
See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079, 361.0791,
and 361.081 (relating to various application notice requirements, published notice requirements,
mailed notice requirements, hearing notice requirements, and contested case hearing requirements
for MSW permit applications).
39
30 Tex. Admin. Code § 55.201(b)(4); 30 Tex. Admin. Code § 55.203.
40
County of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex. 2007) (holding that “the deputies were
discharged without the hearing before the civil service commission promised by system rules to
determine whether just cause existed, and thus they were denied procedural due process.”)
(emphasis added).
41
See 30 Tex. Admin. Code § 80.109(a) (“Determination by judge. All parties to a proceeding
shall be determined at the preliminary hearing or when the judge otherwise designates.”); 30 Tex.
Admin. Code § 80.109(b)(5) (“Affected persons shall be parties to hearings on permit applications,

29
affected status. These examples are presented for illustration of Appellants’

interests.

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

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

statutorily granted due process rights to notice and a contested case hearing by virtue

of the Texas Health and Safety Code.42 Here, the issuance of a registration when a

permit was required denied members of CALH, the City, and all other affected

persons their right to notice and a contested case hearing, as required under the

Health and Safety Code for MSW permit applications.43

III. ALWAYS KEEP YOUR WORD: THE REGISTRATION SHOULD BE
REVERSED BECAUSE TCEQ ALLOWED AN EXCESSIVE
NUMBER OF NOTICES OF DEFICIENCY WELL BEYOND ITS
PUBLICLY PRONOUNCED POLICY.

The Notice of Deficiency (“NOD”) policy that was reported in the TCEQ

Sunset Evaluation Report to the Texas Legislature, instructed to TCEQ staff in

internal TCEQ procedural documents for registration, and stated in external

correspondence to applicants should be binding on the agency. Appellees argue that

TCEQ’s public statements to the legislature, the public, applicants, and their own

based upon the standards set forth in §55.29 and §55.203 of this title (relating to Determination of
Affected Person.”).
42
See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079, 361.0791,
and 361.081 (relating to various application notice requirements, published notice requirements,
mailed notice requirements, hearing notice requirements, and contested case hearing requirements
for MSW permit applications).
43
See id.

30
staff reviewers cannot bind the agency, because the statements were not officially

promulgated under the APA as rules. However, the interest of justice requires the

TCEQ to be bound by its universally professed NOD policy pronouncements that

were made in promises to the legislature, declarations to applicants, instructions to

its staff, and assurances to the public. Appellees argue that the NOD policy should

not be binding on the agency because enforcement of the well-publicized policy

would have undesirable results, but the converse is true. The only fair remedy in

this situation is to enforce the NOD policy that TCEQ professed to follow. Any

other course of action would cause harm to the public, to the agency, to the regulated

community, to the TCEQ staff, to the Texas legislature, and to taxpayers.

The public deserves to have confidence that the TCEQ applies its stated

policies, including the two NOD policy, to all applicants in a uniform manner.

Allowing TCEQ to disregard its own NOD policy would undermine public

confidence in the agency, and ultimately harm the agency’s reputation. The

regulated community deserves to have a uniform process in which applicants are all

treated equally. Allowing the TCEQ to selectively disregard its stated NOD policy

harms the regulated community and threatens the environment by allowing facilities

to be operated by companies that lack the competence to complete an application as

required without excessive NODs. Agency management also suffers reputation

damage in such a scenario, because they are forced to say one thing and do another.

31
Additionally, allowing the NOD policy to be disregarded is unfair to agency staff

members, who will be unable to rely on the plain letter of the policy instructions they

are issued. Finally, disregarding the NOD policy is unfair to the Texas legislature

and the taxpayers whose dollars support the agency’s activities. TCEQ should be

held to its two NOD policy, which was intended to promote efficiency within the

agency. Allowing the NOD policy to be disregarded undermines the purpose of the

policy altogether – to ensure efficient review of applications. Efficient application

review saves taxpayer dollars and expedites review for applicants. TCEQ cannot be

allowed to disregard its NOD policy. Such a decision would be unfair to all

participants, and would merely enable the TCEQ to waste taxpayer and applicant

resources with unnecessarily lengthy application reviews.

Worthy of note, returning a deficient application is not unprecedented.

Counsel is aware of two examples referenced in briefing at the administrative level

for this registration application alone.44 Indeed, this Court dismissed an untimely

appeal of one of these returned applications.45

Appellees argue that it was reasonable to continue to send Pintail NODs in

violation of the TCEQ’s publicly pronounced policy, because new requests for

information were being made. However, the record shows that Pintail repeatedly

44
R.R. at Joint Ex. 1, AR Vol. 7, Item 48, p. 5–6 (Motion to Overturn Executive Director’s August
16th, 2012 Issuance of a Fifth Notice of Deficiency).
45
Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 SW.3d 91 (Tex. App.—Austin 2009).

32
failed to adequately respond to TCEQ’s NOD requests, exceeding the two NOD

limit for the same TCEQ requests. TCEQ should only be allowed two NODs, in

accordance with its stated policy, but even if the two NOD limit was measured by

the subject matter of each question asked, TCEQ still exceeded its policy. As

demonstrated by the highlighted portions of Appendix A, TCEQ repeated a number

of NOD requests more than twice, and Pintail did not adequately respond to the

requests within the two NOD limit.

The subject matters of the lengthiest requests follow. The registration

application failed to include the required construction details of subsurface supports

of all storage and processing components and failed to include the required review

letter from the Texas Historical Commission.46 TCEQ’s requests for both of these

NOD items were made on October 27, 2011, again on February 17, 2012, and for a

third time on April 12, 2012, in violation of the two NOD policy. The required

information from Texas Department of Transportation was only provided after

TCEQ requested it in five NODs. This information was requested on October 27,

2011, again on February 17, 2012, for a third time on April 12, 2012, for a fourth

time on June 25, 2012, and for a fifth time on August 16, 2012. Even after all of

these requests, there was still another TCEQ request for additional information,

46
See Appendix A: NOD letters from TCEQ and Supplementary Information transmittal letter
from Pintail dated Oct. 18, 2012. R.R. at Joint Ex. 1, AR Items 3, 13, 22, 24, 32, 39, 51).

33
which was responded to on October 18, 2012, providing a new Facility Boundary

Map and new information about nearby water wells, springs, surface water bodies,

and oil and gas wells. The agency should not be allowed to write Pintail’s

registration application for them. This registration application should have been

returned.

34
 PRAYER

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

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

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

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

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

TCEQ for further proceedings consistent with this Court’s opinion. CALH and the

City further pray for all other and further relief, both general and special, at law and

in equity, to which they may be justly entitled.

Respectfully submitted,

HANCE SCARBOROUGH, LLP
400 W. 15th Street, Ste. 950
Austin, TX 78701
Telephone: (512) 479-8888
Facsimile: (512) 482-6891

By: _______________________
Terry L. Scarborough
State Bar No. 17716000
Michael L. Woodward
State Bar No. 21979300
mwoodward@hslawmail.com
V. Blayre Pena
State Bar No. 24050372
bpena@hslawmail.com
Wesley P. McGuffey
State Bar No. 24088023
wmcguffey@hslawmail.com

35
 ATTORNEYS FOR APPELLANTS CITIZENS
AGAINST THE LANDFILL IN HEMPSTEAD,
MICHAEL MCCALL, AND WAYNE KNOX

KELLY HART & HALLMAN LLP
301 Congress Avenue, Suite 2000
Austin, Texas 78701
Telephone: (512) 495-6400
Facsimile: (512) 495-6401

By: /s/ Diana Nichols
Monica M. Jacobs
State Bar No. 24007433
Monica.Jacobs@kellyhart.com
Diana L. Nichols
State Bar No. 00784682
Diana.Nichols@kellyhart.com

ATTORNEYS FOR THE CITY OF
HEMPSTEAD

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
brief contains 6,788 words. This is a computer generated document created in
Microsoft Word, using 14 point typeface for all text, except for footnotes, which are
in 12-point typeface. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.

Terry L. Scarborough

36
 CERTIFICATE OF SERVICE
I hereby certify that a copy of Reply Brief of Appellants’ was served on the

following counsel of record on April 16, 2015, via certified mail, return receipt

requested, and/or the electronic filing system:

Nancy Elizabeth Olinger
Nancy.Olinger@texasattorneygeneral.gov
Cynthia Woelk
Cynthia.Woelk@texasattorneygeneral.gov
Daniel C. Wiseman
Daniel.Wiseman@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Environmental Protection Division (MC-066)
P.O. Box 12548
Austin, TX 78711-2548
ATTORNEYS FOR TCEQ

Paul R. Tough
ptough@msmtx.com
Brent W. Ryan
bryan@msmtx.com
MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP
P.O. Box 12127
Austin, TX 78711

Michael S. Truesdale
LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
801 West Avenue, Suite 201
Austin, TX 78701
ATTORNEYS FOR THE PINTAIL LANDFILL, LLC

Terry L. Scarborough

37
APPENDIX A
Bryan W. Shaw) Ph.D., Chair111an
Buddy Garcia, Co1n1nissioner
Carlos Rubinstein, Convnissioner
Mark R. Vickery, P.G .1 Executive Directo1·

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Prote.cting Texas by Reducing and Preventing Pollution

August 15, 2011

Mr. Ernest Kaufmann
Pintail Landfill, LLC
24644 Highway 6
Hempstead, Texas 77445

Re: Pintail landfill Transfer Station - Waller County
Municipal Solid Wasle (MSW) - Registration No. NA
Registration Application (RA) - Preliminary Review
T1·acking Nos. 14835575 & 14874930; RN: NA/ CN603939349

Dear Mr. Kaufmann:

The MSW Permits Section has completed a preliminary review of the RA dated Angust 1, 2011,
and the revisions dated August 8, 2011, for a Type VTransfer Station. Additional information is
necessary to comply with the application requirements of Title 30 of the Texas Administrative
Code (30 TAC) Chapter 305 and Chapter 330. The information requested below must be
provided prior to fillther application review. When maldng revisions to maps, drawings, and
figures which are repeated throughout the application, each map, drawing, and figure must be
revised throughout the application.

1. It is not clear whether the person who signed U1e signature page located on page 10 ofTCEQ
Form No. 0650 meets the requirements of 30 TAC Section (§)305.44 (relaling to Signatories
to Applications). Please include documentation that the person who signs the signature
page has the signing qualifications as specified iu 30 TAC §305.44, §s30.59(g), and Section
G ofTCEQ Form No. 0650.

2. The text within U1e property owner affidavit located on page 9 of TCEQ Form No. 0650 has
been modified to state that the property owner shall not be held responsible for the
operation, maintenance, and closure and pOS'HJosure care of the facility.. Please note that in
accordance with 30 TAC §s30.59(d)(2)(A) the property owner affidavit must include an
acknowledgment that the State of Texas may hold the property owner of record either jointly
or severally responsible for the operation, maintenance, and closure and post-closure care of
the facility. In addition, please note that the text within the properly owner affidavit should
not be modified from the original text contained within page 9 ofTCEQ Form No. 0650.
Please resubmit a properly completed property owner affidavit with your next submittal.
Please ensure that the standard text within the property owner affidavit will not be modified.

3. Part V of the TCEQ Core Data Form (TCEQ Form No. 10400) does not include the date that
the form was signed. Please revise Part VofTCEQ Form No.10400 to include the date that
the form was signed.

1) .0. Box 13087 • A1rntin, Texas 78711-3087 ° 512-239-1000 .. www.tceq.texas.gov
How fa our custo1ner service'~ wvvvv.tceq.texas.gov/goto/c11ston1ersurvey
Mr. Ernest Kaufmann
Page 2
August 15, 2011

4. Part I of the RA does not include a listing of all permits or construction approvals received or
a1Jplied for. In accordance vrith 30 T_,_a_._c §305.45(a)(7), please revise Part I oftl1e RA to
include a listing of all permits or construction approvals received or applied for in
accordance with the cited rule. For those permits listed in §305.45(a)(7), please indicate
whether the applicant has applied, received approval, or whether it is not applicable.

Please submit an original and three (3) copies of the application revisions within fourteen (14)
days of the date of this letter. Your response must be in a fonn that allows for the replacement
of application pages with revised pages. According to 30 TAC §s30.57(g)(6), revisions must
have a revision date and note that the sheet is revised in the header or footer of each revised
sheet or page. Since your application is under a preliminary review, please use the label,
"Pl·elim-Review #(date)" ill the headel' or footer to identify your NOD response.

Please complete Pages 1 and 2 of the Part I Form to include with your response and mark the
boxes to indicate that your response is a "Notice of Deficiency Response" for the "Registration
Application." In accordance with 30 TAC §§281,5(1) and 305-44, please also include a new,
original signature page, Page 10 of the Part I Form, as part of your response. Along with the
original signature, the certification statement should indicate the name, title, and address of the
responsible official. This form and the Core Data Form are available on our Website at:
http:/ /Vl"AW. tceq.state. tx. us/permitting/waste_permits/msw_permits/
perm_reg:_Jnod.html#all.

Failure to submit the requested information will result in the application being returned to the
applicant. If you have any questions, please contact me at (512) 239-2580. Please include the
mail code MC 124 when you address written correspondence.

Sincerely,

u M. b J4E'. ·~
RU en eza, r.,