ACCEPTED
03-15-00446-CV
7820211
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/13/2015 12:45:45 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00446-CV
FILED IN
IN THE 3rd COURT OF APPEALS
AUSTIN, TEXAS
11/13/2015 12:45:45 PM
THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
AT AUSTIN
BAXTER OIL SERVICE, LTD.
Appellant
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
Appellee.
Appeal from the 345th Judicial District Court,
Travis County, Texas
APPELLEE’S BRIEF
KEN PAXTON PRISCILLA M. HUBENAK
Attorney General of Texas Chief, Environmental
Protection Division
CHARLES E. ROY
First Assistant Attorney THOMAS H. EDWARDS
General Lead Counsel
Assistant Attorney General
JAMES E. DAVIS Tex. Bar No. 06461800
Deputy Attorney General for Thomas.Edwards@TexasAttorney
Civil Litigation General.gov
cont.
CRAIG J. PRITZLAFF
Assistant Attorney General
Tex. Bar No. 24046658
Craig.Pritzlaff@TexasAttorney
General.gov
Office of the Attorney General
Environmental Protection
Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
ATTORNEYS FOR APPELLEE,
TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY
-ii-
IDENTITY OF PARTIES & COUNSEL
Appellee would supplement Appellant’s list of counsel, as follows:
PARTY ATTORNEYS
Texas Commission on KEN PAXTON
Environmental Quality Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney
General
JAMES E. DAVIS
Deputy Attorney General for
Civil Litigation
PRISCILLA M. HUBENAK
Chief, Environmental
Protection Division
THOMAS H. EDWARDS
Lead Counsel
Assistant Attorney General
Tex. Bar No. 06461800
Thomas.Edwards@
TexasAttorneyGeneral.gov
-iii-
CRAIG J. PRITZLAFF
Assistant Attorney General
Tex. Bar No. 24046658
Craig.Pritzlaff@
TexasAttorneyGeneral.gov
Office of the Attorney General
Environmental Protection
Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
-iv-
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iii-
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -x-
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xvii-
STATEMENT ON ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . -xviii-
ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xix-
STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issue 1: Under existing precedent, the Order is final, unappealable,
and immune from collateral attack. (Response to Section II of
Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The order was final and appealable shortly after it was issued. . . 6
B. Baxter received actual notice of the Order. . . . . . . . . . . . . . . . . . . . . 7
C. The deadline for appeal has passed and the Order is now
unappealable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. The statutory deadline is jurisdictional. . . . . . . . . . . . . . . . . . . . . . . . 8
E. The Order is not subject to collateral attack. . . . . . . . . . . . . . . . . . . . 9
-v-
F. Any exceptions that might allow collateral attack do not apply
here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issue 2: Baxter received adequate Due Process. (Response to Sections
I.C and I.D of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. The Order is not misleading, provides adequate information
and is not void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. The Order provides ample information about the Site
and the parties involved.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. The TCEQ is not required to include appellate advice
in its orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. The Order did not mislead expressly or by
implication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Baxter seeks to expand its rights under the Due Process
Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. The personal service requirement has been met. . . . . . . . . . . 18
2. The Order meets the three-part balancing test of
Mathews v. Eldridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
a. The first factor—the private interest that will be affected by the
official action—weighs heavily against Baxter .. . . . . . . . . . . 22
-vi-
b. The second factor—the risk of erroneous deprivation and
probable value, if any, of additional or substitute
safeguards–weighs against Baxter . . . . . . . . . . . . . . . . . . . . . 24
c. The third factor—the public interest—weighs decisively
against Baxter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3. The Mathews test has not been universally applied. . . . . . . . . 29
4. The Gonzalez line of cases is distinguishable.. . . . . . . . . . . . . . 30
a. Gonzalez involved incorrect notice rather than a lack of notice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
b. The Gonzalez precedents are not binding but are “congruent”
with Texas law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
c. In any event, the present case does not fall under the
Gonzalez/Loudermilk precedent.. . . . . . . . . . . . . . . . . . . . . . . 34
C. Any Due Process notice violation has been cured by
subsequent correct notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
D. The cases that Baxter cites are inapposite. . . . . . . . . . . . . . . . . . . . . 37
1. Cases involving the absence of notice, rather than the
adequacy of notice, are inapposite. . . . . . . . . . . . . . . . . . . . . . . 38
2. Cases involving service at the commencement of an
action are inapposite. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
-vii-
3. Cases involving significant events during a
proceeding are inapposite. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4. Cases involving administrative decisions without an
appealable final order are irrelevant. . . . . . . . . . . . . . . . . . . . . 41
5. Due Process may enhance statutory notice
requirements, but the cited cases are inapposite. . . . . . . . . . . 43
Issue 3: Even if the Order had been issued in violation of Due Process
it is not void but merely voidable—and it still must be timely
appealed for the courts to have jurisdiction. (Response to both
sections of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
A. Even if the Order was misleading and had been issued in
violation of Due Process, it was not void; it still had to be
timely appealed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. The courts cannot acquire jurisdiction by mistake or
accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2. The courts cannot acquire jurisdiction because a
party did not understand the law.. . . . . . . . . . . . . . . . . . . . . . . 47
3. The courts cannot gain jurisdiction by consent or
through estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4. The Texas rule concerning misleading notice is not
universally followed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
B. Baxter’s cited cases do not support the proposition that the
Order is void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
-viii-
1. Security State Bank and Trust involved a complete lack
of notice rather than incomplete notice. . . . . . . . . . . . . . . . . . . 51
2. New York Life Insurance involved service at the wrong
address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3. In re Guardianship of B.A.G. involved a court’s lack of
personal jurisdiction rather than notice of a right to
appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
APPENDIX
-ix-
INDEX OF AUTHORITIES
CASES
Alamo Express, Inc. v. Union City Transfer, 309 S.W.2d 815 (Tex. 1958).. . . . 10
Barrera-Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996). . . . . . . . . . 38
Baxter v. Colvin, 14-CV-01306-WHO, 2014 WL 6985149 (N.D. Cal. Dec.
10, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Boddie v. Connecticut, 401 U.S. 371 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Bradford v. Edelstein, 467 F. Supp. 1361 (S.D. Tex. 1979). . . . . . . . . . . . . . . . . 41
Brooks v. Apfel, 71 F. Supp. 2d 858 (N.D. Ill. 1999). . . . . . . . . . . . . . . . . . . 32, 33
Browning v. Prostok, 165 S.W.3d 336 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . 9
Butland v. Bowen, 673 F. Supp. 638 (D. Mass. 1987). . . . . . . . . . . . . . . . . . . . . 49
Castillo v. State, No. 03-11-00503-CV, 2012 WL 3793276 (Tex. App.—
Austin Aug. 29, 2012, no pet.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . 10
Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv.
Comm’n, 124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied). . . . 11,
17
Chow v. Dole, 677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no
writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-x-
City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399 (Tex. App.—
Austin 2008, no pet.), rev’d on other grounds, 392 S.W.3d 88 (Tex.
2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
City of Dallas v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011). . . . . . . . . . . . 33, 37, 43
City of W. Covina v. Perkins, 525 U.S. 234 (1999). . . . . . . . . . . . . . . . . . . . . . . . 42
City of Waco v. Roddey, 613 S.W.2d 360 (Tex. App.—Waco 1981, no writ)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Cleveland Bd. of Educ. v. Donnelly, 470 U.S. 532 (1985).. . . . . . . . . . . . . . . . . . 43
Corzelius v. Harrell, 186 S.W.2d 961 (Tex. 1945). . . . . . . . . . . . . . . . . . . . . . . . . 9
Crawford v. McDonald, 33 S.W. 325 (Tex. 1895).. . . . . . . . . . . . . . . . . . . . . . . . . 9
Daniel v. Dallas Indep. Sch. Dist., 351 S.W.2d 356 (Tex. Civ. App.—El
Paso 1961, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Dusenbery v. United States, 534 U.S. 161 (2002). . . . . . . . . . . . . . . . . . . . . . . . . 42
Fed. Commc’ns Comm’n v. Pottsville Broad. Co., 309 U.S. 134 (1940). . . . . . . . 42
Fuentes v. Shevin, 407 U.S. 67 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Goldberg v. Kelly, 397 U.S. 254 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . 30-32
Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668 (Tex. App.—Austin
1990, writ denied) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
-xi-
Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192 (Tex. App.—Austin 1996,
no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Hess & Clark, Div. of Rhodia, Inc. v. Food & Drug Admin., 495 F.2d 975,
983 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Houston v. Fore, 412 S.W.2d 35 (Tex. 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
In re Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi
1990, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50, 54, 55
In re Ruffalo, 390 U.S. 544 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). . . . . . . . . 26
Jolly v. State, 856 S.W.2d 859 (Tex. App.—Austin 1993, writ denied).. . . . . 10
Jones v. Flowers, 547 U.S. 220 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
L.B.L. Oil Co. v. Int’l Powers Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (per
curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Langdale v. Villamil, 813 S.W.2d 187 (Tex. App.—Houston [14th Dist.]
1991, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.—Texarkana 2000, no
pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). . . . . . . . . . . . . . . . . . . . . 43
Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) (per curiam). . . . . . . . . . . . . . . . . 40
-xii-
Loudermilk v. Barnhart, 290 F.3d 1265 (11th Cir. 2002).. . . . . . . . . . . . . . . . . . 32
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . 32
M.E.K. v. R.L.K., 921 So.2d 787 (Fla. Dist. Ct. App. 2006). . . . . . . . . . . . . . . . 29
Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . 19-22, 24, 26, 27
Medina v. California, 505 U.S. 437 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1 (1978).. . . . . . . . . . . . . 41
Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). . . . . . . . . . . . . . . . . 51
Misium v. Misium, 902 S.W.2d 195 (Tex. App.—Eastland 1995, writ
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Moss v. Malone, 880 S.W.2d 45 (Tex. App.—Tyler 1994, writ denied). . . . . 40
Mosser v. Plano Three Venture, 893 S.W.2d 8 (Tex. App.—Dallas 1994, no
writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950). . . . . . . . 18, 19
N. Alabama Exp., Inc. v. United States, 585 F.2d 783 (5th Cir. 1978). . . . . . . . 42
Navato v. Sletten, 560 F.2d 340 (8th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . 42
New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996). . . . . 17, 41, 50, 53
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988). . . . . . . . . . . . . . . . . . 38, 51
-xiii-
Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240 (Tex. 1974). . . . . . . . . . . 29
PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012). . . . . . . . . . . . . . . . . . . 52
Potvin v. Keller, 313 So.2d 703 (Fla. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pub. Util. Comm’n of Tex. v. Allcomm Long Distance, Inc., 902 S.W.2d 662
(Tex. App.—Austin 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rotello v. State, 492 S.W.2d 347 (Tex. Civ. App.—Houston [1st Dist.]
1973, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Sec. State Bank & Trust v. Bexar Cnty., 397 S.W.3d 715 (Tex. App.—San
Antonio 2012, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50-52
Sierra Club v. U.S. Nuclear Regulatory Comm’n, 862 F.2d 222 (9th Cir.
1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Alcoholic Beverage Comm’n v. Sfair, 786 S.W.2d 26 (Tex. App.—San
Antonio 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Tex. Comm’n on Envtl. Quality v. Exxon Mobil Corp., et al., No. 03-14-
00667-CV (Tex. App.—Austin 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 27
Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App.—
Austin 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655 (Tex.
App.—Austin 1997, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex.-N.M. Power Co. v. Tex. Indus. Energy Consumers, 806 S.W.2d 230
(Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-xiv-
TJFA, L.P. v. Tex. Comm’n on Envtl. Quality, 368 S.W.3d 727 (Tex.
App.—Austin 2012, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . 34, 35
Tramco Enters., Inc. v. Indep. Am. Sav. Ass’n, 739 S.W.2d 944 (Tex.
App.—Fort Worth 1987, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Valero S. Tex. Processing Co. v. Starr Cnty. Appraisal Dist., 954 S.W.2d
863 (Tex. App.—San Antonio 1997, pet. denied). . . . . . . . . . . . . . . . . . . 44
Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . 40
Walker v. City of Hutchinson, Kan., 352 U.S. 112 (1956). . . . . . . . . . . . . . . . . . 38
Walter West, P.E. v. Tex. Comm’n on Envtl. Quality, 260 S.W.3d 256 (Tex.
App.—Austin 2008, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Williams v. Holley, 653 S.W.2d 639 (Tex. App.—Waco 1983, writ ref’d
n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001). . . 48
Wolff v. McDonnell, 418 U.S. 539 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
STATUTES
42 U.S.C. § 405(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
42 U.S.C. § 423(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tex. Gov’t Code § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-xv-
Tex. Health & Safety Code § 361.188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 27
Tex. Health & Safety Code § 361.276. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Tex. Health & Safety Code § 361.321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Tex. Health & Safety Code § 361.321(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 37
Tex. Health & Safety Code § 361.322(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Tex. Health & Safety Code § 361.322(a), (g)-(h), (i)-(k).. . . . . . . . . . . . . . . . . 28
Tex. Health & Safety Code § 361.343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Tex. Health & Safety Code §§ 361.181-.188.. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tex. Occ. Code § 1101.705(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Tex. Occ. Code § 1101.706(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Tex. Water Code § 5.351.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RULES
Tex. R. App. P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. App. P. 39.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xviii-
ADMINISTRATIVE MATERIALS
5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 48-10 (1988).. . . . . . 7
-xvi-
STATEMENT OF THE CASE
Appellee would add the following to Appellant’s statement:
The trial court order being appealed from is the Order Granting
TCEQ’s Plea to the Jurisdiction as to Baxter’s Motion for Summary
Judgment, CR 1952.
-xvii-
STATEMENT ON ORAL ARGUMENT
Oral argument would not assist in the determination of this appeal.
The dispositive issues have been authoritatively decided and the facts and
legal arguments will be adequately presented in the briefs and the record.
Tex. R. App. P. 39.1.
If oral argument is granted to Appellant, then Appellee asks to partici-
pate.
-xviii-
ISSUES PRESENTED FOR REVIEW
Issue 1: Under existing precedent, the Order is final, unappealable, and
immune from collateral attack. (Response to Section II of Appellant’s Brief.)
Issue 2: Baxter received adequate Due Process. (Response to Sections
I.C and I.D of Appellant’s Brief.)
Issue 3: Even if the Order had been issued in violation of Due Process
it is not void but merely voidable—and it still must be timely appealed for
the courts to have jurisdiction. (Response to both sections of Appellant’s
Brief.)
-xix-
STATEMENT OF FACTS
The trial court granted the Appellee’s Plea to the Jurisdiction and
dismissed the Appellant’s Motion for Summary Judgment based upon
jurisdictional facts, not upon the merits of the case. Appellant offers
statements going to the merits of its defense, but these are not “facts
pertinent to the issues,” within the meaning of Tex. R. App. P. 38.1(g).
Accordingly, Appellee offers the following Statement of Facts:
(The Administrative Record for this case is on a 32 GB flash drive that
has previously been provided to this Court in another appeal: Tex. Comm’n
on Envtl. Quality v. Exxon Mobil Corp., et al., No. 03-14-00667-CV (Tex.
App.—Austin, 2015). Pertinent pages from that record are attached to this
brief in the Appendix; they will be cited as AR ___.)
From 1982 to 2008, Appellee the Texas Commission on Environmental
Quality (“TCEQ”) conducted environmental investigations of a site in
Gregg County, Texas, that came to be known as the Voda Petroleum, Inc.
State Superfund Site (“Site”). These inspections started when the Site was
1
in operation as a waste oil recycling facility, CR 1191-1201, and continued
as Superfund investigations after the Site was abandoned, CR 1201-04,
1215-18. The Appellant, Baxter Oil Service, Ltd. (“Baxter”), was notified of
the proposed listing of the Site on the State Registry of Superfund sites, AR
30601-05; of a public meeting and opportunity to comment on the pro-
posed remedy, AR 17912-18, 17945-54; and of the opportunity to fully fund
or perform the remedial activities and clean up the Site, AR 33053-64.
The TCEQ issued an administrative order (“Order”) concerning the
Site on February 12, 2010. CR 1596-1675, 1657. The Order named Baxter as
one of the “potentially responsible parties” for the Site. CR 1596-1612, 1598.
The Order found that the Site had to be cleaned up and concluded that the
potentially responsible parties were “responsible parties” under the law.
Order sec. III.A at CR 1616. Following a motion for rehearing, the Order
became final by operation of law on April 8, 2010. AR 10.
Copies of the Order were sent to the named parties, including Baxter,
by Certified Mail on February 19, 2010. CR 1676-94, 1679. Baxter received
2
the Order on or about February 26, 2010. CR 1695.
Various parties appealed the Order by filing petitions for judicial
review in the district courts of Travis County. Those cases were consoli-
dated into the present case in the 345th Judicial District. CR 221-35. The
TCEQ filed a counter-petition and third-party petition seeking cost recov-
ery against the parties named in the Order, including Baxter, and other
parties not named in the Order. CR 283-424, 303. Baxter filed an Original
Answer, containing general and verified denials. CR 578-81. However,
Baxter did not request judicial review of the Order. Id. Baxter has never
requested judicial review of the Order.
Baxter filed a motion for summary judgment seeking to be dismissed
on the grounds that it had not shipped solid waste to the Site and lacked
the requisite intent to dispose, and thus was not liable under the law. CR
1458-1581, 1461. The TCEQ filed a plea to the jurisdiction asserting that the
Order was final and unappealable as to Baxter and was therefore not
subject to collateral attack. CR 1582-1703. Baxter responded that the Order
3
violated Due Process, was void, and could be collaterally attacked. CR
1843-86. The Court granted the TCEQ’s plea and dismissed Baxter’s motion
for summary judgment. CR 1952. Baxter appealed. CR 1953-55.
4
SUMMARY OF THE ARGUMENT
The Order is final and unappealable because Baxter was served with a
copy of the Order but has never filed a petition for review, and the statu-
tory waiver of sovereign immunity for the review has expired. Baxter seeks
to collaterally attack the Order through a motion for summary judgment,
but the District Court lacks jurisdiction to consider that action.
Baxter asserts that the Order violates the Due Process Clause, and is
void, because it fails to advise parties of the consequences of the Order and
of their right to appeal. However, the Order is detailed and specific, and
TCEQ is not required to provide advice to parties about their right to
appeal. Any Due Process violation related to lack of notice has been cured
because the Order has been served on Baxter several times.
Even if the Order violated Due Process, it is not void but merely
voidable. It still must be appealed within the statutory deadlines, if the
courts are to have jurisdiction.
5
ARGUMENT
I.
Issue 1: Under existing precedent, the Order is final, unappealable,
and immune from collateral attack. (Response to Section II of Appellant’s
Brief.)
In this case the Appellant seeks to collaterally attack a final administra-
tive order after the statutory deadline for appealing the order has passed.
This attack is barred by sovereign immunity. The courts lack jurisdiction to
consider such an action except under a specific waiver of sovereign immu-
nity, and that waiver has expired.
A. The order was final and appealable shortly after it was
issued.
The Order became final and appealable when a motion for rehearing
was overruled by operation of law on April 8, 2010. See AR 10. “Adminis-
trative orders are generally final and appealable if ‘they impose an obliga-
tion, deny a right or fix some legal relationship as a consummation of the
administrative process.’” Tex.-N.M. Power Co. v. Tex. Indus. Energy Consum-
6
ers, 806 S.W.2d 230, 232 (Tex. 1991), quoting Sierra Club v. U.S. Nuclear
Regulatory Comm’n, 862 F.2d 222, 224 (9th Cir. 1988). “[C]ourts … should
treat as final a decision ‘which is definitive, promulgated in a formal
manner and one with which the agency expects compliance.’” Tex.-N.M.
Power Co., id., quoting 5 J. Stein, G. Mitchell & B. Mezines, Administrative
Law 48-10 (1988). This Order meets those criteria. It was timely appealed by
many parties in this case, as shown by the papers on file herein, and its
appealability at that time has not been disputed.
B. Baxter received actual notice of the Order.
Baxter received a copy of the Order by certified mail shortly after it
was issued. CR 1695. Thus, Baxter was notified both of the contents of the
Order and the fact that it had been issued. Precedents involving lack of
service, inadequate service, or lack of capacity to be served are irrelevant to
the current case because Baxter had both notice and capacity.
C. The deadline for appeal has passed and the Order is now
unappealable.
The deadline for filing an appeal of a Superfund order issued under
7
Tex. Health & Safety Code § 361.188 is “the 30th day after the date of the
ruling, order, decision, or other act of the governmental entity whose
action is appealed,” id. § 361.321(c). 1 That deadline has long since passed.
Accordingly, the Order is final and unappealable as to Baxter, and all its
findings and conclusions are binding upon Baxter as a matter of law.
D. The statutory deadline is jurisdictional.
The courts lack jurisdiction to consider a late-filed petition for judicial
review of an administrative order. Tex. Comm’n on Envtl. Quality v. Kelsoe,
286 S.W.3d 91, 97 (Tex. App.—Austin 2009, pet. denied) (petition for
judicial review filed after statutory deadline “was untimely and did not
invoke the trial court’s jurisdiction over any of [the petitioner’s] com-
plaints.”) (citations omitted). Accord, TJFA, L.P. v. Tex. Comm’n on Envtl.
Quality, 368 S.W.3d 727, 736 (Tex. App.—Austin 2012, pet. denied). See also,
Walter West, P.E. v. Tex. Comm’n on Envtl. Quality, 260 S.W.3d 256, 263 (Tex.
1
The correct section of the Health and Safety Code under which this Order should
be appealed is an issue currently under consideration by this Court. See infra notes 2-3
and accompanying text. However, under either possible section, the deadline has
passed.
8
App.—Austin 2008, pet. denied) (petitions for judicial review of TCEQ
decision, not filed within 30-day deadline under Tex. Water Code § 5.351,
were untimely and this failure “deprived the trial court of jurisdiction to
consider appellants’ petitions for judicial review.”) (citations omitted). See
also Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit … are
jurisdictional requirements in all suits against a governmental entity.”).
E. The Order is not subject to collateral attack.
Baxter’s motion for summary judgment constitutes a collateral attack
on the Order. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A
collateral attack is an attempt to avoid the binding force of a judgment in a
proceeding not instituted for the purpose of correcting, modifying, or
vacating the judgment, but in order to obtain some specific relief which the
judgment currently stands as a bar against.”), citing Crawford v. McDonald,
33 S.W. 325, 327 (Tex. 1895) (other citations omitted).
An administrative order that is regular on its face is not subject to
collateral attack. See Corzelius v. Harrell, 186 S.W.2d 961, 967 (Tex. 1945) and
9
cases cited therein. See also Pub. Util. Comm’n of Tex. v. Allcomm Long
Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.—Austin 1995, writ denied)
(“Generally, an agency’s final order, like the final judgment of a court of
law, is immune from collateral attack.”), citing Alamo Express, Inc. v. Union
City Transfer, 309 S.W.2d 815, 827 (Tex. 1958) (concluding that collateral
attack on Railroad Commission order was impermissible because adminis-
trative statutes provided sole method of attack). See also, Castillo v. State,
No. 03-11-00503-CV, 2012 WL 3793276 at *4 (Tex. App.—Austin Aug. 29,
2012, no pet.) (mem. op.) (“A final order of the [agency] that is valid on its
face is not subject to collateral attack in a subsequent enforcement proceed-
ing.”), quoting Jolly v. State, 856 S.W.2d 859, 861 (Tex. App.—Austin 1993,
writ denied).
F. Any exceptions that might allow collateral attack do not
apply here.
The exceptions to the no-collateral attack rule are very limited. None
apply here. See Allcomm Long Distance, Inc., 902 S.W.2d at 666 (noting a
well-recognized exception to the no-collateral attack rule when an agency
10
acts beyond the scope of its statutorily conferred powers); Tex. Dep’t of
Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.—
Austin 1997, writ denied) (collateral attack is allowed only when the
judgment was void or involved fundamental error). Absent those excep-
tions, the courts lack jurisdiction to consider a collateral attack on an
administrative order that is final and unappealable as to that party. See City
of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin
2008, no pet.), rev’d on other grounds, Rusk State Hosp. v. Black, 392 S.W.3d 88
(Tex. 2012) (“Although courts generally do not have jurisdiction to con-
sider collateral attacks on state agency decisions, a collateral attack upon
an agency order may be maintained successfully if the order is void.”),
citing 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).
11
II.
Issue 2: Baxter received adequate Due Process. (Response to Sections
I.C and I.D of Appellant’s Brief.)
A. The Order is not misleading, provides adequate information
and is not void.
1. The Order provides ample information about the
Site and the parties involved.
Baxter suggests that the Order was vague or illogical, but those asser-
tions are not well-founded. For example, Baxter asserts that, “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.” Appel-
lant’s Br. 22. To the contrary, the Order names Baxter as a “potentially
responsible party,” CR 1598; describes the actions or statuses that led to
that categorization, CR 1612-13; lists and describes the “Chemicals of
Concern” found at the Site, CR 1615, 1668-69; and concludes that the
potentially responsible parties are “responsible parties,” CR 1616. Baxter
already knew, or could readily find out, what materials it had shipped to
12
the Site. See, e.g., CR 1478-1568.
Baxter also asserts that “without any supporting finding of fact or
analysis, all of the potentially responsible parties are suddenly and auto-
matically transformed into ‘responsible parties’ by Conclusion of Law and
Determination III.A on page 25 of the Order. CR 1757.” Appellant’s Br. 23.
This grossly misstates the contents of the Order, which contains 20 pages of
findings of fact, CR 1596-1616, and twelve conclusions of law, CR 1616-17.
Baxter may disagree with the findings and conclusions, but cannot say that
there are none.
Finally, Baxter asserts that the Order “did not provide Baxter sufficient
information of a potential deprivation of its property.” Appellant’s Br. 23.
To the contrary, the Order required Baxter and others to reimbuse the
TCEQ’s costs, CR 1621, perform remedial work, CR 1622, and carry out
other specific and detailed activities, CR 1622-48. The Order certainly
provided notice that the named parties were being asked to pay money
and perform work.
13
2. The TCEQ is not required to include appellate
advice in its orders.
Baxter asserts that the Order “did not provide Baxter with notice of the
right to appeal the Order and in fact was misleading on this point ... [and]
did not provide Baxter with any information about the extent of the prop-
erty deprivation.” Appellant’s Br. 15. To the contrary, the Order was not
misleading about Baxter’s right to appeal. Baxter admits: “nothing in the
62–page Order itself even hints that a PRP has any right to be heard in a
challenge to the Order.” Appellant’s Br. 16, citing CR 1733-94. In other
words, the Order was not misleading because the TCEQ provided no
information at all about administrative appeals—nor was it required to.
The Order is a final decision of the TCEQ. It represents the culmination
of a lengthy and complicated investigation and remedy selection process.
The TCEQ is required to embody within the document only what it has
determined and decided.
Baxter’s argument is that the agency should have given information
about whether and how to appeal, and its failure to do so was misleading.
14
Appellant’s Br. 16 (“[T]he Order is misleading in that it creates the impres-
sion that no right to appeal exists.”). Baxter points to language in Sec.
XXXII of the Order, CR 1792, saying “this would have been one logical
place to provide some notice to PRPs of the right to challenge the Order.”
Appellant’s Br. 16-17. However, that argument assumes that the TCEQ had
an obligation to provide advice concerning a party’s right to appeal in the
Order. This argument must fail because the agency has no such obligation.
3. The Order did not mislead expressly or by implica-
tion.
Baxter refers to the language of Sec. XXXII as being an “express denial
of any ‘right to seek review’ of the Order.” Appellant’s Br. 17, quoting sec.
XXXII of the Order. However, that section merely says, “The conference
… does not give Agreeing Respondents or … Performing Parties the right
to seek review of this AO.” CR 1792. A fair reading of this section is that
the conference itself does not provide a right of appeal—not that the right
to appeal is nonexistent. In any case, the record does not reflect that Baxter
was misled into requesting a conference, and Baxter does not claim that it
15
was, so the issue is moot.
Similarly, Baxter asserts that Section XXXV misleads by saying,
“nothing in this AO waives the State of Texas’ sovereign immunity relating
to suit, liability, and the payment of damages.” Appellant’s Br. 17, quoting
sec. XXXV, CR 1793. This would not be misleading to a lay person, because
a lay person would not understand that the statutory right to appeal such
administrative order actually constitutes a waiver of the State’s sovereign
immunity. Likewise, this language would not be misleading to an attorney,
because the attorney would know (perhaps after some research) that the
statute contains a specific section providing for appeal of the Order. Tex.
Health & Safety Code § 361.321. This argument by Baxter must fail.
There is no “express denial” of a right to appeal in this Order. Baxter’s
argument that the Order is “affirmatively misleading” about the right to
appeal is spurious.
B. Baxter seeks to expand its rights under the Due Process
Clause.
Baxter does not dispute that it was notified of the progress of the
16
Superfund investigation, or that it was served with a copy of the Order
when issued, or that the deadline for appeal has passed. Baxter does not
dispute that, under existing precedents, the Order is final, unappealable
and immune from collateral attack. Instead, Baxter asserts that the Order
was void because it did not contain adequate notice. In making this argu-
ment, Baxter seeks to expand the scope of protection offered by the Due
Process Clause. The crux of that argument is contained in a footnote to
Appellant’s Brief:
Baxter recognizes that some cases have described only two cir-
cumstances 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.
17
Appellant’s Br. 28 n.5. In other words, Baxter cites no authority for the
proposition that this Order, or any order issued and served such as this, is
void for violating Due Process. Instead, Baxter is asking for an expansion
of its Due Process rights to provide special relief in this case.
Baxter describes this new constitutional right as the right to be notified
that an administrative order “could be appealed or the consequences of not
appealing,” Appellant’s Br. 15; or the right to receive “adequate notice of
the right to be heard,” or “adequate notice of the issues or consequences,”
id. at 22, concerning such orders. However, the constitutional precedents
are decidedly against this proposition.
1. The personal service requirement has been met.
In discussing the adequacy of notice, Baxter relies upon Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 318 (1950) (service by publica-
tion regarding settlement of trust funds, held inadequate to give notice to
“known present beneficiaries of known place of residence”). Notice by
publication may be inadequate, and thus violate Due Process, if personal
18
service is readily available. Id. at 318-19.
As noted above, Baxter received personal service. CR 1676-95. While
Mullane speaks generally to the importance of notice and opportunity to be
heard, and may not be strictly applicable here, in any case its requirement
of personal service has been met.
2. The Order meets the three-part balancing test of
Mathews v. Eldridge
Baxter’s principal argument is that these rights exist, or should exist,
under the precedent established by Mathews v. Eldridge, 424 U.S. 319 (1976).
See Appellant’s Br. sec. I.D at 24-27. Baxter cites Mathews both for general
principles of Due Process and specifically for the Supreme Court’s balanc-
ing test regarding notice and opportunity to be heard. Appellant’s Br. 14,
24, passim. However, applying the Mathews test to the facts of this case
reveals that Baxter’s Due Process rights were not violated.
Mathews concerned a recipient of Social Security disability benefits
(Eldridge), whose benefits were terminated when the agency determined
that he was no longer disabled. Mathews, 424 U.S. at 324. The Supreme
19
Court characterized the issue as follows: “whether the Due Process Clause
of the Fifth Amendment requires that prior to the termination of Social
Security disability benefit payments the recipient be afforded an opportu-
nity for an evidentiary hearing.” Id. at 323.
The agency’s procedures included the gathering of medical informa-
tion, communication with the disabled worker in writing and orally, and
examination by an independent consulting physician. Id. at 337. The
worker was entitled to respond with additional evidence, id. at 338; to
request reconsideration; and to have a non-adversarial hearing, with
counsel, before an administrative law judge. Id. at 339.
The Court found that, even though the agency’s procedures did not
include the right to an evidentiary hearing prior to termination, they
nevertheless met the requirements of Due Process. Id. at 339-40.
In Mathews the Supreme Court said, “[p]rocedural due process im-
poses constraints on governmental decisions which deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process
20
Clause of the Fifth or Fourteenth Amendment.” Id. at 332. “[S]ome form of
hearing is required before an individual is finally deprived of a property
interest.” Id. at 333. However, the actual form of hearing varies from
informal administrative procedures to “a hearing closely approximating a
judicial trial,” id., citing Goldberg v. Kelly, 397 U.S. 254, 266-71 (1970).
Noting that the requirements of Due Process are not fixed, the Court
enunciated a balancing test involving three factors:
[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private
interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the proce-
dures used, and the probable value, if any, of additional or substi-
tute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail.
Id. at 335. The Court used this balancing test to distinguish Mathews from
Goldberg v. Kelly, which had previously held that a person’s welfare bene-
fits could not be terminated without an evidentiary hearing prior to
termination. See Goldberg, 397 U.S. at 266-71. Baxter asserts that this balanc-
21
ing test, applied to the present case, shows that Baxter’s Due Process rights
were violated. However, an application of that test to the facts of this case
shows the opposite.
a. The first factor—the private interest that will be affected by the
official action—weighs heavily against Baxter
The Supreme Court looked, in the two cases, at the deprivation that
could affect individuals if benefits were denied. The Mathews termination
differed from Goldberg v. Kelly in that “[e]ligibility for disability benefits, in
contrast [to welfare benefits], is not based upon financial need.” Mathews,
424 U.S. at 340. Thus, “[t]he potential deprivation here is generally likely to
be less than in Goldberg.” Id. at 341. Although the disabled worker could
suffer an interim loss awaiting a final decision, the worker might have
other sources of income. Id. at 342-43.
In the present case, Baxter will suffer no comparable deprivation from
its failure to timely appeal the Order—indeed, Baxter has not yet suffered
any loss of liberty or property at all. What Baxter has lost is a legal posi-
tion. Essentially, Baxter is now a co-defendant, along with other companies
22
like Shell and Exxon Mobil, in a Superfund cost recovery action. See CR
1924-34. The other companies timely appealed; Baxter did not. The findings
and conclusions in the Order are established as a matter of law as to Baxter,
but not as to the other defendants. Baxter is currently at a disadvantage in
trial preparation or settlement negotiations, but the case is not over. The
finder of fact must still allocate costs among the remaining parties. See Tex.
Health & Safety Code §§ 361.343, .276. Only then can a final money judg-
ment be assessed.
Even if the other parties managed to escape liability altogether, and
Baxter were the “last man standing,” Baxter’s deprivation could not
compare to the loss of welfare benefits in Goldberg, which might have
resulted in actual physical hardship, or in Mathews to the loss of Social
Security benefits to a disabled worker who might (or might not) have other
sources of income.
Baxter has lost a legal position in an ongoing lawsuit, but has not lost a
liberty or property interest. As to the first factor, the Mathews balancing test
23
weighs heavily against Baxter.
b. The second factor—the risk of erroneous deprivation and prob-
able value, if any, of additional or substitute safeguards–weighs
against Baxter
Secondly, the Supreme Court examined the nature of the inquiry and
the information required in each case. In Mathews, the relevant inquiry
depended on “medically acceptable clinical and laboratory diagnostic
techniques,” Mathews, 424 U.S. at 343, citing 42 U.S.C. § 423(d)(3), whereas
in Goldberg, “written submissions are a wholly unsatisfactory basis for
decision.” Mathews, 424 U.S. at 344, citing Goldberg, 397 U.S. at 269. The
Court concluded that in Mathews, “[t]he potential value of an evidentiary
hearing, or even oral presentation to the decisionmaker, is substantially
less in this context than in Goldberg.” Mathews, 424 U.S. at 344-45.
The current case is much closer to Mathews than to Goldberg. The TCEQ
is required to go through exhaustive procedures to establish the facts in
support of a Superfund order. See Tex. Health & Safety Code §§ 361.181-
.188. (For a description of what the TCEQ actually did to investigate the
24
Site, identify potentially responsible parties, select the remedy and prepare
the Order, see TCEQ’s Motion for Partial Summ. J., sec. III.C at CR 1190-
1233.) These procedures are designed to ensure that persons responsible
for solid waste or hazardous substances at a Superfund site are properly
identified, that they are aware of the procedure and have an opportunity to
be heard, and that they have a right to petition the courts for judicial
review when the order is issued. Nothing about this Order indicates that
the TCEQ failed to follow the proper statutory procedures, or otherwise
deprived anyone of their Due Process rights.
There would be little value, if any, in “additional or substitute proce-
dural safeguards.” Most of the viable parties named in the Order filed
timely appeals. CR 221-35. What Baxter wants is to make the Order once
again appealable so it can argue the merits. The only additional “safe-
guard” at this point would be to re-open the District Court’s jurisdiction
after the statute has extinguished it. While such an action would benefit
Baxter in this one case, it would create uncertainty as to the finality of
25
judgments and be destructive of judicial procedure overall.
Thus, as to the second factor, this case is closer to Mathews than to
Goldberg because it depends on documentary and scientific evidence, and
the procedures allow for input by the parties and the correction of errors.
There would be little value in additional or substitute safeguards, and
positive harm to the judicial process if Baxter were allowed to appeal at
this late date. The second factor weighs against Baxter.
c. The third factor—the public interest—weighs decisively
against Baxter
The Supreme Court then said, “In striking the appropriate due process
balance the final factor to be assessed is the public interest.” Mathews, 424
U.S. at 347. “[T]he Government’s interest, and hence that of the public, in
conserving scarce fiscal and administrative resources is a factor that must
be weighed.” Id. at 348. “The essence of due process is the requirement that
‘a person in jeopardy of serious loss (be given) notice of the case against
him and opportunity to meet it.’” Id. at 348-49, quoting Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951). In the circumstances
26
of Mathews, however, the Court said, “[w]e conclude that an evidentiary
hearing is not required prior to the termination of disability benefits and
that the present administrative procedures fully comport with due pro-
cess.” Mathews, 424 U.S. at 349.
Baxter suggests that the TCEQ’s burden of providing additional notice
would be “minuscule.” Appellant’s Br. 26. However, that notice would
actually be a form of legal advice, and it would not be simple in cases such
as this. Ironically, Baxter’s proposed notice (Appellant’s Br. 26) contains a
series of problematic statements and outright errors, as follows:
! “Those costs could exceed $_____”— Problematic, since TCEQ
cannot know the final costs at the time of such a Superfund order
(when the remedial action has not started), and even a carefully-
selected remedial action plan (see, e.g., CR 1659-67) cannot ensure
against unexpected contingencies.
! “Pursuant to section 361.321 and/or 361.322 of the Texas Health
and Safety Code, you have the right to appeal this Order”— Not
sound advice, since the proper section is currently an issue on
appeal in this court. See Tex. Comm’n on Envtl. Quality v. Exxon
Mobil Corp., No. 03-14-00667-CV (Tex. App.—Austin). (The
TCEQ’s position is that this Order was issued under Tex. Health &
Safety Code § 361.188 and the appeal can be taken only under id.
§ 361.321.)
27
! “Your appeal must be filed with the TCEQ”— Wrong; the petition
for review must be filed in the district court of Travis County. Tex.
Health & Safety Code § 361.321(a). 2
! “… within 30 days of the date of this Order”— Correct, assuming
that the appeal is brought under Section 361.321. 3
! “Failure to file an appeal will adversely affect your right to chal-
lenge this Order”— Understated, since the order would actually
become final and unappealable.
Thus, the legal advice that Baxter would have the TCEQ give would not be
simple or easy; it would be burdensome to the agency and problematic to
those receiving it, and might create Due Process problems in itself. The
same could be true of practically any legal advice an agency might offer to
a person named in an administrative order.
Finally, it must be noted that a right to be advised of the appealability
of final administrative orders, if it existed at a constitutional level, would
also necessarily apply to court orders and judgments. This would greatly
2
Even if the petition for review is filed pursuant to Section 361.322, it still must be
filed in the district court. Tex. Health & Safety Code § 361.322(a), (g)-(h), (i)-(k).
3
However, if the appeal is under Section 361.322, then the petition can be filed
“before the 46th day after the date of receipt, hand delivery, or publication service of the
order.” Tex. Health & Safety Code § 361.322(a).
28
disturb the public interest in the finality of judgments. See Petro-Chem.
Transp., Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex. 1974) (“[F]inal judgments
should not be disturbed unless there is good reason for doing so.”)
The third factor weighs decisively against Baxter.
3. The Mathews test has not been universally applied
The Mathews test has not been universally applied to all Due Process
challenges. The Supreme Court has abrogated its holding with respect to
state rules of criminal procedure. See Medina v. California, 505 U.S. 437, 443
(1992) (“In our view, the Mathews balancing test does not provide the
appropriate framework for assessing the validity of state procedural rules
which, like the one at bar, are part of the criminal process.”). Courts have
applied other factors concerning right to counsel in parent-child relation-
ship cases. See, e.g., M.E.K. v. R.L.K., 921 So.2d 787, 791 (Fla. Dist. Ct. App.
2006) (“[I]in the context of determining whether a right to appointed
counsel exists in a case involving the parent-child relationship, Florida
courts must weigh the factors enunciated in [Potvin v. Keller], not
29
Mathews.”), citing Potvin v. Keller, 313 So.2d 703 (Fla. 1975).
4. The Gonzalez line of cases is distinguishable.
a. Gonzalez involved incorrect notice rather than a lack of notice.
None of Baxter’s cited cases supports the proposition that Due Process
requires an agency to advise a party that a final administrative order may
be appealed. The case that comes closest to being on point, but is distin-
guishable, is Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). Gonzalez
filed for Social Security disability benefits. Id. at 1200. The Secretary of the
Department of Health and Human Services denied the application, and
Gonzalez reapplied. Id. An administrative law judge conducted a hearing
and denied the application. Id. Gonzalez appealed to the district court and
then to the U.S. Court of Appeals for the Ninth Circuit. Id. As part of the
appeal, the Court examined whether the notice of adverse decision met the
requirements of Due Process.
The notice contained the following language: “If you do not request
reconsideration of your case within the prescribed time period, you still
30
have the right to file another application at any time.” Id. at 1203. The
Court concluded that, “The notice given in this case does not clearly
indicate that if no request for reconsideration is made, the determination is
final. We conclude that the notice violates appellant’s fifth amendment
right to due process.” Id.
In Gonzalez, the agency was required by statute to give notice concern-
ing the right to reapply or appeal. The Social Security Act says:
In any notice of an adverse determination with respect to which a
review may be requested … , the Commissioner of Social Security
shall describe in clear and specific language the effect on possible
entitlement to benefits under this subchapter of choosing to reap-
ply in lieu of requesting review of the determination.
42 U.S.C. § 405(b)(3)(B) (citation omitted). 4
The federal circuit courts are unanimous in finding that this notice in
the Social Security form letter is defective and gives rise to Due Process
issues. Most circuits, however, find that there is a second part to the
4
Some Texas statutes also require notice of the right to appeal specific administra-
tive orders. For example, notice of certain orders of the Texas Real Estate Commission
must include notice of “the person’s right to judicial review of the order.” Tex. Occ.
Code §§ 1101.705(e), 1101.706(3). There is no such requirement in the present case.
31
analysis: “whether the defective notice violates the claimant’s procedural
due process rights.” Loudermilk v. Barnhart, 290 F.3d 1265, 1269 (11th Cir.
2002). That issue involves the question of detrimental reliance. In review-
ing Gonzalez, the Loudermilk court explained:
In Lujan v. Defenders of Wildlife, the Supreme Court held there must
be a causal connection between the injury and the complained of
conduct.… All the circuit courts considering the Social Security
determination notice issue, with the exception of the Ninth Cir-
cuit, require a causal connection, following the Supreme Court’s
dictate in Lujan. In implementing this requirement, the courts hold
the claimant must have detrimentally relied upon the notice.… We
find the reasoning and, therefore, the test employed by the major-
ity of the circuits more persuasive in light of the teachings of
Lujan.
Loudermilk, 290 F.3d at 1269, citing Lujan v. Defenders of Wildlife, 504 U.S.
555 (1992) (other citations omitted). Thus, the federal circuit courts all agree
that the notice was defective; the Ninth Circuit is in the minority in not
requiring detrimental reliance.
A claimant may negate detrimental reliance by abandoning the claim.
See, e.g., Brooks v. Apfel, 71 F. Supp. 2d 858, 862 (N.D. Ill. 1999), citing
Gonzalez, 914 F.2d at 1203 (holding that a similar applicant had abandoned
32
his claim after five years). “It is reasonable to conclude that such a gap
between filings suggests abandonment, not confusion.” Brooks, 71 F. Supp.
2d at 863.
b. The Gonzalez precedents are not binding but are “congruent”
with Texas law.
The specific rulings of the federal courts in the Gonzalez/Loudermilk line
of cases, analyzing the specific language of a Social Security form letter, are
not binding on Texas courts. “Decisions of the federal courts of appeals, of
course, do not bind Texas courts although they are received with respectful
consideration.” Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668, 672 n.5
(Tex. App.—Austin 1990, writ denied) (per curiam) (citations omitted).
However, the Texas Supreme Court has referred to federal and state
constitutional provisions as “congruent.” City of Dallas v. VSC, LLC, 347
S.W.3d 231, 234 n.3 (Tex. 2011) (citation omitted) (“Where the parties have
not argued that there are any material differences between the state and
federal versions of a constitutional provision, we typically treat the two
clauses as congruent.”)
33
c. In any event, the present case does not fall under the Gonza-
lez/Loudermilk precedent.
The Gonzalez/Loudermilk line of cases are tangential to the present case:
they hold that, if an agency gives advice concerning the right to appeal an
administrative decision, that advice must be correct. If an affected party
relies upon that advice to the party’s detriment, and a significant property
right is affected, procedural Due Process may have been denied. However,
while Gonzalez and Loudermilk are tangentially relevant, the present case
does not actually meet either prong of their Due Process analysis—neither
incorrect advice nor detrimental reliance. The TCEQ did not offer any
advice concerning a party’s right to appeal the Order, so Baxter could not
have relied upon such advice.
C. Any Due Process notice violation has been cured by subse-
quent correct notices.
An agency may correct an incorrect notice and avoid a potential Due
Process issue. See, e.g., Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995) (appli-
cant received the same incorrect notice twice, but then continued reapply-
34
ing and subsequently received a correct notice). In Torres, the Fifth Circuit
said, “Appellant has not shown any causal connection between the alleg-
edly misleading language in the first two notices and his subsequent
failure to seek judicial review. Appellant continued to appeal his denial of
benefits, and did not stop until he reached the end of the administrative
process.” Id. at 893.
A party who was unaware of an administrative proceeding may still
face a deadline for timely judicial review when later notified of the admin-
istrative order. See, e.g., Bedell v. State, No. 03-11-00502-CV, 2013 WL
2631738 (Tex. App.—Austin, June 5, 2013), review denied (Sept. 27, 2013)
(mem. op.). The Texas Railroad Commission issued an order requiring
Bedell to plug certain oil and gas wells and pay a penalty. Id. at *1. Bedell
failed to comply; the agency brought suit in district court. Id. Bedell filed
defensive pleadings and a counterclaim; the state filed a motion for sum-
mary judgment and a plea to the jurisdiction “urging that the trial court
lacked jurisdiction over the counterclaim because Bedell had not demon-
35
strated that the State had waived sovereign immunity … .” Id. On appeal,
the state contended that, even if Bedell had no contemporaneous notice of
the administrative proceeding and order, “he failed to avail himself of the
judicial review process once he learned of the order [during the lawsuit] in
2011.” Id. at *3. The Court of Appeals noted that: “A notice problem only
creates a different starting date for the time to seek judicial review; it does
not eliminate the requirement.” Id. at *4 (citations omitted). The Bedell
situation was remarkably similar to the present case:
[A]ny notice problem here was resolved arguably no later than
when Bedell learned of the existence of the administrative order
by receiving service of the petition [in 2010], and certainly no later
than when he received a copy of the administrative order as an
exhibit in the appendix of the State’s Motion for Partial Summary
Judgment [in 2011]. … The undisputed record shows that Bedell
did not file the counterclaim or any petition for judicial review
within the thirty days of receiving a copy of the administrative
order. Bedell has not shown sufficient good cause for failing to
exhaust his judicial-review remedy after receiving notice of the
order.
Id. at *4 (footnotes and citations omitted). Accordingly, the state’s plea to
the jurisdiction was affirmed. Id. at *5.
36
In the present case, the TCEQ has actually given Baxter notice of the
Order three times: first, when the Order was initially issued, CR 1676-94,
1679, 1695; second, when the TCEQ filed its counterclaim and third-party
petition, CR 283-424; and third, when the TCEQ filed its Plea to the Juris-
diction, CR 1582-1703. Even if the first and second notices were defective,
the TCEQ’s Plea to the Jurisdiction, with the Order attached, gave Baxter
complete notice regarding how to appeal, including the applicable section
of the statute. See CR 1587, citing Tex. Health & Safety Code § 361.321(c).
Any Due Process violation has been cured.
D. The cases that Baxter cites are inapposite.
Baxter cites various cases concerning the importance of notice to Due
Process. However, as Baxter readily admits, the “notice required will vary
with circumstances and conditions.” Appellant’s Br. 22, quoting City of
Dallas v. VSC, LLC, 347 S.W.3d at 238 (other citations omitted). Notice is
required at several steps in an administrative or legal process. Due Process
does not require an administrative agency to advise a party concerning its
37
right to appeal a final administrative order.
1. Cases involving the absence of notice, rather than
the adequacy of notice, are inapposite.
Some of Baxter’s cited cases involve the absence of notice, not the
adequacy of notice. See, e.g., Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 86
(1988) (no proper service of process); Barrera-Montenegro v. United States, 74
F.3d 657, 660 (5th Cir. 1996) (notice of forfeiture procedure and seizure sent
to wrong address). These cases are not precedential here because in the
present case the notice was sent and received at the correct address.
2. Cases involving service at the commencement of an
action are inapposite.
Due Process requires that a person be notified of the commencement
of a legal or administrative proceeding that might affect the person’s
substantive property rights. Baxter cites several such cases: see, e.g., Walker
v. City of Hutchinson, Kan., 352 U.S. 112 (1956) (notice of condemnation
proceedings against property, where landowner’s name was known and
was on official records); Houston v. Fore, 412 S.W.2d 35, 39 (Tex. 1967)
38
(constructive notice of administrative hearing on street paving improve-
ments); Boddie v. Connecticut, 401 U.S. 371, 378 (1971) (denial of indigent’s
access to courts due to inability to pay); In re Ruffalo, 390 U.S. 544, 550
(1968) (notice of charge in attorney disbarment proceedings).
None of these cases provides a precedent for the present case, since
this case involves a final order, not the commencement of proceedings, and
Baxter received actual and legal notice of the Order when it was issued. In
addition, Baxter had had notice at several stages of the administrative
Superfund proceeding. AR 30601-05, 17912-18, 17945-54, 33053-64.
3. Cases involving significant events during a pro-
ceeding are inapposite.
Due Process requires notice of certain significant events during the
pendency of an action. Baxter cites many cases: see, e.g., Mosser v. Plano
Three Venture, 893 S.W.2d 8, 12–13 (Tex. App.—Dallas 1994, no writ)
(“notice” of summary judgment hearing that did not include date and time
of hearing); Fuentes v. Shevin, 407 U.S. 67 (1972) (prejudgment replevin
action taking chattels without opportunity to be heard); Williams v. Holley,
39
653 S.W.2d 639, 640 (Tex. App.—Waco 1983, writ ref’d n.r.e.) (inadequate
notice of pleadings and trial setting); Langdale v. Villamil, 813 S.W.2d 187
(Tex. App.—Houston [14th Dist.] 1991, no writ) (notice to attorney after
termination of attorney-client relationship, not imputed to former client);
L.B.L. Oil Co. v. Int’l Powers Servs., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (per
curiam) (failure to give notice of hearing on motion for default judgment);
Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) (lack of notice
of trial setting); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (lack of
notice to client where attorney withdrew two days before trial and did not
turn over file to substituted attorney); Misium v. Misium, 902 S.W.2d 195
(Tex. App.—Eastland 1995, writ denied) (failure of counsel to inform client
of upcoming trial during counsel’s motion to withdraw); Moss v. Malone,
880 S.W.2d 45, 51 (Tex. App.—Tyler 1994, writ denied) (lawyer’s with-
drawal without taking steps to protect party’s rights); Tramco Enters., Inc. v.
Indep. Am. Sav. Ass’n, 739 S.W.2d 944, 948 (Tex. App.—Fort Worth 1987, no
writ) (inadequate notice of trial setting); Chow v. Dole, 677 S.W.2d 220 (Tex.
40
App.—Houston [1st Dist.] 1984, no writ) (notice of trial setting); Rotello v.
State, 492 S.W.2d 347, 349 (Tex. Civ. App.—Houston [1st Dist.] 1973, writ
ref’d n.r.e.) (no proper notice and hearing prior to dismissal); N.Y. Life Ins.
Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996) (inadequate service of sum-
mary judgment motion).
None of these cases holds that advice concerning a right to appeal
must be given as part of notice of a final administrative or legal order. They
are not precedential as regards the present case.
4. Cases involving administrative decisions without
an appealable final order are irrelevant.
Notice of certain administrative actions must be given in time for
affected parties to protest or respond. Baxter produces a plethora of prece-
dents: see, e.g., City of Waco v. Roddey, 613 S.W.2d 360, 365 (Tex. App.—
Waco 1981, no writ) (notice before a city orders demolition of buildings);
Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 45 (1978) (notice in
municipal utility bills that payment was overdue and service would be
discontinued); Bradford v. Edelstein, 467 F. Supp. 1361, 1373 (S.D. Tex. 1979)
41
(notice and opportunity to be heard before termination of public utilities);
Hess & Clark, Div. of Rhodia, Inc. v. Food & Drug Admin., 495 F.2d 975, 983
(D.C. Cir. 1974) (notice before agency withdraws approval of drug applica-
tions and related regulations); Wolff v. McDonnell, 418 U.S. 539, 564 (1974)
(written notice to prisoners and opportunity to be heard before loss of
good-time or imposition of solitary confinement); Navato v. Sletten, 560 F.2d
340 (8th Cir. 1977) (notice and opportunity to respond to allegations before
a medical residency training committee); N. Alabama Exp., Inc. v. United
States, 585 F.2d 783 (5th Cir. 1978) (notice in Federal Register of the true
nature of a common carrier application); Fed. Commc’ns Comm’n v. Pottsville
Broad. Co., 309 U.S. 134, 143 (1940) (denial of application for a radio station:
“To be sure, the laws under which these agencies operate prescribe the
fundamentals of fair play.”); City of W. Covina v. Perkins, 525 U.S. 234 (1999)
(notice of state law remedies when police seize property for a criminal
investigation); Dusenbery v. United States, 534 U.S. 161 (2002) (notice of
forfeiture by FBI, including notice by certified mail to federal prison where
42
claimant was incarcerated, satisfied due process); Jones v. Flowers, 547 U.S.
220 (2006) (notice and opportunity for hearing, as appropriate, before
taking of property for unpaid taxes); City of Dallas, 347 S.W.3d at 231 (in a
property seizure from a storage facility, actual notice was sufficient to
impose on facility operator the duty to pursue statutory remedy.)
Such cases speak to Due Process generally, but do not address the
notice that must be given in a final order. More importantly, none say that
an agency must give advice concerning a party’s right to appeal a final
order.
5. Due Process may enhance statutory notice require-
ments, but the cited cases are inapposite.
In cases where a statute or regulation specifies an administrative
process, Due Process may guarantee additional protection. Baxter cites
many cases: see, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)
(right to have adjudication of the merits of unlawful termination, as
provided under the Illinois Fair Employment Practices Act); Cleveland Bd. of
Educ. v. Donnelly, 470 U.S. 532, 542 (1985) (terminated employees entitled to
43
post-termination administrative procedures, as provided by Ohio statute);
Valero S. Tex. Processing Co. v. Starr Cnty. Appraisal Dist., 954 S.W.2d 863,
865 (Tex. App.—San Antonio 1997, pet. denied) (notice required under
article 41.47(d) of the Texas Tax Code: “The orders did not reference the
property in question by legal description or a taxpayer account number but
by docket number which was evidently assigned by the appraisal district
for internal administrative purposes.”).
These cases are not precedential because Baxter received the notice
prescribed under Texas law, and the law requires no other notice or advice
concerning this appeal.
44
III.
Issue 3: Even if the Order had been issued in violation of Due Process
it is not void but merely voidable—and it still must be timely appealed for
the courts to have jurisdiction. (Response to both sections of Appellant’s
Brief.)
A. Even if the Order was misleading and had been issued in
violation of Due Process, it was not void; it still had to be
timely appealed.
A flawed administrative order, which may be reversible on appeal,
nevertheless must be timely appealed. The courts lack jurisdiction other-
wise. It follows that administrative orders issued in violation of Due
Process still must be timely appealed. Such orders are not void, but merely
voidable on appeal.
1. The courts cannot acquire jurisdiction by mistake
or accident.
A failure to timely appeal an administrative order can be fatal to the
appeal, even if the failure is an excusable mistake. See, e.g., Tex. Alcoholic
Beverage Comm’n v. Sfair, 786 S.W.2d 26, 27 (Tex. App.—San Antonio 1990,
45
writ denied) (untimely appeal of decision of Texas Alcoholic Beverage
Commission after overruling of motion for rehearing). The Court of
Appeals noted: “The Sfairs’ tardiness was undoubtedly brought on by the
actions taken by the Commission in sua sponte granting the rehearing and
setting a new hearing date.” Id. Nevertheless, despite this justifiable
excuse, the appeal was dismissed. Id. at 28. The court explained:
An appeal from an administrative agency is not a matter of right,
it is set out by statute and must be strictly complied with in order
to vest the district court with jurisdiction. … The procedure to be
followed is mandatory and jurisdictional. … The fact that the
agency may have erred in sua sponte granting the motion for
rehearing and engaging in subsequent proceedings does not
excuse the Sfairs’ late filing of their petition in the district court.
Id. at 27-28 (citations omitted). Thus, even if the agency may have confused
the situation by its procedures, the courts still lack jurisdiction to review an
administrative order except within the statutory waiver of sovereign
immunity.
46
2. The courts cannot acquire jurisdiction because a
party did not understand the law.
In the absence of a specific statutory requirement, an agency is not
required to advise applicants when a motion for rehearing is overruled by
operation of law. See Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192 (Tex.
App.—Austin 1996, no writ) (hearing on insurance agent’s license: “From
the plain language of [the Administrative Procedure Act] Hernandez knew
or was charged with knowledge that if the agency did not act on her motion by
January 16, 1995, forty-five days after the notice of November 30, it would
be overruled by operation of law.”). Id. at 195 (emphasis added, footnote
omitted). Hernandez failed to file a timely appeal after her motion for
rehearing was overruled by operation of law, and her appeal was dis-
missed. Id. at 196.
3. The courts cannot gain jurisdiction by consent or
through estoppel.
Even in cases where an agency may have mislead a party concerning
the right to appeal, the courts do not acquire jurisdiction unless the party
47
has exhausted administrative remedies. See, e.g., Daniel v. Dallas Indep. Sch.
Dist., 351 S.W.2d 356 (Tex. Civ. App.—El Paso 1961, writ ref’d n.r.e.)
(alleged wrongful termination of school custodian). The appellant custo-
dian asserted that the superintendent and the school board had told him
there was “nothing more for him to do, and that as far as they were con-
cerned the matter was concluded.” Id. at 358. The appellant failed to file a
timely petition for review, and the courts had no jurisdiction. Id. The court
of appeals said:
[W]e must say that jurisdiction of a court is so important and
essential that it has long been held that it cannot be conferred by
estoppel. It is a statutory creation or enactment, and cannot be
waived or conferred by consent or estoppel, and a court without
jurisdiction cannot render a valid judgment.
Id. at 359. See also, Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d
293 (Tex. 2001) (wrongful termination case in which employee claims that
school district’s attorney misled her). The court said, “Even if the District
misled Sullivan as she claims, her failure to exhaust her administrative
remedies is fatal to her action.” Id. at 295.
48
4. The Texas rule concerning misleading notice is not
universally followed.
Some jurisdictions hold that notice and advice concerning the right to
appeal, if any is given, must be correct. See, e.g., Baxter v. Colvin, 14-CV-
01306-WHO, 2014 WL 6985149, at *4 (N.D. Cal. Dec. 10, 2014) (notice of
decision that was “inherently ambiguous” because it “did not clearly
inform plaintiff how and whether she could pursue her right to an oral
hearing … while also objecting to [the] decision on its merits”).
The federal courts have found Due Process violations where there has
been misleading notice and detrimental reliance. See the Gonzalez line of
cases, supra sec. II.B.4, et seq. See also, Butland v. Bowen, 673 F. Supp. 638, 640
(D. Mass. 1987) (notice of denial of Social Security benefits was misleading
and violated Due Process: “Although the notice assured plaintiff that she
had ‘the right to file another application at any time,’ further applications
for disability benefits were in fact barred, unbeknownst to her, after four
years.”).
Thus, precedents in other states and the federal system have held that
49
notice concerning the right to appeal, if given, must be correct. However,
Due Process does not require that such notice be given in the first place.
TCEQ’s failure to give it in the present case simply does not rise to the level
of a Due Process violation.
B. Baxter’s cited cases do not support the proposition that the
Order is void
Baxter argues that “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” and, because it did not, it was void. Appel-
lant’s Br. 27. For this proposition, Baxter cites three cases: Sec. State Bank &
Trust v. Bexar Cnty., 397 S.W.3d 715 (Tex. App.—San Antonio 2012, pet.
denied); New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996); and In re
Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi 1990, no
writ). However, each of these cases involves a failure of service at the
commencement of a legal action, not a failure to provide notice of the
potential costs of a final order or the right to appeal.
50
1. Security State Bank and Trust involved a complete
lack of notice rather than incomplete notice.
The Security State Bank & Trust case involved a tax sale of real property
against which a bank held a lien. Sec. State Bank & Trust, 397 S.W.3d at 717.
“The Bank asserts that, as a record lienholder, it was entitled to notice and
joinder in the delinquent tax suit and to notice of the subsequent tax sale,
and the lack of notice violates due process and renders the tax sale void as
to the Bank. We agree.” Id. Accordingly, the Court of Appeals vacated and
set aside the tax sale as to the bank’s lien interest. Id. The lienholder bank
had a Due Process right to receive notice: “Because a tax sale significantly
affects a lienholder’s property interest, due process requires that the
lienholder receive notice of the pending tax sale.” Id. at 721, citing Menno-
nite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983).
The second issue in Sec. State Bank & Trust was the remedy. “A judg-
ment entered without notice or service to an interested party is ‘constitu-
tionally infirm’ in that the failure to provide notice violates ‘the most
rudimentary demands of due process of law.’” Id. at 723, quoting Peralta v.
51
Heights Med. Ctr., Inc., 485 U.S. at 84. “As opposed to a mere defect in
service, a complete failure or lack of service on a party with a property
interest adversely affected by the judgment constitutes a due process
violation that warrants setting the judgment aside.” Sec. State Bank & Trust,
397 S.W.3d at 723. (In this case, of course, Baxter received service.)
The Court of Appeals said, “A collateral attack may be used to set
aside a judgment based on a complete lack of notice to an interested party
in violation of their due process rights.” Id. at 723 (citations omitted). “A
judgment is ‘void,’ and thus subject to collateral attack, if there was a
complete lack of service in violation of due process.” Id., citing PNS Stores,
Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). PNS Stores had held, “When
a defective citation is served, but the citation puts the defendant on notice
of asserted claims in a pending suit, and the technical defects are not of the
sort that deprive a litigant of the opportunity to be heard, we reject them as
grounds sufficient to support a collateral attack.” PNS Stores, 379 S.W.3d at
275.
52
Thus, following the precedent of Security State Bank & Trust and PNS
Stores, the service of the Order upon Baxter by certified mail was not
defective and the Order cannot be collaterally attacked.
2. New York Life Insurance involved service at the
wrong address.
In New York Life Ins. Co. v. Brown, 84 F.3d at 137, a stakeholder-insurer
filed an interpleader action against two claimants seeking to establish the
ownership of life insurance policy. Summary judgment was entered
against a claimant by default. The Court of Appeals held that, although the
defaulted claimant had appeared by participating in a telephone confer-
ence before a magistrate judge and making a telephone call to plaintiff’s
counsel, the attempt to serve the claimant with a copy of the summary
judgment motion at an address that was not his last-known address did
not provide proper notice. The absence of notice was a denial of Due
Process, rendering the judgment void. New York Life, 84 F.3d at 139. Apply-
ing this precedent to the present case, the actual notice given to Baxter by
providing a copy of the Order conformed with Due Process.
53
3. In re Guardianship of B.A.G. involved a court’s lack
of personal jurisdiction rather than notice of a right
to appeal.
The third case is In re Guardianship of B.A.G., 794 S.W.2d at 510, an
action for appointment of a temporary guardian for B.A.G., an allegedly
incapacitated adult. B.A.G. did not receive personal service and did not
appear at any of the hearings. Id. at 513. She did not consult counsel before
the hearings and could not have made a knowing and voluntary waiver of
her rights. Id. The trial court did not make a determination that her appear-
ance should be waived, as required by the Probate Code, and her relatives
were not properly notified as required by statute. Id. The Corpus Christi
Court of Appeals said:
A judgment is void only when it is apparent that the court render-
ing the judgment had no jurisdiction of the parties, no jurisdiction
of the subject matter, no jurisdiction to enter the judgment, or no
capacity to act as a court. … A void judgment is one entirely null
within itself, and which is not susceptible of ratification or confir-
mation, and its nullity cannot be waived. … Furthermore, if a
court has not acquired jurisdiction of both the parties and the
subject matter of the litigation, the judgment is void and is subject
to both direct and collateral attack. Therefore, appellants may
collaterally attack the trial court’s judgment if the trial court
54
lacked complete jurisdiction over the parties.
Id. at 511-12 (citations omitted). Accordingly, the Court held, “the [trial]
court lacked personal jurisdiction over B.A.G. and all of its actions regard-
ing her guardianship are void.” Id. at 513.
Thus, Security State Bank & Trust, New York Life, and Guardianship of
B.A.G. all hold that a party to a legal action must be properly served at the
commencement of the action; otherwise, the court lacks personal jurisdic-
tion and any resulting judgment is void. In the present case Baxter was
properly served with a copy of the Order; thus Due Process was satisfied.
PRAYER
For the reasons stated above, Appellee the Texas Commission on
Environmental Quality asks the Court to overrule Appellant’s issues and
affirm the order of the District Court.
Respectfully submitted this 13th day of November 2015.
KEN PAXTON
Attorney General of Texas
55
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
PRISCILLA M. HUBENAK
Chief, Environmental Protection
Division
/s/ Thomas H. Edwards
THOMAS H. EDWARDS
Assistant Attorney General
Tex. Bar No. 06461800
Thomas.Edwards@
TexasAttorneyGeneral.gov
CRAIG J. PRITZLAFF
Assistant Attorney General
Tex. Bar No. 24046658
Craig.Pritzlaff@
TexasAttorneyGeneral.gov
Office of the Attorney General
Environmental Protection Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
56
ATTORNEYS FOR THE TEXAS
COMMISSION ON
ENVIRONMENTAL QUALITY
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Word
Perfect 13.0 and contains 9,979 words, as determined by the computer
software’s word-count function, excluding the sections of the document
listed in Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Thomas H. Edwards
THOMAS H. EDWARDS
57
CERTIFICATE OF SERVICE
I, Thomas H. Edwards, do hereby certify that a true and correct copy
of the foregoing document, with appendix, was served by electronic
service on the following parties or attorneys of record on the 13th day of
November 2015.
Attorneys Parties
Elliott S. Cappuccio Baxter Oil Service, Ltd.
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
lhyman@pulmanlaw.com
Etan Z. Tepperman
etepperman@pulmanlaw.com
PULMAN, CAPPUCCIO, PULLEN,
BENSON & JONES, LLP
2161 NW Military Hwy., Ste. 400
San Antonio, Texas 78213
(210) 222-9494 (Telephone)
(210) 892-1610 (Facsimile)
/s/ Thomas H. Edwards
THOMAS H. EDWARDS
58
APPENDIX
59
APPENDIX
MOTION FOR REHEARING
TO Chairman Bryan Shaw DATE March 15,2010
Commissioner Buddy Garcia
Commissioner Carlos Rubinstein
Les Trobman General Counsel 2 copies
FROM LaDonna Castariuela Chief Clerk
Applicant Permittee Voda Petroleum Inc
Permit Type SPF Permit No N A Docket No 2009 1706 SPF
Note If any dates fall on a weekend or a holiday the next working date becomes the due date
Commission action 2 10 2010
MFR Filed By John Riley
MFR Filed For Luminant
Order Mailed Date 2 19 2010
Date MFR Filed OCC date stamp 312 2010
Date MFR Due 3 15 2010
23 days after date order was mailed
Date Replies to MFR Due 3 24 2010
33 days from order mailed date
MFR Overrules by Operation of Law 4 8 2010 Possible agenda dates SOS Notice Deadli e
48 days from order mailed date 3 30 2010 3 22 201 0
If extended action due by 5 24 2010 Possible agenda dates SOS Notice Deadline
93 days from order mailed date 414 2010 4 6 2010
4 28 2010 4 20 2010
519 2010 5 11 2010
Attachments 0 Motion
Permit Order cover letter 0 Attached 0 Previously Submitted
Was an RTC prepared 0 Yes attached 0 No 0 Previously Submitted
cc Tracking Sheet Only
Office of Public Interest Counsel Environmental Law Division John Racanelli Financial Administration
Program Staff OCCFinal Docs Team Leader Laurie Eaves OCE
VODA_AR_00000010
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery P G Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
September 12 2008
CERTIFIED MAIL
91 7108 2133 3934 5604 8317
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT
4828 N SHEPPARD
HOUSTON TX 77018 2216
Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site
Clarksville City Gregg County Texas
Dear Sir or Madam
Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas
Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to
discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site
The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in
the county in which the facility is located at least 30 days before the date of the public meeting The
TCEQ is also required to mail the same information to each potentia lly responsible party PRP by
certified mail return receipt requested at least 30 days before the public meeting This letter is to
notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial
action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be
published in the Texas Register and the Longview News Journal on September 19 2008 The notice
will provide information regarding the proposed remedial action and the date time and place of the
meeting which is also included in this Jetter
The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for
Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway
Gladewater Texas beginning at 7 00p m The public comment period begins September 23 2008
and ends October 23 2008 at the close of the public meeting The public meeting is legislative in
nature and not a contested case hearing under the Texas Government Code Chapter 2001 The
meeting shall be held to discuss the proposed remedial action receive comments from the public on
the proposed remedial action obtain additional information regarding the facility and identify any
additional potentially responsible parties
According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following
the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good
Faith Offer to fuJJy fund or conduct the proposed remedial action at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made
by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter
into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In
accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by
the TCEQ Project Manager no later than 5 00 pm on December 22 2008 If after the public
meeting on the proposed remedial action the TCEQ determines that comments received at the public
meeting will not significantly change the proposed remedial action tben tbe TCEQ will again mail
P O Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
printed on recycled paper
VODA_AR_00017912
BAXTER OIL SERVICE LTD
Page 2
September 12 2008
notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith
Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a
Good Faith Offer is made by all or some of the PRPs within this period those parties have an
additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include
a scope of work The TCEQ may not require an admission of liability in the Agreed Administrative
Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed
with an Administrative Order and may complete the remedial action utilizing state funds pursuant to
the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including
oversight costs as set out in Section 361.197 ofthe Solid Waste Disposal Act
Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action
alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30
Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation
with off site disposal for the on site surface and subsurface soil containing contaminants above the
applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis
of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations
of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain
in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer
exceed their applicable cleanup standards An institutional control would be placed on each property
which overlies groundwater contaminated above the cleanup levels and would describe the specific
area ofthe contaminated groundwater plume on the affected property The institutional controls are
to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and
would remain in place until it is demonstrated that concentrations of contaminants in groundwater no
longer exceed the applicable cleanup levels These recommended alternatives are the most cost
effective reasonable and appropriate remedy to address the Site
Correspondence should be sent to my attention using mail code MC 136 at the address listed below and
must include the following assigned reference number specified in this letter SUP0670016 If you
have any questions please contact me at 512 239 2501 or email at cboucher tceq state tx us
Sincerely
4L
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CBsr
Enclosures
VODA_AR_00017913
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
September 12 2008
CERTIFIED MAIL
91 7108 2133 3934 5604 8317
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT
4828 N SHEPPARD
HOUSTON TX 77018 2216
Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site
Clarksville City Gregg County Texas
Dear Sir or Madam
Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas
Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to
discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site
The TCEQ shall publish notice of the meeting in the Texa Register and in a newspaper circulating in
the county in which the facility is located at least 30 days before the date of the public meeting The
TCEQ is also required to mail the same information to each potentially responsible party PRP by
certified mail return receipt requested at least 30 days before the public meeting This letter is to
notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial
action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be
published in the Texas Register and the Longview News Journal on September 19 2008 The notice
will provide information regarding the proposed remedial action and the date time and place of the
meeting which is also included in this letter
The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for
Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway
Gladewater Texas beginning at 7 00p m The public comment period begins September 23 2008
and ends October 23 2008 at the close of the public meeting The public meeting is legislative in
nature and not a contested case hearing under the Texas Government Code Chapter 2001 The
meeting shall be held to discuss the proposed remedial action receive comments from the public on
the proposed remedial action obtain additional information regarding the facility and identify any
additional potentially responsible parties
According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following
the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedial action at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made
by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter
into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In
accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by
the TCEQ Project Manager no later than 5 00 p m on December 22 2008 If after the public
meeting on the proposed remedial action the TCEQ determines that comments received at the public
meeting will not significantly change the proposed remedial action then the TCEQ will again mail
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state txus
printed on recycled paper
VODA_AR_00017914
BAXTER OIL SERVICE LTD
Page2
September 12 2008
notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith
Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a
Good Faith Offer is made by all or some of the PRPs within this period those parties have an
additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include
a scope of work The TCEQ may not require an admission of liability in the Agreed Administrative
Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed
with an Administrative Order and may complete the remedial action utilizing state funds pursuant to
the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including
oversight costs as set out in Section 361.197 of the Solid Waste Disposal Act
Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action
alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30
Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation
with off site disposal for the on site surface and subsurface soil containing contaminants above the
applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis
of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations
of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain
in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer
exceed their applicable cleanup standards An institutional control would be placed on each property
which overlies groundwater contaminated above the cleanup levels and would describe the specific
area of the contaminated groundwater plume on the affected property The institutional controls are
to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and
would remain in place until it is demonstrated that concentrations of contaminants in groundwater no
longer exceed the applicable cleanup levels These recommended alternatives are the most cost
effective reasonable and appropriate remedy to address the Site
Correspondence should be sent to my attention using mail code MC 136 at the address listed below and
must include the following assigned reference number specified in this letter SUP0670016 If you
have any questions please contact me at 512 239 2501 or email at cboucher tceq state txus
Sincerely
Carol Boucher P G Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CBsr
Enclosures
VODA_AR_00017915
Notice of meeting on October 23 2008 in Clarksville City Texas concerning the
Voda Petroleum Inc Proposed state Superfund site
The purpose of the meeting is to obtain public input and information concerning the
proposed remedy for the site
The executive director of the Texas Commission on Environmental Quality TCEQ or
commission is issuing this public notice of a proposed selection of remedy for the Voda
Petroleum state Superfund site In accordance with 30 TAC 335.349 a concerning
requirements for the remedial action and Texas Health and Safety Code THSC
361.187 concerning the proposed remedial action a public meeting regarding the
commission's selection of a proposed remedy for the Voda Petroleum Inc Proposed
state Superfund site shall be held The statute requires that the commission shall
publish notice of the meeting in the Texas Register and in a newspaper of general
circulation in the county in which the facility is located at least 30 days before the date
of the public meeting
The public meeting is scheduled for Thursday October 23 2008 7 00p m at the
Broadway Elementary School Cafeteria 200 East Broadway in Gladewater Texas
The public meeting is not a contested case hearing under the Texas Government Code
Chapter 2001
The site for which a remedy is being proposed the Voda Petroleum Inc Proposed
state Superfund site the site was proposed for listing on the state registry of
Superfund sites in the November 17 2000 edition of the Texas Register 25 TexReg
11594 11595 The site is located at 211 Duncan Road Clarksville City Gregg County
Texas
Voda Petroleum Inc aka Ultra Oil was operated as a waste oil recycling facility from
1981 until it was abandoned in 1991 The site is located in a residential neighborhood
with occupied residences directly on the east and west sides of the facility A review of
the facility waste management activity records revealed that Voda Petroleum Inc aka
Ultra Oil had received stored and processed waste gasolines oily wastes used oil
VODA_AR_00017916
mixed with methyl ethyl ketone varsol trichloroethane toluene and hexane crude oil
greases and waxes In 1996 the EPA conducted an emergency removal of 462 55
gallon drums of grease or oily wastes 14 55 gallon drums of corrosive wastes 16
above ground tanks and associated contaminated soil The site was then backfilled to
approximate the undisturbed topography to facilitate site drainage The U S
Environmental Protection Agency EPA post removal testing of soil and groundwater
samples indicated that soil and groundwater continued to be contaminated above
appropriate cleanup levels
A Feasibility Study FS dated January 2008 screened and evaluated remedial
alternatives which could be used to cleanup the site The FS report developed three 3
alternatives for remediation of surface and subsurface soils and three 3 alternatives
for shallow groundwater The commission prepared the Proposed Remedial Action
Document in June 2008 This document presents the proposed remedy and
justification for how this remedy demonstrates compliance with the relevant cleanup
standards
Based on the calculated volume of contaminated soil and the requirement for protection
of groundwater the recommended soil remedial alternative from the FS is excavation
with offsite disposal The recommended alternative is the most cost effective
reasonable and appropriate remedy to address the contaminated soil at the site
As the shallow groundwater at the site is considered a usable groundwater resource
the groundwater must be cleaned up to drinking water standards The Feasibility Study
recommended the installation of two reactive biobarriers systems The downgradient
biobarrier would consist of a line of 64 biosubstrate injection points oriented in a 320 ft
line along the margin of the plume A second biobarrier would be installed near the
source area and would consist of a line of 36 injection points along a 180 foot line The
passive barrier would be constructed by injecting biosubstrate in the upper 22 ft of the
saturated zone at injection points spaced 5 ft apart The biosubstrate would be capable
of providing a long lasting source of dissolved oxygen to promote sustained aerobic
biodegradation The recommended alternative is the most cost effective reasonable
and appropriate remedy to address the contaminated groundwater at the site
VODA_AR_00017917
All persons desiring to make comments may do so prior to or at the public meeting All
comments submitted prior to the public meeting must be received by 5 00p m on
October 22 2008 and should be sent in writing to Ms Carol Boucher PG Project
Manager TCEQ Remediation Division MC 136 P 0 Box 13087 Austin Texas
78711 3087 or facsimile at 512 239 2450 The public comment period for this action
will end at the close of the public meeting on October 23 2008
A portion of the record for this site including documents pertinent to the proposed
remedy is available for review during regular business hours at the Longview Public
Library 222 West Cotton Street Longview Texas 75601 903 237 1350 Copies of
the complete public record file may be obtained during business hours at the
commission's Records Management Center Building E First Floor Records Customer
Service MC 199 12100 Park 35 Circle Austin Texas 78753 800 633 9363 or 512
239 2920 Photocopying of file information is subject to payment of a fee Parking for
person with disabilities is available on the east side of Building D convenient to access
ramps that are between Buildings D and E
Information is also available regarding the state Superfund program at
www tceq state tx usremediation superfund sites index html
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the meeting should contact the agency at
1 800 633 9363 or 512 239 2141 Requests should be made as far in advance as
possible
For further information about this site or the public meeting please call Bruce McAnally
TCEQ Community Relations at 1 800 633 9363 extension 2141
VODA_AR_00017918
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
September 12 2008
CERTIFIED MAIL
91 7108 2133 3934 5604 8287
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT
POBOX20255
BEAUMONT TX 77720 0255
Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site
Clarksville City Gregg County Texas
Dear Sir or Madam
Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas
Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to
discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site
The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in
the county in which the facility is located at least 30 days before the date of the public meeting The
TCEQ is also required to mail the same information to each potentially responsible party PRP by
certified mail return receipt requested at least 30 days before the public meeting This letter is to
notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial
action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be
published in the Texas Register and the Longview News Journal on September 19 2008 The notice
will provide information regarding the proposed remedial action and the date time and place of the
meeting which is also included in this letter
The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is schedul ed for
Thursqay October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway
Gladewater Texas beginning at 7 00p m Tbe public comment period begins September 23 2008
and ends October 23 2008 at the close of the public meeting The public meeting is legislative in
nature and not a contested case hearing under the Texas Government Code Chapter 2001 The
meeting shall be held to discuss the proposed remedial action receive comments from the public on
the proposed remedial action obtain additional information regarding the facility and identify any
additional potentially responsible parties
According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following
the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good
Faith Offer to fu lly fund or conduct the proposed remedial action at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made
by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter
into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In
accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by
the TCEQ Project Manager no later than 5 00 p m on December 22 2008 If after the public
meeting on the proposed remedial actjon the TCEQ determines that comments received at the public
meeting will not significantly change the proposed remedial action then the TCEQ will again mail
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
printed on recycled paper
VODA_AR_00017945
BAXTER OIL SERVICE LTD
Page2
September 12 2008
notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith
Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a
Good Faith Offer is made by all or some of the PRPs within this period those parties have an
additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include
a scope of work The TCEQ may not require an admission of liability in the Agreed Administrative
Order If a Good Faith Offer not received within the specified time period the TCEQ will proceed
is
with an Administrative Order and may complete the remedial action utilizing state funds pursuant to
the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including
oversight costs as set out in Section 361.197 of the Solid Waste Disposal Act
Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action
alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30
Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation
with off site disposal for the on site surface and subsurface soil containing contaminants above the
applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis
of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations
of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain
in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer
exceed their applicable cleanup standards An institutional control would be placed on each property
which overlies groundwater contaminated above the cleanup levels and would describe the specific
area ofthe contaminated groundwater plume on the affected property The institutional controls are
to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and
would remain in place until it is demonstrated that concentrations of contaminants in groundwater no
longer exceed the applicable cleanup levels These recommended alternatives are the most cost
effective reasonable and appropriate remedy to address the Site
Correspondence should be sent to my attention using mail code MC 136 at the address listed below and
must include the following assigned reference number specified in this letter SUP0670016 If you
L
have any questions please contact me at 512 239 2501 or email at cboucher tceq state txus
Sincerely
Carol Boucher P G Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CBsr
Enclosures
VODA_AR_00017946
UNITEDSTilTE5
o6
POSTl L SERVICE
Date Produced 09 29 2008
TEXAS COMMISSION ON ENVIRONMENTAL QUALIT
The following is the delivery information for Certified Mail ™item number 7108 2133 3934
5604 8287 Our records indicate that this item was delivered on 09 24 2008 at 11 07 a m in
BEAUMONT TX 77707 The scanned image of the recipient information is provided below
rv XJ1er
Signature of Recipient
t4of
Address of Recipient 0 5
Thank you for selecting the Postal Service for your mailing needs If you require additional
assistance please contact your local post office or Postal Service representitive
Sincerely
United States Postal Service
The customer reference number shown below is not validated or endorsed by the United
States Postal Service It is solely for customer use
Customer Reference Number 136
VODA_AR_00017947
VODA_AR_00017948
Buddy Garcia Chaitman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
September 12 2008
CERTIFIED MAIL
91 7108 2133 3934 5604 8294
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT
5070 IRVING ST
BEAUMONT TX 77705 5231
Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site
Clarksville City Gregg County Texas
Dear Sir or Madam
Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas
Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to
discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site
The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in
the county in which the facility is located at least 30 days before the date of the public meeting The
TCEQ is also required to mail the same information to each potentially responsible party PRP by
certified mail return receipt requested at least 30 days before the public meeting This letter is to
notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial
action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be
published in the Texas Register and the Longview News Journal on September 19 2008 The notice
will provide information regarding the proposed remedial action and the date time and place of the
meeting which is also included in this letter
The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for
Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway
Gladewater Texas beginning at 7 00p m The public comment period begins September 23 2008
and ends October 23 2008 at the close of the public meeting The public meeting is legislative in
nature and not a contested case hearing under the Texas Government Code Chapter 2001 The
meeting shall be held to discuss the proposed remedial action receive comments from the public on
the proposed remedial action obtain additional information regarding the facility and identify any
additional potentially responsible parties
According to Section 361 187 of the Solid Waste Disposal Act PRPs have sixty 60 days following
the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedial action at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made
by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter
into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In
accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by
the TCEQ Project Manager no later than 5 00 p m on December 22 2008 f after the public
meeting on the proposed remedial action the TCEQ determines that comments received at the public
meeting wiiJ not significantly change the proposed remedial action then the TCEQ will again mail
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
printed on recycled paper
VODA_AR_00017949
BAXTER OIL SERVICE LTD
Page2
September 12 2008
notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith
Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a
Good Faith Offer is made by all or some of the PRPs with in this period those parties have an
additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which sbaU include
a scope of work Tbe TCEQ may not require an admission of liability in the Agreed Administrative
Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed
with an Administrative Order and may complete the remedial action utilizing state funds pursuant to
the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including
oversight costs as set out in Section 361.197 of the Solid Waste Disposal Act
Enc1osed is the Proposed Remedial Action Document which incJudes the proposed remedial action
alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30
Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation
with off site disposal for the on site surface and subsurface soil containing contaminants above the
applicable cleanup levels and the installation of reactive biobarrier wells witb collection and analysis
of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations
of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain
in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer
exceed their applicable cleanup standards An institutional control would be placed on each property
which overlies groundwater contaminated above the cleanup levels and would describe the specific
area of the contaminated groundwater plume on the affected property The institutional controls are
to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and
would remain in place until it is demonstrated that concentrations of contaminants in groundwater no
longer exceed the applicable cJeanup levels These recommended alternatives are the most cost
effective reasonable and appropriate remedy to address the Site
Correspondence should be sent to my attention using mail code MC 136 at the adaress listed below and
L
must include the following assigned reference number specified in this letter SUP0670016 Ifyou
have any questions please contact me at 512 2392501 or email at cboucher tceq state tx us
Sincerely
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CBsr
Enclosures
VODA_AR_00017950
6b
UNITED STIJTES
POSTAL SERVTCE w
Date Produced 11 03 2008
TEXAS COMMISSION ON ENVIRONMENTAL QUALIT
The following is the delivery information for Certified Mail ™
item number 7108 2133 3934
5604 8294 Our records indicate that this item was delivered on 10 28 2008 at 03 20 p m in
BEAUMONT TX 77705 The scanned image of the recipient information is provided below
Signature of Recipient
Address of Recipient
Thank you for selecting the Postal Service for your mailing needs If you require additional
assistance please contact your local post office or Postal Service representitive
Sincerely
United States Postal Service
The customer reference number shown below is not validated or endorsed by the United
States Postal Service It is solely for customer use
Customer Reference Number 136
VODA_AR_00017951
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
September 12 2008
CERTIFIED MAIL
91 7108 2133 3934 5604 8300
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT
RR8BOX50
BEAUMONT TX 77720
Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site
Clarksville City Gregg County Texas
Dear Sir or Madam
Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas
Commission on Environmental Quality TCEQ is required to publish notice of a pubHc meeting to
discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site
The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in
the county in which the facility is located at least 30 days before the date of the public meeting The
TCEQ is also required to mail the same information to each potentially responsible party PRP by
certified mail return receipt requested at least 30 days before the public meeting This letter is to
notify you that the TCEQ wiiJ publish a notice of the public meeting to discuss the proposed remedial
action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be
published in the Texas Register and the Longview News Journal on September 19 2008 The notice
will provide informatiqn regarding the proposed remedial action and the date time and place of the
meeting which is also included in this letter
The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for
Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway
Gladewater Texas beginning at 7 00pm The public comment period begins September 23 2008
and ends October 23 2008 at the close of the public meeting The public meeting is legislative in
nature and not a contested case hearing under the Texas Government Code Chapter 2001 The
meeting shall be held to discuss the proposed remedial action receive comments from the public on
the proposed remedial action obtain additional information regarding the facility and identify any
additional potentially responsible parties
According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following
the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedjal action at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made
by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter
into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In
accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by
the TCEQ Project Manager no later than 500 p m on December 22 2008 If after the public
meeting on the proposed remedial action the TCEQ determines that comments received at the public
meeting will not significantly change the proposed remedial action then the TCEQ will again mail
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state txus
printed on recycled paper
VODA_AR_00017952
BAXTER OIL SERVICE LTD
Page2
September 12 2008
notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith
Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a
Good Faith Offer is made by aiJ or some of the PRPs within this period those parties have an
additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include
a scope ofwork The TCEQ may not require an admission of liability in the Agreed Administrative
Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed
with an Administrative Order and may complete the remedial action utilizing state funds pursuant to
the Solid Waste Disposal Act ln such case the TCEQ wiU seek to recover aU of its costs including
oversight costs as set out in Section 361.197 ofthe Solid Waste Disposal Act
Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action
alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30
Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation
with off site disposal for the on site sutface and subsurface soil containing contaminants above the
applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis
of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations
of contaminants in the shaJlow groundwater at the Site The reactive biobarrier system would remain
in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer
exceed their applicable cleanup standards An institutional control would be placed on each property
which overlies groundwater contaminated above the cleanup levels and would describe the specific
area ofthe contaminated groundwater plume on the affected property The institutional controls are
to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and
would remain in place until it is demonstrated that concentrations of contaminants in groundwater no
longer exceed the applicable cleanup levels These recommended alternatives are the most cost
effective reasonable and appropriate remedy to address the Site
Correspondence should be sent to my attention using mail code MC136 at the address listed below and
must include the following assigned reference number specified in this letter SUP0670016 If you
L
have any questions please contact me at 512 239 2501 or email at cboucher tceg state tx us
Sincerely
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CB sr
Enclosures
VODA_AR_00017953
o6
f UNITED STATES
POSTIJL SERVICE
Date Produced 09 29 2008
TEXAS COMMISSION ON ENVIRONMENTAL QUALIT
The following is the delivery information for Certified Mail ™
item number 7108 2133 3934
5604 8300 Our records indicate that this item was delivered on 09 25 2008 at 12 32 in pm
BEAUMONT TX 77707 The scanned image of the recipient information is provided below
Signature of Recipient
Address of Recipient
Thank you for selecting the Postal Service for your mailing needs If you require additional
assistance please contact your local post office or Postal Service representitive
Sincerely
United States Postal Service
The customer reference number shown below is not validated or endorsed by the United
States Postal Service It is solely for customer use
Customer Reference Number 136
VODA_AR_00017954
November 6 2000
CERTIFIED MAIL Z 444 998 482
RETURN RECEIPT REQUESTED
BAXTER S OIL SERVICE INC
Mr Sam Baxter
PO Box 20255
RR 8 Box 50
Beaumont TX 77720
Re Voda Petroleum Inc Clarksville City Gregg County Texas
Dear Mr Baxter
This letter is a notification that the Texas Natural Resource Conservation Commission TNRCC
considers BAXTER'S OIL SERVICE INC to be a Potentially Responsible Party PRP for the Voda
Petroleum Inc site located at 211 Duncan Road in Clarksville City Gregg County Texas A
description of the site is included with this letter as Enclosure 3 Potentially Responsible Parties
include current and former landowners and facility operators and persons who were involved in the
generation transport storage processing or disposal of solid waste at the site Person is defined
at 361.003 of the Texas Solid Waste Disposal Act TEX HEALTH AND SAFETY CODE Chapter 361
to mean an individual corporation organization government or governmental subdivision or agency
business trust partnership association or other legal entity A copy of pertinent portions of the
Texas Solid Waste Disposal Act and Title 30 ofthe Texas Administrative Code TAC Subchapter
K are enclosed Also enclosed for your convenience is a list of persons which the TNRCC
considers to be PRPs for this site This letter is also a notification that the TNRCC has conducted
a reasonable search for PRPs
The TNRCC is required by the Texas Solid Waste Disposal Act to identify and assess facilities that
may constitute an imminent and substantial endangerment to public health and safety or the
environment due to a release or threatened release of hazardous substances The Voda site has been
identified as such a facility therefore it is eligible for listing on the Registry of State Superfund Sites
the Registry For this reason the site was referred to the Superfund Cleanup Section by the
Superfund Site Discovery and Assessment Team ofTNRCC for further action
VODA_AR_00030601
BAXTER'S OIL SERVICE INC
November 6 2000
Page2
NOTICE OF INTENT TO LIST VODA PETROLEUM INC SITE ON THE REGISTRY OF
STATE SUPERFUND SITES
The TNRCC will publish a notice of intent to list the facility on the state registry in the Texas
Register on December 1 2000 and in the Longview News Journal Gregg County Texas on
December 1 2000 This notice provides interested parties the opportunity to submit written
comments to the TNRCC concerning the proposed listing on the Registry and the identification
of PRPs or attend a public meeting to discuss the proposed listing Under Section 361.184 a of
the Texas Solid Waste Disposal Act the TNRCC shall publish notice of the meeting in the Texas
Register and in a newspaper of general circulation in the county in which the facility is located at
least 30days before the date of the public meeting The notice shall provide the date time place
of the meeting The TNRCC has scheduled a public meeting for 7 00p m January 11 2001 at
the City Hall Council Chambers located at 631 US 80 in Clarksville City Texas
GOOD FAITH OFFER TO COMPLETE RifFS
According to Texas Solid Waste Disposal Act 361.185 PRPs have 90 days following the date
of notice of the TNRCC's intent to list the facility on the Registry not later than 5 00 p m
March 1 2001 to respond in writing to TNRCC with a Good Faith Offer to fully fund or conduct
a Remedial Investigation Feasibility Study RifFS at the site A Good Faith Offer is defined at
30 TAC 335.342 The purpose of an RifFS is to determine the nature and extent of
contamination associated with the site and evaluate potential remedial options A Good Faith
Offer may be made by submitting correspondence which states the PRP's intent to enter into an
agreed administrative order with the TNRCC to fully fund or perform an RifFS
If a Good Faith Offer is received by the TNRCC within the specified time period respondents
will have an additional sixty 60 days to negotiate an agreed administrative order including a
scope ofwork to fully fund or conduct an RifFS
If a good faith offer to fully fund or conduct an RI FS is not received within the specified time
period the TNRCC may complete the RifFS utilizing state funds or may issue an administrative
order to require the implementation of an RifFS in accordance with Texas Solid Waste Disposal
Act 361.272 If an agreed administrative order is not successfully negotiated within the
specified time period the TNRCC will seek to recover all of its costs including oversite costs as
set out in Texas Solid Waste Disposal Act 361.197
VODA_AR_00030602
BAXTER S OIL SERVICE INC
November 6 2000
Page 3
REQUEST FOR PRODUCTION OF FINANCIAL DOCUMENTS
In accordance with Texas Solid Waste Disposal Act 361.201 and 30 TAC 335.347 the
executive director of the TNRCC will make a determination whether a PRP is financially capable
of participating in a facility investigation or remediation The executive director may submit
requests for the production of documents by any person who has or may have information
relevant to the ability of a person to pay for or perform an investigation or a remedial action at a
State Superfund site under Texas Solid Waste Disposal Act 361.182 Therefore if you believe
that you are financially incapable of funding or conducting an RifFS the TNRCC hereby requests
the production of financial information and documents to determine whether you are financially
capable of participating in a facility investigation or remediation
The requested financial information must be submitted to the TNRCC not later than 5 00p m on
January 15 2001 to allow TNRCC time to evaluate the information before the end of the 90 day
good faith offer period
BANKRUPTCY
If you believe that your responsibility as a PRP has been Discharged in Bankruptcy under Title 11
United States Code USC Section 524 or if you contend that this action is stayed pursuant to 11
USC Section 362 due to a pending bankruptcy proceeding PLEASE IMMEDIATELY provide us
with certified file stamped copies of the following documents from the bankruptcy court where
your bankruptcy case was filed so that these pleadings can be immediately reviewed and
appropriate action taken 1 Petition 2 Schedules and Statement of Affairs 3 Matrix along
with the following pleadings if applicable 4 Disclosure Statement 5 Plan of Reorganization
6 Order Confirming Plan of Reorganization and 7 Discharge Order Please also furnish any
additional pleadings from the bankruptcy court which you or your attorneys believe to be relevant
to your responsibilities for the site
NOTICE FOR CHANGE IN USE OF FACILITY
Please be aware that according to Texas Solid Waste Disposal Act 361.186 the owner or
operator of the site must provide the TNRCC with a written notice of any proposed substantial
changes in the use of the site sixty 60 days prior to any proposed change in use A substantial
change in use includes but is not limited to such actions as
• erection of a building or other structure
• agricultural activities
• paving for use as a roadway or parking lot
• creation of a park or other public or private recreational facility and
• any other activity which might interfere with an RifFS
VODA_AR_00030603
BAXTER'S OIL SERVICE INC
November 6 2000
Page4
In addition to the above please be aware that according to 30 TAC 335.346 a no person may
perform any partial or total removal activities at State Superfund sites or conduct on site
sampling testing or preliminary investigations of any type without the advance written
authorization of TNRCC
REVIEW AND COPIES OF SITE RECORDS
Interested parties may review site records during normal business hours at
Texas Natural Resource Conservation Commission
Central Records
Building D Room 190
12100 Park 35 Circle
Austin Texas 78753
Building D of the TNRCC contains a copy service which is available for copying file information
for a fee which may be billed to the requestor Due to manpower limitations TNRCC is unable
to provide copies of file material in response to telephone calls
MAILING ADDRESS OF TNRCC PROJECT MANAGER
The mailing address of the Superfund Cleanup Section Project Manager for the Voda Petroleum
Site is
Ms Carol Boucher MC 143
Superfund Cleanup Section
Texas Natural Resource Conservation Commission
P 0 Box 13087
Austin Texas 78711 3087
If you have any questions concerning this matter please call me at 512 239 2493
Sincerely
Carol Boucher Project Manager
Superfund Cleanup Section
cc Mr Garrett Arthur TNRCC Legal
Enclosure 1 List of PRPs
Enclosure 2 Texas Solid Waste Disposal Act Sections 361.182 361.184 361.185 361.186
361.197 361.271 and 30 Texas Administrative Code Subchapter K 335.342
335.346 and 335.347
Enclosure 3 Legal Description of the site
VODA_AR_00030604
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VODA_AR_00030605
1 17251
Buddy Garcia Chairman
Larry R Soward Commissioner
5 Of rJO C
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
June 2 2009
BAXTER OIL SERVICE INC
POBOX20255
BEAUMONT TX 77720 0255
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Extension of Deadline for Response Concerning Good Faith Offer
DEAR SIR I MADAM
The Texas Commission on Environmental Quality TCEQ is extending the deadline for making a good
faith offer to fully fund or perform the proposed remedial action at the above referenced site The
deadline is extended thirty 30 days from the expiration of the prior deadline therefore the new deadline
is Monday June 22 2009
Correspondence to the TCEQ regarding the Voda site should be sent to my attention using mail code MC
136 at the address listed below and must include the following assigned reference number specified in
this letter SUP0670016 If you have any questions please contact me t• 5•12 239 2501 or
cboucher tceq state tx us
Texas Commission on Environmental Quality
PO Box 13087
MC 136
Austin TX 78711 3087
Sincerely
Carol Boucher PG
Project Manager SSDAP Superfund Section
Remediation Division
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
prmted on recycled pilper
VODA_AR_00033053
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery P G Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
March 2 2009
BAXTER OIL SERVICE INC
BAXTER OIL SERVICE INC
P 0 BOX 20255
BEAUMONT TX 77720 0255
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Extension of Deadline for Response Concerning Good Faith Offer
DEAR SIR I MADAM
The Texas Commission on Environmental Quality TCEQ is extending the deadline for making a good
faith offer to fully fund or perform the proposed remedial action at the above referenced site The
deadline is extended ninety 90 days from the expiration of the prior deadline therefore the new
deadline is Friday May 21 2009 As stated in prior correspondence potentially responsible parties
PAPs are provided by statute the opportunity to make a good faith offer to fully fund or perform the
proposed remedial action at the site If a good faith offer is made by all or some of the PAPs before the
new deadline of May 21 2009 those parties will have an additional sixty 60 days to negotiate an
Agreed Administrative Order with the TCEQ to fully fund or perform the selected remedial action As
part of the Agreed Administrative Order the PAPs must also reimburse the TCEQ's expendi ures for the
site in accordance with Section 361 188 of the Texas Health and Safety Code
This extension is granted at the request of the Voda Site Group Group a group of potentially
responsible parties PAPs voluntarily formed for the purpose of negotiating a settlement and final
administrative order with the TCEQ As stated in the Texas Administrative Code and underscored in this
correspondence the executive director's ED goal in negotiating settlements is to obtain a complete
remedial investigation and remedial action by PAPs or to collect from PAPs 100 percent of the
agency's cost s Tex Admin Code 335.351 a The ED anticipates working closely with the Group
to achieve this goal and encourages all PAPs to join the Group and participate in the process The law
affords several important advantages and opportunities to cooperative parties and participating PAPs
For more information about the Group please contact Steve Morton Moltz Morton O'Toole LLP at
512 439 2172 orsmorton mmotlaw com
Correspondence to the TCEQ regarding the Voda site should be sent to my attention using mail code
MC 136 at the address listed below and must include the following assigned reference number
specified in this letter SUP0670016 If you have any questions please contact me at 512 239
2501 or cboucher tceg state txus
Sincerely
lfiL
Carol Boucher P G Project Manager
State Lead Section
Remediation Division
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
printed on recycled paper
VODA_AR_00033054
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
March 2 2009
BAXTER OIL SERVICE INC
SAM L BAXTER
5070 IRVING ST
BEAUMONT TX 77705 5231
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Extension of Deadline for Response Concerning Good Faith Offer
DEAR SIR I MADAM
The Texas Commission on Environmental Quality TCEQ is extending the deadline for making a good
faith offer to fully fund or perform the proposed remedial action at the above referenced site The
deadline is extended ninety 90 days from the expiration of the prior deadline therefore the new
deadline is Friday May 21 2009 As stated in prior correspondence potentially responsible parties
PAPs are provided by statute the opportunity to make a good faith offer to fully fund or perform the
proposed remedial action at the site If a good faith offer is made by all or some of the PAPs before the
new deadline of May 21 2009 those parties will have an additional sixty 60 days to negotiate an
Agreed Administrative Order with the TCEQ to fully fund or perform the selected remedial action As
pc rt of the Agreed Administrative Order the PAPs must also reimburse the TCEQ's expenditures for the
site in accordance with Section 361.188 of the Texas Health and Safety Code
This extension is granted at the request of the Voda Site Group Group a group of potentially
responsible parties PAPs voluntarily formed for the purpose of negotiating a settlement and final
administrative order with the TCEQ As stated in the Texas Administrative Code and underscored in this
correspondence the executive director's ED goal in negotiating settlements is to obtain a complete
remedial investigation and remedial action by PAPs or to collect from PAPs 100 percent of the
agency's cost s Tex Admin Code 335.351 a The ED anticipates working closely with the Group
to achieve this goal and encourages all PAPs to join the Group and participate in the process The law
affords several important advantages and opportunities to cooperative parties and participating PAPs
Group please
For more information about the contact Steve Morton Moltz Morton O'Toole LLP at
512 439 2172 or smorton mmotlaw com
Correspondence to the TCEQ regarding the Voda site should be sent to my attention using mail code
MC 136 at the address listed below and must include the following assigned reference number
specified in this letter SUP0670016 If you have any questions please contact me at 512 239
2501 or cboucher tceg state txus
L
Sincerely
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
printed on recycled pnper
VODA_AR_00033055
Buddy
Larry R
Garcia Chairman
Soward Commissioner
SC35
Bryan W Shaw Ph D Commissioner c7 oo
Mark R Vickery P G Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
January 5 2009
BAXTER OIL SERVICE INC
BAXTER OIL SERVICE INC
POBOX20255
BEAUMONT TX 77720 0255
Re Voda Petroleum Inc Proposed State Superfund Site
SUP0670016
Dear Sir or Madam
You are invited to a settlement conference in the referenced matter as follows
Date Monday February 2 2009
Time 1 00 p m
Place TCEQ Austin Headquarters
Bldg E Agenda Room E201S
12100 Park 35 Circle See attached map
Austin Texas 78753
You may participate by conference call if you prefer however please be aware that the call is limited to 125
participants due to technical constraints
Dial in number 1 866 456 0016
Expect an 8 to 10 second delay before connection is made
Conference room number 5033661
The purpose of this meeting is to facilitate the forming of a PRP potentially responsible party group and
the beginning of negotiations among the PRPs toward a settlement agreement with the Texas Commission
on Environmental Quality Copies of relevant evidence will be available or can be ordered Please try to
attend in person or by phone or send a representative
Thank you for your cooperation in this matter
Sincerely
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
printed on recycled paper
VODA_AR_00033056
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
December 12 2008
BAXTER OIL SERVICE LTD
POBOX20255
BEAUMONT TX 77720 0255
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial
Action RD RA
Dear Sir or Madam
On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public
meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund
Site Site A TCEQ letter dated September 12 2008 was sent to notify all identified potentially
responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary
Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD
which described the proposed remedial alternatives available for the site
The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has
reviewed and considered all public comments a summary of which is enclosed and determined that no
modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected
excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive
biobarriers for the contaminated groundwater as the final remedial actions for the Site
This letter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's
September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing
by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to
extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good
Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 p m on
February 20 2009
According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days
following the public meeting on the proposed remedy to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some
or all of the potentially responsible parties before the extended deadline of February 20 2009 those
parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to
Section 361.188 of the Code to fully fund perform the selected remedial actions As part of the Agreed
Administrative Order the potentially responsible parties must also reimburse the TCEQ's past
expenditures for the Site
If a Good Faith Offer is not received within the specified time period the TCEQ may complete the
remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to
recover all response costs pursuant to Section 361.197 for the Code
P O Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us
prinlcd on rccydcd paper
VODA_AR_00033057
BAXTER OIL SERVICE LTD
Page 2
December 12 2008
The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of
this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular
mail email or facsimile Please be sure to include a current mailing address email address or facsimile
telephone number with your request
As the TCEQ Project Manager for the Site my contact information is
Carol Boucher PG
State Lead Remediation Section
Remediation Division
MC 136
Texas Commission on Environmental Quality
P O Box 13087
Austin Texas 78711 3087
Facsimile 512 239 2303
Email cboucher tceq state tx us
Correspondence should be sent to my attention using mail code MC 136 at the address listed above and
must include the following assigned reference number specified in this letter SUP0670016 If you
have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at
cboucher tceq state txus
L
Sincerely
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CB sr
Enclosure
VODA_AR_00033058
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
December 12 2008
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT REGISTERED AGENT
5070 IRVING ST
BEAUMONT TX 77705 5231
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial
Action RD RA
Dear Sir or Madam
On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public
meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund
Site Site A TCEQ letter dated September 12 2008 was sent to notify all identified potentially
responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary
Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD
which described the proposed remedial alternatives available for the site
The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has
reviewed and considered all public comments a summary of which is enclosed and determined that no
modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected
excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive
biobarriers for the contaminated groundwater as the final remedial actions for the Site
This letter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's
September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing
by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to
extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good
Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 pm on
February 20 2009
According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days
following the public meeting on the propos d remedy to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some
or all of the potentially responsible parties before the extended deadline of February 20 2009 those
parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to
Section 361.188 of the Code to fully fund perform the selected remedial actions As part of the Agreed
Administrative Order the potentially responsible parties must also reimburse the TCEQ's past
expenditures for the Site
PO Box I 3087 • Austin Texas 787 I I 3087 • 512 239 1000 • Internet address www tceq state tx us
p1 in led on rer ydcd paper
VODA_AR_00033059
BAXTER OIL SERVICE LTD
Page 2
December 12 2008
If a Good Faith Offer is not received within the specified time period the TCEQ may complete the
remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to
recover all response costs pursuant to Section 361.197 for the Code
The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of
this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular
mail email or facsimile Please be sure to include a current mailing address email address or facsimile
telephone number with your request
As the TCEQ Project Manager for the Site my contact information is
Carol Boucher PG
State Lead Remediation Section
Remediation Division
MC 136
Texas Commission on Environmental Quality
PO Box 13087
Austin Texas 78711 3087
Facsimile 512 239 2303
Email cboucher tceg state txus
Correspondence should be sent to my attention using mail code MC 136 at the address listed above and
must include the following assigned reference number specified in this letter SUP0670016 If you
have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at
cboucher tceg state txus
L
Sincerely
Carol Boucher PG Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CBsr
Enclosure
VODA_AR_00033060
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
December 12 2008
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT REGISTERED AGENT
RR 8 BOX 50
BEAUMONT TX 77720
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial
Action RD RA
Dear Sir or Madam
On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public
meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund
Site Site A TCEQ letter dated September 12 2008 was sent to notify all identified potentially
responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary
Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD
which described the proposed remedial alternatives available for the site
The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has
reviewed and considered all public comments a summary of which is enclosed and determined that no
modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected
excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive
biobarriers for the contaminated groundwater as the final remedial actions for the Site
This letter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's
September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing
by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to
extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good
Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 p m on
February 20 2009
According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days
following the public meeting on the proposed remedy to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some
or all of the potentially responsible parties before the extended deadline of February 20 2009 those
parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to
Section 361.188 of the Code to fully fund perform the selected remedial actions As part of the Agreed
Administrative Order the potentially responsible parties must also reimburse the TCEQ's past
expenditures for the Site
P O Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state txus
prinlcd on rcL ycled rmpcr
VODA_AR_00033061
BAXTER OIL SERVICE LTD
Page 2
December 12 2008
If a Good Faith Offer is not received within the specified time period the TCEQ may complete the
remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to
recover all response costs pursuant to Section 361.197 for the Code
The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of
this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular
mail email or facsimile Please be sure to include a current mailing address email address or facsimile
telephone number with your request
As the TCEQ Project Manager for the Site my contact information is
Carol Boucher PG
State Lead Remediation Section
Remediation Division
MC 136
Texas Commission on Environmental Quality
PO Box 13087
Austin Texas 78711 3087
Facsimile 512 239 2303
Email cboucher tceq state txus
Correspondence should be sent to my attention using mail code MC 136 at the address listed above and
must include the following assigned reference number specified in this letter SUP067001 If you
have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at
cboucher tceq state tx us
Sincerely
ys L
Carol Boucher P G Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CBsr
Enclosure
VODA_AR_00033062
Buddy Garcia Chairman
Larry R Soward Commissioner
Bryan W Shaw Ph D Commissioner
Mark R Vickery PG Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
December 12 2008
BAXTER OIL SERVICE LTD
MR SAM BAXTER PRESIDENT REGISTERED AGENT
4828 N SHEPPARD
HOUSTON TX 77018 2216
Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas
Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial
Action RDIRA
Dear Sir or Madam
On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public
meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund
Site Site A TCEQ Jetter dated September 12 2008 was sent to notify all identified potentially
responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary
Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD
which described the proposed remedial alternatives available for the site
The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has
reviewed and considered all public comments a summary of which is enclosed and determined that no
modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected
excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive
biobarriers for the contaminated groundwater as the final remedial actions for the Site
This Jetter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's
September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing
by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to
extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good
Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 p m on
February 20 2009
According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days
following the public meeting on the proposed remedy to respond in writing to the TCEQ with a Good
Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is
defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some
or all of the potentially responsible parties before the extended deadline of February 20 2009 those
parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to
Section 361.1 88 of the Code to fully fund perform the selected remedial actions As part of the Agreed
Administrative Order the potentially responsible parties must also reimburse the TCEQ's past
expenditures for the Site
PO Box I 3087 • Austin Texas 7871 I 3087 • 512 239 1000 • Internet address www tceq state tx us
prinlcd on nxydcd parer
VODA_AR_00033063
BAXTER OIL SERVICE LTD
Page 2
December 12 2008
If a Good Faith Offer is not received within the specified time period the TCEQ may complete the
remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to
recover all response costs pursuant to Section 361.197 for the Code
The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of
this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular
mail email or facsimile Please be sure to include a current mailing address email address or facsimile
telephone number with your request
As the TCEQ Project Manager for the Site my contact information is
Carol Boucher PG
State Lead Remediation Section
Remediation Division
MC 136
Texas Commission on Environmental Quality
PO Box 13087
Austin Texas 78711 3087
Facsimile 512 239 2303
Email cboucher tceq state tx us
Correspondence should be sent to my attention using mail code MC 136 at the address listed above and
must include the following assigned reference number specified in this letter SUP0670016 If you
have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at
cboucher tceq state tx us
L
Sincerely
Carol Boucher P G Project Manager
State Lead Section
Remediation Division
Texas Commission on Environmental Quality
CB sr
Enclosure
VODA_AR_00033064