accepted 223efj016390134 third court of appeals … · cause no. 03-11-00129-cv in the court of...
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Cause No. 03-11-00129-CV
IN THE COURT OF APPEALSFOR THE THIRD JUDICIAL DISTRICT
AUSTIN, TEXAS
HERITAGE ON THE SAN GABRIEL HOMEOWNERS ASSOCIATION, HUTTO CITIZENS GROUP, MOUNT HUTTO AWARE CITIZENS, MAHLON ARNETT,
ROBBI ARNETT, TJFA, L.P., and JONAH WATER S.U.D.,Appellants,
v.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITYand WILLIAMSON COUNTY, TEXAS,
Appellees.
On Appeal from the 261st District Court of Travis County, TexasHon. John K. Dietz, Judge PresidingTrial Court No. D-1-GN-09-001766
INITIAL BRIEF OF APPELLANTS
James A. HemphillGRAVES DOUGHERTY HEARON
& MOODY, PC401 Congress Ave., Suite 2200Austin, Texas 78701
Marisa PeralesState Bar No. 24002750LOWERRE, FREDERICK, PERALES, ALLMON & ROCKWELL
707 Rio Grande, Suite 200Austin, Texas 78701
Lawrence G. DunbarDUNBAR HARDER PLLCOne Riverway, Suite 1850Houston, Texas 77056
James E. BradleyBRADLEY LAW FIRM
5718 Westheimer, Suite 1525Houston, Texas 77057
ATTORNEYS FOR APPELLANTSJuly 7, 2011
ORAL ARGUMENT REQUESTED
ACCEPTED223EFJ016390134 THIRD COURT OF APPEALSAUSTIN, TEXAS11 July 7 P3:55Jeffrey D. KyleCLERK
i
IDENTITY OF PARTIES AND COUNSEL
Plaintiffs/Appellants: Heritage on the San Gabriel Homeowners Association,
Hutto Citizens Group, Mount Hutto Aware Citizens, Mahlon Arnett, Robbi Arnett, TJFA,
L.P., and Jonah Water S.U.D.
Attorneys for Plaintiffs/Appellants: For all Appellants other than Jonah
Water S.U.D.: Larry Dunbar of Dunbar Harder PLLC, One Riverway, Suite 1850,
Houston, Texas 77056; James E. Bradley of the Bradley Law Firm, 5718 Westheimer,
Suite 1525, Houston, Texas 77057; and James A. Hemphill of Graves Dougherty Hearon
& Moody, PC, 401 Congress Ave, Suite 2200, Austin, Texas, 78701. For all Appellants
other than TJFA, L.P.: Marisa Perales of Lowerre, Frederick, Perales, Allmon &
Rockwell, 707 Rio Grande, Suite 200, Austin, Texas, 78701.
Defendant/Appellee: Texas Commission on Environmental Quality (TCEQ).
Defendant/Appellee’s Attorneys: Greg Abbott, C. Andrew Weber, David S.
Morales, Barbara B. Deane, David Preister, Cynthia Woelk, Nancy Elizabeth Olinger,
and Brian E. Berwick of the Office of the Attorney General, P.O. Box 12548, Austin,
Texas 78711.
Intervenor Defendant/Appellee: Williamson County, Texas.
Intervenor Defendant/Appellee’s Attorneys: R. Mark Dietz of Dietz & Jarrard,
P.C., 106 Fannin Avenue East, Round Rock, Texas 78664.
ii
TABLE OF CONTENTSpage
IDENTITY OF PARTIES AND COUNSEL....................................................................... i
TABLE OF CONTENTS .................................................................................................... ii
TABLE OF AUTHORITIES............................................................................................... v
ABBREVIATIONS AND RECORD CITATIONS.........................................................viii
STATEMENT OF THE CASE .......................................................................................... ix
STATEMENT REGARDING ORAL ARGUMENT ........................................................ xi
ISSUES PRESENTED ......................................................................................................xii
STATEMENT OF FACTS.................................................................................................. 1
1. History of the Permit Expansion Application Process and the Owner/Operator Issue.................................................................................... 1
2. Evidence Presented on Other Relevant Issues at the Contested Case Hearing .......................................................................................................... 5
A. Stormwater runoff drainage. .............................................................. 5
B. Hydrogeology and groundwater monitoring...................................... 5
C. Land use analysis ............................................................................... 6
3. The TCEQ’s Order Granting the Application ............................................... 7
SUMMARY OF ARGUMENT........................................................................................... 9
ARGUMENT AND AUTHORITIES ............................................................................... 11
I. Standards of Review: This Case Presents Both Legal and “Substantial Evidence” Issues..................................................................................................... 11
iii
II. The TCEQ Erred in Holding that Waste Management of Texas is the “Operator” of the Landfill under the Health & Safety Code, and in Holding that the Application was Properly Submitted by Waste Management................... 13
A. The Health & Safety Code equates “operator” with “person in charge of the facility.”. ................................................................................ 14
B. The TCEQ erroneously interpreted the Health & Safety Code by concluding that the “operator” was an entity other than the “person in charge of the facility.”............................................................................. 15
1. A “330 Operator” – a party that manages a portion of a landfill, but not the “operator” as the term is used in the Health & Safety Code ...................................................................... 16
2. The “330 Site Operator” – a concept equivalent to the “Statutory Operator,” but not WMTX ............................................. 17
3. The “305 Operator” – the functional equivalent of the “Statutory Operator,” here, Williamson County .............................. 18
C. The TCEQ’s erroneous interpretation of the Health & Safety Code has potentially serious ramifications related to ownership and control of a valuable public asset, and for the landfill permitting system............... 19
D. The TCEQ erred by holding that WMTX properly submitted the application; the County, not WMTX, is the proper applicant..................... 22
III. The County Did Not Prove that Increases in Stormwater Runoff Volume Would Not Be Significant Alterations of Natural Drainage Patterns .................... 25
A. TCEQ Rules require an applicant to provide discussion and analyses to demonstrate that changes in drainage due to landfill construction will not have significant adverse effects ..................................................... 25
B. TCEQ precedent wrongly allows applicants to demonstrate “no significant alteration” with absolutely no consideration of actual downstream impact of increased stormwater runoff ................................... 26
C. If the TCEQ may properly ignore downstream impact, then the County here failed to prove “no significant impact” when limiting the analysis to the Landfill permit boundaries ............................................ 29
iv
D. The TCEQ cannot ignore increases in total runoff volume ........................ 30
IV. The County Did Not Thoroughly Characterize the Soil at the Landfill Site. ........ 31
A. TCEQ Rules require an applicant to properly test and characterize the geology/hydrogeology of a proposed landfill expansion site................ 31
B. The relevant geological layers at the Landfill expansion site are the surficial clay, the claystone, and the limestone........................................... 32
C. The TCEQ violated its own rules by not requiring Williamson County to test the horizontal hydraulic conductivity/permeability in the fractured claystone at the new expansion area ...................................... 33
D. Williamson County’s failure to test the fractured portion of the claystone at the expansion area led to the design of an inadequate groundwater monitoring system.................................................................. 35
V. The TCEQ Erroneously Found that the Proposed Landfill Expansion is Compatible with Surrounding Land Uses .............................................................. 36
A. The TCEQ Rules require a showing of land use compatibility .................. 37
B. Williamson County did not include a land use analysis in its application or in its case-in-chief; the data it did include was inadequate.................................................................................................... 38
C. It was improper for the County to present its first purported land use analysis in rebuttal....................................................................................... 42
VI. The TCEQ erred in revising the operating hours for the landfill. .......................... 43
VII. The TCEQ Ignored its Own Rules in Assessing Reporting and Transcription Costs................................................................................................. 44
CONCLUSION AND PRAYER....................................................................................... 48
CERTIFICATE OF SERVICE ..............................................................................................50
INDEX TO APPENDIX.........................................................................................................51
v
TABLE OF AUTHORITIES
CASES: page
BFI Waste Systems of N. Am. v. Martinez Env. Group,93 S.W.3d 570 (Tex. App. – Austin 2002, pet. denied) ........................12-13, 35, 36
Broadhurst v. Employees Retirement System of Texas,83 S.W.3d 320 (Tex. App. – Austin 2002, pet denied) .......................................... 11
First Am. Title Ins. Co. v. Combs,258 S.W.3d 627 (Tex. 2008) ............................................................................ 11, 13
General Motors Corp. v. Bray,243 S.W.3d 678 (Tex. App. – Austin 2007, no pet.).............................................. 29
Gulf Coast Coalition of Cities v. Public Utility Com’n,161 S.W.3d 706 (Tex. App. –Austin 2005, no pet.)....................................12-13, 28
Hunter Industrial Facilities v. Texas Natural Resource Conservation Commission,910 S.W. 2d 96 (Tex. App. – Austin 1995, writ denied) ....................................... 47
Railroad Comm’n v. Texas Citizens for a Safe Future and Clean Water,226 S.W.3d 619 (Tex. 2011) .................................................................................. 11
Texas Ass’n of Bus. v. Texas Air Control Bd.,852 S.W.2d 440 (Tex. 1993) .................................................................................. 48
Texas Ind. Traffic League v. Railroad Comm’n,628 S.W.2d 187, 197 (Tex. App. – Austin),rev’d on other grounds, 633 S.W.2d 821 (Tex. 1982) ........................................... 48
Texas State Bd. of Dental Examiners v. Sizemore,759 S.W.2d 114 (Tex. 1988), cert. denied, 490 U.S. 1080 (1989) ........................ 12
TGS-NOPEC Geophysical Co. v. Combs,268 S.W.3d 637 (Tex. App. – Austin 2008), rev’d on other grounds,2011 WL 2112763,54 Tex. Sup. Ct. J. 1023 (Tex. May 27, 2011)........................ 12
STATUTES:
TEX. GOV’T CODE § 2001.051 .......................................................................................... 42
vi
TEX. GOV’T CODE § 2001.174 .....................................................................................12-13
TEX. HEALTH & SAFETY CODE § 361.002......................................................................... 26
TEX. HEALTH & SAFETY CODE § 361.069......................................................................... 36
TEX. HEALTH & SAFETY CODE § 361.087..............................................................11, 14-22
TEX. HEALTH & SAFETY CODE § 361.0832............................................................44, 46-48
RULES:
Citations to the Texas Administrative Code are to the version in effect at the time of the permit amendment application here at issue. Copies of relevant rules are attached in the Appendix to this Brief.
30 TEX. ADMIN. CODE § 80.17 .................................................................................... 38, 42
30 TEX. ADMIN. CODE § 80.23 .......................................................................................... 45
30 TEX. ADMIN. CODE § 80.117 ........................................................................................ 42
30 TEX. ADMIN. CODE § 305.1 .......................................................................................... 18
30 TEX. ADMIN. CODE § 305.2 .......................................................................................... 19
30 TEX. ADMIN. CODE § 305.43 ........................................................................................ 23
30 TEX. ADMIN. CODE § 330.02 ...............................................................................2, 16-18
30 TEX. ADMIN. CODE § 330.51 ........................................................................................ 24
30 TEX. ADMIN. CODE § 330.53 ............................................................................ 37, 39, 41
30 TEX. ADMIN. CODE § 330.56 ............................................................................ 26, 31, 34
30 TEX. ADMIN. CODE § 330.118 ...................................................................................... 44
30 TEX. ADMIN. CODE § 330.231 ...........................................................................31-32, 35
vii
OTHER MATERIALS:
TCEQ Guidance Document RG-417, “Guidelines for Preparing a Surface Water Drainage Plan for a Municipal Solid Waste Facility” (June 2004) ...................29-30
viii
ABBREVIATIONS AND RECORD CITATIONS
The following abbreviations and notations are used in this Brief:
AR__ Citations to the Administrative Record, which is in this Court as Joint Exhibit 1 to the Reporter’s Record. Citations to the AR will be followed by a volume number, e.g. AR21, and also will include a citation to the particular document that is within the cited volume of the AR. Such citations will include the following:
App-___: Citations to documents included in the Application to the TCEQ for the permit amendment here at issue, e.g. AR21, App-100 at 6.
T-___: Citations to the multi-volume transcript of the contested case hearing at the State Office of Administrative Hearings, e.g.AR24, T-2 at 43-44.
CR __ Citations to the Clerk’s Record. The citation to CR will be followed by the page(s) being cited, e.g. CR 154-55.
Apdx. tab __ References to the Appendix to the Brief of Appellants.
TCEQ Appellee Texas Commission on Environmental Quality.
ix
STATEMENT OF THE CASE
This is an appeal from the decision of the Texas Commission on Environmental
Quality (TCEQ) granting an application for a permit to greatly expand the Williamson
County Recycling and Disposal Facility (the “Landfill”), located near Hutto, Texas.
Williamson County owns both the real property on which the Landfill is located and the
TCEQ permit allowing operation of a landfill at the site. The County has a contract with
Waste Management of Texas, Inc. (WMTX) under which WMTX manages day-to-day
operations at the Landfill.
The permit amendment application was opposed by many nearby landowners,
including Appellants, citing health and safety reasons as well as procedural irregularities
in the application process, running from the inception of the process through the content
of the proposed amended permit. Appellants were found to have standing to participate
as parties in the administrative proceedings. WMTX was not a party to those
proceedings.
The application was filed with the TCEQ in two stages, the first in October of
2003 and the second in February 2005. The TCEQ declared the application
administratively complete in February 2006. SOAH jurisdiction was established and a
preliminary hearing was held on October 26, 2006.
The hearing on the merits was held on August 20-30, 2007, and the Proposal for
Decision (PFD) was issued by SOAH Administrative Law Judges Travis Vickery and
Henry D. Card on February 14, 2008. At its agenda meeting on February 11, 2009, the
TCEQ granted Williamson County its permit after having altered the Administrative Law
x
Judge’s Proposal for Decision, Findings of Fact and Conclusions of Law. The TCEQ’s
Order was signed on February 17, 2009. Plaintiffs timely filed Motions for Rehearing.
The TCEQ failed to rule on the motions and they were overruled by operation of law.
Appellants filed two separate District Court lawsuits seeking judicial review and
reversal of the final decision by the TCEQ; those lawsuits were consolidated. Waste
Management of Texas, which was not a party to the administrative proceedings though
the TCEQ ordered that it be listed on the face of the permit as the Landfill’s “Operator,”
filed petitions for intervention in the two lawsuits before consolidation. The court
granted Appellants’ motions to strike those interventions.
After merits briefing, the District Court heard argument on December 16, 2010.
At the argument, counsel for the County represented that the County would not seek to
recover attorneys’ fees from Appellants. On February 1, 2011, the District Court entered
its Final Order affirming the TCEQ’s decision in whole. Appellants Heritage on the San
Gabriel Homeowners Association, Hutto Citizens Group, Mount Hutto Aware Citizens,
Mahlon Arnett, Robbi Arnett, and TJFA, L.P. timely filed their Notice of Appeal on
March 2, 2011. Appellant Jonah Water S.U.D. thereafter filed its Notice of Appeal on
March 14, 2011; such notice was timely under Rule 26.1(d), Texas Rules of Appellate
Procedure.
All Appellants now file their Initial Brief in this Court.
xi
STATEMENT REGARDING ORAL ARGUMENT
Appellants respectfully request oral argument. This case includes a question of
statutory interpretation that has not been previously decided by any Court of Appeals, and
that could substantially impact how landfill permits are issued in dozens, if not hundreds,
of cases across Texas. It also raises important questions regarding whether the TCEQ’s
practices in reviewing landfill permit applications with regard to increased stormwater
runoff and soil permeability testing are consistent with the Legislature’s directives to the
agency. These questions of law would benefit from oral argument.
xii
ISSUES PRESENTED
1. Did the Legislature intend to require municipal solid waste permits always to identify the person in charge of the facility, or did it instead intend a system in which the permit need not identify the person in charge of the facility in some cases, but in which all landfill contractors – even short-term contractors managing only a portion of the facility – are always required to be specifically identified on the permit?
2. Did the TCEQ act in a manner contrary to its own rules, and/or the Legislature’s mandate of protection of health, safety, and the environment, when it refused to consider the impact on nearby properties of greatly increased stormwater runoff from landfill development?
2a. In the alternative, if the TCEQ can ignore offsite impact of increased stormwater runoff, did it act arbitrarily and capriciously, and/or contrary to substantial evidence, when it determined that a two-and-a-half-times increase in runoff does not constitute a significant alteration of natural drainage patterns?
3. Did the TCEQ act in a manner contrary to its own rules, and/or the Legislature’s mandate of protection of health, safety, and the environment, when it did not require Williamson County to test the ability of fractured claystone at the Landfill site to transmit contaminants, or to monitor all portions of the claystone for groundwater contamination, when the County proposes to dispose waste into claystone?
4. Is the TCEQ’s conclusion that the proposed Landfill expansion is compatible with surrounding land use inconsistent with the Health & Safety Code and the TCEQ’s own rules, arbitrary and capricious, or unsupported by any evidence?
5. Did the TCEQ violate its rules by changing the recommendation of the Administrative Law Judges on the proper landfill operating hours?
6. Did the TCEQ violate its own rules, and/or the Health & Safety Code, by disregarding the ALJs’ recommendation on allocation of transcription fees, and the TCEQ’s own finding, without discussing any evidence or policy reasons for its determination?
1
STATEMENT OF FACTS
1. History of the Permit Expansion Application Process and the Owner/Operator Issue.
Williamson County applied to the TCEQ for an amendment to its permit that
would allow expansion of its landfill from approximately 160 acres to approximately 423
acres.1 The County owns the Williamson County Recycling and Disposal Facility (the
“Landfill”) and is responsible for its overall operation.2 The expansion will greatly
increase the amount of waste disposed at the Landfill, from the pre-expansion level of
about 1000 tons per day to about 4100 tons per day.3
The Landfill is located near Hutto, one of the fastest-growing communities in
Williamson County. The proposal to expand the Landfill raised concern among many
residents in or near Hutto. Three well-attended public hearings on the proposed
expansion were held in the town, where residents expressed concerns over several issues,
including who would be ultimately responsible for operations at the County’s Landfill.4
During the application process, it became clear that the permit under which the
Landfill had been operating since 1995 contained what all parties ultimately admitted was
an error. That permit identifies Waste Management of Texas, Inc. (WMTX) as the “site
operator” at the Landfill.5 TCEQ representatives testified that such a designation is
1 AR21, App-100 (Gattis prefiled testimony) at 6.2 Id. at 4, 8; AR25, T-3 at 36-37 (Gattis testimony).3 AR21, App-100 (Gattis prefiled testimony) at 6.4 AR24, T-2 at 43-44 (Gattis testimony); AR26, T-8 at 1418-19; AR28, T-9 at 1584-87 (Prompuntagorn testimony).5 AR21, App-214.
2
improper,6 because the set of TCEQ rules that includes a definition of “site operator”
defines the term as “[t]he holder of, or the applicant for, a permit (or license) for a
municipal solid waste site.”7 County representatives testified that the County, not
WMTX, is the holder of the permit.8 WMTX does not own the land, does not hold the
permit, and is not ultimately responsible for the overall operation of the Landfill. Instead,
WMTX provides day-to-day landfill management services under a contract with the
County.
WMTX also requested that the engineer compiling the application here at issue list
WMTX, along with the County, as an “applicant” for a permit amendment.9 That
engineer, James Murray, could not explain why WMTX (a contractor) was listed as an
applicant for an amended permit – a permit owned solely by the County – other than that
WMTX wanted to be so listed.10 As of the date of the hearing, WMTX had never asked
Mr. Murray to remove its name as an applicant.11 Mr. Murray acknowledged that the
application contained “errors and discrepancies” regarding the identity of the applicant.12
6 AR27, T-8 at 1518-21 (Prompuntagorn testimony).7 30 TEX. ADMIN. CODE § 330.02(132). All citations herein to the Texas Administrative Code will be to the version applicable to this application, which is those in effect as of December 2, 2004. Copies of relevant provision are attached in the Appendix to this Brief.8 See, e.g., AR25, T-3 at 52 (Gattis testimony).9 AR25, T-3 at 191-93 (Murray testimony). The portion of the application listing WMTX as an “Applicant” is at pages 13-15 of App-202.10 AR25, T-3 at 191-96.11 Id.12 AR25, T-4 at 367.
3
Similarly, some of the published notices of the application stated that both the
County and WMTX had “applied” for the permit amendment.13 Again, Mr. Murray
could not explain why WMTX was listed in this manner, though he did admit these
published notices were confusing and incorrect.14
TCEQ typically issues a draft permit before a permit application is finally
approved. The first draft permit issued pursuant to this application listed WMTX as an
“operator.”15 In response, WMTX (along with a County representative) requested that
the draft permit be reissued showing WMTX as “site operator,” just as WMTX is
erroneously listed on the previous permit.16 The TCEQ complied. This is how the draft
permit identified WMTX at the beginning of the contested case hearing.17
Several protestants, including all Appellants, became parties to the contested case
hearing. WMTX was not a party, even though the TCEQ had labeled WMTX as the
holder of, or applicant for, the permit. Appellants include individual Williamson County
citizens who own property within a mile of the Landfill, two associations of homeowners
in the Landfill’s vicinity, a group of Hutto-area residents dedicated to participating in the
public debate of issues affecting the future of the City of Hutto and surrounding areas, a
limited partnership that owns land near the Landfill, and a special water district near the
Landfill.
13 See, e.g., AR21, App-204 at 4, 7,10.14 AR25, T-3 at 181-85.15 ED Ex. 10.16 AR27, T-8 at 1541-43 (Promputagorn testimony).17 App-205.
4
Due to the above-described confusion, including the incorrect public notices,
several parties to the contested case filed pleas to the jurisdiction.18 The Administrative
Law Judges denied the pleas, but carried the issues regarding the proper “operator,”
“applicant,” and “permittee” with the case.
Early in the hearing, County Judge Dan Gattis testified that the County intended
that it be the sole applicant and permittee, and intended that WMTX be neither the
applicant nor the permittee.19 Judge Gattis testified that (because WMTX was involved
with the Landfill only through its contract with the County) he believed the County had
the power to remove WMTX as a contractor, but because WMTX was named on the
permit, the County would have to seek permission from the TCEQ,20 thus giving WMTX
special status not held by all landfill contractors. Judge Gattis further testified that it was
not the County’s idea to name WMTX on the face of the permit, and that the County had
no problem with WMTX’s name being removed from the permit altogether.21
Eventually, at the end of the hearing, yet another draft permit was issued by
TCEQ, this one identifying the County as the “owner” and “site operator,” and WMTX as
the “operator.” The ultimately-issued permit listed the County and WMTX in the same
way.
18 AR15-96, 98, 100.19 AR24, T-2 at 8, 40.20 Id. at 76-77.21 Id. at 10-11, 103.
5
2. Evidence Presented on Other Relevant Issues at the Contested Case Hearing.
A. Stormwater runoff drainage.
James Roy Murray was the engineer who prepared most of the technical portions
of the application for Williamson County, including the stormwater runoff/drainage plan.
Mr. Murray testified that the development of the Landfill expansion would change the
patterns of stormwater runoff from the pre-development conditions. Specifically, at two
points where water runs off the property – identified as Drainage Points A and B – the
total runoff volume from a 25-year, 24-hour storm event would increase. He testified that
at Point A, the volume would increase about 50 percent, and at Point B, the volume
would increase about two and a half times.22
The County did not study what impact, if any, this increase in runoff would have
on properties adjacent to, or nearby, the Landfill.23 There was no study of potential
offsite impact because the County understood that the TCEQ looks only at drainage
changes at the permit boundary and does not consider how increased runoff might affect
nearby properties.24
B. Hydrogeology and groundwater monitoring.
The three soil layers, or strata, immediately beneath the Landfill expansion site are
the surficial clay, the claystone, and the limestone.25 The County proposes disposing
22 AR25, T-3, at 311-13.23 AR25, T-3, at 262-63.24 AR25, T-3, at 262-63.25 App-202 at 402.
6
waste in the first two strata.26 The County’s geologist, Katherine Gallup, testified that
there are cracks or fractures in the claystone that could serve as pathways for migration of
pollutants from the Landfill.27
The County did not perform tests to determine the rate of potential migration of
pollutants through fractured claystone. Rather, such tests – called hydraulic conductivity
tests – were performed only on unfractured claystone.28
The County also determined to monitor potential groundwater migration only at
the boundaries between strata. There is no proposed groundwater monitoring within the
claystone that would detect migration of contaminants through potential fractures in the
claystone.29
C. Land use analysis.
Williamson County included in its application certain data on surrounding land
use that are required under TCEQ Rules, but did not include an actual land use analysis.
The County’s only witness to address land use issues during its case-in-chief at the
contested case hearing, engineer James Murray, did not present a land use analysis and
conceded that he is not a land use professional.30 The only TCEQ witness to address land
use testified that he merely checked to make sure the required data was included in the
26 AR25, T-4 at 594-95 (Gallup testimony).27 Id. at 551-52.28 AR28, T-9 at 1648-49.29 AR25, T-4 at 600, 602.30 AR24, T-2 at 115; AR25, T-3 at 418.
7
application and did not verify that information or conduct any analysis.31 In rebuttal, the
County presented a land use expert, who testified that his analysis was limited due to his
status as a rebuttal expert.32
3. The TCEQ’s Order Granting the Application.
On February 17, 2009, the TCEQ issued its Order granting the permit amendment
application. (This Order is cited herein as “TCEQ Order”; a copy is attached as
Appendix A.) Among other findings and conclusions, the TCEQ Order:
Concluded that the Health & Safety Code’s reference to “operator” does notmean “person in charge of the facility,” but instead encompasses any entity that manages any portion of a landfill (such as contractors like WMTX). (Conclusion of Law (“CoL”) 17)
Concluded that WMTX must be identified on the permit as the “operator.” (CoL 18)
Concluded that WMTX properly submitted the application “on behalf of Williamson County.” (CoL 19)
Concluded that analysis of drainage patterns cannot include consideration of downstream effects. (CoL 47)
Found and concluded that the proposed expansion would not significantly alter natural drainage patterns, despite finding that the runoff volume at Discharge Point B increased by more than two times. (Finding of Fact (“FoF”) 142, 144, CoL 48)
Concluded that the County submitted an adequate subsurface investigation report and met requirements concerning groundwater protection. (CoL 43, 45)
Concluded that the proposed expansion “is compatible with surrounding land uses.” (CoL 23)
31 AR27, T-8 at 1428-29, 1430, 1440.32 AR29, T-10 at 1837, 1904.
8
The Administrative Law Judges had recommended that all costs related to the
reporting of the contested case hearing be paid by Williamson County, the applicant. The
ALJs determined that the record included “no evidence regarding the parties’ financial
ability to pay the reporting costs,”33 and that “the issues raised by the Protestants were
reasonable and well presented.”34 The TCEQ departed from this recommendation and
assessed half of the costs to the Protestants, stating only that its determination was “based
on the evidentiary record and for policy reasons.”35
In affirming the TCEQ Order, the District Court made no substantive comment.
Rather, it said:
The Commission’s application and interpretation of its rules and the enabling statute are reasonable and subject to deference by this Court. Substantial evidence supports the Order of the Commission. The Court finds no reversible error in the Commission’s action.36
33 AR19-182 at 28 (Proposed Order, FoF #185).34 Id. (FoF #189).35 TCEQ Order at 38, Explanation of Changes #4.36 District Court Order at 1, CR 1315 (copy attached at Apdx. Tab E).
9
SUMMARY OF ARGUMENT
The landfill “operator.” The TCEQ committed legal error by interpreting the
Health & Safety Code to require landfill permits to specifically identify any contractor
hired to manage even a portion of the landfill. The statute requires permits to specifically
identify only (1) the owner of the land on which a landfill is located, and (2) the person in
charge of the landfill’s overall operations, if different from the landowner. Here,
Williamson County is both the landowner and the person in charge. However, the TCEQ
interpreted the statute to require the permit to identify Waste Management of Texas,
which provides day-to-day landfill management services under contract to the County
and which neither owns nor is ultimately in charge of the landfill. This erroneous
statutory interpretation creates the potential for a private entity to claim some degree of
ownership or control over the landfill permit, which is a valuable asset properly
belonging to the citizens and taxpayers of Williamson County. The TCEQ’s erroneous
interpretation also has serious ramifications for the manner in which landfill permits are
issued and amended.
Increases in stormwater runoff. The TCEQ applied its policy of not considering
the impact of increased stormwater runoff on downstream properties in determining
whether the landfill expansion would significantly alter natural drainage patterns. This
policy is inconsistent with the Legislature’s command that the TCEQ operate to
“safeguard the health, welfare, and physical property of the people and to protect the
environment”; such safeguarding is not possible if the effect of increased runoff on
neighboring properties is not considered. In the alternative, if the TCEQ does have the
10
discretion to ignore downstream impact, here the evidence showed significantly increased
runoff at the landfill’s boundaries; given the admitted increased runoff, a finding of no
significant alteration of natural drainage patterns is not supported by substantial evidence
and is arbitrary and capricious.
Soil testing. The TCEQ failed to follow its own rules when it did not require the
County to test the degree to which contaminated water may pass through fractured
claystone at the landfill site. The TCEQ’s rules require testing of each soil layer in which
solid waste is to be deposited. Though the County did test the claystone, it only tested
unfractured samples. The actual claystone at the landfill site contains fractures, and thus
is more likely to allow contaminated groundwater to migrate outside the landfill. The
TCEQ erred further by failing to require the County to install groundwater monitoring
wells in the fractured claystone.
Land use compatibility. Williamson County did not include any land use
compatibility analysis in its permit amendment application or in its case-in-chief during
the administrative hearing. It provided only certain data without any analysis. After
Appellants pointed this out at the hearing, the County attempted to introduce analysis for
the first time in rebuttal. The TCEQ erred by finding that this analysis was properly
introduced and sufficient to meet the statutory requirement of land use analysis.
Operating hours. The Administrative Law Judges recommended that landfill
operations be allowed Monday through Friday, 5:00 a.m. to 8:00 p.m. and Saturday 6:00
a.m. to 4:00 p.m. The TCEQ changed this recommendation, allowing expanded heavy
equipment operations and transportation beginning at 3:00 a.m. and lasting until 10:00
11
p.m., Monday through Saturday Although the TCEQ characterized this as a
“clarification,” it was actually a substantive alteration made without supporting evidence
and with no consideration of the impact on surrounding land uses.
Transcription fees. The Administrative Law Judges recommended that the
County pay all the fees for the transcription of the administrative hearing. The TCEQ
changed this recommendation, assessing half the costs on Appellants, even though there
was no finding of fact on an issue required to be considered in assessing such costs.
ARGUMENT AND AUTHORITIES
I. Standards of Review: This Case Presents Both Legal and “Substantial Evidence” Issues.
The issue of whether WMTX is the Landfill’s “operator” under Section 361.087 of
the Texas Health & Safety Code is a question of statutory interpretation, which is
typically an issue of law. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.
2008). The TCEQ’s interpretation of the statute is entitled to deference “so long as that
construction is reasonable and does not contradict the plain language of the statute,” but
such deference applies only if the statutory language is ambiguous. Broadhurst v.
Employees Retirement System of Texas, 83 S.W.3d 320, 323 (Tex. App. – Austin 2002,
pet denied); accord Railroad Comm’n v. Texas Citizens for a Safe Future and Clean
Water, 226 S.W.3d 619, 625 (Tex. 2011) (deference to agency interpretation of a statute
is appropriate only if the statutory language at issue is ambiguous). Appellants submit
that the TCEQ’s construction is not reasonable and does contradict the statute’s plain
language, and thus is entitled to no deference.
12
The issue of whether the TCEQ’s blanket refusal to consider off-site impact of
increased stormwater runoff is consistent with the objectives of the Legislature in
commanding protection of health, safety, and the environment is a question of law. Gulf
Coast Coalition of Cities v. Public Utility Com’n, 161 S.W.3d 706, 711-12 (Tex. App. –
Austin 2005, no pet.). (This same legal question is pending before this Court in Cause
No. 03-10-00016-CV, TJFA, L.P. and Concerned Citizens and Landowners v. TCEQ,
which was submitted on the briefs on August 5, 2010 and is currently awaiting decision.)
If this Court concludes that the TCEQ has the discretion in some cases to consider off-
site impact, its failure to consider this factor in this particular case was a failure to
consider a relevant factor and/or leads to an unreasonable result, which is an issue
reviewed under an abuse of discretion/arbitrary and capricious standard. TGS-NOPEC
Geophysical Co. v. Combs, 268 S.W.3d 637, 652 (Tex. App. – Austin 2008), rev’d on
other grounds, 2011 WL 2112763, 54 Tex. Sup. Ct. J. 1023 (Tex. May 27, 2011). In the
alternative, the TCEQ’s decision that the increases in peak flow at the permit boundaries
in this case do not constitute “significant alteration” of natural drainage patterns is
reviewed under the “substantial evidence” standard, TEX. GOV’T CODE § 2001.174, under
which an agency’s decision will be overturned if reasonable minds could not have
reached the same decision as the agency. See, e.g., Texas State Bd. of Dental Examiners
v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S. 1080 (1989).
Whether the TCEQ failed to follow its own rules in not requiring testing of all soil
layers beneath the proposed Landfill expansion site is a legal issue reviewed de novo.
See, e.g., BFI Waste Systems of N. Am. v. Martinez Env. Group, 93 S.W.3d 570, 575
13
(Tex. App. – Austin 2002, pet. denied). In the alternative, the TCEQ’s decision that the
County did testing adequate to protect the environment is reviewed under the “substantial
evidence” standard. TEX. GOV’T CODE § 2001.174.
Whether the TCEQ used the proper method to determine whether the permit
amendment application complied with the statutory command of a finding of land use
compatibility is a question of law reviewed de novo. Gulf Coast Coalition of Cities v.
Public Utility Com’n, 161 S.W.3d 706, 711-12 (Tex. App. –Austin 2005, no pet.).
Whether the TCEQ complied with statutory requirements in explaining its changes of the
Administrative Law Judges’ findings is an issue of law involving interpretation and
application of a statute. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.
2008). In the alternative, the TCEQ’s decision that the County proved land use
compatibility is reviewed under the “substantial evidence” standard. TEX. GOV’T CODE
§ 2001.174.
Whether the TCEQ erred in its allocation of transcript fees due to its failure to
follow its own rules is a question of law reviewed de novo. See, e.g., BFI Waste Systems
of N. Am. v. Martinez Env. Group, 93 S.W.3d 570, 575 (Tex. App. – Austin 2002, pet.
denied). In the alternative, the TCEQ’s transcript cost allocations are reviewed under the
“arbitrary and capricious” standard.
II. The TCEQ Erred in Holding that Waste Management of Texas is the “Operator” of the Landfill under the Health & Safety Code, and in Holding that the Application was Properly Submitted by Waste Management.
The issues involved with determining the appropriate “operator” of the Landfill
for purposes of the Health & Safety Code may appear, at first blush, to be unduly
14
complicated and not highly material. However, the issue actually is of great importance
to Appellants and other citizens of Williamson County, because it implicates the
ownership of a very valuable public asset: the permit to operate the Landfill. The
complexity arises from the TCEQ’s unfortunate adoption of two different regulatory
definitions of the term “operator.” The issue presented to the Court, however, is the
meaning of the term “operator” as used in a statute, not any TCEQ rule.
A. The Health & Safety Code equates “operator” with “person in charge of the facility.”
Williamson County, not WMTX, is the statutory “operator” of the landfill. In
considering WMTX to be the “operator” for purposes of Section 361.087 of the Health
and Safety Code, the TCEQ has erroneously interpreted the language and intent of the
statute, which provides (in relevant part):
A permit issued under this subchapter must include:
(1) the name and address of each person who owns the land on which the solid waste facility is located and the person who is or will be the operator or person in charge of the facility ….
TEX. HEALTH & SAFETY CODE § 361.087 (emphasis added). The statute does not include
a definition of “operator,” and does not incorporate or refer to any portion of the Texas
Administrative Code.
The statute requires permits to identify a maximum of two persons or entities: (1)
the owner of the land, and (2) the “operator or person in charge of the facility,” if
different than the landowner. There are circumstances in which the landowner is not the
“operator” or “in charge of” a landfill. For example, a governmental body may own land
15
that it leases to a private landfill management company in an arrangement where the
private company applies for and receives a landfill permit from the TCEQ. In such a
situation, Section 361.087 would require the permit to identify both the governmental
body (as the “person who owns the land on which the solid waste facility is located”) and
the private company (as the “person who is or will be the operator or person in charge of
the facility”). The statute’s plain language does not allow a reading in which “operator”
is different from “person in charge of the facility.” Rather, the statute unambiguously
uses these two terms as equivalents.
Here, Williamson County is both the landowner and the operator. It owns the real
property where the Landfill is located. At the hearing, the County’s chief executive was
adamant that the County intended to retain control over the Landfill and its permit.37
Under the statute’s plain language, then, the County is “in charge of the facility” and is
thus the “operator,” and is the only party that can be so identified on the permit.
B. The TCEQ erroneously interpreted the Health & Safety Code by concluding that the “operator” was an entity other than the “person in charge of the facility.”
Despite the statute’s plain language, the TCEQ wrongly concluded that WMTX –
not the County – was required by the Health & Safety Code to be identified on the permit
as the “operator” of the Landfill. The TCEQ did so by erroneously equating the statutory
term “operator” with one regulatory definition of “operator.” The regulatory definition
applied by the TCEQ contradicts the statute’s plain language. Further complicating
matters is that the TCEQ has adopted two different regulatory definitions of “operator.”
37 AR24, T-2 at 8, 40 (testimony of County Judge Dan Gattis).
16
In fact, the regulatory definition not applied by the TCEQ in this case is actually
consistent with the statute’s use of “operator.”
1. A “330 Operator” – a party that manages a portion of a landfill, but
not the “operator” as the term is used in the Health & Safety Code. The TCEQ
ordered that the amended permit be issued with identification of WMTX as the
“operator.”38 The TCEQ opined that:
A permit issued under TEX. HEALTH & SAFETY CODE ANN. § 361.087(1) must include the name and address of the “owner” of the land on which the solid waste facility is located and the person who is or will be the “operator” of the facility as defined in 30 TEX. ADMIN. CODE § 330.2.39
This conclusion is correct – except for the portion in italics, which wrongly equates the
cited administrative definition of the term “operator” with the way in which the term is
used in the Health & Safety Code.
As described above, the statute’s clear terms equate “operator” with “person in
charge of the facility.” In contrast, Section 330.2 of the Texas Administrative Code
defines “operator” as:
Operator – The person(s) responsible for operating the facility or part of a facility.40
In turn, the applicable regulations define “operate”:
Operate – To conduct, work, run, manage, or control.41
38 TCEQ Order, Conclusion of Law (CoL) 18 (Apdx. Tab A).39 Id. CoL 17 (italics added).40 30 TEX. ADMIN. CODE § 330.2(91) (2004) (emphasis added). Excerpts from Chapter 330 of the applicable rules, as they read at the time the permit amendment application was filed, are included at Apdx. Tab C. 41 Id. § 330.2(88) (emphasis added).
17
The question is whether this Court must defer to the TCEQ’s statutory interpretation.
That interpretation incorporates, into the statute, the Section 330.2 regulatory definition
of “operator,” which encompasses any contractor that manages even a small portion of
landfill operations. The interpretation is entitled to no deference, because it contradicts
the statute’s plain language.
The regulatory definition of “operator” in Chapter 330 (for the sake of
convenience, a “330 Operator”) describes a person or entity that may have considerably
less control or authority over a landfill than the “person in charge of the facility” (the
“Statutory Operator”). There could be multiple “330 Operators” of a landfill (one
contractor managing waste disposal, another contractor managing gas monitoring and
extraction, and a third managing recycling, for instance), whereas there can be only one
“Statutory Operator” – the “person in charge.”
Equating the “Statutory Operator” with a “330 Operator” is legally erroneous
because the two terms have different meanings. A 330 Operator can be a contractor who
simply manages a portion of a landfill. In contrast, the Statutory Operator is the “person
in charge” of the entire landfill – the holder of the landfill permit.
2. The “330 Site Operator” – a concept equivalent to the “Statutory
Operator,” but not WMTX. The Chapter 330 administrative rules include a term that is
the functional equivalent of the “Statutory Operator” (that is, the person in charge of the
facility). Chapter 330 includes the following definition:
18
Site Operator – The holder of, or the applicant for, a permit (or license) for a municipal solid waste site.42
Here, the County is the “330 Site Operator.” County Judge Dan Gattis testified
unambiguously that the County intended to be the sole permittee and the entity in charge
of the Landfill.43
Indeed, it is undisputed that WMTX is not the “330 Site Operator.” During the
contested case hearing, it was noted that the Landfill permit issued in 1995 identified
WMTX as the “Site Operator,” and even the TCEQ admitted this was in error.44 It is thus
inconsistent and incorrect to designate WMTX as the “Statutory Operator,” because this
concept – the person in charge of the landfill – is functionally equivalent to the “330 Site
Operator,” and all involved agree that WMTX is not the “Site Operator.”
3. The “305 Operator” – the functional equivalent of the “Statutory
Operator,” here, Williamson County. The Chapter 330 administrative rules are
applicable to some aspects of solid waste landfill regulations. But a different set of rules
– Chapter 305 – by its terms applies to landfill applications and permits. The provisions
of Chapter 305:
set the standards and requirements for applications, permits, and actions by the commission to carry out the responsibilities for management of waste disposal activities under … Texas Health and Safety Code, Chapters 361 and 401.
30 TEX. ADMIN. CODE § 305.1(a).
42 30 TEX. ADMIN. CODE § 330.2(132) (2004).43 AR24, T-2 at 8, 40-41.44 AR27, T-8 at 1518-21 (Prompuntagorn testimony).
19
Chapter 305 includes a definition of “operator” different from that in Chapter 330.
This regulatory provision defines “operator” as “[t]he person in charge of the facility.”
30 TEX. ADMIN. CODE § 305.2(24). The Chapter 305 definition is consistent with the use
of “operator” in Section 361.087 of the Health & Safety Code. Although the TCEQ
found the 305 definitions applicable for some aspects of this application, the TCEQ
inexplicably and improperly engrafted the 330 definition of “operator” into the statute,
rather than interpreting the plain language of the statute or applying the more appropriate
305 definition – apparently for the sole purpose of allowing WMTX to be listed on the
permit as an “operator.”
C. The TCEQ’s erroneous interpretation of the Health & Safety Code has potentially serious ramifications related to ownership and control of a valuable public asset, and for the landfill permitting system.
The TCEQ’s holding in this case regarding the “operator” issue appears to signal a
sea change in the municipal solid waste landfill permitting system. Many landfills have
one or more contractors who manage all or a portion of the landfill without owning the
permit. But listing such contractors on the permit is vanishingly rare. The TCEQ’s
representative testified that he is aware of only one other case in which a contractor who
does not own a permit is specifically identified on that permit.45
The TCEQ’s holding here would not just allow all non-permit-owning contractors
to be specifically named on landfill permits – it would require such identification.
Section 361.087 provides that the “operator” must be named on the permit, and here the
TCEQ has held (wrongly) that “operator” as used in the statute is the same as the
45 AR27, T-8 at 1479 (Prompuntagorn testimony).
20
definition of “operator” in the Chapter 330 rules, and that definition includes any
contractor who manages even a portion of a landfill. That the TCEQ has not required
other contractors to be specifically named on permits is further evidence that its
interpretation in this case is faulty.
Appellants here are citizens and taxpayers in Williamson County. They have a
vested interest in the Landfill, which is a public asset belonging to all Williamson County
taxpayers and residents. Appellants raise the “operator” issue because they want to
ensure that there is no transfer of ownership interest in, or control over, their valuable
asset to a private entity such as WMTX without proper legal procedure for any such
transfer. Appellants are concerned that if WMTX is listed on the permit as the
“operator,” WMTX may in the future argue that it is therefore the “person in charge of
the facility” with power and/or rights beyond those of a contractor or “330 Operator.”
The Williamson County government is ultimately controlled by elected officials
that are answerable to Plaintiffs and other County residents. WMTX holds no such
accountability. Appellants wish to ensure that responsibility for, and control over, the
Williamson County Landfill remains solely in the hands of the County.
If WMTX remains identified on the permit as the statutory “operator,” several
important questions are raised that have no answer in the governing statutes or
regulations. For example:
What rights or powers does a contractor have if it is listed on the permit as
a statutory “operator”? For example, if Williamson County wishes to terminate its
landfill management contract with WMTX, would WMTX have veto power because it is
21
identified by the permit as the “operator,” which is the “person in charge”? Would a
permit amendment be necessary to replace WMTX (or any other listed contractor), and
would the contractor have a right to a contested case hearing? (If the contractor is not
listed on the permit, there is no doubt that matters affecting the contract do not need to be
handled through the TCEQ’s administrative process.)
If the site owner and/or permit holder decide to sell the landfill and/or
permit, can a permit-identified contractor stop, or have influence over, such a sale? Does
the contractor have some interest in the permit such that it can reap a benefit from the
sale?
Can ownership and/or control of a permit be transferred to contractors who
manage facilities under short-term or long-term contracts, thus transferring a valuable
public asset (a permit) to a private entity without compensation to the public entity?
A reversal of the TCEQ’s rulings in this case would be consistent with the law and
the facts, would be consistent with the previously long-standing practices regarding the
application and permitting process, and would avoid the thorny and unnecessary
complications that will inevitably result if the TCEQ’s Order is affirmed.
A proper interpretation of Section 361.087 would also avoid a result that is
possible under the TCEQ’s erroneous interpretation: a permit failing to identify the
“person in charge” of the landfill. This could happen if one entity owns the land, another
entity applies for and receives (and thus owns) the permit, and the permit owner contracts
with one or more entities to manage portions of the landfill such that none are managed
by the permit owner. Under such a scenario, an application of the TCEQ’s holding in this
22
case would require the permit to specifically identify the landowner and all the
contractors, but not the entity that applied for and received the permit. Such a result is
clearly contrary to the Legislature’s expressed intent in Section 361.087 to require the
permit to identify the “person in charge” of the entire landfill. The notion that a permit
holder is not required to be identified on the face of a permit is entirely unreasonable, and
in fact has never even been contemplated until the TCEQ issued its Order in this case.
A proper interpretation of Section 361.087 would not result in the identities of
landfill contractors being concealed. Landfill permit holders file annual reports with the
TCEQ; these reports – which are public records – list landfill contractors, so that
information remains available to the public.46
D. The TCEQ erred by holding that WMTX properly submitted the application; the County, not WMTX, is the proper applicant.
In addition to wrongly claiming it is the “operator” of the Landfill under the
Health & Safety Code, WMTX also wrongly listed itself as an “applicant” for the permit
amendment. Though Williamson County tried to disclaim WMTX’s status as an
applicant, it could not avoid the fact that WMTX submitted the application. Under the
TCEQ’s own rules, as they interact with the Health and Safety Code, only the party with
ultimate responsibility for the landfill – the party that properly holds the permit – can
submit an application for the amendment of that permit. This, undoubtedly, is
Williamson County and not WMTX. The TCEQ erred in its legal conclusion that the
application was submitted properly.
46 See AR27, Exs. TJFA-27-29 (annual reports identifying Landfill contractors).
23
The TCEQ’s findings on the “applicant” issue are internally inconsistent. First,
the agency found:
The Applicant is Williamson County, 301 S.E. Inner Loop, Suite 109, Georgetown, Texas 78626.47
This finding would be correct standing alone, without consideration of the actual
procedural irregularities of this case, because the County is in charge of the landfill.
However, this finding is contradicted by another finding:
The Applicant has met the requirements of 30 TEX. ADMIN. CODE § 305.43(b) in that WMTX submitted the Application to the Commission on behalf of Williamson County.48
But Section 305.43 does not allow another entity to “submit” an application “on behalf
of” an applicant that is itself in charge of a landfill:
For solid waste and hazardous waste permit applications, it is the duty of the owner of a facility to submit an application for a permit or a post-closure order, unless a facility is owned by one person and operated by another, in which case it is the duty of the operator to submit an application for a permit or a post-closure order.
30 TEX. ADMIN. CODE § 305.43(b). It is undisputed that Williamson County is the
“owner.” Thus, submission of the application by WMTX would have been proper only if
the landfill was “operated” by WMTX. WMTX unquestionably is not the “operator” for
purposes of Chapter 305 – the chapter defining who must apply for a permit, and the
chapter cited in the TCEQ’s attempt, in its Order, to justify WMTX’s submission of the
application. Chapter 305 contains a specific definition of “operator”: “The person
responsible for the overall operation of a facility.” Again, this is not WMTX; all the
47 TCEQ Order, Finding of Fact (FoF) 1.48 TCEQ Order, Conclusion of Law (CoL) 19.
24
evidence at the hearing was that the County intended to retain full and final responsibility
for the overall operation of the landfill.49
The TCEQ’s finding that WMTX properly submitted the application cannot be
sustained. Only the “305 Operator” can submit an application (unless it is submitted by
the owner). WMTX is not the “305 Operator” of the landfill. The application was not
properly submitted, the TCEQ lacked jurisdiction to proceed, and the TCEQ’s finding
that the application was proper must be reversed.
In addition, if the amended permit is issued pursuant to the TCEQ’s Order, it will
contain material wrongly identifying WMTX as an “Applicant,” contrary to the TCEQ’s
finding that the County is the sole Applicant. This is because Parts I-IV of the permit
amendment application (PAA) become part of the permit itself, according to TCEQ rules
(30 TEX. ADMIN. CODE § 330.51(a)). Those sections of the PAA refer to both
Williamson County and WMTX as “Applicants,” and thus could cause confusion as to
who owns and holds the permit.
Consistent with the material in the PAA, the Executive Director’s initial draft
permit listed the County and WMTX as permitees.50 Such a listing would have been
proper, and required, if WMTX was an “Applicant” – but if that had been the case,
WMTX would have been required to be a party in the contested case hearing, which it
was not. However, such a listing is supported by at least some material in the PAA.
49 See, e.g., AR25, T-3 at 175 (Murray testimony); AR27, T-8 at 1524-25 (Prompuntagorn testimony).50 AR22, TJFA-24.
25
Because the application must support the content of the permit as granted,51 the
application does not support the failure to list WMTX as an applicant and permittee. Of
course, the evidence does not support the listing of WMTX as an applicant or permittee.
This is simply a further illustration of the irreconcilable conflict between the content of
the application, the evidence adduced at the hearing, and the TCEQ’s Order. This
conflict requires reversal.
Because the fundamental errors extend back to submission of the application,
which was the beginning of the process, a reversal and remand is appropriate. A remand
to the Commission would allow the County to begin the permit amendment application
process again by submitting a new permit amendment application, this time without the
misstatements and mischaracterizations that have resulted in the significant errors that are
the subject of this appeal.
III. The County Did Not Prove that Increases in Stormwater Runoff Volume Would Not Be Significant Alterations of Natural Drainage Patterns.
A. TCEQ Rules require an applicant to provide discussion and analyses to demonstrate that changes in drainage due to landfill construction will not have significant adverse effects.
A permit amendment applicant must show that the development of a landfill will
not significantly alter the stormwater runoff patterns from pre-development conditions
and will not cause flooding or erosion problems due to altered and/or increased
stormwater runoff. The TCEQ Rules provide that an application for a permit amendment
must include:
51 AR27, T-8 at 1530-32 (Prompuntagorn testimony).
26
discussion and analyses to demonstrate that natural drainage patterns will not be significantly altered as a result of the proposed landfill development.52
If correctly applied, this TCEQ rule would be consistent with the Legislature’s
command that the agency “safeguard the health, welfare, and physical property of the
people and to protect the environment.” TEX. HEALTH & SAFETY CODE § 361.002(a).
However, the TCEQ in recent cases – including the instant case – has applied its rule in a
manner that is contrary to this statutory command.
B. TCEQ precedent wrongly allows applicants to demonstrate “no significant alteration” with absolutely no consideration of actual downstream impact of increased stormwater runoff.
The TCEQ has adopted a policy that when landfill development will result in
additional stormwater drainage (in part because a landfill is usually engineered to
generate more runoff than typical for undeveloped land), the question of whether the
increased runoff constitutes a “significant alteration” from natural patterns is answered
without reference to the impact of the increased runoff on neighboring properties or
downstream bodies of water. Instead, the TCEQ simply looks at the runoff volumes and
rates at the boundary of the permitted landfill property.
For example, in this case, the TCEQ considered only the runoff changes at the
Landfill’s “discharge points” – the locations where stormwater is engineered to leave the
Landfill property. Two of the identified discharge points, called Discharge Points A and
B, are roughly at the northern and southern ends of the proposed expansion site,
respectively. As shown on the below map of the proposed landfill, Point A is at the
52 30 TEX. ADMIN. CODE § 330.56(f)(4)(A)(iv).
27
bottom right corner and drains to the right; Point B is at the top right corner and drains
toward the top:53
Although the rules provide that a proposed landfill design should not result in
significant alteration of natural drainage patterns, Williamson County’s permit engineer
acknowledged that his design will substantially increase the volume of runoff at both of
these discharge points over natural conditions during a 24-hour, 25-year storm event:
Runoff volume at Point A increases from a pre-development 62 acre-feet to a post-development 90 acre-feet, which is approximately a 45 percent increase.
Runoff volume at Point B increases from a pre-development 29 acre-feet to a post-development 81 acre-feet, which is approximately a 179 percent increase – more than two and a half times the pre-development runoff volume.54
53 This excerpt is taken from App-202 at 1854.54 AR25, T-3, at 311-13.
'.
• . .
--'
28
The County provided no analysis on what effect this increased runoff might have
on property beyond the Landfill’s boundaries, and the TCEQ required no such analysis.55
This is inconsistent with the statutory command that the TCEQ “safeguard the health,
welfare, and physical property of the people and to protect the environment.” The TCEQ
cannot safeguard property without any idea of how increased runoff volume will affect
the property it is charged with safeguarding. The TCEQ’s policy is not “‘in harmony’
with the general objectives of the legislation involved,” and thus is improper as a matter
of law. Gulf Coast Coalition of Cities v. Public Utility Com’n, 161 S.W.3d 706, 711-12
(Tex. App. – Austin 2005, no pet.).
As a matter of simple logic, the environmental impact of altered drainage patterns
cannot be assessed without consideration of downstream effects. As just one example, a
three-fold increase in runoff volume likely would not result in any negative
environmental impact if that runoff goes directly into a large lake or ocean (assuming the
runoff is, as required, not contaminated water), whereas a much smaller increase might
have substantial negative impact if it is directed to low-lying, flood-prone adjoining land.
(This issue – whether the TCEQ’s policy of ignoring downstream impact is legal
error – is currently also before this Court in Cause No. 03-10-00016-CV, TJFA, L.P. and
Concerned Citizens and Landowners v. TCEQ. That case was submitted on the briefs on
August 5, 2010 and is currently awaiting decision. If this Court rules in favor of the
appellants in that case, a reversal and remand would be required here.)
55 AR28, T-9, at 1574 (TCEQ did not require downstream analysis); AR25, T-3, at 262-63 (County’s engineer did not study downstream impact and could not testify what that impact may be).
29
C. If the TCEQ may properly ignore downstream impact, then the County here failed to prove “no significant impact” when limiting the analysis to the Landfill permit boundaries.
If the TCEQ is correct in not requiring the County to consider offsite impact of
increased drainage volumes, then the TCEQ’s finding here – that an increase in runoff
volume of more than two and a half times at the Landfill’s boundary at Discharge Point B
is not a “significant alteration” of natural drainage patterns – is unsupported by any
evidence, and is arbitrary and capricious.
This finding is inconsistent with the TCEQ’s own regulatory guidance document
intended to assist applicants in meeting the requisite demonstration that the proposed
landfill will not cause any significant alteration of natural drainage patterns.56 This
guidance document provides that “the expected volume increase” in stormwater runoff
due to landfill development “could vary from 5 percent to 60 percent.”57 Of course, the
increase at the Landfill’s Discharge Point B is much greater than 60 percent.
If the TCEQ’s policy is to ignore downstream impact and instead focus only on
the permit boundaries, then it must use some standards to determine when increased
runoff is a “significant alteration.” Making ad hoc, unguided judgments about what
increases are or are not “significant” is acting without reference to guiding rules or
principles – the very definition of “arbitrary and capricious.” See, e.g., General Motors
56 The County’s application cites these guidelines, and Mr. Murray testified that he made an effort to follow them, and discussed their content. AR25, T-3 at 293-304. The guidance document itself –Document RG-417, titled “Guidelines for Preparing a Surface Water Drainage Plan for a Municipal Solid Waste Facility” (June 2004) – is available at www.tceq.state.tx.us/assets/public/comm_exec/pubs/archive/rg417.pdf.57 Guidance Document RG-417 at 4.
30
Corp. v. Bray, 243 S.W.3d 678, 684 (Tex. App. – Austin 2007, no pet.). The “5 percent
to 60 percent” standard from the TCEQ’s own guidance document is the only TCEQ-
promulgated standard that can be used in determining when runoff volume increase is
significant. Thus, by its very own standards, the TCEQ was required to find that the
increase here is a “significant alteration” and to reject the application.
D. The TCEQ cannot ignore increases in total runoff volume.
At the agency and in the District Court, the TCEQ and the County emphasized that
the proposed landfill expansion will result in a decreased peak flow rate for stormwater
runoff, and that this satisfies the “no significant alteration” requirement.58 But peak flow
rate is only one of several factors encompassing natural drainage patters. Runoff volume,
flow velocity, shape of the flow hydrographs, timing and discharge rate are also
important factors that are to be considered in determining significant alteration. The
TCEQ’s own guidance document agrees; it requires an applicant to demonstrate that any
volume increase at the permit boundary is not significant, in addition to any increase in
the peak flow rate.59 The TCEQ simply cannot ignore substantial volume increases; even
its own guidance document indicates that total volume is an important component of
natural drainage patterns.
The large increase in runoff volume has not been shown to be “no significant
alteration.”
58 CR 252-255 (TCEQ District Court brief); CR 612-617 (County District Court brief).59 Guidance Document RG-417 at 9.
31
IV. The County Did Not Thoroughly Characterize the Soil at the Landfill Site.
A. TCEQ Rules require an applicant to properly test and characterize the geology/hydrogeology of a proposed landfill expansion site.
The TCEQ has developed and adopted numerous rules designed to guard against
contamination of groundwater and surface water due to contaminants leaking from
landfills. Here, though, the TCEQ failed to follow some of those important rules, and
failed to require the County to show compliance with those rules.
One of these rules requires an applicant to thoroughly characterize the geology and
hydrogeology of the soils underneath a landfill site using site-specific information in
order to establish an appropriate groundwater monitoring system (see 30 TEX. ADMIN.
CODE § 330.231(e)(1)). An appropriate monitoring system is one that monitors relevant
locations and depths to ensure that any contamination that might escape from the landfill
will be detected before such contamination can leave the landfill site and potentially
contaminate area groundwater or surface water sources (see 30 TEX. ADMIN. CODE
§ 330.231).
In order to thoroughly characterize the geology and hydrogeology of the soils
underneath the landfill site, the TCEQ rules require, among others, the following:
An applicant must perform horizontal permeability testing of soil layers or strata along the side of any proposed excavations.60 This testing determines how likely water is to migrate horizontally through each strata; a primary purpose is to identify potential pathways of groundwater migration.
60 30 TEX. ADMIN. CODE § 330.56(d)(5)(B)(i)-(ii).
32
An applicant must install a groundwater monitoring system to ensure detection of groundwater contamination in the uppermost water-bearing zone.61
These rules are intended to provide valuable information about the site-specific
characteristics of the geology and hydrogeology of the proposed landfill site so that an
adequate groundwater monitoring system can be established, in accordance with TCEQ
rules.62
B. The relevant geological layers at the Landfill expansion site are the surficial clay, the claystone, and the limestone.
As the permit amendment application shows, there are three soil layers underneath
the proposed Landfill expansion site that are potential pathways for pollutants to migrate
from the site. These three layers are the surficial clay, the claystone, and the limestone.
Below is an excerpt from a geological cross-section included in Williamson County’s
permit amendment application that shows the three strata at issue:63
61 30 TEX. ADMIN. CODE § 330.231(a)(2).62 e.g., 30 TEX. ADMIN. CODE § 330.231(e)(1).63 The excerpt is taken from page 402 of App-202, “Geologic Cross Section A-A'.”
33
Williamson County proposes to excavate and dispose waste into the top two layers – the
surficial clay and the claystone.64
Even though the County plans to deposit waste in the claystone, it failed to test the
ability of this soil layer to transmit water (and potentially contaminants) horizontally
from underneath the Landfill. Such testing is required. Contrary to the TCEQ Rules, the
County also does not plan to monitor any groundwater movement in the claystone to
determine if there will be any contaminants leaving the site.
C. The TCEQ violated its own rules by not requiring Williamson County to test the horizontal hydraulic conductivity/permeability in the fractured claystone at the new expansion area.
The claystone underneath the Landfill expansion site has fractures in it.
Fracturing in this soil layer provides the only real pathway for groundwater to travel
64 AR25, T-4 at 594-95 (Gallup testimony).
,. c-::..,_~--------------------------------,.
- -----Lj-FI-'-..;,"~-____::;--------------7M 1~
--~~..4~f_..----*·,----"·-~-~,.-------H :-:: -,_,---.,0---------------'.~--------JJ-----------------~-~--~-~-~-IJ'::::fI~-:::~~:::'i~-'~·'-__d---~::!'!.""~------------=
~--------------
••
..,
6'(1------·---------------tl-----· f----- -----1)---------- ••~-------------_U_ ___'I_ _U_ _tl--------~
34
through this rock, both vertically and horizontally.65
The ability for groundwater to move horizontally through a soil is normally
determined by conducting a test to establish the hydraulic conductivity/permeability of
that particular soil layer. The TCEQ Rules require such testing of each geological layer
into which excavation will occur in order to characterize its hydrogeology and establish
its horizontal permeability. For example, the rules mandate:
(i) A laboratory report of soil characteristics shall be determined from at least one sample from each soil layer or stratum that will form the bottom and side of the proposed excavation and from those that are less than 30 feet below the lowest elevation of the lowest excavation...
(ii) ...Those undisturbed samples that represent the sidewall of any proposed trench, pit, or excavation shall be tested for the coefficient of permeability on the sample’s in-situ horizontal axis ...66
According to the TCEQ geologist witness, Mr. McCoy, Williamson County did no
such in-situ (on-site) permeability tests on samples of the fractured claystone taken from
the proposed expansion area. Thus, he did not know the permeability of the claystone as
it actually exists at the site – containing fractures. This is improper under the rules,
which require samples to be taken and evaluated from the proposed excavation area as
they actually exist under the ground, i.e. fractured. Therefore, neither the County nor the
TCEQ know the horizontal hydraulic conductivity/permeability of the fractured portions
of the claystone underneath the landfill expansion site.67
65 Id. at 551-52.66 30 TEX. ADMIN. CODE § 330.56(d)(5)(B)(i)-(ii). 67 AR28, T-9 at 1648-49.
35
Nor did Williamson County install devices used to detect groundwater (called
piezometers) that would be “screened” to monitor anywhere in the fractured portions of
the claystone at the proposed expansion area to even know if, or how, groundwater is
moving away from the site along that soil layer.68
By not requiring testing of the actual soil layers underneath the proposed Landfill
expansion site, the TCEQ has again violated its own rules, which is a legal issue – not a
matter relegated to deferential “substantial evidence” review. See, e.g., BFI Waste
Systems of N. Am. v. Martinez Env. Group, 93 S.W.3d 570, 575 (Tex. App. – Austin
2002, pet. denied).
D. Williamson County’s failure to test the fractured portion of the claystone at the expansion area led to the design of an inadequate groundwater monitoring system.
Landfill operators are required to monitor groundwater quality via wells located at
the boundary of the landfill property. The depth at which groundwater is monitored is
determined by the hydrogeology of the site, and must be based on a “thorough
characterization” of a site’s hydrogeology.69 Groundwater monitoring wells are required
to yield representative samples of groundwater from the uppermost aquifer or water-
bearing zone, as determined after the required characterization of the
geology/hydrogeology.70
Williamson County’s proposed groundwater monitoring wells at the expansion
area are all screened at either the surficial clay/claystone contact zone or the 68 AR25, T-4, at 600, 602.69 30 TEX. ADMIN. CODE § 330.231(e)(1). 70 30 TEX. ADMIN. CODE § 330.231(a); A.R. Vol. 11, T-5 at 502.
36
claystone/Limestone contact zone only. Williamson County’s geologist admits that no
wells are planned to be screened within any portion of the claystone between the surficial
clay and the limestone, even though portions of the proposed expansion will be
excavated, and waste deposited, into the claystone.
As shown above, Williamson County did not thoroughly characterize the site’s
geology and hydrogeology, because it failed to establish via testing the horizontal
permeability of the claystone that includes fractures. Therefore, the County did not
comply with TCEQ Rules that require on-site testing, and that require a groundwater
monitoring system based on site-specific characterization of hydrogeology. This is
demonstrated by Williamson County’s decision to not place any monitoring wells in the
claystone, even though Williamson County chose to excavate into the claystone for waste
disposal.
Ultimately, the TCEQ erred as a matter of law by approving the application
without requiring the County to comply with the TCEQ’s own rules. This is not an issue
of whether sufficient evidence supports the TCEQ’s findings. Rather, the TCEQ
committed legal error by failing to follow its own rules, which is a question of law. See,
e.g., BFI Waste Systems of N. Am. v. Martinez Env. Group, 93 S.W.3d 570, 575 (Tex.
App. – Austin 2002, pet. denied).
V. The TCEQ Erroneously Found that the Proposed Landfill Expansion is Compatible with Surrounding Land Uses.
Section 361.069 of the Texas Health & Safety Code requires a finding that a
proposed landfill expansion “is compatible with surrounding land uses.” Though here the
37
TCEQ found that the County met this requirement,71 the finding was not supported by
any actual land use analysis. The TCEQ’s conclusion is thus erroneous.
A. The TCEQ Rules require a showing of land use compatibility.
The TCEQ’s Rules explain the objective of a land use compatibility analysis: “A
primary concern is that the use of any land for an MSW [municipal solid waste] site not
adversely impact human health or the environment.”72 The rule also mandates
consideration of the impact of the site upon a city, community, group of property owners,
or individuals.73 The impact must be considered in terms of compatibility of land use,
community growth patterns, and other factors associated with the public interest.74
The rule also specifies certain information that must be included in the application
in order “to assist the executive director in evaluating the impact of the site on the
surrounding area.”75 Among the information that must be included in the application are:
character of surrounding land uses within a mile of the proposed facility; growth trends of
the nearest community with directions of major development; proximity to residences
and other uses (such as schools, churches, cemeteries);76 and descriptions and discussions
of all known wells within 500 feet of the proposed site.77
71 TCEQ Order at 32, CoL 23.72 30 TEX. ADMIN. CODE § 330.53(b)(8).73 Id.74 Id.75 Id.76 The rule further requires that the applicant provide the approximate number of residences and business establishments within one mile of the proposed facility including the distances and directions to the nearest residences and businesses.77 30 TEX. ADMIN. CODE § 330.53(b)(8).
38
Consideration of land use compatibility is not limited to the list of information that
an applicant is required to submit. Indeed, the land use compatibility rule employs broad
language, providing the Executive Director with authority to require and review any type
of information that may inform his decision regarding land use compatibility and ensure
that use of the land for the proposed site will not adversely impact human health and the
environment. It is intended as a “framework,” or starting point.78
At a contested case hearing, the applicant bears the burden of proof on every
issue.79 The County thus had the burden of proving land use compatibility by
demonstrating that a land use compatibility analysis had been completed.
B. Williamson County did not include a land use analysis in its application or in its case-in-chief; the data it did include was inadequate.
Williamson County argued that it was not required to conduct a land use
compatibility analysis, or to submit any information beyond that specifically required by
the rules. At the hearing, neither the County during its case-in-chief, nor the TCEQ
Executive Director at any time, presented a qualified witness who had done any land use
analysis. The County’s only land use witness, John Worrall, gave only limited testimony,
and only in rebuttal. That testimony was too little, too late.
Instead of taking advantage of resources available to it as a governmental body –
such as demographics, concerns of county residents, and input from other governmental
bodies within its boundaries – the County presented only a few facts regarding land use
78 AR29, T-10 at 1830 (Worrall testimony).79 30 TEX. ADMIN. CODE § 80.17.
39
via James Roy Murray, its permit engineer. Mr. Murray admitted he has no land use
experience and lacks the expertise to conduct a land use analysis.80 He could testify only
about the specific, objective data that an applicant is required to provide under the TCEQ
Rules – data such as whether a cemetery exists within a mile of the proposed facility. But
he failed to address any factors related to the public interest. His growth trend analysis
did not take into account the explosive growth that has been occurring in the direction of
the landfill. And he included no discussion of the impact of the recent completion of
SH130 and its access point, Chandler Road/University Drive – an access point north of
Hutto and in the vicinity of the landfill.
Further, Mr. Murray testified that he had no personal knowledge of the
information included in the land use portion of the application and did not attempt to
verify that information.81 Rather, he simply included in the application only the
information specifically listed in TCEQ Rule 330.53(b)(8)(A)-(E) – just enough
information to have the application declared technically complete. This amounts to no
evidence regarding land use compatibility.
The TCEQ Executive Director’s witness suffered from a similar lack of personal
knowledge and expertise. The witness, Pladej Prompuntagorn, testified that in reviewing
the land use portion of a landfill application, he relies exclusively on the information
provided by the applicant and does nothing to verify this information.82 He simply
80 AR24, T-2 at 115; AR25, T-3 at 418.81 AR25, T-3 at 417-1882 AR27, T-8 at 1428.
40
determined whether the County included the specific data required by the rules.83 He did
no sort of analysis; for instance, he did not examine the impacts of the proposed
expansion on any community, and did no analysis of traffic volume impact.84
Moreover, the information provided by the County depicted an inaccurate picture
of growth trends in the area. For instance, the County described the population and
community growth trends as consisting of “agriculture and pasture land with scattered
residential properties. The only significant development within one-mile of the proposed
site during the past 10 years is a subdivision consisting of approximately 60 residences
located approximately 1,700 feet southwest of the existing permit boundary. ... There has
been very little growth in the remaining areas surrounding the site.”85 The County also
presented population growth projections from the 1990s for Williamson County as a
whole, giving a projected growth of 3.4 percent over the next 20 years.86 The County’s
application presented a picture that the Landfill is in an isolated rural area, with a few
residences and little evidence of any future growth. This is the information that the
Executive Director’s staff relied on when it declared the County’s application technically
complete.
But the evidence itself paints a much different picture. During the hearing,
Williamson County Judge Dan Gattis testified that growth in the City of Hutto – the
83 Id. at 1429.84 Id. at 1431, 1440.85 AR1, I/II,, at 7.86 Id. at 2.
41
community nearest the landfill – is “very rapid.”87 Judge Gattis also testified that the
landfill site will likely soon be included in the City of Hutto’s ETJ.88 Later evidence
revealed that the City of Hutto is actually the fastest growing community in the State of
Texas.89
The County’s application included no growth rate data related to Hutto
specifically – even though the TCEQ’s rules require such information specific to the
community nearest the landfill.90 But the Executive Director’s staff was never made
aware of this relevant information, because the County never provided it, as Mr. Murray
admitted.91 He further acknowledged that though he was the witness presented by the
County on land use, and though he put his seal on the application, he did not actually
compile the land use data or verify it, instead relying entirely on staff members.92
In short, not only did the County fail to produce competent evidence during the
hearing, but it also failed to include an accurate and up-to-date description of growth
trends in the City of Hutto – the city closest to the Landfill – in its application. And yet,
this is the information that the County argues is sufficient to meet its burden on the issue
of land use compatibility.
87 AR25, T-3, at 16-17.88 Id. at 30.89 AR29, T-10, at 1790.9030 TEX. ADMIN. CODE § 330.53(b)(8)(C).91 AR25, T-3, at 433-34 (acknowledging that the only Hutto-specific data was direction of growth, without any figures).92 Id. at 418.
42
C. It was improper for the County to present its first purported land use analysis in rebuttal.
Perhaps realizing that it had failed to carry its burden, the County attempted to
introduce land use analysis evidence with a rebuttal witness, John Worrall. But Mr.
Worrall neither compiled nor prepared the land use information. He did not even form an
opinion regarding land use compatibility until just before he provided his testimony.93
Mr. Worrall admitted that his analysis was necessarily limited by his status as a rebuttal
witness, and thus was not as thorough an analysis as he typically performs.94
If the County is allowed to satisfy its burden of proof during the rebuttal phase of
the hearing, the result is a denial of due process to Appellants, and a contravention of the
procedural requirements imposed by both the APA and the rules of SOAH and the
TCEQ. While administrative due process does not require the full procedural framework
of a civil trial, the applicable rules do guarantee due process protections and require that
parties to an administrative proceeding be accorded a fair hearing on disputed fact
issues.95 TCEQ’s rules, in particular, require a permit applicant to present evidence to
meet its burden of proof during its direct case, followed by the protesting parties, the
public interest counsel, and if named as a party, the executive director.96 Allowing the
permit applicant to wait until its rebuttal case to attempt to satisfy its burden of proof
subverts the entire contested case hearing process, and renders the submission of prefiled
93 AR28, T-9 at 1705-14; AR29, T-10 at 1827-28.94 AR29, T-10 at 1837, 1904.95 See TEX. GOV’T CODE § 2001.051.96 30 TEX. ADMIN. CODE § 80.117(b); see also 30 TEX. ADMIN. CODE § 80.17(a) (“The burden of proof is on the moving party by a preponderance of the evidence.”)
43
direct testimony a futile exercise.
Here, Mr. Worrall did not rebut the protesting parties’ evidence. Indeed, the
protesting parties presented no expert witness regarding land use (because it was not their
burden), and so there was nothing to rebut. Instead, Mr. Worrall corroborated the growth
trend evidence offered by Appellants – to show lack of land use compatibility – and then
purported to analyze that information, an exercise that no other witness had performed
during the County’s case in chief. This was error.
VI. The TCEQ erred in revising the operating hours for the landfill.
Further evidencing the TCEQ’s failure to properly consider the Landfill
expansion’s impacts on surrounding land uses, the TCEQ improperly revised the
operating hours that were proposed by the Administrative Law Judges. The ALJs found
that operation of the facility 24 hours a day, seven days a week – as the application
initially requested – may be incompatible with surrounding land uses.97 Accordingly, the
ALJs recommended limiting the Landfill’s operating hours to “Monday through Friday,
5:00 a.m. to 8:00 p.m. and Saturday 6:00 a.m. to 4:00 p.m.”98
In its Final Order, however, the TCEQ elected to revise the operating hours, by
expanding the hours during which the Landfill is authorized to operate heavy equipment
and transport materials: “The Applicant is authorized to operate heavy equipment and
transport materials to and from the Facility Monday through Saturday, 3:00 a.m. to 10:00
97 AR19-182, Proposed Order at 24 (FoF #163).98 Id. at 24 (FoF #161).
44
p.m.”99 Significantly, these operating hours are different from the default operating hours
reflected in TCEQ’s rules: “Transportation of materials and heavy equipment operation
must not be conducted between the hours of 9:00 p.m. to 5:00 a.m., unless otherwise
approved in the authorization for the facility.”100
In its Explanation of Changes, the TCEQ stated that it modified the operating
hours “to clarify the different types of operating hours at the Facility.”101 But this
explanation failed to address the compatibility of these expanded operating hours with
surrounding land uses. Indeed, the Commission failed to consider any evidence regarding
land use compatibility in electing to expand these operating hours.
The Solid Waste Disposal Act prohibits the Commission from doing precisely
what it did here – arbitrarily revising the ALJs’ findings and conclusions on operating
hours because it preferred a different outcome.102 There was simply no evidence
presented to support extended operating hours for operation of heavy equipment and
transportation of materials. The Commission’s decision to do so, in contravention of the
ALJs’ recommendation, was arbitrary and capricious and thus legally erroneous.
VII. The TCEQ Ignored its Own Rules in Assessing Reporting and Transcription Costs.
In determining who should pay costs, the TCEQ once again ignored its own rules.
The relevant rule states: 99 TCEQ Order at 24 (FOF #161), 38 (Ordering Provision #3).100 30 TEX. ADMIN. CODE § 330.118(a).101 TCEQ Order at 37-38, Explanation of Change #3.102 TEX. HEALTH & SAFETY CODE § 361.0832(c)-(d) (allowing a finding of fact to be overturned only if it was not supported by the great weight of the evidence, and a conclusion of law to be overturned only if clearly erroneous).
45
(1) …The commission shall consider the following factors in assessing reporting and transcription costs:
(A) the party who requested the transcript; (B) the financial ability of the party to pay the costs; (C) the extent to which the party participated in the hearing; (D) the relative benefits to the various parties of having a transcript; and(G) any other factor which is relevant to a just and reasonable
assessment of costs. ….
(3) In any proceeding where the assessment of reporting or transcription costs is an issue, the judge shall provide the parties an opportunity to present evidence and argument on the issue. A judge shall include in the proposal for decision a recommendation for the assessment of costs.
30 TEX. ADMIN. CODE § 80.23(d)(1) and (3) (emphases added).
The ALJs determined that “There is no evidence regarding the parties financial
ability to pay the reporting costs….”103 The ALJs further determined that “the issues
raised by the Protestants were reasonable and well presented.”104 Therefore, the ALJs
recommended that the Applicant – Williamson County – bear all of the reporting and
transcription costs.
The TCEQ did not change the ALJs’ underlying factual determinations relative to
allocation of costs in any way. However, the TCEQ disregarded the recommendation
that the County pay all costs, instead assessing half of the costs to the Protestants
(Appellants here). In explaining the departure, the TCEQ stated that its determination
was “based on the evidentiary record and for policy reasons,” without citing any evidence
103 AR Vol. 19, No. 182, Proposed Order at 28 (FoF #185).104 Id. (FoF #189).
46
or articulating any policy argument.105 The TCEQ ignored the ALJs and disregarded its
own rule by failing to consider “ the financial ability of the party to pay the costs.”
The TCEQ also ignored the Texas Legislature’s mandate regarding when and how
findings of fact can be overturned. The Legislature has provided that the TCEQ “may
overturn an underlying finding of fact that serves as the basis for a decision in a contested
case only if the Commission finds that the finding was not supported by the great weight
of the evidence.” TEX. HEALTH & SAFETY CODE § 361.0832(c) (Vernon 1992)
(emphasis added). Here, the TCEQ overturned a fact finding (#188) regarding allocation
of costs, while retaining findings that there was no evidence of the parties’ ability to pay
costs (#185) and that issues raised by Protestants were reasonable and well presented
(#189). These actions by the TCEQ conflict irreconcilably.
A comparison of Finding of Fact #188 before and after TCEQ’s action is
instructive. The ALJs’ proposed Finding of Fact #188:
Reporting and transcription costs are an expected cost in the course of major Landfill expansion applications such as this one.
TCEQ’s final Finding of Fact #188:
Although reporting and transcription costs are an expected cost in the course of a major Landfill expansion application such as this one, the Commission has determined based on the factors in 30 TEX. ADMIN. CODE §80.23(d) that the Applicant shall bear 50% of the costs, TJFA shall bear 25% of the costs, and Hutto Citizens Group and the Heritage on the San Gabriel Homeowners Association shall each bear 12.5% of the costs for reporting and transcription.
Although the TCEQ recites that it followed the factors in Section 80.23(d), it could not
have considered all those factors. The TCEQ adopted Finding of Fact #185, which
105 TCEQ Order at 38, Explanation of Changes #4.
47
specifically states that “there is no evidence regarding the parties’ financial ability to pay
the reporting and transcription costs.” Therefore, it was impossible for the TCEQ to have
considered one of the factors that the rule provides “shall” be considered.
In adopting Subsection (c) of Section 361.0832, the Legislature intended to
significantly restrict the TCEQ’s discretion to reject an examiner’s underlying fact
findings. Before its enactment, the TCEQ had broad discretion to reject an examiner’s
underlying findings. Hunter Industrial Facilities v. Texas Natural Resource
Conservation Commission, 910 S.W. 2d 96, 103 (Tex. App. – Austin 1995, writ denied).
But “under Subsection (c), the Commission is no longer permitted to overturn an
examiner’s underlying finding of fact because it would have reached a contrary decision,
but can only exercise its discretion to reverse those findings that do not find support in
the ‘great weight’ of the evidence in the record.” Id. Here, contrary to the Legislature’s
command, the TCEQ overturned an underlying fact finding simply because it would have
reached a different result. This is improper and is grounds for reversal.
The TCEQ’s arbitrary action raises the specter of whether the agency had an
impermissible motive for assessing a portion of the costs against Protestants, such as to
punish and deter Protestants in municipal solid waste landfill permit proceedings, or to
stifle speech unfavorable to the agency, the applicant, and/or the contractor at issue. The
TCEQ is sending a message that discourages citizens from participating in a process that
involves their own local government and its elected officials. This is contrary to the
intent of the Legislature, which is to encourage public discourse in these administrative
proceedings and to uphold the public interest:
48
[A]dministrative tribunals are created to ascertain and uphold the public interest through the exercise of their investigative, rulemaking and quasi-judicial powers. Any stricture upon standing in an administrative agency would thus be inconsistent with the proposition that the agency ought to entertain the advocacy of various interests and viewpoints in determining where the public interest lies and how it may be furthered.
Texas Ind. Traffic League v. Railroad Comm’n, 628 S.W.2d 187, 197 (Tex. App. –
Austin), rev’d on other grounds, 633 S.W.2d 821 (Tex. 1982), but generally resurrected
by Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993).
Assessment of costs against Protestants – whose arguments were specifically
found to be reasonable and well-presented – will have the clear and chilling effect of
dissuading members of the public from exercising their right to participate in the landfill
permitting process. The TCEQ’s failure to explain its action, particularly in light of the
provision requiring consideration of an issue on which there was no evidence, is the
essence of arbitrary and capricious behavior and failure to follow the law.
(It is Appellants’ understanding, based on statements made in open court (albeit
off the record) by the County’s counsel, that the County does not intend to seek to
recover costs from Appellants. However, this concession was not reflected in the District
Court’s order.)
CONCLUSION AND PRAYER
The TCEQ acted in violation of the Legislature’s will as expressed in the Health &
Safety Code, and ignored even its own rules in approving Williamson County’s
application. The TCEQ’s numerous errors mandate reversal of its Order granting the
application, and remand of this matter to the agency.
49
Therefore, Appellants respectfully pray that this Court vacate the permit issued by
the Texas Commission on Environmental Quality, remand the matter to the TCEQ for
further proceedings, and award Appellants all other relief to which Plaintiffs may show
themselves entitled.
Respectfully submitted,
By: /s/ James A. HemphillJames A. HemphillState Bar No. 00787674GRAVES DOUGHERTY HEARON& MOODY, PC401 Congress Ave., Suite 2200Austin, Texas 78701512-480-5762512-536-9907 (fax)[email protected]
Marisa PeralesState Bar No. 24002750LOWERRE, FREDERICK, PERALES, ALLMON & ROCKWELL707 Rio Grande, Suite 200Austin, Texas 78701512-469-6000512-482-9346 (fax)[email protected]
Lawrence G. DunbarState Bar No. 06209450DUNBAR HARDER PLLCOne Riverway, Suite 1850Houston, Texas 77056713-782-4646713-481-8201 (fax)[email protected]
James E. BradleyState Bar No. 02824700BRADLEY LAW FIRM5718 Westheimer, Suite 1525Houston, Texas 77057713-974-4800713-781-4186 (fax)[email protected]
ATTORNEYS FOR APPELLANTS
50
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has been served on the following as indicated below, on this the 7th day of July, 2011.
Greg AbbottC. Andrew WeberDavid S. MoralesBarbara B. DeaneDavid PreisterCynthia WoelkNancy E. OlingerBrian E. Berwick Office of Attorney GeneralEnvironmental Protection SectionP.O. Box 12548, Capitol StationAustin, Texas 78711-2548via certified mail, return receipt requested
R. Mark DietzDietz & Jarrard, P.C.106 Fannin Avenue EastRound Rock, Texas 78664via certified mail, return receipt requested
/s/ James A. HemphillJames A. Hemphill
51
INDEX TO APPENDIX
Tab Document
A February 17, 2009 TCEQ Order granting the permit (CR 119-157)
B Excerpts from applicable rules, 30 TEX. ADMIN. CODE ch. 305 (CR 158-164)
C Excerpts from applicable rules, 30 TEX. ADMIN. CODE ch. 330 (CR 165-224)
D Excerpts from applicable statutes, TEX. HEALTH & SAFETY CODE
E February 1, 2011 Final Order (CR 1315)
A February 17,2009 TCEQ Order granting the permit (CR 119-157)
TEXAS COlVIlVllSSION ON ENVill.ONl\1ENTAL QUALITY
APPLICATION OF WILLIAMSONCOUNTY FOR A PERMIT §AMENDMENT TO EXPAND A TYPE I §MUNICIPAL SOLID WASTE Landfill §Facility; (pERMIT NO. MSW-140SB) §
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AN ORDER Granting the Application for Permit No. MSW-1405 toWilliamson County; TCEQ Docket No. 2005-0337-MSW;SOAH Docket No. 582-06-3321
On February 11, 2009, the Texas Commission on Environmental Quality (Commission or
TCEQ) considered the application of Williamson County (Williamson County or Applicant) for
Permit No. MSW-1405B to authorize Williamson County to laterally and vertically expand the
existing Williamson County Recycling and Disposal Facility in Williamson County, Texas.
Travis Vickery aD.d Henry D. Card, Administrative Law-Judges (ALJs) with the State Office of
Administrative Hearings (SOAR), presented a Proposal for Decision (PFD), which recommended
that the Commission grant Williamson County's Application for Permit No. MSW-1405B. After
considering the ALJs'PFD, the Commission adopts the following Findings ofFact and Conclusions
ofLaw:
FINDINGS OF FACT
General Findings/Procedural Issues
1. The Applicant is Williamson County, 301 S.B. ·lImer Loop, Suite 109; Georgetown,
Texas 78626.
2. The Facility is the Williamson County Recycling and Disposal Facility (Williamson County
RDF, Landfill, or Facility), which is located at 600 Landfill Road, Hutto, Texas 78220 and
is operated by Waste Management of Texas, lI1C. (WMTX).
EXHIBIT
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3. The Facility is located nOliheast of the City ofHutto in Williamson County on the west side
ofFM 1660 approximately one mile n01th of the FM 1660 and CR 133 intersection.
4. The Facility is an existing Type I Municipal Solid Waste (MSW) Landfill consisting of
approximately 202 acres and pem1itted pursuant to Pennit No. MSW-1405A.
5. Applicant filed Application No. MSW-1405B (the Application), which requests an
amendment of Permit MSW-1405A to 'laterally expand the existing 202-acre Facility to
approximately 575 acres and to veliically expand the Facility from 766 feet above Mean Sea
Level (MSL) to approximately 840 feet above MSL. The Application proposes to expand
the actual limit of waste from approximately 160 acres to approximately 500 acres.
6. Williamson County owns the 575-acre Facility site.
7. The Facility is currently auth011zed to accept municipal solid waste, Class 2 and Class 3
industrial solid waste, and Class 1 industrial waste that is Class 1 only because ofasbestos
content
8. The Application was compiled by RJR Engineering, Ltd., L.L.P. pursuant to the Notice of
Engineer's Appointment prepared by Applicant. The Application was developed under the
direction and supervision ofWilliamson County Judge JolmDoerfler, the sitting Williamson
County Judge at the time the Application was filed with the TCEQ.
9. The seal of James R. Murray, a professional engineer registered in Texas, was affixed to all
engineering plans and drawings and on the Application cover pages.
10. Parts I and II of the Application were initially submitted to the TCEQ on December 10,
2003. On December 22,2004, Parts III and IV were submitted to the TCEQ and, thereafter,
consolidated with Parts I and II.
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11. Notice that the Application was deemed administratively completeby the ExecutiveDirector
(ED) of the TCEQ was issued on May 13, 2005. Notice of the teclmically complete
determination was issued on March 24, 2006.
12. The Amended Notice ofReceipt ofApplication and Intent to Obtain Municipal Solid Waste
Pennit Amendment containing the infonnationspecified in 30 TEx. ADMIN. CODE § 39.11
was published on June 28, 29, and 30, 2005, in the RoundRockLeader, Williamson County
Sun, and Austin American-Statesman.
13. The Notice ofApplication and Preliminary Decision containing the infonnation required by
30 TEX. ADMIN. CODE § 39.11 was published on April 12, 13, and 16, 2006, in the Austin
American-Statesman, Round Rock Leader, and Williamson County Sun.
14. The Notice ofHearing on the Application was publi1:lhed on September 21,22, and 24,2006,
in the Round Rock Leader, Williamson County Sun, and Austin American-Statesman.
15. 011 September 19, 2006, the TCEQ Chief Clerk mailed the Notice of Hearing on the
Application to the then-identified participants to the proceeding, to other potentially affected
persons identified in the Application, to various state and local agencies and officials, to
state legislators for the districts in which the Facility is located, and to other persons
specified in 30 TEx. ADMJN. CODE § 39.13. Potentially affected persons receiving notice
generally included those landowners whose property was within one mile of the Facility.
All persons intending to request party status at the hearing were required to attend the .
hearing and demonstrate how he or she would be adversely affected by the application in a
way not cornmon to members of the general public.
16. A preliminary hearing commenced aU0:00 a.m. on October 26, 2006 at the SOAR hearing
rooms, William P. Clements Building, 300 West 15th Street, Austin, Texas 78701.
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17. The following persons were named as parties to the proceeding: the Applicant; the ED; the
Office ofPublic Interest Council (OPIC); TJFA, L.P. (TJFA); Mount Hutto Aware Citizens
(MHAC); the Jonah Water Special Utility District (Jonah Water); and the Hutto Citizens
Group and the Heritage on the San Gabliel Homeowners Association (collectively HCG).
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18. A contested case hearing on the Application was conducted on August 20-30, 2007, at
SOAR, William Clements Building, 300 West 15th Street, Austin, Texas 78701. Therecord
closed on January 11, 2008.
Sufficiency of Permit Application and Draft Permit
19. The conditions which exist at and near the Facility are favorable to the development of an
MSW landfill designed, constlUcted, and operated in a manner considered standard by
engineers specializing in the field and which are embodied in the MSW rules. There are no
site-specific conditions that require special design consideration. The site is well-suited to
the design, constlUction, and operation of an MSW landfill.
20. The Application is signed by Williamson County Judge John Doerfler, the sitting
Williamson County Judge at the time the Application was filed.
21. Applicant coordinated with all appropriate agencies, officials, and ~uthorities that may have
a jurisdictional interest in the Application.
22. Applicant has provided complete information concerning pennits or construction approvals
received or applied for.
23. The ED has prepared a draft pelmit for Permit No. MSW-140SB (Draft Permit).
Compliance History
24. The ED prepared compliance summaries ofWilliamson County, WMTX, and the Facility.
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25. .Williamson County's compliance history is classified as average with a rating of 3.17.
26. WMTX's compliance history is classified as average with a rating of 3.17.
27. The Facility is rated high,
The Identity of the Owner, Ope:ratol', and Applicant
28. Williamson County is the owner of the Williamson CountyRDF.
29. Williamson County has been the owner of the Williamson County RDF since the Facility
was first authorized to receive municipal solid waste on December 23, 1981, by the Texas
Department ofHealth under Pennit No. 1405.
30. Williamson County is the sole Applicant for Pennit No. MSW-1405B and is the sole
permittee under the existing pennit for the Williamson County RDF, Pennit
No. MSW-1405A.
31. WMTX operates the Landfill pursuant to a contract with Williamson County and has
operated the Williamson County RDF for approximately 14 years. .
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32. WMTX submitted the Application to the Commission on behalf of Williamson County.
Land Use
33. TIle Facility is not located within the city limits or extraterritorial jurisdiction of any
incorporated city. No zoning ordinances apply to the Landfill. No approval as a non
conforming use or special pennit from a local government is required.
34. Within one mile of the Facility, the' land is used primarily as undeveloped range and
farmland. Out ofa total of4574 acres: 4103 acres are agricultural; 339 acres are residential
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rural large-lot or homestead with agricultural activities; and 123 acres are
cOlllillercial/industrial.
35. Fewer than 150 residences are located within one mile of the Facility. No schools, licensed
child care facilities, churches, hospitals, lakes, or recreational areas are located within one
mile of the site. A small cemetery is located approximately 2,500 feet southeast of the site.
There are four commercial/industrial establishments within one mile of the Facility. The
Texas Historical Commission (THC) was contacted regarding the presence of cultural
resources that might be impacted by the Landfill. THC detennined that an archeological
survey is not necessary and it has no archeological concems related to the expansion. There
is one house on-site that is eligible for listing in the National Register ofHistoric Places, but
the house is located within a buffer zone ofthe proposed expansion and will not be destroyed
as a result of Landfill operations.
36. Williamson County's population is growing at an estimated rate of3.4% per year.
37. The Williamson CountyRDF is located 1.6 miles north ofthe City ofHutto, Texas (Hutto).
Hutto has grown over 500% in population since the year 2000 when its population was
·1,250 persons as compared to its 2006 population of 7,977 persons. Hutto's growth is
omnidirectional, including to the north. Hutto can adjust to, and incorporate the Facility
into its growth plans.
38. The City ofHutto's 2006 Growth Guidance Plan classifies the area comprising the Landfill
as "institutional," which includes uses by government, school, church, and other tax-exempt
entities. The Landfill is an "institutional" use. The areas immediately to the east and west
oftlle Landfill are classified as "business park" and "commercial."
39. In August of2007, the Hutto Independent School D}strict (HISD) purchased a 100 acre tract
within one mile ofthe Landfill. At that time, HISD was aware ofthe Landfill and classified
the.L~ndfill as it currently exists as a compatible land use. The proposed expansion of the
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Landfill under the Application does not present nuisance, scavenger, or student traffic-safety
issues beyond those already considered acceptable by HISD.
40. A TXU Lone Star Gas Co. gas pipeline easement exists along the northem property
boundary and two Jonah Water waterline easements are located along the westem property
boulldary.
41. No oil or gas wells were identified within 500 feet of the pennit boundary. TCEQ water
well records indicate there are three water wells within one mile of the proposed permit
boundary. The United States Geological Survey map indicates an additional four wells
within one mile ofthe Facility. Eighteen unrecorded wells were located by means ofa field
survey. Of these, five were drilled and 13 were hand-dug; one well is used at a commercial
establishment and the others are used for ini.gation, livestock, or are inactive. None ofthe
unrecorded wells are used for domestic purposes.
42. The development and operation of the proposed expansion of the existing Williamson
County RDF will not result in the destruction or adverse modification ofcritical habitat or
cause or contribute to the taking or harming of any endangered species. The United- States
Department of the Interior Fish and Wildlife Service does not anticipate the Landfill
expansion to adversely affect any endangered species or their critical habitat. The Texas
Parks and Wildlife Department (TPWD) does not anticipate'adverse impacts to any rare,
threatened, Dr endangered species from the proposed project activities. A biological
assessment ofthe Williamson CountyRDF and proposed expansion area was conducted and
revealed the presence ofno endangered or threatened species or their critical habitat within
the subject property or any potential critical or essential habitat.
Transportation
. 43. Access to the Williamson County RDF is provided via FM 1660, which runs north/south
along the east side of the site. FM 1660 consists of two 12-foot ~al1e,s with three-foot
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improved shoulders on each side. FM 1660 is designed with a vehicular weight limit of
80,000 pounds, which is greater than the weight of the heaviest vehicle anticipated to use the
Facility.
44. The existing Landfill is served by an abandoned portion of CR 128 from FM 1660. By
resolution, Williamson County changed the name ofthis road from CR 128 to Landfill Road.
45. The Texas Department of Transportation (TxDOT) provided daily traffic volumes in the
vicinity of the Landfill for FM 1660 north ofCR 100 and south ofSH 29 for2003. TIle data
represent the two-way, 24-hour daily traffic volumes. The data indicates that 1,750 vehicles
per day south ofthe Facility arid 1,400 vehicles per day north of the Facility from SH 29 use
FM 1660. Given that there are no significant roadways or other significant traffic sources
between these two traffic study locations, the majority of the Landfill traffic will enter the
Facility from the south. TxDOT estimates that the traffic volumes in the vicinity of the
Landfill will increase at a rate of 3.0% per year. Landfill traffic is anticipated to increase at
approximately the same rate as Williamson County's population, which is approximately
3.4% per year based on the Capital Area Council of Governments (CAPCOGj data. The
maximum percent of traffic attributed to the Landfill in 2050 will be approximately 18%.
46. TxDOT has determined that the adequacy and design capacities of the roadways adjacent
to and surrounding the site are sufficient to safely accommodate any additional traffic
generated by the proposed Facility.
47. No public use airport is located within five miles of the proposed Landfill boundary. A
small private airstrip is located approximately 1.5 miles northwest of the Facility. No bird
hazards to aircraft associated with the existing Facility have been reported and none are
expected with the proposed amended design.
48. The nearest public airport is the Taylor Municipal AirpOlt, located approximately six miles
to the southeast of the Facility. The permit boundary is not located within 10,000 feet ofthe
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end of an airport runway servicing turbojet aircraft or within 5,000 feet of the end of a
runway serving piston-type aircraft. Applicant received a letter from the U.S. Department
ofTranspoliation Federal Aviation Administration stating that there is "no objection to the
proposal from the standpoint of potential bird hazards to aircraft operating at the Taylor
Municipal Airport."
Geology and Groundwater Protection
49. The Landfill site is in south-central Williamson County, in the Grand Prairie Physiographic
Province (a.k.a. rolling prairie).
50. The rolling prairie is an elongated area of grassland country underlain by thin, s~ony, and
gently sloping to sloping soils. Those soils were fonned in limestone or lil'nestone and marl
ofupper Cretaceous rocks, which outcrop in the region.
51. The only river in the courity is the San Gabriel, which is palt of the Brazos River drainage
basin.
52. More specifically, the topography of the area surrounding the site is gently sloping valleys
trending from a topographical high on the western' pern1it boundary near the northwest
comer of the original 122-acre Landfill.
53. The sUlface water features closest to the site are Mustang Creek, an intemiittent tributary of
Brushy Creek that flows from northwest to southeast along the southern portion of the
pennitted Landfill, and an ulmamed tributary of the San Gabriel River, located in the
northern portion of the pennitted Landfill.
54. Approximately three-fourths of the site drains southwest toward Mustang Creek; the
remainder drains to the north, toward the unnamed tributary.
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55. There is no unfavorable topography in the area that would limit the Landfill's design,
cOl1stmction, or operation.
56. The lowermost aquifer capable of providing usable groundwater is the Edwards aquifer.
57. The approximate depth ofthe top ofthe Edwards aquifer is 600 to 700 feet below the ground
surface (bgs), or 550 feet below the lowest excavation proposed for the Landfill.
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58. The regional geology should not require any limits to be placed on the design, constmction,
or operation of the proposed Landfill.
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59. There are no active faults at or near the Williamson C'Ounty Landfill site.
60. There are no possible seismic impact zones, subsidence, unstable areas, erosion, or wetlands
that should cause any limitations to be placed on the design, construction, or operation ofthe
proposed Facility.
61. A subsurface stratigraphy investigationwas conducted to determine the geological feasibility
and soundness of constructing the Facility in the area in question.
62. A groundwater investigation was conducted to detennine reliable aquifer characteristics and
performance data.
63. Data compiled from both investigations were used to design the groundwater monitoring
network, the purpose ofwhich is to detect any release ofcontaminants into the groundwater
beneath the Facility.
64. Geologist Katherine Gallup and others under her direction performed field activities for the
subsurface investigations of the proposed Williamson County Landfill expansion from
April 13 through July 27,2004.
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65. Ms. Gallup and her colleagues also reviewed previous subsurface investigations conducted
from 1989 through 1991. Data from soil borings and piezometers installed during those
investigations were analyzed to detennine the subsurface conditions.
66. Previous investigations provided an adequate characteIization of the subsurface conditions
beneath the existing Landfill.
67. To investigate the subsurface conditions for the proposed expansion area, Ms. Gallup and
her colleagues reviewed the earlier data for the existing Landfill, then examined aerial
photographs and topographic maps covering five decades. They saw no features to indicate
subsurface discontinuities. Theythen developed a dIilling program, consisting of44 borings
at 35 different locations within the expansion area.
68. Three major stratigraphic units underlie the expansion site down. to approximately 592 feet
above MSL.
69. In general; those stratigraphic units consist of (1) surficial clay, which generally occurs
between 717 and 630 feet above MSL, with thickness ranging'from 8.6 to 60 feet, (2)
claystone, typically between 705 to 630 feet above MSL, with thickness ranging from 5 to
49 feet, and (3) limestone, encountered between 668 to 607 feet above MSL.
70. A total of 44 borings have been drilled at the Facility. Williamson County drilled 17 soil
borings within the expansion area to a depth of at least 5 feet below the deepest planned
excavation and 18 borings to a depth of at least 30 feet below the deepest planned
excavation. Nine shallow borings were advanced and completed as piezometers adjacent to
deeper, completed piezometers, to determine water-level elevations in the uppennost aquifer
and in a potentially hydraulically, interconnected, underlying aquifer, and to perfonn a series
ofhydraulic condubtivity tests as part of the groundwater investigation.
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71. After the borings were completed and samples collected, 22 of the borings were sealed. The
remaining 22 were converted to piezometers, 13 of which monitor water elevations in the
surficial clay and nine of which monitor the lower claystone/upper limestone unit.
72. The borings conducted at the expansion site were sufficiently deep to identify the uppennost
aquifer, including its lowest level.
73. The first zone of the uppermost aquifer occurs in the surficial clay unit and extends into the
upper zone of the claystone unit. A lower zone, hydraulically connected to the upper one
and therefore considered part of the uppermost aquifer, occurs at the base of the claystone
unit into the upper portion of the limestone.
74. The surficial clay and claystone are the only units that will be in contact with the proposed
Landfill excavation.
75. The majority of the base grades of the proposed Facility will tenninate in the claystone,
approximately 10 to 15 feet above the limestone unit. However, some ofthe side slopes of
the excavation will be in contact with coarser materials in the surficial clay.
76. Although the claystonellimestone unit is not even moderately transmissive, it forms the ..
lower boundary of the uppennost aquifer and is the only strata available to monitor
subsurface water for the entire site.
77. The surficial clay and the lower claystone/upper limestone units should be considered one
hydrostatic unit, constituting the uppennost aquifer, which collectively act as an aquitard to
the Edwards aquifer.
78. An "aquitard" is a zone beneath the earth that restricts the flow of groundwater from one
aquifer to another.
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79. There are "confining beds," or completely impermeable aquitards, between the Williamson
County expansion area and the Eclwards aquifer.
80. Theproposed groundwater monitoring systym would consist of35 monitoring wells located
along the pelimeter of the combined footprints of the existing and proposed Landfill.
81. The wells would be spaced between 489 to 655 feet apart, with an average spacing of 595
feet. That spacing is similar to the 563-foot average spacing ofthe present monitoring wells.
82. No monitoring wells were included along the western b0U11dary ofthe original Landfill site.
83. Ofthe 35 wells, 25 would be screened in the lower claystone/upper limestone unit and 10
would be screened in the shallow, coarse-grained matelial of the surficial clay unit, along
the eastern boundary of the expansion area.
84. The screens for the wells would generally be 10.0 feet in length for the shallower wells in
the surficial clay unit and 15.0 feet in length for the deeper wells at the claystone/limestone
interface.
85. Under the proposed monitoring system, two wells, MW-11 and MW 12, which are located
at corners ofthewestem boundary ofthe existing Landfill, where itsboundarytums towards
the east, are intended as upgradient wells, meant to serve as background monitoring wells.
"86. Because groundwater passes through upgradient wells before reaching the Facility, that
water will not have been affected by any release from the Facility.
87. The cunent groundwater monitoring system, approved in 1995 to obtain Williamson
County's current Pennit No. MSW-1405A, consists ofeight wells, all screened in the lower
claystone/upper limestone unit.
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88. The upgradient wells under the CUlTent system are MW-11, MW-12, and MW-9A. However,
MW-9A, which is along the eastemboundary of the cunent Landfill, would be
decommissioned if the expansion is approved, because it would be in the middle of the
expanded Landfill. Two other downgradient wells would be decommissioned also, for the
same reason.
89. Originally at this Landfill site, three monitoring wells (MW-01 through MW-03) were
installed. In November 1991, four new monitoring wells (MW-04 through MW-07) were
installed. In JanualY 1996, in connection with Pennit No. l405A, piezometer P-J was
converted to MW-9 (later replaced by MW~9A due to damage) and monitOling wells
MW-08 and MW-10 through MW-13 were installed. Three ofthe earlier monitoring wells,
MW-01 through MW-03, were plugged and abandoned at that time. Two others, MW-4 and .
MW-5, remain at the site, but were removed from the monitoring detection system.
90. Piezometers have been maintained at the MW-4 and MW-5 locations.
91. For this Facility, Ms. Gallup located the point of coinpliance around the entire northern,
eastern, and southe111 boundaries of the Facility, excluding the western boundary of the
existing Landfill which she detennined to be upgradient.
92. The Geology Report included and summarized geological data, including boring logs, from
previous investigations.
93. The Geology Report summalized and discussed historical groundwater monitoring· data.
Historical data that were not actually included in the filing were analyzed byMs. Gallup and
clearly referenced in the Application.
94. It is common practice to reference historical materials rather than include them in an
. application.
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95. Williamson County analyzed and presented adequate infomlation regarding the existing
Landfill site.
96. The Application adequately discussed the effect ofconstruction on groundwater movement.
97. There is no active faulting in the area of the site.
98. The evidence is inconclusive as to whether there is an inactive fault or faults beneath the
Landfill.
99. Although inactive faults theoretically can provide a pathway for the movement of
groundwater, there was rio evidence of such movement at this site.
100. Even ifthere is an inactive fault in the area of the site, it does not affect the movement of
groundwater.
101. The groundwater monitoring system does not need to be revised to account for the possible
presence of an inactive fault.
l02. The boring data showed the bottom ofthe uppennost aquifer to be five to ten feet below the
c1aystone/limestone interface, which is where those monitoring wells will be screened.
103. Although some boring samples showed additional, deeper fractures, those fractures were "at
depth," with an unfractured zone consistently rep01ted between the shallower fractures and
the deeper fractures·.
104. Most of the boring samples summarized in the Application show the limestone as
unfractured below the 5-10 foot level below the top of the limestone. If there are fractures
a few feet lower, they are almost all totally healed.
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lOS. Of the few samples that show deeper, unhealed fi:actures, only one, E-16, shows that
fracturing anywhere close to that upper level. Even in that sample, there are 24 feet of
unfractured rock, or rock with totally healed fi:actures, between the upper and lower
unhealed fractures.
106. The borings showed no water in that lower portion of the limestone.
107. The base oftheuppennost aquifer is in the upper pOltion of the limestone stratum, which is
the level at which the groundwater monitol~ngwells will be screened.
108. Under the proposed groundwater monitoring system, the screens themselves are to be placed
to pull in any fractures at the well location,
109. The proposed groundwater monitOling wells will be placed at appropriate depths at the.base
of the uppennost aquifer.
110. It is not necessary to monitor' the claystone stratum itselfother than at the levels anticipated
in Williamson County's proposed groundwater monitoring system.
111. In the eJ(.pansion area, the groundwater flow is generally to the east, with some flow to the
north ~d south.
112. To the east the downgradient would ensure groundwater flow thonlgh the claystone to the
interface.
113. Leaks would spread radially and travel several pathways through the narrow fractures in the
claystone. The most likely path would be downward to reach the claystone/limestone
interface, not only because of gravity, but because of the prevalence of vertical and
subvertical fractures shown in the boring sanlples.
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114. Vertical boring is more likely to discover horizontal fractures than vertical or subvertical
ones, but in these samples the latter were predominant.
115. Piezometers at the site show groundwater percolating tlu'ough the surficial clay and
claystone to the claystone/limestone interface.
116. It is possible that some groundwater could miss the screens at the intelface to the north and
south if unhealed horizontal fractures were aligned to allow it to do so, but contaminants
would not go undetected.
117. The monitoring well screens should not be extended throughout the depth of the claystone
stratum.
118. Williamson County correctly established thepoint ofcompliance along the northern, eastern,
and southern boundaries of the proposed expanded Facility.
119. The point of compliance should not be extended to the western boundary.
120. The monitoring system proposed for the western boundary of the original Landfill is the
same system that has been in place there since 1995, when Williamson County obtained its
current permit.
121. The system under that permit consists of eight monitoring wells screened at the lower
claystone/upper limestone interface along the nOlthern, eastern, southern, and part of the
western boundary of the Landfill.
122. There are no monitoring wells currently on th~ western boundary of the original Landfill,
which comprises roughly the lower two-thirds of the total existing site.
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123. There are also no monitoring wells on the upper pOliion of the westem boundary of the
existing site, between existing MW-11 and MW-14, the latter of which is on the northem
boundary of the site.
124. The groundwater elevation for MW-11 is higher than for MW-l 0 to its east.
125. MW-11 is an uP81'adient, rather than a dowl181-adient well.
126. Although the proposed groundwater monitoring system and the cunent groundwater
monitoting system do not include any monitoring wells along the westem boundary south
ofMW-12, there was such a well in place, MW-5, before 1996.
127. MW-5 on the southem portion of the westem boundary, was removed fl.·om the system in
1996, because the data from December 1991 to December 1994 showed it to be upgradient.
128. There is no groundwater movement across the western boundary.
129. The point ofcompliance should not be extended along the westem boundary of the existing
Facility.
130. The point of compliance should be approved as shown in the Application.
131. The Groundwater Sampling and Analysis Plan (GW8AP) contained in the Application
provides procedures for collecting representative samples from 8l'oundwater monitoring
wells and quality assurance/quality control procedures required to ensure valid analytical
results. The GWSAP also includes methodology for establishing background water quality
in each well and for comparison of the subsequent results to back81'ound values in the same
well in order that any statistically significant increase may be detected.
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Drainage Patterns
132. Drainage and stonnwater runoffis to be controlled at the site bythe use ofdrainage terraces,
channels, and detention ponds.
133. Williamson County based the drainage design on estimated stonnwater lunoffpeak flow
rates, volumes, and maximum velocities for a 24-hour, 25-year stonn event.
134. In detennining whether the site design met the drainage requirements of 30 TEX. ADMIN.
CODE § 330.56(£)(4)(A)(iv), Williamson County compared conditions before the existence
of any Landfill at the site (pre-development conditions) to the conditions proposed to exist
at the time of the estimated closure of the site (post-development conditions).
135. The Landfill design, with its drainage terraces, perimeter cham1els, and detention ponds,
generally creates a longer, more complicated flow path for stonnwater than existed before
the site was developed.
136. For all but two of the discharge points, post-development peak flow rates and maximum
velocities would be maintained at or below peak flow 'rates .and velocities for pre
development, natural conditions.
137. Discharge Point F would have a developed 25-year peak flow rate of 473 cubic feet per
second (cfs) versus the natural condition of471 cfs, an increase ofless than one-halfpercent.
138. Discharge Point Gwould have a developed 25-yeal:peak 'velocity of6.2 feet per second (fps)
versus the natural condition of 5.9 fps, an increase of five percent.
139. Both Discharge Points F and G would discharge into an unnamed tributary along the
northwestem edge of the existing permit boundary.
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·--137------------l.1.>.L3.L7---
140. From the 25-year storm, 62 acre-feet would be discharged from Discharge Point A under
natural conditions, while 90 acre-feet would be discharged under the proposed developed
condition.
141. At Discharge Point B, 29 acre-feet would be discharged under natural conditions, while 81
acre-feet would be discharged under the proposed developed condition.
142. TCEQ's Regulatory Guidance Document RG-417, dated June 2004, entitled "Guidelines for
Preparing a Surface Water Drainage Plan for a Municipal Solid Waste
Facility,"acknowledges that an increase in volume may be mitigated by controlling the rate
of discharge.
143. Peak flow rates would not be increased significantly at any discharge point under the
proposed expansion.
144. Natural drainage pattems would not be significantly altered as a result of the proposed
Landfill expansion.
Geotechnical Investigation
145. Geoteclmical test results of the soils beneath the expansion property indicated that the
moisture content of the subsoil units decreases with depth while the compression strength
increases with depth. The predominant cohesive materials beneath the Facility are generally
stiff to very stiff and have relatively high shear strengths. The average shear strength is
3,734 pounds per square foot (pst) for the surficial soil, 13,887 psffor the claystone, and
60,204 psf for the limestone.
146. In general, the surficial clay and some ofthe claystone will be excavated during construction
of the lateral expansion. These materials are predominately cohesive soils classified as CL
and CR, are medium to high plastic, and have a recornpacted penneability on the order of
20
138 138
10-& to 10- 11 centimeters per second (em/sec). Therefore, the excavated cohesive soils can
. be used for the compacted liner construction.
]47. The subsoils ~eneath the Facility are suitable for Landfill construction and the excavated
cohesive soils are suitable for construction of a compacted soil liner because:
a. .The in-situ soils possess sufficient shear strengths to preclude the possibility ofdevelopment of bearing capacity type foundation failure under the anticipatedoverburden pressure of the Landfill;
b. The in-situ soils possess sufficient shear strengths to suppor,t the 3H:1V excavationslopes and provide the slope stability;
c. The in-situ soils are not susceptible to excessive differential settlement that could·detrimentally affect the perfonnance of the Landfill liner;
d. With proper conditioning and compaction, the on-site cohesive soils will be suitablefor clay liner construction and capable of attaining a hydraulic conductivity of 1.0x 10-7 em/sec or less; and
e. The field investigation program did not uncover deposits of soils capable ofliquefaction or other features indicative of potentially unstable foundationconditions.
148. Applicant perfonned a stability analysis to predict the structural stability of the Facility
.during Landfiil development, including analyses of excavation slopes, the foundation, soil
liners, and temporary/pennanent benns.
149. The expanded Landfill will be stable if designed and constructed as proposed in the
Application.
Groundwater Protection
150. The expansion of the Facility is designed to be protective of groundwater. The design
includes a composite liner system and a leachate collection system. The Application
provides for quality control procedures to be employed during the construction and
21
139 139
installation ofthe liner system and requires submission ofa Soil and Liner Evaluation Report
(SLER) and/or a Geomeinbrane Liner Evaluation Report (GLER) to the TCEQ detailing the
final construction and lining of a new disposal cell prior to the placement of any waste in
that cell.
151. The Facility is to b.e constructed with a composite liner consisting of two components. The
lower component will consist of at least a two-foot layer ofrecompacted clay soillinel: with
a hydraulic conductivity of no more than 1 x 10-7 em/sec, and the upper component will
C011sist ofa minimum 30-mil flexible membrane liner. The flexible membrane liner will be
composed ofhigh-density polyethylene (HDPE) at least 60-mil thick.
152. The leachate collection and associated leachate removal systems will be constructed of
HDPE or PVC, materials which are chemically resistant to the leachate expected to be
generated, are of sufficient strength and thickness to prevent collapse under the pressures
exelted by overlying wastes and by equipment, and are designed to function and will be
operated through the life of the Facility and through the closure and post closure period of
the Facility.
153. The leachate collection system will consist of either a geonetdrainage layer with a filter
fabric overlain by a 2-foot thick layer ofprotective cover or 12 inches of granular drainage
material overlain by 12 inches of protective cover.
154. A leachate collection system will be installed on the base grade of all new cells constructed
at the Facility. Each new cell will have a centrally located leachate collection trench and an
individual leachate collection sump. Collected leachate will be carried to one of the 21
proposed ,sumps located along the perimeter of the disposal area via specifically backfilled
trenches. The leachate collection system is designed to maintain a head ofless than 30 cm
(one foot) over the liner system.
22
........_.__. ·------140-------------L14=>o.LO---,
155. During the operation of the Facility, the level of leachate in each completed sump will be
measured to insure compliance with maximum allowable head limits at least monthly for the
first 12 consecutive months of cell .life. Thereafter, monitoring will be quarterly. No
significant leachate accumulation is expected after the final cover is in place, but after the
Fac.ility is closed, the leachate levels will be measured amlUalIy, or more frequently if
necessary, to ensure that the leachate depth does not exceed 30 em.
156. Leachate recovered from pre-subtitle D and subtitle D sumps will be pumped directly into
a tanker truck, recirculated, and/or pumped through a force main system to evaporation
ponds or other on-site storage or treatment facilities. Leachate pumped into tanker trucks
will be disposed of off-site at a TCEQ-approved treatment Facility.
157. Positive drainage of the leachate collection system will be maintained under the influence
of the settlement ofthe surface of the liner.
158. The Soil Liner & Quality Control Plan (SLQCP) specifies materials, equipment, and
construction methods for the construction of compacted soil liners. The SLQCP details
installation methods and quality control testing and reporting for the flexible membrane
liners, provides guidance necessary for testing and reporting evaluation procedures for the
person preparing the SLER and/or the GLER, and describes implementation procedures. It
specifies materials and locations for sidewall dewatering and ballasting and guidance for
preparation and submission of the Ballast Evaluation Report (BER).
159. New cells at the Williamson County RDF may be constructed below the seasonal high water
table. If so, hydrostatic forces may be encountered that could cause the liner system to
undergo uplift during its construction. The construction ofliner systems below the seasonal
high water table, including the sideslopes, will incorporate shOlt-term groundwater control
and ballasting as described in the SLQCP. After construction ofthe liner and placement of
ballast, the dewateling/underdrain system will be terminated. In anticipation of the
groundwater eventually rebounding to the seasonal high water table, the long-term uplift
23
141 141
resistance design will prevent liner uplift after the full hydrostatic pressure is redeveloped
by providing sufficient weight to counteract the uplift force. This resistance will be provided
by the weight ofthe leachate collection system components, protective cover, soil ballast if
needed, waste ballast, and final cover.
Site Operating Plan
160. The entire Application, including the site development plan, Site Operating Plan (SOP), final
closure plan, post-closure care plan, Landfill gas management plan, and any other required
plan, will be placed into the site operating record ofthe Facility and will become operational
requirements for the Facility. All infonnation placed in the operating record of the Facility
will be retained for the life of the Facility, including the post-closure care period.
161. The Applicant is authorized to accept waste at the Facility Monday through Friday, 5:00 a.m.
to 8:00 p.m. and Saturday, 6:00 a.m. to 4:00 p.m. The Applicant is authorized to operate
heavy equipment and transport materials to and from the Facility Mondaythrough Saturday,
3:00 a.m. to 10:00 p.m. There are no specified hours for "other activities", as set forth in.
former 30 TEx. ADMIN. CODE § 330.118, which applies to the APplication. Facility
operating hours will be po'sted at the entrance.
162. [Deleted.]
163.' The operation of the Faciiity 24 hours per day, seven days per week in non-emergency
conditions may be incompatible with surrounding land uses.
164. The operational activities that store, process, or dispose of combustible materials at the
Facility include the active working faces of the Landfill and the blUsh collection area
working face. The fire protection plan provides guidelines for Landfill personnel to
minimize the potential for fires and instructions for controlling small fires. The fire
protection measures in the SOP apply to both the active working face and the brush
collection area working face to prevent Or extinguish any fire that may occur.
24
--142------------1.LZ:4x..<2'---------.
165. Special waste will be received at the Facility in accordance with the Special/Industrial Waste
Screening Program and the pennit. Wastes specifically prohibited from Landfill disposal
will not be accepted for disposal.
166. Class 1 regulated asbestos-containing material will be accepted for disposal within the fill
area and is specifically approved for this Facility. The SOP contains procedures to ensure
that regulated hazardous waste or radioactive wastes will not be accepted at the Facility.
167. To prevent the disposal of unauthorized waste at the Facility, the SOP provides that the
Applicant will post signs regarding hazardous and other unacceptable wastes, screen wastes,
providepersolmel training, rej ect haulers carrying unauthorized wastes, and perfonnrandom
sampling in accordance with the randqm inspection procedures for the Facility.
168. The SOP provides that waste screenings will be conducted at the gate or offsite before
-disposal at the Facility. The SOP specifies procedures for random inspections of incoming
waste.
169. Access to the Williamson County RDF will be controlled using artificial barriers, natural
barriers, or a combination of both. Access to the Facility is controlled using a perimeter
fence and a gated entrance. The gated entrance completely restricts access when the Facility
is not open. In order to prevent the entry of livestock and discourage unauthorized entry to
the Landfill, the perimeter fence consists ofsix-f06t chain-link and/or at least 3.5-footthree
strand barbed wire fence.
170. The SOP provides that the unloading of waste will be restricted to the active working face
and that theworking face will be confined to as small an area as practical. There may be two
active working faces, a single brush unloading area, and a single liquid waste unloading area
for a maximum total of four unloading areas at any given time. A trained employee will be
present at the entrance at all times during operating hours to monitor all incoming loads of
25
143-------- 143
waste and will direct traffic to the appropriate unloading area. Prohibited wastes includes
hazardous waste (except municipal hazardous waste from conditionally exempt small
quantity generators), PCB waste, and unauthorized special waste.
171. The SOP provides that the working face will be maintained and operated in a manner to
control windblown solid waste. Daily cover or the approved equivalent, litter fences, and
litter collection will be employed to protect the working face from prolonged exposure. A
minimum of six inches of daily cover will be used in order to prevent disease vectors,
control windblown debris and odors, reduce the possibility of fire, prevent scavenging, and
improve the operation of the Facility.
172. The SOP specifically prohibits solid waste unloading, storage, disposal or processing
operations from occuD'ing within any easement that crosses the site or within any buffer
Zone.
173. The SOP provides that the Landfill operator will take the necessary steps to ensure that
vehicles hauling waste to the site properly secure the load in order to prevent the escape of
any part ofthe load by blowing or spilling.. The operator will, as necessary, post signs at the
Landfill entrance requiring loads to be covered or enclosed and the potential consequences
for non-compliance including reporting offenders to the City ofHutto Police or Williamson
County Sheriffs office and assessing litter control surcharges.
174. On a daily basis dUling daylight hOUTS when the Facility is in operation, FM 1660 and all
other public roads used to access the Landfill will be inspected and cleaned of spilled
materials and wind blown waste for a distance of two miles in either direction from any
entrances used for the delivery of waste to the site.
175. The SOP specifically provides that the Landfill manager will ensure that any unit of the
Landfill does not violate any applicable requirements ofthe approved state implementation
plan under the federal Clean Air Act. No open bunring of waste will be peD'llitted.
26
iII
'Ii
------144-----------....--11=4=4=----
176. The SOP includes an odor management plan that uses a combination of identifying the
sources ofodor and methods to minimize or eliminate those odors. Methods to achieve these
objectives include waste and leachate handling procedures, timely placement of cover
materials, the elimination ofponded water, and gas control.
177. The SOP provides that vector control will be achieved through application of daily cover,
eliminating ponded water, minimizing the working face, and if necessary, application of
appropriate chemicals using appropriate health and safety practices.
. 178. The SOP specifies procedures to minimize the tracking of any mud and b.·ash by vehicles
entering or exiting the Facility onto public roadways. Vehicles will traverse all-weather site
access roads and paved sit~ entrance roads allowing for mud,to be removed from the vehicle.
Additionally, the Facilitywill minimize the amount ofmud at the site entrance and on access
roads.
179. The SOP prohibits scavenging, the uncontrolled and unauthorized removal ofmaterial at any
point in the solid waste management system.
180. 'The SOP permits salvaging, the controlled removal of waste materials for recycling, reuse,
or sale with specific authorization from the Landfill manager in accordance with the SOP,
but will not b.e allowed to interfere with prompt sanitary disposal of solid waste or to create
a public health nuisance.
181. The SOP specifies procedures for Landfill gas monitoling and control in accordance with
the Landfill Gas Management Plan, Attachment 14 to Part III of the Application.
182. The SOP specifies that ponding ofwater over waste areas will be minimized and eliminated.
. Ponding in the active portion of the Facility or on a closed portion of the Facility must be
eliminated and the area in which the ponding occurred will be filled in and regraded within
27
-145- 145
seven days of the occunence. Ponded water hom an area with at least 12 inches of
intennediate cover will be pumped or otherwise removed to the Facility's drainage system.
The ponding prevention plan will use high density compaction during placement of the
wastes along with constructing and maintaining proper cover and slope on all areas to
prevent ponding over waste areas.
183. The SOP prohibits discharge of contaminated water without specific written authorization
from TCEQ. Water that has become contaminated by contact with the" working face or with
leachate shall be segregated from uncontaminated surface and groundwater and properly
managed.
Reporting and Transcription Costs
184. Williamson County has been assessed reporting and transcription costs of $24,274 for the
prehearing conference and evidentiary hearing.
185. There is no evidence regarding the parties' fmandal ability to pay the reporting and
transcription costs.
186. Both Williamson County and TJFA participated fully in the hearing and benefited from the
transcript.
187. Although Williamson County is a political subdivision ofthe state, it is not a state or federal
administrative agency, nor is there any evidence as to its budget constraints.
188. Although reporting and transcription costs are an expected cost in the course of a major
Landfill expa11Sion application such as this one, the Commission has detennined based on
the factors in 30 TEX. ADMIN. CODE § 80.23(d) that the Applicant shall bear 50% of the
costs, TJFA shall bear 25% of the costs, and Hutto Citizens Group and the Heritage on the
San Gabriel Homeowners Association shall each bear 12.5% of the costs for repolting and
transcription.
28
--146-----------~1L....4L.>.6"------
189. Although the AUs recommend approval of the application, with some n10difications, the
issues raised by the Protestants were reasonable and well presented.
Other Remaining Issues
190. With respect to all other contested issues and all umefuted issues, the Application and the
remainder of the evidentiary record contain sufficient factual information regarding the
Landfill's design and operation to satisfy all applicable statutory and regulatory
requirements.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the disposal of municipal solid waste and the
authority to issue this permit under TEx. HEALTH & SAFETY CODE ANN. § 361.061.
2. Notice was provided in accordance with TEx. HEALTH & SAFETY CODE ANN. § 361.0665,
30 TEx. ADMIN. CODE §§ 39.5 and 3~.l01,andTEx.Gov.CODE§§ 2003.051 and 2003.052.
3. SOAH ALIs have jurisdiction to conduct a hearing and to prepare a Proposal for Decision
on contested cases referred by TCEQ under TEx. Gov. CODE § 2003.47.
4. Applicant submitted a complete penuit amendment application, as required byTEx. HEALTI!
& SAFETY CODE ANN. §§ 361.066 and 361.068, that demonstrates that Applicant will
comply with all relevant aspects of the Application and design requirements as provided in
30 TEx. ADMIN. CODE §§ 330.4(m) and 330.51(b)(1).
5. The Application was processed and the proceedings described in this Order were conducted
in accordance with applicable law and rules ofthe TCEQ, specifically 30 TEX. ADMIN. CODE
29
--·..··--147-----------......I1=4:..t.,7--_
§ 80.1 et seq., and the State Office of Administrative Hearings, specifically 1 TEX. ADMIN.
CODE § 155.1 etseq., and SubchapterC ofTEx.HEALTH&SAFETYCODEANN.Chapter361.
6. The burden of proof was on the Applicant, in accordance with 30 TEX. ADMIN. CODE
§ 80.l7(a).
7. Williamson County's compliance history was reviewed by the ED and is acceptable under
30 TEx. ADMIN. CODE Chapter 60.
8. WMTX's compliance history was reviewed by the ED and is acceptable under 30 TEX.
ADMIN. CODE Chapter 60.
9. The evidence in the record is sufficient to meet the requirements of applicable law for
issuance ofthe Draft Pennit, including TEx. HEALTH & SAFETY CODE ANN. Chapter 361 and
30 TEx. ADMIN. CODE Chapter 330.
10. Under 30 TEx. ADMIN. CODE § 330.62(a), the Applicant possesses sufficient property rights
in the Facility for which the pennit will be issued; the Applicant can ensure right of entry
until the end of the post-closure care period.
11. CAPCOG was not required to review the Applicatio!)..
12. TIle provisions of 30 TEX. ADMIN. CODE CH. 330 apply specifically to "all aspects of
municipal solid waste management," and are based primarily on the stated purpose ofTEx.
HEALTH & SAFETY CODE ANN. Chapter 361.
13. Williamson County.is the "owner" of the Facility as defined in 30 TEX. ADMIN. CODE
§ 330.2(94).
30
-----148'----------------t-J14!o+-8u----
14. Williamson County is the "site operator" ofthe Facility as defined in30 TEx. ADMIN'. CODE
§ 330.2(132).
15. WMTX is the "operator" of the Facility as defined in 30 TEX. ADMIN'. CODE § 330.2(91).
16. Under 30 TEX. ADMIN'. CODE § 330.2 (97), a "pemlit" is defined as "a written pennit issued
by the Commission that, by its conditions, may authOlize the owner or operator to construct,
install, modify, Or operate a specified municipal solid waste storage, processing, or disposal
facility in accordance with specific limitations."
17. A pennit issued under TEX. HEALTH & SAFETY CODE ANN. § 361.087(1) must include the
name and address ofthe "owner" of the land on which the solid waste facility is located and
the person who is or will be the "operator" ofthe facility as defined in 30 TEx. ADMIN'. CODE
§ 330.2.
18. The Draft Permit No. MSW-1405B, shall identify Williamson County as the "owner" and
"site operator," and WMTX as the "operator" of-the Landfill. Otherwise the Draft Pennit
includes all matters required by law.
19. The Applicant has met the requirements of 30 TEX. AD:MIN. CODE § 305.43(b) in that
WMTX submitted the Application to the Commission on behalf ofWilliamson County.
20. No site-specific conditions exist at the site that will require special consideration as provided .
in 30 TEx. ADMIN. CODE §§ 330.51(b)(3) and 330.53(b)(4).
21. The land use infonnation provided in the Application contains the technical infonnation
required under 30 TEX. ADMIN'. CODE § 330.53(b).
31
----------149---------------J1t.=4L.J,;9L--_,
22. The expansion of the Williamson County RDF, if constructed El11d operated in accordance
with the TEX. HEALTH & SAFETY CODE ANN. Chapter 361,30 TEX. ADMIN. CODE Chapter
330, and the Draft Pennit, will not adversely affect public health or the enviromnent.
23. As required by TEx. HEALTH & SAFETY CODE § 361.069, the Facility is compatible with
sunounding land uses.
24. The approval ofthe Application and issuance ofPenuit No. MSW-1405B, will not violate
the policies of the State of Texas, as set forth in § 361.002(a) of TEX. HEALTH & SAFETY
CODE ANN. Chapter 361, to safeguard the health, welfare, and physical property of the
people of Texas, and to protect the enviromnent by controlling the management of solid
waste.
25. The contel'lts ofthe permit to be issued to the Facilitymeet the requirements ofTEX. HEALTH
& SAFETY CODE ANN. §§ 361.086(b) and 361.087.
26. The Texas Health and Safety Code and TCEQ rules do not require Applicant to analyze the
impact on on-site drainage of off-site structures that are not within the 1OO-year floodplain.
27. The TCEQ is not prohibited by TEx. HEALTH & SAFETY CODE ANN. § 361.122 from issuing
Permit No. MSW-1405B.
28. Applicant has not proposed to construct the expansion in a floodplain; therefore, Applicant
is not required to submit the information specified in 30 TEX. ADMIN. CODE
§ 330.51(b)(4)(A)-(D).
29. Applicant has submitted documentation ofcompliance with the National Pollutant Discharge
Elimination System (NPDES) program under the federal Clean Water Act Section 402, as
amended, as required by 30 TEx. ADMIN. CODE § 330.51 (b)(S).
32
-----1501-----------...!...15~O~--
30. As required by 30 TEx. ADMIN. CODE § 330.51(b)(6), Applicant has submitted
documentation of coordination with:
a. TCEQ for compliance with the federal Clean Water Act Section 208;
b. the Federal Aviation Administration for compliance with airport location restrictions;and
c. the Texas Depmiment ofTransportation for traffic and location restlictions.
31. Applicant has submitte~wetland detenninations required by applicable federal, state, and
local laws as required by 30 TEX. ADMIN. CODE §§ 330.51 (b)(7) and 330.53(b)(l2).
32. Applicant has submitted Endangered Species Act compliance demonstrations under state and
federal laws as required by 30 TEx. ADMIN. CODE §§ 330.51(b)(8), 330.53(b)(13), and
33 0.55(b)(9).
33. Applicant has submitted a review letter from the Texas Historical Commission as required
by 30 TEx. ADMIN. CODE §§ 330.51(b)(9).
34. The Application confonns to the applicable requirements of the Engineering Practice Act,
TEx. REv. CN. STAT. ANN. art. § 3271a,as provided in 30 TEx. ADMIN. CODE § 330.51(d)
and 22 TEx. ADMIN. CODE § 131.166.
35. Part I of the Application meets the technical requirements of 30 TEX. ADMIN. CODE
§§ 305.45 and 330.52.
36. Part II. of the Application meets the technical requirements of 30 TEx. ADMIN. CODE
§ 330.53.
37. The Site Development Plan, which supports Parts I and II of the Application, meets the
requirements 000 TEx. ADMIN. CODE §§ 330.54, 330.55, and 330.56.
33
----151------------=------1.w.5.L1.L....---.
38. Part III of the Application meets the requirements ono TEX. ADMIN. CODE §§ 330.54-.56. .1!
I
39. Part IV of the Application, the SOP, meets the requirements of 30 TEX. ADMIN. CODE
§§ 330.57 and 330.114.
40. Applicant has shown that it will comply with the operational prohibitions and requirements
in 30 TEX. ADMIN. CODE §§ 330.5, 330.111-.139.
41. Applicant has thoroughly investigated for the presence of geologic faults, both active (as
required by 30 TEX. ADMIN. CODE § 330.56(d)(3)(A)), and inactive faults, which is not
required by TCEQ's lUles.
42. Williamson County's borings were in compliance with the depth requirements contained in
30 TEx. ADMIN. CODE § 330.56(d)(5)(A)(ii).
43. Applicant submitted a subsurface investigation report that complies with 30 TEx. ADMIN.
CODE § 330.56(d)(5).
44. The Application contains the required information regarding the effect of site construction
on groundwater flow required by 30 TEx. ADMIN. CODE § 330.231(e)(1).
45. The Application meets the requirements of 30 TEX. ADMIN. CODE §§ 330.55 and
330.200-.206, concerning groundwater protection.
46. The groundwater sampling and analysis plan meets the requirements set forth in 30 TEX.
ADMIN. CODE §§ 330.56(k) and 330.230-.234.
47. In detelmining whether natural drainage patterns will be significantly altered, the issue of
whether the receiving body ofwater is affected is to be addressed at the point ofdischarge,
not by analyzing any points downstream of the proposed Facility. In the Matter afthe
34
·-------------152-----·---------...L1u.S,&...2----
AppUcation ofBlue Flats Disposal, L.L. c., for Proposed Permit No. MSW-2262, SOAR
Docket No. 582-98-1390, TNRCC Docket No. 98-0415-MSW (Jan. 2, 2001) and In re
Application ofNorth Texas Municipal Water Districtfor Municipal Solid Waste Permit No.
MSW-2294, SOAR Docket No. 582-02-3386, TCEQ DocketNo. 2002-0745-MSW (Finding
of Fact No. 105 and Conclusion of Law No. 27) (October 20, 2003).
48. Applicant has demonstrated that natural drainage patterns will not be significantly altered
as a result of the proposed Landfill development, as required by 30 TEX. ADMIN. CODE
§ 330.56(f)(4)(A)(iv).
49. The Landfill gas monitoring system complies with 30 TEX. ADMIN. CODE § 330.130.
50. Applicant has demonstrated compliance with the location restIictions set forth in 30 TEx.
ADMIN. CODE §§ 330.300-.3.05.
51. Applicant has submitted infonnation regarding closure and post-closure that demonstrates
compliance with the requirements ono TEx. ADMIN. CODE §§ 330.56(1) and (m), 330.253,
and 330.254(b).
52. Applicant has submitted inforination regarding financial assurance that complies with 30
TEx. ADMIN. CODE§§ 330.52(b)(11) and 330.280-.286.
53. Applicant has listed all pennits or construction approvals received or applied fot under any
program listed in 30 TEX. ADMlN. CODE § 305.45(a)(7).
54. The SLQCP complies with 30 TEx. ADMIN. CODE §§ 330.56(j)and 330.205.
55. Applicant has provided sufficient infonnation concerning its acceptance or disposal of
"special waste," as defined by 30 TEX. ADMIN. CODE § 330.2.
35
----153-------------1-1,-,"53v.--_
56. Applicant has demonstrated compliance with 30 TEx. ADMIN. CODE § 330.136 regarding
disposal of special wastes.
57. Applicant has provided infonnation concerning the disposal of industrial wastes and
demonstrated compliance under 30 TEx. ADMIN. CODE § 330.137.
58. Operation of an MSW Landfill in accordance with the applicable law and regulations is a
proper land use of the property described in the Application for Pennit No. MSW-1405B.
59. Applicant is not proposing to site a new MSW Landfill or lateral expansion within five miles
of an airport serving turbojet or piston-type aircraft, as confmned in correspondence with
the Federal Aviation Administration and in compliance with 30 TEX. ADMIN. CODE
§§ 330.51(b)(6) and 330.300.
60. The buffer zones established by Applicant between the edge of fill and the site boundary are
compliant with the MSW rules, including 30 TEX. ADMIN. CODE §§ 330.121(b).
61. Applicant has provided sufficiently detailed information regarding the operational methods
to be utilized at the site when using daily cover and its preventative effect on vectors, fires,
odors, and windblown waste and litter, as required by 30 TEx. ADMIN. CODE § 330.133(a).
62. The methods specified in the SOP for the control ofwindblown waste and litter comply with
the MSW rules, including 30 TEX. ADMIN. CODE §§ 330.114(3) and330.120.
63. In accordance with 30 TEx. ADMIN. CODE § 330.115, the SOP fire protection plan includes
fire protection standards and site persOlmel training requirements.
64. The SOP's special waste acceptance procedures ensure that special waste, as that tenn is
defined in 30 TEx. ADMIN. CODE § 330.2, will not be accepted or disposed of without the
prior written authorization from TCEQ, except with respect to celtain special wastes the
acceptance ofwhich is previously authorized.
36
154--------------1L>,5=4L-.....------'
65. The Facility is operated in accordance with the federal New Source Perfom1ance Standards
and under the Commission's Title V General Operating Perinit.
66. Pursuant to the authority of, and in accordance with, applicable laws and regulations, the
requested pennit should be granted.
67. Pursuant to 30 TEX. ADMIN. CODE §§ 80.23(d)(2), the ED and OPIC may not be assessed
any portion of the transcript and repOliing costs.
68. For the reasons set out in the Findings ofFact, the court reporting and transcript costs should
be assessed to 50% to Williamson County, 25% to TJFA, 12.5% to Hutto Citizens Group,
and 12.5% to the Heritage on the San Gabriel Homeowners Association, pursuant to 30 TEx.
ADMIN. CODE § 80.23(d).
EXPLANATION OF CHANGES
1. The Commission deleted proposed Finding of Fact No. 162, as recommended by the
Executive Director in,his exceptions. The details on emergency operations in Finding of
Fact No. 162 were unnecessary, as emergency operations are governed by applicable TCEQ
rules. The ALJs' agreed that deletion ofFinding ofFact No. 162 was appropriate by letter
dated March 27, 2008.
2. The Commission made clarifying, grammatical, or typographical corrections to Finding of
Fact Nos. 18,69,70,71,80,96, 104, 134, 147.b., and 180 and Conclusion ofLaw Nos. 12,
41, and 42, as recommended by the Applicant in its Brief in Response to the ALJs' PFD.
The ALJs' agreed that the changes were appropriate by letter dated March 27,2008.
.3. The COlmnissionmodified Finding ofFact No. 161 and Ordering Provision No.3 to clarify
the different types of operating hours at the Facility. The Commission detennined that the
37
-------155·----------~1H.54.5~--'
appropriate facility operating hours are: 1) Waste Acceptance - Monday through Friday, 5:00
a.m. to 8:00 p.m. and Saturday, 6:00 a.m. to 4:00 p.m., as agreed to by the Applicant in its
Brief in Response to the AUs' PFD; 2) Heavy equipment operation and transportation of
materials - Monday through Saturday, 3:00 a.m. to 10:00 p.m.; and 2) "Other activities"
no specified hours, as set forth in fonner 30 TEX. ADMIN. CODE § 330.118~ which applies to
this Application.
4. The COlmnission detennined that, based on the evidentiary record and for policy reasons,
the factors in 30 TEX. ADMlN. CODE § 80.23(d) walTant allocation of the costs of
transcription and reporting of the hearings as follows: 50% to the Applicant; 25% to TJFA;
12.5% to Hutto Citizens Group; and 12.5% to the He11tage on the San Gabriel Homeowners
Association.
NOW, THEREFORE, BE IT ORDERED BY THE TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY, IN ACCORDANCE WITH THESE FINDINGS OF FACT
AND CONCLUSIONS OF LAW THAT:
1. Pennit No. MSW-1405B for a Type I MSW Landfill in Williamson County, Texas, is hereby
issued to Williamson County.
2. The Draft Pennit No. MSW-1405B, shall identify Williamson County as the "owner" and
"site operator" and WMTX as the "operator" of the Landfill.
3. Pennit No. MSW-1405B, shall state the Facility's waste acceptance hours as Monday
through Friday, 5:00 a.m. to 8:00 p.m. and Saturday, 6:00 a.m. to 4:00 p.m. Pennit No.
MSW-1405B shall state the Facility's hours for operation of heavy equipment and
transportation ofmatelials to and from the Facility as Monday through Saturday, 3:00 a.m.
to 10:00 p.m. Pennit No. MSW-1405B shall'not specify hours for other activities, in
accordance with fanner 30 TEx. ADMlN. CODE § 330.118, which applies to this Application.
38
156----·--------------'--------156----------------'-..=.",0..---
4. References to WMTX should be removed from page one of nine of ''Part A" of the
Application in the "Applicant Name" section, and the "Customer Reference Number" shall
only identify Williamson County and Williamson County's customer reference number.
5. All other motions, requests for specific Findings of fact or Conclusions of Law, and other
requests for general and specific relief, ifnot expressly granted herein, are hereby denied for
want ofmerit.
6. The effective date ofthis Order is the date the Order is final, as provided by 30 TEx. ADMlN.
CODE § 80.273 and § 2001.144 of the Texas Administrative·Procedure Act, TEX. GOV'T
CODE ANN.
7. The Chief Clerk of the Commission shall forward a copy of this Order to all parties.
8. Ifany provision, sentence, clause, or phrase ofthis Order is for any reason held to be invalid,
the invalidity of any portion shall not affect the validity of the remaining portions of this
Order.
Issued: FEB 17 2009TEXAS COMMISSION ON
. ENVIRONMENTAL QUALITY
fA AddLI (J.>.a-hY.........rj -f,./-~ _
BU~hairmanFor the Commission
39
-----------157------------!-1.u5-1-7--
B Excerpts from applicable rules, 30 TEX. ADMIN. CODE ch. 305 (CR 158-164)
CHAPTER 305. CONSOLIDATED'- PERMITS
COMMISSION ON ENVIRONMENTAL QUALITY
305.41.305.42.305.43.305.44.305.45.305.47.305.48.
'COr,rSOLID
COnPe
SignVariN9~-Rev{
Pe
:." ~. .7
SUBCHAPTI- FQ:RHAZA"'WASTE
S-ectlon305.127:
305.128.305.129.305.130.305.1.31.
305,14i.· Appl~05!1:42. J)uty305_.143. _l?-eco305.144. Certi305.145~; -Rbb
-305.147:' ''Mc:mi-,;-- " Ma
)305.14.8" ~mpl1- - Fac
305.149:' 'Tunecia
305.150. Incor
3(j5.1~!1. :-Ap'p§_305,192. ;Wa,j:lr~t
305.193, ,:.r~~~05.J9,4!,;,~~Hy,W
rI!r
III!IIIi!j! SUBCHAPTEJ _FOR I.
f ~~~:i;i:. ~~:t 305.154. StandJ 305.155. pI:odt:E 3051.156. __ I{azat
I - 305:157.-Recor305.158. - Additi~305;159. AaditiI SUBCHAI
l~ .,~~gi:·' g:~:i '~~_~:1~7;', o~~I -,305.p4.~ti,J
I ~~~- - TESTS C
fl_ 305.181. Jreatn
305'.'182. TW~~PJ'3D5.183. -·-Cetti'fii
l'.~'~:~~
1
associated with that owner.(b) The assessment shall be paid to the executive
director in advance of expenditures. The executivedirector shall specify the- dates by which paymentsshall be due; - and may provide for payments ininstallInents. Penalties and interest for the late payment of fees shall be -assessed in accordance withChapter 12 of this title (relatirigto Payment of Fees).If fees are paid in installments, penalties and interest for ~ate payment shall he computed on theamount of the installment due. The executive director shall transmit all collectio~ to the state trea'surer'to be'held in a special fund to provide for thecost of thewatermaster operation.
(c) Water shall not be diverted, taken, stored, orused by any diverter .or agent while any assessmentpayment is delinquent.
(d) Either the water right owner or agent shallpay the assessment, put only one person per assessment account shall-be authorized to pay assessments.
Source: The provisions of this §304.63 adopted to be effectiveAugust 5, 1988. 13 TexReg 3639; amended to be effective February14. 1997,22 TexReg) 325. -
Section305.5.3._ Application Fee.305.54. -Addliional Requirements for Radioactive Mate-
rial Licenses. -
SUBCHAPTER D._ AMENDMENTS, RENEWALS,TRANSFERS, CORRECTIONS, REVOCATION,
- AND SUSPENSION OF PERMITS305.61. Applicability.305.62. Amenqx;I;lent.305-:63. RenewaL305.64. Transfer of Permits.305_65. Renewal.305.66. Permit Denial, SuspenSion, and Revocation.
- -305.67.' -'Revo~!itin and Suspension 'upon Request ~rConsent.'
305.68. Action arid'Notice on Petition for Revocation orSuspension.
305.69. Solid Waste Permit Modification at the Request--of the l'ermittee. -
305.70. Municipal. Solid Waste Permit arid RegistrationModifiCations. _ _ _ _
305.71. Basin Permitting._ '305.72. Underground- Injection Control' (UIC) Permit
Modifications at the Request of the Permittee.
SUBCHAPTER F. PERMIT CHARACTERISTICSAND CONDITIONS -
305.121. Applicability.,,··_-305.p2. Characteristics of Permits.305.123. Reservation iii Granting Pernut.J05.l-Z4. -Acceptance ofPermit, Effect.305.125. -StandaraPermit Conditions.305.126. Additional Standard Permit Conditions for Waste
Discharge Permits.
SUBCHAPTER C. APPLICATION FOR PERMIT- OR POST~CLOSUREORDERApplicability.Application Required.Who Applies.Signatories to Applications.Contents of Application for Permit.Retention of Application Data.Additional Contents of Applications for Wastewa-
ter Discharge Permits. -305.49. Additional Contents of Application for ali Injec
tion Well Permit.305.50. Additional RequiI:ements for an Application for a
Hazardous or" Industrial Solid Waste Permitand for a- Post.Closure Order.-
305.5 1. Revision of Applications for Hazafdous WastePermits. '
305.52. Waste ContaiDing Radioactive Materials.
SUBCHAPTER A. GENERAL PROVISIONSSection305.1. Scope and Applicability.305.2. Definitions. -305:3: Abbreviations.
SUBCHAPTER B. EMERGENCY ORDERS,TEMPORARY ORDERS, AND EXECUTIVE
DIRECTOR AUTHORIZATIONS305.2,~. ~mAeurge~SYd_ Or_dfOrs and T~mporary:Orders
u lOrlZe . '
305.29. Emergency Orders for Solid Waste Activities.305.30. Emergency Actions Concer¢ng Hazardous Waste.305.31. Emergency Orders Relating to Radioactive
-Substances. .: ..
30 TAC-§<304Z63to be used annually for each use (the sum of allauthorizations), then, in calculating the fee for eachaccount the number to be used for the authorizedamount shall be the product of the maximum totalauthorization and a fraction who!,!! numerator is theamount of water authorized for that use, and whosedenominator is the sum of all authorizations; andalso provided that the water right holder or theexecutive director may apply to the commission fof," :and the commission may grant, an order providing, _for assessment purposes only. that different portionsof the total amount.of water-authorized be applied tothe various authorized uses; and
(2) a storage fee for on-channel storage, which iscalculated by multiplying the total amount of waterauthorized for conservation storage -under that- as- sessment account by the storage assessment rate asdetermined by §304.62 of this title (pelating to Determination of Assessment Rates). For any waterright authorizing storage and more than one type ofuse for the same owner, the storage -fee for thatowner's total storage authorization shall be appliedto the assessment account for anyone of the uses
1712
30 TA;C·§30\S...1S,UBCHAPTER L. ' GROUNDWATER
, COMPLIANCE rUN '
305.571.305.572.305.573-
SUBCHAPTER P. EFF.LUENT GUIDELINESAND STANDARDS FOR TEXAS POLLuTANT '
, DISCHARGE.ELIMINATION SYSTEM (TIDES)''. • :,. PERMITS ," "
305.541. Effluent Guidelines and siarid'ards for TexasPollutant Discharge Elimination System·Permits. " ' ... ,' ,.
SUBCHAPTER Q. PERMITS FOR B.OlLERSAND INDUSTRIAL FURNACES BURNING
HAZARDOUS WASTEApplicability. "Permit and Trial Burn Requirements.Interim Status and Trial Bum Requirements.
Section305.401:-" 'Cbmpliance Plan;
sUBcI:iAPTEi O. 'ADDITIONAL CONDITIONSAND PROC:EDURES FOR WASTEWATER
DISCHARGE PERMITS AND SEWAGE SLUDGE; . PERMITS .
305.53 L -:'E.stabl~hiilg and CalculatiIig Additional C~ndi,tions and Limitations for TPDES Pennits.
305.532:. Adoptio~ of Appendices by Refex:~nce.
305.533.' Adoption of Environmental Protection AgencyIssued Permits and Pretreatment Programs.
305.534. .N~ Sources and New Di.,scbargers.305.535. Bypasses from TPDES Pemutted Facilities; Mini·
mum Requfrements for TPDES' Permittedf.<!,cilities. '
305.536. ReguiJ;ements for Applications and Permits withSludge Related Conditions. ' ,
305.537. ~eporting Requirements for Planned PhysicalC~anges to a Permi~d Facility" .
365.538. Prohibitions for TPDES Permits:305.539.' Additional Require~ents for Shrimp AquaclJ!
lUre Facilities Within, the Coastal Zone.
.StJBt~R"A:~-GENBR:AL'-PROVISl(jNS"".... ',i',.
§·30S.1. Scope and Applicability
(a). The provisions of this chapter set the standards and requirements for applications, permits,and actions, by the commission to carry out theresponsibilities for management bf waste disposalactivities under the Texas Water.Code, Chaptets 26,27, and28, and the Texas Health and Safety 'Code.Chapters.361 and:401.
(b) The: national pollutahtdfschm'ge eliminationsystem (NPDES) pr6gram; 'as del~gated to the Stateof Texas, requires pennits for the discharge of pollutants from any poi:t;J.t source ,to watersIn the state.Such permits are designated as Texas pollutantdischarge elimination system (TPDES). The terms"NPDES: "pollutant,» "point source: and. "watersin the state" are defined in Texas Water Code,§26.001.
1713
•F·~·? .'
Conditions to be ,Determined for IndividualPennits.
Signatories to' Reports.Variance Procedures.Notice of Inac,tive Municipal SolidWaste Permit.Revocation of Inactive Municipal Solid Waste
, Permit: ,
FOR INJECTION WELL PERMITSApplicability.Corrective'Action. "Standards. :Productio~ ""rea Authorization. .Hazardous Waste: ' ' .'Record Rete~tion. ' .;'Additional Conditions.Additional' Class I Conditions.
SUBCHAPTER K. RESEARCH;DEVELOPMENT, AND DEMONSTRATION
PERMITS "Applicability. and Scope.Waiver of Requirements.·Termination. 'Renewal. ,
-:,-
Sllctl<m305.127.
305.128.305.129.305.130.305..131.
SUBCHAPTER J. PERMITS FOR LANDTREATMENT DEMONSTRATIONS USING FIELD
'TESTS OR LABORATORY ANALYSES305.181. Treatment Demonstration Permit.305'.182. Two-Phase Facility Permit.505.183. Certification.305.184. Pennit Amendment or Modification.
CO~SOLIJ}A1,',EDPERl\UTS
305.191.305.192.305.1.93.305.194.
SUBCHAPTER G. ' ADDITIONAL CONDITIONS" fOR HAZARDOUS AND INDUSTRIAL SOLID'"WASTESTORAGE, PROCESSING, OR "
, DISPOSAL PERMITS305,141.· Applicability.305,142, Duty To~Comply.
,305.l~3. ~ecordkeeping.
305.144. Certification and Inspection.305.145:' Release or Discharges of Solid Waste.30S.l"n:: ,M6nitoring o(Commercial HazardoUS' Waste
Management Facility Operations. ,', 'J3,05.1~8,. ,Impact of New Hazardous ,Waste Management
Facilities on Local Land Use.305.149, 'TIIDe Limitation for Consituction of Coinni~r
cial Hazardous Waste Management·Units. "305.150. Incorporation of References.
SUBCHAPTER H. ADDITIONAL CONDiTIONS
305.151.305.152.305.154.305.155.305.156.305:157.305.158.'305,159,
SUBCHAPTER I. HAZARDOUS WASTEINCINERATOR PERMITS
305.171., Determining Operatio~~ Readiness.. ' .'-3c)s:17'i... , 'Determirililg ieisibillty-cif'Compliab:ce a1i1:i'Ad~
. . equate Operating Conditions.305.173. Operation Prior to, Final Amendment of the. ," Permit.,
,305)74. Existing Incinerators. "305.175. 'Conditional Exemption for D~monstrlltingto~
pliance with Certain' Air Standards...
30 TAC § 305.1 COMMISSION ON ENVIRONMENTAL QUALITY(1) The following are point sources requiring TP- Safety Code, §§361.003, 401.003, aild 401.004, ap-
DES permits for discharges: ply to this chapter. The following words and terms,(A) concentrated animal feeding operations as when used in this chapter, have, the following
defined in Chapter 321, Subchapter B.. of this title meanings. i(relating to Cominercial Livestock arid Poultry Pro- (1) Application-A formal written request for com-duction Operations); ". mission action relative to a permit or a post-closure
(B) concentrated aquatic animal production fa- order, either on commission fo~ or other ap-. cilities as defined in 40 Code of Fe.deral Regulations proved writing, together with all" materials and(CFR) §122.24; documents submitted to complete the application.
(C) discharges into aquaculture projects as set (2) Bypass-The intentional dive~ion of a wasteforth in 40 CFR §122.2S; stream from any portion of a treatment facility.
(D) discharges from separate storm sewers as set (3) Class I sludge management facility-Any pub-forth in 40 CFR §122.26; and licly owned treatment works iden¢ied under 40
(E) silvicultural point sources as defined in 40 Code of Federal Regulations §403.JO(a), as beingCFR §122.27. required to h,ive an approved pretreatment program
(2) The TPDES permit programal~6 applies to and any other treatment works treating domesticsewage classified as a Class I sludge management
owners or operators of any treatment works treating facility by the regional administrator in conjunctiondomestic sewage, unless all requirements implement- with the executive director becat(Se -of the potentialing the Clean Water Act (CWA), §405(d), applicable for its sludge use or disposal practi~es to adverselyto the treat:n;J.ent works treating domestic sewage are affect public health and the environment.included in a permit issued under the .appropriate
. provisions of Subtitle C, the Federal Solid Waste (4) Component-Any constituent part of a unit orDisposal Act, the Safe Drinking Water Act, Part C, any group of constituent parts of a·unit which arethe Marine Protec!j.on, Research, and .Sanctuaries assembled to perfo'rin a specific function (e.g., aAct of 1972, or the Clean Air Act, or under state pump seal, pump, kiln liner, kiln thermocouple).permit progralns approved by the reiional adminis- (S) Continuous discharge-A discharge which oc-trator as adequate to assure compliance with the curs without interruption throughout the operatingCWA, §40S. hours of the facility, except for infrequent shutdowns
(3) The executive director may designate any per- for mainteilance, process changes,. or other similarson subject to the standards for sewage sludge use activities. .and disposal as a "treatment works treating domes- (6) Corrective, action management unittic sewagen as defined in §305.2 of this titie (relating (CAMU)-An area within a facility that is designatedto Definitions), where the executive director finds by the commission under 40 Code of Federal Regu-that a permit is necessary to protect public health lations Part 264, Subpart 5, for the purpose ofand the environment from the adverse effects of implementing corrective action requirements undersewage sludge or to ensure compliance with the §335.167 of this title (relating to Corrective Actiontechnical standards for sludge use and disposal for Solid Waste Management Units) lmd Texas Waterdeveloped under the CWA, §405(d). Any person Code, §7.031 (relating to Corrective Action Relatingdesignated as' a treatment works treating domestic to Hazardous Waste). A CAMU shall only be used forsewage shall submit an application for a permit the management of remediation wastes while imple-within 120 days of being notified by the executive menting such corrective action requirements at thedirector that a permit is required. The executive facility. . .director's decision to designate a person as a treat- (7) Daily average concentration-:The arithmeticment works treating domestic sewage shall be stated average of all effluent samples, composite, or.grabin the fact sheet or statement of basis for the permit. as required by this permit. within a period of one
Source: The provisions of this §305.i adopted to be effective calendar month, consisting of at least four separateJune 19, 1~86, 11 TexReg 2591; amended to be effective October 8, representative measurements.1990. 15 TexReg 5492; amended to be effective September 14,2000, 25 TexReg8974' (A) For domestic wastewater treatment plants-
When four samples are not available in a calendar§ 305.2. Definitions month, the arithmetic average (weighted by flow) of
The definitions contained in Texas Water Code, all values in the previous four consecutive month§§26.001, 27.002, and 28.001, and Texas Health and period consisting of at least four measurements shall
1714
be utilized as the ,daily' average concentration. owner and operator seeking a permit for the storage,(B) For all other wastewa'ter treatment plimts"'- processing, and/or disposal ofhazardQus waste. This
When four samples are not 'available in, a calendar defjnition -also applies to facilities implementingmonth, the arithmetic average (weighted by flow) of corrective action ,under Texas Water Code, §7.031all values taken during the fnonth shall be utilized as '(relating to Coq~,cttyeAction Relating to Hazardousthe daily average concentration;:, " """ Waste); ,
'(8) Daily averageflow-':"J:he aritlunetic average of (15) Facility mailing list-The mailing list for aan detenninationsof ilieel'aily 'discharge within a facility maintained :by the conunission in accor-period of one caleiidarmonth:'The daily ~verage da1J,ce with 40 Code of Federal RegUIations,(CFR)flow determination shall consist6f detemuxiat1iJns §124.10(c)(1)(ix)and §:3"9.7 o(thiS title (relating ,tomade on at least four,separate days. If instarltaneous Mailing Lists). For,Class' I injection well under-measurements are used to deterihine the <Itdly dis- ground injection control pernuts,: "the mailing listcharge, the determination shall'be the average of all also includes the agencies described in 40 CFRinstantaneous measurements taken during 'a 24- §124:1O(c)(1)(viii).' ,hour period or during the period of daily dIscharge t1"6)Funct~oriallyequivalent component-A coin-if less than ,24 hours. Daily aver-age flow detehnina:- p\:inenfwhicn' performs the 'same function or mea-tion for intermittent discharges shall consist of a surment and .which meets or 'e}teeeds the perfor-minimum of three flow determinations on clays of mance specifications of another component.discharge.. : .:'- ',:';; , (17) IndireCt;->'discharger-A non-domestic dis-
(9) Directdischarge-4Thedischarge'6fapbllutant, charger introducing pollutants to a publicly owned(10) Discharge monitoring' report (DMR~The treatment works. ,', '
EPA uniform natiomiI'form, inoluding-any 'sublse- '(18) Injection well permit-A pennit issued 'inquent additions, revisioDs;or, modifications'for the accordance with Texas Water Code, Chapter 27.reporting of self-monitoring results by,per.mittees. (19) Land disposal facillty-Includes landfills,
(11) Disposal-The discharge,deposit; 'injection, waste piles, surface impoundments, land farms, anddumping, spilling, leaking, or placing, iof any solid, injection wells.liquid, or haZardous waste into OF on any land, or ',(2Q) Licensed professional'geoscientist-A geosci-into or adjacentto any water in the state so'that such entist' who maintains a current license through th~
waste or any' constituent thereof may" enter: the Texas Board of Professional Geoscientists in accor-environmerlt,or be emitted into the air or'dis'charged dance with its requirements for professional practice.into or 'adjacent to" any waters; including (21) National Pollutant Discharge Elimination Sys--groundwaters: ' ,:! ' ' ( \ ""h al C'tem NPDESr-.l e nation program lor issumg,
(12) Disposal facility":-A facility or part of afacll- amending, ter-mw.ilting;,mbnitoring,and,enforcing_.,,, ity at which solid waste-is -intentitiiiilJ.y-pIaceC!'ilitb per:ID.it;,' and imposing and enforcing pretreatment
'01' on any land or water, and"'il,t"whfdi waste' will requirements, tInder CWA,§§307, 402, 318, andremain after cloilure. The term disposal facility does 405. The term includes an approved program.not include' a cortectiv~' 'action miiliagement unit (22) New discharger-'into which remediation'wastes a~e'Placed.' '
- ., .-- ." ' (A) Any building, structure, facility, or installa-(13) E~uent liini~fion"'::'-¥yr~~t;ric?~~ imposed don: :," . " \
on quantities, discharge rates, andcopceritrations of ,. "pollutantS which a:r~ discliarged'trcim pcilrtt §~urces ' ,,(i) from w4i.ch there is or may be it dlscn.~~ge pfinto waters in the stil.te'. ,,:,.-,' , ,', pollutants; , .
'(14) F~cility-Includes: ',,,, .., , (ii) that did not commence the discharge of pol-'(A) all contigu~usland and'~~~, ;tructur~s, or lutants at a parnc!1lar site prior to August 13, ,1979.;
~ppurtenances used, for storing, pro~essing, tre;j.i- (iii) which is not a"new sQurce; and 'ing, or disposing ,of waste, orior injection activities. (iv) which has never received a finally effectiveA facility may cc>~istof several storage; p;ocessing, National Pollutant Discharge Elimination Systemtreatment, disposcil;' or injection ,operation,al,UIlits; permi~ ,f9r:;discharges" ;it that site.
(B) for the purpose of implementing corrective (B) This definition includes, an indirect dis-action under §335.167 of this title {relating to Cor- charger which commences discharging into waterrective Action for Solid Waste Management Units), 'of the United States after August 13, .1979. It alsoall contiguous property under the,:control of the includes any existing ,mobile point source (other
1715
CONSOLIDATED PERMITS' 30'TAC§3
30 TAC § 305.2 COMMISSION ON ENVIRONMENTAL qUALITYthan an offshore or coastal oil and gas exploratory (31) Processing-The extraction of materials,drilling rig or a coastal oil and gas developmental transfer or volume reduction, conversion to energy,drilling rig) such as a seafood processing rig, sea- or other separation and preparation of {waste forfood processing vessel, or aggregate plant, that reuse or disposal, and includes the treatment orbegins discharging at a site for which it does not neutralization of hazardous waste so as ito renderhave a permit. such waste nonhazardous, safer 'for trabsport, or
(2,3) New source-Any building structure, faciliiy, amenable to recovery, storage, or volume .reduction.or installation from which there is or may be a The .meanip.g of transfer as used here;, does notdischarge of pollutants, the construction of which include the conveyance or transport off-site of solidcommenced: waste by truck, ship, pipeline, or other means.
(32) Publicly owned treatment works,(POTW)Any device or system used in the treatment (including recycling and recla.r.nation). of municipal sewageor industrial wastes of a liquid nature which isowned by the state or a municipality. This definitionincludes sewers, pipes, or other conveyances only ifthey. convey wastewater to a POTW, providingtreatment.
(33) Radioactive material-A naturally occurringor artificially produced solid, liquid, or gas thatemits radiation spontaneously.
--<34) Recommencing discharger-A source whichrecommences discharge after terminating operations.
(35) Regional administrator-Except when usedin conjunction with the words ·sta.te director," orwhen referring to EPA approval of a state program,where there is a reference in the EPA regulationsadopted by reference in this chapter to the·regionaladministrator~or to the "director: the ,reference ismore properly made, for purposes of state law, to theexecutive director of the Texas Commission on Environmental Quality, or to the Texas Commission onEnvironmental Quality, consistent with the organization of the agency as set forth in Texas Water Code,Chapter 5, Subchapter B. When used in conjunctionwith the words. ·state director" in such regulations,regional administrator means the regional administrator for the Region VI, office of ~e EPA or his orher authorized representative. A copy of 40 Code ofFederal Regulations part 122, is available forinspection at ¢e library of the Texas Commission onEnvironmental Quality, located on the first floor ofBuilding A at 12100 Park 35 Circle, Austin, Texas.
(36) Remediation waste-All solid and hazardouswastes, and all media (including groundwater, surface water, soils, and sediments) and debris, whichcontain listed hazardous wastes or which them-selves exhibit a hazardous waste characteristic, thatare managed for the purpose of implementing corrective action requirements under §335.167 of thistitle (relating to Corrective Action for Solid WasteManagement Units). and Texas Water Code (TWC),§7.031 (relating to Corrective. Action Relating to
1716
(A) after promulgation of standards of performance under CWA, §306; or
(B) after proposal of standards of performance i~accordance with CWA,. §306, which are applicableto such source, but only if the standards.are promulgated in accordance with §306 Within 120 days oftheir proposal.
- (24) Operator-The person responsible for theverall operation of a fa~ility.
(:;~ (25) Outfall-The point or location where water-... born,e waste is discharged from a sewer system,
treatment facility, or disposal system into or adjacent to water in this state.
t~fi~(26) Owner-The person who owns a facllityor[p~}~rt of a facility, ... "\.' (27) Permit-A written document issued by the
commission which, by its conditions, may authorizethe permittee to construct, install, modify, or operate, in accordance with stated limitations, a specified facility for waste discharge, for solid wastestorage, processing, or disposal, for radioactive material disposal, or for underground injection, andincludes a wastewater discharge permit, a !loUdwaste permit, a' radioactive material disposal license, and an injection well permit.
(28) Post-closure order-An order issued by thecommission for post-closure care of interim statusunits, a corrective action management unit unlessauthorized by pennit, or alternative corrective action requirements for contamination commingledfrom RCRA and solid 'waste management units.
(29) Primary industry category-AnyinduStry category listed in 40 Code of Federal Regulations Part122. Appendix A, adopted by reference by §305.532(d) of this title (relating to Adoption of Appendices by Reference).
(30) Process wastewater-Any water which, dur- .ing manufacturing or processing, comes into directcontact with or results from the production or use ofany raw material, intermediate product, finishedproduct, byproduct, or waste product.
Emergency Orders and Temporary Orders Authorized
SUBCHAPTER B. EMERGENCY ORDERS,TEMPORARY ORDERS, AND EXECUTIVE
DIRECTOR AUTHORIZATIONS
§ 305.21.
30 TAq § 305.21(46) Variance-Any mechanism or provision un
der CWA. §301 or§316, or under Chapter 308 of thistitle (relating to Criteria and Standards for theNational Pollutant Discharge Elimination System)which allows modification to or waiv~r of the generally applicable effluent limitation requirements ortime deadlines of CWA or this title.
(47) Wastewater discharge pennit~A permit issuedunder Texas Water Code, Chapter 26.
(48) Wetlands-Those areas that are inundated orsaturated by surface or groundwater at a frequencyand duration sufficient to support, and that undernormal circumstances do support, a prevalence ofvegetation typically adapted for life in' saturated soilconditions. Wetlands generally incltide swamps,marshes. bogs, and similar areas and constitutewater in the state.
Source: ·Tbe provisions qf this §305.2 adopted to be effectiveJune 19, 1986, 11 TexReg 2591; amended to be effective October 8,1990, 15 TexReg 5492; amended to be effective N:ovember 23, 1993,18 TexReg 8215; amended to be effective FebiuaIy 22. 1994, 19TexReg 941; amended to be effective December 1.1997,22 TexReg11391; amended to be effective August 8, 1999. 24 TexReg 5879;amended to be effective September 14. 2000, 25 TexReg 8974;amended to be effective November 15. 2001, 26 TexReg 9123;amended to be effective January 30,2003.28 TexReg 705; amendedto be effective September II, 2003, 28 TexReg 7774.
§ 305.3. Abbreviations
The following abbreviations, when used in thischapter, shall have the following meanings, unlessthe context clearly indicates otherwiSe.
(1) CFR-Code of Federal Regulations.(2) CWA-Clean Water Act.(3) DMR-Discbarge monitoring report.(4) EPA-United States Environmental Protec
tion Agency.(5) NPDES-National pollutant discharge elimi
nation system.(6) POTW-Publicly owned treatment works.
(7) TPDES-Texas pollut<mt discharge elimination system.
Source: The pro:nsions of this §305.3 adopted to be effectiveOctober 8, 1990, 15 TexReg 5492.
The commission or executive director may issueemergency orders, or the commission may issuetemporaty orders, relating to the discharge of waste
1717
CONSOLIDATED PERMITSHazardous Waste). For a given facility, remediatipnwastes. may originate only from within the facilityboundary, but may include waste managed in implementing corrective action for releases beyond thefacility boundary under TWC, §7.031; §335.166(S) ofthis title (relating to Corrective Action Program); or§335.167(c) of this title.
(37) Schedule of'compliance-A schedule of remedial measures included in a permit, including anenforceable sequence of interim requirements (e.g.,actions, operations, or milestone events) leading tocompliance with CWA and regulations.
(38) Severe property damage-Substantial physical damage to property, damage to treatment facilities which causes them to become inoperable, orsubstantial and permanent loss of natural resourceswhich can reasonably be expected to occur in theabsence of a discharge. Severe property damagedoes not mean economic loss caused by delays inproduction.
(39) Sewage sludge-The solids, residues, andprecipitate separated from or created in sewage ormunicipal w:;iste by the unit processes of a treatmentworks. ..
(40) Site-The· land or water area where anyfacility or activity is physically located or conducted,including adjacent land used in connection with thefacility or activity.· .
(41) Solid ~aste permit-A permit issued underTexas Health and Safety Code, Chapter 361, asamended.
(42) Storage-The holding of waste for a temporary period, at the end of which the waste is processed, recycled, disposed of, or stored elsewhere.
(43) Texas pollutant discharge elimination system(TPDES)-The state program for.issuing, amending,terminating, monitoring, and enforcing pennits, andimposing and enforcing pretreatment requirements,under CWA, §§307, .318,402, and 405; Texas WaterCode; and Texas Administrative Code regulations.
(44) Toxic pollutant-Any pollutant listed as toxicunder CWA, §307(a) or, in the case of sludge use ordisposal practices, any pollutant identified in regulations implementing CWA, §405(d).
(45) Treatmentworks treating domestic sewage-Apublicly owned treatment works or any other sewage sludge or wastewater treatment devices or systems, regardless of ownership (including federalfacilities), used in the storage, treatment, recycling,and reclamation of sewage or municipal waste.including land dedicated for the disposal of sewagesludge. This definition does not include septic tanksor similar devices.
30 TAC § 305.44;ONSOU:QATED PERMITS,icensing Requirements for Near-Surface Land Dislosal of Low-Level Radioactive Waste) shall be'etained by the <lpplicant for distribution in accorlance with written instr).lctions from the executivelirector. '.' .'(d) For' applications' involving hazardous w~~
management faciHtie,s for which the owner or operator has submitted Part A of the permit application and has not yet filed Part B, the owner oroperator is subject to the requirements for updatingthe Part A applicanon under 40 CFR §270.1O(g), asamended and adopted in the CPR through June 29,1995, as published in the Federal Register (60 FR33911).
(e) Applications for hazardous and 'nonhazatdousdisposal well permits shall be processed in accordance with this ehapter·for the benefit of the stateand the preservation of its natural resources..
Source: The provisions of this §305,42 adopted to be.effectiveJune 19, 1986, II TexReg 2593; ameoded to be effective July 14,1987, 12 TexReg 2102; amended. to be effective August 30, 1988,13TexReg 4011; amended to be effective October 29, 1990, 15 TexReg6015; amended to be effective June 5, 1997, 22 TexReg 4583;amended to· be effective October 19, 1998,.23 TexReg 10653;amended to be effective September 14, 2000, 25 TexReK 8974;amended to be effective December 16, 2001, 26 TexReg 10102;amended to be effective JanUal)' 30, 2003, 28 TexReg 705. .
poses of this paragraph, a responsible corporateofficer means a president, secretary, treasurer, orvice-president of the corporation in charge of aprincipal business function, or any other personwho performs similar policy or decision-makingfunctions for the corporation; or the manager of one.or more manufacturing, production, or operatingfacilities employing more than 250 persons or having gross annual 'sales or expenditures exceeding$25 million (in seconc;l-quarter 1980 dollars), if authority to sign docwnents has been assigned ordelegated to the manager in accordance with corporate procedures. Corporate procedures governingauthority to sign permit or post-closure order applications may provide for assignment or delegation toapplicable corporate positions rather than to specific individuals.
(2) Fot'a partnership or sole proprietorship, theapplication shall be signed by a general partner orthe proprietor, respectively.
(3) Fo~ a municipality, state, federal, or otherpublic agep.cy, the application shall be signed byeither a principal executive officer or a rank~
elected offiCial. For purposes of this paragraph, aprincipal' executive officer of a federal agency ir).-
§ 305.43. Who Applies eludes the :chief executive officer of the agency, or a(a) It is the duty of the owner of a facility to senior executive officer having I;"esponsibility for the
submit an application for a permit or a post-elosure overall operations of a principal geographic unit oforder; however, if the facility is owned by one pers'on the agency (e.g., regional administrator of the EPA).and operated by another and the executive director (b) Aperson signing an application shall make thedetermines that special. 'circumstances exist where following certification: "Z certify under penalty ofthe operator or the operator and the owner should law that this document and all attachments wereboth apply for a'permit or·a post-elosure order, and prepared under my direction or supervision in ac:for all Texas Pollutant Discharge Elimination Sys- cordance with a system designed to assure that
. tern permits, it is the duty of the operator and the qualified personnel properly gather and evaluate theowner to submit an application for a permit. information submitted. Based on my inquiry of the....:~J/ .(b) For solid waste and hazardous waste permit person or persons who manage the system, or those
'~" ipplications, it is the duty of the owner of a facility persons directly responsible for gathering the infor-to submit an <lpplication for a permit or a post- m~ion, tjie information submitted is, to the best. ofclosure order,.. t!nless a facility is owned by one my knowledge and belief, true; acc~rate, andperson and operated by another, in which case it is complete. I am aware there are significant penalties .the duty of the operator to submit·an application for for subinitting false information,' including the pos-a permit or !l- p.ost-clcisure· order. sibility of'fine and imprisonment for knowing
sOurce: The provisions of this §305.43 adopted to be effective violations.»June 19, 1986, 11 TexReg '2593; amended to be effeetlve Juiy 14. (c) For a hazardous solid waste permit or a post-1987, 12 TexReg 2102; atnended to be effective October 8,1990;"15TexReg 5492; amended to be effective January 30, 2003, 28 TexReg closl.Jre.order, the applicatio!,\ must. be signed by the705. oWDerand oper~tor of theJacility.
§ 305.44. Signatories to Applications (d),PQr radioactive material license applicationsunder Chapter 336 of this title (relating to Radioac'
(a) All applic:itions shall be si~ed as follows. tive Substance Rules), the applicant or person duly(I) For a corporation, the application shall be authorized to act for and on the applicant's behalf
signed by a responsible corporate officer. For pur- must sign the application.1719
C Excerpts from applicable rules, 30 TEX. ADMIN. CODE ch. 330 (CR 165-224)
Texas Conunission on Environmental QualityChapter 330 - Municipal Solid Waste
SUBCHAPTER A: GENERAL INFORMATION. §§330.1 - 330.8, 330.10 - 330.15
Effective December 2, 2004
§330.1. Declaration and Intent.
Page 1
(a) The regulations promulgated in this chapter cover all aspects of municipal solid wastemanagement under the authority of the Texas Water Commission and are based primarily on the statedpurpose of Texas Civil Statutes, Health and Safety Code, Chapter 361, as amended, hereafter referredto as the Texas Solid Waste Disposal Act. The owner or operator of a municipal solid waste landfill(MSWLF) facility shall comply with any other applicable Federal rules, laws, regulations, or otherrequirements .
(b) All pelTIlits, including any special provisions therein, issued by the Texas WaterCommission or the Texas Department of Health shall remain in force after October 9, 1993, theeffective date of this chapter. To the extent that a standard has been changed by this chapter, thepermittee may continue to operate under standards contained in previously issued pelTIlits, except forthose requirements mandated by United States Environmental Protection Agency 40 Code of FederalRegulations, Parts 257 and 258, as amended, which implement certain requirements of Subtitle D of theResource Conservation and Recovery Act (RCRA). For those federally mandated requirements, thepermittee is under an obligation to apply for a change to his permit in accordance with §305.62 of thistitle (relating to Amendment) or §305.70 of this title (relating to Municipal Solid Waste PermitModification), as applicable, to incorporate the required standard. The application shall be submittedno later than April 9, 1994. Timely submission of a request for a permit change qualifies the owners oroperators of existing MSWLF units for interim status. MSWLF facility owners or operators withinterim status are treated as having been issued a permit modification or amendment until the executivedirector makes a final determination on the permit modification request or the commission makes a finaldetermination on the permit amendment request. Facility owners or operators \Yith interim status mustcomply with the requirements of this chapter upon the effective date of this chapter.
(c) A permit or license shall be required for each MSW unit, and the executive director, athislher discretion, may include one or more different types of units in a single permit if the units arelocated at the same facility.
(d) Materials extraction or gas - recovery operations shall not be conducted unless a permit forsuch purpose has been obtained from the commission in accordance with §330A of this title (relating toPermit Required).
§330.2. Definitions.
Unless otherwise noted, all terms contained in this section are defined by their plain meaning.This section contains definitions for terms that appear throughout this chapter. Additional definitionsmay appear in the specific section to which they apply. As used in this chapter, words in the masculinegender also include the feminine and neuter genders, words in the feminine gender also include the
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masculine and neuter genders; words in the singular include the plural and words in the plural includethe singular. The following words and terms, when used in this chapter, have the following meanings.
(1) lOO-year flood - A flood that has a 1.0% or greater chance of recurring in anygiven year or a flood of a magnitude equalled or exceeded once in 100 years on the average over asignificantly long period.
(2) Acid - A substance containing hydrogen that will release hydrogen (hydronium)ions when dissolved in water. Acids will have a pH of less than 7.0 and usually have a sour taste andwill cause blue linnus dye to tum red.
(3) Active life - The period of operation beginning with the initial receipt of solidwaste and ending at certification/completion of closure activities in accordance with §§330.250 330.253 of this title (relating to Applicability; Closure Requirements for MSWLF Units That StopReceiving Waste Prior to October 19, 1991, and MSW Sites; Closure Requirements for MSWLF UnitsThat Receive Waste on or after October 9, 1991, But Stop Receiving Waste Prior to October 9, 1993;and Closure Requirements for MSWLF Units That Receive Waste on or after October 9, 1993, andMSW Sites).
(4) Active portion - That part of a facility or unit that has received or is receivingwastes and that has not been closed in accordance with §§330.250 - 330.253 of this title.
(5) Airport - A public-use airport open to the public without prior permission andwithout restrictions within the physical capacities of available facilities.
(6) Aquifer - A geological formation, group of formations, or portion of a formationcapable of yielding significant quantities of groundwater to wells or springs.
(7) Areas susceptible to mass movements - Areas of influence (i.e., areascharacterized as having an active or substantial possibility of mass movement) where the movement ofearth material at, beneath, or adjacent to the municipal solid waste landfill unit, because of natural orman-induced events, results in the downslope transport of soil and rock material by means ofgravitational influence. Areas of mass movement include, but are not limited to, landslides,avalanches, debris slides and flows, soil fluction, block sliding, and rock fall.
(8) Asbestos-containing materials - Include the following.
(A) Category I nonfriable asbestos-containing material (ACM) means asbestoscontaining packings, gaskets, resilient floor covering, and asphalt roofing products containing morethan 1.0% asbestos as determined using the method specified in Appendix A, Subpart F, 40 Code ofFederal Regulations (CFR), Part 763, §1, Polarized Light Microscopy (40 CFR Part 763, §1).
(B) Category II nonfriable ACM means any material, excluding Category Inonfriable ACM, containing more than 1.0% asbestos as determined using the methods specified in 40
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CFR Part 763, §l, that, when dry, cannot be crumbled, pulverized, or reduced to powder by handpressure.
(C) Friable ACM means any material containing more than 1.0% asbestos that,when dry, can be crumbled, pulverized, or reduced to powder by hand pressure.
(0) Nonfriable ACM means any material containing more than 1.0% asbestosthat, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.
(9) ASTM - The American Society of Testing and Materials.
(10) Battery - An electrochemical device that generates electric current by convertingchemical energy. Its essential components are positive and negative electrodes made of more or lesselectrically conductive materials, a separate medium, and an electrolyte. There are four major types:
(A) primary batteries (dry cells);
(B) storage or secondary batteries;
(C) nuclear and solar cells or energy converters; and
(0) fuel cells.
(11) Battery acid (also known as electrolyte acid) - A solution of not more than 47%sulfuric acid in water suitable for use in storage batteries, which is water white, odorless, andpractically free from iron.
(12) Battery retailer - A person or business location that sells lead-acid batteries to thegeneral public, without restrictions to limit purchases to institutional or industrial clients only.
(13) Battery wholesaler - A person or business location that sells lead-acid batteriesdirectly to battery retailers, to government entities by contract sale, or to large-volume users, eitherdirectly or by contract sale.
(14) Bird hazard - An increase in the likelihood of bird/aircraft collisions that maycause damage to an aircraft or injury to its occupants.
(15) Brush - Cuttings or trimmings from trees, shrubs, or lawns and similar materials.
(16) Buffer zone - A zone free of municipal solid waste processing and disposalactivities adjacent to the site boundary.
(17) CFR - Code of Federal Regulations.
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(18) Citizens' collection station - A facility established for the convenience andexclusive use of residents (not commercial or industrial users or collection vehicles). The facility mayconsist of one or more storage containers, bins, or trailers.
(19) Class I industrial solid waste - See industrial solid waste.
(20) Collection - The act of removing solid waste (or materials that have beenseparated for the purpose of recycling) for transport elsewhere.
(21) Collection system - The total process of collecting and transporting solid waste.It includes storage containers; collection crews, vehicles, equipment and management; and operatingprocedures. Systems are classified as municipal, contractor, or private.
(22) Commercial solid waste - All types of solid waste generated by stores, offices,restaurants, warehouses, and other nonmanufacturing activities, excluding residential and industrialwastes.
(23) Compacted waste - Waste that has been reduced in volume by a collectionvehicle or other means including, but not limited to, dewatering, composting, incineration, and similarprocesses, with the exception of waste that has been reduced in volume by a small, in-house compactordevice owned and/or operated by the generator of the waste.
(24) Composite liner - A liner system consisting of two components: the uppercomponent must consist of a minimum 30-mil flexible membrane liner (FML) or minimum 60-mil highdensity polyethylene and the lower component must consist of at least a two-foot layer of compactedsoil with a hydraulic conductivity of no more than 1 x 10.7 em/sec. The FML component must beinstalled in direct and unifonn contact with the compacted soil component.
(25) Compost - The stabilized product of the decomposition process that is used orsold for use as a soil amendment, artificial top soil, growing medium amendment, or other similar uses.
(26) Composting - The controlled biological decomposition of organic materialsthrough microbial activity.
(27) Conditionally exempt small-quantity generator - A person who generates nomore than 220 pounds of hazardous waste in a calendar month.
(28) Construction-demolition waste - Waste resulting from construction or demolitionprojects; includes all materials that are directly or indirectly the by-products of construction work orthat result from demolition of buildings and other structures, including, but not limited to, paper,cartons, gypsum board, wood, excelsior, rubber, and plastics.
(29) Contaminate - The man-made or man-induced alteration of the chemical,physical, biological, or radiological integrity of ground or surface water.
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(
(30) Controlled burning - The combustion of solid waste with control of combustionair to maintain adequate temperature for efficient combustion; containment of the combustion reactionin an enclosed device to provide sufficient residence time and mixing for complete combustion; andcontrol of the emission of the combustion products, i.e., incineration in an incinerator.
(31) Discard - To abandon a material and not use, reuse, reclaim, or recycle it. Amaterial is abandoned by being disposed of; burned or incinerated (except where the material is beingburned as a fuel for the purpose of recovering usable energy); or physically, chemically, or biologicallytreated (other than burned or incinerated) in lieu of or prior to being disposed.
(32) Discharge - Includes deposit, conduct, drain, emit, throw, run, allow to seep, orotherwise release, or to allow, permit, or suffer any of these acts or omissions.
(33) Discharge of dredged material - Any addition of dredged material into thewaters of the United States. The term includes, without limitation, the addition of dredged material to aspecified disposal site located in waters of the United States and the runoff or overflow from acontained land or water disposal area.
(34) Discharge of fill material- The addition of fill material into waters of the UnitedStates. The term generally includes placement of fIll necessary to the construction of any structure inwaters of the United States: the building of any structure or improvement requiring rock, sand, dirt, orother inert material for its construction; the building of dams, dikes, levees, and riprap.
(35) Discharge of pollutant - Any addition of any pollutant to navigable waters fromany point source or any addition of any pollutant to the waters of the contiguous zone or the ocean fromany point source.
(36) Displacement - The measured or estimated distance between two formerlyadjacent points situated on opposite walls of a fault (synonymous with net slip).
(37) Disposal- The discharge, deposit, i~ection, dumping, spilling, leaking, orplacing of any solid waste or hazardous waste (whether containerized or uncontainerized) into or on anyland or water so that such solid waste or hazardous waste or any constituent thereof may enter theenvironment or be emitted into the air or discharged into any waters, including groundwater.
(38) Dredged material - Material that is excavated or dredged from waters of theUnited States.
(39) Drinking-water intake - The point at which water is withdrawn from any waterwell, spring, or surface water body for use as drinking water for humans, including standby publicwater supplies.
(40) Elements of nature - Rainfall, snow, sleet, hail, wind, sunlight, or other naturalphenomenon.
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(41) Endangered or threatened species - Any species listed as such under FederalEndangered Species Act, §4, 16 United States Code, §1536, as amended or under the TexasEndangered Species Act.
(42) Essentially insoluble - Any material that, if representatively sampled and placedin static or dynamic contact with deionized water at ambient temperature for seven days, will not leachany quantity of any constituent of the material into the water in excess of the maximum contaminantlevels in 40 Code of Federal Regulations (CFR) Part 141, Subparts Band G, and 40 CFR Part 143 fortotal dissolved solids.
(43) Existing municipal solid waste landnIl unit - Any municipal solid waste landfillunit that received solid waste as of October 9, 1993. Waste placement in existing units must beconsistent with past operating practices or modified practices to ensure good management.
(44) Experimental project - Any new proposed method of managing municipal solidwaste, including resource and energy recovery projects, that appears to have sufficient merit to warrantcommission approval.
(45) Facility - All contiguous land and structures, other appurtenances, andimprovements on the land used for the storage, processing, or disposal of solid waste.
(46) Fault - A fracture or a zone of fractures in any material along which strata, rocks,or soils on one side have been displaced with respect to those on the other side.
(47) Fill material - Any material used for the primary purpose of filling an excavation.
(48) Floodplain - The lowland and relatively flat areas adjoining inland and coastalwaters, including flood-prone areas of offshore islands, that are inundated by the 100-year flood.
(49) Garbage - Solid waste consisting ofputrescible animal and vegetable wastematerials resulting from the handling, preparation, cooking, and consumption of food, including wastematerials from markets, storage facilities, handling, and sale of produce and other food products.
(50) Gas condensate - The liquid generated as a result of any gas recovery process at amunicipal solid waste facility.
(51) Generator - Any person, by site or location, whose act or process produces asolid waste or first causes it to become regulated.
(52) Grit Trap - A unit/chamber that allows for the sedimentation of solids from aninfluent liquid stream by reducing the flow velocity of the influent liquid stream. In a grit trap, the inletand the outlet are both located at the same vertical level, at, or very near, the top of the unit/chamber;the outlet of the grit trap is connected to a sanitary sewer system. A grit trap is not designed to separateoil and water.
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(53) Grit trap waste - Waste collected in a grit trap. Grit trap waste includes wastefrom grit traps placed in the drains prior to entering the sewer system at maintenance and repair shops,automobile service stations, car washes, laundries, and other similar establishments. The term does notinclude material collected in an oil/water separator or in any other similar waste management unitdesigned to collect oil.
(54) Groundwater - Water below the land surface in a wne of saturation.
(55) Hazardous waste - Any solid waste identified or listed as a hazardous waste bythe administrator of the EPA under the federal Solid Waste Disposal Act, as amended by RCRA, 42United States Code, §§6901 et seq., as amended.
(56) Holocene - The most recent epoch of the Quaternary Period, extending from theend of the Pleistocene Epoch to the present.
(57) Household waste - Any solid waste (including garbage, trash, and sanitary wastein septic tanks) derived from households (including single and mUltiple residences, hotels and motels,bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreationareas); does not include yard waste or brush that is completely free of any household wastes.
(58) Industrial hazardous waste - Hazardous waste determined to be of industrialorigin.
(59) Industrial solid waste - Solid waste resulting from or incidental to any process ofindustry or manufacturing, or mining or agricultural operations, classified as follows.
(A) Class I industrial solid waste or Class I waste is any industrial solid wastedesignated as Class I by the executive director as any industrial solid waste or mixture of industrialsolid wastes that because of its concentration or physical or chemical characteristics is toxic, corrosive,flammable, a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, orother means, and may pose a substantial present or potential danger to human health or the environmentwhen improperly processed, stored, transported, or otherwise managed, including hazardous industrialwaste, as defined in §335.1 of this title (relating to Definitions) and §335.505 of this title (relating toClass 1 Waste Determination).
(B) Class II industrial solid waste is any individual solid waste or combinationof industrial solid wastes that cannot be described as Class I or Class III, as defined in §335.506 of thistitle (relating to Class 2 Waste Determination).
(C) Class III industrial solid waste is any inert and essentially insolubleindustrial solid waste, including materials such as rock, brick, glass, dirt, and certain plastics andrubher, etc., that are not readily decomposable as defined in §335.507 of this title (relating to Class 3Waste Determination).
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(60) Inert material- A naturally occurring nonputrescible material that is essentiallyinsoluble such as soil, dirt, clay, sand, gravel, and rock.
(61) In situ - In natural or original position.
(62) Karst terrain - An area where karst topography, with its characteristic surfaceand/or subterranean features, is developed principally as the result of dissolution of limestone,dolomite, or other soluble rock. Characteristic physiographic features present in karst terrains include,but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.
(63) Lateral expansion - A horizontal expansion of the waste boundaries of an existingmunicipal solid waste landfill unit.
(64) Land application of solid waste - The disposal or use of solid waste (including,but not limited to, sludge or septic tank pumpings or mixture of shredded waste and sludge) in whichthe solid waste is applied within three feet of the surface of the land.
(65) Leachate - A liquid that has passed through or emerged from solid waste andcontains soluble, suspended, or miscible materials removed from such waste.
(66) Lead - The metal element, atomic number 82, atomic weight 207.2, with thechemical symbol Pb.
(67) Lead acid battery - A secondary or storage battery that uses lead as the electrodeand dilute sulfuric acid as the electrolyte and is used to generate electrical current.
(68) License-
(A) A document issued by an approved county authorizing and governing theoperation and maintenance of a municipal solid waste facility used to process, treat, store, or dispose ofmunicipal solid waste, other than hazardous waste, in an area not in the territorial limits orextraterritorial jurisdiction of a municipality.
(B) An occupational license as defined in Chapter 30 of this title (relating toOccupational Licenses and Registrations).
(69) Licensed professional geoscientist - A geoscientist who maintains a currentlicense through the Texas Board of Professional Geoscientists in accordance with its requirements forprofessional practice.
(70) Liqui4 waste - Any waste material that is determined to contain "free liquids" asdefined by EPA Method 9095 (Paint Filter Test), as described in "Test Methods for Evaluating SolidWastes, Physical/Chemical Methods" (EPA Publication Number SW-846).
(71) Litter - Rubbish and putrescible waste.
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(72) Lower explosive limit - The lowest percent by volume of a mixture of explosivegases in air that will propagate a flame at 25 degrees Celsius and atmospheric pressure.
(73) Man-made inert material - Those non-putrescible, essentially insoluble materialsfabricated by man that are not included under the definition of rubbish.
(74) Medical waste - Waste generated by health-care-related facilities and associatedwith health-care activities, not including garbage or rubbish generated from offices, kitchens, or othernon-health-care activities. The term includes special waste from health care-related facilities which iscomprised of animal waste, bulk blood and blood products, microbiological waste, pathological waste,and sharps as those terms are defined in 25 TAC §1.132 (relating to Definitions). The term does notinclude medical waste produced on farmland and ranchland as defined in Agriculture Code,§252.001(6) (Definitions - Farmland or ranchland), nor does the term include artificial, nonhumanmaterials removed from a patient and requested by the patient, including, but not limited to, orthopedicdevices and breast implants.
(75) MononIl - A landfill or landfill trench into which only one type of waste isplaced.
(76) MSWLF - Municipal solid waste landfill facility.
(77) Municipal hazardous waste--Any municipal solid waste or mixture of municipalsolid wastes that has been identified or listed as a hazardous waste by the administrator of the EPA.
(78) Municipal solid waste - Solid waste resulting from, or incidental to, municipal,community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes,street cleanings, dead animals, abandoned automobiles, and all other solid waste other than industrialsolid waste.
(79) Municipal solid waste facility - All contiguous land, structures, otherappurtenances, and improvements on the land used for processing, storing, or disposing of solid waste.A facility may be pUblicly or privately owned and may consist of several processing, storage, ordisposal operational units, e.g., one or more landfills, surface impoundments, or combinations of them.
(80) Municipal solid waste landfill unit - A discrete area of land or an excavation thatreceives household waste and that is not a land application unit, surface impoundment, injection well,or waste pile, as those terms are defined under 40 Code of Federal Regulations §257.2. A municipalsolid waste landfill (MSWLF) unit also may receive other types of RCRA Subtitle D wastes, such ascommercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generator waste, andindustrial solid waste. Such a landfill may be publicly or privately owned. An MSWLF unit may be anew MSWLF unit, an existing MSWLF unit, or a lateral expansion.
(81) Municipal solid waste site - A plot of ground designated or used for theprocessing, storage, or disposal of solid waste.
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(82) Navigable waters - The waters of the United States, including the territorial seas.
(83) New municipal solid waste landfill unit - Any municipal solid waste landfill unitthat has not received waste prior to October 9, 1993.
(84) Nonpoint source - Any origin from which pollutants emanate in an unconfmedand unchanneled manner, including, but not limited to, surface runoff and leachate seeps.
(85) Non-RACM - Non-regulated asbestos-containing material as defined in 40 Codeof Federal Regulations Part 61. This is asbestos material in a form such that potential health risksresulting from exposure to it are minimal.
(86) Nuisance - Municipal solid waste that is stored, processed, or disposed of in amanner that causes the pollution of the surrounding land, the contamination of groundwater or surfacewater, the breeding of insects or rodents, or the creation of odors adverse to human health, safety, orwelfare.
(87) Open burning - The combustion of solid waste without:
(A) control of combustion air to maintain adequate temperature for efficientcombustion;
(B) containment of the combustion reaction in an enclosed device to providesufficient residence time and mixing for complete combustion; and
(C) control of the emission of the combustion products.
(88) Operate - To conduct, work, run, manage, or control.
(89) Operating record - All plans, submittals, and correspondence for a municipalsolid waste landfill facility required under this chapter; required to be maintained at the facility or at anearby site acceptable to the executive director.
(90) Operation - A municipal solid waste site or facility is considered to be inoperation from the date that solid waste is first received or deposited at the municipal solid waste site orfacility until the date that the site or facility is properly closed in accordance with this chapter.
(91) Operator - The person(s) responsible for operating the facility or part of afacility.
(92) Opposed case - A case when one or more parties appear, or make theirappearance, in opposition to an application and are designated as opponent parties by the hearingexaminer either at or before the public hearing on the application.
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(93) Other regulated medical waste - Medical waste that is not included withinspecial waste from health care-related facilities but that is subject to special handling requirementswithin the generating facility by other state or federal agencies, excluding medical waste subject to 25TAC Chapter 289 (relating to Radiation Control).
(94) Owner - The person who owns a facility or part of a facility.
(95) PCB - Polychlorinated biphenyl molecule.
(96) Polychlorinated biphenyl waste(s) - Those polychlorinated biphenyls (PCBs) andPCB items that are subject to the disposal requirements of 40 Code of Federal Regulations (CFR) Part761. Substances that are regulated by 40 CFR Part 761 include, but are not limited to: PCB articles,PCB article containers, PCB containers, PCB-contaminated electrical equipment, PCB equipment, PCBtransformers, recycled PCBs, capacitors, microwave ovens, electronic equipment, and light ballasts andfIxtures.
(97) Permit - A written permit issued by the commission that, by its conditions, mayauthorize the owner or operator to construct, install, modify, or operate a specifIed municipal solidwaste storage, processing, or disposal facility in accordance with specifIc limitations.
(98) Point of compliance - A vertical surface located no more than 500 feet from thehydraulically downgradient limit of the waste management unit boundary, extending down through theuppermost aquifer underlying the regulated units, and located on land owned by the owner of thepermitted facility.
(99) Point source - Any discernible, confIned, and discrete conveyance, including, butnot limited to, any pipe, ditch, channel, tunnel, conduit, well, or discrete fIssure from which pollutantsare or may be discharged.
(100) Pollutant - Contaminated dredged spoil, solid waste, contaminated incineratorresidue, sewage, sewage sludge, munitions, chemical wastes, or biological materials discharged intowater.
(101) Pollution - The man-made or man-induced alteration of the chemical, physical,biological, or radiological integrity of an aquatic ecosystem.
(102) Poor foundation conditions - Areas where features exist which indicate that anatural or man-induced event may result in inadequate foundation support for the structural componentsof a municipal solid waste landfill unit.
(103) Population equivalent - The hypothetical population that would generate anamount of solid waste equivalent to that actually being managed based on a generation rate of fivepounds per capita per day and applied to situations involving solid waste not necessarily generated byindividuals. It is assumed, for the purpose of these sections, that the average volume per ton of waste
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entering a municipal solid waste disposal facility is three cubic yards. For the purposes of thesesections, the following population equivalents shall apply:
(A) 8,000 persons - 20 tons per day or 60 cubic yards per day;
(8) 5,000 persons - 12 1/2 tons or 37 1/2 cubic yards per day;
(C) 1,500 persons - 3 3/4 tons or 11 1/4 cubic yards per day;
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(D) 1,000 persons - 225 pounds of wastewater treatment plant sludge per day(dry-weight basis).
(104) Post-consumer waste - A material or product that has served its intended useand has been discarded after passing through the hands of a final user. For the purposes of thissubchapter, the term does not include industrial or hazardous waste.
(105) Premises - A tract of land with the buildings thereon, or a building or part of abuilding with its grounds or other appurtenances.
(106) Processing - Activities including, but not limited to, the extraction of materials,transfer, volume reduction, conversion to energy, or other separation and preparation of solid waste forreuse or disposal, including the treatment or neutralization of hazardous waste, designed to change thephysical, chemical, or biological character or composition of any hazardous waste to neutralize suchwaste, or to recover energy or material from the waste, or to render such waste nonhazardous or lesshazardous; safer to transport, store, dispose of, or make it amenable for recovery, amenable forstorage, or reduced in volume. Unless the executive director determines that regulation of such activityunder these rules is necessary to protect human health or the environment, the definition of"processing" does not include activities relating to those materials exempted by the administrator of theEPA under the federal Solid Waste Disposal Act, as amended by RCRA, 42 United States Code,§§6901 et seq., as amended.
(107) Public highway - The entire width between property lines of any road, street,way, thoroughfare, bridge, public beach, or park in this state, not privately owned or controlled, if anypart of the road, street, way. thoroughfare, bridge, public beach, or park is opened to the public forvehicular traffic, is used as a public recreational area, or is under the state's legislative jurisdictionthrough its police power.
(108) Putrescible waste - Organic wastes, such as garbage, wastewater treatment plantsludge, and grease trap waste, that is capable of being decomposed by microorganisms with sufficientrapidity as to cause odors or gases or is capable of providing food for or attracting birds, animals, anddisease vectors.
(109) Qualified groundwater scientist - A licensed geoscientist or licensed engineerwho has received a baccalaureate or post-graduate degree in the natural sciences or engineering and hassufficient training in groundwater hydrology and related fields as may be demonstrated by stale
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registration, professional certifications, or completion of accredited university programs that enable theindividual to make sound professional judgments regarding groundwater monitoring, contaminant fateand transport, and corrective action.
(110) RACM - Regulated asbestos-eontaining material as defined in 40 Code ofFederal Regulations Part 61, as amended, includes: friable asbestos material, Category I nonfriableasbestos-containing material (ACM) that has become friable; Category I nonfriable ACM that will be,or has been, subjected to sanding, grinding, cutting, or abrading; or Category II nonfriable ACM thathas a high probability of becoming, or has become, crumbled, pulverized, or reduced to powder by theforces expected to act on the material in the course of demolition or renovation operations.
(Ill) Radioactive waste - Waste that requires specific licensing under Texas Healthand Safety Code, Chapter 401, and the rules adopted by the commission under that law.
(112) Recyclable material - A material that has been recovered or diverted from thenonhazardous waste stream for purposes of reuse, recycling, or reclamation, a substantial portion ofwhich is consistently used in the manufacture of products that may otherwise be produced using raw orvirgin materials. Recyclable material is not solid waste. However, recyclable material may becomesolid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon itwill be solid waste with respect only to the party actually abandoning or disposing of the material.
(113) Recycling - A process by which materials that have served their intended use orare scrapped, discarded, used, surplus, or obsolete are collected, separated, or processed and returnedto use in the form of raw materials in the production of new products. Except for mixed municipalsolid waste composting, that is, composting of the typical mixed solid waste stream generated byresidential, commercial, andlor institutional sources, recycling includes the composting process if thecompost material is put to beneficial use.
(114) Refuse - Same as rubbish.
(115) Registration - The act of filing information for specific solid waste managementactivities that do not require a permit, as determined by this chapter.
(116) Regulated hazardous waste - A solid waste that is a hazardous waste as definedin 40 Code of Federal Regulations (CFR) §261.3, and that is not excluded from regulation as ahazardous waste under 40 CFR §261.4(b), or that was not generated by a conditionally exempt smallquantity generator.
(117) Relevant point of compliance - See point of compliance.
(118) Resource recovery - The recovery of material or energy from solid waste.
(119) Resource recovery site - A solid waste processing site at which solid waste isprocessed for the purpose of extracting, converting to energy, or otherwise separating and preparingsolid waste for reuse.
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(120) Rubbish - Nonputrescible solid waste (excluding ashes), consisting of bothcombustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons,wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials;noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, metal furniture, and similarmaterials that will not bum at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800degrees Fahrenheit).
(121) Run-off - Any rainwater, leachate, or other liquid that drains over land from anypart of a facility.
(122) Run-on - Any rainwater, leachate, or other liquid that drains over land onto anypart of a facility.
(123) Salvaging - The controlled removal of waste materials for utilization, recycling,or sale.
(124) Saturated zone - That part of the earth's crust in which all voids are filled withwater.
(125) Scavenging - The uncontrolled and unauthorized removal of materials at anypoint in the solid waste management system.
(126) Scrap tire - Any tire that can no longer be used for its original intended purpose.
(127) Seasonal high water table - The highest measured or calculated water level inan aquifer during investigations for a permit application andlor any groundwater characterization studiesat a site.
(128) Septage - The liquid and solid material pumped from a septic tank, cesspool, orsimilar sewage treatment system.
(129) Site - Same as facility.
(130) Site development plan - A document, prepared by the design engineer, thatprovides a detailed design with supporting calculations and data for the development and operation of asolid waste site.
(131) Site operating plan - A document, prepared by the design engineer incollaboration with the site operator, that provides general instruction to site management and operatingpersonnel throughout the operating life of the site in a manner consistent with the engineer's design andthe commission's regulations to protect human health and the environment and prevent nuisances.
(132) Site operator - The holder of, or the applicant for, a permit (or license) for amunicipal solid waste site.
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(133) Sludge - Any solid, semi-solid, or liquid waste generated from a municipal,commercial, or industrial wastewater treatment plant, water-supply treatment plant, or air pollutioncontrol facility, exclusive of the treated effluent from a wastewater treatment plant.
(134) Small municipal solid waste landfill - A municipal solid waste landfill at whichless than 20 tons of municipal solid waste are disposed of daily based on an annual average.
(135) Solid waste - Garbage, rubbish, refuse, sludge from a wastewater treatmentplant, water supply treatment plant, or air pollution control facility, and other discarded material,including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, municipal,commercial, mining, and agricultural operations and from community and institutional activities. Theterm does not include:
(A) solid or dissolved material in domestic sewage, or solid or dissolvedmaterial in irrigation return flows, or industrial discharges subject to regulation by permit issued underTexas Water Code, Chapter 26;
(B) soil, dirt, rock, sand, and other natural or man-made inert solid materialsused to fill land if the object of the fill is to make the land suitable for the construction of surfaceimprovements; or
(C) waste materials that result from activities associated with the exploration,development, or production of oil or gas or geothermal resources and other substance or materialregulated by the Railroad Commission of Texas under Natural Resources Code, §91.101, unless thewaste, substance, or material results from activities associated with gasoline plants, natural gas liquidsprocessing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste asdefined by the administrator of the EPA under the federal Solid Waste Disposal Act, as amended byRCRA, as amended (42 United States Code, §§6901 et seq.).
(136) Source-separated recyclable material - Recyclable material from residential,commercial, municipal, institutional, recreational, industrial, and other community activities, that at thepoint of generation has been separated, collected, and transported separately from municipal solidwaste, or transported in the same vehicle as municipal solid waste, but in separate containers orcompartments. Source-separation does not require the recovery or separation of non-recyclablecomponents that are integral to a recyclable product, including:
(A) the non-recyclable components of white goods, whole computers, wholeautomobiles, or other manufactured items for which dismantling and separation of recyclable from nonrecyclable components by the generator are impractical, such as insulation or electronic components inwhite goods;
(B) source-separated recyclable material rendered unmarketable by damageduring collection, unloading, and sorting, such as broken recyclable glass; and
(C) tramp materials, such as:
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(i) glass from recyclable metal windows;
(ii) nails and roofing felt attached to recyclable shingles;
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(iii) nails and sheetrock attached to recyclable lumber generatedthrough the demolition of buildings; and
(iv) pallets and packaging materials.
(137) Special waste - AJJ.y solid waste or combination of solid wastes that because ofits quantity, concentration, physical or chemical characteristics, or biological properties requires specialhandling and disposal to protect the human health or the environment. If improperly handled,transported, stored, processed, or disposed of or otherwise managed, it may pose a present or potentialdanger to the human health or the environment. Special wastes are:
(A) hazardous waste from conditionally exempt small-quantity generators thatmay be exempt from full controls under §§335.401 - 335.403 and §§335.405 - 335.412 of this title(relating to Household Materials Which Could Be Classified as Hazardous Waste);
(B) Class 1 industrial nonhazardous waste not routinely collected withmunicipal solid waste;
(C) special waste from health-care-related facilities (refers to certain items ofmedical waste);
(D) municipal wastewater treatment plant sludges, other types of domesticsewage treatment plant sludges, and water-supply treatment plant sludges;
(E) septic tank pumpings;
(F) grease and grit trap wastes;
(G) wastes from commercial or industrial wastewater treatment plants; airpollution control facilities; and tanks, drums, or containers, used for shipping or storing any materialthat has been listed as a hazardous constituent in 40 Code of Federal Regulations (CFR), Part 261,Appendix VIII but has not been listed as a commercial chemical product in 40 CFR §261.33(e) or (f);
(H) slaughterhouse wastes;
(I) dead animals;
(1) drugs, contaminated foods, or contaminated beverages, other than thosecontained in normal household waste;
(K) pesticide (insecticide, herbicide, fungicide, or rodenticide) containers;
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(L) discarded materials containing asbestos;
(M) incinerator ash;
(N) soil contaminated by petroleum products, crude oils, or chemicals;
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(0) light ballasts and/or small capacitors containing polychlorinated biphenylcompounds;
(P) waste from oil, gas, and geothermal activities subject to regulation by theRailroad Commission of Texas when those wastes are to be processed, treated, or disposed of at a solidwaste management facility permitted under this chapter;
(Q) waste generated outside the boundaries of Texas that contains:
(i) any industrial waste;
(ii) any waste associated with oil, gas, and geothermal exploration,production, or development activities; or
(iii) any item listed as a special waste ill this paragraph;
(R) any waste stream other than household or commercial garbage, refuse, orrubbish;
(S) lead acid storage batteries; and
(T) used-oil filters from internal combustion engines.
(138) Special waste from health care-related facilities - Includes animal waste, bulkhuman blood, blood products, body fluids, microbiological waste, pathological waste, and sharps asdefined in 25 TAC §1.132 (relating to Definitions).
(139) Stabilized sludges - Those sludges processed to significantly reduce pathogens,by processes specified in 40 Code of Federal Regulations, Part 257, Appendix II.
(140) Storage - The holding of solid waste for a temporary period, at the end of whichthe solid waste is processed, disposed of, or stored elsewhere. Facilities established as a neighborhoodcollection point for only nonputrescible source-separated recyclable material, as a collection point forconsolidation of parking lot or street sweepings or wastes collected and received in sealed plastic bagsfrom such activities as periodic city-wide cleanup campaigns and cleanup of rights-of-way or roadsideparks, or for accumulation of used or scrap tires prior to transportation to a processing or disposal siteare considered examples of storage facilities. Storage includes operation of pre-collection and postcollection as follows:
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(A) pre-collection-that storage by the generator, normally on his premises,prior to initial collection;
(B) post-collection-that storage by a transporter or processor, at a processingsite, while the waste is awaiting processing or transfer to another storage, disposal, or recovery facility.
(141) Storage battery - A secondary battery, so called because the conversion fromchemical to electrical energy is reversible and the battery is thus rechargeable. Secondary or storagebatteries contain an electrode made of sponge lead and lead dioxide, nickel-iron, nickel-cadmium,silver-zinc, or silver-cadmium. The electrolyte used is sulfuric acid. Other types of storage batteriescontain lithium, sodium-liquid sulfur, or cWorine~zincusing titanium electrodes.
(142) Store - To keep, hold, accumulate, or aggregate.
(143) Structural components - Liners, leachate collections systems, final covers, runon/run-off systems, and any other component used in the construction and operation of the municipalsolid waste landfill that is necessary for protection of human health and the environment.
(144) Surface impoundment - A facility or part of a facility that is a naturaltopographic depression, human-made excavation, or diked area formed primarily of earthen materials(although it may be lined with human-made materials) that is designed to hold an accumulation ofliquids; examples include holding, storage, settling, and aeration pits, ponds, or lagoons.
(145) Surface water - Surface water as included in water in the state.
(146) Texas Civil Statutes - Vernon's Texas Revised Civil Statutes Annotated.
(147) Transfer station - A fixed facility used for transferring solid waste fromcollection vehicles to long-haul vehicles (one transportation unit to another transportation unit). It is nota storage facility such as one where individual residents can dispose of their wastes in bulk storagecontainers that are serviced by collection vehicles.
(148) Transportation unit - A truck, trailer, open-top box, enclosed container, railcar, piggy-back trailer, ship, barge, or other transportation vehicle used to contain solid waste beingtransported from one geographical area to another.
(149) Transporter - A person who collects and transports solid waste; does notinclude a person transporting his or her household waste.
(150) Trash - Same as RUbbish.
(151) Treatment - Same as Processing.
(152) Triple rinse - To rinse a container three times using a volume of solvent capableof removing the contents equal to 10% of the volume of the container or liner for each rinse.
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(153) Uncompacted waste - Any waste that is not a liquid or a sludge, has not beenmechanically compacted by a collection vehicle, has not been driven over by heavy equipment prior tocollection, or has not been compacted prior to collection by any type of mechanical device other thansmall, in-house compactor devices owned and/or operated by the generator of the waste.
(154) Unified soil classification system - The standardized system devised by theUnited States Army Corps of Engineers for classifying soil types.
(155) Unconfined water - Water that is not controlled or impeded in its direction orvelocity.
(156) Unit - Municipal solid waste landfill unit.
(157) Unstable area - A location that is susceptible to natural or human-induced eventsor forces capable of impairing the integrity of some or all of the landfill structural componentsresponsible for preventing releases from a landfill. Unstable areas can include poor foundationconditions, areas susceptible to mass movements, and karst terrains.
(158) Uppermost aquifer - The geologic formation nearest the natural ground surfacethat is an aquifer; includes lower aquifers that are hydraulically interconnected with this aquifer withinthe facility' s property boundary.
(159) Vector - An agent, such as an insect, snake, rodent, bird, or animal capable ofmechanically or biologically transferring a pathogen from one organism to another.
(160) Washout - The carrying away of solid waste by waters.
(161) Waste management unit boundary - A vertical surface located at thehydraulically downgradient limit of the unit. This vertical surface extends down into the uppermostaquifer.
(162) Waste-separation/intermediate-processing center - A facility, sometimesreferred to as a materials recovery facility, to which recyclable materials arrive as source-separatedmaterials, or where recyclable materials are separated from the municipal waste stream and processedfor transport off-site for reuse, recycling, or other beneficial use.
(163) Waste-separation/recycling facility - A facility, sometimes referred to as amaterial recovery facility, in which recyclable materials are removed from the waste stream fortransport off-site for reuse, recycling, or other beneficial use.
(164) Water in the state - Groundwater, percolating or otherwise, lakes, bays, ponds,impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf ofMexico inside the territorial limits of the state, and all other bodies of surface water, natural orartificial, inland or coastal, fresh or salt, navigable or non-navigable, and including the beds and banks
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of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the stateor inside the jurisdiction of the state.
(165) Water table - The upper surface of the zone of saturation at which waterpressure is equal to atmospheric pressure, except where that surface is formed by a confining unit.
(166) Waters of the United States - All waters that are currently used, were used inthe past, or may be susceptible to use in interstate or foreign commerce, including all waters that aresubject to the ebb and flow of the tide, with their tributaries and adjacent wetlands, interstate waters andtheir tributaries, including interstate wetlands; all other waters such as intrastate lakes, rivers, streams(including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation, or destructionof which would affect or could affect interstate or foreign commerce including any such waters that areor could be used by interstate or foreign travelers for recreational or other purposes; from which fish orshellfish are or could be taken and sold in interstate or foreign commerce; that are used or could beused for industrial purposes by industries in interstate commerce; and all impoundments of watersotherwise considered as navigable waters; including tributaries of and wetlands adjacent to watersidentified herein.
(167) Wetlands - As defined in Chapter 307 of this title (relating to Texas SurfaceWater Quality Standards) and areas that are inundated or saturated by surface or groundwater at afrequency and duration sufficient to support, and under normal circumstances do support, a prevalenceof vegetation typically adapted for life in saturated soil conditions. Wetlands generally include playalakes, swamps, marshes, bogs, and similar areas.
(168) Yard waste - Leaves, grass clippings, yard and garden debris, and brush,including clean woody vegetative material not greater than six inches in diameter, that results fromlandscaping maintenance and land-clearing operations. The term does not include stumps, roots, orshrubs with intact root balls.
Adopted November 10, 2004
§330.3. Applicability.
Effective December 2, 2004
(a) The provisions of this chapter apply to any person as defined in §330.2 of this title (relatingto Definitions) involved in any aspect of the management and control of municipal solid waste (MSW)including, but not limited to, storage, collection, handling, transportation, processing, and disposal.Furthermore, these regulations apply to any person who by contract, agreement, or otherwise, arrangeto process, store, or dispose of, or arranged with a transporter for transport to process, store, or disposeof, solid waste owned or possessed by the person, or by any other person or entity.
(b) For municipal solid waste landfills (MSWLFs) that stopped receiving waste before October9, 1991, and MSW sites, only the provisions of §330.251 of this title (relating to Closure Requirementsfor MSWLF Units That Stop Receiving Waste Prior to October 9, 1991, and MSW Sites) apply. If notpreviously submitted, owners or operators shall submit a closure report that documents that MSWLFunits or MSW site(s), or portions thereof, have received final cover.
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(c) MSWLF units that receive waste after October 9, 1991, but stop receiving waste beforeOctober 9, 1993, are exempt from the requirements of this chapter except for the final coverrequirements specified in §330.252 of this title (relating to Closure Requirements for MSWLF UnitsThat Receive Waste on or after October 9, 1991, But Stop Receiving Waste Prior to October 9, 1993).The final cover must be installed and certified in accordance with the requirements contained in§§330.250 - 330.253 of this title (relating to Closure and Post-Closure). Owners or operators ofMSWLF units described in this subsection that fail to complete cover installation and certificationwithin the time limits specified in §§330.250 - 330.256 of this title will be subject to all therequirements of these regulations.
(d) All MSWLF units and MSW sites that receive waste on or after October 9, 1993, mustcomply with all requirements of these regulations, unless otherwise specified.
(e) Owners or operators of new, existing, and lateral expansions of small MSWLF units thatdispose of less than 20 tons of MSW daily in the small MSWLF unit based on an annual average areexempt from §§330.200 - 330.206 of this title (relating to Groundwater Protection Design andOperation) and §§330.230, 330.231, and 330.233 - 330.242 of this title (relating to GroundwaterMonitoring and Corrective Action), so long as there is no evidence of existing groundwatercontamination from the small MSWLF unit, the small MSWLF unit serves a community that has nopracticable waste management alternative, and the small MSWLF unit is located in an area that receivesless than or equal to 25 inches of annual average precipitation. Requests for exemptions undersubsection (f) of this section may be approved administratively by the executive director, upondemonstration of compliance with these criteria. An exemption request may be denied if the executivedirector determines that granting the exemption could result in a substantial threat of groundwatercontamination, based upon information made available to the executive director from the applicant oragency files. Owners or operators may appeal such denials to the commission for decision.
(f) Owners or operators of new, existing, and lateral expansions of small MSWLF units thatmeet the criteria in subsection (e) of this section must submit a certification of eligibility to theexecutive director and place a copy of the certification in the operating record. The certification shallbe signed by a principal executive officer, a ranking elected official, or an independent professionalengineer licensed to practice in the State of Texas, except that the groundwater certification must besubmitted in accordance with §330.14 of this title (relating to Arid Exemption Process) and signed by aqualified groundwater scientist, as defined in this chapter. The certification must contain the followinginformation:
(1) a certification that the MSWLF unit meets all requirements contained in subsection(e) of this section for exemptions from §§330.200 - 330.206, 330.230, 330.231, and 330.233 - 330.242of this title;
(2) a report prepared by a qualified groundwater scientist in accordance with §330.14of this title documenting that there is no evidenc~. of groundwater contamination;
(3) documentation that the small MSWLF unit receives for disposal an annual averageof less than 20 tons per day based upon the most recent four reporting quarters; or a certification that.
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programs have been put in place, or will be implemented to reduce the annual average to less than 20tons per day within one year;
(4) documentation that there are no practicable waste management alternativesavailable. The documentation shall demonstrate one of the following:
(A) additional costs of available alternatives are estimated to exceed 1.0% ofthe owner's or operating community's budget for all public services; or
(B) haul distances to alternative sites are unreasonably long; or
(C) all other alternatives are not feasible to implement, given the communitylocation and economic condition;
(5) documentation that the small MSWLF unit receives less than or equal to 25 inchesof average annual precipitation, as determined from the following map (Map 1) based on averageannual precipitation for the years 1951 - 1980, or from precipitation data for the nearest officialprecipitation recording station for the most recent 3D-year reporting period.
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SUBCHAPTER E: PERMIT PROCEDURES§§330.50 - 330.66, 330.70 - 330.73, 330.75
Effective October 2, 2003
§330.50. Pre-application Review.
(a) Applicability. This section applies to potential permit applicants who desire to enter intoagreements with affected persons and/or identify issues of local concern prior to submission of anapplication. A pre-application review process may be useful in situations where opposition to anapplication is likely to exist.
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(b) Purpose. A pre-application review should serve to identify issues of concern, facilitatecommunication between a potential applicant and persons who would be affected by an application, andresolve as many points of conflict as possible prior to the submission of an application. A local reviewcommittee shall:
(1) interact with the applicant in a structured manner dUring the pre-application reviewstage of the permitting process and, if necessary, dUring the technical review stage of the permittingprocess, raise and attempt to resolve both technical and nontechnical issues of concern; and
(2) produce a fact-finding report dorumentlng resolved and unresolved issues andunanswered questions. The applicant shall submit thiS report to the executive director with theapplicant's permit application.
(c) Procedure.
(1) If an applicant decides to participate in a local review committee process, theapplicant shall file three copies of a notice of intent to file an application with the executive director.The filing of this notice initiates the pre-application review process. The date of filing shall be the datethe notice is stamped as received by the executive director.
(2) Upon receipt of the notice of intent to fIle, the executive director shall forward acopy of the notice and an explanation of the local review committee process by certified mail to:
(A) the appropriate mayor and county judge if the proposed facility is to be locatedwith.in the corporate limits or extraterritorial jurisdiction of a city; or
(B) the appropriate county judge if the proposed facility is to be located within anunincorporated area of the county; and
(C) the appropriate regional solid waste planning agency/council of government.
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(3) Local review committees shall be composed of representatives of both local andregional interests and shall consist optimally of 12 indiViduals. However, an applicant may request alarger committee to better represent all interest groups present in a community or a smallercommittee for economic reasons; however. committees shall maintain a 2:1 ratio of regionalappointments to local appointments. Appointments to the local review committee shall be madeaccording to the follOWing gUidelines.
(A) If a proposed facility is to be located within a particular city's limits, themayor of the city shall be asked to make all local appointments.
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(B) If a proposed facility is to be located in an unincorporated area. but within fivemiles of a city or cities, the mayor of each affected city shall be asked to appoint one member. Theappropriate county judge shall be asked to appoint at least one member who lives within five miles ofthe proposed site. if available and qualified. The county judge shall also be asked to appoint anyremaining individuals necessary to complete local appointments to the committee.
(C) If a proposed facility would not be within five miles of a city. the appropriatecounty judge shall appOint at least one member. if available and qualified. who lives within five milesof the proposed site and as many other individuals from the county as are necessary to complete thelocal appointments.
(D) Regional appointments shall be made by the appropriate regional solid wasteplanning agency/council of government (COG) or another regional entity such as a special district orriver authority designated by the COG. An attempt shall be made to make regional appointments fromas many of the follOWing interest groups as possible:
(i) organized environmental groups;
(Ii) citizen organizations active in enVironmental issues;
(iii) industry. preferably. but not necessarily. individuals with expertise inwaste management:
(iv) academic community, preferably. but not necessarily. individuals trainedin a technical discipline related to waste management and/or public involvement;
(v) community or land-use planning;
(Vi) organized public-interest advocates; and
(vii) public health professionals.
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(E) If any local official or regional emity has failed to make the necessaryappOintments within 15 days after the notice of intent to file has been submitted, the applicant mayabandon the local review process at this point if so deSired.
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(F) Every effort should be made to appoint individuals who are willing toparticipate in good faith. able to devote adequate time to participation. and respected in the communityor region. An elected official shall not be appointed to the committee if the official is elected by aconstituency wholly or partly within the localities surrounding the site. and appointees shall not beemployees or agents of the applicant.
(G) An indiVidual shall not serve on more than one local review committee at anyone time.
(4) The local review committee shall meet within 21 days after the notice of intent isfiled. The executive director will prOVide manuals to committee members that will orient them as towhat the committee's activities should be. i.e .. the production of a report detailing issues resolved.issues unresolved. and questions not able to be answered.
(5) The pre-application review process shall continue for a maximum of 90 daysunless it is shortened or lengthened by mutual agreement between the applicant and the local reviewcommittee.
(6) IndiViduals who serve on local review committees shall serve withoutcompensation. The potential applicant shall prOVide resource support that may include clerical andtechnical assistance. a facilitator, meeting space. and/or other items that may be necessary to aid thecommittee in its work.
(d) Committee report.
(1) Any report produced by a local review committee set up under this section shall besubmitted to the executive director with the applicant's permit application. The executive director mayconsider the report as an additional source of information concerning the application and at the publichearing. if one is held. the hearing examiner shall give the report all the legal consideration merited.
(2) The report shall not recommend approval or disapproval of the proposed facility.Rather. it shall describe the committee's work and summarize the committee's findings. The findingsshall include issues resolved. issues unresolved. and questions not able to be answered.
§330.51. Permit Application for Municipal Solid Waste Facilities.
(a) Permit application. The application for a municipal solid waste facility is dividedinto Parts I - V. Parts I - IV of the application shall be reqUired before the application is declared"administratively complete" in accordance with Chapter 281 of this title (relating to Applications
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Processing). A complete application. containing Parts I - IV. shall be submitted before a hearing canbe conducted on the technical design merits of the application. If the executive director detenninesthat a "land-use only public hearing" as described in §330.61 of this title (relating to Land-Use PublicHearing) is appropriate. the owner or operator shall submit a partial application consisting of Parts Iand II of the application. A complete application. consisting of Parts I - IV of the application. shall besubmitted based upon the results of the land-use only public hearing. The owner or operator shall berequired to comply with the design, construction, and operating procedures proposed in his application.Part V shall be submitted upon completion of construction of the facility. It is intended that thissubchapter completely define the infonnation needed for permit review, but the executive directormay request additional data if such is reasonably required to allow a decision to be made. Applicantsfor Type I-AE municipal solid waste landfills (MSWLFs) are required to submit all parts of theapplication except for those items pertaining to but not limited to §§330.200 - 330.206 of this title(relating to Groundwater Protection Design and Operation) and §§330.230 - 330.242 of this title(relating to Groundwater Monitoring and Corrective Action). Applicants for a Type I-AE facility areexempt from §330.56(d) of this title (relating to Attachments to the Site Development Plan).
(1) Part I of the application shall consist of the infonnation required in §305.45 of thistitle (relating to Contents of Application for Pennit) and §330.52 of this title (relating to TechnicalRequirements of Part I of the Application).
(2) Part II of the application shall describe the existing conditions and character of thesite and surrounding area. Part II of the application shall consist of the information contained in§330.53 of this title (relating to Technical Requirements of Part II of the Application). An applicantmust submit Parts I and II of his application before a land-use public hearing is conducted inaccordance wilh §330.6 I of this title.
(3) Part III of the application shall contain most of the necessary engineeringinformation. detailed investigative reports. the schematic designs of the facility, and the requiredplans. Part III shall consist of the documents reqUired in §§330.54 - 330.56 of thiS title (relating toPermit Procedures).
(4) Part IV of the application shall contain the site operating plan that shall discusshow the applicant plans to conduct his daily operations at the site. Part IV shall consist of thedocuments reqUired in §330.57 of this title (relating to Technical Requirements of Part IV of theApplication) .
(5) Part V of the application is reserved for construction documents. Constructionplans and specifications shall be handled as reqUired by §330.58 of this title (relating to TechnicalRequirements of Part V of the Application).
(b) Required information. The information reqUired by this subchapter defines the basicelements for an application.
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(I) All aspects of the application and design requirements must be addressed by theapplicant, even if only to show why they are not applicable for that particular site.
(2) It is the responsibility of the applicant to prOVide the executive director data ofsufficient completeness. accuracy. and c1aIity to prOVide assurance that operation of the site will poseno reasonable probabfllty of adverse effects on the health. welfare. enVironment, or physical propertyof nearby reSidents or property owners. Failure to prOVide complete information as reqUired by thischapter may be cause for the executive director to return the application without further action.Submission of false information shall constitute grounds for denial of the permit.
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(3) The applicant is responsible for determining and reporting to the executive directorany site-specific conditions that reqUire spedal design considerations.
(4) For construction in a floodplain. the follOWing must be submitted. whereapplicable:
(A) approval from the governmental entity with jurisdiction under Texas WaterCode. §16.236. as implemented by Chapter 301 of this title (relating to Levee Improvement Districts,District Plans of Reclamation. and Levees and Other Improvements);
(B) a floodplain development permit from the city. county. or other agency withjurisdiction over the proposed improvements:
(C) a Conditional Letter of Map Amendment (CLOMA) from The FederalEmergency Management Agency (FEMA): and
(D) a Corps of Engineers Section 404 Specification of Disposal Sites for Dredgedor Fill Material for construction of all necessary improvements.
(5) The applicant shall submit demonstration of compliance with National PollutionDischarge Elimination System (NPDES) under CWA. §402. as amended.
(6) The applicant shall submit documentation of coordination with the follOWingagencies. where applicable:
(A) Texas Commission on Environmental Quality for compliance with CWA.§208:
(B) Federal Aviation Administration. for compliance with airport locationrestrictions: and
(C) Texas Department of Transportation for traffic and location restrictions.
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(7) The applicant shall submit wetlands determination under applicable federal. state.and local laws.
(8) The applicant shall submit Endangered Species Act compliance demonstrationsunder state and federal laws.
(9) The applicant shall submit a review letter from Texas Antiquities Committee.
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(10) The applicant shall submit demonstration of compliance with regional solid wasteplan.
(c) Number of copies. Applications shall be initially submitted in four copies. The applicantshall furnish up to 18 additional copies of the application for use by reqUired reviewing agencies. uponrequest of the executive director.
(d) Preparation. Preparation of the application must conform with Texas Civil Statutes. TexasEngineering Practice Act. Article 3271a and Texas Geoscience Practice Act. Article 3271b.
(1) The responsible engineer shall seal. Sign. and date each sheet of engineering plans.draWings. and the title or contents page of the application as reqUired by Texas Engineering PracticeAct. §I5c. and in accordance with 22 TAC §131.I66 (relating to Engineers' Seals).
(2) The responsible geosdentist shall seal, sign. and date applicable items as reqUiredby Texas Geoscience Practice Act. §6.13(b).
(3) Applications that have not been sealed shall be considered incomplete for theintended purpose and shall be returned to the applicant.
(e) Application formal.
(1) Applications shall be submitted in three-ring loose-leaf binders.
(2) The narrative of the report shall be printed on 8 1/2 by 11 inches white paper.DraWings or other sheets shall be no larger than 11 by 17 inches so that they can be reproduced bystandard office copy machines.
(3) All pages shall contain a page number and date.
(4) ReVisions shall have the revision date and note that the sheet is revised in theheader or footer of each revised sheet. The revised text shall be marked to highlight the revision.
(5) Dividers and tabs are encouraged.
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(0 Application drawings.
Page 7
(1) All information contained on a drawing shall be legible. even if it has beenreduced. The drawings shall be 8 1/2 by 11 inches or 11 by 17 inches. Standard sized drawings (24 by36 inches) folded to 8 1/2 by 11 inches may be submitted or reqUired if reduction would render themillegible or difficult to interpret.
(2) If color coding is used. it should be legible and the code distinct when reproducedon black and white photocopy machines.
(3) DraWings shall be submitted at a standard engineering scale.
(4) Each drawing shall have a:
(A) dated title block;
(B) bar scale at least one-inch long;
(C) revision block;
(D) responsible engineer's seal. if required; and
(E) draWing number and a page number.
(5) Each map or plan drawing shall also have:
(A) a north arrow. Preferred orientation is to have the north arrow pointingtoward the top of the page;
(B) a reference to the base map source and date if the map is based upon anothermap. The latest published edition of the base map should be used;
(C) a legend; and
(D) two longitudes and latitudes shall be shown on all general location maps.
(6) Match lines and section lines shall reference the draWing where the match orsection is shown. Section draWings should note from where the section was taken.
Adopted August 6. 2003
§330.52. Technical Requirements of Part I of the Application.
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(a) General.
(1) The first part of the application, Part I, is designed to prOVide information that isreqUired regardless of the type of site involved. All items required by this section and §305.45 of thistitle (relating to Contents of Application for Permit) must be submitted.
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(2) Persons who wish to have a "pre-application meeting" under the provisions ofHealth and Safety Code, §361.0635, and §330.50 of this title (relating to Preapplication Review) shouldinclude a draft Part I with their request.
(3) Submittal of a Part I by itself will not necessarily require publication of a notice ofintent to obtain a municipal solid waste permit under the provisions of Health and Safety Code,§361.0665, or a notice concerning receipt of a permit application under the provisions of Health andSafety Code, §361.079.
(4) Submittal of a Part I only will not allow an application to be declared"administratively complete" under the provisions of Health and Safety Code, §361.068: §281.3 of thistitle (relating to Initial ReView); and §281.18 of this title (relating to Applications Returned).
(b) Additional requirements of Part 1.
(1) Title page. The title page shall show the name of the project, the municipal solidwaste (MSW) permit application number if known, the name of the applicant, the location by city andcounty, the date the part was prepared and, if appropriate, the number and date of the revision. Itshall be sealed as reqUired by the Texas Engineering Practice Act.
(2) Table of contents. The table of contents shall list and give the page numbers forthe main sections of the application. It shall be sealed as reqUired by the Texas Engineering PracticeAct.
(3) Supplementary technical report. The applicant shall describe the purpose of thefacility or the application and any other information believed to be needed to understand the applicationin a supplementary technical report.
(4) Maps.
(A) General. The maps submitted as a group shall show the elements contained in§305.45 of this title (relating to Contents of Application for Permit) and the following:
(1) the prevailing wind direction with a wind rose:
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(ii) all known water wells within 500 feet of the proposed permit boundaryshall be shown. The state well numbertng system designation for Water Development Board "locatedwells" shall be shown;
(iii) all structures and inhabitable buildings within 500 feet of the proposedsite;
(iv) schools. licensed day care facilities. churches, hospitals, cemeteries.ponds, lakes. and residential. commercial. and recreational areas within one mile of the site;
(v) the location and surface type of all roads within one mile of the site thatwill normally be used by the applicant for entering or leaving the site:
(vi) latitudes and longitudes;
(vii) area streams:
(viii) airports within five miles of the site;
(ix) the property boundary of the site:
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(x) drainage, pipeline. and utility easements within or adjacent to the site; and
(xi) archaeological sites, historical sites. and sites with exceptional aestheticqualities adjacent to the site.
(B) Generallocalion maps. These maps shall be all or a portion of county mapsprepared by Texas Department of Transportation (TxDot). At least one general location map shall beat a scale of one-half inch equals one mile. If TxDot publishes more detailed maps of the proposed sitearea, the more detailed maps shall also be included in Part I. The latest revision of all maps shall beused.
(C) General topographic maps. These maps shall be United States GeologicalSurvey 7 I/2-minute quadrangle sheets or eqUivalent. At least one general topographic map shall be ata scale of one inch equals 2.000 feet.
(D) Land ownership maps. These maps shall comply with the requirements§28I.5 of this title (relating to Application for Wastewater Discharge, Underground Injection,Municipal Solid Waste. Hazardous Waste, and Industrial Solid Waste Management Permits) bylocating the property owned by adjacent and potentially ~-iffected landowners. The maps should showall property ownership Within 500 feet of the site.
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(5) Landowners list. The adjacent and potentially affected landowners list shall bekeyed to the land ownership maps and shall give each property owner's name and mailing address.The list shall comply with the requirements of §281.5 of this title (relating to Application forWastewater Discharge, Underground Injection, Municipal Solid Waste, Hazardous Waste, andIndustrial Solid Waste Management Permits). The list shall include all property owners within 500feet of the site.
(6) Legal description.
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(A) Provide the legal deSCription of the property and the county, book, and pagenumber of the current ownership record.
(B) For property that is platted. the county, book. and page number of the final platrecord of only that acreage encompassed in the application and a copy of the final plat shall beprOVided in addition to a written legal description.
(C) ProVide a boundary metes and bounds description of the site signed and sealedby a registered professional land surveyor.
(D) PrOVide draWings of the boundary metes and bounds description.
(7) Property owner affidavit. A property owner affidavit shall be submitted and shallinclude the follOWing:
(A) the legal description of the site:
(B) acknowledgment that the State of Texas may hold the property owner of recordeither jointly or severally responsible for the operation. maintenance, and closure and post-closurecare of the site;
(C) acknowledgment that the owner has a responsibility to file with the countydeed records an affidavit to the public advising that the land has been used for a solid waste facility, atsuch time as the site actually begins operating as a municipal solid waste landfill fadlity: and
(D) acknowledgment that the site owner or operator and the State of Texas shallhave access to the property dUring the active life and for a period of not less than 30 years afterclosure for the purpose of inspection and maintenance.
(8) Legal authority. The applicant shall proVide verification of his legal status asrequired by §281.5 of this title (relating to Application for Wastewater Discharge. UndergroundInjection, Municipal Solid Waste, Hazardous Waste. and Industrial Solid Waste ManagementPermitS). Normally. this shall be a one-page certificate of incorporation issued by the secretary ofstate. The applicant shall list all persons haVing over a 20% ownership in the proposed facility.
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(9) Evidence of competency.
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(A) The applicant shall submit a list of all Texas solid waste sites that the applicanthas owned or operated within the last 10 years. The site name, site type. permit or registrationnumber, county, and dates of operation shall also be submitted.
(B) The applicant shall submit a list of all solid waste sites in all states, territories.or countries in which the applicant has a direct financial interest. The type of site shall be identified bylocation, operating dates. name. and address of the regulatory agency. and the name under which thesite was operated.
(C) The executive director shall require that a licensed solid waste facilitysupervisor. as defined in Chapter 30 of this title (relating to Occupational Licenses and Registrations).be employed before commendng site operation.
(D) The names of the principals and supervisors of the applicant's organizationshall be provided. together with previous affiliations with other organization engaged in solid wasteactivities.
(E) Evidence of competency to operate the site shall also include landfiIling andearthmoving experience. other pertinent experience, or licenses as described in Chapter 30 of thiS title(relating to Occupational Licenses and Registrations) possessed by key personnel and the number andsize of each type of equipment to be dedicated to site operation.
(10) AppOintments.
(A) PrOVide documentation that the person signing the application meets therequirements of §30S.44 of this title (relating to Signatories to Applications). If the authority has beendelegated, prOVide a copy of the document issued by the governing body of the applicant authorizing theperson who signed the application to act as agent for the applicant.
(B) A "notice of appOintment" identifying the applicant's engineer shall beproVided.
(11) EVidence of financial assurance. The applicant shall submit a copy of thedocumentation reqUired to demonstrate financial assurance as specified in Subchapter K of this chapter(relating to Closure. Post-Closure, and Corrective Action) and Chapter 37. Subchapter R of this title(relating to Financial Assurance for Municipal Solid Waste Facilities), as applicable. For a newfacility. a copy of the reqUired documentation shall be submitted 60 days prior to the initial receipt ofwaste.
Adopted November 20. 2001
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§330.53. Technical Requirements of Part II of the Application.
(a) General.
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(1) Part II of the application must describe the existing conditions and character of thesite and surrounding area. Parts I and II of the application must provide information relating to landuse compatibility under the provisions of Texas Health and Safety Code, §361.069.
(2) Part n may be combined with Part I of the application or may be issued as aseparate document. If it is combined, it is not necessary to prOVide a separate Part II title page, tableof contents. supplementary technical report, or location maps. All other items reqUired by subsection(b) of this section shall be submitted.
(b) ReqUirements of Part II.
(1) Title page. The title page shall show the name of the project, the municipal solidwaste (MSW) permit application number if known, the name of the applicant, the location by City andcounty, the date the. part was prepared, and, if appropriate, the number and date of the revision. Itshall be sealed as reqUired by the Texas Engineering Practice Act.
(2) Table of contents. The Table of Contents shall list and give the page numbers forthe main sections of the application. It shall be sealed as reqUired by the Texas Engineering PracticeAct.
(3) Supplementary technical report. The applicant shall describe the purpose of thefacility or the application in a supplementary technical report and prOVide any information necessary tounderstand the application.
(4) Existing conditions summary. The applicant may discuss any land use,enVironmental, or special issues he desires in an existing conditions summary.
(5) General location maps. The applicant shall prOVide maps in addition to thoserequired by §330.52(b)(4) of this title (relating to Technical ReqUirements of Part I of the Application)as necessary to accurately show proximity to surrounding features.
(6) Aerial photograph.
(A) This should be an aerial photograph approximately nine inches by nine incheswith a scale within a range of one inch equals 1,667 feet to one inch equals 3,334 feet and shOWing thearea within at least a one-mile radius of the site boundaries. The site boundaries and actual fill areasshall be marked.
(B) A series of aerial photographs can be used to show growth trends.
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(C) Photocopies of photographs are not acceptable substitutes for photographs.
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(7) Land-use map. This is a constructed map of the site shoWing the boundary of theproperty and any existing zoning on or surrounding the property and actual uses (e.g.. agricultural.industrial. residential. etc.) both within the site and Within one mile of the site. The applicant shallmake every effort to show the location of residences. commercial establishments. schools. licensedchild care facilities. churches. cemeteries. ponds or lakes. and recreational areas within one mile ofthe site boundary. Drainage. pipeline. and utility easements within the site shall be Shown. Accessroads serving the site shall also be shown.
(8) Land use. A primary concern is that the use of any land for an MSW site notadversely impact human health or the environment. The impact of the site upon a city. community.group of property owners. or indiViduals must be considered in terms of compatibility of land use.zoning in the vidnity. community growth patterns. and other factors associated with the public interest.To assist the executive director in evaluating the impact of the site on the surrounding area. theapplicant shall prOVide the follOWing:
(A) zoning at the site and in the vicinity. If the site reqUires approval as anonconforming use or a special permit from the local government haVing jurisdiction. a copy of suchapproval shall be submitted;
(B) character of surrounding land uses within one mile of the proposed facility;
(C) growth trends of the nearest community with directions of major development;
(0) proximity to residences and other uses (e.g.. schools. churches. cemet~ries,
historic structures and sites. archaeologically significant sites. sites haVing exceptional aestheticquality. etc.). Give the approximate number of residences and business establishments within onemile of the proposed facility including the distances and directions to the nearest residences andbusinesses; and
(E) description and discussion of all known wells within 500 feet of the proposedsite.
(9) Transportation.
(A) ProVide data on the availability and adequacy of roads that the applicant willuse to access the site.
(B) ProVide data on the volume of vehicular traffic on access roads within onemile of the proposed facility, both existing and expected, dUring the expected life of the proposedfacility.
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(C) Project the volume of traffic expected to be generated by the facility on theaccess roads within one mile of the proposed facility.
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(D) Analyze the impact of the facility upon airports in accordance with §330.300of this title (relating to Airport Safety).
(10) General geology and soils statement. The reports prepared under this paragraphmust meet the following requirements:
(A) discuss in general terms the geology and soils of the proposed site;
(B) identify and provide data on fault areas located within the proposed site inaccordance with §330.303 of this title (relating to Fault Areas);
(C) identify and prOVide data on seismic impact zones in accordance with§330.304 of this title (relating to Seismic Impact Zones); and
(D) identify and prOVide data on unstable areas in accordance with §330.305 ofthis title (relating to Unstable Areas).
(11) Ground and surface water statement. The report prepared under this paragraphmust proVide:
(A) data about the site-specific groundwater conditions at and near the site; and
(8) data on surface water at and near the site.
(12) Floodplains and wetlands statement. The floodplains and wetlands statementmust:
(A) proVide data on floodplains in accordance with Chapter 30 I, Subchapter C ofthis title (relating to Approval of Levees and Other Improvements); and
(B) discuss wetlands in accordance with §330.302 of this title (relating toWetlands). For the purpose of this rule, demonstration can be made by prOViding eVidence that thefacility has a Corps of Engineers permit for the use of any wetlands area.
(13) Protection of endangered species.
(A) The following words and terms shall have the follOWing meanings, unless thecontext clearly indicates otherwise.
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(i) Endangered or threatened species as defined in §330.2 of this title (relatingto Definitions).
(ii) Taking - Harassing, harming, pursuing, hunting, wounding, trapping,capturing, or collecting an endangered or threatened species or attempting to engage in such conduct.
(iii) Harassing - An intentional or negligent act or omission that creates thelikelihood of injUry to wildlife by annoying it to such an extent as to significantly disrupt normalbehavioral patterns that include, but are not limited to, breeding, feeding. or sheltering.
(iv) Harming - An act of omission that actually injures or kills wildlife,including acts that annoy it to such an extent as to significantly disrupt essential behavioral patterns,that include, but are not limited to, breeding. feeding, or sheltering: significant environmentalmodification or degradation that has such effects is included within the meaning of harming.
(B) The impact of a solid waste disposal facility upon endangered or threatenedspecies shall be considered. The facility and the operation of the facility shall not result in thedestruction or adverse modification of the critical habitat of endangered or threatened species, orcause or contribute to the taking of any endangered or threatened species.
(C) The permit applicant should consult with the executive director to determinethe need for specific information relating to protection of endangered species. If the facility is locatedin the range of an endangered or threatened species, a biological assessment may be reqUired to beprepared by a qualified biologists in accordance with standard procedures of the United States Fish andWildlife Service and the Texas Parks and Wildlife Department to determine the effect of the facilityon the endangered or threatened species. Where a previous biological assessment has been made foranother project in the general vicinity, a copy of that assessment may be submitted for evaluation. TheUnited States Fish and Wildlife Service and the Texas Parks and Wildlife Department should becontacted for locations and specific data relating to endangered and threatened species in Texas.
Adopted August 6,2003
§330.54. Technical Requirements of Part III of the Application.
Effective September I, 2003
For all facilities, the technical information submitted in support of Parts I and II shall beprepared in the form of an engineering site development plan as described in §330.55 of thiS title(relating to Site Development Plan). Four draft copies of the Site Development Plan and other relatedplans shall be submitted to the executive director for review. The Site Development Plan shall beprepared in the format and content described as follows.
(1) The title page shall show the name of the project, the MSW permit applicationnumber if known. the name of the applicant. the location by city and county. the date the part was
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prepared, and, if appropriate, the number and date of the revision. It shall be sealed as required bythe Texas Engineering Practice Act.
Page 16
(2) The table of contents shall list and give the page numbers for the main sections ofthe application.
(3) Solid waste data shall include identification of the nature, type, and quality ofwaste proposed for processing and/or disposal in the site to include a brief description of the generalsources and generation areas contributing wastes to the site. This shall include an estimate of thepopulation or population eqUivalent served by the site.
(4) Design data shall be reflected to the maximum extent possible in the narrative ofthe Site Development Plan as required by §330.55 of this title (relating to Site Development Plan) andother plans and on the drawings described in §330.56 of this title (relating to Attachments to the SiteDevelopment Plan). Applicants shall consider criteria that in the selection of a site and design of afacility will provide for the safeguarding of the health, welfare, and physical property of the people andthe environment through consideration of geology, soil conditions, drainage, land use, zoning,adequacy of access roads and highways, and other considerations as the specific site dictates.Applicants shall include in the support data for their permit applications information as specified in thedesign criteria indicated in this paragraph. It is recommended that the applicant review the operationalstandards for the spedfie type of site before completing the application.
§330.55. Site Development Plan.
(a) The Site Development Plan of the application shall contain the follOWing elements:
(1) the landfill method proposed, e.g.. trench, area fill, or combination;
(2) provisions for all-weather operation, e.g., all-weather road, wet-weather pit,alternate disposal site, etc.; provisions for all-weather access from publicly owned routes to thedisposal site and from the entrance of the site to unloading areas used dUring wet weather. Interioraccess road locations and the type of surfacing shall be indicated on a site plan. The roads within thesite shall be designed so as to minimize the tracking of mud onto the public access road;
(3) type and location of fences or other suitable means of access control to prevent theentry of livestock. to protect the public from exposure to potential health and safety hazards, and todiscourage unauthorized entry or uncontrolled disposal of solid waste or hazardous materials;
(4) calculation of estimated rate of solid waste deposition and operating life of the site.(A~ a general rule, 10,000 people with a per capita collectri:in rate of five pounds per day, dispose of 10to 15 acre-feet of solid waste in one year); and
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(5) Provide required information on drinking water protection in accordance with§§330.200-330.206 of this title (relating to Ground-Water Protection Design and Operation).
(b) The Site Developm~nt Plan of the Application shall contain sufficient information todocument compliance with the following.
(1) A facility shall not cause:
(A) a discharge of solid wastes or pollutants adjacent to or into the water in thestate. including wetlands. that is in violation of the requirements of the Texas Water Code. §26.l21;
Page 17
(B) a discharge of pollutants into waters of the United States. including wetlands.that violates any requirements of the Clean Water Act. including. but not limited to. the NationalPollutant Discharge Elimination System (NPDES) requirements. pursuant to §402 as amended;
(C) a discharge of dredged or fill material to waters of the United States.including wetlands. that is in violation of the requirements under the Federal Clean Water Act. §404.as amended; and
(0) a discharge of a nonpoint source pollution of waters of the United States.including wetlands. that violates any requirement of an areawide or statewide water qualitymanagement plan that has been approved under the Federal Clean Water Act. §208 or §319. asamended.
(2) The owner or operator shall design. construct. and maintain a run-on controlsystem capable of preventing flow onto the active portion of the landfill during the peak discharge fromat least a 25-year storm.
(3) The owner or operator shall design. construct. and maintain a run-off managementsystem from the active portion of the landfill to collect and control at least the water volume resultingfrom a 24-hour. 25-year storm. The run-off from the active portion shall be discharged in compliancewith paragraph (1) of this subsection or disposed of in an authOrized manner.
(4) Dikes. embankments. drainage structures. or diversion channels sized and gradedto handle the design run-off shall be prOVided. The slopes of the sides and toe shall be graded in such amanner so as to minimize the potential for erosion.
(5) Drainage calculations are as follows.
(A) Calculations for areas of 200 acres or less shall follow the rational methodand shall utilize appropriate surface run-off coefficients. as specified in the Texas Department ofTransportation Bridge Division Hydraulic Manual. Time of run-off concentration as defined within thesaid manual generally shall not be less than 10 minutes for rainfall intensity determination purposes.
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(B) Calculations for discharges from areas greater than 200 acres shall becomputed by using USGSIDHT hydraulic equations compiled by the United States Geological Surveyand the Texas Department of Transportation and Public Transportation (TxDOT AdministrativeCircular 80-76), the HEC-I and HEC-2 computer programs developed through the HydrologicEngineering Center of the United States Army Corps of Engineers, or an eqUivalent or better methodapproved by the executive director.
(C) Designs of all drainage facilities within the site area shall include suchfeatures as typical cross-sectional areas, ditch grades, flow rates, water surface elevation, velocities,and flowline elevations along the entire length of the ditch.
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(D) Sample calculations shall be provided to verify that natural drainage patternswill not be significantly altered.
(E) The proposed surface water protection and erosion control practices mustmaintain low non-erodible velocities, minimize soil erosion losses below permissible levels, andprovide long-term, low maintenance geotechnical stability to the final cover.
(6) The owner or operator shall handle, store, treat, and dispose of surface or groundwater that has become contaminated by contact with the working face of the landfill or with leachate inaccordance with §330.139 of this title (relating to Contaminated Water Discharge). Storage areas forthis contaminated water shall be designed with regard to size (verifying calculations included),treatment (supporting documentation and calculations included), locations, and methods and shall havean approved liner covering the bottom and side slopes. Other surface run-off water shall be handled inaccordance with paragraph (3) of this subsection.
(7) The site shall be protected from flooding by suitable levees constructed to prOVideprotection from a 100-year frequency flood and in accordance with the rules and regulations of theTWC and successors relating to levee improvement districts and approval of plans for reclamationprojects or the rules of the county or city having jurisdiction under the Texas Water Code, §16.236. asimplemented by §§301.31-301.46 of this title (relating to Levee Improvement Districts. District Plansof Reclamation, and Levees and Other Improvements).
(A) Flood protection levees shall be designed and constructed to prevent thewashout of solid waste from the site.
(8) A freeboard of at least three feet shall be prOVided except in those caseswhere a greater freeboard is reqUired by the agency having jurisdiction under the Texas Water Code,Chapter 16.236.
(C) Such levees shall not significantly restrict the flow of a IOO-year frequencyflood nor significantly reduce the temporary water storage capacity of the IOO-year floodplain.
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(8) The final cover design shall prOVide effective long-term erosional stability to thetop dome surfaces and embankment side slopes in accordance with the following.
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(A) Estimated peak velocities for top surfaces and embankment slopes should beless than the pennissible non-erodible velocities under similar conditions.
(B) The top surfaces and embankment slopes of MSWLF units shall be designed tominimize erosion and soil loss through the use of appropriate side slopes. vegetation, and otherstructural and non-structural controls. as necessary. Soil erosion loss (rons/Acre) for the top surfacesand embankment slopes may be calculated using the Soil Conservation Service of US Department ofAgriculture's Universal Soil Loss Equation. in which case the potential soil loss should not exceed thepennissible soil loss for comparable soil-slope lengths and soil cover conditions.
(C) Details for final cover shall be depicted on fill cross-sections and providedalong with other information in accordance with §330.S6(b) of this title (relating to Attachments to theSite Development Plan).
(D) The final cover design shall be in accordance with the final closure plan.
(9) The site shall be designed to protect endangered speCies.
(I 0) Landfill markers shall be installed to clearly mark significant features. Theexecutive director may modify specific marker requirements to accommodate unique site specificconditions.
(A) All markers shall be posts. steel, or wooden and shall extend at least six feetabove ground level. Markers shall not be obscured by vegetation. Sufficient intermediate markersshall be installed to show the required boundary. Markers shall be installed at:
(0 site boundary;
(ii) 50-foot buffer zone:
(iii) easements and rights-of-way;
(iv) landfill grid system;
(v) SLER or FMLER area; and
(Vi) 100-year flood limits.
(8) All markers shall be color coded as follows:
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(i) black-boundary markers;
(ii) yellow-buffer zone markers;
(iii) green-easement and rights-of-way markers;
(vi) white-grid markers;
(v) red-SLER or FMLER markers; and
(Vi) blue-flood protection markers.
(C) Site boundary markers shall be placed at each comer of the site and alongeach boundary line at intervals no greater than 300 feet. Fencing may be placed within these markersas reqUired.
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(D) Markers identifying the 50-foot buffer zone shall be placed along each bufferzone boundary at all corners and between corners at intervals of 300 feet. Placement of the landfillgrid markers may be made along a buffer zone boundary.
(E) Easement and right-of-way markers shall be place along the centerline of aneasement and along the boundary of a right-of-way at each corner within the site and at the intersectionof the site boundary.
(F) A landfi1J grid system shall be installed at aJ] solid waste facilities unlesswritten approval from the executive director has been received. The grid system shall encompass atleast the area expected to be filled within the next three-year period. Although grid markers shall bemaintained during the active life of the site, post-closure maintenance of the grid system isrecommended but not reqUired. The grid system, similar to a typical city map grid. shall consist oflettered markers along two opposite sides. and numbered markers along the other two sides. Markersshall be spaced no greater than 100 feet apart measured along perpendicular lines. Where markerscannot be seen from opposite boundaries, intermediate markers shaH be installed. where feasible.
(G) SLER or FMLER area markers shall be placed so that all areas for which aSLER or FMLER has been submitted and approved by the department are readily determinable. Suchmarkers are to provide site workers immediate knowledge of the extent of approved disposal areas.These markers shall be located so that they are not destroyed dUring operations until operations extendinto the next SLER or FMLER. The location of these markers shall be tied Into the landfill grid systemand shall be reported on each SLER or FMLER submitted, SLER and FMLER markers shall not beplaced inSide the evaluated areas.
(H) Flood protection markers shall be installed for any area within a solid wastedisposal facility that is subject to flooding prior to the construction of flood protection levee. The area
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subject to flooding shall be clearly marked by means of permanent posts not more than 300 feet apartor closer if necessary to retain visual continuity.
(I) Specific trenches dedicated to the burial of Class I nonhazardous industrialsolid waste shall be designated and operated in accordance with §330.137 of this title (relating toDisposal of Industrial Wastes). The approved composite liner area shall be marked at all comers.Such markers are to provide site workers immediate knowledge of the extent of approved disposalareas. These markers shall be located so that they are not destroyed during operations.
mA permanent benchmark shall be established at the site in an area of the sitethat is readily accessible and will not be used for disposal. This benchmark shall be a bronze surveymarker set in concrete and shall have the benchmark elevation and survey date stamped on it. Thebenchmark elevation shall be surveyed from a known United States Coast and Geodetic Surveybenchmark or other reliable benchmark. The location and elevation of the reference benchmark andthe permanent benchmark shall be identified on a map and shall be included in the Site DevelopmentPlan.
§330.56. Attachments to the Site Development Plan.
(a) Attachment 1 - site layout plan.
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(I) This is the basic element of the site development plan consisting of a site layoutplan on a constructed map shOWing the outline of the units and fill sectors with appropriate notationsthereon to communicate the types of wastes to be disposed of in indiVidual sectors. the generalsequence of filling operations. locations of all interior site roadways to proVide access to all fill areas.locations of monitor wells, dimensions of trenches. locations of buildings. and any other graphicrepresentations or marginal explanatory notes necessary to communicate the proposed step-by-stepconstruction of the site. The layout should include: fencing; sequence of excavations, filling.maximum waste elevations and final cover; provisions for the maintenance of natural windbreaks,such as greenbelts. where they will improve the appearance and operation of the site; and, whereappropriate. plans for screening the site from public view.
(2) A generalized design of all site entrance roads from public access roads shall beincluded. All designs of proposed public roadway improvements such as turning lanes, storage lanes,etc.. associated with site entrances should be coordinated with the agency exercising maintenanceresponsibility of the public roadway involved.
(3) This plan is the basis for operational planning and budgeting. and therefore shallcontain sufficient detail to provide an effective site management tool.
(b) Attachment 2 - fill cross-section.
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(1) The fill cross-sections must consist of plan profiles across the site clearly showingthe top of the levee, top of the proposed fill (top of the fmal cover), maximum elevation of proposedfill, top of the wastes, existing ground, bottom of the excavations, side slopes of trenches and fillareas, gas vents or wells, and groundwater monitoring wells, plus the initial and static levels of anywater encountered.
(2) The fill cross-sections shall go through or very near the soil borings in order thatthe boring logs obtained from the soils report can also be shown on the profile.
(3) Large sites shall prOVide sufficient fill cross-sections, both latitudinally andlongitudinally, so as to accurately depict the existing and proposed depths of all fill areas within thesite. The plan portion shall be shown on an inset key map.
(4) Construction and design details of compacted perimeter or toe berms which areproposed in conjunction with aboveground (aerial-fill) waste disposal areas shall be included in the fillcross-sections.
(c) Attachment 3 - existing contour map. This is a constructed map shOWing the contoursprior to any grading. excavation, and/or filling operations on the site. Appropriate vertical contourintervals shall be selected so that contours are not further apart than 100 feet as measured horizontallyon the ground. Wider spacing may be used when approved by the executive director. The map shouldshow the location and quantities of surface drainage entering, exiting, or internal to the site and thearea subject to flooding by a 100-year frequency flood.
(d) Attachment 4 - geology report. This portion of the application applies to owners oroperators of municipal solid waste (MSW) facilities that store, process, or dispose of MSW inlandfills. If the municipal solid waste landfill (MSWLF) facility contains two or more MSWLF units,the information requested pertaining to regional geology and regional aqUifers need only be proVidedonce. The geology report shall be prepared and signed by a qualified groundwater scientist except thatthe reports required under paragraph (5) of this subsection shall be signed and sealed, whereappropriate, as reqUired by the Texas Engineering Practice Act. PreViously prepared documents maybe submitted but must be supplemented as necessary to proVide the requested information. Sourcesand references for information must be proVided. The geology report must contain the information Inparagraphs (1) - (6) of this subsection.
(1) The owner or operator shall prOVide a discussion of the regional physiography andtopography in the vicinity of the facility. The discussion shall include, at a minimum, the distance tolocal surface water bodies and drainage features, the slope of the land surface (direction and rate), andthe maximum and minimum elevations of the facVity. Any limitation of the facility due to unfavorabletopography (e.g .. cliffs. floodplains) shall be discussed.
(2) The owner or operator shall prOVide a description of the regional geology of thearea. This section shall include:
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(A) a geologic map of the region with text describing the stratigraphy and lithologyof the map units. An appropriate section of a published map series such as the Geologic Atlas ofTexas prepared by the Bureau of Economic Geology is acceptable;
(B) adeSCription of the generalized stratigraphic column in the facility area fromthe base of the lowermost aquifer capable of prOViding usable groundwater. or from a depth of 1.000feet, whichever is less. to the land surface. The geologic age. lithology. variations in lithology.thickness, depth. geometry. hydraulic conductivity, and depositional history of each geologic unitshould be described based upon available geologic information. Regional stratigraphic cross-sectionsshould be proVided.
(3) The owner or operator shall prOVide a description of the geologic processes activein the vicinity of the facility. This deSCription shall include:
(A) an identification of any faults and subSidence in the area of the facility. Theinformation about faulting and subsidence shall include at least that reqUired in §330.303(b) and§330.305 of this title (relating (Q Fault Areas and Unstable Areas. respectively);
(B) a discussion of the degree to which the facility is subject to erosion. Thepotential for erosion due to surface water processes such as overland flow, channeling, gullying. andfluvial processes such as meandering streams and undercut banks shall be evaluated. If the fadlity islocated in a low-lying coastal area. historical rates of shoreline erosion shall also be prOVided; and
(C) an identification of wetlands located within the facility boundary.
(4) The owner or operator shall prOVide a deSCription of the regional aqUifers in thevicinity of the facility based upon published and open-file sources. The section shall proVide:
(A) aquifer names and their association with geologic units described in paragraph(2) of thiS subsection;
(B) a deSCription of the composition of the aquifer(s);
(C) a description of the hydraulic properties of the aquifer(s);
(0) informalion on whether the aquifers are under water table or artesianconditions;
(E) information on whether the aqUifers are hydraulically connected;
(F) a regional water-table contour map or potentiometric surface map for eachaquifer. if available;
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(G) an estimate of the rate of groundwater flow;
(H) typical values or a range of values for total dissolved solids content ofgroundwater from the aquifers;
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m identification of areas of recharge to the aquifers within five miles of the site;and
(J) the present use of groundwater withdrawn from aquifers in the vicinity of thefacility. The identification. location, and aquifer of all water wells within one mile of the propertyboundaries of the facility shall be prOVided.
(5) The owner or operator shall provide the results of investigations of subsurfaceconditions at a particular waste management unit in the folloWing reports.
(A) Subsurface investigation report. This report must describe all borings drilledon-site to test soils and characterize groundwater and must include a site map drawn to scale shOWingthe surveyed locations and elevations of the borings. Boring logs must Include a detailed description ofmaterials encountered including any disconllnuities such as fractures, fissures. slickensides, lenses, orseams. Geophysical logs of the boreholes may be useful in evaluating the stratigraphy. Each boringmust be presented in the form of a log that contains, at a minimum. the boring number; surfaceelevation and location coordinates; and a columnar section with text shOWing the elevation of allcontacts between soil and rock layers. desCription of each layer using the unified soil classification.color, degree of compaction, and moisture content. A key explaining the symbols used on the boringlogs and the classification terminology for soil type. consistency. and structure must be proVided.
(i) A sufficient number of borings shall be performed to establish subsurfacestratigraphy and to determine geotechnical properties of the soils and rocks beneath the facility. Othertypes of samples may also be taken to prOVide geologic and geotechnical data. The number of boringsnecessary can only be determined after the general characteristics of a sHe are analyzed and will varydepending on the heterogeneity of subsurface materials. Locations with stratigraphic complexitiessuch as non-uniform beds that pinch oul, vary significantly in thickness, coalesce, or grade into otherunits, will require a significantly greater degree of subsurface investigation than areas with simplegeologic frameworks.
(ii) Borings shall be sufficiently deep to allow identification of the uppermostaquifer and underlying hydraulically interconnected aquifers. Borings shall penetrate the uppermostaqUifer and all deeper hydraulically interconnected aqUifers and be deep enough to identify theaqUiclude at the lower boundary. All the bOrings shall be at least five feet deeper than the elevation ofthe deepest excavation. In addition, at least the number of borings shown on the Table of Borings shallbe drilled to a depth at least 30 feet below the deepest excavation planned at the waste managementunit, unless the executive director approves a different depth. If no aqUifers exist within 50 feet of theelevation of the deepest excavation. at least one test hole shall be drilled (0 the top of the first perennial
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aquifer beneath the site, if sufficient data does not exist to accurately locate it. The executive directormay accept data equivalent to a deep boring on the site to determine information for aquifers morethan 50 feet below the site. Aquifers more than 300 feet below the lowest excavation and where theestimated travel times for constituents to the aquifer are in excess of 30 years plus the estimated life ofthe site need not be identified through borings.
TABLE OF BORINGS
Size of Area in Number of Min. No. of BoringsAcres Borings 30 Feet below the
Elev. of DeepestExcavation
5 or less 2-4 2
5-10 4-6 3
10-20 6-10 5
20-50 10-15 7
50-100 15-20 7-12
More than 100 Determined in consultation with theexecutive director
* The executive director may approve different boring depths if site specific conditions justifyvariances.
(iii) All borings shall be conducted in accordance with established fieldexploration methods. The hollow-stem auger boring method is recommended for softer materials;coring may be reqUired for harder rocks. Other methods shall be used as necessary to obtain adequatesamples for soil testing reqUired in this paragraph. Investigation procedures shall be discussed in thereport.
(iv) The bOring plan, including locations and depths of all proposed borings.shall be approved by the executive director prior to initiation of the work.
(v) Installation. abandonment. and plugging of the borings shall be inaccordance with the rules of the commission.
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(vi) Both the number and depth of borings may be modified because of siteconditions with prior approval of the executive director.
(Vii) Geophysical methods, such as electrical resistivity. may be used withauthorization of the executive director to reduce the number of borings that may be necessary or toproVide additional information between borings.
(Viii) Cross-sections must be prepared from the borings depicting thegeneralized strata at the facility. For small waste management units two perpendicular cross-sectionswill normally suffice.
(ix) A narrative that describes the investigator's interpretations of thesubsurface stratigraphy based upon the field investigation shall be proVided.
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(B) Geotechnical report. This report shall include engineering data that describesthe geotechnical properties of the subsurface soil materials and a discussion with conclusions about thesuitability of the soils and strata for the uses for which they are intended. All engineering tests shall beperformed in accordance with industry practice and recognized procedures such as described below.A brief discussion of engineering test procedures shall be included in the report.
(i) A laboratory report of soil characteristics shall be determined from at leastone sample from each soil layer or stratum that will form the bottom and side of the proposedexcavation and from those that are less than 30 feet below the lowest elevation of the proposedexcavation. As many additional tests shall be performed as necessary to proVide a typical profile ofsoil stratification within the site. No laboratory work need be performed on highly permeable soillayers such as sand or gravel. The samples shall be tested by a competent independent third-partysoils laboratory.
(ii) Permeability tests shall be performed according to one of the follOWingstandards on undisturbed soil samples. Permeability tests shall be performed using tap water or .OSNormal solution of CaS04 • and not diStilled water. as the permeant. Those undisturbed samples thatrepresent the sIdewall of any proposed trench. pit. or excavation shall be tested for the coefficIent ofpermeabIlity on the sample's in-situ horizontal axis; all others shall be tested on the in-situ verticalaxis. All test results shall indicate the type of tests used and the orientation of each tested sample. Allcalculations for the final coefficient of permeability tests result for each sample tested shall beincluded in the report:
(I) constant head with back pressure per AppendiX VII of Corps ofEngineers Manual EMIllO-2-1906. "Laboratory Soils Testing:" ASTM D5084 "Saturated PorousMaterials Using a FleXible Wall Permeameter";
(II) falling head per AppendiX VII of Corps of Engineers ManualEMI I 10-2-1906. "Laboratory Soils Testing":
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(III) sieve analysis for the 200. and less than 200 fraction per ASTM01140;
(IV) Atterberg limits per ASTM 04318;
M moisture content per ASTM 02216.
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(C) A groundwater investigation report. This report must include the following:
(0 the depth at which groundwater was encountered and records of afterequilibI1um measurements in all borings. The cross-sections prepared in response to subparagraph(A) (Viii) of this paragraph must be annotated to note the level at which groundwater was firstencountered and the level of groundwater after equilibI1um is reached or just pI10r to plugging.whichever is later. This water-level information must also be presented on all borings reqUired by thisparagraph and presented in a table format in the report;
(ii) records of water-level measurements in monitor wells. HistoI1c waterlevel measurements made dUring any previous groundwater monitoring shall be presented in a tablefor each well;
(iii) all the information and data reqUired in §330.231(e)(l) of this title(relating to Groundwater MonitoI1ng Systems); and
(iv) an analysis of the most likely pathway(s) for pollutant migration in theevent that the pI1mary barrier liner system is penetrated. This must include any groundwater modelingdata and results as desCribed in §330.231 (e) (2) of this title and must consider changes in groundwaterflow that are expected to result from construction of the facility.
(6) The owner or operator shall prOVide a deSCription of the existing or proposedmonitoring system that meets the reqUirements of §330.231 of this tille. The owner or operator shallalso prOVide engineering draWings of a typical monitoring well and a table of data for all proposedwells that includes the following information for each well: total depth of the well; depth togroundwater; surveyed elevation of the ground surface at the well; surveyed elevation of the top ofeach well casing (or that point consistently used to determine depth to groundwater); depth to "the topand base of the screen; and depth to the top and base of the filter pack.
(e) Attachment 5 - groundwater characterization report. A groundwater characterizationstudy and report is required from owners and operators of proposed MSWLF units or proposed lateralexpanSions except for Soils and Liner Evaluation Reports and Flexible Membrane Liner EvaluationReports covering preViously permitted and approved designs. The report must contain the followinginformation:
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(1) a tabulation of all relevant groundwater monitoring data from wells on site or onacljacent MSWLF unit(s);
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(2) identification of the uppermost aquifer and any lower aquifers that arehydraulically connected to it beneath the facility, including groundwater flow direction and rate, andthe basis for such identification (Le., the information obtained from hydrogeologic investigations of thefacility area);
(3) on a topographic map as required under §330.52(b) (4) (C) of this title (relating toTechnical Requirements of Part I of the Application), a delineation of the waste management area. theproperty boundary, the proposed "point of compliance" as defined under §330.200(d) of this title(relating to Design Criteria), the proposed location of groundwater monitoring wells as required under§330.231 of this title, and, to the extent possible, the information required in paragraph (2) of thissubsection;
(4) a description of any plume of contamination that has entered the groundwater fromthe MSWLF facility at the time that the application was submitted that:
(A) delineates the extent of the plume on the topographic map reqUired under§330.52(b)(4)(C) of this title: and
(B) identifies the concentration of each assessment constituent as defined in§330.235 of this title (relating to Assessment Monitoring Program) throughout the plume or identifiesthe maximum concentration of each assessment constituent in the plume;
(5) detailed plans and an engineering report describing the proposed groundwatermonitoring program to be implemented to meet the requirements of §330.231 of this title;
(6) if the hazardous constituents listed in Table I of §330.241 of this title (relating toConstituents for Detection Monitoring) have not been detected in the groundwater at the time of permitapplication, the owner or operator shall submit sufficient information, supporting data, and analyses toestablish a detection monitoring program that meets the requirements of §330.234 of this title (relatingto Detection Monitoring Program). This submission must address the follOWing items specified under§330.234 of this title:
(A) a proposed groundwater monitoring system;
(B) background values for each monitoring parameter or constituent listed in§330.241 of this title, or procedures to calculate such values; and
(C) a deSCription of proposed sampling, analysis, and statistical comparisonprocedures to be utilized in evaluating groundwater monitoring data;
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(7) if the presence of hazardous constituents listed in Table I of §330.241 of this titlehas been detected in the groundwater at the time of the permit application, the owner or operator shallsubmit sufficient information, supporting data. and analyses to establish an assessment monitoringprogram that meets the requirements of §330.235 of this title. To demonstrate compliance with§330.235 of this tille, the owner or operator shall address the following items:
(A) a descnption of any special wastes preViously handled at the MSWLF facility;
(B) a charactenzation of the contaminated groundwater, including concentrationof assessment constituents as defined in §330.235 of this title;
(C) a list of assessment constituents as defmed in §330.235 of this title for whichassessment monitoring will be undertaken in accordance with §330.233 of this title (relating toGroundwater Sampling and Analysis Requirements) and §330.235 of this title;
(D) detailed plans and an engmeenng report descnbing the proposed groundwatermonitoring system. in accordance with the requirements of §330 .233 of thiS title; and
(E) a descnption of proposed sampling, analysis, and statistical compansonprocedures to be utilized in evaluating groundwater monitoring data; and
(8) if hazardous constituents have been measured in the groundwater that exceed theconcentration limits established in Table 1 of §330.241 of this title, the owner or operator shall submitsufficient information, supporting data, and analyses to establish a corrective action program thatmeets the requirements of §330.236 of this title (relating to Assessment of Corrective Measures) and§330.237 of this title (relating to Selection of Remedy). To demonstrate compliance with §330.236 ofthis title. the owner or operator shall address, at a minimum, the follOWing items:
(A) a characterization of the contaminated groundwater, including concentrationsof assessment constituents as defined in §330.235 of this title;
(B) the concentration limit for each constituent found in the groundwater;
(C) detailed plans and an engineering report describing the corrective action to betaken;
(D) a description of how the groundwater monitoring program will demonstratethe adequacy of the corrective action; and
(E) the permit may contain a schedule for submittal of the information reqUired insubparagraphs (C) and (D) of this paragraph prOVided the owner or operator obtains writtenauthorization from the executive director prior to submittal of the complete permit application.
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(0 Attachment 6 - groundwater and surface water protection plan and drainage plan. Theseplans must reflect locations, details, and typical sections of levees. dikes, drainage channels. culverts,holding ponds. trench liners. storm sewers, leachate collection systems, or any other facllities relatingto the protection of groundwater and surface water. Adequacy of provisions for safe passage of anyinternal or externally adjacent floodwaters should be reflected here.
(1) A drawing(s) shOWing the drainage areas and drainage calculations shall beprovided.
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(2) Cross-sections or elevations of levees should be shown tied into contours. Naturaldrainage patterns shall not be significantly altered.
(3) The lOO-year floodplain shall be shown on this attachment.
(4) As part of the attachment, the follOWing information and analyses must besubmitted for review, as applicable.
(A) Drainage and run-off control analyses:
(i) a deSCription of the hydrologic method and calculations used to estimatepeak flow rates and run-off volumes including justification of necessary assumptions;
(ii) the 25-year rainfall intensity used for facility design including the source ofthe data; all other data and necessary input parameters used in conjunction with the selected hydrologicmethod and their sources should be documented and described;
(iii) hydraulic calculations and designs for sizing the necessary collection.drainage. and/or detention facilities shall be prOVided.
(iv) discussion and analyses to demonstrate that natural drainage patterns willnot be significantly altered as a result of the proposed landfill development;
(v) structural designs of the collection, drainage, and/or storage facilities. andresults of all field tests to ensure compatibility with soils;
(Vi) a maintenance plan for ensuring the continued operation of the collection.drainage. and/or storage facilities. as designed along with the plan for restoration and repair in theevent of a washout or failure; and
(vii) erosion and sedimentation control plan. including interim controls forphased development.
(B) Flood control and analyses.
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(i) Identify whether the site is located within a 100-year floodplain. Indicatethe source of all data for such determination and include a copy of the relevant Federal EmergencyManagement Agency (FEMA) flood map. if used. or the calculations and maps used where a FEMAmap is not available. Information shall also be provided identifying the 100-year flood level and anyother spedal flooding factors (e. g.. wave action) that must be considered in designing. constructing.operating. or maintaining the proposed facility to withstand washout from a 100-year flood. Theboundaries of the proposed landfill facility should be shown on the floodplain map.
(i1) If the site is located within the 100-year floodplain. the applicant shallprOVide information detailing the specific flooding levels and other events (e.g.. design hurricaneprojected by Corps of Engineers) that impact the flood protection of the facility. Data should be thatrequired by §§301.33 - 301.36 of this title (relating to Approval of Levees and Other Improvements) .
(iii) No solid waste disposal and treatment operations shall be permitted inareas that are located in a floodway as defined by FEMA.
(g) Attachment 7 - final contour map. This is a constructed map shOWing the final contour ofthe entire landfill to include internal drainage and side slopes plus accommodation of surface drainageentering and departing the completed fill area plus areas subject to flooding due to a 100-yearfrequency flood. Cross-sections shall be prOVided.
(h) Attachment 8 - cost estimate for closure and post-closure care. The applicant shall submita cost estimate for closure and post-closure care costs in accordance with Subchapter K of this chapter(relating to Closure. Post-Closure. and Corrective Action).
(i) Attachment 9 - Applicant's statement. The applicant. or the authorized representativeempowered to make commitments for the applicant. shall prOVide a statement that he is familiar withthe site development plan and is aware of all commitments represented in the plan, that he is alsofamiliar with all pertinent requirements in thiS chapter. and that he agrees to develop and operate thesite in accordance with the plan. the regulations. and any permit special provisions that may beimposed.
0) Attachment 10 - soil and liner quality control plan. The soil and liner quality control planmust be prepared in accordance with §§330.200 - 330.206 of this title (relating to GroundwaterProtection Design and Operation).
(k) Attachment 11 - groundwater sampling and analysis plan. The groundwater sampling andanalysis plan must be prepared in accordance with §§330.230. 330.231, and 330.233 - 330.242 of thistitle (relating to Groundwater Monitoring and Corrective Action) or §330.239 of this title (relating toGroundwater Monitoring at Type IV Landfills).
(I) Attachment 12 - final closure plan. The final closure plan shall be prepared in accordancewith §§330.250 - 330.256 of this title (relating to Closure and Post-Closure).
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(m) Attachment 13 - post-closure care plan. The post-closure care plan shall be prepared inaccordance with §§330.250 - 330.256 of this title (relating to Closure and Post-Closure).
(n) Attachment 14 - landfill gas management plan.
(1) Owners or operators of all MSWLF units shall ensure that:
(A) the concentration of methane gas generated by the facility does not exceed25% of the lower explosive limit for methane in facility structures (excluding gas control or recoverysystem components); and .
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(B) the concentration of methane gas does not exceed the lower explosive limit formethane at the facility property boundary. For purposes of this section, "lower explosive limit" meansthe lowest percent by volume of a mixture of explosive gases in air that will propagate a flame at 25degrees Celsius and atmospheric pressure.
(2) Owners or operators of all MSWLF units shall implement a routine methanemonitoring program to ensure that the standards of paragraph (1) of this subsection are met.
(A) The type and frequency of monitoring shall be determined based on thefollOWing factors.
(i) soil conditions;
(ii) the hydrogeologic conditions surrounding the facility:
(iii) the hydraulic conditions surrounding the facility;
(iV) the location of facility structures and property boundaries; and
(v) the location of any utility lines or pipelines that cross the MSWLF facility.
(B) The minimum frequency of monitoring shall be quarterly.
(3) If methane gas levels exceeding the limits specified in paragraph (1) of thissubsedion are detected, the owner or operator shall:
(A) immediately take all necessary steps to ensure protection of human health andnotify the executive director, local and county officials. emergency officials. and the public;
(B) within seven days of detection, place in the operating record the methane gaslevels detected and a description of the steps taken to protect human health; and
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(C) within 60 days of detection, implement a remediation plan for the methane gasreleases, place a copy of the plan in the operating record, proVide a copy to the executive director andnotify the executive director that the plan has been implemented. The plan shall describe the natureand extent of the problem and the proposed remedy. After review, the executive director may requireadditional remedial measures.
(4) The executive director may establish alternative schedules for demonstratingcompliance with paragraphs (2) and (3) of this subsection.
(5) The gas monitoring and control program shall continue for a period of thirty yearsafter the final closure of the facility or until the owner or operator receives written authorization toreduce the program. Authorization to reduce gas monitoring and control shall be based on ademonstration by the owner or operator that there is no potential for gas migration beyond the propertyboundary or into on-site structures. Demonstration of this proposal shall be supported by data collectedand additional studies as required.
(6) Gas monitoring and control systems shall be modified as needed to reflectchanging on-site and adjacent land uses. Post-closure land use at the site shall not interfere with thefunction of gas monitoring and control systems. Any underground utility trenches that cross theMSWLF facility boundary shall be vented and monitored regularly.
(7) A landfill gas management plan shall be prepared that includes the follOWing:
(A) a description of how landfill gases will be managed and controlled;
(B) a description of the proposed system(s), including installation procedures andtime lines for installation, monitoring procedures, and procedures to be used during maintenance; and
(C) a backup plan to be used if the main system breaks down or becomesineffective.
(8) Perimeter monitoring network shall be installed in accordance with the follOWingprovisions:
(A) initial monitoring at small MSWLFs and larger MSWLFs that have nohabitable structures within 3,000 feet of the waste placement boundary may consist of perimetersubsurface monitoring around the perimeter of the site using portable equipment and probes. If testresults show the presence of methane gas above 10% of the lower explosive limit, a permanentmonitoring system shall be installed; and
(B) permanent monitoring systems shall be installed on all other MSWLFs.Technical gUidance on monitoring systems may be issued by the executive director.
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Texas Commission on Environmental QualityChapter 330 - Municipal Solid Waste
(9) The monitoring network design shall include provisions for monitoring on-sitestructures, including, but not limited to, buildings. subsurface vaults, utilities. or any other areaswhere potential gas buildup would be of concern.
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(10) All monitoring probes and on-site structures shall be sampled for methane duringthe monitoring period. Sampling for specified trace gases may be required by the executive directorwhen there is a possibility of acute or chronic exposure due to carcinogenic or toxic compounds.
(11) Monitoring frequency shall be determined as follows.
(A) As a minimum. quarterly monitoring is required. The executive director mayrequire more frequent monitoring based upon the factors listed in this section. When more frequentmonitOling is necessary. the executive director shall notify the owner or operator.
(B) More frequent monitoring shall also be required at those locations whereresults of monitoring indicate that landfill gas migration is occurring or is accumulating in structures.
(0) Auachment 15 - leachate and contaminated water plan.
(1) The plan shall proVide the details of the storage. collection, treatment and disposalof the contaminated water, leachate and/or gas condensate from the leachate collection system and/orthe gas monitoring and collection system. where used. Contaminated water is water which has corneinto contact with waste. leachate or gas condensate. This plan shall include the follOWing information:
(A) estimated rate of leachate removal;
(B) capacity of sumps:
(C) pipe material and strength;
(D) pipe network spaCing and grading:
(E) collection sump materials and strength;
(F) drainage media specifications and performance: and
(G) demonstration that pipes and perforations will be resistant to clogging and canbe cleaned or rehabilitated.
(2) Leachate and gas condensate may be disposed of in a MSWLF unit that is designedand constructed with a composite liner system and a leachate collection system that meets therequirements of §330 .200(a)(2) of thiS title (relating to Design Criteria). Contaminated surface waterand groundwater may not be placed in or on the MSWLF unit.
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Texas Commission on Environmental QualityChapter 330 - Municipal Solid Waste
SUBCHAPTER I: GROUNDWATER MONITORING AND CORRECTIVE ACTION§§330.230, 330.231, 330.233 - 330.242
Effective September I, 2003
§330.230. Applicability.
(a) The requirements in this subchapter apply to all municipal solid waste landfill (MSWLF)units. except as prOVided in §330.3(e) of thIs title (relating to Applicability). In §330.239 of this title(relating to Groundwater Monitoring at Type IV Landfills), in §330.240 of this title (relating toGroundwater Monitoring at Other Types of Landfills and Facilities). and in subsection (b) of thissection. Owners and operators of MSWLF units shall comply with the groundwater monitoringrequirements of this subchapter.
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(b) Groundwater monitoring requirements under §§330.231 and 330.233 - 330.235 of this title(relating to Groundwater Monitoring and Corrective Action) may be suspended by the executivedirector for an MSWLF unit if the owner or operator can demonstrate that there is no potential formigration of hazardous constituents from that MSWLF unit to the uppermost aqUifer as defined in§330.2 of this title (relating to Definitions) dUring the active life and the closure and post-closure careperiod of the unit. This demonstration shall be certified by a qualified groundwater scientist andapproved by the executive director. and must be based upon:
(1) site-specific field-collected measurements, sampling. and analysis of physical.chemical. and biologIcal processes affecting contaminant fate and transport; and
(2) contaminant fate and transport predictions that maximize contaminant migrationand consider impacts on human health and the environment.
(c) Owners or operators of new MSWLF units must submit to the executive director adocumented certification signed by a qualified groundwater scientist that the facility is in compliancewith the groundwater monitoring requirements specified in §330.231 and §§330.233 - 330.235 of thiStitle before waste can be placed in the unit.
(d) Once established at an MSWLF unit. groundwater monitoring must be conductedthroughout the active life and post-closure care period of that MSWLF unit as specified in §330.254 ofthis title (relating to Post-Closure Care Maintenance Requirements).
Adopted August 6. 2003
§330.231. Groundwater Monitoring Systems.
Effective September 1. 2003
(a) A groundwater monitoring system must be installed that consists of a sufficient number ofmonitoring wells. installed at appropriate locations and depths, to yield representative groundwatersamples from the uppermost aqUifer as defined in §330.2 of this title (relating to Definitions).
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Texas Commission on Environmental QualityChapter 330 - Municipal Solid Waste
(1) BackgrOlUld wells shall be installed to allow detenninationof the quality ofbackground groundwater that has not been affected by leakage from a unit. A detenninaUon ofbackground quality may include sampling of wells that are not hydraulically upgradient of the wastemanagement area if hydrogeologic conditions do not allow the owner or operator to determine wWchwells are hydraulically upgradient or if sampling at other wells will prOVide a better indication ofbackground groundwater quality than is possible from upgradient wells.
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(2) The downgradient monitoring system must include monitoring wells installed toallow detennination of the quality of groundwater passing the relevant point of compliance as definedin §330.2 of this title. The downgradient monitoring system must be installed to ensure the detection ofgroundwater contamination in the uppermost aqUifer. When physical obstacles preclude installation ofthe groundwater monitoring wells at existing units, the wells may be installed at the closest practicabledistance hydraulically downgradient from the relevant point of compliance as defined in §330.2 of thistitle that will ensure detection of groundwater contamination of the uppermost aqUifer.
(b) The executive director may approve a multi-unit groundwater monitoring system instead ofseparate groundwater monitoring systems for each municipal solid waste landfIll (MSWLF) unit whenthe facility has several units, proVided the multi-unit system meets the requirement of subsection (a) ofthis section and wiJl be as protective of human health and the environment as individual monitoringsystems for each MSWLF unit, based on the follOWing factors:
(1) number, spacing, and orientation of the MSWLF units;
(2) hydrogeologic setting;
(3) site history;
(4) engineering design of the MSWLF units; and
(5) type of waste accepted at the MSWLF units.
(c) The executive director may approve an alternative design for a groundwater monitoringsystem that uses other means in conjunction with monitoring wells to ensure detection of groundwatercontamination in the uppermost aqUifer from an MSWLF unit. The alternative design shall be at leastas protective of human health and the environment as a monitoring-well system as specified in§330.231 (a) of this title (relating to Groundwater Monitoring Systems).
(d) Monitoring wells shall be constructed in accordance with the rules of the commission and§330.242 of this title (relating- to Monitor-Well-Construction-Specifications); Monitoring-weJlconstruction shall prOVide for maintenance of the integrity of the bore hole, collection of representativegroundwater samples from the water-bearing zone(s) of concern, and prevention of migration ofgroundwater and surface water within the bore hole.
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Texas Commission on Environmental QualityChapter 330 - Municipal Solid Waste
(1) Within 30 days of the completion of a monitoring well or any other part of amonitoring system. details of its construction shall be submitted to the executive director and shallinclude, as appropriate, a detailed geologic log of the boring. a deSCription of development procedures.a detailed location map drawn to scale shOWing the relationship of the well to the MSWLF unit andrelevant point(s) of compliance, and any other data obtained dUring installation or construction of thewell or system.
(2) All parts of a groundwater monitoring system shall be operated and maintained sothat they perform at least to design specifications through the life of the groundwater monitoringprogram.
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(e) A groundwater monitoring system. including the number, spadng. and depths ofmonitoring wells or other sampling points, shall be designed and certified by a qualified groundwatersdentist. Within 14 days of the certification. the owner or operator shall submit the certification to theexecutive director and place a copy of the certification in the operating record. The plan for themonitoring system and all supporting data must be submitted to the executive director for review andapproval prior to construction.
(1) The design of a monitoring system shall be based on site-specific technicalinformation thaI must include a thorough characterization of: aqUifer thickness; ground-water flowrate; groundwater flow direction including seasonal and temporal fluctuations in flow; effect of siteconstruction and operations on groundwater flow direction and rates; and thickness, stratigraphy.lithology. and hydraulic characteristics of saturated and unsaturated geologic units and fill materialsoverlying the uppermost aquifer, materials of the uppermost aqUifer. and materials of the lowerconfining unit of the uppermost aqUifer. A geologic unit is any distinct or definable native rock or soilstratum.
(2) Groundwater modeling may be used to supplement the determination of the spadngof monitoring wells or other sampling points and shall consider site-specific characteristics ofgroundwater flow as well as dispersion and diffusion of possible contaminants in the materials of theuppermost aqUifer. Any model used shall:
(A) have supporting documentation that establishes its ability to representgroundwater flow and contaminant transport. as needed;
(B) have a sound set of equations based on accepted theory representinggroundwater movement and contaminant transport;
- --(C) have numerical solution methods that are based on sound mathematical
prinCiples and supported by verification and checking techniques;
(D) be calibrated against site-spedfic field data;
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.\ Texas Commission on Environmental QualityChapter 330 - Municipal Solid Waste
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(E) have a sensitivity analysis to measure its response to changes in the valuesof major parameters. error tolerances. and other parameters;
(F) show mass-balance calculations. where necessary; and
(G) be based on actual field or laboratory measurements, or eqUivalentmethods. that document the validity of chosen parameter values.
(3) The owner or operator of an MSWLF unit or facility shall promptly notify theexecutive director in writing of changes in site construction or operation or changes in adjacentproperty that affect or are likely to affect the direction and rate of groundwater flow and the potentialfor detecting groundwater contamination from an MSWLF unit and that may require the installation ofadditional monitoring wells or sampling points. Such additional wells or sampling points require amodification of the site development plan.
Adopted August 6.2003
§330.233. Ground-Water Sampling and Analysis Requirements.
Effective September 1. 2003
(a) The ground-water monitoring program shall include consistent sampling and analysisprocedures that are deSigned to ensure monitoring results that proVide an accurate representation ofground-water quality at the background and downgradient wells, or other monitoring system, installedin compliance with §330.231 (a)-(c) of this title (relating to Ground-Water Monitoring Systems).
(b) The owner or operator shall submit a ground-water sampling and analysis plan (GWSAP)to the executive director for review and approval prior to commencement of sampling and shallmaintain a current copy in the operating record. The GWSAP shall be a part of the Site DevelopmentPlan (SDP); if necessary, the owner or operator shall obtain a modification of the SDP to incorporatethe GWSAP. The GWSAP shall:
(1) include procedures and techniques for sample collection. sample preservation andshipment. analytical procedures, chain of custody controls, and quality assurance and quality control;
(2) proVide for measurement of ground-water elevations at each sampling point priorto bailing or purging; measurement at an event shall be accomplished over a period of time shortenough to avoid temporal variations in water levels; sampling at each event shall proceed from thepoint with the highest water-level elevation to those with successively lower elevations unlesscontamination is known to be present. in which case wells not likely to be contaminated shall besampled_prior to those that are knownlo be. contaminated unless analternativ.e procedure..isapprovedby the executive director; and
(3) include sampling and analytical methods that are appropIiate for ground-watersampling and that accurately measure hazardous constituents and other monitoring parameters in
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D Excerpts from applicable statutes, TEX. HEALTH & SAFETY CODE
Westlaw~
V.T.C.A., Health & Safety Code § 361.002
cEffective:[See Text Amendments)
Vernon's Texas Statutes and Codes Annotated CurrentnessHealth and Safety Code (Refs & Annos)
Title 5. Sanitation and Environmental Quality (Refs & Annos)Subtitle B. Solid Waste, Toxic Chemicals, Sewage, Litter, and Water (Refs & Annos)
"Ill Chapter 361. Solid Waste Disposal Act (Refs & Annas)"iii Subchapter A. General Provisions (Refs & Annos)
.. § 361.002. Policy; Findings
Page 1
(a) It is this state's policy and the purpose of this chapter to safeguard the health, welfare, and physical propertyof the people and to protect the environment by controlling the management of solid waste, including accountingfor hazardous waste that is generated.
(b) The storage, processing, and disposal of hazardous waste at municipal solid waste facilities pose a risk topublic health and the environment, and in order to protect the environment and to provide measures for adequateprotection of public health, it is in the public interest to require hazardous waste to be stored, processed, and disposed of only at permitted hazardous industrial solid waste facilities.
CREDlT(S)
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1990, 71st Leg., 6th C.S., ch. 10, art. 2,§ 1, eff. Sept. 6, 1990.
Current through Chapters effective immediately through Ch. 41 of the 2011 Regular Session of the 82nd Legislature
(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
EXHIBIT
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Health & Safety Code § 361.087
cEffective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated CurrentnessHealth and Safety Code (Refs & Annos)
Title 5. Sanitation and Environmental Quality (Refs & Annos)Subtitle B. Solid Waste, Toxic Chemicals, Sewage, Litter, and Water (Refs & Annos)
"Ii Chapter 361. Solid Waste Disposal Act (Refs & Annos)"IiI Subchapter C. Permits
.. § 361.087. Contents of Permit
A permit issued under this subchapter must include:
Page I
(I) the name and address of each person who owns the land on which the solid waste facility is located and theperson who is or will be the operator or person in charge of the facility;
(2) a legal description of the land on which the facility is located; and
(3) the terms and conditions on which the permit is issued, including the duration of the permit.
CREDIT(S)
Acts 1989, 71st Leg., ch. 678, § I, eff. Sept. 1, 1989.
Current through Chapters effective immediately through Ch. 41 of the 20II Regular Session of the 82nd Legislature
(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
E February 1, 2011 Final Order (CR 1315)
CAUSE No. D-I-GN-09-001766
BK11042 PG1341
TEXAS COMMISSION ONENVIRONMENTAL QUALITY andWILLIAMSON COUNTY, TEXAS,
Defendants 261 ST JUDICIAL DISTRICT
"tell:::ltllOXU$-~IN THE DISTRICT COURT~ >..........ell!:::
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TRAVIS COUNTY, TEXAS
§§§§§§§§§§§§§§
DC
v.
HERITAGE ON THE SAN GABRIELHOMEOWNERS ASSOCIATION,HUTTO CITIZENS GROUP, MOUNTHUTTO AWARE CITIZENS,MAHLON ARNETT, ROBBI ARNETT,TJFA, L.P., and JONAH WATER S.U.D.,
Plaintiffs
Notice sent: Fin Il1tertocutory None
Disp PartJes:-::;:t-"-"'---:-_-,--__
Dlsp code: @/ CLS 4' I 8Redact pgs:. _
JudgeJ..LIl-.....17c........._ clerk._ML.....'--_
FINAL ORDER
On December 16,2010, the Court heard Plaintiffs' appeal of the Order by the Texas
Commission on Environmental Quality Granting the Application for Permit No. MSW-1405 to
Williamson County, TCEQ Docket No. 2005-0337-MSW, and SOAH Docket No. 582-06-3321.
The Court OVERRULES Plaintiffs' points of elTor and AFFIRMS the decision of the
Commission. The Commission's application and interpretation of its rules and the enabling
statute are reasonable and subject to deference by this Court. Substantial evidence supports the
Order of the Commission. The Court finds no reversible error in the Commission's action.
iiiiiiiiiiiiiii----iiiiiiiiiiiiiiiAll relief not granted herein is DENIED.
51Signed this / day of FeblUary 20 II.
-~---iiiiiiiiiiiiiii
E
1315 1315