Cause No. 03- ll-00277-CV

IN THE COURT OF APPEALSFOR THE THIRD JUDICIAL DISTRICT

AUSTIN. TEXAS

NORTHEAST NEIGHBORS COALITION andTJFA, L.P.,

Appellants,V.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY andBFI WASTE SYSTEMS OF NORTH AMERICA, LLC.

Appellees.

on Appeal from the 126* District court of Travis County, TexasHon. John K. Dietz, Judge PresidingTrial Court No. D-l-GN-09-004113

RESPONSE BRIEF OF APPELLEEBFI WASTE SYSTEMS OF NORTH AMERICA, LLC.

TO INITIAL BRIEF OF APPELLANT NORTHEAST NEIGHBORS COALITION

Paul G. GosselinkTexas Bar No: 08222800

Jeffrey S. ReedTexas Bar No. 24056187

LLOYD GOSSELINK ROCHELLE & TOWNSEND, P.C.816 Congress Ave., Suite 1900

Austin, Texas 7870 t(512) 322-5800

(s12) 472-0s32 (fax)

ATTORNEYS FOR APPELLEEBFI WASTE SYSTEMS OF NORTH AMERICA, LLC.

August 20,2012

Plaintiffs/Appella nts :

NORTHEAST NEIGHBORSCOALITION

TJFA, L.P.

D efen dants/Ap pellees :

Texas Commission onEnvironmental Quality

BFI Waste Systems ofNorthAmerica, LLC.

Giles Holdings, L.P. (Intenrenor)

LIST OF PARTIES

Plaintiffs'/Appellants' Attorneys :

James A. HemphillGraves Dougherty Hearon & Moody, P.C.401 Congress Ave., Suite 2200Austin, Texas 7870L

James A. HemphillGraves Dougherty Hearon & Moody, P.C.401 Congress Ave., Suite 2200Austin, Texas 78701

Erich M. BirchAngela K. MoormanBirch, Becker & Moorman, LLP4601 Spicewood Springs RoadBldg.4, Suite 101Austin, Texas 78759

Atto rneys for Defend ants/Appellees

Nancy E. OlingerCynthia WoelkDaniel C. WisemanOffice of the Attorney GeneralP.O. Box 12548Austin, Texas 787I1,

Paul G. GosselinkJeffrey S. ReedLloyd Gosselink Rochelle & Townsend, P.C.816 Congress Ave., Suite 1900Austin, Texas 787AL

Paul M. Terrill ilIThe Terrill Firm, P.C.810 W. 10ft StreetAustin, Texas 78701

TABLE OF CONTENTS

LIST OF PARTIES.... ......r.*........,.. .......... iTABLE OF CONTENTS.............'..........,. ...1.....+... .......... iiINDEX OF AUTHORITIES ... ivABBREVIATIONS AND RECORD CITATIONS ....r...r.e.. ......... viSTATEMENT REGARDING ORAL ARGUMENT.................. ......... viiISSUES PRESENTED........... ............r.........+r+r ........... viiiI. STATEMENT OF FACTS .. ..,...... I

A. Background .,,...,.,,.r.e r.,..+o,,.,.re ..,.,.,.... ..+,....r...* ...............1

B. The Landfill Design ........ r....... ..........2

C. Planned Expansion and Heightened Scrutiny of the Facility ........3

D. BFI's Commitments and the Non-Opposition of the City of Austin, TravisCounty and CAPCOG. ......r.r.... ...............3

E. The Competitive Market for V/aste Disposal Services in Travis County ........4

F. The Evidentiary Hearing and Credibility of the lVitnesses. ....... ..............5

II. STANDARD OF REVIEIr ......... 8

ru. suMMARy OF ARGUMENT............,......... .e........... .... 10

IV. ARGUMENT AND AUTHORITIES..........I'I' ... 12

A' Issue I: Does the 'osubstantial evidence" standard of review requireexamination of the acfual content of evidence? (Responsive to NNC'sPoint of Error No. 1)...... ............. r.r.......... ...,......12

B. Issue II: The TCEQ's finding of land use compatibility was supported bysubstantialevidence.(ResponsivetoNNC'sPointofErrorNo.2)

l. Land Use ...14

a) Applicable Law ...+*....... ..... 14

b) Regulatory Requirements.... ........ 16

(1) Zoning at the Site and in the Vicinity .........+...r........r.r........ 16

(2) character of surrounding Land uses within one Mile. .. 17

(3) Growth Trends of the Nearest Community and Directions of MajorDevelopment ..... l g

(4) Proximity to Residences and Other Uses. .............. 19

(5) other Factors Associated with the public Interest., ........20

(g) Odor and Landfill Gas Management ............. ..........21

(i) OdorControlPlanr..*.r................... ..................22

(ii) Admitted Odor Violations ........ ....+r....r.. ....22

(iii) Odor Evidence .......... ,..r... ...24(iv) The Landfill Gas Management Plan .......... 3l

2. Windblown Waste, Mud on Roads, Noise, Lighting, Nuisance andOther Factors ......... r. +..... r........ r. * r.... +.......... 3 I

3. NNC Mischaracterizations .,.,.r.....,. ........32

4. Greg Guernsey and Joe Word...........r...,.........r.,....e...ri......+r.........+..r..............34

5. Land Use Conc1usion............... ..,36

C. Issue III: The TCEQ's approval of 2417 landfill operations was supportedby substantial evidence. (Responsive to NNC Point of Error No. 3).. ..........37

1. NNC's Lack of Evidence ..*......... ......j72. Evidence in Support of 24/7 Hours of operation ....1...+..a+ ........39

3. The MSW Rules ....... r.........r.+ ............. ............40

4. The Burdens of Proof and Production.... ......... ..............42

5. Policy Considerations 1...... .....or....e. ..,...,. ......, ........4j

6. Operating Hours Conclusion ....... ....r.r...... .......44

D. Issue IV: The TCEQ's finding of "no substantial alteration of naturaldrainage patterns" was supported by substantial evidence. (Responsive toNNC Point of Error No. 4) ........ ...44

1. Drainage Evidence. c....., ..........44

2. Alleged Surprise .........r... .......4g

v. CONCLUSION AND pRAyER..............a.r...... ............,...r............er............ 50

u. CERTIFICATE OF SERVICE .......+r.r.......... ..... 5luI.APPENDrX... ........... s2

lll

INDEX OF'AUTHORITIES

Cases

Alamo Express, Inc. v. Union City Transfer, 309 S,W.zd 815, 523 (lgiSl. ......... g

BFI v. Martinez Environmental Group, 93 ,S. W.sd 570 (Tex. App-Austin 2003, pet.denied)

City of Waco v. Texas Comm'n on Envt'l Quality, 2010 l4/L 3dZgBZT (Tex.App.-Austin, Sept, 17, 2010, no pet.),...... ........ g

Fireman's & Policeman's Civil Sertt. Comm'nv. Brinlvneyer, 662 S.W.zd g53, g1d(Tex. 1984) . I0

FPL Farming Ltd. v. Texas Natural Resource Conservation Commission, 203 WL247183 (Tex. App - Austin 2003) .. 40

Lewis v. Metropolitan Savings and Loan Assn., 550 S.W.zd I I, I3 (Tex. IgTT) ...... I0

Rich v. olah, 274 S.W.3d 878, 884 (Te*. App,-Dallas 2008, no pet.) ......... 6

Sanchez v. Texas State Bd. of Medical Exam'rs, 229 S.l4/.3d 4gB, SI0 (Tex.App.-Austin 2007, no pet.) (citing cases) .. g, I0

Suburban Utility Corp. v. P.U.C., 652 S.w.zd JSB, J64 (Tex. Igss) ... I0

Texas Health Facilities Comm'n v. Charter Medical - Dallas, Inc., 665 S.W.Zd 44d,452 (Tex. 1984) (citing Gerstv. Nixon, 4II S.W.zd 350, 354 (Tex. 1966) ..... g, I0

Texas State Bd. of Med. Exam'rs v. Schffiy, 949 S.W.zd 431, 437 (Tex.App.-Austin1997, pet. denied) .... I0

Regulations

30 Tex. Admin. Code $ -305. 66(c). .. 13, 14

30 Tex. Admin. Code g -?-?0. 53(a) ..,.,... 13

3A Tex. Admin. Code g -330. 53(a)(l).. .. 14

30 Tex. Admin. Code $ i-r0. 53(b)(7).. ... I j, 14, 16

30 Tex. Admin. Code g 330. 53(b)(S).. ... I S, 14

30 Tex. Admin. Code S 3-?0. s3(b)(8)(A)-(E) 16, 20

IV

30 Tex. Admin. Code $ 330. 56(f)(4)(A)(iv) .. 44, 45

30 Tex. Admin. Code g 330.63.. .... 42

30 Tex. Admin. Code f 125(b) ....... Zz

30 Tex. Admin. Code gl33(a) ....... 22

Statutes

Tex. Health e Salbty Code Ann. f 3dt.1dg . ...... I J

Tex. Health & Safety Code Ann. g -?6/. 089 ....... I jTex. Health & Safety Code Ann. f 361.089 . ....... 14

Other Authorities

29 Tex. Reg. 11070 Nov, 26, 2004).... ....,.. 4I

ABBREVIATIONS AND RECORD CITATIONS

The following abbreviations and notations are used in this Brief:

AR csARrul" refers to the Administrative Record and the volume number. Byway of example, AR34 refers to Volume 34 of the Administrative Record.Specific documents, exhibit numbers or hearing transcript page numbersare also included with cites to the record. By way of example, AR_, BFIExhibit JVf-l refers to the pre-filed testimony of John Worrall, and AR32,Tr. At 514 refers to page 514 of the hearing transcript.

CR References to the one-volume Clerk's Record. The citation to CR will befollowed by the page(s) being cited, e,g. CR at 154-55.

NNC Brief References to Brief of Appellant NNC filed the 5th day of July, 201 1 inthe Court of Appeals for the Third Judicial District, Austin, Texas. Thecitation to NNC Brief will be followed by the page(s) being cited, e.g.NNC Brief at 15-16.

TJFA Brief References to Brief of Appellant TJFA, L.P. filed the 5th day of July,201 1 in the Court of Appeals for the Third Judicial District, Austin,Texas. The citation to TJFA Brief will be followed by the page(s) beingcited, e.g. TJFA Brief at 15-16.

NNC

TJFA

TCEQ

BFI

PFD

Appellant, Northeast Neighbors Coalition.

Appellant, TJFA, L.P.

Appellee, Texas Commission on Environmental Quality.

Appellee, BFI Waste Systems of North America, LLC.

The May 8, 2009 Proposal for Decision in this matter issued byAdministrative Law Judge William G. Newchurch (AR16, document202).

TCEQ Order The September 21, 2009 final Order in this mafier issued by the TexasCommission on Environmental Quality (AR17, document 216).

v1

STATEMENT REGARDING ORAL ARGUMENT

BFI respectfully requests oral argument.

vn

ISSUES PRESENTEI)

I. Does the "substantial evidence" standard of review require examination of theactual content of evidence?

II. The TCEQ's finding of land use compatibility was supported by substantialevidence.

m. The TCEQ's approval of 2417 landfill operations was supported by substantialevidence.

ry. The TCEQ's finding of "no substantial alteration of natural drainage patterns" wassupported by substantial evidence.

v11l

STATEMENT OF FACTS

Of the 26 issues referred to SOAH by the TCEQ in this solid waste permitting

case, only three are the subject of this substantial evidence appeal. After considering all

of pre-filed testimony and exhibits, nine days of testimony, a 2,294 page hearing

transcript, and post-hearing briefing, the Administrative Law ludge (ALJ) issued a

thoughtful and comprehensive PFD. After considering the ALJ's findings and

recommendations, the TCEQ issued its Order on September 14, 2009 granting BFI a

permit to expand the Sunset Farms Landfill. The Honorable John Dietz affirmed that

Order on March 30, 201l.

A. Backgroun4

The Sunset Farms Landfill ("Sunset Farms" or the "Landfill") is located in east

central Travis County. Sunset Farms opened in 1982.1 The Austin Community Landfill

("ACL"), operated by Waste Management, is located immediately to the south of Sunset

Farms. ACL has been in continuous operation since the 1970's. Immediately south and

west of ACL is the former Travis County Landfill, which began operations in the 1950's.

Applied Materials' is located immediately east of the landfills. The land immediately

north of Sunset Farms is agricultural. The property immediately west of Sunset Farms is

open land, although part of that property has been leased for a telecommunications tower.

Sixty-two percent of the land within one mile Sunset Farms is characterized as open.

Twenty-one percent is characterized as industrial, and only II% is residential.z It is

t ARlg, BFI Exhibit RS-l at 9; AR22, BFI Exhibit Jw-l atzl.' ARII,BFI ExhibirJW-1 atlT-18; TCEQ Order at43,fl350.

significant that 89% of the residences were built after BFI began operations in 1982.3

B. The Landfill Desisn

As part of the design of this expansion project, BFI retained three consultants

whose collective job was to create a visual design for the Landfill that would be as

compatible with the area as possible, even at the expense of landfill volume. The three

consultants were: (l) Peter Brown, who brought a civic design perspective to the

project;o (Z) Donna Carter, who designed a profile for the Landfill that simulates the

natural land masses in this area and recommended "painting" the landfill upon closure

with native plants and wildflowers;5 and (3/ John Worrall, who, in addition to serving as

BFI's primary land use expert, prepared computerized visual analyses showing how the

Landfill would only be minimally visible or totally invisible from a variety of area

locations.6

The resultant design limited the vertical expansion to only 7 5 feet above the

previously permitted height on the western side of the Landfill and only 50 feet on the

eastern side. A proposed lateral expansion to the north was abandoned, and I I already-

permitted acres in the northeast corner were removed from the footprint.T All of these

decisions and actions resulted in: (l) the landfill expansion area being farther away from

receptors, and (2) the buffer zone area between the waste and the receptors being

' AR22, BFI Exhibit Jw-l at l B &, zt.4 Id. at 7. Dr. Brown traditionally represents protestants. He was involved partially to provide thatcritical perspective.' PFD at 102-03; AM2, BFI Exhibit DC-l at 6 &.10-13.u .ilR2l,BFI Exhibit Jw- | at 6-7 &. z6-29;pFD at 102-03.

' Id. at l7-lB.

expanded.s Thus, while it was possible to engineer an application for a much larger

landfill which would have resulted in a significantly greater disposal capacity and a

longer life, BFI instead applied for this more compatible version. For example, an initial

design proposed an expansion to a maximum height of 900 feet above mean sea level

(o'msl") and a capacity of 26 million cubic yards, whereas the approved two-tiered design

has a maximum height of 775 feet msl and a capacity of 10,630,000 cubic yards.e

C. Planned Expa4sion and Heiehtened ScrHtinv of the Facilitv.

BFI's plans to expand Sunset Farms date back to 2000. Ever since BFI's plans

became known to the public in the 2000-01 time frame, the proposed expansion drew an

intense amount of attention at the City, County and State level. Every step of the

expansion process was challenged by vocal, well-org anized and well-funded opponents

whose challenges have been both legal and political in nature. Well-attended public

hearings and meetings before the Austin City Council, the Travis County Commissioners

Court and the Capital Area Council of Governments ("CAPCOG") occurred frequently

throughout the 2001-09 time frame.

D. BFIos Commitments and the Non-Oppgsition of the Citv of Auqtin.

In the course of its decade-long effort to secure a final permit for this expansion,

BFI engaged in extensive negotiations with the City of Austin and Travis County. BFI

made numerous commitments to the Cify and County which resulted in a written

agreement with the City and conditions in the TCEQ permit. Foremost is BFI's

t AR22, BFI Exhibit Jw-T at l-2.n ARlg, BFI Exhibit RS-l at 17-1g.

commitment to cease accepting waste at Sunset Farms by November 1,2015.10 This is

an exceptionally unique and substantial concession. BFI is not aware of any other

Additionally, as part oflandfill in Texas that has agreed to closure on a date certain.

these negotiations, BFI agreed to not expand the landfill laterally or dig it deeper.I I

The November 1 , 2015 closure date, coupled with a no-transfer-station agreement

and many other commitments,lz resolved Travis County's concerns regarding the

expansion, as well as those of CAPCOG.I3 As a result of these commitments, the City

and the County withdrew their opposition.

E. The Competitive Market for \ilaste Disposal Serviqeq in_Travis Countv.

BFI, Waste Management, and Texas Disposal Systems ("TDS") (and their

corporate affiliates) are competitors in the waste collection, hauling and disposal

businesses in the Central Texas market. This fact - especially the fact that TDS is a

competitor of BFI in this market permeated the administrative hearing. This is

reflected in the ALJ's finding that:

TJFA is an affiliate of its [BFI's] competitors, TDS and TDSL. He alsofinds that TJFA's participation in this case was a transparent attempt by

to pFD at T; AR19, BFI Exhibit RS-1 at 14,zl &,96; AR20, BFI Exhibit RS-42.1r PFD at 6.tt

AR20, BFI Exhibit RS-42; see AR3?, Tr. at 2046-47 &, 2073. In addition to these commitments, BFI hasagreed to the following other design and operational enhancements: adding 180 gas wells to control odors;stopping recirculation of leachate; removing the liquid waste stabilization basins; adding a wheel wash facility;rejecting liquids which do not pass the paint filter test; using odor control canisters and misters; prohibiting theuse of altemate daily cover; adopting an odor management plan; installing additional landscaping; conductingweekly litter inspections of all roads; routinely sweeping or washing area roadways; doing no furtherexcavation of the Landfill footprint, "painting" the landfill, extensive erosion and sedimentation controls andlimiting truck traffic on certain roads. See BFI's permit and Exhibit 1 in the appendix, the agreement with theCity of Austin. Most of these enhancements help control odors.13 These concessions resulted in the issuance of a Conditional Conformance Letter by the Capital AreaPlanning Council of Governments (CAPCOG). BFI has agreed to each of the terms in CAPCOG's leffer;Id. at 7; ARl9, BFI Exhibit RS-33.

[TDS's and TDSL's co-owner] Mr. Gregory to delay, complicate, increasethe cost of ald with luck defeat BFI's application so as to gain a businessedge on BFI.la

TJFA initially came looking for a fight, purchasing nine acres of undeveloped land

to the northeast of the Sunset Farms landfill for the express purpose of enabling it to

claim affected party status and oppose the application. 15 This is a technique which TIEA

has used to achieve protestant party status in four administrative proceedings that all

involved solid waste applications filed by TDS's competitors.l6 The fact that TJFA's

appellate counsel now represents NNC re-confirms that TJFA remains a real party in

interest. This is very important contextually because of the potentially beneficial effect

on TDS' business if the challenge to BFI's operating hours is successful.

F. The Evidentiary Hgarins and Credibilitv of the Witnesses,

The hearing on the merits was held between January 20-30, 2009. The record in

this case is well-developed. It includes over 975 pages of pre-filed testimony from 37

different witnesses;247 pre-flrled hearing exhibits and 86 other hearing exhibits; a 2,294

page hearing transcript; and several hundred pages of post-hearing briefing.

BFI's direct case included the testimony of three land use experts (John Worrall,

Charles Heimsath, and Donna Carter). In addition, portions of BFI representative Brad

Dugas's testimony involved land use. No land use experts were presented by NNC or

TJFA.IT The City put on Greg Guernsey and Joe Word, who were cross-examined about

to Id. at rzg.tt Id. at 9 & r2B.t6 Id. at 9; AR36, Tr. at 1695-96.17 The protestants clearly made the decision to focus their challenges on issues other than land use. Theprotestants put forth three technical expert witnesses, but no land use experts.

land use issues. NNC presented testimony of local landowners three of whom,

Williams, Wilkins and McAfee, were not residents of the area. The focus of these

witnesses' testimony was to complain about past historical operations. NNC's total

testimony on land use comprised only I44 pages of the 2,294 page transcript.ls

The ALJ was tasked with weighing the credibility of the several classes of

witnesses presented: BFI's experts, the TCEQ's experts, experts from the City and the

County, and Protestant's experts and lay witnesses. The ALJ did what all good judges

must do and which only triers of fact can do: he attentively listened to the witnesses and

made judgments regarding each witness' credibility when weighing the evidence.tn The

ALJ devoted multiple pages of his PFD to evaluating the credibility of the witnesses,

including a specific section entitled "'Witnesses, Qualifications and Credibility".20 The

ALJ's PFD reflected his view that the various witnesses' credibility ran the gamut. He

noted that NNC's witnesses were credible in their feelings while, at the other end of the

spectrum, he harshly criticized portions of the testimony of two of the protestants'

experts' testimony. He specifically concluded that "Dr. Kier and Mr. Chandler had no

reasonable and intellectually honest basis for claiming that BFI's liner was leaking".2l

Ultimately, with regard to one of Dr. Kier's opinions, the ALJ concluded that his

18 AR36, Tr. at 1631-80 & AR37, Tr. at 1946-2041.re See Rich v. Olah,274 S.W.3d 878, 884 (Tex. App.-Dallas 2008, no pet.) ("the trial court is the solejudge of the credibility of the witnesses, assigns the weight to be given their testimony, ffi&y accept orreject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony...[t]his Court is not a fact finder and we may not pass upon the credibility of the wifiresses or substitute ourjudgment forthat of the trier of fact.") (internal citations omitted).to PFD at 8-11.2t Id. at 30.

testimony constituted'Junk science."22 BFI points out these two ends of the spectrum to

highlight that the ALJ listened and separately evaluated each and every one the witnesses

credibility. He never ignored any testimony.

Some of the testimony set out in NNC's brief is misleading. First, it is important

for the Court to realize" as the ALJ realized. that NNC's witnesses made no distinction

between the operations at ACL and at Sunset Farms when they testified about the

problems they perceived. The distinction is important because many of the reported

problems were frequently caused by ACL. This fact was reflected by the TCEQ's 2004

enforcement order where BFI was fined $28,000 while ACL was fined 5224,200 for the

same time periods.

Second, BFI has never represented that it intended to close the landfill "in a matter

ofjust a few years" to anyone; never in a filing with the TCEQ, a public meeting, a letter

or other colrespondence or an informal comment. The idea that the landfill was soon to

close was either imagined or was based on the statement of someone else.

Third, the testimony by Jeremiah Bentley o'that the runoff from the site is

destroying" the backyard of residences on the west side of the landfill cannot be correct

because there are no residences on the west side. There is only open land, agricultural

land and a telecommunications tower.

Fourth, the suggestion that the runoff from the landfill is "ten times worse than

before - after the last height increase by BFI" - does not seem credible. The last

permitted height increase by BFI occuffed pursuant to its 1994 permit amendment. No

" Id. at3'.

complaints about runoff occuffed until 2007 .

Fifth, three of the NNC's own witnesses acknowledged that the odors had become

less frequent23 or have diminished sin ce 2004t0 or have gotten better because BFI is

covering their waste more rapidly.2s

The ALJ did not ignore any of the evidence, as NNC contends. He evaluated the

evidence he heard and the credibility of the witnesses, and reached a decision that is well

supported by the evidence in the record. The point of the above examples is to show that

there is other inconsistent (in some cases directly controverting) evidence regarding the

issues raised bv NNC in its Statement of Facts.

NNC does not contend that the ALJ based his decision on any irrelevant evidence

or that it was prevented from presenting any relevant evidence. Instead, NNC simply

disagrees with the ALJ's evaluation of the evidence. As more fully explained in the rest

of this brief, the ALJ found the evidence presented by BFI, the TCEQ and, for certain

issues, the City and the County and even TJFA more persuasive.

IL STANDARI} OF REVIEW

The legal issue before this Court is whether there is substantial evidence in the

record to support TCEQ's approval of BFI's application to expand the Sunset Farms

landfill. BFI's burden in the administrative hearing below was to demonstrate that its

t' Mr. Robert Andrews testified about the frequency and strength of the odors. He stated: "I can't reallysay that there was any time period that it noticeably changed. It's just that as this issue has beendiscussed and talked about, my recollection is that over the years, it has gotten less frequent. And evenwhen we do smell it, it is, most of the time, less noticeable than it was in earlier years, but there are timeswhen it was still just as significantly noticeable." AR36, Tr. at 1659.2a As the ALJ found: "Mr. Wilkins concedes that the odors have diminished since 2004 but stated they are stillthere when the wind blows fnrm the east." PFD at 48.25 Testimony of Mr. Delmer Rogers AR36, Tr. at 1670.

proposed design and proposed operational plans satisfied the relevant TCEQ regulations

by a preponderance of the evidence. The ALJ and TCEQ concluded BFI met its burden

of proof on all issues. Judge Dietz affirmed the TCEQ's decision. NNC has not alleged

any special procedural errors or other errors of law. It has exclusively raised an

evidentiary challenge subject to substantial evidence review.

As this Court well knows, the case law interpreting substantial evidence appeals

under $200I.I74 of the Administrative Procedure Act is founded on deference to the

administrative agency and the ALJ because of their subject matter expertise and because

they were able to evaluate the credibility of the witnesses. This concept has been

expressed by multiple courts in multiple ways, Upon review the decision of the agency

must be upheld if some reasonable basis exists in the record for the action taken by the

agency.tf On administrative appeal, courts are to presume that the agency decision is

supported by substantial evidence, and the burden is on the contestant to prove

otherwise.tt The court may not substitute its judgment for that of the agency, and may

consider only the record on which the agency based its decision.zs Although substantial

evidence is more than a mere scintilla,ze the evidence in the record actually may

preponderate against the decision of the agency and nonetheless amount to substantial

26 Texas Health Facilities Comm'nv. Charter Medical - Dallas, 1nc,,665 S,W.2d446,452 (Tex. 1984)(citing Gerst v. Nixon,4l l S.W.2d 350, 354 (Tex. 1966).27 City of Wsco v. Texas Comm'n on Envt'l Quality,2010 WL 3629827 (Tex.App.-Austin, Sept. 17,2010, no pet.).28 Sanchez v. Texas State Bd. of Medical Exam'rs, ?29 S.W.3d 498, 510 (Tex.App.-Austin 2A07, no pet.)(citing cases).

" Alamo Express, Inc. v. Llnion City Transfer,309 S.W.2d 815, 823 (195S).

evidence.3O The agency determines the meaning, weight, and credibility to assign

conflicting evidence.3t A court may not set aside an agency decision because testimony

was conflicting or disputed or because it did not compel the agency's decision.3z Thus,

the agency's action will be sustained if the evidence is such that reasonable minds could

have reached the conclusion that the agency must have reached in order to justiff its

action.3t As the substantial evidence review case law makes clear, NNC's hurdle in this

administrative appeal is not easy to overcome -- particularly in light of the abundance of

evidence in the record supporting the agency's decision in this case.3a

IIL SUMMARYOFARGUMENT

This is a standard substantial evidence appeal involving only three of twenty-six

issues referred to SOAH as part of BFI's application to expand its Sunset Farms Landfill.

It is very similar to the many substantial evidence appeals this Court has decided.35

There are no effors of law alleged and no suggestion that relevant evidence was excluded

or irrelevant evidence considered.

In an apparent effort to set this case apart, Appellant, Northeast Neighbors

Coalition (NNC) asserts that, although there is an abundance of evidence in the record,

30 Lewis v. Metropolitan Savings and Loan Assn.,550 S.W.zd I l, 13 (Tex. 1977).3r Sanchez,229 S.W.3d at 511 (citingTexas State Bd. of Med. Exam'rs v. Schffiy,g4g S.W.2d431,437(Tex.App.-Austin 1997, pet. denied)).32 /d. (citing Fireman's & Policeman's Civil Serv. Comm'n v. Brinhneyer,662 S.W.2d953,956 (Tex.1e84)).33 Charter Medical,665 S.W.2d at 453 (citing Suburban tJtility Corp. v. P.U.C.,652 S.W.2d 358, 364(Tex. 1983)).34 Even NNC acknowledges that "BFI presented a large quantrty of evidence" (NNC Brief p. 25) which,by apparent admission, is more than a mere scintilla, and accordingly, sufficient to support the TCEQ'spermit issuance.

" It should also feel familiar to the Court in that it is part of the fourth appeal of a landfill permit issued toa competitor of TDS/TDSL.

10

the content of BFI's evidence is somehow not substantial. To the contrary, the ALJ,

TCEQ and District Court found BFI's evidence to be on point, substantive, and to satisff

BFI's burden of proof. NNC has the burden to establish that the District Court in

concluding that the Order of the TCEQ was supported by substantial evidence abused its

discretion. That burden is very very difficult to overcome in any case, and impossible to

overcome based on the extensive record in this case. NNC did not sustain its burden.

The TCEQ's grant of this permit to BFI should be upheld.

NNC presented no expert testimony on any issue and virtually notestimony at all on the operating hours issue.

All of the experts agreed that BFI met its burden on the drainageissue, including the expert presented by TJFA.36

I NNC's argument on the land use issue is tied to the contentions of asmall group of neighbors who are opposed to the expansion that pastodor problems have not be satisfactorily resolved. The ALJ andTCEQ, after considering the neighbors' testimony and that of BFI'sexperts, and evaluating the credibilify of those witnesses disagreedand concluded odor was not a continuing problem. Equallysignificant is the fact that, even if odor was a problem, it is only oneof the many sub issues that must be evaluated within the broaderissue of land use compatibility.

The ALJ and TCEQ are vested with the discretionary responsibility to weigh and

balance all of the sub issues and to reach and overall conclusion on the land use issue.

For both of these reasons, the decision of the TCEQ on land use was upheld by the

District Court.

NNC simply disagrees with the outcome. The District Court did not abuse its

discretion. The complaints of NNC should be ovemrled.

'u NNC is now represented in this appeal by the same counsel that is representing TJFA.

l1

IV. ARGUMENT AND AUTHORITIES

A. Issue I: Iloes the 6'substantial evidence" standard of review require

Point of Efror No. L)

Of course it does. The actual content of the evidence adduced by BFI in this case

was on point, substantive and substantial.

B. Issue II: The TCEQjs findins of land use comnatibility was supported

NNC has focused its challenge to the Commission's determination that the Sunset

Farms landfill is a compatible land use on the testimony of various neighbors that the

landfill continues to present odor problems. It mistakenly characterizes this testimony as

uncontroverted.

There are several reasons for the Court to conclude that the ALJ's/TCEQ's

decision that BFI met its burden of proof on the land use issue and that substantial

evidence exists in the record. First, even if NNC's contention is true (which it is not), it

would not oomandate" a determination that the landfill would be an incompatible land use

as asserted by NNC. There are many components within a land use determination. It is

much broader than just odor. The ALJ/TCEQ have the discretion to decide that odor

prohlems make a landfill an incompatible land use just as they could decide that any of

the other factors considered in a land use analysis could be a basis for a determination of

incompatibility. On the other hand, the ALJ/TCEQ could decide that, on balance, a

problem with one of the factors (no matter which one) is not enough to lead to a

determination of incompatibility. There are no statutes, rules or guidelines that

"mandate" that the ALJ/TCEQ conclude a landfill is incompatible. Rather, the ALJ has

T2

the discretion to evaluate the evidence presented by both sides against the applicable

statutory and regulatory requirements, specifically Texas Health & Safety Code $$

361.069 and 361.089 and the multiple provisions contained in regulations 30 TAC $$

305.66(c), 330.53(a) and 330.53(bX7) and (bXB)", and propose his recommended

conclusion in hisftrer PFD. The TCEQ may exercise that same discretionary balancing of

the evidence.

Second, NNC has to persuade the Court that the testimony of the neighbors was

uncontradicted. NNC cannot carry that burden because its testimony was pointedly and

amply contradicted by BFI's testimony and the various documented examples of the

TCEQ's diligent efforts to evaluate these complaints as it tried to independently detect

problematic odors. These two sets of differing evidence were carefully evaluated by the

ALJ, and he concluded BFI's evidence was more persuasive. He suilrmarized his

conclusion on this issue as:

"The ALJ certainly found each of those lay witnesses credible when theytestified that they have noticed odors and were offended by them. There is,however, other evidence to indicate that the odors have declined to lowlevels in recent years and have not been extreme since the events coveredby the Agreed Order."

He went on to delineate the reasons he concluded that BFI's evidence was more

persuasive. This quotation again highlights the fact that the ALJ did not ignore the

neighbor's testimony. More importantly, he did not consider it uncontradicted.

Third, NNC has to reconcile how they could contend that not satisffing one sub-

issue (odor) within the broader issue of land use can defeat BFI's entire application

" Unless otherwise noted, citations to the Texas Adminisfrative Code are to the version of the Code thatwas in effect on December 31, 2005 (prior to the 2006 revisions).

13

especially when NNC did not even directly challenge Issue D: "Whether The

Application Includes Adequate Provisions To Control Odorso In Compliance With Rules,

including 30 TAC $$ 330.125(b) and 330.133(a)". This is the precise language requested

by NNC and TJFA for referral to SOAH on the odor issue. They did not challenge the

ALJ's conclusion on Issue D, odor control. Instead, they want to shoehorn an odor

challenge into the land use issue.

Finally, as explained below, the ALJ found the reports and testimony of BFI's

land use experts, John \Morrall, Charles Heimsath and Donna Carter thorough and

persuasive.

1. Land Use

BFI introduced extensive expert evidence to demonstrate that the proposed

expansion of the Landfill is compatible with the surrounding land uses.

a) Applicable Law

Both $361.089 of the Health and Safety Code and 30 TAC$305.66(c) provide that

theTCEQ"may,forgoodcause,deny..,[a]permitit...hasauthoritytoissue...for

reasons pertaining to land use." Other regulatory provisions focus on the

compatibility of the landfill with other land uses. Section 330.53(aX1), for example,

requires an applicant to provide information relating to land use compatibility. Section

330.53(bX7) specifically requires that the application include a land-use map showing the

property, zoning in the area and existing land uses. Section 330.53(bXB) also applies

ffid, as the ALJ noted, provides the best framework for analyzing land-use compatihility

in the MSW context. It states:

(8) Land use. A primary concern is that the use of any land for an MSW

t4

site not adversely impact human health or the environment. The impact ofthe site upon a city, community, group or property owners, or individualsmust be considered in terms of compatibility of land use, zoning in the

vicinity, community growth patterns, and other factors associated with thepublic interest. To assist the executive director in evaluating the impact ofthe site on the suffounding area, the applicant shall provide the following:

(A) zoning at the site and in the vicinity. If the site requires approval as

a nonconforming use or a special permit from the local governmenthaving jurisdiction, a copy of such approval 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 majordevelopment;

(D) proximity to residences and other uses (e.5., schools, churches,

cemeteries, historic structures and sites, archaeologically significantsites, sites having exceptional aesthetic quality, etc.). Give theapproximate number of residences and business establishments

within one mile of the proposed facility including the distances and

directions to the nearest residences and businesses; and

(E) description and discussion of all known wells within 500 feet of the

proposed site.

The first thing to note with regard to this provision is that the applicant's primary

responsibility is to provide certain information which enables the TCEQ to understand

certain physical relationships and types of land uses that already exist to assist the agency

in evaluating the regulatorily undefined term of ooland use compatibility. " This

requirement is different than the vast majority of the other TCEQ MSW regulations

which establish specific technical requirements which an applicant must satisff.

The second thing to note is that NNC's complaint that the ALJ did not consider

the allegedty uncontradicted testimony of NNC's witnesses badly mischaracterizes the

ALJ's thorough analysis of all of the evidence. As discussed in multiple places in this

brief, BFI presented extensive evidence on this issue which rebutted NNC's complaints

t5

about past operations. NNC's substantial evidence case boils down to the fact that NNC

disagrees with the ALJ's findings and conclusions.3s It does not mean the ALJ ignored

NNC's proffered evidence. He simply found BFI's evidence more persuasive as was his

right and duty.

b) Regulatory Requirements

There is no dispute that BFI satisfied the specific requirements of Sections

330.53(bX7) and (bXSXA)-(E), and that the information BFI included in its application

was both accurate and thorough.

(l) Zoning at the Site and in the Vicinity

Sunset Farms is located outside of Austin's city limits, but within its

extraterritorial jurisdiction.3e BFI's expert, John Worrall, testified that Austin zoning

ordinances and designations do not preclude or limit the proposed expansion of the BFI

landfill and the expansion is compatible with all applicable zoning ordinances.oo No

party - including the City - claimed otherwise.

NNC makes the point that Sunset Farms is located in the City's "Desired

Development Zane" (DDZ) and implies that this fact has legal or land use consequences.

As the ALJ noted, the fact that the site is located within the DDZ does not preclude BFI's

expansion, because the City's Smart Growth Initiative, which sets forth the concept of the

DDZ, is just a long term development guide and is not enforceable in the way zoning

'* The final TCEQ Order contained 26 Findings of Fact in support of its land use decision (Findings ofFactNos.345-370). None of these Findings have been directly challenged. TCEQ Order at42-45.

'n PFD at91.4o pFD at97,AR22, BFI Exhibit rw-l at l6-lT.

16

ordinances are.ol Moreover, the DDZ does not prohibit or preclude a landfill.

(2) Character of Surroanding Land Uses Within OneMile.

Worrall also testified on this issue. NNC presented no experts on this or any of

the other regulatory land use considerations. Neither did TJFA.

Worrall characterized the land uses within one mile of the site as mixed, dynamic

and being at the fringe of a rapidly growing city. \Mithin the one-mile radius there are

approximately 49 business establishments, one school, and one licensed day care center.

Significantly, neither the school district nor the day care center nor any of the business

establishments, except the Barr Mansion, protested BFI's application.a2

Sixty-two percent of the land within one mile of the permit boundary is open -meaning that land is either agricultural, vacant, or contains existing rights-of-way. The

next largest land use within one mile is industrial, which occupies 2lo/o ofthe land - most

of which (18%) has been used for landfills dating back to the 1950's. The remaining 3%

includes the Applied Materials manufacturing facility across the street from the landfills

and other, smaller industrial uses.ot

Only ll% of the land within one mile is used for residential purposes. Virtually

all of that residential use is single-family,oo As of July 30, 2008, there were

approximately 1,387 residential units built within one mile of the Landfill - the majority

of which are the in Harris Branch Subdivision. The Harris Branch Subdivision was

4t PFD atg7, AR37, Tr. at 2055-56 & AR38, Tr. at?lll.ot pFD at 98, ARI},BFI Exhibit Jw-l at20 et seq.o3 pFD at 98-99, AFI1Z,BFI Exhibit JW-t at t7-18.oo PFD at g9.

t7

established in 1990, eight years after BFI began operations at Sunset Farms. In fact, the

vast majority (89%) of all residences within one mile of the Landfill have been built since

the facility began operations.as

(3) Growth Trends of the Nearest Communi$ andDirections of Major Development

There is no dispute between NNC and BFI with regard to whether or not BFI's

experts, John Worrall and Charles Heimsath, have provided accurate information

regarding this regulatory requirement. Neither NNC nor TJFA put on any expert

witnesses in land use planning, urban planning or demographics. Accordingly, there was

no testimony to dispute the analyses presented by Worrall and Heimsath.

The only other land use planner who testified, Greg Guernsey, stated he had oono

reason to believe that any of the information proffered by Worrall, Heimsath or Carter is

incorrect."46 Sunset Farms is within Austin Planning Area22 (PA 22). From 1990 to

2000, PA 22 was the most rapidly growing sector of the Austin Metropolitan Area. It

grew by 133 percent from 1990 to 20000 increasing from 40,528 to 94,522 persons. In

both absolute and relative terms, PA 22 was the fastest growing of the 26 planning areas

in Austin. The area within one mile of the landfill has grown even faster than PA 22 has

grown as a whole.a7

NNC's lay witnesses contended that a landfill in this fast growing area should not

be allowed to expand because more growth is expected and the landfill could inhibit that

growth. They offer no evidence in support of this theory. BFI, on the other hand, put on

ot AR22, BFI ExhibitJw-l at l8 BL?r.ou AR37, Tr. at 2055.ot pFD at 100, AR22, BFI Exhibit Jw-4 ar 5-6.

18

evidence through Heimsath, who the ALJ noted was an ooextremely experienced real

estate consultart,"4s that both residential and commercial development has consistently

thrived over the past 10-20 years and is likely to continue irrespective of the presence of

the landfill expansion through 2015 and beyond.ae Worrall further testified that 524 new

residential units were builtwithin one mile of the landfill between 2004 and 2008.50 This

is the exact time during which the witnesses quoted inNNC's brief asserted that the odor

problems that existed in 2001 and 2002 were still an ongoing problem.

The only argument that NNC offered against this testimony was John Wilkins'

statement that the presence of Sunset Farms has inhibited the sale of his land.sl No

documentary evidence of any attempt to develop, market or sell the tract (much less any

rejection due to Sunset Farms), was offered in support of Wilkins' conclusory statement.

In fact, Wilkins admitted that there was insufficient infrastructure (no wastewater and he

was not sure about water) in the vicinity to allow for commercial development,sz a

conclusion to which Guernsey added his concern that'othe roadway network is not as well

developed."53

(4) Proximity to Residences and Other Uses

There is some disagreement with regard to this issue although the facts were

undisputed. Specifically, NNC had asserted in its District Court brief that Evelyn

o* PFD at 1oo.4e AR22, BFI Exhibit Jw-l at lg-24, AR22, BFI Exhibit CH-l & CH-3 through CH-6, AR22, BFIExhibit CH-l ilt 44.to AR34, Tr. at I 114 et seq.;AR2z, BFI Exhibit JW-l at20.tt

See NNC Brief at 5, AR36, Tr. At 1640.52 AR36, Tr. at 1649.53 AR37, Tr. at 2094.

19

Remmert lived directly across Blue Goose Road from the Landfill. They now refer to her

as living "in the vicinity." No one lives directly across Blue Goose Road from the

Landfill - the closest residence on the Remmert property is approximately 4000 feet

north of the permit boundary and fanher from the limit of fi[.54 Remmert's residence

does not even show up on the exhibit on page I of NNC's brief. The 95 acres owned by

Evan Williams (on which there is a telecommunications tower) is open tand with no

residence, and Wilkins' tenant runs cattle on his 1l9-acre tract. s5

In fact, the Landfill is not particularly close to any residences or other receptors,

and especially is not close to any of the NNC protestants. The nearest residence, which is

not owned by a protestant, is located approximately 1,830 feet east of the edge of the

existing fill, and several hundred feet farther from the fill to be added by the expansion.56

One school (which did not protest) is located almost one-half mile from the existing fill

and even farther from the expanded fill. A day care center (which also did not protest) is

located 1,450 feet east of the existing fill, and even farther from the expanded fill area.S1

(5) Other Factors Associated with the Public Interest

Given that BFI clearly provided the information to satisff the requirements of

$330.53(bXSXA)-(E), NNC devotes most of its effort to contending that the TCEQ

ignored the allegedly uncontradicted evidence it presented regarding odor and, to a much

lesser extent, noise, mud on roads, runoff and nuisance. That characterization of the

record, and ofthe ALJ's evaluation ofthe record, could not be further from the truth.

to Ariza BFI Exhibit Jw-4 at t0 (Fig. II D-2).tt AR36, Tr. at 1644.tu AR2z, BFI Exhibit JW-4 at T.57 PFD at 99.

20

(a) Odor and Landfill Gas Management

The ALJ separately considered the testimony regarding odor because it was

separately referred issue specifically requested by NNC and TJFA:

Issue D: Whether The Application Includes Adequate Provisions toControl Odors, In Compliance With Rules, Including 30 TAC $$330. 12s(b) and 330. 133(a).

Several threshold observations are important with regard to Issue D. First and

foremost, NNC did not appeal this issue.s8 Second, after devoting 12 pages of analysis

with detailed cites to the evidentiary record, the ALJ coruectly concluded that BFI had

met its burden on the odor issue. Third, as the ALJ noted:

"[t]here is no rule that prohibits all odors from a landfill. Instead, 30 Tex.Admin. Code $330.125(b) and other rules discussed in other portions of thePFD require an applicant to control odors. . . . tT]he ALJ concludes thatBFI's Application includes adequate provisions to control odors."Se

Finally, as this third point highlights, the decision which the ALJ and TCEQ are tasked to

make in these cases - whether about odors, land use or any of the referred issues (except

compliance history) - is fundamentally forward looking. In other words, the fact that BFI

admittedly contributed to some odor problems in 2001 and 2002 may be relevant to how

the pending application proposes to control odors but is certainly not dispositive.6O The

issue is whether BFI's application demonstrates that the odors will be controlled going

forward.

58 ^See

PlaintifPs Original Petition and NNC's brief in this appeal. NNC does not raise odor control as apoint of appeal in its petition, and, in that petition, never alleges that the TCEQ erred with respect to theodor issue that was specifically referred as a separate issue.tn PFD at 51; ARl9, BFI Exhibit RS-l l ar App 001754-55.uo If an applicant's compliance history ranking is "poor," however, the TCEQ may deny the permit. Eventhen it is discretionary. More to the immediate point, BFI's compliance history ranking was "average"where 90% of all facilities rank. (PFD at 93; AR29, Executive Director Exhibit ED-AA-S).

21

(i)

Rule 330.125(b), referenced in Referred

plan. The rule states:

Odor Control Plan

Issue D, requires an odor management

The site operating plan must have an odor management plan that addresses

the sources of odors and includes general instructions to control odors orsources of odors. Plans for odor management must include theidentification of wastes that require special attention such as septage, grease

trap waste, dead animals, and leachate.

BFI's application includes an odor control plan. That plan gives special

consideration to any potential sources of odor at the facility, and requires special

operating measures to be taken to identifu potential odiferous wastes that might require

special attention. Specifically, potential sources of odor, such as liquid waste

stabilization ponds, and potential odor-producing practices, such as the recirculation of

leachate or use of alternative daily cover ("ADC") instead of daily cover, have been

removed or discontinued at Sunset Farms, and special provisions prohibiting such

practices have been incorporated into the permit.6l Finally, under the odor control plan,

BFI will conduct a daily inspection of the facility for odors so that corrective measures

can immediately be implemented if odors are detected.62

The ALJ found that BFI has complied with both 30 Tex. Admin. Code $125(b)

and 30 Tex. Admin. Code $133(a), which requires the application of six inches of soil for

daily cover.

(ii) Admitted Odor Violations

For the first 20 years of its existence? BFI never had any odor problems and never

6r pFD at 44;AR2l, BFI Exhibit BD-l atz5-27.ut pFD at 44; AF.zz, BFI Exhibit sl-l atil-32.

22

received a Notice of Violation ("NOV") for odo.r.u' Then, in 2001 and 2002, odor

problems developed at Sunset Farms and ACL. These problems were precipitated by a

6.8 inch rainfall event in November 2001.64 Prior to that rainfall event, both ACL and

Sunset Farms landfills had been accepting large amounts of wallboard, which generates

hydrogen sulfide when it gets wet and decays.

The TCEQ issued NOV's to both BFI and WMI. BFI denied the allegations, but

took corrective action as reflected in an Agreed Order issued by the TCEQ on June 23,

2004.65 BFI's Agreed Order contained one odorviolation and imposed a fine of $28,000.

WMI's fine at its ACL facility for the identical time period was fi244,200 - nine times

greater. While BFI acknowledged it contributed to some of the odors in 2001 and 2002,

it never agreed that the odors were as frequent or that they were as bad as alleged or that

Sunset Farms was the primary source. BFI has not received an NOV since the one in

April 2002 - a total of 26 years and counting with only one NOV.66 In accordance with

the Agreed Order, BFI took action to address and resolve any odor problems. NNC

presented odor testimony of some of its members - three of whom do not live in the area

of the Landfill. The purpose of these witnesses' testimony, was to present their opinion

that BFI's odor problems mandate denial of BFI's permit application,6T NNC argues the

testimony of these witnesses was uncontested and wrongfully not considered. NNC's

interpretation of the evidence regarding odor myopically ignores the rest of the record,

63 pFD at47;AR2l, BFI ExhibitBD-r at47-48.uo pFD at46;AR2l, BFI Exhibit BD-l atzI.ut AR22, BFI Exhibit sl.-il.uu PFD at 47 .6t hINC Brief at 28.

23

mischaracterizes the ALJ's full consideration of all of NNC's evidence. and

misunderstands BFI's burden on the land use issue.

First, the ALJ did not ignore NNC's testimony. Rather, he accepted it for what it

was - that these "users of land near the BFI landfill do not want it near them."68 After the

ALJ recounted the testimony proffered by these witnesses he stated that he "certainly

found each of those witnesses credible when they testified that they have noticed odors

and were offended by them."6n However, the ALJ, importantly, went on to say:

There is, however, other evidence to indicate that the odors have declinedto low levels in recent years and have not been extreme since the eventscovered by the Agreed Order.To

(iii) Odor Evidence

The issue for the ALJ to evaluate and resolve was not whether these individual

protestants smelled something and were offended. Instead, the issues for the ALJ to

consider were: (l) whether odor would be controlled under the new permit; and (2)

whether the 2002 odor violation (or any other operational violations) resulted in a

compliance history ranking of oopoor." The ALJ concluded in response to Referred Issue

R that BFI had a compliance history of "average"7l and that the permit application could

not be denied on that basis. The ALJ also concluded that BFI had complied with the

applicable odor regulations.t2 The o'other evidence" which the ALJ referenced is

abundant and preponderates in favor of the ALJ's decision that the odor problems of

ut PFD at l o9.6e Id. at 48.70 Id. at 48-49.

" Id. at 92-93.

'2 Id. at 4i-52.

24

2001 and 2002, and any subsequent odor complaints, do not support NNC's contention

that there are ongoing odor problems or that the landfill is an incompatible land use.

BFI presented an industrial odor expert, Dr. Shari Libicki,T3 a landfill gas

management engineer/expert, Matt Stutz, and BFI's Area President, Brad Dugas, to

testiff about odor issues. Evidence of the TCEQ's hundreds of field investigations and

the agency's Odor Strike Force Team Field Report were also significant parts of the

evidence considered bv the ALJ.

Dr. Libicki was called: (I) to explain the science behind landfill odors (i.e., how

and why they occur); (2) to explain how odors can be controlled and evaluate whether

they have been controlled at Sunset Farms; (3) to evaluate odor complaints that were filed

with the TCEQ, and testiff about the TCEQ's responsiveness; and (4) to provide an

opinion about whether the practices presently employed, and to be employed pursuant to

the proposed operational plans in the expansion application, would satisff the TCEQ

regulations for odor and be protective of human health and the environment. Her

testimony addressed each of these maffers. It was comprehensive and persuasive.

Specifically, Dr. Libicki confirmed that the issue of the odors in 2001 and 2002

were the comhination of: (I) the Landfill having recently received a large amount of

wallboard; (2) rainfall events of 6.81 inches on November 15, 2001 and 1.89 inches on

73 Dr. Libicki works primarily in the air quality field, focusing on airborne emissions criteria. She is theGlobal Air Quality Practice Area Leader for Environ International Cotp, an international environmentaland health sciences consulting firm. Dr. Libicki also teaches courses on environmental policy andregulation at Stanford University and serves on a science advisory board for strategic environmentalresearch and development administered by the Department of Defense. She has worked in numerouslandfill air quality assessments. Id. at 49.

z5

November 28, 2A0I7a; and (3) the fact that the Gas Collection and Control System

("GCCS"), which had been voluntarily installed for the purpose of generating electricity

(as opposed to being required regulatorily to control landfill gas emissions), was

undersized to capture a sufficient amount of the gas generated by the wallboard/rainfall

combination to control odors.75 Dr. Libicki also noted that ACL next door was accepting

considerably more of such wasteTf and that ACL was experiencing the same inadequate

GCCS conditions.Tt Libicki's observations regarding the disparity between the two

landfills was confirmed by the fact BFI was fined $28,000 while WMI was fined

$244,200.

Dr. Libicki concluded, based on her analysis, that controlling the landfill gas

emissions by expanding the GCCS was the single most effective and appropriate thing

for BFI to do. As previously explained, BFI had immediately begun the GCCS

expansion in 2002, and by 2003 had 180 new gas wells in place and connected to its

onsite landfill gas-to-energy facility.Ts Libicki also identified various other effective odor

control equipment and methods which BFI has implemented, and will continue to use in

connection with the expansion, such as portable misters and mister curtains, use of daily

cover, not recirculating leachate, eliminating the waste stabilization basins, and rapidly

burying odiferous loads.7e

'o AR2a BFI Exhibit sl,-l atzr." Id. atzz.76 Dr. Libicki's observation was based on data collected by URS Corp., which had been hired by Travis

Qounfy to do an odor study. (^See AR22, BFI Exhibit SL-4 for URS Study; AR22, BFI Exhibit SL7.)" AR22. BFI Exhibit SL-1 at 19 &,22-23: BFI Exhibit SL-4.t* BFI Exhibir sL-6; ARzz, BFI Exhibir sl,-r at rz &, zz-zi.te Id. at l1-13.

26

Using data concerning odor complaints received by the Commission, Dr. Libicki

prepared a chart showing the number of complaints received per month. The chart

graphically illustrates how the complaints went from zere before 2001 to nearly 260 in

February 2002, but by April 2003, odor complaints had fallen to nearly zerc. Since then,

the number of complaints was consistently low up to the time of the hearing.sO NoNOVs

were issued for any of these complaints. The ALJ also noted:

Dr. Libicki also prepared a series of maps to show the location of thecomplaints. There were none in 2000. In 2001, there was one or two fromtwo locations in Harris Branch and a third location to the west of the WasteManagement landfill. As indicated above, complaints spiked during2002.The vast majority of those were from approximately eight locations inHarris Branch and three locations west of Waste Management. Since 2002,a small number of complaints have come from scattered locations in HarrisBranch and the neighborhood west of the Waste Management facility.sl

Very few of the residents other than those who testified at the hearing have ever filed an

odor complaint and, as noted by the ALJ, the number of different complainants

significantly decreased after January 2003.82 Mr. Dugas was direct in his observation

that many, if notmost, of the odor complaints were lodged by a small cadre ofprotestants

who stridently opposed the landfill and the proposed expansion. He testified that "we've

followed up on odor complaints that have been lodged to us or acknowledged to us and

we have not been able to veriff those."83 He also noted that "among the few remaining

complaints, most are lodged by a small group of individuals that I believe are opposed to

to PFD at 49; BFI Exhibit sL-8.81 pFD at 49-50; AFII},BFI Exhibit sL-10.*' PFD at 49-50.83 AR35, Tr. at 1351. Bany Kalda of the TCEQ echoed this observation in an e-mail to a resident. Theemail said "To protect your confidentiality, I have removed your name and exact address when I haveforwarded your complaints to the landfill operators. I believe the landfill operators are truly trying torectiff any problems the neighbors are observing. This is evident by their willingness to meet with anyand all complainants." AR32, Tr. at 513.

27

the landfill's existence and expansion."84

Dr. Libicki's conclusion that the

Mr. Dugas' testimony was not challenged.

2001-02 era landfill gas odor issues had been

fixed and the continuing complaints did not reflect nuisance conditions or any conditions

warranting a complaint was supported by the findings of the TCEQ Odor Strike Force. In

December 2A02, during this period of elevated odor complaints, a weeklong 24-hour-per-

day investigation of the odor problems was conducted by a TCEQ Odor Strike Force

Team. The ALJ summarizedtheir effort and findings as follows:

Sensitive equipment was used to detect hydrogen sulfide, VOCs, and heatlines indicative of seeps from the gas recovery system and associatedpiping. In all, 409 samples were taken during 136 sampling events atnumerous locations, including the Facility fence line, residences, schools,and businesses, Odors were categorized as l through 5. When anobservation was conducted but no odor was detected, that fell into Category1. Category 2 and 3 odors were barely detectable or noticeable, but notunpleasant. Category 4 odors were light to moderate or strong butintermittent and not of sufficient duration to be objectionable. Forty-ninepercent of the observations were Category 1. Forty-one percent wereCategory 2 or 3, and ten percent were Calggory 4. The majority of theCategory 4 odors were at the BFI fence line.ot

Category 5 odors are capable of causing health effects, are highlyobjectionable, or can impact the intended use of a property. During itsweek of observation in December 2002. the strike team observed noCategory 5 odors.86

NNC has offered no explanation or response to the findings of the Strike Force.

NNC has repeatedly suggested that the frequency of the complaints fell off because Barry

Kalda of the TCEQ allegedly told them to stop complaining. NNC now funher argues

that all of the above analysis by Dr. Libicki should be ignored or discounted because

to ARzl, BFI Exhibit BD-l at25; AR35, Tr. at 1351.tt PFD at 5o; AR22, BFI Exhibit sL-3.86 PFD at 5t (citing AR2},BFI Exhibit SL-l at25 & 37-38 and BFI Exhibit SL-3).

28

Libicki: f, did not interview the odor complainants, and (2) assumed that the number of

complaints is a proper representation of the odors even though she knew that at least

some of NNC's witnesses testified that they stopped or reduced the frequency of their

reporting of odors.

Dr. Libicki responded in two ways that were obviously persuasive to the ALJ.

First, she provided several e-mails and reports in support of her opinion that the TCEQ

was in fact responsive in its odor investigations. Exhibit BFI-2 is an e-mail sent by M..

Kalda of the TCEQ to Mr. Martinez, a resident who had filed an odor complaint, on

October 17, 2005. Kalda's e-mail recited the following suggested course of conduct:

. please consider following the procedure outlined in the protocol Ipreviously emailed you and log in your odor complaints and call usimmediately when you smell the landfills so we can come out andcorroborate your observations. 87

Dr, Libicki also referred to Exhibit BFI-3, il TCEQ Complaint Report regarding

oolncident 64778" as evidence of the TCEQ's responsiveness to citizen complaints. That

report indicates that Kalda received an odor complaint at 1 1:48 p.m. on a Friday night,

went out to the site and arrived at approximately l:00 a.m. early Saturday morning, ffid

called the complainant upon his arrival at the site to investigate the complaint.ss

The final example that Dr. Libicki brought to the ALJ's attention is Exhibit BFI-4,

another e-mail befween Kalda and Martinez. In it Kalda writes:

"The lag time between odor reports and our on-site response can beftustrating since many times the odor is gone by the time our investigatorshave arrived. Recognizing that our resources are limited and the fact thatour investigators can't possibly be everywhere, the Texas Legislature has

AR29, BFI Exhibit BFI-Z; AR32, Tr. at 510.AR32, Tr. at 514; AR29, BFI Exhibit BFI-3.

87

88

29

given the TCEQ the authority to accept Citizens Collected Evidence (CCE)and for us to consider this evidence in our investigations. I have attached acopy of our odor complaint investigation procedure so you can log yourobservations in a manner that we can use. Ideally, we will be able tocorroborate your observations so that we can confirm a pattern that willhelp us determine if the odor's frequency, intensity, duration, andoffensiveness are such that a nuisance violation could successfully beprosecuted." 8e

Based upon her review of the case materials, as exemplified by these exhibits,

Libicki offered the following as an explanation for her opinion:

A: So these e-mails actually described TCEQ soliciting odor complaints.And because they were soliciting odor complaints, it gave me greaterbelief that the odor complaints were? in fact, a reasonablerepresentation of when odors were being sensed.e0

The ALJ relied on all the evidence about odors. He summarized his view as

follows:

Based on the above evidence, the ALJ concludes that the Commission Staffdoes take odor complaints seriously and investigates them intently whenreasonably warranted by a high number of complaints. He also concludesthat the Commission staff uses standardized, objective methods ofobservation when it investigates odor complaints. He also finds that thenumber of complaints has reasonably correlated with other evidence of thefrequency and intensity of odors near the BFI facility, as shown bycorresponding spikes in complaints and other evidence of odors in 2001and 2002. For that reason, the ALJ reasonably infers that odors from theBFI facility have been low in frequency and intensity since December2002.e|

It is important to note, as the ALJ did, that there is no rule that prohibits all odors

from a landfill. The rules require an applicant to control odors. A preponderance of the

evidence establishes that BFI's application includes adequate provisions to control odors.

Substantial evidence clearly exists that BFI has controlled odors at the Landfill and will

tt AR32, Tr. at 515; AR29, BFI Exhibit BFI-4.to AR32, Tr. at 522; AR29, BFI Exhibit BFI-4.er PFD at 51.

30

continue to do so, and NNC's odor complaints cannot mandate reversal of the ALJ's

decision on land use.

(iv) The Landfill Gas Management PJan

The landfill gas management plan and the GCCS are integral to controlling odors

at Sunset Farms. Like the odor issue itself (Issue D), the control of landfill gas was also a

separately referred issue :

Issue E. V/hether The Application Includes Adequate Provisions to ManageLandfill Gas In Compliance With Agency Rules, Including 30 TAC $$330.56(n) and 330.130.

NNC did not appeal the TCEQ's determination that BFI met its burden of proof on

this issue. Moreover, the evidence in support of BFI's management of landfill gas, both

present and future, is essentially uncontroverted and fully supports the agency's decision.

The only argument NNC has offered is that Stutz cannot be correct since the protestants

claim odors are still a serious problem. The ALJ balanced the facts otherwise.

Stutz, Libicki and the ALJ all agree that the odor problem was under control by

early 2003.e2 BFI committed to expand the system as needed and has done so.

2. \ilindbtown Waste, Mud on Roadso Noise, Lighting, Nuisance and OtherFactors

NNC's complaints about nighttime noise, muddy roads, and other nuisance

conditions in its Statement of Facts are thin, scattershot and anecdotal. The fact that

NNC mentions them implies that NNC thinks they should be considered in determining

land use compatibility, even though the MSW regulations pertaining to land use

compatibility are silent as to such matters. However, NNC makes no further argument

nt pFD ats3;AR23, BFI ExhibitMs-l atzi-24:AR22, BFI Exhibits sL-8, sl--g & sL-10.

31

regarding these matters. BFI will not provide detailed responses to each issue as it did in

its briefs to SOAH and the District Court since it appears NNC has elected to not pursue

these issues. Odor control (Issue D), control of windblown waste (Issue G), and

prevention of nuisance (Issue $/) were separately considered by the ALJ. The ALJ

addressed mud on the roads as part of Referred Issue O. With respect to each of these

referred issues, the ALJ and the TCEQ found that BFI met the requirements of TCEQ's

rules -findings which are not disputed by NNC either as separate issues or as part of the

land use issue.

BFI does not contend that no one will sver notice odor, windblown trash, noise or

light from its facility. Instead, as the ALJ has noted, it has provided for reasonable

control of odors and windblown trash.e3 There is no evidence that it has ever been cited

for a noise violation nor violated a legal standard concerning light, or that such standards

are even applicable to Sunset Farms.ea

The ALJ summarized his analysis of these complaints by stating:

The ALJ cannot conclude, however, that a landfill is incompatible with anearby residential area or business if it will ever be heard, smelled, seen, ornoticed. If that were the standard, the legislature or the Commission surelywould have been clearer on the point. Moreover as found elsewhere in thePFD, BFI has provided for reasonable control of each of the undesirablecharacteristics the Commission has chosen to specifically regulate by rule,inclu^4ing odor, windblown trash, visibility through buffering and screeningetc."95

3, NNC Mischaracterizations

NNC (and TJFA) presented no expert evidence at all on land use, so it necessarily

n'PFD at74.no Id. at lo7.nt Id. at loB.

32

resorted to cross-examination for its evidence. However, NNC's brief omits certain key

evidence and mischaracterizes other testimony. NNC's attack on John Worrall's

testimony demonstrates both problems.

NNC relies upon Worrall's answer given in cross-examination to claim that he has

never testified against a landfill. NNC notably omits Worrall's answer to the next

question he was asked, where he testified that he has declined various representations

because "I didn't feel that I could testiff to compatibility. So I chose not to."e6

NNC's second argument is that \Morrall has "applied a per se rule that no landfill

can ever be an incompatible land use if the landfill existed before surrounding

development."e7 This statement is simply not true. It mischaracterizes Worratl's point -

which is that the existence of this Landfill did not affect growth patterns here. People

moved into this immediate area rt a rate faster than anywhere else in the City, even

though there have been two operational landfills and one closed landfill in the area for

decades. The allegation also ignores the ample evidence presented by Wonall and

Heimsath directly applicable to $330.53(bX8) as set out above.

'Worrall's land use report and testimony also included visual simulations,

landscaping enhancementso and use and enjoyment considerations. The record shows

that Worrall undertook a comprehensive analysis of all the regulatorily required factors -

and then some. NNC's complaint about a per se rule is a neat sound bite but is

demonstrably inapplicable here.

tu AR34, Tr. at 1127.e'l NNC Brief at 27. NNC provides no citation to any part of the record to support its contention thatWonall applied a'oper se" rule.

JJ

4. Greg Guernsey and Joe Word

Greg Guernsey is the Department Director for the City of Austin's Planning and

Zoning Department.es In that capacity he reviews and approves land development

applications. In fact, he has reviewed "numerous land development applications in the

a^rea of the landfill."ee In other words, he has issued the permits that allowed the

developments in the area of the landfill to occur. Nonetheless, at the hearing, Guernsey

stated his personal opinion that operating landfills are not "generally" compatible with

single-family residential. NNC highlights this statement in its brief, but ignores the

totality of Guernsey's testimony. Guernsey's testimony, taken in its entirety, does not

support NNC's conclusion - for any number of reasons.

First, by his own admission, Guernsey did not look at the application in terms of

the TCEQ regulations or regulatory compliance.lOO Second, his observation was a

general observation and was not specific to Sunset Farms. Indeed, throughout his

testimony he only offered a general opinion regarding a landfill's compatibility with

sulrounding land uses.t0t Guernsey did not conduct a specific analysis and offered no

specific opinion. Indeed, there was nothing at all analytical about Guernsey's opinion.

Nothing he said was based on any particular regulation, study, analysis or treatise - and

he did not base his general opinion on any objective land use criterion such a zoning

ordinance or anything quantifiable such as housing starts or growth trends. Third, his

e8 AR27. Ciw of Austin Exhibit COA-I at l.ee Id. at3.

r

roo AR37, Tr. at 2097.tot Eg., AR37, Tr. at 2070,2072,2085,2086,2088 &,2096 andAR38, Tr. atllll.

general opinion was given solely in the context of "single-family residences."lO2 He

offered no such opinion regarding compatibility with other MSV/ facilities (ACL),

industrial sites (Applied Materials), open space (Williams, Ltd.'s property),

communications towers (again, Williams, Ltd.'s property), agricultural land (the

Remmert, Wilkins and TJFA properties) or any other uses. Fourth, his observations were

repeatedly couched in terms of single-family residences that are "next door" or "adjacent

to" some generic operating 1andfiil.103 Sunset Farms is not "next door" or "adjacent to"

any single-family residence including any Harris Branch residence. Guernsey

specifically testified that any single-family residential compatibility concerns he has

lessen wheno as here, such residences are farther away from a facility.l0a And, finally,

Guernsey testified that the City/BFI settlement agreement had been executed by the City

Manager by authorization of the City Council and had "sufficiently mitigated" any land

use compatibility concerns he might have had:lOs

a. It's your testimony that the city council has supported this

[settlement] agreement. Right?

A. The agreement has been signed by the City Manager byauthorization of the citv council.

a. A11 right. And that's because the landfill, the operators agreed tocease accepting waste before November I , 20 15. Right?

A. Among other things, yes.

a. And that there's a number of additions to the operations of thefacility, including matters pertaining to seeding and sodding and erosioncontrol. Is that correct?

'o' See AR37, Tr. at 2088 & AR38, Tr. at2l25.'ot 8.g.,AR37, Tr. at2089 &,2092.too AR38o Tr. at 2l2r-22.to5 Id. at zrzz-23.

35

A. Yes.

Q. Okay, So all those thing taken together add up to your - thosethings taken together sufficiently mitigate your concerns that thelandfill may he incompatible with land uses. Is that correct?

A. Yes,

Joe Word managed the City of Austin's Solid Waste Department from 1983 until

2001.106 He testified that he was concerned that the settlement agreement between BFI

and the City would not address impacts from litter, noise or lighting at night and may not

have an impact on odors.107 Word is correct in that those issues were not the subject of

the sefflement agreement. Instead, the Sunset Farms' Site Operating Plan, an enforceable

part of BFI's permit, fully addresses the odor and liuer issues and, as discussed above, the

ALJ determined that BFI met its burden of proof on all the issues W'ord was concerned

about not being covered by the settlement agreement.

5. Land Use Conclusion

After considering all the evidence from all the parties, the ALJ concluded the

Sunset Farms expansion would be compatible with the surounding land use. He stated it

in a way that clearly reflects how he balanced the testimony:

That does not mean that the Landfill goes together perfectly with residences

in the area or the Barr Mansion. As Mr. Guernsey and Mr. V/ord testified,offensive noise, odor, etc. cannot be completely eliminated. The ALJcannot conclude, however, that a landfill is incompatible with a nearby

residential area or business if it will ever be heard, smelled, seen, ornoticed. If that were the standard, the Legislature or the Commission surelywould have been clearer on the point. Moreover, as found elsewhere in thePFD, BFI has provided for reasonable control of each of the undesirable

tou PFD at lo7.,0, Id.

36

characteristics that the Commission has chosen to specifically regulate byrule, including odor, wind blown trash, visibility through buffering andscreening, etc.

The ALJ fully recognizes that many users of land near the BFI landfill donot want it near them. That desire is not, however, a legal basis for denyingBFI's Application. Instead, the legal standard is compatibility. Based onthe evidence, the ALJ concludes that BFI has shown that the proposedexpansion is compatible with the land use in the surrounding area.t0*

C. Issue III: The TCEO's anproval of 2417 landfill onerations..,Ivas,

No. 3)

1. NNC's Lack of Evidence

NNC contends that "BFI failed to adduce substantial evidence justiffing 2417

operations at Sunset Farms" and asserts, "[i]n contrast, there was extensive evidence

showing 2417 operations to be unwarranted."l0e NNC then references the only two pieces

of evidence it can muster: (l) a comment by Greg Guernsey which the ALJ characterized

as conclusory and unsupported "with any significant analysis or facts;"110 and (2) an

assertion that "several neighbors testified to the adverse effects of current ovemight

operations."lll The ALJ and BFI are only aware of three neighbors who testified about

nighttime operations. Their testimony involved a complaint about noise - an issue about

which the TCEQ determined BFI had satisfied its burden. That's it. NNC's evidence is

hardly o'extensive.'o Rather, the issue is barely referenced at all in the protestants'

evidence - and then only tangentially.

NNC's assertion that "the independent Office of Public Interest Counsel (OPIC)

tot Id. at loB-109.roe NNC Brief ati3.tto ARl7, document 212, ALJ Exceptions Letter dated June 29,200fl at 3. This letter is included as

Exhibit 2 in the Appendix.r1r NNC Brief at 33.

37

agreed 2417 operations were not appropriate"l 12 is true but not material. OPIC's

agreement refers to the conclusory statement of OPIC's lawyer. OPIC presented no

evidencr. t t3

The reason why NNC cannot muster any more evidence than these limited

comments is because this issue was fundamentally uncontested by NNC or any other

protestant. Notably, u word search of the protestants' pre-filed and live testimony for

'ooperating hours," "operational hours," oohours of operationo' and similar phrases show

that this issue is not discussed anywhere in any protestant's testimony, The ALJ made

the following findings in his June 29,2009 letter: (I) "There is no evidence of any kind

showing that BFI's weekend operations during the day are inappropriate"; and (2) thathe

saw "no basis for concluding that BFI's nighttime hours are inappropriate."l14

2. Evidence in Support of 2417 Hours of Operation

Against this paucity of evidence that is supposedly so "extensive" as to warrant

reversal on substantial evidence grounds, BFI, the TCEQ and Travis County offered the

following evidence in support of 2417 hours of operation:

BFI has developed longstanding waste delivery schedules and acceptanceprocedures based on the 2417 schedule, and its customers rely upon these wastedelivery schedules and acceptance procedures;l 15

BFI's traffic study showed that a not-inconsequential number of waste haulvehicles (23% of the daily volume) accessed the facility between 7 p.m. and 7a.m. (waste that would have had to be accepted by one of BFI's competitors,TDSL or WMI, if it were limited to 7 a.m. ti I p.m. week days only);lrd

t12 NNc Brief at 33.tt' ARl T ati.,to Id.r'5 AR19, BFI Exhibit RS-l at 110.ttu ARzl, BFI Exhibits MM-3 at Table II.E-10 (APP000192) and MM- 4 atl.

38

I

I

I

Sunset Farms has always operated 2417 since it first opened in 1982;r17

BFI requeste d2417 operating hours in its application;rr8

The Executive Director has independently approved BFI's request for 2417

hours at Sunset Farms on at least three separate occasions (in the originalpermit, during the 2006 "call-in" process for SOP revisions, and as part of thisapplication);rc

2417 hours are consistent with the other Type I landfills in the County;l20

2417 hours are consistent with industry practices;l2l

There are no zoning ordinances prohibiting landflrll or industrial operations atthe site, ffid the overwhelming percentage of the land within one mile of thefacility is categorized as either open or industrial;"'

BFI's application complies with MSV/ rules governing site operations;Iz3

BFI's and Sunset Farms compliance histories are "averag*";t'o

The Executive Director is un^aware of potential impacts justiffing restrictingthe proposed 2417 hours; andt"

BFI's application satisfied the relevant rules regarding operating hours.ttu

I

I

a

a

I

o

t

Notably, the Executive Director's testimony that the agency was "unaware of

potential impacts justiffing restricting the proposed 2417 hours" was given after the

application was reviewed for administrative and technical completeness, after public

comments were received, after the draft permit was issued, and after all of the other

parties in this proceeding had filed their pre-filed testimony. None of the Executive

Director's evidence was refuted or rebutted by any parfy protesting the application.

rtt ARlg, BFI Exhibit Rs-r at lo9.tt* AR2g, ED Exhibit ED-AA-I at 41.rle ARrg, BFI Exhibit RS-l at 109.

"' Id. at l 1o.r2r Id.ttt pFD atg6-g7; AFoZ;BFI Exhibit Jw-l at 15-16.

"t See generally PFD; ARlg, BFI Exhibit RS- L at79,86 & 110.tto PFD at 93.t2t AR2g, ED Exhibit ED-AA-I at 4r.,ru Id.

39

Jon \Mhite, Travis County's sole witness, testified that any decrease in the hours of

operation at Sunset Farms would decrease waste acceptance rates such that the landfill's

capacity would not be reached by the agreed upon November 1, 2015 closure date.r?7

Should the capacity not be reached, BFI will be deprived of the benefit of the bargain

that it struck after extensive arms length negotiations with the City and County (who

acted essentially on behalf of the neighbors during these negotiations) when it agreed to

cease acceptance of waste by November 1, 2015. BFI has organized its business -including number and timing of collection routes, number of trucks and other equipment,

and staffing - based on continuing its 2417 operating hours.128

It is apparent that no party, including BFI, focused as much attention on the hours-

of-operation issue as on many of the other issues. This was because the issue was not

raised during the hearing. Nonethelesso BFI introduced sufficient evidence to meet a

preponderance of the evidence burden and significantly more than enough to satisff the

"more than a scintilla" substantial evidence standard. Moreover, BFI clearly met its

prima facie burden and thereby shifted the burden of production to the protestants.lze

Both the preponderance and prima facie tests were satisfied; either is sufficient to enable

this Court to conclude that BFI satisfied the substantial evidence rule.

3. The MSW Rules

Section 330.118 of the MSW rules is the primary regulation that addresses

tzt AR28, Travis County Exhibit TC-4 at 14; AR17, docum ent ?14 at 6.tt* ARl7, document2l4 at 5.ttn Also referred to as the "burden of going forward" or the burden of persuasion. See BFl v. MartinezEnvironmental Group, 93 S.W.3d 570 (Tex. App-Austin 2003, pet. denied); and FPL Farming, Ltd. v.

Texas Natural Resource Conservation Commission,203 WL 24'1183 (Tex. App - Austin 2003).

operating hours. It states that the SOP must speciff the waste acceptance hours when

materials will be transported on or off-site, and the hours when heavy equipment may

operate. Those waste acceptance hours may be any time between the hours of 7 a.m. and

7 p.m. ("7-to-7") on weekdays "unless otherwise approved in the authorization for the

facility. "r30 The rule does not require an applicant to state the reason for, or otherwise

justiff, operating hours outside the 7-to-7 time period. Instead, it simply requires the

SOP to speciff the hours of operation and receive the authorization of either the

Executive Director or the Commission for any hours that are outside the 7 -to-7 period.

Unlike other MSW rules - indeed, perhaps uniquely among the MSW rules - this

rule does not set forth any qualitative standards or quantitative perfonnance criteria or do

anything else to establish a basis for agency approval of hours longer than the 7 -to-7

hours. It does not require the applicant to obtain authorization from any local

government for weeknight or weekend hours. It does not require an applicant to show

"good cause'o for hours outside the 7-to-7 time frame. In fact, the agency specifically

considered and rejected a good cause standard for this rule in 2004 during the rulemaking

process,t3t In sum, the rule does not state how or why an applicant must justiff anything

over and above 7-to-7 operating hours - it just requires that the hours must be "otherwise

approved."

The 7-to-7 provisions in $330.1l8 are presumptive and not prescriptive. That is, if

an applicant does not specifically ask for different hours, then 7 -to-7 hours are the

130 30 Tex. Admin. Code $330.118.131 29 Tex. Reg. I1070 (Nov. 26,2004) ("The rule has not been changed in regard to comments that a

variance from the operating hours designated in the rule should only be granted on a showing of goodcause, and that a 24-hour operation should not be authorized in a populated area.").

4l

operating hours that the Commission will assign to the permittee by default. Here BFI

requested continuation of the 2417 operating hours it has had since it opened in 1982.

The TCEQ "otherwise approved" 2417 operating hours for Sunset Farms as reflected in

the draft permit. These hours are consistent with the operating hours of the other MSW

facilities in Central Texas. No other landfill in the Austin area(which are all operated by

competitors) has the default 7-to-7 operating hours.

4. The Burdens of Proof and Production

This Court explained the burden of proof and burden production requirements in a

different landfill appeal, BFI v. Martinez Environmental Group, 93 S.W.3d 57A

(Tex.App.-Austin 2003, pet. denied). In Martinez, the protestants appealed issuance of

an MSW permit for the "life of the site" instead of for the shorter term the protestants

wanted. On appeal, the court noted that the relevant rule, 30 TAC $330.63, established

the life of the site as the default permit term - subject to the ED's authority to shorten the

permit term at his discretion. The court held that the burden of proof shifted to the

Martinez protestants to show by a preponderance of the evidence why a permit-for-term,

as opposed to a permit-for-life-of-site, was proper for that facility because they were

seeking something other than the default regulatory provision.l32

In this case, once BFI presented its prima facie case for 24/7 operating hours, the

burden of production similarly shifted to the party that wanted the limited hours. As the

ALJ found, no party presented any (or sufficient) rebuttal evidence.

Any way the evidence is dissected, BFI did more than simply make a prima facie

t32 Martinez at 577-78.

42

case. It proved by a preponderance of the evidence that the 2417 hours of operation

contained in the draft permit - hours that the facility has always had, hours BFI is not

seeking to change, hours that the ED specifically considered and approved, hours that

BFI's competitors in Central Texas have, hours that are standard throughout the industry,

waste collection route and delivery hours that BFI and its customers rely upon, hours that

no person or party has complained of, and hours that no protestant addressed in their

direct cases * were appropriate. The agency's decision regarding operating hours was

proper and should not be disturbed under a substantial evidence review.

5. Policy Considerations

In addition to the evidentiary reasons, there are policy reasons that support

issuance of the permit with 2417 operating hours. Those reasons include the following:r33

| 2417 hours keep large vehicles out of the downtown commercial and schoolareas during times of heavier commuter, pedestrian and bike traffic;

. 24/7 hours limit the number of vehicles using naffow alleyways and drivewaysduring business hours;

2417 hours ensure prompt collection of wastes after bars and restaurants close;

2417 hours eliminate potential queues of diesel trucks waiting to enter thelandfill after it has been closed (thus reducing diesel emissions in a nearnonattainment area);

Competitors in the MSW business should be permitted to operate duringsimilar hours so as to prevent different permit conditions to result in unfaircompetitive advantages; and

o Reducing BFI's hours of operation would reward Protestants, such as TJFA,whose "participation in this case was a transparent attempt by Mr. Gregory todelay, complicate, increase the cost of, and with luck defeat BFI's application

t" ARl7, document 214 at 15-16.

43

so as to gain a business edge on BFI". TDSL would absorb some of BFI's lostbusiness and TDSL would, therefore, effectively be rewarded with the verybusiness advantage the ALJ and TCEQ deplored as an abuse of theenvironmental permitting process.

6, Operating Hours Conclusion

There were both evidentiary and policy reasons for the TCEQ to approve BFI's

request to continue its longstanding 24/7 operations. The policy reasons encompass both

public health and environmental benefits as well as notions of competitive fairness. More

importantly, for the legal standard applicable to this case, the TCEQ concluded that BFI

met its burden of proof under both the preponderance of evidence test and the prima facie

test. NNC's "extensive" evidence was no more than deminimis, at best.

D. Issue IV: The" TSEO's tindins of (.qo substantial alteration,.pf -natural

to NNC Point of Efror No. 4)

NNC argues that the TCEQ's finding that BFI's proposed amendment will not

significantly alter natural drainage patterns is ( 1) not supported by substantial evidence

and/or (2) is arbitrary and capricious because, it alleges, BFI's drainage expert, Adam

Mehevec, did not set out certain changes in the drainage design calculations in the

application (which he had set out in earlier submissions to the TCEQ for other

modifications to this permit) and NNC was therefore unable to "meaningfully test Mr.

Mehevec's eleventh hour explanation." BFI will address the evidence first and the

allegation of the eleventh hour surprise second.

l. Drainage Evidence

Attachment 6 of BFI's application contains BFI's drainage analysis. It shows how

BFI complied with 30 TAC $330.56(D(4XAXiv) because peak volumes, peak velocities,

and total volumes of the 25-year and 100-year storm events will not be significantly

altered by the proposed expansion.

BFI presented the testimony of Adam Mehevec, who explained how his design

demonstrated that natural drainage patterns would not be significantly altered by the

proposed expansion, In fact, all of the drainage experts in this case agreed that BFI's

proposed application will meet the regulatory requirements. This is the very point that

the ALJ found most important and persuasive:

"Ultimately of course, the ALJ and the Commission must rely on properlyqualified experts to determine whether altering a landfill wouldsubstantially impact drainage conditions. Thus, the most criticalevidentiary point is that no expert challenged Mn Mehevec's conclusionthat there would be no significant impact on drainage conditions. The ALJsides with all of the experts. He concludes that the Applicationdemonstrates that natural drainage patterns will not be significantly alteredby the expansiono in accordance with agency rules, including 30 TAC $330.56(D(4xA)(in).tto (Emphasis addedf

It is important to understand who o'all of the experts" the ALJ was referring to included:

they were the experts for BFI, the TCEQ Executive Director, the City and TJFA.

The referenced regulatory provision, 30 TAC $330.56(0(4XAXiv), requires the

applicant to submit a groundwater and surface water protection plan and drainage plan.

The regulation specifically requires :

(iv) discussion and analyses to demonstrate that natural drainage patternswill not be significantly altered as a result of the proposed landfilldevelopment;

The ALJ found that BFI met its burden of proof on this issue. The ALJ stated that: "Only

TJFA and NNC argue that BFI failed to carry its burden of proof on this issue. The ALJ

t3o PFD atz2.

45

disagrees with them."l35

The other parties either did not challenge BFI on this issue (OPIC and Travis

County) or agreed with BFI through the testimony of their expert witnesses (the

Executive Director, the City and TJFA). The attempt by NNC's lawyer to inject

confusion into the record was rejected by the ALJ:

There is no substance to these contentions that the amended conditionswould increase peak flows from Outlets 4 and 5 over existing approvedconditions. First, as previously indicated, none of the drainage expertstestified that there would be an increase in peak flows from those twooutlets. These TJFA's and NNC's arguments are based solely on theirlawyers' interpretations of documents. l3t

It is worth repeating that TJFA's drainage expert, Steve Stecher, was among the

experts who agreed that natural drainage patterns would not be significantly altered by

the expansion:

Q:

A:

Q:

A:

Q:

[by Mr. Gosselink] Do you recall that I asked you if you sfudied theissue of whether the landfill whether the proposed landfill hasaltered natural drainage patterns?

[by htlr. Stecher] Yes, I do. I remember that.

And you testified that, yos, you had indeed studied that.

Yes.

And then I asked you: "Do you have an opinion that the landfillamendment that's before the TCEQ at this time or before SOAH atthis time violates the regulation which prohibits significant alterationof natural drainage patterns?" And you answeredo "I don't believe thatit does." Do you remember that?

Yes.r37

to TJFA's expert, NNC's lawyers (the same lawyers that represent TJFA)

A:

In contrast

135 Id. at 12. TJFA disagreed despite the fact that its drainage experto Stecher, agreed.136 Id. atzo.t" AR37, Tr. at 1896-97 (italics added).

46

argue that BFI's drainage expert made an incorrect comparison when he reevaluated the

existing condition in the application rather than using the drainage analysis in the 2002

modification. In fact, as Mehevec explained, that comparison would not have been

appropriate or even defensible. 138

The drainage analysis requires comparing existing conditions to proposed

conditions. Those two conditions must be compared using the same base assumptions

and the same methodology. Yet, NNC asks that this Court compare the drainage analysis

in the 2002 modification as the existing condition to the drainage analysis in the

application as the final condition. This is an "apples-to-oranges" comparison, since the

analysis in the 2002 modification: (I) used an outdated methodology, including a

different runoff coefficient ("c" value) due to a rule change in 2004 ;tt' (2) used different

topographic information than the application; due to a more accurate on-the-ground

survey that was made while preparing the applicationraO and (3) mistakenly excluded

certain buffer areas that needed to be included in the application.lal Because of these

differences, the existing condition had to be re-an alyzed using the same data as the

proposed conditions in order to make a valid comparison.

The City's drainage expert, Mike Kelly, testified that Mehevec properly defined

the actual, existing drainage conditions in the northeast corner of the site - the very

conditions which NNC's lawyer contended Mehevec incorrectly identified. The

following excerpt from Kelly's testimony reflects his opinion that Mehevec properly

t'* ,See AR34, Tr. at 1024.

t'n PFD at2}-Zl.t4o Id; AR34, Tr. at 1039.r4t PFD at20-2l.

47

analyzed the three factors discussed above in defining the actual existing drainage

conditions:

Q: [by Mt. Gosselink] All right. So now what happens is, the Applicantdiscovers three things that have changed, and we have gone over that.Okay? TxDOT which includes a change in the C-factor. Right?

A: [hdr. Kelly] [Nods head]

Q: Okay. A survey and the buffer zone. Faced with the reality of thosechanges he needs to make a decision about what is the right thing tosubmit and label it 'existing conditions'. Is it not correct that heshould include those changes in that submission so as to accuratelyand properly define the actual existing conditions?

A: Yes.1a2

The ALJ's discussion and analysis of the testimony of Mehevec so cogently

explains why he determined that Mehevec's testimony was correct - and NNC's lawyer's

challenge unpersuasive - that BFI affaches it as Exhibit 3 in the appendix for the Court's

convenient reference.

2. Alleged Surprise

With regard to NNC's contention that Mehevec's explanation constitutes some

type of llth hour surprise, BFI first notes that Mr. Mehevec was made available for

deposition and his documents were available, if requested. No discovery on h{r.

Mehevec was undertaken. Second, even after NNC's trial counsel introduced his

personal theory into the case through his cross-examination of Mehevec, he did not re-

call Stecher, or any other drainage expert, to the witness stand to try to rebut Mehevec's

testimony. It is logical to conclude that he did not do so because he believed that no

drainage expert, including Stecher, would support his apples-to-oranges theory. BFI also

t+z 4ffi8, Tr. at 2225.

48

notes that NNC's trial counsel did not ask for a recess nor make any other request for

relief consistent with the o'surprise" now suggested by NNC's appellate lawyers. Instead,

he rested and then simply continued with his re-cross examination the next day.

Mehevec fully explained the impact of the changed circumstances. Mehevec did

not spring some surprise on the protestants by bringing forward an l lth hour theory. To

the contrary, it was NNC's counsel who attempted to surprise Mehevec with his novel -and rejected - theory. It was not successful.

It is worth highlighting that the Kelly testimony quoted above occurred after

NNC's trial counsel had cross-examined Mehevec. On cross, NNC's lawyer tried to get

Kelly to concur with this personal theory. As noted above, the opposite occurred.

Finally, after listening to all the testimony on this issue, the TCEQ's drainage

expert, Mathew Udenenwu, reiterated his conclusion that natural drainage patterns will

not be significantly altered by the proposed expansion.la3 NNC, nonetheless, contends

that, even though its attorney could not convince any of the experts or the ALJ that the

proposed drainage design was flawed, this Court should find that there is no substantial

evidence in the record that could provide oosome reasonable basis for the action taken by

the agency." That contention is clearly without merit.

Given the significant amount of substantive evidence put forth by BFI that was

validated by all of the experts in the case, and the complete lack of controverting

evidence put fonh by NNC, this Court should find that the decision of the TCEQ

regarding natural drainage patterns is supported by substantial evidence.

to' AR38, Tr. at 2286;AR29, Executive Director's Exhibit ED-MU-I at 11.

49

V. CONCLUSION AND PRAYER

For the reasons stated in this brief, BFI requests that this Court affirm the decision

of the Court below.

Respectfully submitted,

LLOYD GOSSELINKROCHELLE & TOWNSEND, P.C.

816 Congress Ave., Suite 1900Austin, Texas 78701(5 12) 322-s800(s12) 472-0s32 (Fax)

PAUL G. GOSSELINKState Bar Number 08222800

JEFFREY S. REEDState Bar Number 24056187

ATTORNEYS FOR APPELLEE,BFI WASTE SYSTEMS OF NORTHAMERICA, LLC.

50

VI. CERTIFICATE OF SERVICE

I certiff that a true and correct copy of the foregoing document has been served on

the following as indicated below, on this 20th day of August, 2012.

James A. Hemphill Via Certified Mail, Return Receipt RequestedGraves Dougherty Hearon & Moody, P.C.401 Congress Ave., Suite 2200Austin, Texas 78701

Erich BirchBirch, Becker & Moorman, LLP4601 Spicewood Springs RoadBldg. 4, Suite 101

Austin, Texas 78759

Nancy E. OlingerCynthia WoelkDaniel C. WisemanOffice of the Attorney GeneralP.O. Box 12548Austin, Texas 787II

Paul M. Terrill ruThe Terrill Firm, P.C.810 W. 10ft StreetAustin, Texas 78701

Judge John K. DietzHeman Marion Sweatt Travis

County Courthouse1000 Guadalupe, 3rd FloorAustin, Texas 78701

Via Certified Mail, Return Receipt Requested

Via Certified Mail, Return Receipt Requested

Via Certified Mail, Return Receipt Requested

Via Hand Delivery

I'l'ft,ru1*/<

Paul G. Gosselink

5l

2220837

VII. APPENDIX

1. Agreement Regarding Operations and Closure of the Sunset Farms Landfill

2. Administrative Law Judge's Exception Letter Dated June 29,2009.

3. Proposal for Decision Administrative Law Judge's Discussion and Analysis of theTestimony of Mehevec.

52

EXHIBIT 1

EXHIBITh

f;I

LlovdA'GosselinkFEEfiiI^'TTORNEYS AT LAW

81 6 Cmgrcss Arsue, Sritc 1900

Aucin. Terras 78701Telephone (5 | 2) 3f2-5800Facslmile: (5lZ) +ff4532

unaar.lglaurfrmcorn

Mr. Gosstlink's Dircct Linc: (tDl 322'JE06Emril: pgosrtlink@lglawfirm.com

Oclober 31, ?008

Judge William E. NewchurchStare Office of Adminisrrative Hearings300 w. I5s Street, Suite 504

Austin, Texas 78?01

Re: SOAH Docket No. 582-08-21?8: TCEQ Docket No- 200?-1774-MSWPermit Amendment Application of BFI Waste Syslems ofNorth America, LLCIvISW Pennit No" I 447 A; Rule I I Agreement

Dear Judge Newchtrrch;

Enclosed for fiIing please find the Rule I I Agreement by and between the City of Auslin,BFI Waste Systems of North America, LLC, and Gifes Hofdings, LP.

By copy of this letter we are providing copies of the Rule | | Agreenrent and allattachments to all parties of record in this case.

Respectfully submi tted,

7.q'$,fth-tLPaul Gosselink

Enclosures

cc: See attached Certilicate of ServiceGary McCuistionBrad Dugas

FfiIBTT

Lloyd msselink Rochelle & Torrrnsend, PC.

October 1,2008Page 2

Ctrtifrc.atg,q{$+ryige

I hereby cefliry that a hrre and correct copy of rhe loregoing document was served on the followingcounseliparties of record by certified mail (return receipt requested) regular U.S" mail, facsimile transmission

and/or hand delivery on October 3l, 2008:

IOn rrm-curer cle..M:LaDonna CasrafruefaTexas Cornmission on Environmental Quality0ffice o[Chief Clerk, MC-f 05P.O. Box 11087Auslin, Texas 7871 l-3087Tel: (512) 239-3300Fax: (5 l?) ?19-31 I I

FOR TIIE PtDJ.rC |NTERE$T CQUNSEL:Christina MannTexas Comrnission on Environmental QualityPublic Interest Counsel, MC.l03P.O. Box 13087

Austin,'fexas ?871 l'1087Tel: (5 | ?) 239-4014Fax: (5 12)239-6J77

FOR T}IE EXECUTIVE.DIRECTOR:Steve Shepherd, Staff AnorneyTexas Commission on Environmental QualiryEnvironmental Law Division, MC- I 7lP.O. Box I1087Austin, Tcxas 7871 l-1087Tcl: (512) 2]9-0600Fax: (512) 219-0606

FEPB.ESET'TING CITY OF AUSTIN:Holly NoelkeAssislant City AttorrreyCity of Austin Law DepannrcilP- O. Box l08EAustin, Texas 78767Tef: (512) 974-2630Fax: (512) 914-6490

REPRESEN:nNC Or LES FtOLplNcS.- L.p.Paul M. Tenill,ltlThe TenillFirm, P.C,810 W. lOs StreetAustin, Texas 7870tTef : (512) 474-9100Fax: (51?)474-9888

REPRESENTING NORTHEA ST NEICHBOR S

COALITION AND INDIVIDUALS:Jim Blackbum and Mary CarterBlackburn and Carter, LLP4709 Austin StreetHouslgn, Texas 7?004Tel: (7ll) 52.1-1012

Fax: (7 | l) 524-5165

REPRESENT|NG.TJFA., L.P.:Bob Renbarger and J. D. HeadFritz, Byrne, Head, & Harrison, LLP98 San Jacinto Blvd., Suite 2000Austin, Texas 78701

Tel: (5lzl4'16-2020Fax: (5 l2\ 477-5?61

R.EPRESENTING TRA V IS COUNTY.:Kevin MorseAssisfant Travis Counry AnorneyTravis County Anorney's OfficeP- O. Box 1748Auslin, Texas 78767I'ef: {512) 854-95I3Fax: (5 l2) 854-4808

RE PRESENT rNC PTONEEB _f_A RMS :Stephen P, WebbWebb & Webb1270 Bank of America Center515 Congress AvenueP- O. Box DrawerAuslin, Texas 'l,8767

Tel: (5f Z)472-999AFax: (512) 472-l I83

7il4,rel,4l<-Paul C. Cosse linh

SOAH Docket No. 582-0&2178TCEQ Docket Number 2007- 1774-MSW

IN THE MATTER OF THE $APPLICATION OF BFI WASTE $ BEFORE THE STATESYSTEMS OF NORTH AMERICA, NC. $ OFFICE OF ADMINISTRATIVEPROPOSED SOLID WASTE PER]VIT $ HEARINGSAMENDMENT No. | 447A $

RUI"E r I ACREEMIINT

Pursuant to Rule l1 of the Texas Rules of Civil Procedure, the undersigned counsel agreeas follows:

l. The City of Austin ("City";, BFI Waste Systems of North America, LLC ("BFI")and Giles Holdings, t.P. ("Giles') have entered into a binding AgreementRegarding Operations and Closure of the Sunset Farms Landfills (o'Agreement")(copy atiached as Exhibit a).

2- BFl, Oiles and the City desire for the 'ICEQ to consider the Agreement in thisconteslcd case.

3. BFI" Giles and the City desire and request that the proposal for decision and anypermit amendment issued by the TCEQ in this contested case contain theprovision$ set out in the Agreement as Special Conditions in the permit.

4. The City participation in the contested case hearing will be limited to testimonyand evidence in supporl of the terms of this Rule I I Agreement and rheAgreement.

Texas State Bar No- 0822280

Agreed on this date, October 3l, 2008.

Paul TereH- T€Rftt ut

ly

Attorney for Ciry* of Austin

Page 2

Cer.rjfiqgre of Sqfvice

I hereby certiff that a tnre and colrect copy of the foregoing document was served on the followingcounseUparties of record by certified mail (rcnrm receip requested), regular U.S- mail, facsimile trursrnissionand/or hand delivery on October 31, 2008:

FOR THE CI.IIEF CLERK:LaDonna CastafiuelaTexas Commission on Environmental QualityOffice of Chief Clerk, MGl05P.O. Box 13087Austin, Texas 7E7l l-3087Tel: (5t?) 219-3300Fa,x: (5 17) 239-3111

FQR TFIE-PU-BLIC INTEREST C.OIJNSEL :Cfuistina MannTexas Commission on Environmental QualityPublic Interest Counsel, MGl0lP.O. Box 13087Austin, Texas 7871 l-308?Tel: f512) 239-4014Fa.c: {512}239-6377

FOR TlrE EXECUTI\rE DT.BFCTOR:Steve Shepherd, Staff AnorneyTexas Commission on Environmentnl QualityEnvironmental Law Division, MC- 173

P.0- Box 13087Ausrin, Texas 78?I l-1087Tel: (5l2) 239-0600Fax: (5 I 2) 219-0606

REPRE$ EN f rNC CTTY.OF .AUSTlbr:Holly NoelkeAssistant City AnorneyCity qf Austin Law DepartrnentP. O. Box 108$Autin, Texac 78767Tel: (512) 974-ZffiAFax: (5121974-6490

REPRESENTTNG .S"l"l?.ES liOLDrl:rCS. L.p.Paul M. Tenill,lllThe Terrill Firm, P.C. .

810 W. t0s StreetAustin, Texas ?8?01

Tel: (5t2) 474-9100Fax: (512) 474-9888"

REPRFSENTTNC hIOR.rHF4 qT NEt c H FORS

Jim Blackburn and Mary CarrerBlackburn and Carler, LLP4709 Austin StreetHou$lon, Texas 77004Tel: (?13) 524-1012Fax: (713) 52+5165

REPRESENTLNG TJFA. .L.P. :Bob Renbarger and J. D. HeadFritz, Byme, Head, & Hanison, LLP93 San Jacinto Blvd., Suite 2000Austin- Texas 78?01TeL (512) 476-2020Fax: (5 17) 477-5267

REPRE $ENTr NC TBA VI S.SOUI'I TY :

Kevin MorseAssistant Travis County AttomeyTravis County Attorney's OfficeP. O. Box 1748Austin, Texas 78767Tel: (512) 854-9513Fax: (5 l2) 854-4808

REFRESE}{IING_PTONEER..FaF.M S :

Stephen P, WebbWebb & Webbt270 Banh of America Center515 Congress AvEnueP. O. Box DrawerAuslin, Texas 78767Tel: (512).472-W9OFax: (512)472-3183

AGRLEM ENT REGARDING OPERATION SAND CLOSURE OF THE SIINSET FARMS LANDFILL

This Agreement ("Agreement") is made by and between BFI V/aste Systems o[North America, LLC {"BFI"), Giles Holdings, L,P, (*Giles'}, and the City of Austin("Auslin" or "City") a home rule municipality located in Travis County Texas, inconneclion with BFI's applicalion to expand the Sunset Farms Landfill ("Landfill")]ocated at 9912 Giles Road in Travis County, Tsxas.

I. RECITALS

Whereas, BFI applied to the Texas Commission on Environmental Quality (TCEQ) for avertical expansion to the Sunset Farms Landfill (TCEQ MSW Draft Permit No. I4474);

Whereas, BFI's application to expand the Landlill has been rcfened to the State Office ofAdministralive Hearings (SOAH) for a contested ease hearing, SOAH Docket No. 582-08-2 r 78;

Whereas, Auslin obtained pafly stalus in SOAH Docket No. 582-08-2178 u'itir the statedgoals of ensuring discontinuance of waste acceptance at the Landfill by November l,2015 and requiring improved enforceable operating standards as long as the Landfillremains open;

Whereas, the area surrounding BFI has become urbanized through the years subsequentto the initial permitting of the Landfill,

Whereas, landfill operalions in close proximity lo residential neighborlroorls presenlun ique probf ems requirin g special ized solutions;

Whereaq a porlion of the propefly on which the Landfill is located is ou,'ned by Giles andthe remaining property on which the landfill is located is owned by BFt;

Whereas, BFI is of the opinion that il has a valid exemption from the City's sitedevelopment plan permitting reguiremenrs;

Whereas, the City is of the opinion that BFI must obtain administrative site plan approvalunder Ausrin Ciry Code Chaprer 25-5, Article 2;

\rly'bereas, whether and the sxtent to which BFI can vertically expand the Landfitl andwhether Austin can prevent or restricl the expansion is uncertain; and

\\Ihereas BFI and Austin have agreed to resolve their disputes regarding closure andoperations of the Landfill.

.l

NOW THEREFORE and in consideration of the mutual covenents and apeemenrs to be

performed as set orrt belour, Ciry, BFI and Giles egree as folJows:

I L AC Ifi*IOWLEDG EMENTS, REPRESEN TATI ON S, AN D WARRAN Tl ES

A. BFI and Gites and Austin acknowledge that they understand the purpose and

intent of this agreement.

B. BFI and Ciles and Austin represent and warant thar rhey have the full right and

authority to execute this agreement,

III. T}EFINITIONS

Fof the purposes of this Agreement:

A. Side slope means the exterior edges of fill areas or sidewalls of detenlion pondswhich generally rvill have a slope sleeper lhan l0%.

B. Top deck means the top portion of the landfill rvhich generally will have a slopeflatter than l0%.

C. Adequate vegetation growth means 85% surfac€ area coverage in vegetation at

least l" tall,

D. Seeding events means seeding in compliance wilh City of Austin EnvironmenulCriteria lvtanual (ECl\{} Section 1.1.? A (Exhibil l) except as othenvise noted.

E. Amended landfilt permit means proposed TCEQ draft p€rmir 1447A for theSunset Farms Landfitf.

F. Property means the property on which the Landfill operates as described in theamended landlill permit application-

IV, Tf,RMS

A. BFI agrees to cease acceptinB waste al the Landfill and agrees to restrict theproperty on which the landfill operates from accepting waste after November l, 2015 andto further restrict the properry on which the tandfill currently operates from use fortransfer stat i0n operations-

B- Ciles agrees to restricl the properly on which the Landfill operates from acceptingwasle afferNovember l,2015 and to firttrer reslrict the properry on which the landfillcurrently operales from use for transfer station operations.

C. This Agreement is understood by the parlies to be a rwitten conlract under whichthe Pailies arc granting certain concessions and providing services to one anolher. ThisAgreement shall be binding upon and inwe to the benefit of each and all of the Parties

hereto and their affiliates, successors and assigns and shall be ft covenant and restriclionrunning with the land that constitutes the Landfill site and adjacent land owned by BFIand Giles as follows:

Parcel l: Approximately 54.13 acres of land of the LUCAS MUNOS SURVEY,ABSTRACT NO- 55, in Travis County, 'fexas and being more parlicularlydescribed by metes and bounds in Documenl No. 2005198209 of the TravisCounty Real Property Records, said Document attached as Exhibit "A" hereto.

Parcel 2: Approximately 172.5i I acre tract of land out of the LUCAS MLNOSSURVEY No. 55, Abstract 5[3, being a portion cf a 176.10 acre tract of landconveyed to Mobley Chemicals, Inc., by warranty deed, dated January 22,1982,recorded in volume 7671, page l0l" of the deed records of Travis County, Texas;said l7?.51l acres being more particularly described by metes and bounds inExhibit "8" atlached hereto.

Parcel 3: Approximately 122.71| acre tract of lantl out of the LUCAS MLNOSSURVEY No. 55, Abstract 513, being a portion of a 73.70 acre tract of landconveyed to Mobley Chemicals, Inc-, by warranty deed, dated January 22,1982,recorded in volume ?671, page ll7 and a portion of a 102-87 acre tracl of landconveyed to Mobley Chemicals, Inc-, by warranty deed, dated January 22,1982,recorded in volume'1671, page 109, both of the deed records of Travis County,Texas; said 122.711 acres being rnoreparticularly described by metes and boundsin Exhibit "C" atlached hereto.

Ciles and BFI represent that no other person or entity other than themselves currentlypossesse$ any interest in such land that would allow them lo dispose of waste or operat€ atrnnsfer station at the Landfill and agree that ruch covenant and rcstriction shall bind allfurure holders of any interesls in such land. BFI and Giles will execule and deliver toAustin a document memorializing the restrictive covenant and the City of Austin mayrecord the restrictive covenanl in the Travis County Real Property Records. BFI and

Giles agree that any sale, assignmenl, or tnnsfer of the Landfill permit shall be madeexpressly subject to the terms of this Agreement-

D. BFI will comply with rhe following terms related tq drainage, erosion andrevegelalion:

l. BFI agrees to place intermediate y'over and implemenl seeding evenls, on all sideslope disturbed areas on which activity has not recommenced within 60 daysexcept BFI is under no obligation to seed such areas during the months of July

2.

and August. These seeded areas shall be irrigated in accordance with the

requirements of Exhibit l.

BFI agrees to place intermediate cover and implement seeding evenls on the topdeck of the landfill in all disturbed areas on which activity has not recommencedwithin 120 days except for that area irnnrediately up gradient to the five proposed

or constnrcted drainage down chutes on intermediate cover areas as shown onattached Exhibit 2, Those up gradient areas shall be immediately vegetated uponconstnrction of each down chute with a filter strip of buffalo grass sod thatextends al least 100 feet out frorn each down chute inlet and is wide enough 1o

filter the run off to be directed to each down chute (See Exhibit 2 for widthdimensions). The buffalo grass filter strip shall be mainlained until final cover isplaced- In addition, a silt fence or mulch berm shall be placed on the top deck infront of the inlet of each down chule and at the end of each conslructed downchute (See Exhibit 2 for locations). These silt fences or mulch berms shall remainin place and be maintained until the areas contributing runoff lo these downchutes achieve adequate vegetation growth.

lhe initial seeding evenl for all disturbed areas will be accomplished using hydro-mulch seeding application procedures per Exhibit 1.

Seeding of the disturbsd areas will he of a seasonally appropriate mix. Cunentlythe seed mix is bermuda/millet for w€um wealher and rye for cold weather. Whencold weather seed is used the seeded area shall be reseeded within 60 days of the

onsel of sufficiently warrn weather to support the rvarrn weather mix. Thereseeded area shall be irrigated unril adequate vegetation growth is achieved,

Seeding for the final cover shall include a seasonally appropriate 609-5 (nativeseeds) mix as defined in lhe City of Austin Standard Specifications Manual onapproximately l5Yo of the surface area of the eastern and nortbern slopes of the

landfill and for the remainder of the site a seasonally appropriate mix.

Perimeter sediment/erosion control devices such as silt fences, hay bales or othersystem$ acceptable to the City shall be in place prior to the establishment of anysoil slock piles on site. For soil stock piles which have slope lengths greater than20 feet, mid-slope temporary stabilization controls such as seeding, larping orplacement of sill fences or rnulch berms shall be implemented within fourteendays of the initial establishment of the soil stock pile and shall be maintained ingood working condition until the stockpile is removed.

BFI shall install and maintain silt fences or mulch berms within 14 days ofcompletion of intermediate cover at the base of all side slope and top deckinlerrnediale cover areas until adequate vegetation growth is achieved.

Stormwater runoff from rhe landfill area designated as Drainage Area 2 shall berouted through the existing detention pond, or the proposed rvater

J.

4.

5.

6.

7.

$.

9.

qualiry/detertion pond, when the rvasle lill in Drainage Area 2 has reached the

frnal grades proposed in the landfill expansion plan.

BFI witl ensure that the side slopes of the existing detention pond and the side

slopes of the proposed water quality/delention pond in the northeast porlion of the

landlill shall be adequately stabilized through proper grading and nraintenance

and by implementing/applying vegetalion on the side slopes of the ponds withinthirty days of completion of construction of the pond, BFI furher agrees to

inspect the sedimentation ponds/basins every three months and after every half-

inch rainfall event and to clean the ponddbasins by removing the accumulated

sediment once the sediment has reachedZs% of the respective pond capacity"

BFI'shall amend its Storm Water Pollution Prevention Plan (SWPPP) for the

Sunset Farms Landfill within 90 days of the effective date of this Agreement so as

to incorporate the specific practices and procedures described in this Agreement.

The SWPPP u/ill be zubmitted to the Ciry for review and concurrence.

BFI agrees to begin operating the Sunset Farms Land{ill pursuant to the terms ofthis Agreement and the amended SWPPP within 60 days after the SWPPP has

been arnended and the City's concurrence has been achieved.

E. BFI agrees thar it shall not accept liquid wasle that has not passed the TCEQspaint filter test and shall not construct or operate a liquid waste stabilization/solidificationbasin at the Sunsel Farms Landfill.

F'. BFI agrees ro prohibit comnrercial waste hauling vehicles from utilizing Blue'

Goose Road as ingress or egress to lhe Sunset Farms Landfill excepl for those ferv

vehicles which service businesses and residences in that area. Specifically, BFI shall

progressively discipline any of its own drivers, up to and including termination, which

ignore this prohibition. BFI shall also incorporate into its future and/or renewal contract$

with other commercial waste haulers that tbe haulers will not be allowed to dispose oftheir waste loads at the Sunset Farrns Laillfill if they utilize Blue Goose Road for ingress

or egress more than one time-

C. BFI urilt reguest that the Adrninistrative Law Judge issue a proPosed permit

containing special provisions incorporating the terms of paragraphs D. I ttuough 9 and E.

and F- as set out above -

H. BFI will request a site plan permit from the City for the Landfill verticalexpansion, and will file a site plan permit application with Austin within 60 days ofexecution of this Agreernent. The City witl process this site plan application as a "D" sileplan application under Austin Ciry Code Chapter 25-5, Article 2, and u'iIl not

urueasonably withhold approval of the site plan if all technical requirements of the Cityare satisfied-

10.

r1

J, As long as BFI and Giles are in substantial compliance with this Agreement,Austin will limit its parricipaliou in the contested case hearing regarding the landfillexpansion to testimony and matters in support of the terms of this Agreernent.

V. TERM, TERMINATION

A- 'Fhis Agreement shall be effective from and after the date of execution.

B- lf any pany defaults in the performance of any of the terms or conditions of thisAgreement, the defaulting party shall have l0 days after receipl of written notice of thedefault within which to cure the default. If such default is not cured within the l0 days,then the offended party shall have the right without further notice to terminate thisAgreement or seek enforcement of the Agreement in court including specificperformance of the terms ofthe Agreement and attorneys fees.

C. The parties agree that monetary damages would be inadequate compensation ifany party defaults in the performance of any of the terms or conditions of this Agreemenl,therefore specific perfiormance should be required-

VI. MISCELLANEOUS

A. SgYgebltjy. If any section, subsection, sentence, clause, or ptuase of thisAgreement is for any reason held to be unconstilutional, void, or invalid, the validity ofthe remaining portions of the Agreemenl shall nol be affested thereby. It is the intenr ofthe parties signing this Agreemenl that no portion of it, or provision or regulationcontained in it shall becorne inoperative or fail by reason of unconstirutionality orinvalidity of any olher section, subsection, sentence, clause, phrase, provision, orregulation of this Agreement.

B. F.orcg Maj_e_Ure. No party shall be liable for any delay, faifure or default inperforming under this Agreanent if such delay, failure or default is caused by conditionsbeyond its conlrol including - bul not limited to Acts of God, governrnent restrictions,wars' insurrections and/or any other cau$e beyond the reasonable control of the partywhose performance is affected-

r

C- Lawjld-Venqq- This Agreement shall be governed by the laws of the Stare ofTexas. t he obligations under this Agreement are performable in Travfs County, Texas.It is expressly understood that any lawsuit or litigation arising out of or relating to thisAgreement will take place in Travis County, Texas.

D. Alteration. Amendment, or Modificatiqp. This Agreement may not be allered,amended, or modified except in rvriting: approved by BFI and Giles and the CityManager of the Ciry of Austin or his designee.

E. Entire Agreement. 'Ihis Agreemenl constitutes the entire agreement belweenAustin and BFI and Giles- No other agreement, statement or promise relating to thesubject matter of this Agreement which is not contained in this Agreement is valid orbinding.

F. Nqtrgq. Notices to either party shall be in writing, and may be either handdelivered or sent by certified or registered mail, postage paid, return receipt requested. Ifsent to the parties at the addresses designated herein, nolice shall be deemed effec$veupon receipt in the case of hand delivery and tluee days after deposit in the U.S. Mail incase of mailing. The address of the City of Austin for all purposes shall be:

CITY: City of AustinSolid Waste ServicesP.O. Box 1088Austin, Texas 78767

The address for BFI and for Giles for all purpose$ under this Agreement and forall notices hereunder shall be:

BFI:2575IH 15 South, Suite 103

San Marcos, TX- 78666

Giles:

Sreve Mobtey?2AS Weslover RoadAustin. Texas 78703

Ron Habiureiter1208 West AvenueAustin, Texas 78701

F. Giles joins this Agreement for the reason that il owl$ fee simple title to fand onwhich the Landfill is located and leases that land to BFI for operation of the LandfiU andbenefits frorn the mutual covenants and agreements herein. Giles hereby consents to BFIand Austin entering inlo, complying with and enforcing the terms of tbis Agreement andagrees to take no action that would be inconsistent with or impede implementation of andcompliance with this Agreernent by any Party.

IN WITNESS WHEREOF, the authorized representative of Austin, Giles andBFI, by the signature of their authorized representatives belo% have caused thisAgreement to be executed in duplicate originals, effective as of the latest of rhe threedates entered below.

Date:

*,M,Ht)T

HOLDINGS, L.P.K-nown as

:i-

0CT-3t-?008 FRI 0l:23 Pll duncant0/31/0t IJ;SJ FrlI EIlrt?ZOSI?

disposal-ridland FAI( H0. I4325830544LIoYe 6olrall* P. 0t

El oot

IN WIINESS WHEREOF, tho nrrlhori.ecd fiDrcssrffii've of Austin, Oilcs 6ndBIl, by frc signaunru of thrir e[&orized rcfcsfotlsrres bclow, havc carucd 6isAgffiment to be c?sc$med in rtuplicrto odginats, cffdivu es of tbc lucst of ths thrceduos cncrsd bclow.

BN TTA"SIE SYSTEMS OFNORTfIAMERIEA, LLC

CITY OF AUSTIN

Forncrly lfurin Es Moblty Chtricsl* hG.

PAGE fll'Rtlfllfi ffi1120ffi?ltJsPtillcrnfidDayfiglilrilnel'$lJHilt$ffi0tn'0t{Fr0e 'ffiilt?I$305ff ,DtrRAlftrf ffm+s[0o.s

GILES HOLDINGS, LP.Known us Mobley Chcmisals,Iuc-

$Fp:{s}ilr,}ttffiHtt0 , rur $t #il0r$t,0iE:sf0, ilt0lff$ffiH,i$, lru l&{lo pqry]m il:ffJ $wJrlfit lIo/tlu , BI ]ryd@ooa

t/e a6ea ! or:c t go* ts- lco I gtte #e tte llctrnuvm :Ag tuas

Exhibit A

Approximately 54-13 acres of land of the TUCAS fiiUNOS SURVIY, ASSTRACT NO. 55, in TravisCounty, Texas and being more particularly described by rnetes and bounds in Docurnent Ho-

?OO5198tO9 of the Travis County Real Property Records, said Document attached as Exhibit "A"hereto.

I, ,"-="t-t | --::..,..- -rrro t i/'l-l

'..','-r.i- - I

nll,, ' ll'{ fi:='t

NOTICE oF CONFIDEI{TIALITY RIGHTS: IF Yst} ARf, A NATURAL PERSON,YOU MAY REMOVE OR STRIKE ANY OFTHE FOLLOWING INFORMATIONFROM TIIIS INSTRUMENT BEFORS IT IS RLED FOR RECORD IN THE FUBLICRECORDS: YOUR $OCIAL SECURITY NUMBER OR YOUR DRIVER'S LICEN$ENUMBER

rr0 ?0CI5fs?09

5 PGS

BFI WASTE SYSTEMS OF NORTH AMERICA. INC.t/oAltied Wastc Industrics, lnc.15880 N. Greenway-Hayden lnop. Suite 100

Sconsdale, AZ 85260Attn: Stevcn M- Hclm, Vice-Prcsidcnt - Legal

STNCnI }V+NNaNTY DEED

Dale : Awy t7, .zma

Grantor: Gilcs Hsldings, L.P.

Grantofs Mailing Addrsss (including county):c/o Stcvc Moblcy

Grantce's Mai ling Address:cloAllicdwaslclndusuies,Inc,

t''- "

ffi15580N. Greenway-Haydcn lnop, $uite 100

Scottsdale, AZ 85260

Considcr-ation:

The Crantor acknowlcdges rhc rcceipf of J 10-00 and other good and valuablc consrderationpaid ro Crrntor by Grant*, for which no lien, exprcss or implied is retaind.

Pmperly {including any improvcments}:

APPROXIMATELY 54-tl acres of land out of the LUCAS MUNOS SURVEY,*nSfn'tCf NO- 55, inTravisCounly,Texas andbcingmorcparticularlydcscribedby rneres and bounds in Erhibit "A" aflachcd hereto, SAVE AND EXCEPT that

Fot-towrruc REconDATroN,RrtuRnro:

2?05 Wrstovcr Road -.-*rQ|[r{t*S

cran,ee: *^H;,ffi:Jil;,,Ar\4ERrcA.*.: 1

1o0I

portion of rhc subject prop€rty lying within thal certain 1,606 acrs tract of land

awarded to the fity of Austin ia F-rnincnt Domain proccedingg, rccordcd inDocumcnt No- ?00lla32 | 8, Oflicial Public Rerords sf fpavis County, Tcxas.

Reservatiom From and Exccptions lo Convcyance and Warrrrtp

$ubjca to tares urd assessmsnts not )Et dclinqrxnt, Tescrvalions in patcnu and alleas€finrnts, rightsofway,licns, csyena$l$, conditions, rcstrictions,obligations and liabilitiesas rnayappcarof rccord and such state Gf facts as would bc discloscd by a properinspcctionot accrrale TLTA *urvryof tbc Propcrty

Crantcc is accepting and taking ths Property in its currcnt condition, *AS IS*-

Granto'r, lor the considerztion sel forth hcrcin and subject to lhc rcscrr.ations from and

crceptions tc convclancc and warrantyr Erants, sclls, ard convgl4$ to Granterrhc abovc refcrerrccdpropsrty, togalrcr atl thc tights rnd appnrtcnarrces thcrelo in any wisc bclonging to have ard holdir fo Grantcq Grantee's sueccs$lni, or assigns forever- Grantor binds Grantor rd Grarrtor's hcirs,execulors, administrators, and succcssor$ lo warrant and forcver defend srid propcrtyto Grantec and

Grantcc.s succcssors, and assigns against every pcrsolr whomsoever lawfully clairning or to clairuthe samc or eny part lhcreof, when thc claim is by, tfuougb, or rrndcr Granlor, €xce'pl as to thcreseftataons from and erceptions to conv€yarrce and warranty set fonh hercin. Wben lbe conlextrequires, singular nouns and pronorms include thc plural.

EXECI.JTED this l?-day or A+rqv5f:._ ,2004.

CTLES HOLDINCS. L.P.bp Moblcy Mrrngcnnrrt Companl

Gencral Parrncr

ACKNOWLEDGMENT

STATEOFTEXAS $

$COT'NTY OF TRAVIS $

BEFORE lvlE, tlrc urdercigned authority, on thisdaypersonally appc*red Steve Mobhy, theVicc-Prusidcnt of Mobley Managemcnt Company in its capacity as Gcncral Prtner of GilcsHoldings, LP., a Texas limited partnership, knourn to me to bc the pcrson whosc name is subscribedto thc forcgoing inssument, and acknow tcdged lo mc that hc cxccuted thc sarnc for thc purposcs andconsideration thcrein cxpresscd and in the capacity stated-

Given urder my hand and sealof oflice on lhis the o1 frr+ vs*, zoo$

'@ffi

14-li AcrrrLucas Munor Sur"cy No- 5i. A-51jasavis fqunry, Tcrlr

EqilBTT -A" TT$ P}6ES

FN?94t{T\rrH}Mry 14.2O03

SAM. lrtc Job No- 2i t4?*ol

SAID '.T.I;

ACRE TRACT OF LAIYD A$ SHOWN ON SURVEYINS A}'D MAPPING- INC.DtutwtNG t'ruMBER. ?it{l4t.Dwc AND BEING IV|ORE PARTICUTJRLY DESCRIBED BY METES ANDBOIJ}TDS A5 fOLLOWS:

BECINHING at r t/?-ioctt Lorr rod fo$trd in thg tourhwe$ R;ght^{f-Wry {ROr}} tinc of, Bl'us Gooss Road' rTarieblc width ROW for *hicb no decd informarion '*as forrnd for rhc nonhwcst conrc: of rrid ii-I0 rcrc rracq

THB\CE wirh hc roodrurcrr ROW l'rnc of srirt Bluc Goosc Road. rhc norrhc*sr lincr of :'rid 5i.l0 errt trrc\ rod thc

norrhrart lincr ofthr u'rr dcscribcd htrcir, thc fottowing rwo (3) coulrc! rnd distancts;

l. S 6i' 16'?6* E. r dirnn* of Jl?-n fest ra A lfl-iD(h irqo rod fodttd' astd

?- S 6f' 0l' ?9- E, r disurrce of ?514..t4 fcct to e l/?-inch ;ror rod wirh r plasric cap rndrcd*SAM, INf s'cr

in rhr pnopo*d norftwcl ROW Linc of Gilcs Roed- a veriablc rrkfth ROlv, dcrcriH in a Right of Earyand Posstrrion AElemtrt wirh tr frqv of Ausrin as rccordtd in Docrarrrent No ?000O690i I of thc OfficialPublic Rrcords of Trevk Corrrry Ttrrs;

THENCE lcaving ric nonhnsr tinr of reid 5i.10 actc trecr. and crorsing said 5i. 10 lf,tt tr:Et *irh ths ptopo5cd

oordrr'cst ROW tinc of rrirl Gilcr Road. bcing rhr rqrthcasr linc of tht rrrct dcscribcd hcrcin, thl follcwin3 slr (6)Eoirnrcg and disranccs:

l- 5 f6' j4'O6- W- e dirrence of 20.O0 fccr ro e U]-inch iron rod wi0r a plasrir cep found rt thc bqinnin3 ofa norr-r:rngcor curvr to rht rigbt frpm *hich r tr?-irrch iron rqd found in lhc touthcert ROw liae of said

Cilcr Rord bcrrs 5 6l'5.1' l7- E I distlnce of 179,9t ft:r

? wirh rhc erC qI rrid curl,c lo rhc righr- pasring ar a distrnce Of t?-t4 fccr a l/l-inch lron lod found for thcoonh*rt corrlcr of a proporcd rlope cascmcnt dcscribcd in raid Righr o( Ena.. ud Por:crsion AgrceficnLin ell a rotal dirrrnce of .10,0O frcr- rhrough I c:lrraf anglc of 9l'40' .12'- hrving r radrut of 25.00 ftet, and

a long cbord *h-rch bcarr 5 l?' jt' ll" E, a distancc of iJ.87 fcrr to a lr3-inch irpn rod rriilr a plastic capfound for rhc cnd of said curvc ro llrr lcfu

i. S l7' 5?t 13- W. r dbnncc of ?50-9E fcct ro a l/3-imh iron rod rrith a plesric tep foilnd,

{- SZe'it'01'W.r dinanccofl2{-98fcarc r lt2-inch iroarodwirh eplerticcap mrkcd-SAM INC scL

5- S 37' i2' 16* w. r dbrmcc of lJ6.7l fcet ro e l/J-inch iron rod rvirh e plarric crp rnarted -S*M. fUf sct,from rrbkh rod I lr?-ingh iron rod forrnd fiorthc wcrt Gorrrcr of said F:opq6f,d rlogc cardmcot bc*r with rhc

wtrr linr of rafol cgcncftL N 6l'i6' j{- W, e distrnc= of t6-Ol fct+

6- S ?7- 59';9- W. I dinrncc of 80;-6; fccr to r l4-inch iron ioO with e ptrstk crp mu*cd 'SAM, INC- sct

in rhc roudr linc of said j!-t0 acrc onst from whkh a 1t7.inch iron rod formd for r p0ht of inrcffcsrion in

*;Tn**t RO\Y lhc of :aid Gilc Roed bcrrr rirh raid f,OW linc. S:6''?'tt.

:::tffffi N{t Prgc I of3

J54.1i AtrcrLucar Munos Strrvcy t'lo. 5i. A- J t ]Trevir County, Tcras

FN 194J rrrrftftMey ta. t00i

SAM- Inc. lob ilo- ll l4?-{t I

THE|{CE rirh tlrc wesr and muth lincr of seid 55.10 acrc tract and thr trt(t dcsrnlbrd htrtrn $cing the nmainingtincr of r ralhd lSl.$T rcrc trrst dcscribtd in a dtd rs rttordcd h volurnc 76?1. Pagt 109 cf *rc Drcd Rcror& ofTravb Counry, Tcrts. and r athd 176.10 rcrc lirt of hrd dtscribd in r dccd rs rt(ordcd in Volumc ]6?1, Pegc

lOt of the Dtcd Records ofTnv-rs County, Teres, thc foUo.ring rir {6} coursr$ .rnd disrancsr:

t- N 5l' ri'?3- W, r disrencc of ll.l-16 fcct to an X ch-aclcd in ttrc top of r htrdwrll.

Z. N 2l' ,19' j l* L r distaricr of t23i-9t frct ro l lt?'inch iron rod for,md.

i- N tf'.tj'ol* w. r dirarrcc of 17t2.Il fccr to r lfZ.indr iron rod found,

4. ld 6i? 0;' 14- W. r dirrarrcs pf l08O-00 fcct to r rrhularsd poinr in lhc rnargin of r rpoits pilr,

J- N 27' jJ. t4* E, e dironcc of 260.00 fcct to r ll?-inch imo tod found,

6- N l?- ?f lf q r digencc of EF|,II ftct ro dre FOINT DF BEGINNING. and conraining J't.ti xrw oflrnd msr or lesr-

Btari4 8a:ir: Bcariog: arc basrd on thc Tcret Sratc Coodinare Syrrcrn, HAD 8it(86). Central Zonc-

THE STATEOF TEXAS

COUNTY OO lgrtvtSKI-IOW ALL MEN BY THESE PRfSENTS:

Thu t- Peul L- Frstcy, a Rcgistcrcd hofrsrbnal Lard Surveyor. do htreby ccnify thar thc abovr dtrrriPtionir mrs md corrtcr ro rhe bcsr of my tnowlcdgr urd bclirf lrrd thar $rc proFnl dtsr.ribcd hcrcin wrs dttcrminrd by rrurcy mrdc oo the ground during May. ?0Oi undtr my dirrction and ruptrv-nion.

]rI/ITNESS MY HAND AND SEAL rt Ausrin. Travis Counry, Tc-rru :hir rhc ;4'l day of Mry IOOS A-D-

SURYEYINC AND tvtA PPINO, Inc.a0Z9 Capitat Of Tcxas Hwy-. So- Suirs IZJAustin. Tc,tu ?t?{X Rrgisrred ftofesrbnrl Lud Sunreltt

,lt ljz - Statc ofTtrrs

FILED AND RECORDED

t$os oct ?r or:fr Pil nffil$?tsutLLlBtsL $3?'ce

Dfi}N D€8EflJYOI* Cu.r|nf GLENX

nsvls col.f{l-t -I€xFs

(ff rcrEl Pt BLIG CECOnOf

Exhibit B

Approximately l7Z.53I acre tract ol land out of the LT CAS IfUNOS SURVEY Ho. 55, Abstract 5 | 3,being a portian of a 176.10 acre tract of land conveyed to Mobley Chemicalr, lnc., by warranty

dee4 dated Janua4y 27, 1982, recorded in volume 7677, page 1O1, ol the deed records of TravisCounty, Texas; said 172.531 acres being more particularfy described by meter and bounds in

Exhibit'B- attached hereto.

^-..rll ff;,l'jffi:::^

r f ̂ hfiVtr# Proressionarff:ilT'T;J'Tfl' Inc

aslfl"ffa F'load

v yl lr" I I Ausin, rexas 7ura4

172.531 ACRESitoBLEY CHEtrilCAtS, tNC -

A DESCRfPTION OF A 172.531 ACRE (APPROX|IiATELY 7.515,455 S.F-] TRACT OF'I-AI.ID OI'T OF THE LUCAS MUNOS SURVEY NO. 55. ABSTRACT 5I3, BEING APORT]ON OF A 176.10 ACRE TRACT OF LAND CONVEYED TO MOBLEYCHEMIGALS,INC.. BY WARRANTY DEED. DATED JANUARY 22, 1982, RECORDED INVOLUME 767I, PAGE IO1. OF THE DFED RECORDS OF TRAVIS COUNTY. TEXAS:SAID 17?.531 ACRES BEING MORE PARTICUTARLY DESCRIBED BY hTETES ANDBOUNDS AS FOLLOWS:

BEGIHIfING at a ll?-. rebar with cap set for the southeasl comer of the remainder of the176-fO acre trac{, being also lhe sout}nrest cofner of the remainder of a 73-2O acre lractrecorded in Volume 7671, Page f 17. oI the Deed Records of Travis County, Texas, and inthe norttr line of a 1A8.27? acre tract recorded in Volume 7579, Page 500, of the Deed.Records of Travis County, Texas;

THENCE abng the north line of the 108.272. over and across the f 76.lO acre tract lhefollrrwing two (2) courses:

1. North 62'34'02' West a distance of 1091-65 feet lo a 1l? rebar with cap set in lhesouth lirre of the 176.10 acre tracl, being also in the norlh line of the 108.272 ac-retract;

2- tforth 62'17n2'Wesl, a distance of 155829 feet to a t' iron pipe found for thesouthwest corrrer ol the 176-10 acre tracl, being also the norlhwest comer of thetOB-272 acre lract, and in the east line of a 9O.00 acre tract of land conveyed toElizabeth Jannon WiHer by deed of record in Volurne 3499, Page 13S9, ol DeedRecords of Travis Courrty, Texas and h Document No, 2004128106 of the Official

THEHCE t{orlh 26"5t46' East, along lhe west line of lhe 176-10 acre trad, being also theeast line ol the gO.0O acre lract,432-[X] feel to a 6Od nail found -n a post in the west line ofthe 176-10 acre tract, beiqg also the southeast corner of a 4O-0O acre tract recorded inVolume 10&45, Page 19S of the Red Property records of Travis County, Texas;

THENCE North 27"O2'31- Easl, alorg lhe common line of the f 76-10 acre tract, and the40.00 acre tract, a distance of 381.28 feel to a 6Od nail fotrnd in a tree slurnp for lhe soulhcorner of the 0-f 36 acre Quit Claim Deed remrded in Doanment No. 20011558S4, of theOfficbl PuHic Records of Travis County, Texas;

THENCE along the rrtresl line of lhe remainder of the 176-10 acre tract, and east line of lhe0-136 acre tracl the following two {2} courses:

Page 2

1- North 37"05'31' East, a distance of S3-25 feet b a 60d naiil fourrd in a tree sturnp;

2- Ffodh 26'47'17" East, a distance of 794.1$ feetto a ll2* rebar found in the west line ofthe rernaioder of the 176-10 acre tracl. being also the rnilheast mrner of lhe O.l3Sacre hact and the south comer of a 0-048 acre Quit Claim Deed recorded inDoorment No. 2001 1?ilf 1, of the Official PuHic Records of Travis Cotrnty, Texas;

THEHCE Norrh 27"5724- EasL along the common line of the rernairrder of the l7S-10acre lract and the 0.04S acre tracl a distance of 1228"3O feet ls a 112: rebar with cap setfor fhe northwest cotner of the remalnder of the 176.10 acre tract, befurg also the noilhcomer of the 0.O4S acre hact, ard Fr the south ftlhtof-way line of Blue Goose Road (rqht-of-way width rraries) and lhe beginning of a no*tangent cuffe to the lefL

THENCE along the $outh right-of-my line of BIue Gome ttoad, and in part the rrorth lineof the rernairder of the 176-10 acre tract lhe folowing t$*s (2) courses:

f- 25f -34 feet along lhe arc of sakl non-tangent cuwe to the left, having a radius of615-f S feet, and through a cenlral angle al23'24'35lhe chord of vyhich bears South51'n'47' East, a distance of 249.59 feet to a 1|2- rebar with cap set;

2- South 63"0/'59" Easl, a distance 1869-68 feet to a 112- rebar with cap set in lhe norlhfine of lhe remainder of the 176-10 pcre lract, being also the norlhwest corner of a54.13 acte lracj of land recorded in Document No. ?00051982O9, o[ the Offnial PublicRecords of Travis County, Texas, from whictr a lfl' rebar found bears South63"0759" East, a distance of 532-70 feet;

THENCE leaving the south rightof-way line of Blue Goose Road, South 17"?7'36- East.over and across the 176-10 acre tract and along lhe southwest line of the F4-13 acre tracl,a distance of 753-Ol feet to a calculated point in the east line o[ the 176.10 acre tract,being also in the wesl line of a 102.87 acre tract recorded in Volurne 7671, Page 109, ofthe Deed Records of Travis Cotrnty, Texas;

THEHCE leaving the souttwvest Ene of the 5d-13 mre lract, South 27"33'43'West, alorrgthe east line of the 176.10 acre trad, and in part the wesl line of lhe 102.87 acre lract andttle 73.20 acre tract, a distance of 2363-00 feet tc the POIHT OF BEGINNING, containirgan area of 172-631 acres of larrd, more or fess.

Surveyed on the ground in January,2001- BEARING BASfS: Gdd azinu'.tth for TexasCentral Zone, HARN'ualues from LCRA netrmfi. Attachments: None.

Regislered

l"*,State of Texas No. 5428

Exhibit C

Approximatefy 122.71| acre tract of land out of the IUCAS IIUNOS SURYEY No. 55, Abstract 5l ],being a portion of a 73.20 acre tract of fand conveyed to Alobley Chemicals, lnc., by warranty

deed, dated January 2? , 1982, recorded in volume 7&7 t, page 1 17 and a portion of a lO?-87 acretract of land conveyed to ilobley Chemicals, lnc-, by warranty deed, dated January 22, lgEU,recorded in volume 7 67 | , page I O9, both of the deed records df Tr avis County, Texas; said

122-711 acres being rnore particufarly described by metes and bounds in fxhihit *C" attachedhereto,

Professional [.and Surveying, fnc.

Surueying and ltJlapPing

O{fice: 51244.3-1724Farc 5"12-441-6987

2BO7 Manchaca FloadBuifilhg OneAusliru Texas 78TA4

laTll ACRESIUIOBLEY CHEMICALS, INC.

A DESCR|PTION OF A 122-71t ACRE (APPROXIMATELY 5,345.291 S.F.) TRACT OFLAND Ot'T OF THE LUCAS MUNOS SURVEY NO. 55, ABSTRACT 513, BEING APORTION OF A 73.20 ACRE TRACT OF IAND CONVEYED TO MOBLEYCHEMICALS, INC-. BY WARRANTY DEED. DATED JA}.IUARY 22. IS2, RECORDEOIN VOLUME7671. PAGE 117 AND A PORTION OF A 102.87 ACRE TRACT OF TANDCONVEYED TO MOBLEY CHEMICALS, }NC-. BY WARRAT{TY DEED, DATEDJANUARY 22, 79fl?,. RECORDED IN VOLUME 7671. PAGE lffi. BOTH OF THEDEED RECORDS OF TRAVTS COUNTY, TEXAS; SAID lT2'T1l ACRES BEINGMORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOW$:

BEGINHING at 112* rebar found for lhe southeast comer of the remainder of the 73.20acre tract, being also in the wesl right+f-way line of Giles Road {right+f-way wfttthvaries), in the west line of a l-6O6 acre tract recorded in Document No.2003143218, ofthe Official Public Records of Travis Counly, Texas, and the northeasl corner of therernainder of a 108-272 acre tracl remrded in Volume 7579, Page 5OO, of the DeedRecords of Travis County, Texas;

THENCE North 62'34'06- West leavirg the west right+f-way tine of Giles Road, overand across the 73-20 acre tract and along the north line of the 108-272 acre lracl, adislance of 2586.52 feet to a 1/2' rebar with cap set in the wesl line of the 73-2O acrelract, being also in the east line of a 176.10 acre tract, recorded in Volume 7671, Pagel0f , ol the Deed Records of Travis County, Texas for the southwest comer of theherein described tract, from whbh a ll2'rebarwith cap set bears SotJlh 62"34'0?'EasLa distancb of 1091-65 feel;

THENCE leaving tlre north line of the lOB-272 aue tract, North ?7"33'43" East, alongthe east Ine of the 176-10 acre lract ard -rr part lhe wesl line of the 73-ffi acre tract andthe 102-87 acre tracl a dislance of 2363,00 feet to a calanlaled ppint for the porthwestcofner of lhe remainder of the 102.87 acre tract, being also in the west line of a 54.13acre tract recorded in Doarment No. 2OO5l98?Og, of the Official PuHic Records ofTravis County. Texas;

THENGE leaving the east line of tfie 1?6-10 acre lract, along thb cornrmn line of lhes{.13 acre tract and the rernainder of the 102-87 acre tracl, the folbwing six (6)coufses:

t- $oulh 17"?736'Easl, a distane of 141-95 feel lo a 1'12'rebar found;

Page 2

2- $outh 27"32'10'West, a dislance of 260.07 feet to a 1fI rebar found;

3- South 63"05'47' East, a distance of 1079.88 feet to a lfT rebar found;

4. SorJth 83"44'54' Easl, a distance of 1?82-25 feet lo a 112'rebar found;

5- $oulh ?7"47'49' West, a distance of 1?33.87 feet to a punch hole found;

6- $outh 62"46"49' East, a dislance of 224.65 feet to a calanlated point in the east lineol the remainder of the fiz-fiT acle tract, being also in the west right-of-way line ofGiles Road and the west fine of the 1-60S acre tracl-,

THENCE South 27'55'44'West, along the east line of the rernainder of the 102.87 acretract, behg afso lhe west rigrhtct-way line of Giles Road, arx! the west line of the 1-606acre trad, a d-stance of 28.62 feet to a lfl' rebar fourrd for lhe norlheast corner of theremainder of the 73-20 acre lracl, being also tfie southeast comer of the remainder ofthe 102.S7 aue tract. in the wesl rigrtrt-of-way line of Gifes Road and the west line of a1-60S acre tract recorded in Document No. 2003143?18, of the Off,rcial Public Recordsol Travis County, Texas;

THENCE South 27"55'48'West, along the east line of the remainder of the 73-20 acretract being also the wesl right+f-way line of Giles Road, and the wesl line of the 1.606acre tract, a distance of 1214.01 feet lo the POINT OF BEGINNING, conlaining an areaol 122-711 acres of land, rnore or less.

the ground in January, 2OO1- BEARING BASIS: Grid azimuth for Texasnetwork. Altachments: None-lg83lg3 HARN values from LC

ffiotl,bl"vRegistered Professiofi al Land Surury,r$tate of Texas No- 542S frssr9.

Exhibit 1

EXHIBIT 1

Vegetative Practices

Temporary Vegetative Stahilintion of tristurbed Areas

1- Description.

Stebilize soil in disturbed areas with temporary vegetation or mulching.

2- Purpose.

To stabilize the soif; to reduce damages from sediment and runoff todownstream areas; improve wifdlife habitat; enhance natural beauty-

3. Gonditions Where Practice Applies.' Use vegetation to temporarify stabilize the soil on disturbed, graded or cleared

areas prior to establishrnent of permanent vegetation.

4. Design Criteria.

Prior to vegetative eslablishment, install needed erosion control practices, suchas diversions, grade stabilization structures, berms, dikes, level spreaders, andsediment basins-

Final grading and shaping has usually not been completed for temporarystabilization.

5. Fertilizer.

For temporary vegetative establishment, apply fertilizer with an analysis of 1$15-15 at the rate of-S pounds of nitrogen per 1,000 sguare feet during theinstallation period. ln order to avoid the conveyance of nutrients off-site, the timingshall not occur when rainfall is expected.

6. Seed Bed Preparation.

Prepare a suitable seed bed which allows good seed-to-soil contact and soilconditions that are conducive to vegetative growth, Do not disturb the soil withinthe critical rool zone of existing trees.

Areas of compacted soil shalf be loosened to a depth of at least two t2) inchesby plowing, discing, raking or other acceptable means before seeding. ln areaswhere no topsoil exists, or where fill is needed, the subgrade shall be loosened bydiscing or by scarifying to a depth of at least two (2) inches to permit bonding ofthe topsoil to the subsoil.

Topsoil, when used, shall have the following requirements: The depth of thetopsoil shall be a minimurn of 6" in all areas except within the critical root zone ofexisting trees. Do not add topsoilwithin the critical root zone of existing lrees.

For ternporary vegetative stabilization, the top six inches of soil used forinterrnediate cover must contain sufficient organic matter and nuirients to supportvegetative cover. The following description is not required bul is a suggested mixwhich wifl be presumed lo meet this performance requirement: Ihe lopsoil shall becomposed of 3 parls of soil mixed with 1 part Composf, by volume- The compost

shalt be Dilo Ditt or an equal approved by the Engineer, or destgnafed

representative- *Ihe soit shatt be locally available native soil that meets the

f oll owi ng specfica fions.'

. Shalt befreeaf trash, weeds, deleteriousmaterials, rocfts, anddebris.

. IOATI shallpass through a O-7&inch screen,

. Less than 25 Ya shall pass through a #2N sieve.

Topsoil salvaged from the existing site may often be used, but it should meet

the same standards as set forth in these standards-

7. Seeding-

lf seeding is to be conducted during the cool $ea$on {November 1 to February

lf) select species noted as "cool season cover croC from the tables in Standard

Specification 604$ and/or 609S. lf seeding is to be conducted dlring the warm

sea$on (February 1B to October 31) use one of the following options (whichever is

applicable).

. Native $eeding; Green Sprangfetop {leptochloa dubia) at the rate of 4lbs. per acre.

. Non-native Seeding: Comply with 6045.5 using Bermuda grass.

- Apply seed uniformly with a seed spreader, drill, cultipacker seeder orhydroseeder (slurry includes seed, fertilizer and binder)-

B. Protection of Seed Bed with Ftydromulctring or Soil Retention Blanket,

Newly-installed temporary vegetation must be protected by hydromulch or

soi] retention blanket (refer to Standard Specification 6055 Soil Retention

Blanketlimmediately after seeding. Protection of the seed bed shall occur in a

manner that will allow seed germination and that encourages effective vegetativegror,rrth. Hydromufching, when used, shall cornply with the requirements of Tabfet .4.7-A: Hydromulching for Temporary Vegetative $tabilization.

Table f .4.7-A; Hydromulching for Temporary Vegetative $tabilieation

llllaterial Bescription Longevity TypicalApplications

ApplicationRates

70/30 Wood/Cellulose

Blend Mulch

70% Wood30% Paper3% Tackifier

0-3months

Moderateslopes; from flat

to 3:1

45.9 fbe/100O sf

Wood FiberMulch

960/o Wood3% Tackifier

0-3months

Moderateslopes; from flat

to 3:1

45"9 lbs/1000 sf

+.. . ,20/30.wgodtqqnul9$e Btend Fiber nnuhh. wo.odqe[ulose uteno

fiEql..muhfr snatl gonsist of ZQolo lgng UggC srain fibgrs produced.from

gi$.clinq clean. wlgle woqd chipq ind. $.01/q.gellu!ese, frber produce-d fromgrortfrd.,nevyFpril-r.t, Refer to TaFl-e-J,4,7-B for mulch P!9pedies,.and to

SfF,ndard, $pecifiqqtlon.-. 9045 . - Sepdjno fol -,additionq!- mulchrequilgmenls;.

b. Wood Fiber Mulch. Wood liber mulch shall consist of 100o/o longwood grain fibers produced from grinding clean, whole wood chips. .

Refer to Table 1.4.7-C for mulch properties and to Standard Specification6045 - Seeding for additional mulch requirements.

Teqfe,i.4,I-B: Prqpqilies of 70130 Wgo4t9ellulo, se Blen{.FiFer llgl$lt

Table 1.4.74: Properties of Wood Fiber Mulch

Property {Test Method} Required Value

Moisture content o/o 12.Ao/o t3.0% (max.)

Organic matter % - wood fiber 967o tl% Oven Dry Basis (min.)

Organio matter % - paper fiber 30.0olo *1% Oven Dry Basis (max.)

Tacking Agent 3-0o/o (min-)

Water holding capacity 1,000 Grams of water per 100grams of fiber (min.)

9. Watering

Seed germination will be expected within 1 week of sowing. Watering isreguired to germinate seed and maintain growth. Seedlings shalf bewatered daily, or more often as necessary to ensure growth and to ensurethal the vegetattVe cover stabilizes the soil as required.

PrEge.{ty ffest Method} Re-qqired Vafue

Moisture content % 12.0o/o t3.0% (max.l

Oroanic mattgf-% - qood fiber 70% tl% Oven Qry Basis (min,)

Orqanlg.qratter % - paper fiber 30.07o tlo/o Oven Drv.Eapis (max.)

Tackinq Aaent 3.0% (min.)

Walgr hqldino capacitY 1.000 Grams of weteJ Per 100qrpms-pf ftber.[min.]

Exhibit 2

E,XHIBIT 2

EXHIBIT

:/JtlE {tR\

tt! t/Ja a!:q 11\ll-zlrM €ril\':\il- t-lw. .5rl\Tr^t

l/37|W-GH|lrF4llll*l rlltt I/{\1 -i\t4t.>ll

\i'\R{M#/'l\\ - --a - -rcl lJ

Cathleen ParsleyChief Administrative Law Judge

June 29, 2009

Les Trobma$, General Counsel'Texas Cornnrission on Envirorunental QualityP.O. Box 13087Austin Texas 7 87 11 -3087

YIA FACSIMII,IE : (5 I 2)239-5533

Re: SOAH Docket No. 582-08-2178; TCEQ Docket No. 2007-1774-MSW; In Re:Application of BFI Waste Systems of North America, LLC, for Tpe I MSWPer:rrit No. 14474

Dear Mr. Trobman:

These are my recornmendations concerning the exceptions that the parties have filed tomy Proposal for Decision (PFD) in the above case, which is now pending before theCommission.

Hours of Operation

I recommend that the Commission sustairl in pot, BFI Waste Systems of North America,LLC's (BFI's) and the Executive Director's (ED's) exceptions to my proposal to change thepermit to restrict BFI's hours of operation. I do not agree with all of their points, but I do agree

with the ED that I mistakenly assigned the burden of proof on this issue to BFI. When theburden of proof is pro'perly assigned to Office of Public Interest Counsel (OPIC), whichadvocates the change in the hours of operation, the evidence is insufficient to snpport a change.

As noted in the PFD, BFI is cunently arrthorized to operate 24 hours per day, seven daysper week. That is consistent with fhe operating hours for other landfills in Travis County and

with indusfiry practices. Despite its broader authorization, the BFI Facility is closed from 3:00p.m. on Saturday until 12$0 a.m. on Monday. It is open for 24 horus all other days.

In its exceptions, BFI argues that I sua sponre raised the question of whether its operatinghours were appropriate, even though no party had raised it. That is incorrect. The Commissionreferred the issue of whether BFI's operating hotus were appropriate. Moreover, as set out in thePFD, OPIC argued in its closing brief that BFI had failed to show its proposed hours of operationwere appropriate and OPIC reconnmended that the Commission restrict BFI's operations todaylight horus. Assigning the burden of proof to BFI, I concluded in the PFD that BFI had failedto prove its case on this issue and recommended the default operating hours set out in theCommission's rules.

Post Office Box 13025 +(5rz) 475-4995

William P. Clernents Building300 Vrbst l5th Street, Suite 502

Docket (stz> 475-3445http://urqrw. soah. state.tK. u s

+ Austin Texas 78711-3025Farc (512) 4754994

Exceptions Letter Page 2SOAH Docket No. 582-08-2 t 78TCEQ Docket No. 2007-1774-MSW

The ED axgues that an applicant has no initial burden of proving that a deviation from thehours of operation set out in 30 TEx. Aonanr. Cope (TAC) $ 330.118 is appropriate.l The EDdescribes a proce$s of review under which an applieant has no bwden on the point until the EDor the Commission become$ a.ware of information suggesting that the requested hours areinappropriate. Within the context of a contested case, the ED's interpretation would mean thatanother pafiy has the burden of making a prima facie showing that the proposed horxs areinappropriate before an applicant would have the burden of persuading the Commission that theproposed hours are suitable.

In essence, the ED is contending that I improperly assigned the burden of proof to BFI onthe hours-of-operation issue. I do not agree that section 330.118 supports the ED's exception.The process the ED describes is not set out in section 330.118. However, I do agree with theheart ofthe ED's argument as applied to this cflse. Based on the applicable burden-of-proof rule,I now agree that I incorectly assigned to BFI the burden of proof on the hours-of-operationissue.

The TCEQ's generally applicable burden-of-proof rule, 30 TAC $ 80.17(a), states, '"Theburden of proof is on the moving party by a preponderance of the evidence, except as provided[elsewhere for certain kinds of cases]." No other rule addresses the burden of proof in a case likethe curent one.

As the applicant for a permit amendment, BFI is clearly the moving party on all permitprovisions that it seeks to change or add in this case. Thus, rlrder 30 TAC $ 80.17(a), BFI hasthe burden of proof on those proposed changes and additions, However, BFI has not applied tochange its horus of operation in this case. Accordingly, BFI is not the movant on the hours-of-operation issue, and section 80.17(a) does not assign to BFI the burden of proof on that issue.2

In writing the PFD, I mistakenly assigned the burden of proof to BFI on the hours-of-operation issue because, in his opening statement, BFl's-attorney stated, "[WJe fully recognizethaf we have the burden of proof on the refeued issues."3 That was in acctrdance with section80.17(a) for every other issue in the case. Did BFI through that opening statement agree to alsocarry the burden on the hours-of-operation issue? That fine point was not argued or evendiscussed during the hearing, and BFI's exce,ptions reflect its surprise that I assigned it thatadditional burden.

If BFI does not have the burden of proof on the hours-of-operation issue, who does? Inow conclude that OPIC, the movant advocating a change in the hours of operation, has th.e

burden of proving BFI's current hours are inappropriate. Mostly, OPIC claimed that BFI had notcanied its burden, but OPIC also argued that the currently permitted hours are inappropriate. Noother party made either argument during the hearing or in post*rearing briefs.

I Section 330.118 was in place when BFI filed its application and rernains applicable to BFI. 'It has since been

replaced by 30 TAC $ 330. 135.'Since this case does not concern an application for an initial permit or atr amendment to an existingpermit to sethours of operation different from those set out in tbe Commission's rules, I do aot address the assignment of thepruden ofproof in those tSpes of cases.'Tr. p. 31.

Exceptions LetterSOAII Docket No. 582-08-2 1 78

TCEQ Docket No. 2007-1774-MSW

Page 3

OPIC offered no direct-case evidence to show that the crurent hours are inappropriate. Inits closing argument, OPIC did cite testimony from Austin's witness Greg Guemseyreconrmending that operations be limited to daylight horus to lessen the landfill's irnpact on theexisting and proposed residential uses and adjacent civic uses.4 A$ BFI argues in its exceptions,however, Mr. Guernsey's position was conclusory. He did not support it with any signrficantanalysis or facts concerning ryghttime operations, other than to generally indicate concerns abouttighting, presumably at night.t Similarly, Austin witness Joe Word generally referred to lightingas an incompatibility factor.o OPIC alluded to, but did not qpecifically cite, testimony by factwifiresses conceming the inconveniences associated with nighttime operations. Along thoselines, however, Northeast Neighbors Coalition's (NNC's) witness Evelyn Remmert stated thatshe occasionally heard back-up horns from the Landfill in her home at night.

As discussed in the PFD, there is no evidence that BFI has ever even been cited for a

noise or excessJighting violation. Nor is there evidence that the noise or light is extreme, even iflegal. Given that, I see no basis for concluding that BFI's nighttime operations are inappropriate.

OPIC did not cite it, but in the PFD, I discuss the testimony by BFI's witness Dr. ShariLibicki that rnost of the odor complaints concerning the BFI facility were for the evening hours.She noted that pattern of odor complaints is typical. She explained that more people are at homeat night to notice and complain about odors and winds tend to be slower at night, presumablymeaning that odors are not dissipated as well at night as during the day. I I concluded that therewas too little evidence concefning the pattern of evening kips to know whether ceasingoperations at night would significantly reduce odor. Moreover, I concluded in the PFD thatBFI's Application includes adequate provisions to control odors.

There is no evidence of any kind showing that BFI's weekend operations during the dayare inappropriate. e

Travis County's witness John White testified that any decrease in BFI's hours ofoperation would decrease waste acceptance rates such that the l-andfill's capacity would not bereached by the agreed November 1,2015, closure date.lo BFI argues that this shows that itshours of operation are not inappropriate and a resffiction on those horus would deprive it of thebenefit of the bargain that it stnrck when it agreed to close by that date certain.

Based on the above, I cannot conclude that OPIC's operating at night and on theweekends is inappropriate. I recommend that the ED's operating-hours exceptions and BFI's

nAustin Ex. 1, p.3; Tr. 2077,) Tr. 20?0 and 2088.6 Tr.2t39.7I.{NC Ex. ER-I, p. ?; Tr. 1981 and 2002.t Tr. 530 et seq.e In its exceptions, BFI alleges facts concenring ir nighrtime and weekend opemtioru, but there is no evidence tosupport these, as reflected in BFI's lack of citatioilr to the record,ro Travis County Ex. 4, p. 14.

Erc.cptioas Lcttcr PaSe 4SOAH Dockct No. 582-M-2178TCEQ Doctot No. 2007-17+MSW

€xc€ptions to Finding ofFact (FOF) No. 286 md Conclusiors oflaw Nos. (COLs) 7, 55, and 68be sustainod, in part, ed that FOF 286 md COLs 7, 55, od 68 bc mcndcd as follows:

286. Thc evidencc fails to show that it-ie-ffiria*e{er the Ladfill's operational hours are

inaooropriat

ndes.

7. Thc brndcn of proof was on the Applican! in accordance with 30 TEX. ADMIN. CODE i

$ 80.17(a). to thc cxtent it soueht to amcnd its p€ it. BFI met its buden with re8pcct to all

referred iszu

55. The operating hours proposed in the Application have not been shown igappropriate.

68. Pursuant to the authority of, and in accordance with applicable laws and regulations, the

attached Permit should be granted wi$ fte fellewi$g ehnlg

ien

imebehreen the heurs of ?:00 rm' aa* 7:0Fpm,; hlenday th{eugh Fiday,'Waste

irc

.

Exceptions Letter Page 5

SOAH Docket No. 582-08-2178TCEQ Docket No. 2007-1774-MSW

Editorial Exceptions

I recomme'rrd that the Commission sustain the ED's exceptions to and correcttypographical and other minor errors in FOFs 16, 19, 22, 35, and I 04(bxii) and COL 4. The ED,BFI, and TJFA, L.P. (TJFA) also note similar minor errors in the text of my PFD, which Iacknowledge and apologize for but see no need to address in detail here.ll

Land Use Compatibility

I recommend that the Commission ovemrle all of the land-use-compatibilify exceptionsfiled by NNC, TJFA, and OPIC. NNC argues that the Commission's decision in the Spring-Cypress Landfill casett sets precede,nt that should be followed in this case to determine land usecompatibility. However, it seems to me that the Commissiou's decision in that case and the PFDin this differ due to very different facts judged by the same standard rather than the application ofa different standard. The other exceptions restate arguments considered and rejected in the PFD.

Other Exceptions

I recommend that all of the other exceptions be ovemrled. With minor variations, theyreurge arguments previously raised and addressed in the PFD.

Sincerely,

n/ttt;6WWitliam G. NewchurchAdminisffative Law Judge

WGN;nlEnclosurescc: Maiiing List

1l For exarryle, TJFA conectly notes that the evidentiary citation grvetr in footnote 265 of the PFD does not supportthe staternent,

-'BFI has chosen to desiguate all 32 wells in the monitoring system as downgradient, point of

compliance wells because that designation provides an enhanced layer of environmental protection." However, thestatement is supported by other evidence at Tr. 777'afi 787-788. r

" Application of BMFS, Inc., for Permit No. MSW-2249, TIIRCC Docker No. 96-1634-MS1P, SOAH Docket No.582-9o-1760, Order Denying (Mar. 23, 1998).

STATE OFFICE OF ADMINISTRATI\M HEARINGS

3oo#J:1il"".1il!u'nuro,Austin, Texas ?8701

Phone: (512) 4754993Fax: (512) 475-4994

SER\rICE LIST

AGENCYT Environmental Quality, Texas Commission on (TCEQ)

STYLE/CASE: BFI WA,STE SYSTEMS OF NORTH AIVIERICA INC

SOAH IIOCKET NUMBER: 582-08-2178

REFERRING AGENCY CASE : 20fr7-177 4-MSW

STATE OFTICE OF ADMIMSTRATIVE ADMINISTRATTI{E LAW JIIDGEHEARINGS ALJ WILLIAM G. FIEWCHT]RCH

REPRESENTATTYE / AI}I}RESS

DOCKET CLERKTEXAS COMMISSION ON ENVIRONMENTAT QUAIITYOFFICE OF TTIE CHIEF CLERKPO BOX 13087AUSTIN, TX 787I I(sl2) 23e-3300 (PH)(srz) 239-3311(FA)O

PARTIES

TEXAS COMMISSION ON EI.I\4RONI\4ENTAL QUALITY

CHRISTINA IV{ANNATTORNEYTEXAS COMMISSION ON ENVIRONMENTAL QUALITYOFFICE OF PUBLIC INTEREST COUNSELP.O. BOX 13087, h4Gl03AUSTIN, TX 7871I.3087(s12) 2394014 (PH)(sl2) 239-6377 (FAx)

oFFIcE oF *IJBLI. INTEREST ''TJNSEL

ARTURO D. RODRIGITEZ, JR.RUSSELL & RODRIGIJEZ, L.L.P.1633 WILLIAMS DRI\IE BUILDING 2, SUITE 2OO

GEORGETOWN, TX ?8628

{s12) 930-13r? (PH)(866) e2e-1641 (FAx)arodriguez@bcadmfu law. com

TEXAS DISPOSAL SYSTEMS LA}IDFILL,INC. (TDSL)

Page 1 of4

PAUL TERRILLATTORNEY810 W 1OTH STREETAUSTIN, TX 78701(s14) 474-e100 (PH)(s12) 474-e888 (FAX)PTERRIL@IIAZEN.TRRILL. COM

GILES HOLDINGS, L.P.

BOB RENBARGERATTORNEYFRTTZ, BWNE, HEAD & HARRISON, LLP98 SAhI JACINTO BL\ID., SUITE 2OOO

AUSTIN, TX 78701(512) 476-2020 (PH)(512) 477-s267 [FAX)bob@fthh.com

TJFA, LP. ffrA)

J.D. HEADATTORNEY AT LAWFRITZ, BffiNE, HEAD & HARRISON, LLP98 SAhI JACINTO BL\D., SUITE 2OOO

AUSTIN, TX 7870I(srz) 476-2020 (PH)(.512) 477-s26',t (FAX)

TJFA, L.P. GJFA)

HOLLY C. NOELKEASSISTANT CITY ATTORNEYCITY OF AUSTIN I-AW DEPARTMENTP.O. BOX 1088AUSTIN, TX ?8767(s12) 974-2630 (PH)(srz) e74-64e0 (FAX)holly.noelke@ci. austinUc.us

CITY OF AUSTIN

STEVE STIEPHERDLEGAL COUNSELTEXAS COMMISSION ON ENVIROMVIENTAL QUALITYET{VIRONMENTAT LAW DIVISIONMC-173 P.O. BOX 13087AUSTIN, TX 78711.3087(sl2) 23e4464 (PH)(512) 2394606 (FAX)sshe,pher@ceq. state. k.us

E}GCL]TrVE DIRECTOR

Page 2 of4

PAUL GOSSELINKLLOYD GOSSELINK BLEVINS ROCHELL & TOWNSEI{D,P.C.816 CONGRESSAVENUE, SUITE 19OO

AUSTIN, TX 78701(s12) 322-5800 (PH)(s 12) 472-0532 (FAX)

BFI VTASTE SYSTEMS OF NORTT{ AI,TERICA, rNC. (BFr)

JIM BLACKSURN.ATTORNEY

4709 AUSTINHOUSTON, TX 77004(713) 524-1012 (PH)(7r3) s24-s16s (FA)qjbb@blackbumcarter. com

NIARK MCAFEE

MELAI'TIE MCAFEE

ROGER IOSEPH

DELMERROGERS

WILLIAMS, LTD.

NORTHEAST NEIGIIBORS COALITION

I(EWN W. MORSEASSISTA}IT TRAVTS COLTNTY ATTORNEYP.O. BOX 1748AUSTIN, TX 78767(s12) 8s4-e513 (PH)(s12) 8s4-4808 (FA)()

TRAVIS COI.INW

JOHN CARLSONLLOYD GOS$ELINK BLEVINS ROCTIELLE &TOWNSE}ID, P.C.816 CONGRESS AVENUE, SUITE 19OO

AUSTIhI, TX 7870I(512) 322-5867 (PH)(512) 472-0s32 (FAX)

BFI WASTE SYSTEMS OF NORTH AMERICAb rNC. (BFr)

SUSAN WHITESTAFF ATTORNEYTEXAS COMMTSSTON ON ENVTRONMENTAL QUALITYLITIGATION DTVISIONPO BOX 13087AUSTIN, TX 78711(s12) 23e-04s4 (PH)(s12) 23e-0606 (FAlr)swhite@tceq.state.fir.us

E)GCI.]TIVE DIRECTOR

Pagc 3 of4

EXHIBIT 3

EXHIBIT

5iitE.og

soAHDocket No.582-08-2178 Proposal for Declsion

TCEQ Docket No. 2007-1774-MSW

Pege 11

Without cornbing the record for citations, the ALI will sinrply note that all of BFI's

witnesses were compensated directly or indirectty for testiSing in this case.28 It is common for

parties opposed to an Application to at least go through the motions of questioning the

objectivity of an applicant's expert wifrresses because they are being compensated to testify and

wish to preserve their good relationship with the applicant. Those exercises usually amount to

nothing for two reason$. First, with extremely rare exception, no one would testify for as an

expert without being compensated. Second, because their professional reputations are on the line

and peopte have long memories, most experts for all parties want to, and do, offer a cogent and

reasonable.analysis of the portions of an application within their realrn of expertise.

. SimilarlS the mere fact that they are being paid for their services and have testified for a

competitor in the past should not complete$ discredit Dr. Kier and Mr. Chandler. Instead, it

should alert the ALI and Cornmissioners to be on greater alert for inconsistencies, rnisdirectionsn

and deviations from generally accepted professional standards in their testimony. ht this case,

BFI and Gites argue that the opinions that Dr. Kier and -Mr. Chandler offered were wholly

unreasonable, due to that'their lack of objectivity. The ALf will consider the merits of their

opinions later in the PFD, but he does not agree that Dr. Kier's and Mr. Chandler's relationships

with Mr. Gregory, TDS, and TDSL siguificantly call their credibility into question.

VII. REFERRED ISSUES

The Cornmission referred 26 issues to SOATI for hearing as set out below. As to several

of the issues, no party argues that BFI has not met its burde'n of proof.

A. \ilhetlrer The Appltcation Demonstrates That Natural Drainage Patterns Will Not

Be Significanfly Altered By The Expansiotr, Itr Aecordance With Agency Rulesn

Including 30 TAC $ 330.56(fl(a)(A)(iv).

o Any objection to the ALJ taking notice of this fect shoutd be tiled ss an exception to the PIi'D.

SOAE Doclet No. 582{18-2178 Propocrl for Dcclelon Prg. tlTCEQ Dockrt No. 2007-l?71+{SW

Orly TJFA and NNC argue thst BFI friled to cary its burden of proof ou this issuc. thiAIJ disagreea with then

l. BX'I'c Evldence

There is no disputo that BH submitt€d an attachm€nt comerning the pmposed altcatim

to the landfill and drain4go pattems.n BFts droinage o(pert, Adm lrdehevec, calcularcd fte

peak flow ratcs, peak veloc'itieq and total volumcs at cach of those out&Ils udcr existing/pre-

dcvelopmart conditions md rmder propooedrlostdcvclopmcnt conditions and concluded trdlhcte would bc no siggificmt clr"'gc.lo

Mr. Mcherrec calculatod ftosc rliftrcnccs using two mothodologies. He first porforned

analyeoe ueing tlra mctrcidology rcquircd by the TCEQ, which is based on a Texas Departocot of

Thnsportation CfxDoq Manuat3r He thcn pcrformcd additional analyses frr the City of Arutin

usiag the City's different no0rodologr.x Using thc TCtsQ profencd TXDOI meflrodologr,

Mr. Mehevoo oaloulaled whgt is shovm on the folloving two tablcs:33

2Syear, Z4hour $torm EventBefore and After Development Under Applicafion

(TCEO Methodology)Ouffall Peak FIow rate

(cfs)Ruu-off Volume

(ac-ft)Discharge Velocity

(ft/sec)

Before After Before After Before After1 1045 954 236.4 242.9 1.4 1.42 275 270 29.1 26.8 3.2 3.23 98 89 10.1 8.5 6.t 6.7

8 Rs-l l, Attach- 6, p. AlP0og922, d sq.

'o BFI Ex. AIv{-l, p. 30.

il Apparentty a reference to 30 TAC $330.55O)(5XB).3t Tr. lo2?.

" BFI Exs. Alvf-l, pp. 15-16 afi27-29.

4 66 61 6.6 6.4 2.1 2.25 175 17L 20.0 17.8 2.8 2.86 9 I 1.5 1.5 1.3 1.3

SOAII Doeket No. 582-08-2178TCEQ Docket No. 2007-17?4-MSW

Proposal for Decision Prge 13

(Emphasis added to slrow only increase.)

100-year, Z4-hour Storm EveutBefore and After Development Under Application

(TCEQ Methodolosy)Outfall Peak Elow Rate

(cfs)Run-offVolume

(ac-ft)Discharge Velocity

(ft/sec)

Before After Before After Before AfterI 1354 1302 321.1 329.8 1.5 1.5

2 393 386 39.0 35.9 3.7 3.73 141 128 13,5 1 1.4 6.7 6.7

4 94 88 8.8 8.5 2.5 2.5

5 251 245 26.8 23.8 3.1 3.1

6 l3 13 2.L 2,1 1.9 1.9

(Emphasis added to show only increa.se.)

llfith one exception, every category at every outfall showed either no change or a slight

improvement. Ttrere is a two-perce,nt increase in totat volume of mnoff predicted at Outfatl I.

Mr, Mehevec testified this'inuease is very slight. Moreover, it will be relea$ed at a slowerrate

than predevelopment because the peak flow rate would be reduced.su The peak flow rate at

Outfall 4 goes down by one percent using the TCEQ GxDOT based) methodology and up by

one percent usiug the City of Austin uretlrodology, which is not set out in tables. Mr. Mehevec

testified that both changes are insignificant.3s Every drainage expert who testified in this case -

t BFI Ex. i{-tuI-l, p. 30

15 Tr. 1031.

SOAI{ Docket No. 582-08 -2718TCEQ Docket No. 200?-1774-MSIV

Proposal for Declsion Page 14

including TJFA's expert - agreed after reviewing the Application and Mr. Mehevec's testimony

that natural drainage patter:rs would not be significantly altered by the proposed expansion.36

Yet TJFA and NNC argue ttrat BFI failed to carry its burden of proof on this iszue. They

significantly differ on what BFI was legally bound to prove. However, if NNC's legal argument

is correct, TJFA alternatively adopts NNC's position.

Applicnble Law and Legal Arguments

Section 330.56 of the Commissionns nrles is entitled Attachments to' the Site

Development Plan, and subsection (fl(4XAXiv) requires a groundwater and' sgrfaoe water

protection plal and drainage plan It also states:

These plans must reflect locations, details, and tlpical sections of levees, dikes,drainrge channels, culverts, holding ponds, trench liners, storm sewers, leachalecollection systems, or any othor facilities relating to the protection of groundwaterand surface water. Adequacy of provisions for safe passage of any intenral orextemally adjacent floodwaters should be reflected here.

(4) As part of the attachmen! the iofio*i"g information and analyses must besubmitted for review, as applicable.

(A) Drainage and run-off control analyses:

(tv) discussion and ,rratyso 'to

demorukate that natural drainage

patterns will not be signifrcantly altered a$ a .result of the proposed

landfill development;

TJFA claims that BFI failed to meet its burden of proof on the drainage-change issue &re

to its faitnre rnake the required comparison. According to TJFA, BEI improperly compared the

rt Tr. 69, l896-t Bg7,z1g7,zz7l &.2286;BFI Ex. AI{-1, p. 30; ED Ex. ED-MU-I, p. ll.

SOAII Docket No. 58248-2178TCEQ Docket No. 200?-17?4-MSW

Proposal for Decision Page 15

drainage oonditioirs proposed in the Application to the currently permitted conditions rather than

to the natural drainage conditions that existed prior to any dweloprnent. TJFA focuses on the

word "natwal," which is used in 30 TAC $ 330.56(D(4XA)(iv) to describe the drainage pattern

that must not be significantly altered" It conectly notes that at least two other rules provide that

'hafiral drainage patterns" may not be "significantly altered" as a result of the proposed landfill

development.3T

To compare drainage conditions, BFI's witness, Mr. Mehevec, used TCEQ Regulatory

Guidance RG-417, which is entitled &tidelines for Preparing a Surface Water Drainage PIan

for a Municipal Solid Waste Facility. The TCEQ Waste Permits Division adoptcd RG41? in

June 2004.38 As to the current dispute, RG4l? states:

For expansions of existing facilities, the appropriate coryarison should bebetween the curre,:rtly approved (permitted) site closure condition and theproposed postdwelopment condition.

TJFA claims that RG-41? bss misconstmed the applicable rules, which require a comparison

between the natural and proposed drainage patterns ratlrer ttre currently.permitted and proposed

conditions. According the TJFA, RG-4[?'s guidance on this point was unauthorized

nrlenraking which was contrary to the Adminishative Procedures Act and case law. It concedes

that the applicable nrles were modified after BFI filed its application in order to require a

comparison between post-development and existing conditions, but TJFA notes that those rules

are not applicable to BFI's Application. Instead, TJFA slaims that the change in nrles shows that

the comparison required of BFI is different from the one required of current applicants.

tt 30 TAC $$ 330.55(bX5XD) and 330.56(0G); BFr E:c RS-34.

3t BFI Ex. RS€4.

SOAH Docket No, 582-08-2t78TCEQ Docket No, 2007-1??4-MSW

Proposal for Decision Prge 16

There is no need to anallze the unauthorized rulemaking argument. The Commission

must follow its own rules as adopted until it changes them in accordance with the Administrative

Procedure Act.3e Thus, the 'hatural drainage patterns" rules apply to BF['s Application. But

what does that ptrrase mean?

In the absence of a technical rneauing ascribed to a word used in a rule, TJFA correctly

notes that courts have held, pursuant to the rules of statutory constuction, that a word or term

should be given its common meaning.oo That is correct, but TIFA ignores that a technical or

particular meaning can be acquired in various rvays. The Code Construction Actal is applicable

to agenoynrles adopted under the state's revised. oodes.az Gov't Code $ 311.011 states:

(a) Words and phrases shall be read in context and construed according to thenrles of grarnmar and common usage.

(b) Words and phrases that have acquired a technical or particular meaningwhether by legislative definition or othenvise, shall be construed accordingly.

TIFA heads straight for the dictionary and argues that the common meaning of "natural" is'being in accordatrce with or determined by natute," 'taving. or constituting a classification

based on feafures existing in nafiuer' of "existing in or produced by nature: not artificial." But

TIFA has skipped a step. Tttose contmon meanings only apply if 'trafural drainage patterns" has

not acquired a tecbnioal or particular meaning whether by definition in statute or nrle or

"otherwise."

' 3t Water Code $ S.tOf1c). Thc-sarue_ principle applies to eve,ly agercyr and it is arbitrary and capriciorufor an agency not to follow its existing m$. _S1A Rodriguw v. Seruiee Lloydt hrs. Cn.,99? S.W.z dZ4g,ZjS ffex.1999); Public.util. cnmm'nv. Gulfsutes util. co., 809 s.w.2d zol,207 (Tcx. 199U.

'o Myenv. State,lfg $.W.3d 731,734 (Tex.App-Austb 2005).ar chapter 3tl ofthe Telc Gov'rcope.Aurq. (Gov't code) (west 2009).4r Gov'tCode g 311.0044).

SOAII Ilocket No. 582-0&2178TCEQ Docket No. 2007-1774-MSW

Proposal for Decislon Page 17

While they do not specifically refer to Gov't Code g 311.011(b), BFI and rhe BD argue

that RG-4t7 rcflwts how the TCEQ and its predecessor ageneies have always interpreted the

requirement to demonstrate that natural drainage pattems will not be significanfly altered by a

proposed landfill amendment. hr effect, they are saying that the acquired technical or particrrlar

meaning of "natural drainage patterns" is the currently approved site closure condition. The ALIagrees.

There are several reasons to reach this conclusion. First, all of the expert drainage

witnesses understood that in the context of a landfill amendrnent "natural drainage paftems"

means the currently approved site closure condition The phrase has that meaning to the

technical conrmunity.

Second, there is what might be called the chain-of-approvals argument. The ED notes

that the prohibition on significantly altering natural drainage patterns has remained in effect

since before BFI obtained its original pennit in 1982j3 Assuming that the "natural drainage

conditions" \ryere those that existed prior to the issuance of BE['s initial permit, the

Commission's predecessor agency, when it issued BFI's initial pennit, nrust have concluded that

the site clostue condition proposed in the BFI's application would not alter them, SimilarlS the

Comrnission and its prcdecessors must have concluded that each subsequent amendment would

not significantly alter those drainage conditions. As BFI's drainage expert, Mr. Mehevec,

zuccinctly put it:

The drainage analyses that vfere performed for the original perrnit and subsequentpermit modificatiors were all reviewed by the TCEQ and deterrrined to notsignificantly alter natr-nal drainage pattems. Therefore, this [existing permitted]condition has become the natural drainage condition aa

tt Th* ED attadred to his reply brief wha.t purports to be the nrles of the Texas Board of Hcalth that becameeffective on November 19, 1980. Section E - Permit Procedures and Design &iteria, E-2.3e(6)(c) states: 'tlafiraldrainage pattcms shall not be signifieantly altered." The ALI takes afficial notice of this rule adopted by treTCEQts predecessor sgency. Any objection to that notice should be lited as an exception to tlris PF'D.

n BFI Ex. AM-I, pp. 18-19.

SOAII Docket No. 582-08-2178TCEQ Docket No. 2007-I?74-MSW

Proposal for Decision Page 18

Tldrd, and most importantly, there is RG-417, which was written by the Commission Staff to

reflect its understanding of the how to apply the no-significant-chnnge-in-natural-drainage mle

when a pemrit has already been issued and an ame,ndment is filed. It also appears that RG*417

reflects the Commission's rurderstanding and not just its Staffs. As TJFA note$, the

Commission rwised the no-significant-change-in-drainage-conditions nrle in 2006.{5 The

revised rules states that *existing drainage pattems will not be adversely altered" and the

Commission indicated in it preanrble:

The cornmission made this change to make the rule lauguage consistent with thelanguage provided in guidance (RG417, Guidance f.o-r Preparing a Surface WaterDrainageFhn for a Municipal Solid Waste Facitity1.46

TJFA reads this language as indicating a substantive change, but to the AJ-J it shows that RG-

417 refleots the Comnissioners' understanding of the rules that had been in place, which are

applicable to BFI's application. A long line of cases stands for the proposition that an agency's

interpretation of its own rules must be given deference.a? The ALI concludes that RG-41?

reflects fhe Coinmission''s understanding of the ntles applicable to BF['s application Thus, for

the proposed expansion of BE['s existing Facility sought in this case, the appropriate comparison

is between the currently approveit (permitted) site closure condition and the proposed post-

development condition sougbt in BFI's amendment,

tt Ort""tt version of 30 TAC $ 330.63(cXtXC), which fu not applicable to the cutrcat Application bccanse

BFI fiIed it beforc thatnrle was adoptred.

a6 3l Tex. Reg. 2558 (Mar. 24, 2000. The ALf hkes official notice of this preamble lrnguaga Anyobjection to that notice should be filed rs ln ercepffon to the PFD.

4t PUC v. Galfslafes l-Itilities Co., 809 S.W.2d 20L, 207 (Tex. 1991); BFI Waste $ys/enrs of NorthArnerica, [nc. v. Martinez Envfuonmental Group,g3 S.W.3d 570, 575-?6 (Tex.App.-Austin ?:ffiz,pet denied)iH.G.Sledge, Inc. v. Prospective hte Tradtng h., Ltd.,36 S.W.3d 597, 604 (TexApp.-Austin 2002, pet. denied).

SOAII Docket No. 582-08 Afi&TCEQ Docket No. 2007-I774-MSW

Proposal for Declsion Prye 19

3. F'actual Arguments

NNC's position is very different from TJFA's. NNC agrees with BEI that it was required

to compare its proposed post-development drainage conditions ts those that are cu:rently

pernrined to exist. However, BFI's comparison shows, aecording to NNC, that drainage peak

flow on the west side of landfill will significantly increase from the existing conditions that are

currently permitted if the applied-for post-development conditions are approved. NNC

particularly objects because it contends that the increase in the drainage peak flow will flow onto

and harm Williams Ltd.'s property.

NNC focuses on a drainage drawing that was submitted for BFI's 2A02 permit

modification and was labeled'?ROPOSED DRAINAGE COI{DITION.'dB Sinoe t}rat was the

Iast time the permit was changed, NNC contends that drawing should represent ths s)dsring

drainage condition, which BFI may uot significantly alter.ae Howevsr, in its current Application,

BFI submitted a drawing labeled "EXISTING DRAINAGE COIIDITIOIf' that shows different

and much higher peak do*, at two outfalls on the west side of, the landfill,s0 The drawing for

the curtent Apptication shows a l'15.4 cfs peak flow at Outfall.S, while the drawing for the 2002

modification showed a peak flow of 66 cfs at that sune location, though for a somewhat smaller

drainage area. At Outfatl4 the drawing for the current Application shows a 65.8 cfs peak flow,

while the one for the 2002 modification showed a 26 cfs peak flow for the same draiuage ,r"a.tt

.* M*IC Elr. l.tt The drainage drawings n*ny approved on October 22,20Q1-, for the 2002 modification is also in

evidence as'BF[ Elc AI,I 32, but it, too, shotts the same 66 cfs and 26 cfs peak flows at thc same locations. Tr. gBS

et seq.

$ NNC Ex.4, qftich is also BFI Ex. RS-l l, p. App 00096?.' sr Tr. 16g elseq.

SOAH Docket No. 582-08'21?8TCEQ Docket No. 2007-1774-MSW

Proposal for Decislon Prge 2(}

Assuming for ths sake of argument that it was proper for BFI to compare proposed

conditions to those currently approved, TJFA focuses on different evidence than NNC and

argues that it, too, shows that peak flows urill substantially increase at Outfalls 4 and 5, It notes

that BFI's consultant prepared and submitted to Austin fwo other drawings.showing the existing

and proposed drainage conditions.sz For Outlet 5, these shorv a 113.3 cfs peak flow under

existing conditions and a ll? cfs peak for proposed conditions. For Outfall 4, they show a 40.8

cfs peak flow under existing conditions and a 41.8 cfs peak flow under proposed conditi'ons.

Focusing on the proposed conditions in those submittals to Austin and comparing thom to the

existing conditions shown in the current permit Application, TJFA argues they show substantial

increases in flows: from 26 cfs to 41.8 cfs at Outlet 4 and from 66 to I 12 ofs at Outlet 5.

There is no substance to these contentions that the amended conditions would increase

peak flows from Outlets 4 and 5 over existing approved conditions. First, as previously

indicated, none of the drainage experts testified that there would be an increase in peak florrys

from those two outlets. These TJFA's and NNC's arguments arE based solely on their lawyas'

inteqpretations o.f docutnents. Having said thirt, why do the docirroenG that NNf,hrid TIFApoint

to appear to show increases in peak flows at Outlets 4 and 5?

BFI submitted a drainage perrrit modification in l2[|ffz.st As it relates to Outfall 5, the

peak discharge flow was 66 cfs based on the then-applicable TCEQ methodology. That

calculation reflected BFI's consultants' uuderstanding at the.time that the flow in the northwest

corner of the landfill outside the footpri+t but inside the site boundary natrrrally flowed to ihe

east. 'Additionally, the calculation assumed that the drainage area in the northwest corner of ttre

landfill did not include the S0-foot buffer zones in that cornsr.

52 BFI Exs. AM 34 and 35.

53 BFI Ex. Ahd-32.