Citizens Against the Landfill in Hempstead Michael McCall Wayne Knox And the City of Hempstead v. Texas Commission on Environmental Quality and Pintail Landfill, L.L.C. ( 2015 )


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  •                                                                                  ACCEPTED
    03-14-00718-CV
    4925658
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    4/16/2015 7:57:20 PM
    JEFFREY D. KYLE
    CLERK
    NO. 03-14-00718-CV
    IN THE COURT OF APPEALS          FILED IN
    3rd COURT OF APPEALS
    FOR THE THIRD DISTRICT OF TEXAS, AUSTIN, TEXAS
    AT AUSTIN, TEXAS      4/16/2015 7:57:20 PM
    JEFFREY D. KYLE
    Clerk
    CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD; MICHAEL
    MCCALL; WAYNE KNOX; AND THE CITY OF HEMPSTEAD,
    Plaintiffs/Appellants,
    v.
    TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND
    PINTAIL LANDFILL, L.L.C., Defendants/Appellees.
    From 201st District Court,
    Travis County, Texas
    APPELLANTS CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD,
    MICHAEL MCCALL, WAYNE KNOX, AND CITY OF HEMPSTEAD’S
    REPLY BRIEF
    KELLY HART & HALLMAN LLP               HANCE SCARBOROUGH, LLP
    Monica M. Jacobs                       Terry L. Scarborough
    State Bar No. 24007433                 State Bar No. 17716000
    Diana L. Nichols                       Michael L. Woodward
    State Bar No. 00784682                 State Bar No. 21979300
    301 Congress Avenue, Suite 2000        V. Blayre Pena
    Austin, TX 78701                       State Bar No. 24050372
    Telephone: (512) 495-6400              Wesley P. McGuffey
    Facsimile: (512) 495-6401              State Bar No. 24088023
    400 W. 15th Street, Ste. 950
    ATTORNEYS FOR THE                      Austin, TX 78701
    CITY OF HEMPSTEAD                      Telephone: (512) 479-8888
    Facsimile: (512) 482-6891
    ATTORNEYS FOR APPELLANTS
    CITIZENS AGAINST THE LANDFILL
    IN HEMPSTEAD, MICHAEL
    MCCALL, AND WAYNE KNOX
    ORAL ARGUMENT REQUESTED
    TABLE OF CONTENTS
    TABLE OF CONTENTS ……………………………………………..……………2
    INDEX OF APPENDICIES………………………………………………………...3
    INDEX OF AUTHORITIES ……………………………………………………….4
    ARGUMENT ………………………………………………………………………8
    THE RULE INTERPRETATIONS ADVANCED BY APPELLEES
    IMPERMISSIBLY CONTRADICTS THE PLAIN LANGUAGE OF THE
    RULES THEY CLAIM TO INTERPRET.....................................................8
    A.    Straight From the Horse’s Mouth: A Concise Statement of Appellants’
    Argument……………………………………………………………..9
    B.    A Requirement Must Require Something: Appellees Impermissibly
    Interpret 30 Texas Administrative Code § 330.9(f) As Applying to Any
    Transfer Station/Waste Separation Facility Only If Its Requirements
    Are Met……………………………………………………………..11
    C.    Appellees Impermissibly Interpret 30 Texas Administrative Code
    § 330.9(b)(3), Arguing Anything Besides the Clear, Unambiguous
    Language of the Rule..……………………………………………….14
    1.     TCEQ’s Argument on Rule 330.9(b)(3) Misses the Point,
    Misconstrues the Argument, and Exudes Misunderstanding.…16
    2.     It’s Not a Sasquatch:   A Generally Applicable Permit
    Requirement Does Exist………………………………………19
    3.     Rules are Rules: TCEQ Does Not Have the Authority to Violate
    or Otherwise Ignore Its Rules.………………………………..22
    4.     Don’t Believe the Hype: The Transfer Station/Materials
    Recovery Facility Does Not and Could Not Qualify for a Permit
    Exemption Under Rule 328, Because a Waste Stream Is Not
    Recyclable Material…………………………………………..24
    2
    5.   Not All Type V Facilities Are Equal. Transfer Facility ≠
    Incinerator ≠ Material Recovery Facility……………………26
    THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY
    AUTHORIZING THE FACILITY THROUGH REGISTRATION RATHER
    THAN A PERMIT.………………………………………………………..28
    ALWAYS KEEP YOUR WORD: THE REGISTRATION SHOULD BE
    REVERSED BECAUSE TCEQ ALLOWED AN EXCESSIVE NUMBER
    OF NOTICES OF DEFICIENCY WELL BEYOND ITS PUBLICLY
    PRONOUNCED POLICY.………………………………………………...30
    PRAYER ………………………………………………………………………….35
    CERTIFICATE OF COMPLIANCE ……………………………………………..36
    CERTIFICATE OF SERVICE ……………………………………………………37
    INDEX OF APPENDICIES
    Appendix A        Notices of Deficiencies
    Appendix B        MSW Permit 2382
    MSW Permit 2379
    3
    INDEX OF AUTHORITIES
    Statutes
    Texas Health and Safety Code
    § 361 ………………………………………………………………………19
    § 361.061..……………………………………………..…………………..19
    § 361.086(a)….……………………….………………..………………….19
    § 361.0861……………………………………………..……………….13, 20
    § 361.088……………………………………………………...………..29, 30
    § 361.0665……………………………………………………………...29, 30
    § 361.0666……………………………………………………………...29, 30
    § 361.067…………………………………………………………….…29, 30
    § 361.079……………………………………………………………….29, 30
    § 361.0791………………………………………………….………..…29, 30
    § 361.081……………………………………………………………….29, 30
    §361.092………………………………………………………………..14, 20
    § 361.111(a)(4)……………………………………………………………..13
    § 361.111(a)(1)-(4)…………………………………………………………20
    Rules
    30 Texas Administrative Code
    § 55.201(b)(4)………………………………………………………………29
    4
    § 55.203…………………………………………………………………….29
    § 80.109(a)………………………………………………………………….29
    § 80.109(b)(5)………………………………………………………………29
    § 312………………………………………………………………………..23
    § 328………………………………………………………………………..24
    § 328.2(3)…………………………………………………………………...26
    § 328.2(6)…………………………………………………………………...26
    § 328.4……………………………………………………………………...25
    § 328.4(d) ………………………………………………………………24, 26
    § 330………………………………………………………………………..24
    § 330(88)……………………………………………………………………19
    § 330.3……………………………………………………………………...18
    § 330.3(a) …………………………………………………………………..18
    § 330.3(117)……………………………………………………………..…17
    § 330.3(122) ………………………………………………………………..25
    § 330.3(157)…..…………………...……………………………..8, 15, 18, 27
    § 330.3(174)……………………………………………………...8, 12, 15, 18
    § 330.5(a)(3)………………………………………………………………..27
    § 330.7……………………………………………………………………...25
    § 330.7(a)….………………………...……………….........................8, 20, 21
    5
    § 330.9………………………………………………….11, 13, 18, 20, 21, 25
    § 330.9(b) ………………………………………………………………21, 27
    § 330.9(b)(3) …………………………………………8, 9, 14, 15, 16, 17, 19
    § 330.9(c) …………………………………………………………………..13
    § 330.9(f) …………………………………………………8, 10, 11, 12, 13, 14
    § 330.9(f)(1) & (2) …………………………………………………………10
    § 330.9(j) …………………………………………………………………..13
    § 330.9(b)–(p)………….……………………………….…………………..21
    § 330.11…………………………………………………………………….20
    § 330.13…………………………………………………………………….20
    § 330.25…………………………………………………………………….20
    § 332………………………………………………………………………..24
    Cases
    CenterPoint Energy Houston Elect., LLC v. PUC
    
    408 S.W.3d 910
    (Tex. App. – Austin 2013, pet denied)…………....8, 13, 22
    County of Dallas v. Wiland,
    
    216 S.W.3d 344
    , 347 (Tex. 2007)…………………………………….........29
    Alton McDaniel v. Texas Natural Resource Conservation Commission
    
    982 S.W.2d 650
    ; 1998 (Tex. App. – Austin 1998, pet. denied)…………23, 24
    PUC v. Gulf States Utilities Co.
    
    809 S.W.2d 201
    (Tex. 1991) ………………………………………..8, 13, 22
    Rodriguez v. Service Lloyds Ins. Co.,
    
    997 S.W.2d 248
    , 254 (Tex. 1999)………………………………………….18
    6
    Tex. Comm’n on Envtl. Quality v. Kelsoe
    
    286 S.W.3d 91
    (Tex. App. – Austin 2009……………….…………………32
    Tex. Dept. of Transp.. V. Needham
    S.W. 3d 314, 318 (Tex. 2002)………………………………………………18
    TGS-NOPEC Geophysical Co. v. Combs
    
    340 S.W.3d 432
    , 439 (Tex. 2011) …………………………………………..18
    Other Authority
    31 Tex. Reg. 2506…………………………………………………………11, 14, 21
    31 Tex. Reg. 2548……..………………………………………………………20, 21
    7
    TO THE HONORABLE COURT OF APPEALS:
    Appellants Citizens Against the Landfill in Hempstead (“CALH”) and City of
    Hempstead (“City”) file this Reply Brief of Appellants, and in support, state as
    follows:
    ARGUMENT
    I.     THE RULE INTERPRETATIONS ADVANCED BY APPELLEES
    IMPERMISSIBLY CONTRADICT THE PLAIN LANGUAGE OF THE
    RULES THEY CLAIM TO INTERPRET.
    At the heart of this matter are four (or five) TCEQ rules.1 In their briefs,
    Appellees present their interpretations of two TCEQ registration rules at issue, 30
    Texas Administrative Code § 330.9(b)(3) and 30 Texas Administrative Code
    § 330.9(f). Appellees’ interpretations are impermissible because they contravene
    the plain language of the rule.2 Further, Appellees’ interpretations are impermissible
    because they are plainly erroneous and inconsistent with the regulation or its
    underlying statute.
    Largely avoiding the clear, unambiguous language of the applicable rules,
    Appellees attempt to support their impermissible interpretations by arguing a
    1
    30 Tex. Admin. Code § 330.9(b)(3) (authorizing registration for certain transfer stations); 30 Tex.
    Admin. Code § 330.9(f) (authorizing registration for certain transfer stations/material recovery
    facilities); 30 Tex. Admin. Code § 330.3(157) (defining transfer station); 30 Tex. Admin. Code
    § 330.3(174) (defining waste-separation/recycling facility/material recovery facility); 30 Tex.
    Admin. Code § 330.7(a) (relating to and titled “permit required”).
    2
    When an agency fails to follow the clear, unambiguous language of its own regulation, the court
    must reverse the agency’s action as arbitrary and capricious. PUC v. Gulf States Utilities, 
    809 S.W.2d 201
    , 207 (Tex. 1991); CenterPoint Energy v. PUC, 
    408 S.W.3d 910
    , 917.
    8
    number of points that are not at issue or serve only to confuse the issue. These
    arguments often miss the point, misconstrue Appellants’ argument, and fail to
    acknowledge the applicability of regulatory definitions mandated by TCEQ rule.
    Appellees’ arguments ultimately fail because there is a permit requirement in TCEQ
    rules and in the controlling statute, TCEQ cannot violate or ignore its rules, the
    permit and registration exception for source-separated recyclable materials does not
    apply to this facility, and a transfer station is not the equivalent to any other Type V
    processing facility. Not only do Appellees’ arguments fail, their interpretation
    endangers the proper permitting of solid waste processing activities across our state.
    A.     Straight From the Horse’s Mouth:              A Concise Statement of
    Appellants’ Argument.
    Appellants’ first argument is often misrepresented in Appellees’ briefs.
    Rather than refuting each occurrence, Appellants’ argument is concisely presented
    below for convenient comparison.
    TCEQ failed to follow the clear, unambiguous language of at least four of its
    regulations when it issued Registration No. 40259 for Pintail’s transfer
    station/material recovery facility (“Pintail’s Facility” or “Facility”). First, TCEQ
    failed to follow Rule 330.9(b)(3), the provision under which Applicant claimed
    authority for registration.   This rule expressly applies only to transfer station
    facilities, and this rule was violated when TCEQ allowed it to be used as registration
    authority for a materials recovery operation. Second, TCEQ failed to follow Rule
    9
    330.9(f), which allows registration for any transfer station facility with materials
    recovery operations that meets the 10/50 requirements.3 It is undisputed that the
    Facility is a transfer station with materials recovery operations, and that the 10/50
    requirements were not met. This is the only registration authorization available for
    materials recovery activities at a transfer station without an already permitted landfill
    attached. Thus, TCEQ’s refusal to apply this rule’s requirements is impermissible.
    Third, TCEQ failed to follow the clear, unambiguous language of its own
    definitions. TCEQ rules specifically define both types of facilities at issue, transfer
    stations and waste separation/recycling facilities (also referred to as a materials
    recovery facilities), and these facilities engage in different waste management
    activities. TCEQ is required to follow its definitions, which are codified as TCEQ
    rules. Because TCEQ failed to follow the plain language of its rules, the registration
    of this Facility must be reversed.
    It should be noted that Appellants are not challenging the authority of TCEQ
    to issue registrations. Appellants fully acknowledge TCEQ’s authority to register
    certain transfer stations, to register certain transfer stations with materials recovery
    operations, to register certain recycling facilities, and to register any other type of
    waste management activity that is allowed by law. In fact, permissible TCEQ
    3
    The so-called 10/50 requirements are found at 30 Texas Administrative Code § 330.9(f)(1)&(2).
    They require a minimum 10% recovery rate and disposal at an existing permitted facility within
    50 miles in order to qualify for registration.
    10
    registrations form the heart of this case. The key is, when exercising its authority,
    TCEQ must follow its rules. In this case it did not, so reversal is required.
    B.     A Requirement Must Require Something:                Appellees
    Impermissibly Interpret 30 Texas Administrative Code § 330.9(f)
    As Applying to Any Transfer Station/Waste Separation Facility
    Only If Its Requirements Are Met.
    The first relevant rule at issue is 330.9(f). Rule 330.9(f) is intended to allow
    a qualifying transfer station/material recovery facility to obtain a registration rather
    than a permit.4 The rule reads, “(f) A registration is required for any new MSW
    Type V transfer station that includes a material recovery operation that meets all of
    the following requirements. (1) Materials recovery. [10% recovery rule]. (2)
    Distance to landfill. [50 mile disposal rule].”
    Upon adoption of 30 Texas Administrative Code § 330.9 to allow registration
    instead of permitting, TCEQ recognized and pronounced that the rule lists all of the
    permitting exceptions that are eligible for registration. 31 Tex. Reg. 2506 (“The
    commission adopts new §330.9, Registration Required, to list all MSW management
    activities that are exempt from permitting requirements but that still require
    commission approval by registration.”)
    Appellees do not rely on 330.9(f) as registration authority, and Appellees’
    interpretation of 330.9(f) correctly bars its use for registration of this facility.
    4
    See 31 Tex. Reg. 2506.
    11
    However, their interpretation continues to ignore the language of the rule,
    specifically, the word “any” and the defined term, “material recovery operation.”
    Appellees argue that the 10/50 rule requirements of 330.9(f) do not apply to this
    transfer station/materials recovery facility, even though the rule expressly applies to
    “any new MSW Type V transfer station that includes a material recovery
    operation….” Appellees argue that the requirements of Rule 330.9(f) (the 10/50
    rule) only apply to a transfer station/materials recovery facility that already meets
    the 10/50 rule.5 In other words, Appellees argue that if the rule’s requirements are
    not met, the rule does not apply.
    In its best light, Appellees’ interpretation means that if rule 330.9(f)’s
    requirements are not met, then the rule does not allow registration of a transfer
    station/materials recovery facility. Appellees argue, however, that if the rule’s 10/50
    requirements are not met, the facility may simply be registered as a transfer station,
    despite the fact that it is actually a transfer station and material recovery facility.
    Appellees’ interpretation ignores the word “any” and the term “material recovery,”
    which is defined in rule 330.3(174).6 Because Appellees’ interpretation contravenes
    5
    Pintail’s Brief at 21-22; TCEQ’s Brief at 16.
    6
    30 Tex. Admin. Code 330.3(174) (“Waste-separation/recycling facility--A facility, sometimes
    referred to as a material recovery facility, in which recyclable materials are removed from the
    waste stream for transport off-site for reuse, recycling, or other beneficial use.”)
    12
    the clear, unambiguous language of the rule itself, it is impermissible.7 However,
    even if their interpretation did not contravene the rule’s language, the registration
    would fail because there is no other applicable registration authority available.
    Appellants do concede that registration for waste separation/material
    recovery/recycling activities could be properly granted through a different
    registration provision, but those provisions must expressly apply to those activities,
    and cannot apply without a preexisting permitted landfill under current rules. In
    order to qualify waste separation/recycling/materials recovery activities for
    registration, one of the specific provisions allowing these specific activities to be
    registered must be met.
    These statutorily prescribed registration provisions available for recycling
    activities are listed in Rule 330.9, and include 330.9(c) (for registration of a waste
    separation/recycling facility within the boundaries of an existing, existing permitted
    MSW landfill, with statutory authority originating in Texas Health and Safety Code
    361.0861), 330.9(f) (for a transfer station that includes a material recovery operation
    and meets the 10/50 requirements, with statutory authority originating in Texas
    Health and Safety Code 361.111(a)(4)), and 330.9(j) (for certain material recovery
    operations from an existing landfill, with statutory authority originating in Texas
    7When an agency fails to follow the clear, unambiguous language of its own regulation, the court
    must reverse the agency’s action as arbitrary and capricious. Gulf States 
    Utilities, 809 S.W.2d at 207
    (Tex. 1991); 
    CenterPoint, 408 S.W.3d at 917
    .
    13
    Health and Safety Code 361.092). TCEQ Rule 330.9(f) is the only provision
    allowing materials recovery that could have been utilized, because there is not an
    existing landfill. Because the requirements of 330.9(f) were not met, a registration
    is not available and this facility requires a permit.
    C.     Appellees Impermissibly Interpret 30 Texas Administrative Code
    § 330.9(b)(3), Arguing Anything to Distract from the Clear,
    Unambiguous Language of the Rule.
    The second relevant registration rule at issue is 330.9(b)(3). Appellees
    purport to rely on this rule for registration authority. Rule 330.9(b)(3) is intended to
    allow qualifying transfer stations to obtain a registration rather than a permit. See
    31 Tex. Reg. 2506 (“The commission adopts new §330.9, Registration Required, to
    list all MSW management activities that are exempt from permitting requirements
    but that still require commission approval by registration.”) The rule reads,
    (b) A registration is required for an MSW transfer station facility that
    is used in the transfer of MSW to a solid waste processing or disposal
    facility from any of the following: … (3) a facility used in the transfer
    of MSW that transfers or will transfer 125 tons per day or less;
    30 Tex. Admin. Code § 330.9(b)(3).
    Appellees argue that a transfer station that includes a materials recovery
    operation may be registered under Rule 330.9(b)(3), even though the rule expressly
    applies only to MSW transfer station facilities.             Appellees interpretation
    impermissibly expands the scope of Rule 330.9(b)(3) in contravention of the rule’s
    clear, unambiguous language, because Rule 330.9(b)(3) expressly applies only to
    14
    MSW transfer station facilities. Transfer station facilities are defined by rule, and
    are separately defined from materials recovery facilities. There is a clear distinction
    between these types of waste processing activities. See 30 Tex. Admin. Code §
    330.3(157) (defining transfer station); 30 Tex. Admin. Code § 330.3(174) (defining
    materials recovery facility/waste separation facility/recycling facility).8
    All of the Appellees interpretations contravene the plain language, “transfer
    station facility,” which is a term defined by rule. Additionally, the mere fact that a
    facility “is used in the transfer” of waste does not eliminate the rule’s express
    application to “transfer station” facilities only, and it does not change the regulatory
    definition of “transfer station.” Given the rule’s express application to “transfer
    station” facilities, the words “is used in the transfer” serve the purpose of describing
    the activities of a transfer station consistently with its regulatory definition. There
    is no indication that the words “is used in the transfer” expand the applicability of
    rule 330.9(b)(3), and such a reading contravenes the clear, unambiguous language
    of TCEQ rules 330.9(b)(3), 330.3(157), and 330.3(174).
    8
    30 Tex. Admin. Code § 330.3(157) (“Transfer station--A facility used for transferring solid waste
    from collection vehicles to long-haul vehicles (one transportation unit to another transportation
    unit). It is not a storage facility such as one where individual residents can dispose of their wastes
    in bulk storage containers that are serviced by collection vehicles.”); 30 Tex. Admin. Code
    § 330.3(174) (Waste-separation/recycling facility--A facility, sometimes referred to as a material
    recovery facility, in which recyclable materials are removed from the waste stream for transport
    off-site for reuse, recycling, or other beneficial use.)
    15
    Appellees offer a number of justifications for violating the plain language of
    TCEQ rules, but they miss the mark. The arguments largely dodge the language of
    the rules at issue, and upon inspection, they do not justify Appellees’ proposed
    interpretations.   Their arguments fail because: 1) TCEQ’s argument fails to
    distinguish between transfer activities and materials recovery/waste separation
    activities, fails to acknowledge the applicability of TCEQ rules’ definitions, and
    even inadvertently admits that the claimed registration authority does not apply by
    stating that no MSW will be transferred at the facility; 2) a permit is generally
    required for waste management activities unless an exception applies; 3) TCEQ
    cannot violate or ignore its rules; 4) the permit and registration exception for source-
    separated recyclable materials does not and could apply to this facility because it
    accepts a waste stream; and 5) a transfer station is not equivalent to any Type V
    processing facility, and Appellees’ interpretation endangers the proper permitting of
    all other Type V solid waste processing facilities.
    1.     TCEQ’s Argument on Rule 330.9(b)(3) Misses the Point,
    Misconstrues the Argument, and Exudes Misunderstanding.
    TCEQ’s argument regarding rule 330.9(b)(3) completely misses the mark.
    TCEQ’s argument is fundamentally flawed because it misconstrues Appellants’
    argument as complaining that no processing or storage may occur at a transfer
    16
    station.9 Appellants do not challenge registration of all processing activities, but
    only challenge registration of materials recovery/waste separation/recycling
    activities at a transfer station using Rule 330.9(b)(3) as justification. In reality,
    transfer activities and materials recovery/waste separation/recycling activities are
    each a subset, or different type of waste processing activity, which is a much more
    broadly defined term.10 Even incineration of waste is a processing activity.11
    TCEQ argued that processing activities are incidental and necessary to operate
    a transfer station.12 This argument has very little relevance because processing is
    such a broad term. Because the scope of the term “processing” includes both transfer
    activities and material recovery activities, it follows that processing would be a
    necessary activity to transfer waste (because transfer is a form of processing). The
    more relevant observation is that materials recovery/waste separation/recycling
    activities (another distinct form of processing) are most certainly not necessary to
    9
    TCEQ Brief at 13.
    10
    30 Tex. Admin. Code § 330.3(117) (“Processing--Activities including, but not limited to, the
    extraction of materials, transfer, volume reduction, conversion to energy, or other separation and
    preparation of solid waste for reuse or disposal, including the treatment or neutralization of waste,
    designed to change the physical, chemical, or biological character or composition of any waste to
    neutralize such waste, or to recover energy or material from the waste, or render the waste safer to
    transport, store, dispose of, or make it amenable for recovery, amenable for storage, or reduced in
    volume.”).
    11
    
    Id. 12 TCEQ
    Brief at 15.
    17
    the transfer of waste from one transportation unit to another transportation unit, nor
    are those activities incidental to transfer activities.13
    Further, TCEQ appears to misrepresent the applicability of its own
    definitions. On page 13 of is brief, TCEQ appears to imply that definitions of MSW
    management activities in Rule 330.3 (such as transfer station and waste
    separation/materials recovery/recycling facility) do not apply to registration Rule
    330.9 because they appear in a different subchapter.14 This is flat wrong. Not only
    are the definitions and registration rules in the same subchapter (Subchapter A), the
    definitions would apply even if they were not. The definitions of Rule 330.3 apply
    to the entire Chapter 330 regarding municipal solid waste. See 30 Tex. Admin. Code
    § 330.3(a) (stating “[t]his section contains definitions for terms that appear
    throughout this chapter.”). The TCEQ and reviewing courts are bound to construe
    these terms by their regulatory definitions only.15
    13
    See 30 Tex. Admin. Code § 330.3(157); see also 30 Tex. Admin. Code § 330.3(174).
    14
    TCEQ Brief at 13 (stating “Appellants support their argument by citing to various definitions of
    MSW management in other subchapters of the MSW rules. Appellants’ interpretation of the
    Commission’s rules is unreasonable…”).
    15
    Tex. Dept. of Transp. V. Needham, 
    82 S.W.3d 314
    , 318 (Tex. 2002) (“But if a statute defines a
    term, a court is bound to construe that term by its statutory definition only.”) (emphasis added);
    see also TGS-NOPEC Geophysical Co. v. Combs, 
    340 S.W.3d 432
    , 439 (Tex. 2011) (“If a statute
    … assigns a particular meaning to a term, we are bound by the statutory usage.”); 
    id. at 438
    (“We
    interpret administrative rules, like statutes, under traditional principles of statutory construction.”);
    Rodriguez v. Service Lloyds Ins., 
    997 S.W.2d 248
    , 254 (“We construe administrative rules, which
    have the same force as statutes, in the same manner as statutes.”).
    18
    Finally, in another section of TCEQ’s brief, TCEQ inadvertently admits by
    implication that the registration authority of Rule 330.9(b)(3) does not apply at all,
    because Pintail’s facility “will not accept municipal solid waste” and will only accept
    construction and demolition waste.16 Because Rule 330.9(b)(3) applies only to a
    “MSW transfer station facility that is used in the transfer of MSW,” TCEQ has
    inadvertently refuted its own argument that the registration authority of Rule
    330.9(b)(3) applies to Pintail’s facility. TCEQ’s statement, however, is inaccurate.
    MSW is broadly defined, and does include construction and demolition waste.17
    2.      It’s Not a Sasquatch: A Generally Applicable Permit
    Requirement Does Exist.
    TCEQ’s brief also implies that there is no general permitting requirement in
    the statute or in its rules, and this too is false. TCEQ has authority to regulate solid
    waste activities, but its authority is not unfettered. It is restricted by the terms of the
    controlling Texas Health and Safety Code Chapter 361, and by TCEQ rules. Texas
    Health & Safety Code § 361.061 grants TCEQ the power to require and issue
    permits, while Texas Health & Safety Code § 361.086(a) expressly requires a
    separate permit at each solid waste facility. The statute states, “[e]xcept as provided
    in Subsection (d) [which does not apply here], a separate permit is required for each
    16
    TCEQ Brief at 10.
    17
    30 Tex. Admin. Code § 330.3(88) (“Municipal solid waste--Solid waste resulting from or
    incidental to municipal, community, commercial, institutional, and recreational activities,
    including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all
    other solid waste other than industrial solid waste.”)
    19
    solid waste facility.” Read together, these sections require TCEQ permits at solid
    waste facilities, unless an exception applies. Exceptions to the permit requirement
    that allow or mandate registration are codified in the Health & Safety Code and have
    been duplicated in the TCEQ rules.18 A permit is required if no exception applies.
    TCEQ’s brief denies the existence of a general permitting requirement. This
    is surprising, because this permit requirement has been repeatedly recognized and
    documented by TCEQ in almost every imaginable way. It has been codified in
    TCEQ rules, recited in Texas Register notices, and pronounced in TCEQ guidance
    documents.     TCEQ rule 330.7(a) codifies the general permit requirement and
    requires a permit unless an exception to the permitting requirement is applicable to
    the activities of the facility.19     These permitting exceptions allow solid waste
    management activities to be authorized by registration, notification, or to be
    completely exempt from permitting, registration, or notification.20
    TCEQ acknowledged the permitting requirement applicable to processing
    facilities, including transfer stations, when it refused to remove the word “transfer”
    from the definition of “processing.” See 31 Tex. Reg. 2548 (reinserting “transfer”
    back into the definition of “processing” to keep the permitting requirement for
    18
    See, e.g., Tex. Health & Safety Code 361.0861; Tex. Health & Safety Code 361.111(a)(1)–(4);
    Tex. Health & Safety Code 361.092.
    19
    30 Tex. Admin. Code § 330.7(a) (relating to title, “Permit Required”).
    20
    30 Tex. Admin. Code §§ 330.9, 330.11, 330.13, and 330.25.
    20
    transfer facilities).21 TCEQ also recognizes the permitting requirement applicable
    to transfer stations in its relevant regulatory guidance document, which plainly states
    that a permit is required if a transfer station does not qualify for registration.22
    There are limited exceptions to the permitting requirement that allow MSW
    management activities to be authorized by registration, and these exceptions are
    specifically enumerated in TCEQ’s registration rule 330.9.23 Upon adoption of
    Rule 330.9 to allow registration instead of permitting, TCEQ pronounced that the
    rule lists all of the permitting exemptions that are eligible for registration: “The
    commission adopts new §330.9, Registration Required, to list all MSW management
    activities that are exempt from permitting requirements but that still require
    commission approval by registration.” (emphasis added).24 The generally applicable
    permit requirement appears in the Health & Safety Code, the TCEQ rules, the Texas
    21
    The comment and response states in full: “Comment: HCPES [Harris County Attorney’s Office
    and Harris County Public Health and Environmental Services, Pollution Control Division]
    commented that the proposed deletion of the term “transfer” from the definition of processing
    would change the meaning of §330.7(a) relating to Permit Required. By this proposed definition
    change, transfer stations would no longer be required to obtain permits to operate. HCPES
    stated that by their nature, transfer stations require agency and public review of the
    permitting process unless exempted due to a location on an existing landfill or if they meet
    registration requirements under §330.9(b). Response: The commission agrees with this
    comment and has reinserted the term “transfer” back into the definition of processing in
    response to these comments and also to be consistent with THSC, §361.003, Definitions.” 31 Tex.
    Reg. 2548 (emphasis added).
    22
    See Initial Brief of Appellants, Appendix B (TCEQ Publication No. RG-469, Traditional
    Municipal Solid Waste Disposal: A Guide for Local Governments (listing transfer station
    registration exceptions in 330.9(b) and stating, “If none of these criteria can be met, a permit is
    required”)).
    23
    30 Tex. Admin. Code § 330.9(b)–(p).
    24
    31 Tex. Reg. 2506 (emphasis added).
    21
    Register, and TCEQ guidance documents. Given its frequent appearance in relevant
    authority, TCEQ’s argument against a permit requirement must fail.
    3.     Rules Are Rules: TCEQ Does Not Have the Authority to
    Violate or Otherwise Ignore Its Rules.
    Appellees argue that TCEQ has broad regulatory authority, implying that this
    authority gives the agency license to expand the applicability of Rule 330.9(b)(3)
    beyond the regulatory definition of transfer station to include materials recovery
    operations. Appellees also argue that TCEQ has authority to ignore Rule 330.9(f),
    which expressly applies to any transfer station with a materials recovery operation.
    Furthermore, Appellees necessarily argue that TCEQ is not bound by its regulatory
    definitions.
    Appellees’ arguments fail because TCEQ must follow its rules, including
    applicable definitions. The rules cannot be ignored; they cannot be selectively
    applied. When an agency fails to follow the clear, unambiguous language of its own
    regulation, the court must reverse the agency’s action as arbitrary and capricious.25
    A rule’s plain language must be followed unless it is ambiguous.26 If a rule is
    ambiguous or leaves room for policy determinations, a court may not defer to an
    25
    Gulf States 
    Utilities, 809 S.W.2d at 207
    (Tex. 1991); 
    CenterPoint, 408 S.W.3d at 917
    .
    26
    
    CenterPoint, 408 S.W.3d at 916
    .
    22
    agency’s interpretation that is plainly erroneous or inconsistent with the regulation
    or its underlying statutes.27
    Appellees cite McDaniel v. TNRCC as support for the proposition that TCEQ
    has the authority to issue registrations, but again, that issue is not in dispute here.
    
    982 S.W.2d 650
    (Tex. App.—Austin 1998, pet. denied).                     Appellants fully
    acknowledge TCEQ’s authority to issue registrations. The point is that the TCEQ
    must follow its rules when issuing a registration. McDaniel is an example of the
    agency following its rules that were promulgated for registration: “[t]he TNRCC
    acted in compliance with its own properly promulgated rules and issued the
    requested registration.”28 However, the case is largely irrelevant because it involves
    different registration rules (that were actually followed), different application
    procedures, and different environmental concerns.             McDaniel is a case about
    beneficial application of sewage sludge that properly qualified for registration under
    the applicable “Sludge Use, Disposal, and Transportation” rules, which are in an
    entirely different chapter of TCEQ’s rules. 
    982 S.W.2d 650
    (Tex. App.—Austin
    2009, pet. denied); see also 30 Tex. Admin. Code § 312.
    Worth noting, Appellee Pintail’s brief fails to mention the crucial fact that the
    TNRCC’s registration rules were followed in McDaniel.                   This omission is
    27
    
    Id. 28 McDaniel
    v. TNRCC, 
    982 S.W.2d 650
    , 653 (Tex. App.—Austin 2009, pet. denied).
    23
    misleading, because the instant case is squarely about whether TCEQ followed its
    applicable registration rules. Upon inspection, McDaniel supports the Appellant’s
    position.      Like other applicable case law, it acknowledges and applies the
    requirement that rules must be followed: “[w]hen an agency fails to follow its own
    rules, reversal and remand is required if a showing of harm or prejudice is made.”29
    Unlike in McDaniel, in this case TCEQ did not follow its rules.
    4.     Don’t Believe the Hype: The Transfer Station/Materials
    Recovery Facility Does Not And Could Not Qualify for a
    Permit Exemption Under Rule 328, Because a Waste Stream
    Is Not Recyclable Material.
    This Facility is not exempt from permitting and registration requirements
    under 30 Texas Administrative Code Chapter 328, because the Facility will accept
    a stream of waste (which is not classified as recyclable material) and will separate
    recyclable materials from that waste stream. Under the relevant rule, “[a] facility
    that processes recyclable material that contains more than incidental amounts of non-
    recyclable waste must obtain a permit or registration as applicable under Chapter
    330 or Chapter 332 of this title unless the executive director approves its request for
    alternative compliance.”30 The permitting and registration exception for facilities
    29
    
    Id. at 654.
    30
    30 Tex. Admin. Code § 328.4(d).
    24
    processing recyclable material is completely inapplicable to this case and serves only
    to cause confusion.
    A waste stream is not “recyclable material.” The permit and registration
    exception under TCEQ rule 328.4 do not apply to this facility or this registration
    because by its plain language, it addresses “recyclable material.” By definition,
    “recyclable material” only ceases to be solid waste after it “has been recovered or
    diverted from the nonhazardous waste stream” and is useful in the manufacture of
    products.31 Because this Facility will accept a waste stream prior to separation of
    recyclable materials out of that waste stream, it cannot qualify for the “recyclable
    materials” permit exemption for its materials recovery/waste separation/recycling
    facility. Guidance on TCEQ’s webpage confirms this interpretation of the rules by
    stating, “[f]acilities that separate recyclable materials from a municipal solid waste
    stream must be permitted or registered as a municipal solid waste processing facility
    in accordance with 30 TAC Chapter 330, Section (§) 330.7 or 330.9” (emphasis in
    original).32   As previously discussed, the Pintail facility does not qualify for
    authorization by registration, so it must be permitted.
    31
    30 Tex. Admin. Code § 330.3(122) (“Recyclable material--A material that has been recovered
    or diverted from the nonhazardous waste stream for purposes of reuse, recycling, or reclamation,
    a substantial portion of which is consistently used in the manufacture of products that may
    otherwise be produced using raw or virgin materials. Recyclable material is not solid waste.
    However, recyclable material may become solid waste at such time, if any, as it is abandoned or
    disposed of rather than recycled, whereupon it will be solid waste with respect only to the party
    actually abandoning or disposing of the material.”)
    32
    C.R. at 505 (CALH and City’s Joint Motion for New Trial, page 13, Ex. 3).
    25
    Additionally, “incidental amounts,” as referenced in rule 328.4(d), is defined
    in the rules. This definition also confirms that the exception applies only to source-
    separated recyclable materials, or material that at the point of generation, was
    separated, collected, and transported separately from MSW waste.33 Finally, Pintail
    admits that the recyclable materials permitting and registration exception does not
    apply to the Facility, and that it was not claimed as authority. Pintail’s brief admits
    that Pintail anticipated processing “more than an incidental amount of waste,” and
    therefore, the permitting and registration exception for recyclable materials could
    not apply.34 However, Pintail completely fails to inform the Court that it could not
    have ever qualified for the permit and registration exemption because it will be
    handling waste. Pintail’s Facility will accept a waste stream, not source-separated
    recyclable materials used to make products. Because Pintail’s Facility is a materials
    recovery facility that accepts a waste stream, it never could have qualified and this
    provision is completely inapplicable and irrelevant to this case.
    5.      Not All Type V Facilities Are Equal. Transfer Facility ≠
    Incinerator ≠ Material Recovery Facility.
    33
    See 30 Tex. Admin. Code § 328.2(3) (defining incidental amounts of non-recyclable waste as
    no more than 10% of any incoming load and requiring reasonable efforts to maintain source-
    separation of recyclable material from waste); see also 30 Tex. Admin. Code § 328.2(6) (defining
    source-separated recyclable material as being recyclable material that has been at the point of
    generation, separated, collected, and transported separately from MSW waste).
    34
    Pintail’s Brief at 20.
    26
    Appellee Pintail’s argument relies on an audacious assertion that the
    permitting exception used to register the Type V transfer station activities (30 Tex.
    Admin. Code §330.9(b)) can be expansively utilized as registration authority for
    materials recovery waste processing activities at the facility, and even more broadly,
    for any additional activities included within the definition of a Type V facility.
    Appellee implies that all Type V facilities are subject to the same regulatory
    permitting requirements, but they are not. Type V facilities include all kinds of solid
    waste processing.        In addition to waste transfer activities, Type V facilities
    incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, store, and process
    solid waste in other ways. Conversely, a transfer station is separately defined in
    TCEQ rules, and its definition only includes waste transfer activities.35 A transfer
    station is a very narrow subset of all Type V facilities that merely performs a waste
    transportation function.36 In short, a Type V transfer station and a Type V facility
    are not the same thing. A transfer station is just one kind of Type V facility.
    35
    30 Tex. Admin. Code §330.3(157).
    36
    30 Tex. Admin. Code §330.5(a)(3) (“MSW facility - Type V. Separate solid waste processing
    facilities are classified as Type V. These facilities include processing plants that transfer,
    incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, and/or provide other storage or
    processing of solid waste. Owners or operators shall follow the minimum design and operational
    requirements prescribed in Subchapter E of this chapter (relating to Operational Standards for
    Municipal Solid Waste Storage and Processing Units); Subchapter F of this chapter; Subchapter
    G of this chapter; Subchapter H of this chapter, if required; Subchapter K of this chapter;
    Subchapter L of this chapter, if financial assurance is required; Subchapter M of this chapter; and
    Chapter 37, Subchapter R of this title, except that owners and operators of recycling facilities who
    store combustible material are required to comply with Chapter 37, Subchapter J of this title
    (relating to Financial Assurance for Recycling Facilities). Groundwater monitoring may be
    27
    TCEQ regularly issues permits, rather than registrations, to Type V processing
    facilities that store, process, compost, and recycle waste.37              Under Appellees’
    erroneous reading, any company with knowledge of Pintail’s permitting loophole
    could seek to avoid the permitting requirement in the same way that Pintail has. As
    long as an applicant transferred less than 125 tons of MSW per day, there would be
    no need to seek a permit for any other processing activities. The required permitting
    process for Type V facilities that incinerate, shred, grind, bale, salvage, separate,
    dewater, reclaim, and/or provide other storage or processing of solid waste could be
    completely avoided and the affected public would not even have an opportunity for
    hearing. This interpretation cannot be correct because it would undermine or even
    eliminate the permitting requirement for Type V solid waste processing facilities.
    II.    THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY
    AUTHORIZING THE FACILITY THROUGH REGISTRATION
    RATHER THAN A PERMIT.
    Appellees’ argument that due process was not violated hinges on the
    erroneous assertion registration was appropriate and therefore, no statutory or rule-
    required by the executive director and shall be maintained in accordance with the requirements of
    Subchapter J of this chapter.”).
    37
    C.R. at 389 (CALH Reply Brief at 17) (citing MSW Permit No. 2382, issued May 1, 2014
    (authorizing storage, processing, composting, and recycling recovered materials by permit); see
    also MSW Permit No. 2379, issued November 9, 2012 (authorizing storage, processing, and
    recycling recovered materials by permit). At the time CALH filed its Reply Brief in the District
    Court proceeding, both of these permits were available on TCEQ’s webpage titled “Municipal
    Solid Waste Applications Posted on the Internet.” Because they are no longer posted on the
    TCEQ’s webpage at this time, a copy of each permit is provided in Appendix B.
    28
    based right to a contested case hearing was denied. However, because a permit is
    required, affected persons do have a statutory right to a contested case hearing.38
    Additionally, affected persons have a right to a contested case hearing under TCEQ
    rules.39 Where there is a statutory right to a hearing and a right to a hearing under
    applicable rules, denial of the hearing is a violation of procedural due process.40
    CALH and the City are both parties in the ongoing contested case hearing for
    the Pintail Landfill at the same location as this Facility. CALH members and City
    of Hempstead have property interests that would be affected by the proposed facility.
    For example, CALH has members that reside adjacent to the proposed location and
    rely on water wells as their sole source of domestic water, and the City supplies
    water to its residents from wells located near the Facility. The Facility is also located
    within the City’s extraterritorial jurisdiction. In a contested case proceeding, the
    presiding judge has the authority to make the determination of affected status to
    identify parties.41 Typically, the facts above would be sufficient to demonstrate
    38
    See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079, 361.0791,
    and 361.081 (relating to various application notice requirements, published notice requirements,
    mailed notice requirements, hearing notice requirements, and contested case hearing requirements
    for MSW permit applications).
    39
    30 Tex. Admin. Code § 55.201(b)(4); 30 Tex. Admin. Code § 55.203.
    40
    County of Dallas v. Wiland, 
    216 S.W.3d 344
    , 347 (Tex. 2007) (holding that “the deputies were
    discharged without the hearing before the civil service commission promised by system rules to
    determine whether just cause existed, and thus they were denied procedural due process.”)
    (emphasis added).
    41
    See 30 Tex. Admin. Code § 80.109(a) (“Determination by judge. All parties to a proceeding
    shall be determined at the preliminary hearing or when the judge otherwise designates.”); 30 Tex.
    Admin. Code § 80.109(b)(5) (“Affected persons shall be parties to hearings on permit applications,
    29
    affected status.      These examples are presented for illustration of Appellants’
    interests.
    CALH and the City’s interests should have been afforded the protection of the
    permitting process. The permitting process, unlike the registration process, triggers
    statutorily granted due process rights to notice and a contested case hearing by virtue
    of the Texas Health and Safety Code.42 Here, the issuance of a registration when a
    permit was required denied members of CALH, the City, and all other affected
    persons their right to notice and a contested case hearing, as required under the
    Health and Safety Code for MSW permit applications.43
    III.   ALWAYS KEEP YOUR WORD: THE REGISTRATION SHOULD BE
    REVERSED BECAUSE TCEQ ALLOWED AN EXCESSIVE
    NUMBER OF NOTICES OF DEFICIENCY WELL BEYOND ITS
    PUBLICLY PRONOUNCED POLICY.
    The Notice of Deficiency (“NOD”) policy that was reported in the TCEQ
    Sunset Evaluation Report to the Texas Legislature, instructed to TCEQ staff in
    internal TCEQ procedural documents for registration, and stated in external
    correspondence to applicants should be binding on the agency. Appellees argue that
    TCEQ’s public statements to the legislature, the public, applicants, and their own
    based upon the standards set forth in §55.29 and §55.203 of this title (relating to Determination of
    Affected Person.”).
    42
    See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079, 361.0791,
    and 361.081 (relating to various application notice requirements, published notice requirements,
    mailed notice requirements, hearing notice requirements, and contested case hearing requirements
    for MSW permit applications).
    43
    See 
    id. 30 staff
    reviewers cannot bind the agency, because the statements were not officially
    promulgated under the APA as rules. However, the interest of justice requires the
    TCEQ to be bound by its universally professed NOD policy pronouncements that
    were made in promises to the legislature, declarations to applicants, instructions to
    its staff, and assurances to the public. Appellees argue that the NOD policy should
    not be binding on the agency because enforcement of the well-publicized policy
    would have undesirable results, but the converse is true. The only fair remedy in
    this situation is to enforce the NOD policy that TCEQ professed to follow. Any
    other course of action would cause harm to the public, to the agency, to the regulated
    community, to the TCEQ staff, to the Texas legislature, and to taxpayers.
    The public deserves to have confidence that the TCEQ applies its stated
    policies, including the two NOD policy, to all applicants in a uniform manner.
    Allowing TCEQ to disregard its own NOD policy would undermine public
    confidence in the agency, and ultimately harm the agency’s reputation.            The
    regulated community deserves to have a uniform process in which applicants are all
    treated equally. Allowing the TCEQ to selectively disregard its stated NOD policy
    harms the regulated community and threatens the environment by allowing facilities
    to be operated by companies that lack the competence to complete an application as
    required without excessive NODs. Agency management also suffers reputation
    damage in such a scenario, because they are forced to say one thing and do another.
    31
    Additionally, allowing the NOD policy to be disregarded is unfair to agency staff
    members, who will be unable to rely on the plain letter of the policy instructions they
    are issued. Finally, disregarding the NOD policy is unfair to the Texas legislature
    and the taxpayers whose dollars support the agency’s activities. TCEQ should be
    held to its two NOD policy, which was intended to promote efficiency within the
    agency. Allowing the NOD policy to be disregarded undermines the purpose of the
    policy altogether – to ensure efficient review of applications. Efficient application
    review saves taxpayer dollars and expedites review for applicants. TCEQ cannot be
    allowed to disregard its NOD policy. Such a decision would be unfair to all
    participants, and would merely enable the TCEQ to waste taxpayer and applicant
    resources with unnecessarily lengthy application reviews.
    Worthy of note, returning a deficient application is not unprecedented.
    Counsel is aware of two examples referenced in briefing at the administrative level
    for this registration application alone.44 Indeed, this Court dismissed an untimely
    appeal of one of these returned applications.45
    Appellees argue that it was reasonable to continue to send Pintail NODs in
    violation of the TCEQ’s publicly pronounced policy, because new requests for
    information were being made. However, the record shows that Pintail repeatedly
    44
    R.R. at Joint Ex. 1, AR Vol. 7, Item 48, p. 5–6 (Motion to Overturn Executive Director’s August
    16th, 2012 Issuance of a Fifth Notice of Deficiency).
    45
    Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 SW.3d 91 (Tex. App.—Austin 2009).
    32
    failed to adequately respond to TCEQ’s NOD requests, exceeding the two NOD
    limit for the same TCEQ requests. TCEQ should only be allowed two NODs, in
    accordance with its stated policy, but even if the two NOD limit was measured by
    the subject matter of each question asked, TCEQ still exceeded its policy. As
    demonstrated by the highlighted portions of Appendix A, TCEQ repeated a number
    of NOD requests more than twice, and Pintail did not adequately respond to the
    requests within the two NOD limit.
    The subject matters of the lengthiest requests follow.            The registration
    application failed to include the required construction details of subsurface supports
    of all storage and processing components and failed to include the required review
    letter from the Texas Historical Commission.46 TCEQ’s requests for both of these
    NOD items were made on October 27, 2011, again on February 17, 2012, and for a
    third time on April 12, 2012, in violation of the two NOD policy. The required
    information from Texas Department of Transportation was only provided after
    TCEQ requested it in five NODs. This information was requested on October 27,
    2011, again on February 17, 2012, for a third time on April 12, 2012, for a fourth
    time on June 25, 2012, and for a fifth time on August 16, 2012. Even after all of
    these requests, there was still another TCEQ request for additional information,
    46
    See Appendix A: NOD letters from TCEQ and Supplementary Information transmittal letter
    from Pintail dated Oct. 18, 2012. R.R. at Joint Ex. 1, AR Items 3, 13, 22, 24, 32, 39, 51).
    33
    which was responded to on October 18, 2012, providing a new Facility Boundary
    Map and new information about nearby water wells, springs, surface water bodies,
    and oil and gas wells.   The agency should not be allowed to write Pintail’s
    registration application for them. This registration application should have been
    returned.
    34
    PRAYER
    TCEQ acted in violation of its own rules and policies, and in abrogation of the
    due process rights of affected persons, in granting the Registration Application and
    issuing Registration No. 40259. Therefore, CALH and the City respectfully pray
    that the trial court's Judgment affirming the TCEQ’s action be reversed, and that
    Court reverse, or suspend and set aside, the Registration and remand this matter to
    TCEQ for further proceedings consistent with this Court’s opinion. CALH and the
    City further pray for all other and further relief, both general and special, at law and
    in equity, to which they may be justly entitled.
    Respectfully submitted,
    HANCE SCARBOROUGH, LLP
    400 W. 15th Street, Ste. 950
    Austin, TX 78701
    Telephone: (512) 479-8888
    Facsimile: (512) 482-6891
    By:    _______________________
    Terry L. Scarborough
    State Bar No. 17716000
    Michael L. Woodward
    State Bar No. 21979300
    mwoodward@hslawmail.com
    V. Blayre Pena
    State Bar No. 24050372
    bpena@hslawmail.com
    Wesley P. McGuffey
    State Bar No. 24088023
    wmcguffey@hslawmail.com
    35
    ATTORNEYS FOR APPELLANTS CITIZENS
    AGAINST THE LANDFILL IN HEMPSTEAD,
    MICHAEL MCCALL, AND WAYNE KNOX
    KELLY HART & HALLMAN LLP
    301 Congress Avenue, Suite 2000
    Austin, Texas 78701
    Telephone: (512) 495-6400
    Facsimile: (512) 495-6401
    By:     /s/ Diana Nichols
    Monica M. Jacobs
    State Bar No. 24007433
    Monica.Jacobs@kellyhart.com
    Diana L. Nichols
    State Bar No. 00784682
    Diana.Nichols@kellyhart.com
    ATTORNEYS FOR THE CITY OF
    HEMPSTEAD
    CERTIFICATE OF COMPLIANCE
    Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
    brief contains 6,788 words. This is a computer generated document created in
    Microsoft Word, using 14 point typeface for all text, except for footnotes, which are
    in 12-point typeface. In making this certificate of compliance, I am relying on the
    word count provided by the software used to prepare the document.
    Terry L. Scarborough
    36
    CERTIFICATE OF SERVICE
    I hereby certify that a copy of Reply Brief of Appellants’ was served on the
    following counsel of record on April 16, 2015, via certified mail, return receipt
    requested, and/or the electronic filing system:
    Nancy Elizabeth Olinger
    Nancy.Olinger@texasattorneygeneral.gov
    Cynthia Woelk
    Cynthia.Woelk@texasattorneygeneral.gov
    Daniel C. Wiseman
    Daniel.Wiseman@texasattorneygeneral.gov
    OFFICE OF THE ATTORNEY GENERAL OF TEXAS
    Environmental Protection Division (MC-066)
    P.O. Box 12548
    Austin, TX 78711-2548
    ATTORNEYS FOR TCEQ
    Paul R. Tough
    ptough@msmtx.com
    Brent W. Ryan
    bryan@msmtx.com
    MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP
    P.O. Box 12127
    Austin, TX 78711
    Michael S. Truesdale
    LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
    801 West Avenue, Suite 201
    Austin, TX 78701
    ATTORNEYS FOR THE PINTAIL LANDFILL, LLC
    Terry L. Scarborough
    37
    APPENDIX A
    Bryan W. Shaw) Ph.D., Chair111an
    Buddy Garcia, Co1n1nissioner
    Carlos Rubinstein, Convnissioner
    Mark R. Vickery, P.G .1 Executive Directo1·
    TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
    Prote.cting Texas by Reducing and Preventing Pollution
    August 15, 2011
    Mr. Ernest Kaufmann
    Pintail Landfill, LLC
    24644 Highway 6
    Hempstead, Texas 77445
    Re:       Pintail landfill Transfer Station - Waller County
    Municipal Solid Wasle (MSW) - Registration No. NA
    Registration Application (RA) - Preliminary Review
    T1·acking Nos. 14835575 & 14874930; RN: NA/ CN603939349
    Dear Mr. Kaufmann:
    The MSW Permits Section has completed a preliminary review of the RA dated Angust 1, 2011,
    and the revisions dated August 8, 2011, for a Type VTransfer Station. Additional information is
    necessary to comply with the application requirements of Title 30 of the Texas Administrative
    Code (30 TAC) Chapter 305 and Chapter 330. The information requested below must be
    provided prior to fillther application review. When maldng revisions to maps, drawings, and
    figures which are repeated throughout the application, each map, drawing, and figure must be
    revised throughout the application.
    1.    It is not clear whether the person who signed U1e signature page located on page 10 ofTCEQ
    Form No. 0650 meets the requirements of 30 TAC Section (§)305.44 (relaling to Signatories
    to Applications). Please include documentation that the person who signs the signature
    page has the signing qualifications as specified iu 30 TAC §305.44, §s30.59(g), and Section
    G ofTCEQ Form No. 0650.
    2. The text within U1e property owner affidavit located on page 9 of TCEQ Form No. 0650 has
    been modified to state that the property owner shall not be held responsible for the
    operation, maintenance, and closure and pOS'HJosure care of the facility.. Please note that in
    accordance with 30 TAC §s30.59(d)(2)(A) the property owner affidavit must include an
    acknowledgment that the State of Texas may hold the property owner of record either jointly
    or severally responsible for the operation, maintenance, and closure and post-closure care of
    the facility. In addition, please note that the text within the properly owner affidavit should
    not be modified from the original text contained within page 9 ofTCEQ Form No. 0650.
    Please resubmit a properly completed property owner affidavit with your next submittal.
    Please ensure that the standard text within the property owner affidavit will not be modified.
    3. Part V of the TCEQ Core Data Form (TCEQ Form No. 10400) does not include the date that
    the form was signed. Please revise Part VofTCEQ Form No.10400 to include the date that
    the form was signed.
    1) .0. Box 13087   •     A1rntin, Texas 78711-3087   °   512-239-1000    ..   www.tceq.texas.gov
    How fa our custo1ner service'~     wvvvv.tceq.texas.gov/goto/c11ston1ersurvey
    Mr. Ernest Kaufmann
    Page 2
    August 15, 2011
    4. Part I of the RA does not include a listing of all permits or construction approvals received or
    a1Jplied for. In accordance vrith 30 T_,_a_._c §305.45(a)(7), please revise Part I oftl1e RA to
    include a listing of all permits or construction approvals received or applied for in
    accordance with the cited rule. For those permits listed in §305.45(a)(7), please indicate
    whether the applicant has applied, received approval, or whether it is not applicable.
    Please submit an original and three (3) copies of the application revisions within fourteen (14)
    days of the date of this letter. Your response must be in a fonn that allows for the replacement
    of application pages with revised pages. According to 30 TAC §s30.57(g)(6), revisions must
    have a revision date and note that the sheet is revised in the header or footer of each revised
    sheet or page. Since your application is under a preliminary review, please use the label,
    "Pl·elim-Review #(date)" ill the headel' or footer to identify your NOD response.
    Please complete Pages 1 and 2 of the Part I Form to include with your response and mark the
    boxes to indicate that your response is a "Notice of Deficiency Response" for the "Registration
    Application." In accordance with 30 TAC §§281,5(1) and 305-44, please also include a new,
    original signature page, Page 10 of the Part I Form, as part of your response. Along with the
    original signature, the certification statement should indicate the name, title, and address of the
    responsible official. This form and the Core Data Form are available on our Website at:
    http:/ /Vl"AW. tceq.state. tx. us/permitting/waste_permits/msw_permits/
    perm_reg:_Jnod.html#all.
    Failure to submit the requested information will result in the application being returned to the
    applicant. If you have any questions, please contact me at (512) 239-2580. Please include the
    mail code MC 124 when you address written correspondence.
    Sincerely,
    u M.  b      J4E'. ·~
    RU en eza, r.,