Rick Wood v. Texas Commission on Environmental Quality ( 2014 )

NUMBER 13-13-00189-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICK WOOD, Appellant,
v.
TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY, Appellee.
On appeal from the 261st District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
This is an appeal from a Travis County District Court decision on an administrative
agency act. Rick Wood, a landowner, filed a protest with the State Office of the
Administrative Hearings (SOAH) challenging the application of Lerin Hills Municipal
Utility District (Lerin Hills) for a proposed water treatment center to be built near his
property. Initially, an Administrative Law Judge (ALJ) issued a proposal for decision
denying Lerin Hills’s application on one issue: whether the application met the Texas
Commission on Environmental Quality’s (the Commission’s) antidegradation rule.
Upon review, the Commission overruled the ALJ, approved the project, and issued a
revised order explaining its decision. Wood then appealed the Commission’s final order
to a state district court, which upheld the Commission’s approval and granted the
Commission’s no-evidence motion for summary judgment on Wood’s Texas Open
Meetings Act claim.
By seven issues, which we re-number and re-organize as four, Wood contends
that: (1) the decision not to refer a regionalization, or need, issue to the SOAH was
erroneous; (2) the Commission erred when it held that Lerin Hills met the Commission’s
Tier 2 antidegradation standard; (3) the Commission erred when it revised the ALJ’s
proposed order to approve the project; and (4) the trial court erred in granting a
no-evidence summary judgment.
We affirm the trial court’s judgments.
I. BACKGROUND1
On May 3, 2006, Lerin Hills submitted an application for a Texas Pollution
Discharge Elimination System permit. See TEX. HEALTH & SAFETY CODE ANN. § 361.061
(West, Westlaw through 2013 3d C.S.) (providing that the Commission may issue
permits regarding solid waste facilities). This application sought permission to
discharge effluent from a new wastewater treatment facility that would serve a planned
1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
2
1,475 single-family housing development in Kendall County, Texas. The application
proposed discharging the treated wastewater into an unnamed tributary, then to the
headwaters of an impoundment on Deep Hollow Creek, then to Deep Hollow Creek, then
to Frederick Creek, then to Upper Cibolo Creek in Segment Number 1908 of the San
Antonio River Basin.
The Commission issued a public notice after it received Lerin Hills’s application
and declared it complete. Appellant Rick Wood, whose property was located near the
proposed site, requested a contested case hearing before an ALJ on the application.
The Commission granted Wood’s request for hearing on the following issues:
1. Whether the proposed effluent discharge would be in compliance
with regulations intended to protect ground water and surface water;
2. Whether the effluent limitation in the draft permit would protect water
quality and the designated uses of the receiving waters;
3. Whether the permit would authorize Lerin Hills to discharge the
appropriate amount of wastewater based on the service area
projections;
4. Whether the proposed facility would comply with the siting
requirements set forth in 30 Texas Administrative Code section
309.12;
5. Whether the facility would meet the rule requirements intended to
reduce nuisance odor conditions;
6. Whether Lerin Hills’s compliance history was such that the permit
should not be issued; and
7. Whether certain requirements of the draft permit regarding plant
operator and safety concerns were sufficient to ensure compliant
plant operations.
Notably, the Commission did not grant a hearing on Wood’s question of whether
regionalization, or need, was at issue. During the public comment period, Wood
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contended that there was not a need for this additional wastewater treatment facility
because there was another treatment facility in the region that could handle the
anticipated discharge from the new planned development. The Commission chose,
however, not to submit this issue to the ALJ for a hearing.
On November 18–20, 2008, an ALJ from the SOAH, Judge Shannon J. Kilgore,
held a live hearing on the aforelisted issues with respect to Lerin Hills’s application.
Several water quality experts testified: Charles Marshall testified for the Commission;
Dr. James Miertschin, an environmental engineer, and Paul Price, an aquatic biologist,
testified for Lerin Hills; Peter Schaefer, an aquatic scientist, testified for the
Commission’s Executive Director; and Dr. Roger Lee testified for Wood. The ALJ
subsequently issued a proposal for decision (PFD) which concluded that Lerin Hills met
its burden of proof on all of the contested issues save one: whether the permit met the
Commission’s antidegradation rule. See 30 TEX. ADMIN. CODE § 307.5 (West, Westlaw
2013 though 3d C.S.). This rule provides that changes that can affect the
fishable/swimmable quality cannot be allowed unless the applicant can show to the
Commission’s satisfaction that the lowering of water quality is necessary for important
economic or social development. Id. The Commission’s Executive Director and Lerin
Hills filed extensive exceptions to the PFD on the antidegradation issue.
On May 20, 2008, the Commission held a full hearing on Lerin Hills’s application.
Chairman Buddy Garcia, Commissioner Dr. Bryan Shaw, and Commissioner Larry
Soward presided at the hearing. After deliberation, wherein the Commission heard
testimony from the ALJ, representatives from Lerin Hills, Wood, and the Commission’s
Executive Director, and considered the evidence from the SOAH hearing, the
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Commission voted to reverse the ALJ recommendation on the antidegradation issue.
The Commission requested that Lerin Hills’s counsel, Danny Worrell, draft an order
modifying the ALJ’s proposed order to reflect their new position on antidegradation. At
the next Commission meeting on June 26, 2009, attorney Worrell presented the draft
order and explained the modifications made to the ALJ’s PFD. Wood did not attend this
public hearing and was not represented by counsel, either. Ultimately, the Commission
voted to adopt this order. Chairman Garcia signed the final order on July 7, 2009.
Wood appealed the adoption of the final order in a Travis County District Court.
In his appeal, Wood also added an Open Meetings Claim violation, arguing that the
Commission violated the Texas Open Meetings Act when it accepted Lerin Hills’s
proposed modifications when they were not based in the record. The trial court granted
the Commission’s no-evidence summary judgment motion on Wood’s Open Meetings
claim and upheld the Commission’s decision and findings. Wood subsequently
appealed.
II. STANDARD OF REVIEW
“Judicial review of an administrative order following a contested-case proceeding
is governed by the substantial evidence rule.” Citizens Against Landfill Location v. Tex.
Comm’n on Envtl. Quality, 169 S.W.3d 258, 263 (Tex. App.—Austin 2005, pet. denied).
The Texas Government Code provides the following guidance regarding application of
the substantial evidence rule:
If the law authorizes review of a decision in a contested case under the
substantial evidence rule or if the law does not define the scope of judicial
review, a court may not substitute its judgment for the judgment of the state
agency on the weight of the evidence on questions committed to agency
discretion but:
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(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if
substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions,
or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency's statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence
considering the reliable and probative evidence in the
record as a whole; or
(F) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion.
TEX. GOV’T CODE ANN. § 2007.174 (West, Westlaw through 2013 3d C.S.).
Under the substantial evidence rule, appellate courts review the evidence as a
whole to determine if reasonable minds could have reached the same conclusion as the
agency. Citizens, 169 S.W.3d at 264 (citing H.G. Sledge, Inc. v. Prospective Inv. &
Trading Co., 36 S.W.3d 597, 602 (Tex. App.—Austin 2000, pet. denied)). A court may
not substitute its judgment for that of the agency and may only consider the record on
which the agency based its decision. Id. (referring to TEX. GOV’T CODE ANN. §
2001.174). We must not determine whether the agency reached the correct
conclusion, but whether there is some basis in the record for the agency’s action. Id.;
see City of El Paso v. Pub. Util. Comm’n, 883 S.W.2d 190, 204 (Tex. 1994). “We
presume that the agency’s findings, inferences, conclusions, and decisions are
supported by substantial evidence, and the burden to prove otherwise is on the
6
appellant.” Citizens, 169 S.W.3d at 264 (citing Texas Health Facilities Comm'n v.
Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984)). The agency’s decision, in
this case the Commission’s decision, should only be reversed if the party challenging the
decision demonstrates that the lack of substantial evidence prejudiced the party’s
substantial rights. Id.
III. ISSUES ON APPEAL
A. The Decision Not to Refer the Regionalization Issue to the SOAH
Wood argues that the Commission erred when it decided not to refer the
regionalization issue to the SOAH. In other words, Wood contends that the
Commission should have allowed the SOAH to determine whether there was a need for
the additional wastewater treatment facility, given that there existed another facility in the
region.
Section 26.003 of the Texas Water Code encourages and promotes “the
development and use of regional and areawide waste collection, treatment, and disposal
systems.” TEX. W ATER CODE ANN. § 26.003 (West, Westlaw through 2013 3d C.S.).
Section 5.556(d) of the Texas Water Code deals with the choice to refer issues to the
SOAH. See id. § 5.556(d) (West, Westlaw through 2013 3d C.S.). The statute, in
relevant part, provides as follows:
The commission may not refer an issue to the State Office of
Administrative Hearings for a hearing unless the commission determines
that the issue:
(1) Involves a disputed question of fact;
(2) Was raised during the public comment period; and
(3) Is relevant and material to the decision on the application.
7
Id. (emphasis added). In addition, section 5.556(e) provides:
If the commission grants a request for a contested case hearing it shall:
(1) Limit the number and scope of the issues to be referred to the State
Office of Administrative Hearings for a hearing; and
(2) Consistent with the nature and number of the issues to be
considered at the hearing, specify the maximum expected duration
of the hearing.
Id. at § 5.556(e) (West, Westlaw through 2013 3d C.S.).
A plain reading of the statute reveals that the decision to refer an issue to the
SOAH is discretionary and at the Commission’s will. The Commission “determines”
whether the issue “involves a disputed question of fact,” “was raised during the public
comment period,” and “is relevant and material.” Id. at § 5.556(d). Here, it is
undisputed that Wood raised the issue of regionalization, or need, during the public
comment period. Thus, the only questions at issue were whether regionalization
involved a disputed question of fact and if it was relevant and material to the
Commission’s decision to grant the application. Id.
In this case, the Commission determined that the need for an additional facility
was not in question. We look to Lerin Hills’s original application, wherein it identified the
Tapatio Springs Service Company wastewater treatment center as an existing facility
located within three miles of the proposed development. Testimony from the
Commission’s Executive Director revealed that the Tapatio Springs facility was only
authorized to treat 150,000 gallons of domestic wastewater daily; Lerin Hills requested
the ability to treat 500,000 gallons of effluent per day. The issue of geography also
created a problem. According to the Executive Director,
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The proposed facility is located on the opposite side of a major topographic
ridge from the Tapatio Springs Service Company facility. If the Lerin Hills
permit is issued, wastewater would be collected in gravity sanitary sewers
and then pumped at relatively low pressures to the proposed facility;
however[,] for Lerin Hills to connect to the Tapatio Springs Service
Company facility, wastewater would first have to be centrally collected in
the lower part of the Lerin Hills area and then pumped over the ridge,
requiring a vertical lift over 200 feet. Lerin Hills indicates this is
undesirable because it will increase costs for the future Lerin Hills
homeowners and it will increase the risk of raw sewage spills due to higher
pressure in the sewage force main.
We conclude that the Commission did not err when it declined to grant a hearing
on the question of regionalization, or need. Section 5.556(d) of the Texas Water Code
gives the Commission discretion to determine which issues should be considered for
hearing, and in light of the foregoing concerns regarding the limited capacity and
geographic challenges of using another wastewater facility in the vicinity, we hold that
the Commission wielded its discretion appropriately. Id.; see State v. Pub. Utility
Comm’n of Tex., 883 S.W.2d 190, 196 (providing that “the contemporaneous
construction of a statute by the administrative agency charged with its enforcement is
entitled to great weight”) (referring to Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) &
Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)). We overrule this
issue.2
B. The Commission’s Tier 2 Antidegradation Standard
Wood also contended that the Commission erred when it held that Lerin Hills met
the Commission’s Tier 2 antidegradation standard. The Texas Administrative Code
sets forth this standard:
2 We further note that the Commission did, though, honor Wood’s request by granting him a
hearing on seven other issues raised during the public comment period. By limiting the number of issues it
heard, the Commission complied with its duty to “limit the number and scope of the issues to be referred” to
the SOAH. TEX. W ATER CODE ANN. § 5.556(e) (West, Westlaw through 2013 3d C.S.).
9
Tier 2. No activities subject to regulatory action that would cause
degradation of waters that exceed fishable/swimmable quality are allowed
unless it can be shown to the commission's satisfaction that the lowering of
water quality is necessary for important economic or social development.
Degradation is defined as a lowering of water quality by more than a de
minimis extent, but not to the extent that an existing use is impaired. Water
quality sufficient to protect existing uses must be maintained.
Fishable/swimmable waters are defined as waters that have quality
sufficient to support propagation of indigenous fish, shellfish, terrestrial life,
and recreation in and on the water.
30 TEX. ADMIN. CODE ANN. § 307.5.
“In Texas, the TCEQ has the primary authority to establish surface water quality
standards, which it implements, in part, in its permitting actions.” Tex. Comm'n on Envtl.
Quality v. City of Waco, 413 S.W.3d 409, 411 (Tex. 2013). A review of the record shows
that the Commission measures water quality issues by two standards: the quantitative
and the narrative standards. Id. at 411, n.3 (indicating that the Commission has defined
“narrative” water quality standards as “qualitative, somewhat subjective assessments”
compared to “quantitative or numeric measures”). In its brief, the Commission further
explained:
Narrative standards apply to parameters such as nutrients that are harder
to quantify. Unlike many water-quality criteria, which are based on a
certain toxicity threshold determined by testing, the variability of
ecosystems makes developing a cause/effect relationship between nutrient
concentrations and ecological factors more difficult to readily determine
through testing. Hence, a narrative standard rather than a numeric
standard is applied.
In comparison, the Commission referred to its “Implementation Procedures,”
which uses numerical data for elements that are easy to quantify, such as dissolved
oxygen, total dissolved solids, sulfate, chloride, pH, temperature, toxic pollutants, and
bacteria, among others. See TEX. COMM’N ON ENVIRONMENTAL QUALITY, Procedures to
Implement the Texas Surface Water Quality Standards (June 2010), available at
10
http://www.tceq.state.tx.us/assets/public/permitting/waterquality/standards/docs/june_20
10_ip.pdf (last visited Dec. 2, 2014).
According to its brief, the Commission measures antidegradation under the
narrative standard. As applied to this case, that means that the Commission would
require qualitative, subjective evidence to determine whether Lerin Hills’s proposed
facility would “lower[] . . . water quality by more than a de minimis extent, but not to the
extent that an existing use is impaired.” 30 TEX. ADMIN. CODE ANN. § 307.5.
At the May 20, 2009 Commission meeting, the ALJ confirmed that she used the
more strict, quantitative standard to determine whether antidegradation would occur if
the Lerin Hills facility were approved. She testified as follows:
Both Lerin Hills and the ED have excepted to my analysis and findings
concerning the antidegradation rule. They’re both critical of my
characterization of the rule and in particular tier 2 as very stringent and
challenging. They suggest that I have over-read the rule. In addition[,]
they assert that I have applied a standard of proof that’s someho[w] stricter
than the preponderance of the evidence standard. . . . I do believe that
this is a strict and not a lenient rule. . . .
....
Mr. Price, the biologist, opined that nutrients in the discharge would not
have an adverse effect on the plant life in the impoundments at Deep
Hollow Creek. . . . Mr. Price [, though,] was not in command of the only
quantitative data that exists that attempts to predict the effects on the
receiving stream of the nutrients in this discharge. [He] was not a very
persuasive witness. That leaves the opinion of Dr. Miertschin [who]
offered a general opinion that the increased plant and algal growth will not
be significant. His opinion was quite conclusory.
The ALJ explained that she felt that the experts for Lerin Hills, Mr. Price and Dr.
Miertschin, were unable to quantify their conclusions that the effluent would lower water
quality by more than a de minimis extent. Accordingly, the ALJ maintained that these
expert opinions were incompetent because they were unexplained by numerical data.
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Lerin Hills, at the same May 9th hearing, protested the ALJ’s requirement of the
quantitative standard to measure antidegradation. Counsel for Lerin Hills stated that
the use of numeric proof was neither required “by the rules, the Texas Surface Water
Quality Standards or the implementation procedures.” At the hearing, Chairman for the
Commission, Buddy Garcia, confirmed that “we [the Commission] do use a narrative
criteria here, and have.” Chairman Garcia expressed that, although the Commission
would eventually prefer to move toward establishing numerical criteria to determine
antidegradation, it was not the current standard used to measure this tier 2 requirement.
Accordingly, the Commission overruled the ALJ’s recommendation because it held that
the ALJ used the incorrect standard to measure the proposed treatment facility’s impact
on water quality.
Wood urges us to consider State v. Mid-South Pavers in support of his contention
that the ALJ’s recommendation should stand. See 246 S.W.3d 711 (Tex. App.—Austin
2007, pet. denied). We find Mid-South Pavers inapposite on this matter. In
Mid-South, a case involving a highway construction contract, the Austin Court of Appeals
partially reversed a decision by the Texas Department of Transportation (TxDOT)
because TxDOT overruled an ALJ’s finding on witness credibility. Id. at 726. The
Third Court of Appeals ruled that “by resolving conflicts and credibility issues in disputed
evidence, the executive director [of TxDOT] has essentially stepped into the shoes of the
factfinder and reweighed the evidence to reach a specific result. This is not what the
legislature envisioned. . . .” Id.
The Commission did not do that here. Instead, the Commission held that the
ALJ used the incorrect standard to measure the possible antidegradation of water
12
quality. The ALJ testified that she used the stricter, quantitative standard to measure
antidegradation when Commission chair Garcia confirmed that the Commission has, to
date, only used the narrative standard in such decisions. And the testimony from Lerin
Hills’s experts Dr. Miertschin and Mr. Price revealed that while water chemistry would
change with the construction of a new water treatment facility, the changes would have a
de minimis impact on water quality. See 30 TEX. ADMIN. CODE ANN. § 307.5. This
evidence thus met the narrative standard.
Using the substantial evidence standard, we review the evidence as a whole to
determine if reasonable minds could have reached the same conclusion as the agency in
the disputed action. Citizens, 169 S.W.3d at 264. We may not determine whether the
Commission reached the correct conclusion, but whether there is some basis in the
record for its action. Id.; see City of El Paso, 883 S.W.2d at 204. Here, the
Commission’s decision was based on the ALJ’s use of an incorrect standard, not on its
re-evaluation of a witness’s credibility. See Mid-South Pavers, 246 S.W.3d at 726.
Because we hold that there is substantive evidence to uphold the Commission’s decision
to overturn the ALJ’s decision on antidegradation, see Citizens, 169 S.W.3d at 264, we
overrule this issue.
C. The Commission’s Revision of the ALJ’s Proposed Order
Wood presented three reasons why the Commission’s revision of the ALJ’s
proposed order was erroneous: the Commission allegedly (1) used new “sampling
requirements” for the determination of baseline water quality; (2) used information
outside the record; and (3) failed to provide a sufficient “explanation of changes” to the
ALJ’s order. We analyze each complaint in turn.
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1. New Sampling Requirements
Wood argued that the Commission erred when it used “new sampling
requirements” for the determination of baseline water quality after the close of the
contested hearing. Although Wood’s briefing on this issue is somewhat unclear, we
surmise that one of the bases Wood has for this complaint is that the Commission
determined that a narrative, not quantitative, standard was used to measure the
antidegradation requirement for the permit’s approval. As more clearly explained in
section III(B) of this opinion, we conclude that this change was not a “new sampling
requirement” but rather the Commission’s decision to use the customary water quality
standard. Because we concluded that there existed substantial evidence to uphold the
Commission’s decision to change from a quantitative to narrative standard, see Citizens,
169 S.W.3d at 264, we upheld this Commission decision.
Another complaint Wood has with regard to sampling requirements was the
Commission’s decision to disregard Dr. James Miertschin’s sampling data. Dr.
Miertschin testified that he took one set of samples when he conducted his investigation
of Lerin Hills’s proposed discharge route. The ALJ used this sampling data to establish
several findings of fact in her PFD, specifically, findings of fact numbers 38, 40, 43, and
46.3 The Commission, however, chose to disregard these samples. In its final order,
the Commission explained its decision as follows:
3 Here are the relevant findings of fact from the ALJ’s Proposal for Decision:
Finding of Fact No. 38: The phosphorus concentrations in the Hahnfeld pond and SCS
impoundment after the commencement of the proposed discharge could be as much as
150% to 1,200% of measured background.
Finding of Fact No. 40: The record in this case includes no attempt to estimate
quantitatively the amounts of phosphorus that will be biologically available in the stream
14
The Commission determined that the ALJ’s inclusion of “background”
information in certain Findings of Fact was not appropriate, because that
“background” was based on a single set of samples. Background
developed in accordance with EPA guidance and TCEQ practices requires
more extensive sampling to be correctly determined. Therefore, what the
ALJ proposed as Finding of Fact Nos. 38, 40, 43, and 46 have been
deleted and the remaining Findings of Fact have been renumbered
accordingly.
The Commission’s Executive Director, in his exceptions to the ALJ’s PFD, pointed out
that this was a correct move because “if a permitee collects samples to obtain
site-specific data, at least 30 samples must be taken, but the TCEQ would prefer 30–50
samples to ensure that there are at least 30 valid data points and to get a more
statistically reliable number.” Dr. Miertschin further testified that his single set of
samples were not taken during critical conditions of warm temperatures and base flow
conditions. This testimony provides yet another reason why this single sampling of data
was not representative of normal conditions of the receiving stream. And, again,
because we have held that a narrative standard should have been used in this case,
quantitative sampling was not necessary.
Under the substantial evidence test, “we presume that the agency’s findings,
inferences, conclusions, and decisions are supported by substantial evidence, and the
burden to prove otherwise is on the appellant.” Citizens, 169 S.W.3d at 264; Charter
Med.-Dallas, Inc., 665 S.W.2d at 452. Here, we find there was substantial evidence in
over time as the discharge continues.
Finding of Fact No. 43: The record in this case includes no attempt to estimate
quantitatively the amounts of algal and plant growth that may result from the increased
nutrient loading from the proposed discharge.
Finding of Fact No. 46: Lerin Hills has not shown that any lowering of water quality
resulting from the proposed discharge would be necessary for an important economic or
social development.
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the record for the Commission’s decision to discount sampling data that was
unnecessary under the narrative standard and/or unreliable due to the small sample
size.
2. Amended Findings of Fact
Wood further contends that the Commission’s amendments to the ALJ’s Findings
of Fact No. 32, 36, 37, 38, 39, 40, and 43 were based on information outside the record
made before the administrative law judge in violation of section 2003.047(m) of the
Texas Government Code. 4 TEX. GOV’T CODE ANN. § 2003.047(m) (West, Westlaw
through 2013 3d C.S.). Section 2003.047(m) provides as follows:
Except as provided in Section 361.0832, Health and Safety Code, the
4 We set forth the relevant findings of fact from the ALJ’s Proposal for Decision:
Finding of Fact No. 32: Modeling of the effects of the proposed discharge indicates that
the lowest DO level in Deep Hollow Creek would be between 5.03 mg/L and 5.27 mg/L,
compared to a presumed background of 6.25 mg/L.
Finding of Fact No. 36: Predicted concentrations of phosphorus in the SCS impoundment
would be 0.42 mg/L, 0.28 mg/L, 0.12 mg/L, and 0.05 mg/L (upstream to downstream),
compared to the measured background of 0.035 mg/L or the presumed background of 0.05
mg/L.
Finding of Fact No. 37: Predicted concentrations of phosphorus in the Hahnfeld pond and
SCS impoundment after the commencement of the proposed discharge could be as much
as 150% to 1,200% of measured background.
Finding of Fact No. 38: The phosphorus concentrations in the Hahnfeld pond and SCS
impoundment after the commencement of the proposed discharge could be as much as
150% to 1,200% of measured background.
Finding of Fact 39: Lerin Hills’ phosphorus modeling uses a uniform decay rate to attempt
to reflect removal of phosphorus from the water column, but the modeling does not attempt
to reflect cumulative phosphorus loading over time.
Finding of Fact No. 40: The record in this case includes no attempt to estimate
quantitatively the amounts of phosphorus that will be biologically available in the stream
over time as the discharge continues.
Finding of Fact No. 43: The record in this case includes no attempt to estimate
quantitatively the amounts of algal and plant growth that may result from the increased
nutrient loading from the proposed discharge.
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commission shall consider the proposal for decision prepared by the
administrative law judge, the exceptions of the parties, and the briefs and
argument of the parties. The commission may amend the proposal for
decision, including any finding of fact, but any such amendment thereto
and order shall be based solely on the record made before the
administrative law judge. Any such amendment by the commission shall
be accompanied by an explanation of the basis of the amendment. The
commission may also refer the matter back to the administrative law judge
to reconsider any findings and conclusions set forth in the proposal for
decision or take additional evidence or to make additional findings of fact or
conclusions of law. The commission shall serve a copy of the
commission's order, including its finding of facts and conclusions of law, on
each party.
Id. In his brief, Wood argues that the Commission did not base its amended order
“solely on the record made before the administrative law judge.” Id. He further asserts
that the amended order was not “accompanied by an explanation of the basis of the
amendment.” Id. We address each specifically referenced change.
a. Finding of Fact Number 32 Regarding Dissolved Oxygen Levels
Wood argues that the Commission’s change to the ALJ’s finding of fact number
32 regarding dissolved oxygen levels was not supported by evidence or adequately
explained. The ALJ’s finding originally read, “Modeling of the effects of the proposed
discharge indicates that the lowest DO level in Deep Hollow Creek would be between
5.03 mg/L and 5.27 mg/L, compared to a presumed background of 6.25 mg/L.” The
Commission’s final order reads, “Modeling of the effects of the proposed discharge
indicates that the lowest DO level in Deep Hollow Creek would be between 5.03 mg/L
and 5.27 mg/L.”
We look to the ALJ’s original PFD and find that she held that the “presumed
background of 6.25 mg/L” came from Dr. Miertschin’s testimony and findings. Based on
the Commission’s decision to disregard Dr. Miertschin’s sampling data because it was
17
based on a single set of samples, see discussion at section III(C)(1) supra, we find there
is substantial evidence in the record to support this deletion of language. As the
Commission pointed out, “background developed in accordance with EPA guidance and
TCEQ practices requires more extensive sampling to be correctly determined.” Dr.
Miertschin’s sampling did not meet the Commission’s requirements for scientific
sampling data.
In its “Explanation of Changes” in its final order, the Commission stated that it
“eliminate[d] language inconsistent with the Commission’s decision . . . [to] reflect[] that
the Applicant has satisfied all currently applicable water quality requirements . . . .” We
hold that this change is supported by substantial evidence in the record and explained
adequately.
b. Findings of Fact Numbers 36 Through 40 Regarding Phosphorus Levels
Findings of Fact 36, 37, 38, 39, and 40 dealt with the changes in phosphorus
levels that would arise in the affected water bodies should the Lerin Hills application be
granted. In its final order, the Commission explained that the ALJ erred by requiring
Lerin Hills to “present quantitative data on cumulative loading of phosphorus over time
and resulting biomass.” The Commission determined that such data was not required
for Lerin Hills to meet the current narrative standards for nutrients. Again, based on the
testimony and evidence in the record, we find that these changes were supported and
explained sufficiently.
c. Finding of Fact Number 43 Regarding Algal and Plant Growth
Wood also argued that the Commission’s deletion of the ALJ’s Finding of Fact
Number 43 was error. This finding provided that, “the record in this case includes no
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attempt to estimate quantitatively the amounts of algal and plant growth that may result
from the increased nutrient loading from the proposed discharge.” The Commission
stated that this finding was deleted because the narrative, not quantitative, standard was
appropriate to measure algal and plant growth. “The Commission determined that such
data was not required in order for the Applicant to meet the current narrative standards
for nutrients and that such data was not required. . . .” We hold that this statement was
supported by substantial evidence in the record and adequately explains the
Commission’s modification. See TEX. GOV’T CODE ANN. § 2007.174; see also section
III(B), supra.
d. Conclusion
In sum, the Commission’s changes to the ALJ’s findings are supported by
substantial evidence in the record and explained sufficiently to meet the requirements of
section 2003.047(m) of the government code. See TEX. GOV’T CODE ANN. §
2003.047(m). Because reasonable minds could have reached the same conclusion as
the agency in this disputed action, see Citizens, 169 S.W.3d at 264, we conclude that
these amendments should be upheld.
3. The Alleged Lack of Specificity in the Commission’s “Explanation of
Changes”
Finally, Wood claims that the Commission’s final sentence in paragraph 2 of its
“Explanation of Changes” violated sections 2001.058(e) and 2003.047(m) of the Texas
Government Code for want of specificity. TEX. GOV’T CODE ANN. § 2001.058(e),
2003.047(m) (West, Westlaw through 2013 3d C.S.). The sentence reads as follows:
In addition, the Commission modified the Finding of Fact Nos. 31–32,
36–38, 40, and 44, Conclusion of Law Nos. 6–7, and Ordering Provision
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No. 15 to eliminate language inconsistent with the Commission’s decision
on this matter and to incorporate new language that reflects that the
applicant has satisfied all currently applicable water quality requirements
and that the Commission is issuing the ED’s draft permit, as modified by
Explanation of Changes No. 3, below.
Section 2001.058(e) provides that a state agency may change a finding of fact or
conclusion of law made by an ALJ if the agency determines: (1) the ALJ did not
properly apply or interpret applicable law; (2) an administrative decision the ALJ relied
upon is incorrect or should be changed; or (2) a technical error should be corrected.
See id. § 2001.058(e). When making such a change, the agency “shall state in writing
5 We set forth the relevant findings of fact and conclusions of law from the Commission’s Final
Order dated July 7, 2009:
Finding of Fact No. 31: The draft permit would ensure that the narrative standards
applicable to all segments of the receiving stream would be met.
Finding of Fact No. 32: Modeling of the effects of the proposed discharge indicates that
the lowest DO level in Deep Hollow Creek would be between 5.03 mg/L and 5.27 mg/L.
Finding of Fact No. 36: Predicted concentrations of phosphorus in the SCS impoundment
would be 0.42 mg/L, 0.28 mg/L, 0.12 mg/L, and 0.05 mg/L (upstream to downstream).
Finding of Fact No. 37: Predicted concentrations of phosphorus in the Hahnfield Pond
would be 0.04 mg/L and 0.03 mg/L.
Finding of Fact No. 38: Lerin Hills’ phosphorus modeling uses a uniform decay rate to
attempt to reflect removal of phosphorus from the water column.
Finding of Fact No. 40: An increase in plant and algal growth as a result of the proposed
Lerin Hills discharge is likely; however, with the effluent limit of 0.5 mg/L (daily average) for
total phosphorus, the increase will be de minimis.
Finding of Fact No. 44: Lerin Hills demonstrated that there would not be lowering of the
water quality of Deep Hollow Creek, Frederick Creek, and Upper Cibolo Creek by more
than a de minimis extent as a result of the proposed discharge.
Conclusion of Law No. 6: The draft permit would ensure that the narrative standard
applicable to the immediate receiving stream (the unnamed tributary), and to Deep Hollow
Creek, Frederick Creek, and Upper Cibolo Creek would be met. 30 Tex. Admin. Code
307.4[.]
Conclusion of Law No. 7: The evidence supports a conclusion that, as to nutrients and
their effects on surface water quality, the draft permit and proposed discharge would satisfy
the requirements of the Commission’s antidegradation rule in connection with the waters of
Deep Hollow Creek, Frederick Creek, and Cibolo Creek. 30 Tex. Admin. Code 307.5.
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the specific reason and legal basis for a change made under this subsection.” Id.
And, as we noted previously, section 2003.047(m) provides additional authority for this
contention; it provides that a commission may amend an ALJ’s decision as long as it is
“based solely on the record” and is “accompanied by an explanation of the basis for the
amendment.” Id. § 2003.047(m).
We disagree with Wood’s interpretation of the Commission’s modifications to the
order. Before the disputed final sentence, the Commission clearly explained its
reasoning for the changes:
The Commission determined that the ALJ misapplied the Commission’s
policies and rules related to antidegradation, as set forth in 30 TEX. ADMIN.
CODE ch. 307 and the “Procedures to Implement the Texas Surface Water
Quality Standards”, by requiring the Applicant to present quantitative data
on cumulative loading of phosphorus over time and resulting biomass.
The Commission determined that such data was not required in order for
the Applicant to meet the current narrative standards for nutrients and that
such data and modeling were not appropriately required of an applicant
until the agency has an opportunity to develop an numeric standard in the
future, after providing sufficient public notice and sound scientific vetting of
that proposed new standard. The Commission determined that the
evidence in the record shows that the Applicant has satisfied the applicable
narrative criteria for nutrients in this matter.
We conclude that this explanation meets section 2001.058(e) of the government
code because it explains that the ALJ did not properly apply the correct narrative
standard to review antidegradation changes. See id. § 2001.058(e)(1) (providing that
an agency may amend a finding if “the ALJ did not properly apply or interpret applicable
law”). The Commission’s change, therefore, was a technical error that was properly
corrected. Id. § 2001.058(e)(3). We further hold that the explanation meets section
2003.047(m) because the Commissions amendment is firmly based in the record—there
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was ample testimony and evidence showing that the narrative standard was the proper
standard to apply. Id. § 2003.047(m).
4. Conclusion
In sum, Wood presented three reasons why the Commission erred in revising the
ALJ’s proposed order. He complained that the Commission (1) used new sampling
requirements to determine baseline water quality; (2) used information outside the
record; and (3) failed to specify the basis for its changes in its “explanation of changes.”
Having determined that there was substantial evidence in the record for the Commission
to make its changes to the ALJ’s order, see TEX. GOV’T CODE ANN. § 2007.174, we
overrule this issue.
D. The No-Evidence Summary Judgment on Wood’s Open Meetings Act Claim
Wood filed an Open Meetings Act Claim, among other claims, when he appealed
to a Travis County District Court. In his petition, Wood alleged that the Open Meetings
Act was violated when the chairman of the TCEQ “adopted a private position espoused
by another member but never voted upon in an open meeting.” The Commission filed a
no-evidence motion for summary judgment on this claim, which the district court granted.
1. Applicable Law and Standard of Review
In general, meetings of governmental bodies must be open to the public. See id.
§ 551.002 (West, Westlaw 2013 through 3d C.S.). “The [Open Meeting] Act’s purposes
are to provide public access to and increase public knowledge of governmental
decision-making.” Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751, 759
(Tex. App.—Austin 2012, no pet.) (citing City of San Antonio v. Fourth Ct. of Appeals,
820 S.W.2d 762, 765 (Tex. 1991)). “The law requires openness, not secrecy, when a
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state agency makes its decision in a contested administrative case.” Id. One
objective of the Open Meetings Act is to provide civil remedies for violations of its
meeting-notice requirements. City of Elsa v. Gonzalez, 325 S.W.3d 622, 627 (Tex.
2010) (citing TEX. GOV’T CODE ANN. §§ 551.141–.142 (West, Westlaw through 2013 3d
C.S.)). “Any action taken by a governmental body in violation of the Open Meetings Act
is voidable, and ‘an interested person . . . may bring an action by mandamus or
injunction to stop, prevent, or reverse a violation of threatened violation.’” Id.
Here, the trial court granted a no-evidence summary judgment in favor of the
Commission on Wood’s alleged Open Meetings Act claim. “In reviewing a no-evidence
summary judgment, we review the evidence in the light most favorable to the respondent
against whom the summary judgment was rendered.” See Smith v. O’Donnell, 288
S.W.3d 417, 424 (Tex. 2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005)). If the respondent brings forth more than a scintilla of probative evidence to
raise a genuine issue of material fact, a no-evidence summary judgment cannot properly
be granted. Id. (citing Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.—San Antonio
2000, no pet.)).
2. Discussion
The Commission held two hearings on the Lerin Hills application. The first
hearing was held on May 20, 2009. At this hearing, Chairman Buddy Garcia stated the
following on the record:
We do use a narrative criteria here, and have. I know that we’re moving
toward the numerical criteria. I think a logical conclusion has been
reached here. Any chemistry change would probably lead us be unable
under our current rules to adopt any permits in the future if that was the
case, and specifically no discharge permit, I think, will ever be allowed.
But right now, being able to know what we know in front of us, that at least
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the Chair is interested in reversing the ALJ’s recommendation . . . .
Commissioner Dr. Bryan W. Shaw echoed Chairman Garcia’s sentiments:
I agree with reversing the ALJ’s decision. I understand the basis for
where she’s trying to go, but I think that’s basically where we’re
endeavoring to develop the standards and the processes to improve that
methodology to better inform it, and I don’t think we’re there yet. I think
it’s a noble goal to have but I don’t think it fits within what our current rules
require. . . .
At the conclusion of this hearing, Commissioner Shaw moved to continue the
matter to the Commission’s June 26, 2009 hearing. He also moved to request Lerin
Hills to “modify the ALJ’s proposed order to reflect the Commission’s decision on
antidegradation in accordance with the Commission’s discussions.”
The second hearing was held on June 26, 2009. At this hearing, Lerin Hills’s
attorney went on the record to explain the revisions made to the ALJ’s proposed order.
He stated that the revisions to the findings of fact could be separated into two general
categories: (1) the deletion of language indicating that there was no quantitative
evidence in the record regarding the antidegradation standards, and (2) deletions of
findings that compared constituents to background levels. He elaborated:
The applicant’s rationale for making these revisions is as follows.
Reference to findings to lack of quantitative evidence of either nutrient
loading over time or algal and plant growth is not required under TCEQ
rules and policy for compliance with the antidegradation standard since it’s
a purely narrative standard and that is the basis of the Commission’s
decision in this case. Secondly, comparison to background levels of
constituents is erroneous because in this case they were based on a single
sample or estimate and TCEQ policy and rules and guidance requires
numerous samples to accurately determine the background concentration
of a substance in an aquatic system.
Neither Mr. Wood nor a representative of his were present at this meeting. The
attorney for the Commission’s Executive Director, though, was present and concurred
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with Lerin Hills’s changes.
The Commission issued the final order granting the application on July 7, 2009.
This order was drafted by the Commission’s General Counsel. A review of the order
shows that it reflects the thought-making process the Commissioners exhibited at both
the May 20th and June 26th meetings. In particular, the order’s “Explanation of
Changes” contains a detailed reasoning encompassing the Commissioners’ statements
and explaining why the Commission chose to approve Lerin Hill’s permit application.
Even reviewing the evidence in the light most favorable to Wood, see Smith, 288 S.W.3d
at 424, we cannot say that there was a violation of the Texas Open Meetings Act under
these facts. We find no evidence in the record regarding Wood’s allegations that the
Open Meetings Act was violated because Chairman Garcia “adopted a private position
espoused by another member but never voted upon in an open meeting.” The
discussions, and ensuing decisions, of the Commission were matters of public record.
We uphold the trial court’s summary judgment on this matter and overrule this issue.
IV. CONCLUSION
Having overruled all of Wood’s issues on appeal, we affirm the trial court’s
judgment.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
30th day of December, 2014.
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