
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-98-00057-CV


Alton McDaniel, Appellant

v.

Texas Natural Resource Conservation Commission, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. 97-06237, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING 





	Appellant Alton McDaniel ("McDaniel") appeals the trial court's decision to grant
summary judgment and render a final judgment in favor of appellee Texas Natural Resource
Conservation Commission ("TNRCC").  McDaniel contends that the TNRCC does not have
authority to allow solid waste disposal by registration, and, even if such authority exists, the notice
given by the TNRCC did not comply with TNRCC rules.  We will affirm the trial court's
judgment.

BACKGROUND
	Cary Juby ("Juby") applied to the TNRCC to register a site in Burnet County upon
which he intended to beneficially apply sewage sludge.  Juby acknowledged in his application that
he did business as "Cap. Tex. Waste Service."  The TNRCC sent notice of the application to the
county judge of Burnet County and to the landowners adjacent to the proposed disposal site.  This
notice did not specify that Juby was associated with Cap. Tex. Waste Services.  The TNRCC later
approved the application and issued a written sludge registration.  No contested case hearing was
held prior to the issuance of this registration.
 McDaniel resides on land adjacent to the proposed sludge disposal site and timely
filed a motion for reconsideration of the registration, which was overruled by operation of law. 
McDaniel then filed suit in district court pursuant to section 5.351(a) of the Texas Water Code,
seeking to set aside the TNRCC's decision to issue the registration. (1) See Tex. Water Code Ann.
§ 5.351 (West 1988).  At trial, McDaniel and the TNRCC filed cross-motions for summary
judgment.  The trial court denied McDaniel's motion and granted the TNRCC's, rendering a final
judgment in favor of the TNRCC.

DISCUSSION When both parties move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should review the summary-judgment evidence
presented by both sides and determine all questions presented.  See Commissioners Court of Titus
County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.
1988).  The reviewing court should then render such judgment as the trial court should have
rendered.  See Agan, 940 S.W.2d at 81.
Registration versus Permitting
	McDaniel questions whether the Solid Waste Disposal Act (the "Act"), Tex. Health
& Safety Code Ann. §§ 361.001-.510 (West 1992 & Supp. 1999), gives the TNRCC authority to
allow sewage sludge disposal by registration.  Stated another way, the issue is whether the
TNRCC must go through the general permitting process before allowing the disposal of sewage
sludge.
	Agencies may only exercise those powers that are specifically given them by statute. 
See Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex. App.--Austin 1986, writ
ref'd n.r.e.).  However, agencies also have implied powers to do that which is necessary to carry
out the specific powers delegated, for the legislature intended a workable and effective exercise
of the powers expressly and specifically granted the agency.  See id. at 137-39 (full extent of
power specifically granted agency must be ascertained with due regard for rule that legislature
intends agency should have, by implication, such authority as may be necessary to carry out
specific powers delegated).  In order to ascertain the legislative intent with regard to the Act and
determine the authority it grants to the TNRCC, we look to the statute as a whole.  See Citizens
Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex. 1979) ("The cardinal rule in
statutory interpretation and construction is to seek out legislative intent from a general view of the
enactment as a whole").
	The sewage sludge at issue in this case is municipal solid waste.  See Tex. Health
& Safety Code Ann. § 361.003(20) (West Supp. 1999) (defining municipal solid waste as "solid
waste resulting from or incidental to municipal, community, commercial, institutional, or
recreational activities"). (2)  The Act governs the management and control of solid waste materials
in this state, including sewage sludge.  See North Alamo Water Supply Corp. v. Texas Dep't of
Health, 839 S.W.2d 448, 449 (Tex. App.--Austin 1992, writ denied).
	Throughout the Act, the TNRCC is given the authority to administer the act using
different levels of regulation, including both permitting and registration. (3)  With the exception of
hazardous municipal waste (which the sewage sludge at issue here is not) (4), the TNRCC is given
broad jurisdiction to control all aspects of the management of municipal solid waste consistent with
its powers and duties under the Act:

(a)	The [TNRCC] is responsible under this section for the management of
municipal solid waste . . . and shall coordinate municipal solid waste activities
. . . .

(b)	The [TNRCC] shall accomplish the purposes of this chapter by controlling all
aspects of the management of municipal solid waste . . . by all practical and
economically feasible methods consistent with its powers and duties under this
chapter and other law.

(c)	The [TNRCC] has the powers and duties specifically prescribed by this
chapter relating to municipal solid waste management . . . and all other
powers necessary or convenient to carry out those responsibilities under this
chapter.


Tex. Health & Safety Code Ann. § 361.011 (West Supp. 1999) (emphasis added).  The Act also
specifically gives the TNRCC authority to issue permits for municipal solid waste disposal in its
general permitting section:  "Except as provided by 361.090 with regard to certain industrial solid
waste, the commission may require and issue permits authorizing and governing the construction,
operation, and maintenance of solid waste facilities used to store, process, or dispose of solid
waste."  Id. at § 361.061 (emphasis added).
	McDaniel argues that the general permitting section establishes that the TNRCC
can either establish a permitting process or implement no regulation at all for sewage sludge
disposal. We do not agree that the legislature intended an "all or nothing" approach to the disposal
of solid waste.  The policy of the Act as a whole is to "safeguard the health, welfare, and physical
property of the people and to protect the environment by controlling the management of solid
waste."  Tex. Health & Safety Code Ann. § 361.002(a) (West 1992) (emphasis added). 
McDaniel's argument that the Act charges the TNRCC to provide no regulation for the disposal
of sewage sludge is inconsistent with this policy.  Failure to regulate would certainly not safeguard
the health, welfare and physical property of the citizens of this state, nor would such failure
protect the environment.  Moreover, if the legislature intended the TNRCC to only issue permits
when regulating municipal solid waste, it could have so mandated, as it has done in other areas. 
See id. § 361.002(b) (requiring the TNRCC to go through a permitting process when managing
and controlling hazardous waste). (5)  Because we decline to give a mandatory meaning to the clearly
permissive language of section 361.061, we conclude that the TNRCC is not required to
implement a permitting process in its regulation of the disposal of sewage sludge.
	The Act gives the TNRCC general authority over municipal solid waste, allowing
the agency to control and manage all aspects of municipal solid waste by all practical means as
long as such methods are consistent with its powers and duties under the Act.  See Tex. Health
& Safety Code Ann. § 361.011 (West Supp. 1999).  The TNRCC exercised its authority in the
present case by establishing and administering a registration process.  Pursuant to TNRCC's own
properly promulgated rules, several steps are generally required for a registration to be issued. 
An applicant must notify the TNRCC in writing that land application for beneficial use activities
are planned and submit information that will enable the TNRCC to determine whether such
activities comply with its rules. (6) See 30 Tex. Admin. Code § 312.12(a) (1998).  The TNRCC can
approve an applicant's request only after reviewing it in light of its rules governing sewage sludge
dispersal, which require among other things, certain limits on the concentration of metals,
restrictions on available sites, and several specific actions for bulk sewage sludge treatment.  See
id. §§ 312.12(b), .42.  If the TNRCC approves the request, it must mail notice of this decision
to the county judge in the county where the proposed disposal site is located and to adjacent
landowners.  See id. § 312.13(c).  Any dissatisfied person can provide written comments to the
TNRCC and file a motion for reconsideration of the decision.  See id. § 312.13(d).
	The TNRCC acted in compliance with its own properly promulgated rules and
issued the requested registration. (7) McDaniel received notice of the TNRCC's action and filed a
motion for reconsideration.  Therefore, although registration is a less stringent form of regulation
than permitting, the TNRCC provided reasonable protection to McDaniel by allowing him an
opportunity to protest the TNRCC's decision.  We find that the TNRCC's establishment of a
registration process to regulate the disposal of sewage sludge was reasonable and consistent with
its powers and duties under the Act.

Notice to McDaniel
	McDaniel next asserts that the notice issued by the TNRCC did not comply with
TNRCC rules.  Under its rules regarding registration, the TNRCC is required to mail notice of
the application to adjacent landowners specifying, inter alia, the name and affiliation of the
applicant.  See 30 Tex. Admin. Code § 312.13(c) (1998).  In this case, the application for
registration stated that Juby did business as Cap. Tex. Waste Service.  However, the notice given
to the adjacent landowners, including McDaniel, failed to mention Cap. Tex. Waste Service. (8)
	When an agency fails to follow its own rules, reversal and remand is required if a
showing of harm or prejudice is made.  See Imperial Am. Resources Fund, Inc. v. Railroad
Comm'n, 557 S.W.2d 280, 288 (Tex. 1977). (9)  In this case, no harm or prejudice has been shown
as a result of the TNRCC's failure to provide notice of Juby's affiliation with Cap. Tex. Waste
Service, nor has his affiliation been shown to be relevant or material to any issue before the
TNRCC.  McDaniel, in his motion for summary judgment, admits that he had actual knowledge
of this affiliation.  Moreover, he used this information in his motion to reconsider the registration,
acknowledging Juby's affiliation with Cap. Tex. Waste Service.  We therefore find that McDaniel
had actual notice of Juby's affiliation and was neither harmed nor prejudiced by the TNRCC's
failure to provide such information in its notice to him.

Notice to Other Adjacent Landowners
	McDaniel also urges that other adjacent landowners did not express their concerns
because they did not receive notice that Juby was affiliated with Cap. Tex. Waste Service. (10) 
However, McDaniel does not have standing to assert the interest of a third party who allegedly
was never given notice of the applicant's affiliation.  See Smith v. Houston Chem. Serv., Inc., 872
S.W.2d 252, 273 (Tex. App.--Austin 1994, writ denied) (opponent to Texas Water Commission's
issuance of permit could not be prejudiced by permit applicant's failure to notify another person);
see also Copher v. First State Bank, 852 S.W.2d 738, 740 (Tex. App.--Fort Worth 1993, no writ)
(judgment debtor has no standing to assert interest of party who allegedly was never given notice
of hearing); American Operating Co. v. Railroad Comm'n, 744 S.W.2d 149, 155 (Tex.
App.--Houston [14th Dist.] 1987, writ denied) (unit owner had no standing to challenge royalty
interest lessor's lack of notice of hearing); Murmur Corp. v. Board of Adjustment, 718 S.W.2d
790, 793 (Tex. App.-- Dallas 1986, writ ref'd n.r.e.) (subsequent purchaser had no standing to
complain of lack of notice to former owner).  We therefore decline to address this issue.

CONCLUSION
	Because the Act allows the TNRCC to authorize sewage sludge disposal by
registration and McDaniel was not harmed or prejudiced by the TNRCC's failure to provide notice
of Juby's affiliation with Cap. Tex. Waste Service to McDaniel, we affirm the judgment of the
trial court.


  
		Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed:   December 17, 1998
Publish
1.        Juby has appeared in this case as amicus curiae asserting that this Court lacks jurisdiction
because McDaniel failed to join him as a party to this action when he had been a party before the
TNRCC.  See Tex. Gov't Code Ann. § 2001.176(b)(2) (West 1998).  We reject this argument. 
This case was brought pursuant to the Texas Water Code, and thus service on Juby was not
required.  See Tex. Water Code Ann. § 5.351(a) (West 1988).
2.      	Solid waste is defined, in pertinent part, as "garbage, rubbish, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control facility, and other discarded
material, including solid, liquid, semisolid, or contained gaseous material . . . and from
community and institutional activities."  Tex. Health & Safety Code Ann. § 361.003(34) (West
Supp. 1999) (emphasis added).
3.      	The permitting process allows certain individuals to request a contested case hearing, while
the registration process does not.  See 30 Tex. Admin. Code § 312.13(b), (c) (1998).
4.      	Hazardous municipal waste is municipal solid waste identified or listed as hazardous waste
by the administrator of the United States Environmental Protection Agency.  See Tex. Health &
Safety Code Ann. §§ 361.003 (12) and 361.003 (20) (West Supp. 1999).
5.      	In other instances the legislature has mandated registration in the Act.  See Tex. Health &
Safety Code Ann. § 361.0861 (West Supp. 1999) (requiring a registration process when a solid
waste management facility applies for recycling, waste separation, energy and material recovery,
or gas recovery).
6.      	Such information may include, but is not limited to:  (1) a description of the sludge at issue
and how it will be disposed; (2) the process generating the sewage sludge; (3) the characteristics
of the soil and subsurface conditions where the operation will be located; (4) a map of the land
under the applicant's control and the location of the adjacent landowners; and (5) analytical results
showing the concentration of metals and nutrients taken from the soil of the land to be applied. See
30 Tex. Admin. Code § 312.12(a) (1998).
7.      	The parties dispute whether the notice mailed to adjacent landowners complied with TNRCC
rules.  We address this issue in our discussion of the second issue presented.
8.      	We will presume for purposes of this discussion that Juby's connection with Cap. Tex.
Waste Service constitutes an "affiliation" as provided by the rules.
9.      	In Imperial American Resources Fund, Inc. v. Railroad Commission, 557 S.W.2d 280, 288
(Tex. 1977), the Railroad Commission failed to follow its own rules requiring notice to the parties
regarding material that would be judicially noticed.  See id. at 288.  The supreme court found that
there was no harm or prejudice because the material that the Commission judicially noticed was
not necessary to the Commission's order and was immaterial to its consideration of the case.  See
id. at 288-89.
10.        We note that a copy of the application was sent with the notice to the county judge of
Burnet County.  The application did reflect the affiliation.


>
CONCLUSION
	Because the Act allows the TNRCC to authorize sewage sludge disposal by
registration and McDaniel was not harmed or prejudiced by the TNRCC's failure to provide notice
of Juby's affiliation with Cap. Tex. Waste Service to McDaniel, we affirm the judgment of the
trial court.


  
		Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed:   December 17, 1998
Publish
1.        Juby has appeared in this case as amicus curiae asserting that this Court lacks jurisdiction
because McDaniel failed to join him as a party to this action when he had been a party before the
TNRCC.  See Tex. Gov't Code Ann. § 2001.176(b)(2) (West 1998).  We reject this argument. 
This case was brought pursuant to the Texas Water Code, and thus service on Juby was not
required.  See Tex. Water Code Ann. § 5.351(a) (West 1988).
2.      	Solid waste is defined, in pertinent part, as "garbage, rubbish, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control facility, and other discarded
material, including solid, liquid, semisolid, or contained gaseous material . . . and from
community and institutional activities."  Tex. Health & Safety Code Ann. § 361.003(34) (West
Supp. 1999) (emphasis added).
3.      	The permitting process allows certain individuals to request a contested case hearing, while
the registration process does not.  See 30 Tex. Admin. Code § 312.13(b), (c) (1998).
4.      	Hazardous municipal waste is municipal solid waste identified or listed as hazardous waste
by the administrator of the United States Environmental Protection Agency.  See Tex. Health &
Safety Code Ann. §§ 361.003 (12) and 361.003 (20) (West Supp. 1999).
5.      	In other instances the legislature has mandated registration in the Act.  See Tex. Health &
Safety Code Ann. § 361.0861 (West Supp. 1999) (requiring a registration process when a solid
waste management facility applies for recycling, waste separation, energy and material recovery,
or gas recovery).
6.      	Such information may include, but is not limited to:  (1) a description of the sludge at issue
and how it will be disposed; (2