                                                                                    ACCEPTED
                                                                                03-15-00446-CV
                                                                                        7820211
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                         11/13/2015 12:45:45 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                          No. 03-15-00446-CV

                                                                FILED IN
                                 IN THE                  3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                                                        11/13/2015 12:45:45 PM
                     THIRD COURT OF APPEALS                JEFFREY D. KYLE
                                                                 Clerk

                               AT AUSTIN


                     BAXTER OIL SERVICE, LTD.
                            Appellant

                                   v.

       TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,
                         Appellee.


             Appeal from the 345th Judicial District Court,
                        Travis County, Texas

                         APPELLEE’S BRIEF

KEN PAXTON                              PRISCILLA M. HUBENAK
   Attorney General of Texas                Chief, Environmental
                                            Protection Division
CHARLES E. ROY
  First Assistant Attorney              THOMAS H. EDWARDS
  General                                  Lead Counsel
                                           Assistant Attorney General
JAMES E. DAVIS                             Tex. Bar No. 06461800
   Deputy Attorney General for          Thomas.Edwards@TexasAttorney
   Civil Litigation                     General.gov
                                           cont.
       CRAIG J. PRITZLAFF
           Assistant Attorney General
           Tex. Bar No. 24046658
       Craig.Pritzlaff@TexasAttorney
       General.gov

       Office of the Attorney General
       Environmental Protection
            Division
       P.O. Box 12548, Capitol Station
       Austin, Texas 78711-2548
       Tel: (512) 463-2012
       Fax: (512) 320-0911

       ATTORNEYS FOR APPELLEE,
       TEXAS COMMISSION ON
       ENVIRONMENTAL QUALITY




-ii-
                 IDENTITY OF PARTIES & COUNSEL



   Appellee would supplement Appellant’s list of counsel, as follows:

PARTY                                        ATTORNEYS

Texas Commission on                          KEN PAXTON
Environmental Quality                           Attorney General of Texas

                                             CHARLES E. ROY
                                               First Assistant Attorney
                                               General

                                             JAMES E. DAVIS
                                                Deputy Attorney General for
                                                Civil Litigation

                                             PRISCILLA M. HUBENAK
                                                 Chief, Environmental
                                                 Protection Division

                                             THOMAS H. EDWARDS
                                                 Lead Counsel
                                                 Assistant Attorney General
                                                 Tex. Bar No. 06461800
                                             Thomas.Edwards@
                                             TexasAttorneyGeneral.gov




                                     -iii-
       CRAIG J. PRITZLAFF
           Assistant Attorney General
           Tex. Bar No. 24046658
       Craig.Pritzlaff@
       TexasAttorneyGeneral.gov

       Office of the Attorney General
       Environmental Protection
            Division
       P.O. Box 12548, Capitol Station
       Austin, Texas 78711-2548
       Tel: (512) 463-2012
       Fax: (512) 320-0911




-iv-
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iii-

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -x-

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xvii-

STATEMENT ON ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . -xviii-

ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xix-

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issue 1: Under existing precedent, the Order is final, unappealable,
    and immune from collateral attack. (Response to Section II of
    Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

      A. The order was final and appealable shortly after it was issued. . . 6

      B.     Baxter received actual notice of the Order. . . . . . . . . . . . . . . . . . . . . 7

      C. The deadline for appeal has passed and the Order is now
         unappealable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

      D. The statutory deadline is jurisdictional. . . . . . . . . . . . . . . . . . . . . . . . 8

      E.     The Order is not subject to collateral attack. . . . . . . . . . . . . . . . . . . . 9


                                                        -v-
      F.    Any exceptions that might allow collateral attack do not apply
            here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issue 2: Baxter received adequate Due Process. (Response to Sections
    I.C and I.D of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

      A. The Order is not misleading, provides adequate information
         and is not void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

            1.     The Order provides ample information about the Site
                   and the parties involved.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

            2.     The TCEQ is not required to include appellate advice
                   in its orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

            3.     The Order did not mislead expressly or by
                   implication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

      B.    Baxter seeks to expand its rights under the Due Process
            Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

            1.     The personal service requirement has been met. . . . . . . . . . . 18

            2.     The Order meets the three-part balancing test of
                   Mathews v. Eldridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

                   a.     The first factor—the private interest that will be affected by the
                          official action—weighs heavily against Baxter .. . . . . . . . . . . 22




                                                         -vi-
            b.    The second factor—the risk of erroneous deprivation and
                  probable value, if any, of additional or substitute
                  safeguards–weighs against Baxter . . . . . . . . . . . . . . . . . . . . . 24

            c.    The third factor—the public interest—weighs decisively
                  against Baxter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

      3.    The Mathews test has not been universally applied. . . . . . . . . 29

      4.    The Gonzalez line of cases is distinguishable.. . . . . . . . . . . . . . 30

            a.    Gonzalez involved incorrect notice rather than a lack of notice
                  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

            b.    The Gonzalez precedents are not binding but are “congruent”
                  with Texas law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

            c.    In any event, the present case does not fall under the
                  Gonzalez/Loudermilk precedent.. . . . . . . . . . . . . . . . . . . . . . . 34

C. Any Due Process notice violation has been cured by
   subsequent correct notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D. The cases that Baxter cites are inapposite. . . . . . . . . . . . . . . . . . . . . 37

      1.    Cases involving the absence of notice, rather than the
            adequacy of notice, are inapposite. . . . . . . . . . . . . . . . . . . . . . . 38

      2.    Cases involving service at the commencement of an
            action are inapposite. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38




                                                 -vii-
            3.    Cases involving significant events during a
                  proceeding are inapposite. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

            4.    Cases involving administrative decisions without an
                  appealable final order are irrelevant. . . . . . . . . . . . . . . . . . . . . 41

            5.    Due Process may enhance statutory notice
                  requirements, but the cited cases are inapposite. . . . . . . . . . . 43

Issue 3: Even if the Order had been issued in violation of Due Process
    it is not void but merely voidable—and it still must be timely
    appealed for the courts to have jurisdiction. (Response to both
    sections of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

      A. Even if the Order was misleading and had been issued in
         violation of Due Process, it was not void; it still had to be
         timely appealed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

            1.    The courts cannot acquire jurisdiction by mistake or
                  accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

            2.    The courts cannot acquire jurisdiction because a
                  party did not understand the law.. . . . . . . . . . . . . . . . . . . . . . . 47

            3.    The courts cannot gain jurisdiction by consent or
                  through estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

            4.    The Texas rule concerning misleading notice is not
                  universally followed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

      B.    Baxter’s cited cases do not support the proposition that the
            Order is void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50


                                                      -viii-
              1.     Security State Bank and Trust involved a complete lack
                     of notice rather than incomplete notice. . . . . . . . . . . . . . . . . . . 51

              2.     New York Life Insurance involved service at the wrong
                     address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

              3.     In re Guardianship of B.A.G. involved a court’s lack of
                     personal jurisdiction rather than notice of a right to
                     appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

APPENDIX




                                                          -ix-
                                      INDEX OF AUTHORITIES

                                                       CASES

Alamo Express, Inc. v. Union City Transfer, 309 S.W.2d 815 (Tex. 1958).. . . . 10

Barrera-Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996). . . . . . . . . . 38

Baxter v. Colvin, 14-CV-01306-WHO, 2014 WL 6985149 (N.D. Cal. Dec.
    10, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Boddie v. Connecticut, 401 U.S. 371 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Bradford v. Edelstein, 467 F. Supp. 1361 (S.D. Tex. 1979). . . . . . . . . . . . . . . . . 41

Brooks v. Apfel, 71 F. Supp. 2d 858 (N.D. Ill. 1999). . . . . . . . . . . . . . . . . . . 32, 33

Browning v. Prostok, 165 S.W.3d 336 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . 9

Butland v. Bowen, 673 F. Supp. 638 (D. Mass. 1987). . . . . . . . . . . . . . . . . . . . . 49

Castillo v. State, No. 03-11-00503-CV, 2012 WL 3793276 (Tex. App.—
    Austin Aug. 29, 2012, no pet.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . 10

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv.
    Comm’n, 124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied). . . . 11,
                                                                       17

Chow v. Dole, 677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no
   writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40




                                                           -x-
City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399 (Tex. App.—
     Austin 2008, no pet.), rev’d on other grounds, 392 S.W.3d 88 (Tex.
     2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

City of Dallas v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011). . . . . . . . . . . . 33, 37, 43

City of W. Covina v. Perkins, 525 U.S. 234 (1999). . . . . . . . . . . . . . . . . . . . . . . . 42

City of Waco v. Roddey, 613 S.W.2d 360 (Tex. App.—Waco 1981, no writ)
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Cleveland Bd. of Educ. v. Donnelly, 470 U.S. 532 (1985).. . . . . . . . . . . . . . . . . . 43

Corzelius v. Harrell, 186 S.W.2d 961 (Tex. 1945). . . . . . . . . . . . . . . . . . . . . . . . . 9

Crawford v. McDonald, 33 S.W. 325 (Tex. 1895).. . . . . . . . . . . . . . . . . . . . . . . . . 9

Daniel v. Dallas Indep. Sch. Dist., 351 S.W.2d 356 (Tex. Civ. App.—El
    Paso 1961, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Dusenbery v. United States, 534 U.S. 161 (2002). . . . . . . . . . . . . . . . . . . . . . . . . 42

Fed. Commc’ns Comm’n v. Pottsville Broad. Co., 309 U.S. 134 (1940). . . . . . . . 42

Fuentes v. Shevin, 407 U.S. 67 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Goldberg v. Kelly, 397 U.S. 254 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . 30-32

Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668 (Tex. App.—Austin
   1990, writ denied) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33


                                                             -xi-
Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192 (Tex. App.—Austin 1996,
    no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Hess & Clark, Div. of Rhodia, Inc. v. Food & Drug Admin., 495 F.2d 975,
    983 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Houston v. Fore, 412 S.W.2d 35 (Tex. 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

In re Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi
     1990, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50, 54, 55

In re Ruffalo, 390 U.S. 544 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). . . . . . . . . 26

Jolly v. State, 856 S.W.2d 859 (Tex. App.—Austin 1993, writ denied).. . . . . 10

Jones v. Flowers, 547 U.S. 220 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

L.B.L. Oil Co. v. Int’l Powers Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (per
    curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Langdale v. Villamil, 813 S.W.2d 187 (Tex. App.—Houston [14th Dist.]
    1991, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.—Texarkana 2000, no
     pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). . . . . . . . . . . . . . . . . . . . . 43

Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) (per curiam). . . . . . . . . . . . . . . . . 40



                                                           -xii-
Loudermilk v. Barnhart, 290 F.3d 1265 (11th Cir. 2002).. . . . . . . . . . . . . . . . . . 32

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . 32

M.E.K. v. R.L.K., 921 So.2d 787 (Fla. Dist. Ct. App. 2006). . . . . . . . . . . . . . . . 29

Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . 19-22, 24, 26, 27

Medina v. California, 505 U.S. 437 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1 (1978).. . . . . . . . . . . . . 41

Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). . . . . . . . . . . . . . . . . 51

Misium v. Misium, 902 S.W.2d 195 (Tex. App.—Eastland 1995, writ
    denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Moss v. Malone, 880 S.W.2d 45 (Tex. App.—Tyler 1994, writ denied). . . . . 40

Mosser v. Plano Three Venture, 893 S.W.2d 8 (Tex. App.—Dallas 1994, no
   writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950). . . . . . . . 18, 19

N. Alabama Exp., Inc. v. United States, 585 F.2d 783 (5th Cir. 1978). . . . . . . . 42

Navato v. Sletten, 560 F.2d 340 (8th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . 42

New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996). . . . . 17, 41, 50, 53

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988). . . . . . . . . . . . . . . . . . 38, 51



                                                          -xiii-
Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240 (Tex. 1974). . . . . . . . . . . 29

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012). . . . . . . . . . . . . . . . . . . 52

Potvin v. Keller, 313 So.2d 703 (Fla. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Pub. Util. Comm’n of Tex. v. Allcomm Long Distance, Inc., 902 S.W.2d 662
    (Tex. App.—Austin 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rotello v. State, 492 S.W.2d 347 (Tex. Civ. App.—Houston [1st Dist.]
    1973, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Sec. State Bank & Trust v. Bexar Cnty., 397 S.W.3d 715 (Tex. App.—San
     Antonio 2012, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50-52

Sierra Club v. U.S. Nuclear Regulatory Comm’n, 862 F.2d 222 (9th Cir.
     1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Alcoholic Beverage Comm’n v. Sfair, 786 S.W.2d 26 (Tex. App.—San
     Antonio 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Tex. Comm’n on Envtl. Quality v. Exxon Mobil Corp., et al., No. 03-14-
     00667-CV (Tex. App.—Austin 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 27

Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App.—
     Austin 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655 (Tex.
     App.—Austin 1997, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex.-N.M. Power Co. v. Tex. Indus. Energy Consumers, 806 S.W.2d 230
    (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


                                                          -xiv-
TJFA, L.P. v. Tex. Comm’n on Envtl. Quality, 368 S.W.3d 727 (Tex.
    App.—Austin 2012, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . 34, 35

Tramco Enters., Inc. v. Indep. Am. Sav. Ass’n, 739 S.W.2d 944 (Tex.
    App.—Fort Worth 1987, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Valero S. Tex. Processing Co. v. Starr Cnty. Appraisal Dist., 954 S.W.2d
    863 (Tex. App.—San Antonio 1997, pet. denied). . . . . . . . . . . . . . . . . . . 44

Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . 40

Walker v. City of Hutchinson, Kan., 352 U.S. 112 (1956). . . . . . . . . . . . . . . . . . 38

Walter West, P.E. v. Tex. Comm’n on Envtl. Quality, 260 S.W.3d 256 (Tex.
    App.—Austin 2008, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Williams v. Holley, 653 S.W.2d 639 (Tex. App.—Waco 1983, writ ref’d
    n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001). . . 48

Wolff v. McDonnell, 418 U.S. 539 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

                                                    STATUTES

42 U.S.C. § 405(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

42 U.S.C. § 423(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Gov’t Code § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


                                                           -xv-
Tex. Health & Safety Code § 361.188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 27

Tex. Health & Safety Code § 361.276. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. Health & Safety Code § 361.321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Tex. Health & Safety Code § 361.321(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 37

Tex. Health & Safety Code § 361.322(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Tex. Health & Safety Code § 361.322(a), (g)-(h), (i)-(k).. . . . . . . . . . . . . . . . . 28

Tex. Health & Safety Code § 361.343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. Health & Safety Code §§ 361.181-.188.. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Occ. Code § 1101.705(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tex. Occ. Code § 1101.706(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tex. Water Code § 5.351.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                                    RULES

Tex. R. App. P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 39.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xviii-

                              ADMINISTRATIVE MATERIALS

5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 48-10 (1988).. . . . . . 7



                                                      -xvi-
                       STATEMENT OF THE CASE

    Appellee would add the following to Appellant’s statement:

    The trial court order being appealed from is the Order Granting

TCEQ’s Plea to the Jurisdiction as to Baxter’s Motion for Summary

Judgment, CR 1952.




                                     -xvii-
                  STATEMENT ON ORAL ARGUMENT

    Oral argument would not assist in the determination of this appeal.

The dispositive issues have been authoritatively decided and the facts and

legal arguments will be adequately presented in the briefs and the record.

Tex. R. App. P. 39.1.

    If oral argument is granted to Appellant, then Appellee asks to partici-

pate.




                                   -xviii-
                   ISSUES PRESENTED FOR REVIEW

     Issue 1: Under existing precedent, the Order is final, unappealable, and

immune from collateral attack. (Response to Section II of Appellant’s Brief.)

     Issue 2: Baxter received adequate Due Process. (Response to Sections

I.C and I.D of Appellant’s Brief.)

     Issue 3: Even if the Order had been issued in violation of Due Process

it is not void but merely voidable—and it still must be timely appealed for

the courts to have jurisdiction. (Response to both sections of Appellant’s

Brief.)




                                     -xix-
                         STATEMENT OF FACTS

    The trial court granted the Appellee’s Plea to the Jurisdiction and

dismissed the Appellant’s Motion for Summary Judgment based upon

jurisdictional facts, not upon the merits of the case. Appellant offers

statements going to the merits of its defense, but these are not “facts

pertinent to the issues,” within the meaning of Tex. R. App. P. 38.1(g).

    Accordingly, Appellee offers the following Statement of Facts:

    (The Administrative Record for this case is on a 32 GB flash drive that

has previously been provided to this Court in another appeal: Tex. Comm’n

on Envtl. Quality v. Exxon Mobil Corp., et al., No. 03-14-00667-CV (Tex.

App.—Austin, 2015). Pertinent pages from that record are attached to this

brief in the Appendix; they will be cited as AR ___.)

    From 1982 to 2008, Appellee the Texas Commission on Environmental

Quality (“TCEQ”) conducted environmental investigations of a site in

Gregg County, Texas, that came to be known as the Voda Petroleum, Inc.

State Superfund Site (“Site”). These inspections started when the Site was



                                       1
in operation as a waste oil recycling facility, CR 1191-1201, and continued

as Superfund investigations after the Site was abandoned, CR 1201-04,

1215-18. The Appellant, Baxter Oil Service, Ltd. (“Baxter”), was notified of

the proposed listing of the Site on the State Registry of Superfund sites, AR

30601-05; of a public meeting and opportunity to comment on the pro-

posed remedy, AR 17912-18, 17945-54; and of the opportunity to fully fund

or perform the remedial activities and clean up the Site, AR 33053-64.

    The TCEQ issued an administrative order (“Order”) concerning the

Site on February 12, 2010. CR 1596-1675, 1657. The Order named Baxter as

one of the “potentially responsible parties” for the Site. CR 1596-1612, 1598.

The Order found that the Site had to be cleaned up and concluded that the

potentially responsible parties were “responsible parties” under the law.

Order sec. III.A at CR 1616. Following a motion for rehearing, the Order

became final by operation of law on April 8, 2010. AR 10.

    Copies of the Order were sent to the named parties, including Baxter,

by Certified Mail on February 19, 2010. CR 1676-94, 1679. Baxter received



                                      2
the Order on or about February 26, 2010. CR 1695.

    Various parties appealed the Order by filing petitions for judicial

review in the district courts of Travis County. Those cases were consoli-

dated into the present case in the 345th Judicial District. CR 221-35. The

TCEQ filed a counter-petition and third-party petition seeking cost recov-

ery against the parties named in the Order, including Baxter, and other

parties not named in the Order. CR 283-424, 303. Baxter filed an Original

Answer, containing general and verified denials. CR 578-81. However,

Baxter did not request judicial review of the Order. Id. Baxter has never

requested judicial review of the Order.

    Baxter filed a motion for summary judgment seeking to be dismissed

on the grounds that it had not shipped solid waste to the Site and lacked

the requisite intent to dispose, and thus was not liable under the law. CR

1458-1581, 1461. The TCEQ filed a plea to the jurisdiction asserting that the

Order was final and unappealable as to Baxter and was therefore not

subject to collateral attack. CR 1582-1703. Baxter responded that the Order



                                      3
violated Due Process, was void, and could be collaterally attacked. CR

1843-86. The Court granted the TCEQ’s plea and dismissed Baxter’s motion

for summary judgment. CR 1952. Baxter appealed. CR 1953-55.




                                    4
                    SUMMARY OF THE ARGUMENT

    The Order is final and unappealable because Baxter was served with a

copy of the Order but has never filed a petition for review, and the statu-

tory waiver of sovereign immunity for the review has expired. Baxter seeks

to collaterally attack the Order through a motion for summary judgment,

but the District Court lacks jurisdiction to consider that action.

    Baxter asserts that the Order violates the Due Process Clause, and is

void, because it fails to advise parties of the consequences of the Order and

of their right to appeal. However, the Order is detailed and specific, and

TCEQ is not required to provide advice to parties about their right to

appeal. Any Due Process violation related to lack of notice has been cured

because the Order has been served on Baxter several times.

    Even if the Order violated Due Process, it is not void but merely

voidable. It still must be appealed within the statutory deadlines, if the

courts are to have jurisdiction.




                                       5
                                ARGUMENT

                                       I.

     Issue 1: Under existing precedent, the Order is final, unappealable,

and immune from collateral attack. (Response to Section II of Appellant’s

Brief.)

     In this case the Appellant seeks to collaterally attack a final administra-

tive order after the statutory deadline for appealing the order has passed.

This attack is barred by sovereign immunity. The courts lack jurisdiction to

consider such an action except under a specific waiver of sovereign immu-

nity, and that waiver has expired.

     A. The order was final and appealable shortly after it was
        issued.

     The Order became final and appealable when a motion for rehearing

was overruled by operation of law on April 8, 2010. See AR 10. “Adminis-

trative orders are generally final and appealable if ‘they impose an obliga-

tion, deny a right or fix some legal relationship as a consummation of the

administrative process.’” Tex.-N.M. Power Co. v. Tex. Indus. Energy Consum-


                                       6
ers, 806 S.W.2d 230, 232 (Tex. 1991), quoting Sierra Club v. U.S. Nuclear

Regulatory Comm’n, 862 F.2d 222, 224 (9th Cir. 1988). “[C]ourts … should

treat as final a decision ‘which is definitive, promulgated in a formal

manner and one with which the agency expects compliance.’” Tex.-N.M.

Power Co., id., quoting 5 J. Stein, G. Mitchell & B. Mezines, Administrative

Law 48-10 (1988). This Order meets those criteria. It was timely appealed by

many parties in this case, as shown by the papers on file herein, and its

appealability at that time has not been disputed.

    B.   Baxter received actual notice of the Order.

    Baxter received a copy of the Order by certified mail shortly after it

was issued. CR 1695. Thus, Baxter was notified both of the contents of the

Order and the fact that it had been issued. Precedents involving lack of

service, inadequate service, or lack of capacity to be served are irrelevant to

the current case because Baxter had both notice and capacity.

    C. The deadline for appeal has passed and the Order is now
       unappealable.

    The deadline for filing an appeal of a Superfund order issued under


                                       7
Tex. Health & Safety Code § 361.188 is “the 30th day after the date of the

ruling, order, decision, or other act of the governmental entity whose

action is appealed,” id. § 361.321(c). 1 That deadline has long since passed.

Accordingly, the Order is final and unappealable as to Baxter, and all its

findings and conclusions are binding upon Baxter as a matter of law.

     D. The statutory deadline is jurisdictional.

     The courts lack jurisdiction to consider a late-filed petition for judicial

review of an administrative order. Tex. Comm’n on Envtl. Quality v. Kelsoe,

286 S.W.3d 91, 97 (Tex. App.—Austin 2009, pet. denied) (petition for

judicial review filed after statutory deadline “was untimely and did not

invoke the trial court’s jurisdiction over any of [the petitioner’s] com-

plaints.”) (citations omitted). Accord, TJFA, L.P. v. Tex. Comm’n on Envtl.

Quality, 368 S.W.3d 727, 736 (Tex. App.—Austin 2012, pet. denied). See also,

Walter West, P.E. v. Tex. Comm’n on Envtl. Quality, 260 S.W.3d 256, 263 (Tex.


     1
      The correct section of the Health and Safety Code under which this Order should
be appealed is an issue currently under consideration by this Court. See infra notes 2-3
and accompanying text. However, under either possible section, the deadline has
passed.

                                           8
App.—Austin 2008, pet. denied) (petitions for judicial review of TCEQ

decision, not filed within 30-day deadline under Tex. Water Code § 5.351,

were untimely and this failure “deprived the trial court of jurisdiction to

consider appellants’ petitions for judicial review.”) (citations omitted). See

also Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit … are

jurisdictional requirements in all suits against a governmental entity.”).

    E.   The Order is not subject to collateral attack.

    Baxter’s motion for summary judgment constitutes a collateral attack

on the Order. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A

collateral attack is an attempt to avoid the binding force of a judgment in a

proceeding not instituted for the purpose of correcting, modifying, or

vacating the judgment, but in order to obtain some specific relief which the

judgment currently stands as a bar against.”), citing Crawford v. McDonald,

33 S.W. 325, 327 (Tex. 1895) (other citations omitted).

    An administrative order that is regular on its face is not subject to

collateral attack. See Corzelius v. Harrell, 186 S.W.2d 961, 967 (Tex. 1945) and



                                       9
cases cited therein. See also Pub. Util. Comm’n of Tex. v. Allcomm Long

Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.—Austin 1995, writ denied)

(“Generally, an agency’s final order, like the final judgment of a court of

law, is immune from collateral attack.”), citing Alamo Express, Inc. v. Union

City Transfer, 309 S.W.2d 815, 827 (Tex. 1958) (concluding that collateral

attack on Railroad Commission order was impermissible because adminis-

trative statutes provided sole method of attack). See also, Castillo v. State,

No. 03-11-00503-CV, 2012 WL 3793276 at *4 (Tex. App.—Austin Aug. 29,

2012, no pet.) (mem. op.) (“A final order of the [agency] that is valid on its

face is not subject to collateral attack in a subsequent enforcement proceed-

ing.”), quoting Jolly v. State, 856 S.W.2d 859, 861 (Tex. App.—Austin 1993,

writ denied).

    F.   Any exceptions that might allow collateral attack do not
         apply here.

    The exceptions to the no-collateral attack rule are very limited. None

apply here. See Allcomm Long Distance, Inc., 902 S.W.2d at 666 (noting a

well-recognized exception to the no-collateral attack rule when an agency


                                       10
acts beyond the scope of its statutorily conferred powers); Tex. Dep’t of

Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.—

Austin 1997, writ denied) (collateral attack is allowed only when the

judgment was void or involved fundamental error). Absent those excep-

tions, the courts lack jurisdiction to consider a collateral attack on an

administrative order that is final and unappealable as to that party. See City

of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin

2008, no pet.), rev’d on other grounds, Rusk State Hosp. v. Black, 392 S.W.3d 88

(Tex. 2012) (“Although courts generally do not have jurisdiction to con-

sider collateral attacks on state agency decisions, a collateral attack upon

an agency order may be maintained successfully if the order is void.”),

citing Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv.

Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied).




                                       11
                                     II.

    Issue 2: Baxter received adequate Due Process. (Response to Sections

I.C and I.D of Appellant’s Brief.)

    A. The Order is not misleading, provides adequate information
       and is not void.

         1.   The Order provides ample information about the
              Site and the parties involved.

    Baxter suggests that the Order was vague or illogical, but those asser-

tions are not well-founded. For example, Baxter asserts that, “Except for

the fact that Baxter was on the Order’s mailing list, nothing in the TCEQ’s

Order provides any information linking Baxter to the Voda Site.” Appel-

lant’s Br. 22. To the contrary, the Order names Baxter as a “potentially

responsible party,” CR 1598; describes the actions or statuses that led to

that categorization, CR 1612-13; lists and describes the “Chemicals of

Concern” found at the Site, CR 1615, 1668-69; and concludes that the

potentially responsible parties are “responsible parties,” CR 1616. Baxter

already knew, or could readily find out, what materials it had shipped to



                                     12
the Site. See, e.g., CR 1478-1568.

    Baxter also asserts that “without any supporting finding of fact or

analysis, all of the potentially responsible parties are suddenly and auto-

matically transformed into ‘responsible parties’ by Conclusion of Law and

Determination III.A on page 25 of the Order. CR 1757.” Appellant’s Br. 23.

This grossly misstates the contents of the Order, which contains 20 pages of

findings of fact, CR 1596-1616, and twelve conclusions of law, CR 1616-17.

Baxter may disagree with the findings and conclusions, but cannot say that

there are none.

    Finally, Baxter asserts that the Order “did not provide Baxter sufficient

information of a potential deprivation of its property.” Appellant’s Br. 23.

To the contrary, the Order required Baxter and others to reimbuse the

TCEQ’s costs, CR 1621, perform remedial work, CR 1622, and carry out

other specific and detailed activities, CR 1622-48. The Order certainly

provided notice that the named parties were being asked to pay money

and perform work.



                                     13
        2.   The TCEQ is not required to include appellate
             advice in its orders.

    Baxter asserts that the Order “did not provide Baxter with notice of the

right to appeal the Order and in fact was misleading on this point ... [and]

did not provide Baxter with any information about the extent of the prop-

erty deprivation.” Appellant’s Br. 15. To the contrary, the Order was not

misleading about Baxter’s right to appeal. Baxter admits: “nothing in the

62–page Order itself even hints that a PRP has any right to be heard in a

challenge to the Order.” Appellant’s Br. 16, citing CR 1733-94. In other

words, the Order was not misleading because the TCEQ provided no

information at all about administrative appeals—nor was it required to.

    The Order is a final decision of the TCEQ. It represents the culmination

of a lengthy and complicated investigation and remedy selection process.

The TCEQ is required to embody within the document only what it has

determined and decided.

    Baxter’s argument is that the agency should have given information

about whether and how to appeal, and its failure to do so was misleading.


                                     14
Appellant’s Br. 16 (“[T]he Order is misleading in that it creates the impres-

sion that no right to appeal exists.”). Baxter points to language in Sec.

XXXII of the Order, CR 1792, saying “this would have been one logical

place to provide some notice to PRPs of the right to challenge the Order.”

Appellant’s Br. 16-17. However, that argument assumes that the TCEQ had

an obligation to provide advice concerning a party’s right to appeal in the

Order. This argument must fail because the agency has no such obligation.

         3.   The Order did not mislead expressly or by implica-
              tion.

    Baxter refers to the language of Sec. XXXII as being an “express denial

of any ‘right to seek review’ of the Order.” Appellant’s Br. 17, quoting sec.

XXXII of the Order. However, that section merely says, “The conference

… does not give Agreeing Respondents or … Performing Parties the right

to seek review of this AO.” CR 1792. A fair reading of this section is that

the conference itself does not provide a right of appeal—not that the right

to appeal is nonexistent. In any case, the record does not reflect that Baxter

was misled into requesting a conference, and Baxter does not claim that it


                                      15
was, so the issue is moot.

    Similarly, Baxter asserts that Section XXXV misleads by saying,

“nothing in this AO waives the State of Texas’ sovereign immunity relating

to suit, liability, and the payment of damages.” Appellant’s Br. 17, quoting

sec. XXXV, CR 1793. This would not be misleading to a lay person, because

a lay person would not understand that the statutory right to appeal such

administrative order actually constitutes a waiver of the State’s sovereign

immunity. Likewise, this language would not be misleading to an attorney,

because the attorney would know (perhaps after some research) that the

statute contains a specific section providing for appeal of the Order. Tex.

Health & Safety Code § 361.321. This argument by Baxter must fail.

    There is no “express denial” of a right to appeal in this Order. Baxter’s

argument that the Order is “affirmatively misleading” about the right to

appeal is spurious.

    B.   Baxter seeks to expand its rights under the Due Process
         Clause.

    Baxter does not dispute that it was notified of the progress of the


                                     16
Superfund investigation, or that it was served with a copy of the Order

when issued, or that the deadline for appeal has passed. Baxter does not

dispute that, under existing precedents, the Order is final, unappealable

and immune from collateral attack. Instead, Baxter asserts that the Order

was void because it did not contain adequate notice. In making this argu-

ment, Baxter seeks to expand the scope of protection offered by the Due

Process Clause. The crux of that argument is contained in a footnote to

Appellant’s Brief:

    Baxter recognizes that some cases have described only two cir-
    cumstances under which administrative orders are void in a
    manner that subjects them to collateral attack – when an agency
    exceeds its authority or when an order is procured by extrinsic
    fraud. See Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural
    Res. Conserv. Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin
    2003, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 613 (Tex.
    App.—Texarkana 2000, no pet.). Those cases did not involve
    orders entered without adequate notice and thus the courts had
    no opportunity to consider the implications of an order entered in
    violation of due process. Orders that fail to comply with due
    process are void. See Security State Bank & Trust, 397 S.W.3d at 723;
    see also N.Y. Life Ins. Co., 84 F.3d at 143; In re Guardianship of B.A.G.,
    794 S.W.2d at 513. The types of void orders subject to collateral
    attack should thus include constitutionally infirm orders.



                                       17
Appellant’s Br. 28 n.5. In other words, Baxter cites no authority for the

proposition that this Order, or any order issued and served such as this, is

void for violating Due Process. Instead, Baxter is asking for an expansion

of its Due Process rights to provide special relief in this case.

    Baxter describes this new constitutional right as the right to be notified

that an administrative order “could be appealed or the consequences of not

appealing,” Appellant’s Br. 15; or the right to receive “adequate notice of

the right to be heard,” or “adequate notice of the issues or consequences,”

id. at 22, concerning such orders. However, the constitutional precedents

are decidedly against this proposition.

         1.   The personal service requirement has been met.

    In discussing the adequacy of notice, Baxter relies upon Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 318 (1950) (service by publica-

tion regarding settlement of trust funds, held inadequate to give notice to

“known present beneficiaries of known place of residence”). Notice by

publication may be inadequate, and thus violate Due Process, if personal



                                       18
service is readily available. Id. at 318-19.

    As noted above, Baxter received personal service. CR 1676-95. While

Mullane speaks generally to the importance of notice and opportunity to be

heard, and may not be strictly applicable here, in any case its requirement

of personal service has been met.

         2.   The Order meets the three-part balancing test of
              Mathews v. Eldridge

    Baxter’s principal argument is that these rights exist, or should exist,

under the precedent established by Mathews v. Eldridge, 424 U.S. 319 (1976).

See Appellant’s Br. sec. I.D at 24-27. Baxter cites Mathews both for general

principles of Due Process and specifically for the Supreme Court’s balanc-

ing test regarding notice and opportunity to be heard. Appellant’s Br. 14,

24, passim. However, applying the Mathews test to the facts of this case

reveals that Baxter’s Due Process rights were not violated.

    Mathews concerned a recipient of Social Security disability benefits

(Eldridge), whose benefits were terminated when the agency determined

that he was no longer disabled. Mathews, 424 U.S. at 324. The Supreme


                                        19
Court characterized the issue as follows: “whether the Due Process Clause

of the Fifth Amendment requires that prior to the termination of Social

Security disability benefit payments the recipient be afforded an opportu-

nity for an evidentiary hearing.” Id. at 323.

    The agency’s procedures included the gathering of medical informa-

tion, communication with the disabled worker in writing and orally, and

examination by an independent consulting physician. Id. at 337. The

worker was entitled to respond with additional evidence, id. at 338; to

request reconsideration; and to have a non-adversarial hearing, with

counsel, before an administrative law judge. Id. at 339.

    The Court found that, even though the agency’s procedures did not

include the right to an evidentiary hearing prior to termination, they

nevertheless met the requirements of Due Process. Id. at 339-40.

    In Mathews the Supreme Court said, “[p]rocedural due process im-

poses constraints on governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests within the meaning of the Due Process



                                      20
Clause of the Fifth or Fourteenth Amendment.” Id. at 332. “[S]ome form of

hearing is required before an individual is finally deprived of a property

interest.” Id. at 333. However, the actual form of hearing varies from

informal administrative procedures to “a hearing closely approximating a

judicial trial,” id., citing Goldberg v. Kelly, 397 U.S. 254, 266-71 (1970).

Noting that the requirements of Due Process are not fixed, the Court

enunciated a balancing test involving three factors:

    [I]dentification of the specific dictates of due process generally
    requires consideration of three distinct factors: First, the private
    interest that will be affected by the official action; second, the risk
    of an erroneous deprivation of such interest through the proce-
    dures used, and the probable value, if any, of additional or substi-
    tute procedural safeguards; and finally, the Government’s interest,
    including the function involved and the fiscal and administrative
    burdens that the additional or substitute procedural requirement
    would entail.

Id. at 335. The Court used this balancing test to distinguish Mathews from

Goldberg v. Kelly, which had previously held that a person’s welfare bene-

fits could not be terminated without an evidentiary hearing prior to

termination. See Goldberg, 397 U.S. at 266-71. Baxter asserts that this balanc-



                                        21
ing test, applied to the present case, shows that Baxter’s Due Process rights

were violated. However, an application of that test to the facts of this case

shows the opposite.

              a.   The first factor—the private interest that will be affected by the
                   official action—weighs heavily against Baxter

    The Supreme Court looked, in the two cases, at the deprivation that

could affect individuals if benefits were denied. The Mathews termination

differed from Goldberg v. Kelly in that “[e]ligibility for disability benefits, in

contrast [to welfare benefits], is not based upon financial need.” Mathews,

424 U.S. at 340. Thus, “[t]he potential deprivation here is generally likely to

be less than in Goldberg.” Id. at 341. Although the disabled worker could

suffer an interim loss awaiting a final decision, the worker might have

other sources of income. Id. at 342-43.

    In the present case, Baxter will suffer no comparable deprivation from

its failure to timely appeal the Order—indeed, Baxter has not yet suffered

any loss of liberty or property at all. What Baxter has lost is a legal posi-

tion. Essentially, Baxter is now a co-defendant, along with other companies


                                        22
like Shell and Exxon Mobil, in a Superfund cost recovery action. See CR

1924-34. The other companies timely appealed; Baxter did not. The findings

and conclusions in the Order are established as a matter of law as to Baxter,

but not as to the other defendants. Baxter is currently at a disadvantage in

trial preparation or settlement negotiations, but the case is not over. The

finder of fact must still allocate costs among the remaining parties. See Tex.

Health & Safety Code §§ 361.343, .276. Only then can a final money judg-

ment be assessed.

    Even if the other parties managed to escape liability altogether, and

Baxter were the “last man standing,” Baxter’s deprivation could not

compare to the loss of welfare benefits in Goldberg, which might have

resulted in actual physical hardship, or in Mathews to the loss of Social

Security benefits to a disabled worker who might (or might not) have other

sources of income.

    Baxter has lost a legal position in an ongoing lawsuit, but has not lost a

liberty or property interest. As to the first factor, the Mathews balancing test



                                      23
weighs heavily against Baxter.

             b.   The second factor—the risk of erroneous deprivation and prob-
                  able value, if any, of additional or substitute safeguards–weighs
                  against Baxter

    Secondly, the Supreme Court examined the nature of the inquiry and

the information required in each case. In Mathews, the relevant inquiry

depended on “medically acceptable clinical and laboratory diagnostic

techniques,” Mathews, 424 U.S. at 343, citing 42 U.S.C. § 423(d)(3), whereas

in Goldberg, “written submissions are a wholly unsatisfactory basis for

decision.” Mathews, 424 U.S. at 344, citing Goldberg, 397 U.S. at 269. The

Court concluded that in Mathews, “[t]he potential value of an evidentiary

hearing, or even oral presentation to the decisionmaker, is substantially

less in this context than in Goldberg.” Mathews, 424 U.S. at 344-45.

    The current case is much closer to Mathews than to Goldberg. The TCEQ

is required to go through exhaustive procedures to establish the facts in

support of a Superfund order. See Tex. Health & Safety Code §§ 361.181-

.188. (For a description of what the TCEQ actually did to investigate the



                                       24
Site, identify potentially responsible parties, select the remedy and prepare

the Order, see TCEQ’s Motion for Partial Summ. J., sec. III.C at CR 1190-

1233.) These procedures are designed to ensure that persons responsible

for solid waste or hazardous substances at a Superfund site are properly

identified, that they are aware of the procedure and have an opportunity to

be heard, and that they have a right to petition the courts for judicial

review when the order is issued. Nothing about this Order indicates that

the TCEQ failed to follow the proper statutory procedures, or otherwise

deprived anyone of their Due Process rights.

    There would be little value, if any, in “additional or substitute proce-

dural safeguards.” Most of the viable parties named in the Order filed

timely appeals. CR 221-35. What Baxter wants is to make the Order once

again appealable so it can argue the merits. The only additional “safe-

guard” at this point would be to re-open the District Court’s jurisdiction

after the statute has extinguished it. While such an action would benefit

Baxter in this one case, it would create uncertainty as to the finality of



                                      25
judgments and be destructive of judicial procedure overall.

    Thus, as to the second factor, this case is closer to Mathews than to

Goldberg because it depends on documentary and scientific evidence, and

the procedures allow for input by the parties and the correction of errors.

There would be little value in additional or substitute safeguards, and

positive harm to the judicial process if Baxter were allowed to appeal at

this late date. The second factor weighs against Baxter.

             c.   The third factor—the public interest—weighs decisively
                  against Baxter

    The Supreme Court then said, “In striking the appropriate due process

balance the final factor to be assessed is the public interest.” Mathews, 424

U.S. at 347. “[T]he Government’s interest, and hence that of the public, in

conserving scarce fiscal and administrative resources is a factor that must

be weighed.” Id. at 348. “The essence of due process is the requirement that

‘a person in jeopardy of serious loss (be given) notice of the case against

him and opportunity to meet it.’” Id. at 348-49, quoting Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951). In the circumstances


                                      26
of Mathews, however, the Court said, “[w]e conclude that an evidentiary

hearing is not required prior to the termination of disability benefits and

that the present administrative procedures fully comport with due pro-

cess.” Mathews, 424 U.S. at 349.

    Baxter suggests that the TCEQ’s burden of providing additional notice

would be “minuscule.” Appellant’s Br. 26. However, that notice would

actually be a form of legal advice, and it would not be simple in cases such

as this. Ironically, Baxter’s proposed notice (Appellant’s Br. 26) contains a

series of problematic statements and outright errors, as follows:

    !    “Those costs could exceed $_____”— Problematic, since TCEQ
         cannot know the final costs at the time of such a Superfund order
         (when the remedial action has not started), and even a carefully-
         selected remedial action plan (see, e.g., CR 1659-67) cannot ensure
         against unexpected contingencies.

    !    “Pursuant to section 361.321 and/or 361.322 of the Texas Health
         and Safety Code, you have the right to appeal this Order”— Not
         sound advice, since the proper section is currently an issue on
         appeal in this court. See Tex. Comm’n on Envtl. Quality v. Exxon
         Mobil Corp., No. 03-14-00667-CV (Tex. App.—Austin). (The
         TCEQ’s position is that this Order was issued under Tex. Health &
         Safety Code § 361.188 and the appeal can be taken only under id.
         § 361.321.)


                                      27
     !    “Your appeal must be filed with the TCEQ”— Wrong; the petition
          for review must be filed in the district court of Travis County. Tex.
          Health & Safety Code § 361.321(a). 2

     !    “… within 30 days of the date of this Order”— Correct, assuming
          that the appeal is brought under Section 361.321. 3

     !    “Failure to file an appeal will adversely affect your right to chal-
          lenge this Order”— Understated, since the order would actually
          become final and unappealable.

Thus, the legal advice that Baxter would have the TCEQ give would not be

simple or easy; it would be burdensome to the agency and problematic to

those receiving it, and might create Due Process problems in itself. The

same could be true of practically any legal advice an agency might offer to

a person named in an administrative order.

     Finally, it must be noted that a right to be advised of the appealability

of final administrative orders, if it existed at a constitutional level, would

also necessarily apply to court orders and judgments. This would greatly


     2
        Even if the petition for review is filed pursuant to Section 361.322, it still must be
filed in the district court. Tex. Health & Safety Code § 361.322(a), (g)-(h), (i)-(k).
     3
       However, if the appeal is under Section 361.322, then the petition can be filed
“before the 46th day after the date of receipt, hand delivery, or publication service of the
order.” Tex. Health & Safety Code § 361.322(a).

                                              28
disturb the public interest in the finality of judgments. See Petro-Chem.

Transp., Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex. 1974) (“[F]inal judgments

should not be disturbed unless there is good reason for doing so.”)

    The third factor weighs decisively against Baxter.

         3.   The Mathews test has not been universally applied

    The Mathews test has not been universally applied to all Due Process

challenges. The Supreme Court has abrogated its holding with respect to

state rules of criminal procedure. See Medina v. California, 505 U.S. 437, 443

(1992) (“In our view, the Mathews balancing test does not provide the

appropriate framework for assessing the validity of state procedural rules

which, like the one at bar, are part of the criminal process.”). Courts have

applied other factors concerning right to counsel in parent-child relation-

ship cases. See, e.g., M.E.K. v. R.L.K., 921 So.2d 787, 791 (Fla. Dist. Ct. App.

2006) (“[I]in the context of determining whether a right to appointed

counsel exists in a case involving the parent-child relationship, Florida

courts must weigh the factors enunciated in [Potvin v. Keller], not



                                       29
Mathews.”), citing Potvin v. Keller, 313 So.2d 703 (Fla. 1975).

         4.   The Gonzalez line of cases is distinguishable.

              a.   Gonzalez involved incorrect notice rather than a lack of notice.

    None of Baxter’s cited cases supports the proposition that Due Process

requires an agency to advise a party that a final administrative order may

be appealed. The case that comes closest to being on point, but is distin-

guishable, is Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). Gonzalez

filed for Social Security disability benefits. Id. at 1200. The Secretary of the

Department of Health and Human Services denied the application, and

Gonzalez reapplied. Id. An administrative law judge conducted a hearing

and denied the application. Id. Gonzalez appealed to the district court and

then to the U.S. Court of Appeals for the Ninth Circuit. Id. As part of the

appeal, the Court examined whether the notice of adverse decision met the

requirements of Due Process.

    The notice contained the following language: “If you do not request

reconsideration of your case within the prescribed time period, you still



                                        30
have the right to file another application at any time.” Id. at 1203. The

Court concluded that, “The notice given in this case does not clearly

indicate that if no request for reconsideration is made, the determination is

final. We conclude that the notice violates appellant’s fifth amendment

right to due process.” Id.

     In Gonzalez, the agency was required by statute to give notice concern-

ing the right to reapply or appeal. The Social Security Act says:

     In any notice of an adverse determination with respect to which a
     review may be requested … , the Commissioner of Social Security
     shall describe in clear and specific language the effect on possible
     entitlement to benefits under this subchapter of choosing to reap-
     ply in lieu of requesting review of the determination.

42 U.S.C. § 405(b)(3)(B) (citation omitted). 4

     The federal circuit courts are unanimous in finding that this notice in

the Social Security form letter is defective and gives rise to Due Process

issues. Most circuits, however, find that there is a second part to the


     4
       Some Texas statutes also require notice of the right to appeal specific administra-
tive orders. For example, notice of certain orders of the Texas Real Estate Commission
must include notice of “the person’s right to judicial review of the order.” Tex. Occ.
Code §§ 1101.705(e), 1101.706(3). There is no such requirement in the present case.

                                           31
analysis: “whether the defective notice violates the claimant’s procedural

due process rights.” Loudermilk v. Barnhart, 290 F.3d 1265, 1269 (11th Cir.

2002). That issue involves the question of detrimental reliance. In review-

ing Gonzalez, the Loudermilk court explained:

    In Lujan v. Defenders of Wildlife, the Supreme Court held there must
    be a causal connection between the injury and the complained of
    conduct.… All the circuit courts considering the Social Security
    determination notice issue, with the exception of the Ninth Cir-
    cuit, require a causal connection, following the Supreme Court’s
    dictate in Lujan. In implementing this requirement, the courts hold
    the claimant must have detrimentally relied upon the notice.… We
    find the reasoning and, therefore, the test employed by the major-
    ity of the circuits more persuasive in light of the teachings of
    Lujan.

Loudermilk, 290 F.3d at 1269, citing Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992) (other citations omitted). Thus, the federal circuit courts all agree

that the notice was defective; the Ninth Circuit is in the minority in not

requiring detrimental reliance.

    A claimant may negate detrimental reliance by abandoning the claim.

See, e.g., Brooks v. Apfel, 71 F. Supp. 2d 858, 862 (N.D. Ill. 1999), citing

Gonzalez, 914 F.2d at 1203 (holding that a similar applicant had abandoned


                                        32
his claim after five years). “It is reasonable to conclude that such a gap

between filings suggests abandonment, not confusion.” Brooks, 71 F. Supp.

2d at 863.

             b.   The Gonzalez precedents are not binding but are “congruent”
                  with Texas law.

    The specific rulings of the federal courts in the Gonzalez/Loudermilk line

of cases, analyzing the specific language of a Social Security form letter, are

not binding on Texas courts. “Decisions of the federal courts of appeals, of

course, do not bind Texas courts although they are received with respectful

consideration.” Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668, 672 n.5

(Tex. App.—Austin 1990, writ denied) (per curiam) (citations omitted).

However, the Texas Supreme Court has referred to federal and state

constitutional provisions as “congruent.” City of Dallas v. VSC, LLC, 347

S.W.3d 231, 234 n.3 (Tex. 2011) (citation omitted) (“Where the parties have

not argued that there are any material differences between the state and

federal versions of a constitutional provision, we typically treat the two

clauses as congruent.”)


                                      33
              c.   In any event, the present case does not fall under the Gonza-
                   lez/Loudermilk precedent.

    The Gonzalez/Loudermilk line of cases are tangential to the present case:

they hold that, if an agency gives advice concerning the right to appeal an

administrative decision, that advice must be correct. If an affected party

relies upon that advice to the party’s detriment, and a significant property

right is affected, procedural Due Process may have been denied. However,

while Gonzalez and Loudermilk are tangentially relevant, the present case

does not actually meet either prong of their Due Process analysis—neither

incorrect advice nor detrimental reliance. The TCEQ did not offer any

advice concerning a party’s right to appeal the Order, so Baxter could not

have relied upon such advice.

    C. Any Due Process notice violation has been cured by subse-
       quent correct notices.

    An agency may correct an incorrect notice and avoid a potential Due

Process issue. See, e.g., Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995) (appli-

cant received the same incorrect notice twice, but then continued reapply-



                                        34
ing and subsequently received a correct notice). In Torres, the Fifth Circuit

said, “Appellant has not shown any causal connection between the alleg-

edly misleading language in the first two notices and his subsequent

failure to seek judicial review. Appellant continued to appeal his denial of

benefits, and did not stop until he reached the end of the administrative

process.” Id. at 893.

    A party who was unaware of an administrative proceeding may still

face a deadline for timely judicial review when later notified of the admin-

istrative order. See, e.g., Bedell v. State, No. 03-11-00502-CV, 2013 WL

2631738 (Tex. App.—Austin, June 5, 2013), review denied (Sept. 27, 2013)

(mem. op.). The Texas Railroad Commission issued an order requiring

Bedell to plug certain oil and gas wells and pay a penalty. Id. at *1. Bedell

failed to comply; the agency brought suit in district court. Id. Bedell filed

defensive pleadings and a counterclaim; the state filed a motion for sum-

mary judgment and a plea to the jurisdiction “urging that the trial court

lacked jurisdiction over the counterclaim because Bedell had not demon-



                                      35
strated that the State had waived sovereign immunity … .” Id. On appeal,

the state contended that, even if Bedell had no contemporaneous notice of

the administrative proceeding and order, “he failed to avail himself of the

judicial review process once he learned of the order [during the lawsuit] in

2011.” Id. at *3. The Court of Appeals noted that: “A notice problem only

creates a different starting date for the time to seek judicial review; it does

not eliminate the requirement.” Id. at *4 (citations omitted). The Bedell

situation was remarkably similar to the present case:

    [A]ny notice problem here was resolved arguably no later than
    when Bedell learned of the existence of the administrative order
    by receiving service of the petition [in 2010], and certainly no later
    than when he received a copy of the administrative order as an
    exhibit in the appendix of the State’s Motion for Partial Summary
    Judgment [in 2011]. … The undisputed record shows that Bedell
    did not file the counterclaim or any petition for judicial review
    within the thirty days of receiving a copy of the administrative
    order. Bedell has not shown sufficient good cause for failing to
    exhaust his judicial-review remedy after receiving notice of the
    order.

Id. at *4 (footnotes and citations omitted). Accordingly, the state’s plea to

the jurisdiction was affirmed. Id. at *5.



                                       36
    In the present case, the TCEQ has actually given Baxter notice of the

Order three times: first, when the Order was initially issued, CR 1676-94,

1679, 1695; second, when the TCEQ filed its counterclaim and third-party

petition, CR 283-424; and third, when the TCEQ filed its Plea to the Juris-

diction, CR 1582-1703. Even if the first and second notices were defective,

the TCEQ’s Plea to the Jurisdiction, with the Order attached, gave Baxter

complete notice regarding how to appeal, including the applicable section

of the statute. See CR 1587, citing Tex. Health & Safety Code § 361.321(c).

Any Due Process violation has been cured.

    D. The cases that Baxter cites are inapposite.

    Baxter cites various cases concerning the importance of notice to Due

Process. However, as Baxter readily admits, the “notice required will vary

with circumstances and conditions.” Appellant’s Br. 22, quoting City of

Dallas v. VSC, LLC, 347 S.W.3d at 238 (other citations omitted). Notice is

required at several steps in an administrative or legal process. Due Process

does not require an administrative agency to advise a party concerning its



                                     37
right to appeal a final administrative order.

         1.   Cases involving the absence of notice, rather than
              the adequacy of notice, are inapposite.

    Some of Baxter’s cited cases involve the absence of notice, not the

adequacy of notice. See, e.g., Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 86

(1988) (no proper service of process); Barrera-Montenegro v. United States, 74

F.3d 657, 660 (5th Cir. 1996) (notice of forfeiture procedure and seizure sent

to wrong address). These cases are not precedential here because in the

present case the notice was sent and received at the correct address.

         2.   Cases involving service at the commencement of an
              action are inapposite.

    Due Process requires that a person be notified of the commencement

of a legal or administrative proceeding that might affect the person’s

substantive property rights. Baxter cites several such cases: see, e.g., Walker

v. City of Hutchinson, Kan., 352 U.S. 112 (1956) (notice of condemnation

proceedings against property, where landowner’s name was known and

was on official records); Houston v. Fore, 412 S.W.2d 35, 39 (Tex. 1967)



                                        38
(constructive notice of administrative hearing on street paving improve-

ments); Boddie v. Connecticut, 401 U.S. 371, 378 (1971) (denial of indigent’s

access to courts due to inability to pay); In re Ruffalo, 390 U.S. 544, 550

(1968) (notice of charge in attorney disbarment proceedings).

    None of these cases provides a precedent for the present case, since

this case involves a final order, not the commencement of proceedings, and

Baxter received actual and legal notice of the Order when it was issued. In

addition, Baxter had had notice at several stages of the administrative

Superfund proceeding. AR 30601-05, 17912-18, 17945-54, 33053-64.

         3.   Cases involving significant events during a pro-
              ceeding are inapposite.

    Due Process requires notice of certain significant events during the

pendency of an action. Baxter cites many cases: see, e.g., Mosser v. Plano

Three Venture, 893 S.W.2d 8, 12–13 (Tex. App.—Dallas 1994, no writ)

(“notice” of summary judgment hearing that did not include date and time

of hearing); Fuentes v. Shevin, 407 U.S. 67 (1972) (prejudgment replevin

action taking chattels without opportunity to be heard); Williams v. Holley,


                                       39
653 S.W.2d 639, 640 (Tex. App.—Waco 1983, writ ref’d n.r.e.) (inadequate

notice of pleadings and trial setting); Langdale v. Villamil, 813 S.W.2d 187

(Tex. App.—Houston [14th Dist.] 1991, no writ) (notice to attorney after

termination of attorney-client relationship, not imputed to former client);

L.B.L. Oil Co. v. Int’l Powers Servs., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (per

curiam) (failure to give notice of hearing on motion for default judgment);

Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) (lack of notice

of trial setting); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (lack of

notice to client where attorney withdrew two days before trial and did not

turn over file to substituted attorney); Misium v. Misium, 902 S.W.2d 195

(Tex. App.—Eastland 1995, writ denied) (failure of counsel to inform client

of upcoming trial during counsel’s motion to withdraw); Moss v. Malone,

880 S.W.2d 45, 51 (Tex. App.—Tyler 1994, writ denied) (lawyer’s with-

drawal without taking steps to protect party’s rights); Tramco Enters., Inc. v.

Indep. Am. Sav. Ass’n, 739 S.W.2d 944, 948 (Tex. App.—Fort Worth 1987, no

writ) (inadequate notice of trial setting); Chow v. Dole, 677 S.W.2d 220 (Tex.



                                        40
App.—Houston [1st Dist.] 1984, no writ) (notice of trial setting); Rotello v.

State, 492 S.W.2d 347, 349 (Tex. Civ. App.—Houston [1st Dist.] 1973, writ

ref’d n.r.e.) (no proper notice and hearing prior to dismissal); N.Y. Life Ins.

Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996) (inadequate service of sum-

mary judgment motion).

    None of these cases holds that advice concerning a right to appeal

must be given as part of notice of a final administrative or legal order. They

are not precedential as regards the present case.

         4.   Cases involving administrative decisions without
              an appealable final order are irrelevant.

    Notice of certain administrative actions must be given in time for

affected parties to protest or respond. Baxter produces a plethora of prece-

dents: see, e.g., City of Waco v. Roddey, 613 S.W.2d 360, 365 (Tex. App.—

Waco 1981, no writ) (notice before a city orders demolition of buildings);

Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 45 (1978) (notice in

municipal utility bills that payment was overdue and service would be

discontinued); Bradford v. Edelstein, 467 F. Supp. 1361, 1373 (S.D. Tex. 1979)


                                       41
(notice and opportunity to be heard before termination of public utilities);

Hess & Clark, Div. of Rhodia, Inc. v. Food & Drug Admin., 495 F.2d 975, 983

(D.C. Cir. 1974) (notice before agency withdraws approval of drug applica-

tions and related regulations); Wolff v. McDonnell, 418 U.S. 539, 564 (1974)

(written notice to prisoners and opportunity to be heard before loss of

good-time or imposition of solitary confinement); Navato v. Sletten, 560 F.2d

340 (8th Cir. 1977) (notice and opportunity to respond to allegations before

a medical residency training committee); N. Alabama Exp., Inc. v. United

States, 585 F.2d 783 (5th Cir. 1978) (notice in Federal Register of the true

nature of a common carrier application); Fed. Commc’ns Comm’n v. Pottsville

Broad. Co., 309 U.S. 134, 143 (1940) (denial of application for a radio station:

“To be sure, the laws under which these agencies operate prescribe the

fundamentals of fair play.”); City of W. Covina v. Perkins, 525 U.S. 234 (1999)

(notice of state law remedies when police seize property for a criminal

investigation); Dusenbery v. United States, 534 U.S. 161 (2002) (notice of

forfeiture by FBI, including notice by certified mail to federal prison where



                                       42
claimant was incarcerated, satisfied due process); Jones v. Flowers, 547 U.S.

220 (2006) (notice and opportunity for hearing, as appropriate, before

taking of property for unpaid taxes); City of Dallas, 347 S.W.3d at 231 (in a

property seizure from a storage facility, actual notice was sufficient to

impose on facility operator the duty to pursue statutory remedy.)

    Such cases speak to Due Process generally, but do not address the

notice that must be given in a final order. More importantly, none say that

an agency must give advice concerning a party’s right to appeal a final

order.

         5.   Due Process may enhance statutory notice require-
              ments, but the cited cases are inapposite.

    In cases where a statute or regulation specifies an administrative

process, Due Process may guarantee additional protection. Baxter cites

many cases: see, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)

(right to have adjudication of the merits of unlawful termination, as

provided under the Illinois Fair Employment Practices Act); Cleveland Bd. of

Educ. v. Donnelly, 470 U.S. 532, 542 (1985) (terminated employees entitled to


                                      43
post-termination administrative procedures, as provided by Ohio statute);

Valero S. Tex. Processing Co. v. Starr Cnty. Appraisal Dist., 954 S.W.2d 863,

865 (Tex. App.—San Antonio 1997, pet. denied) (notice required under

article 41.47(d) of the Texas Tax Code: “The orders did not reference the

property in question by legal description or a taxpayer account number but

by docket number which was evidently assigned by the appraisal district

for internal administrative purposes.”).

    These cases are not precedential because Baxter received the notice

prescribed under Texas law, and the law requires no other notice or advice

concerning this appeal.




                                       44
                                       III.

     Issue 3: Even if the Order had been issued in violation of Due Process

it is not void but merely voidable—and it still must be timely appealed for

the courts to have jurisdiction. (Response to both sections of Appellant’s

Brief.)

     A. Even if the Order was misleading and had been issued in
        violation of Due Process, it was not void; it still had to be
        timely appealed.

     A flawed administrative order, which may be reversible on appeal,

nevertheless must be timely appealed. The courts lack jurisdiction other-

wise. It follows that administrative orders issued in violation of Due

Process still must be timely appealed. Such orders are not void, but merely

voidable on appeal.

          1.   The courts cannot acquire jurisdiction by mistake
               or accident.

     A failure to timely appeal an administrative order can be fatal to the

appeal, even if the failure is an excusable mistake. See, e.g., Tex. Alcoholic

Beverage Comm’n v. Sfair, 786 S.W.2d 26, 27 (Tex. App.—San Antonio 1990,


                                       45
writ denied) (untimely appeal of decision of Texas Alcoholic Beverage

Commission after overruling of motion for rehearing). The Court of

Appeals noted: “The Sfairs’ tardiness was undoubtedly brought on by the

actions taken by the Commission in sua sponte granting the rehearing and

setting a new hearing date.” Id. Nevertheless, despite this justifiable

excuse, the appeal was dismissed. Id. at 28. The court explained:

    An appeal from an administrative agency is not a matter of right,
    it is set out by statute and must be strictly complied with in order
    to vest the district court with jurisdiction. … The procedure to be
    followed is mandatory and jurisdictional. … The fact that the
    agency may have erred in sua sponte granting the motion for
    rehearing and engaging in subsequent proceedings does not
    excuse the Sfairs’ late filing of their petition in the district court.

Id. at 27-28 (citations omitted). Thus, even if the agency may have confused

the situation by its procedures, the courts still lack jurisdiction to review an

administrative order except within the statutory waiver of sovereign

immunity.




                                       46
         2.   The courts cannot acquire jurisdiction because a
              party did not understand the law.

    In the absence of a specific statutory requirement, an agency is not

required to advise applicants when a motion for rehearing is overruled by

operation of law. See Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192 (Tex.

App.—Austin 1996, no writ) (hearing on insurance agent’s license: “From

the plain language of [the Administrative Procedure Act] Hernandez knew

or was charged with knowledge that if the agency did not act on her motion by

January 16, 1995, forty-five days after the notice of November 30, it would

be overruled by operation of law.”). Id. at 195 (emphasis added, footnote

omitted). Hernandez failed to file a timely appeal after her motion for

rehearing was overruled by operation of law, and her appeal was dis-

missed. Id. at 196.

         3.   The courts cannot gain jurisdiction by consent or
              through estoppel.

    Even in cases where an agency may have mislead a party concerning

the right to appeal, the courts do not acquire jurisdiction unless the party



                                      47
has exhausted administrative remedies. See, e.g., Daniel v. Dallas Indep. Sch.

Dist., 351 S.W.2d 356 (Tex. Civ. App.—El Paso 1961, writ ref’d n.r.e.)

(alleged wrongful termination of school custodian). The appellant custo-

dian asserted that the superintendent and the school board had told him

there was “nothing more for him to do, and that as far as they were con-

cerned the matter was concluded.” Id. at 358. The appellant failed to file a

timely petition for review, and the courts had no jurisdiction. Id. The court

of appeals said:

    [W]e must say that jurisdiction of a court is so important and
    essential that it has long been held that it cannot be conferred by
    estoppel. It is a statutory creation or enactment, and cannot be
    waived or conferred by consent or estoppel, and a court without
    jurisdiction cannot render a valid judgment.

Id. at 359. See also, Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d

293 (Tex. 2001) (wrongful termination case in which employee claims that

school district’s attorney misled her). The court said, “Even if the District

misled Sullivan as she claims, her failure to exhaust her administrative

remedies is fatal to her action.” Id. at 295.



                                        48
            4.   The Texas rule concerning misleading notice is not
                 universally followed.

    Some jurisdictions hold that notice and advice concerning the right to

appeal, if any is given, must be correct. See, e.g., Baxter v. Colvin, 14-CV-

01306-WHO, 2014 WL 6985149, at *4 (N.D. Cal. Dec. 10, 2014) (notice of

decision that was “inherently ambiguous” because it “did not clearly

inform plaintiff how and whether she could pursue her right to an oral

hearing … while also objecting to [the] decision on its merits”).

    The federal courts have found Due Process violations where there has

been misleading notice and detrimental reliance. See the Gonzalez line of

cases, supra sec. II.B.4, et seq. See also, Butland v. Bowen, 673 F. Supp. 638, 640

(D. Mass. 1987) (notice of denial of Social Security benefits was misleading

and violated Due Process: “Although the notice assured plaintiff that she

had ‘the right to file another application at any time,’ further applications

for disability benefits were in fact barred, unbeknownst to her, after four

years.”).

    Thus, precedents in other states and the federal system have held that


                                        49
notice concerning the right to appeal, if given, must be correct. However,

Due Process does not require that such notice be given in the first place.

TCEQ’s failure to give it in the present case simply does not rise to the level

of a Due Process violation.

    B.   Baxter’s cited cases do not support the proposition that the
         Order is void

    Baxter argues that “the Order should have contained at least a range of

possible expense and some kind of notice of a potentially responsible

party’s appellate remedies” and, because it did not, it was void. Appel-

lant’s Br. 27. For this proposition, Baxter cites three cases: Sec. State Bank &

Trust v. Bexar Cnty., 397 S.W.3d 715 (Tex. App.—San Antonio 2012, pet.

denied); New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996); and In re

Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi 1990, no

writ). However, each of these cases involves a failure of service at the

commencement of a legal action, not a failure to provide notice of the

potential costs of a final order or the right to appeal.




                                       50
         1.   Security State Bank and Trust involved a complete
              lack of notice rather than incomplete notice.

    The Security State Bank & Trust case involved a tax sale of real property

against which a bank held a lien. Sec. State Bank & Trust, 397 S.W.3d at 717.

“The Bank asserts that, as a record lienholder, it was entitled to notice and

joinder in the delinquent tax suit and to notice of the subsequent tax sale,

and the lack of notice violates due process and renders the tax sale void as

to the Bank. We agree.” Id. Accordingly, the Court of Appeals vacated and

set aside the tax sale as to the bank’s lien interest. Id. The lienholder bank

had a Due Process right to receive notice: “Because a tax sale significantly

affects a lienholder’s property interest, due process requires that the

lienholder receive notice of the pending tax sale.” Id. at 721, citing Menno-

nite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983).

    The second issue in Sec. State Bank & Trust was the remedy. “A judg-

ment entered without notice or service to an interested party is ‘constitu-

tionally infirm’ in that the failure to provide notice violates ‘the most

rudimentary demands of due process of law.’” Id. at 723, quoting Peralta v.


                                       51
Heights Med. Ctr., Inc., 485 U.S. at 84. “As opposed to a mere defect in

service, a complete failure or lack of service on a party with a property

interest adversely affected by the judgment constitutes a due process

violation that warrants setting the judgment aside.” Sec. State Bank & Trust,

397 S.W.3d at 723. (In this case, of course, Baxter received service.)

       The Court of Appeals said, “A collateral attack may be used to set

aside a judgment based on a complete lack of notice to an interested party

in violation of their due process rights.” Id. at 723 (citations omitted). “A

judgment is ‘void,’ and thus subject to collateral attack, if there was a

complete lack of service in violation of due process.” Id., citing PNS Stores,

Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). PNS Stores had held, “When

a defective citation is served, but the citation puts the defendant on notice

of asserted claims in a pending suit, and the technical defects are not of the

sort that deprive a litigant of the opportunity to be heard, we reject them as

grounds sufficient to support a collateral attack.” PNS Stores, 379 S.W.3d at

275.



                                       52
    Thus, following the precedent of Security State Bank & Trust and PNS

Stores, the service of the Order upon Baxter by certified mail was not

defective and the Order cannot be collaterally attacked.

         2.   New York Life Insurance involved service at the
              wrong address.

    In New York Life Ins. Co. v. Brown, 84 F.3d at 137, a stakeholder-insurer

filed an interpleader action against two claimants seeking to establish the

ownership of life insurance policy. Summary judgment was entered

against a claimant by default. The Court of Appeals held that, although the

defaulted claimant had appeared by participating in a telephone confer-

ence before a magistrate judge and making a telephone call to plaintiff’s

counsel, the attempt to serve the claimant with a copy of the summary

judgment motion at an address that was not his last-known address did

not provide proper notice. The absence of notice was a denial of Due

Process, rendering the judgment void. New York Life, 84 F.3d at 139. Apply-

ing this precedent to the present case, the actual notice given to Baxter by

providing a copy of the Order conformed with Due Process.


                                      53
        3.   In re Guardianship of B.A.G. involved a court’s lack
             of personal jurisdiction rather than notice of a right
             to appeal.

    The third case is In re Guardianship of B.A.G., 794 S.W.2d at 510, an

action for appointment of a temporary guardian for B.A.G., an allegedly

incapacitated adult. B.A.G. did not receive personal service and did not

appear at any of the hearings. Id. at 513. She did not consult counsel before

the hearings and could not have made a knowing and voluntary waiver of

her rights. Id. The trial court did not make a determination that her appear-

ance should be waived, as required by the Probate Code, and her relatives

were not properly notified as required by statute. Id. The Corpus Christi

Court of Appeals said:

    A judgment is void only when it is apparent that the court render-
    ing the judgment had no jurisdiction of the parties, no jurisdiction
    of the subject matter, no jurisdiction to enter the judgment, or no
    capacity to act as a court. … A void judgment is one entirely null
    within itself, and which is not susceptible of ratification or confir-
    mation, and its nullity cannot be waived. … Furthermore, if a
    court has not acquired jurisdiction of both the parties and the
    subject matter of the litigation, the judgment is void and is subject
    to both direct and collateral attack. Therefore, appellants may
    collaterally attack the trial court’s judgment if the trial court


                                      54
    lacked complete jurisdiction over the parties.

Id. at 511-12 (citations omitted). Accordingly, the Court held, “the [trial]

court lacked personal jurisdiction over B.A.G. and all of its actions regard-

ing her guardianship are void.” Id. at 513.

    Thus, Security State Bank & Trust, New York Life, and Guardianship of

B.A.G. all hold that a party to a legal action must be properly served at the

commencement of the action; otherwise, the court lacks personal jurisdic-

tion and any resulting judgment is void. In the present case Baxter was

properly served with a copy of the Order; thus Due Process was satisfied.

                                   PRAYER

    For the reasons stated above, Appellee the Texas Commission on

Environmental Quality asks the Court to overrule Appellant’s issues and

affirm the order of the District Court.

    Respectfully submitted this 13th day of November 2015.

                                          KEN PAXTON
                                          Attorney General of Texas




                                      55
 CHARLES E. ROY
 First Assistant Attorney General

 JAMES E. DAVIS
 Deputy Attorney General for Civil
 Litigation

 PRISCILLA M. HUBENAK
 Chief, Environmental Protection
 Division



  /s/ Thomas H. Edwards
 THOMAS H. EDWARDS
 Assistant Attorney General
 Tex. Bar No. 06461800
 Thomas.Edwards@
 TexasAttorneyGeneral.gov

 CRAIG J. PRITZLAFF
 Assistant Attorney General
 Tex. Bar No. 24046658
 Craig.Pritzlaff@
 TexasAttorneyGeneral.gov

 Office of the Attorney General
 Environmental Protection Division
 P.O. Box 12548, Capitol Station
 Austin, Texas 78711-2548
 Tel: (512) 463-2012
 Fax: (512) 320-0911



56
                                    ATTORNEYS FOR THE TEXAS
                                    COMMISSION ON
                                    ENVIRONMENTAL QUALITY




                   CERTIFICATE OF COMPLIANCE

     I certify that this document was produced on a computer using Word
Perfect 13.0 and contains 9,979 words, as determined by the computer
software’s word-count function, excluding the sections of the document
listed in Texas Rule of Appellate Procedure 9.4(i)(1).



                                     /s/ Thomas H. Edwards
                                    THOMAS H. EDWARDS




                                   57
                       CERTIFICATE OF SERVICE

     I, Thomas H. Edwards, do hereby certify that a true and correct copy
of the foregoing document, with appendix, was served by electronic
service on the following parties or attorneys of record on the 13th day of
November 2015.

Attorneys                                 Parties

Elliott S. Cappuccio                      Baxter Oil Service, Ltd.
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
lhyman@pulmanlaw.com
Etan Z. Tepperman
etepperman@pulmanlaw.com

PULMAN, CAPPUCCIO, PULLEN,
BENSON & JONES, LLP
2161 NW Military Hwy., Ste. 400
San Antonio, Texas 78213
(210) 222-9494 (Telephone)
(210) 892-1610 (Facsimile)

                                       /s/ Thomas H. Edwards
                                      THOMAS H. EDWARDS




                                     58
APPENDIX




   59
APPENDIX
                                                         MOTION FOR REHEARING


TO                     Chairman Bryan                  Shaw                                                     DATE       March 15,2010
                       Commissioner Buddy Garcia
                       Commissioner Carlos Rubinstein
                       Les Trobman General                    Counsel       2 copies


FROM                   LaDonna            Castariuela         Chief Clerk



Applicant Permittee Voda Petroleum Inc


Permit Type             SPF                        Permit    No N A                  Docket      No       2009 1706 SPF

              Note     If   any dates      fall   on a weekend   or a holiday the next working          date   becomes    the   due date


Commission           action           2 10 2010

MFR    Filed    By            John Riley


MFR     Filed   For            Luminant


Order Mailed Date                    2 19 2010

Date    MFR     Filed         OCC     date        stamp 312 2010

Date    MFR Due                 3 15 2010
 23 days after date order was mailed


Date    Replies      to      MFR Due              3 24 2010
 33 days from order mailed date


MFR     Overrules by Operation of                       Law      4 8 2010                Possible agenda dates              SOS    Notice   Deadli   e
 48 days from order mailed date                                                          3 30 2010               3 22 201 0


If   extended      action           due    by 5 24 2010                                  Possible agenda dates              SOS    Notice   Deadline
 93 days from order mailed date                                                          414 2010                4 6 2010
                                                                                         4 28 2010               4 20 2010
                                                                                         519 2010                5 11 2010


Attachments                          0     Motion



Permit Order                 cover letter                            0   Attached        0     Previously Submitted




Was    an   RTC      prepared                      0   Yes    attached        0     No              0     Previously        Submitted




cc          Tracking        Sheet   Only
          Office   of Public Interest         Counsel                Environmental    Law    Division            John Racanelli    Financial   Administration

          Program      Staff                                         OCCFinal     Docs   Team    Leader          Laurie   Eaves   OCE




                                                                                                                                                  VODA_AR_00000010
Buddy Garcia Chairman

Larry   R   Soward Commissioner
Bryan   W    Shaw Ph          D      Commissioner

Mark    R   Vickery       P   G   Executive        Director




                               TEXAS COMMISSION                                   ON ENVIRONMENTAL                                         QUALITY
                                                    Protecting         Texas   by Reducing           and Preventing            Pollution


                                                                               September            12 2008


    CERTIFIED MAIL
   91       7108         2133          3934          5604         8317

    BAXTER OIL SERVICE LTD
    MR SAM BAXTER PRESIDENT
    4828 N SHEPPARD
    HOUSTON TX 77018 2216

    Re         Proposed              Remedial Action              for    the    Voda Petroleum Inc Proposed                                  State   Superfund Site

               Clarksville City Gregg County Texas



    Dear     Sir    or   Madam

    Pursuant to the               Texas      Solid        Waste        Disposal           Act Tex                Health          Safety      Code     Ch 361              the Texas
    Commission                on Environmental              Quality            TCEQ           is   required         to    publish notice         of a public meeting                   to

   discuss the            proposed          remedial        action       for    the    Voda Petroleum Inc                           Proposed         State     Superfund          Site

    The     TCEQ         shall    publish notice of the meeting in the Texas Register and in a newspaper                                                            circulating        in

   the county            in   which the       facility      is    located       at least        30 days before the                  date   of the public meeting                  The
    TCEQ       is   also       required to mail the same information to each                                            potentia     lly   responsible party                PRP        by

   certified        mail       return receipt             requested          at least       30 days before the public meeting                                  This letter        is   to

   notify you that the                TCEQ         will    publish       a   notice of the public meeting to discuss                              the    proposed           remedial

   action     for    the       Voda Petroleum Inc Proposed                                 State         Superfund         Site       The notice         is   scheduled          to    be
   published         in   the Texas          Register and the Longview News Journal on September                                                     19 2008              The notice
   will     provide       information regarding the proposed                                  remedial action               and the date          time and place of the
   meeting which                is   also    included in this Jetter


   The public meeting for the Voda Petroleum Inc                                                    Proposed            State    Superfund           Site     is    scheduled         for

   Thursday          October           23 2008             in   the     Broadway             Elementary             School          Cafeteria 200             East    Broadway
   Gladewater             Texas         beginning          at   7 00p m The                  public          comment period begins                    September            23    2008
   and ends October                  23 2008          at   the close           of the public meeting                        The public meeting                 is   legislative        in

   nature and            not     a contested          case       hearing        under the                Texas      Government             Code      Chapter          2001        The
   meeting shall be held to discuss                             the proposed              remedial action receive                     comments from the public on
   the proposed remedial action                            obtain additional                 information            regarding the             facility        and identify any
   additional        potentially           responsible parties



   According         to       Section       361.187        of the Solid Waste Disposal Act PRPs have                                         sixty     60 days following
   the public meeting on the proposed remedial action                                               to     respond        in   writing to the         TCEQ with a Good
   Faith Offer to fuJJy fund or conduct                               the proposed             remedial action at the Site                       A Good             Faith   Offer      is

   defined at Section                 335.342        5     of 30 Texas Administrative Code                                     A Good        Faith Offer            may be made
   by submitting correspondence                            to    the    TCEQ          Project Manager which                         states   the PRP's intent to enter

   into     an Agreed Administrative Order with the                                       TCEQ           to fully       fund or conduct           a remedial action                    In

   accordance            with the          sixty    60      day    statutory          time frame the                    Good     Faith Offer         must be received                  by
   the      TCEQ         Project      Manager no                later    than    5 00 pm                  on December               22     2008        If     after       the   public

   meeting on the proposed remedial action                                     the    TCEQ          determines            that   comments received                   at   the public
   meeting will not significantly                          change        the proposed              remedial action                  tben   tbe   TCEQ          will       again mail




            P O Box           13087    •   Austin Texas 78711 3087                    •    512 239 1000             •    Internet   address      www     tceq state tx us
                                                                                 printed   on recycled   paper




                                                                                                                                                                            VODA_AR_00017912
BAXTER OIL SERVICE LTD
Page 2

September               12    2008




notice to         all   identified         PRPs     to      confirm that December              22 2008          is   the   date by which the                 Good    Faith
Offer to fully                fund or perform               the proposed           remedial action        must be received                 by the       TCEQ             If   a

Good        Faith       Offer        is    made    by       all    or some       of the     PRPs     within      this      period        those      parties     have      an
additional          60 days          to   negotiate         an Agreed Administrative                Order from the               TCEQ      which        shall   include

a scope      of     work            The    TCEQ may               not require an admission of liability                     in   the Agreed Administrative
Order        If    a    Good        Faith   Offer      is   not received         within the specified time period the                      TCEQ         will    proceed
with an Administrative                      Order and             may     complete the remedial action utilizing                       state    funds        pursuant to
the   Solid Waste Disposal                     Act          In    such case      the    TCEQ    will    seek to recover            all   of   its   costs     including
oversight costs as set out in Section                               361.197       ofthe    Solid Waste      Disposal             Act

Enclosed           is   the Proposed           Remedial Action                   Document       which includes              the    proposed         remedial action

alternatives             Based on consideration of                         the    requirements         of the    Solid Waste             Disposal        Act     and 30
Texas Administrative Code Chapter 335                                        Subchapters        K   and     S    the    TCEQ        is   proposing           excavation

with off site disposal for the                         on site      surface       and     subsurface     soil    containing         contaminants above                   the

applicable cleanup                   levels and the installation of reactive                      biobarrier wells              with collection         and analysis
of groundwater                 samples to confirm                  that   the reactive       biobarrier     system         is   reducing the concentrations
of contaminants                 in   the shallow groundwater at the Site                          The   reactive       biobarrier        system would remain
in   place    until      it    is   demonstrated            that   the concentrations          of contaminants              in    the groundwater             no longer
exceed their applicable cleanup                             standards        An     institutional      control       would be placed             on each property
which       overlies          groundwater           contaminated             above the cleanup            levels       and would describe the specific
area ofthe contaminated groundwater plume on the affected                                                property           The     institutional        controls are

to    be   secured        and implemented                    in    accordance          with the     Texas       Risk    Reduction          Program Rules and
would remain              in    place until       it   is   demonstrated           that    concentrations of contaminants in groundwater no
longer exceed                 the    applicable          cleanup          levels       These recommended                alternatives           are the        most cost
effective         reasonable              and appropriate remedy to address the Site


Correspondence                 should       be sent to       my     attention      using    mail code     MC 136           at   the address         listed    below and
must include the following                        assigned reference                number      specified        in this        letter    SUP0670016                If   you

have any questions                   please contact          me    at     512 239 2501         or email at       cboucher           tceq state tx us



Sincerely




              4L
Carol Boucher                 PG      Project     Manager
State      Lead    Section

Remediation             Division
Texas      Commission on Environmental Quality


CBsr

Enclosures




                                                                                                                                                                     VODA_AR_00017913
Buddy Garcia Chairman

Larry   R   Soward Commissioner
Bryan   W    Shaw Ph         D      Commissioner

Mark    R   Vickery         PG      Executive         Director




                               TEXAS COMMISSION ON ENVIRONMENTAL                                                                                QUALITY
                                                      Protecting            Texas    by   Reducing            and Preventing          Pollution


                                                                                    September             12      2008




    CERTIFIED MAIL
   91       7108            2133         3934          5604             8317

    BAXTER OIL SERVICE LTD
    MR SAM BAXTER PRESIDENT
    4828 N SHEPPARD
    HOUSTON TX 77018 2216

    Re            Proposed              Remedial Action                 for    the Voda Petroleum                         Inc    Proposed            State   Superfund            Site

                  Clarksville City Gregg                          County        Texas



    Dear     Sir or         Madam

    Pursuant           to   the     Texas           Solid      Waste         Disposal          Act Tex                 Health          Safety Code            Ch 361             the    Texas
    Commission                on Environmental                    Quality           TCEQ            is   required to publish                  notice of a public meeting to
    discuss       the proposed remedial                           action for the            Voda Petroleum Inc                              Proposed         State    Superfund            Site

    The     TCEQ            shall   publish notice of the meeting in the Texa                                            Register and in a newspaper                       circulating          in

   the county in which                        the facility        is    located      at least        30 days before the date of the public meeting                                         The
    TCEQ         is    also    required to mail the                         same information                   to      each potentially         responsible party                  PRP          by
    certified         mail        return receipt            requested           at    least      30 days before the public                           meeting         This        letter    is   to

    notify       you    that the         TCEQ         will     publish        a notice         of   the       public meeting to discuss the proposed                               remedial

    action       for    the    Voda           Petroleum               Inc     Proposed          State         Superfund Site                 The notice         is   scheduled            to    be

    published          in    the Texas Register and the Longview                                      News          Journal on             September         19 2008             The    notice

    will    provide          information regarding the proposed                                     remedial action and the date time and place                                         of     the

    meeting           which        is   also    included in this letter


   The      public          meeting           for    the    Voda Petroleum Inc                            Proposed             State       Superfund         Site    is    scheduled           for

   Thursday             October           23 2008                in    the    Broadway            Elementary                School          Cafeteria        200 East Broadway
   Gladewater                Texas        beginning              at    7 00p m            The public comment period begins September                                              23      2008
   and ends October                     23 2008             at   the close          of the public               meeting           The public meeting                  is   legislative          in

   nature and               not     a contested             case hearing             under          the       Texas        Government             Code       Chapter         2001          The
   meeting        shall       be held to discuss the proposed remedial action                                                   receive      comments from the public on
   the proposed remedial                         action          obtain additional                information               regarding the facility                   and    identify       any

   additional          potentially             responsible parties


   According            to    Section          361.187           of the Solid Waste Disposal Act PRPs have                                           sixty     60 days following
   the public meeting on the proposed                                       remedial action to respond                          in    writing to the          TCEQ with a Good
   Faith Offer to fully                   fund or conduct                    the proposed remedial action                             at   the Site      A Good            Faith       Offer    is

   defined        at    Section          335.342           5     of 30 Texas Administrative Code                                      A Good         Faith Offer           may     be    made
   by submitting               correspondence                    to    the    TCEQ        Project Manager which                             states   the PRP's intent to enter

   into     an    Agreed Administrative Order with the                                          TCEQ           to fully        fund    or conduct        a remedial action                      In

   accordance               with    the sixty          60         day       statutory      time frame the                      Good        Faith Offer must be received                         by
   the      TCEQ        Project          Manager no                   later   than        5 00 p m              on December                 22 2008            If    after       the    public

   meeting on the proposed                           remedial action the                   TCEQ               determines that comments received                             at   the public
   meeting will               not significantly change                        the proposed                remedial action then                    the   TCEQ          will       again mail




            PO        Box 13087           •    Austin Texas 78711 3087                     •    512 239 1000               •   Internet     address     www tceq state txus
                                                                                      printed   on recycled    paper




                                                                                                                                                                                  VODA_AR_00017914
BAXTER OIL SERVICE LTD
Page2
September              12    2008




notice      to all     identified         PRPs         to   confirm that December                  22 2008          is   the date by which              the     Good    Faith

Offer to fully               fund    or perform              the    proposed       remedial         action must be received                   by the       TCEQ            If   a
Good        Faith      Offer        is    made by            all   or    some of the PRPs                within      this   period          those      parties      have    an
additional         60 days to negotiate                     an Agreed Administrative Order from the                             TCEQ          which        shall    include

a scope of         work The TCEQ may not require an admission of liability in the Agreed Administrative
Order        If   a Good Faith Offer is not received within the specified time period the TCEQ will proceed

with an Administrative Order and                                   may    complete the remedial action utilizing                           state   funds        pursuant to
the    Solid      Waste Disposal Act                        In such case the          TCEQ          will     seek to recover          all   of   its   costs     including
oversight costs as set out in Section 361.197                                     of the Solid Waste Disposal Act


Enclosed          is   the Proposed           Remedial Action                     Document          which      includes the proposed                   remedial action

alternatives            Based on consideration                           of the    requirements            of the    Solid    Waste Disposal Act and 30
Texas       Administrative Code                    Chapter            335    Subchapters           K    and     S   the    TCEQ       is    proposing           excavation

with off site disposal for the                          on site       surface      and subsurface            soil   containing         contaminants above                  the
applicable cleanup                  levels and the installation                    of reactive biobarrier wells with collection                               and analysis
of groundwater samples                      to    confirm that the reactive                      biobarrier     system is reducing the                  concentrations

of contaminants               in    the shallow groundwater at the Site                                The   reactive      biobarrier       system would remain

in   place    until     it    is   demonstrated that the concentrations                            of contaminants            in the    groundwater no longer

exceed their applicable cleanup                              standards        An    institutional          control       would be placed            on each property
which       overlies         groundwater               contaminated above                  the   cleanup      levels      and would describe                  the   specific

area of the contaminated groundwater                                     plume on the affected               property         The     institutional           controls     are

to    be    secured          and implemented                  in    accordance        with       the    Texas    Risk Reduction               Program Rules                and

would remain             in      place    until   it    is   demonstrated           that   concentrations of contaminants in groundwater no
longer       exceed          the    applicable              cleanup       levels      These recommended                     alternatives           are the       most      cost

effective         reasonable             and appropriate remedy to address the Site



Correspondence                should       be sent to          my   attention      using     mail code        MC 136         at the    address         listed    below and
must include the following                        assigned          reference       number          specified       in this   letter         SUP0670016               If   you
have any questions please contact                             me    at    512 239 2501             or email at      cboucher          tceq state txus


Sincerely




Carol Boucher                P G     Project      Manager
State      Lead Section
Remediation Division
Texas Commission on Environmental Quality


CBsr

Enclosures




                                                                                                                                                                 VODA_AR_00017915
Notice of meeting on October                                23 2008               in Clarksville           City Texas concerning                           the


Voda Petroleum Inc Proposed                                   state Superfund                      site




The     purpose          of    the meeting           is to   obtain         public        input    and     information             concerning           the


proposed          remedy         for the site




The     executive             director     of the     Texas Commission on Environmental                                           Quality      TCEQ        or


commission               is   issuing this public             notice of a            proposed           selection            of   remedy      for the      Voda

Petroleum          state       Superfund             site    In   accordance                with   30   TAC            335.349        a      concerning


requirements             for the remedial                 action        and Texas Health and Safety Code                                     THSC
 361.187               concerning          the    proposed             remedial action              a public meeting regarding the

commission's selection                      of   a proposed remedy                        for the    Voda Petroleum Inc Proposed

state    Superfund              site   shall     be held          The       statute        requires that the                 commission          shall


publish      notice       of the       meeting        in    the    Texas Register and                     in    a newspaper             of general


circulation        in   the     county      in   which the             facility     is   located     at    least       30    days before the date


of   the public         meeting




The     public     meeting           is   scheduled          for   Thursday October                     23 2008               7 00p      m      at   the


Broadway           Elementary              School Cafeteria                   200 East Broadway                       in     Gladewater Texas

The     public     meeting           is   not    a   contested           case hearing under                     the    Texas Government                   Code

Chapter        2001



The     site   for which          a remedy           is    being proposed the                     Voda Petroleum                    Inc Proposed


state    Superfund              site      the   site was proposed                        for listing    on      the state         registry of


Superfund          sites in the           November            17 2000               edition       of the       Texas Register 25 TexReg

11594 11595                    The     site is located            at    211       Duncan       Road        Clarksville            City Gregg County


Texas



Voda Petroleum Inc                        aka     Ultra Oil        was        operated         as a waste              oil   recycling       facility    from


1981     until    it   was abandoned                  in   1991 The               site is   located        in   a     residential       neighborhood


with    occupied          residences             directly     on the east and west sides                              of   the    facility     A   review of


the    facility    waste management                        activity       records revealed that                     Voda Petroleum                 Inc     aka

Ultra Oil         had received              stored         and processed                 waste gasolines                   oily   wastes used            oil




                                                                                                                                                     VODA_AR_00017916
mixed       with    methyl ethyl ketone varsol trichloroethane toluene                                            and hexane crude                   oil


greases and waxes                    In    1996       the   EPA      conducted          an emergency                removal of 462                 55
gallon      drums       of   grease       or oily     wastes 14           55 gallon      drums         of corrosive            wastes 16

above ground tanks and                      associated         contaminated              soil        The   site    was     then backfilled               to



approximate             the undisturbed           topography             to facilitate        site   drainage            The    U S
Environmental             Protection        Agency          EPA          post removal testing of                  soil   and groundwater

samples       indicated         that soil       and groundwater                 continued           to be contaminated                above

appropriate          cleanup        levels




A    Feasibility Study             FS      dated January             2008        screened           and evaluated              remedial


alternatives         which could be used to cleanup the site                                   The FS       report developed                     three     3
alternatives         for remediation            of surface          and subsurface              soils   and       three     3    alternatives


for shallow         groundwater             The commission prepared                           the    Proposed Remedial Action

Document           in   June 2008           This document                presents the           proposed          remedy and

justification       for   how      this   remedy demonstrates compliance                               with the relevant cleanup


standards




Based on           the calculated          volume       of contaminated                soil    and the requirement                   for protection


of   groundwater             the   recommended               soil   remedial       alternative          from the          FS    is   excavation

with   offsite      disposal         The recommended                     alternative      is    the   most cost           effective


reasonable          and appropriate              remedy       to    address the contaminated                       soil    at the site




As    the   shallow groundwater                  at   the site      is   considered           a usable groundwater                    resource


the groundwater               must be cleaned up               to drinking         water standards                  The        Feasibility         Study

recommended               the installation            of two reactive           biobarriers          systems The downgradient

biobarrier         would      consist     of a line of       64     biosubstrate         injection         points    oriented          in    a    320 ft

line   along the margin              of   the   plume        A second            biobarrier          would be       installed         near the


source area and would consist of                         a   line    of   36    injection      points      along     a 180 foot             line     The

passive barrier would be constructed                           by injecting biosubstrate                     in   the upper 22              ft   of the


saturated          zone      at injection    points      spaced 5          ft   apart     The        biosubstrate          would be capable

of   providing       a long lasting source of dissolved                          oxygen        to    promote sustained aerobic

biodegradation                The recommended                 alternative         is   the     most cost          effective          reasonable


and appropriate               remedy      to address the contaminated                          groundwater           at the site




                                                                                                                                                     VODA_AR_00017917
All    persons desiring to              make comments may do                  so prior     to   or   at   the public        meeting        All



comments           submitted prior            to   the public meeting must be received                      by    5 00p m        on


October       22 2008 and should be sent                              in writing to   Ms    Carol Boucher                  PG     Project


Manager           TCEQ        Remediation              Division       MC 136 P     0   Box 13087 Austin Texas

78711 3087               or facsimile        at    512 239 2450            The   public    comment          period for         this   action


will   end   at the close of the public                     meeting on October        23 2008



A   portion       of the record for this site including                   documents        pertinent       to   the proposed


remedy       is   available       for review           during regular business         hours at the Longview                   Public


Library 222          West      Cotton Street Longview                     Texas 75601           903 237 1350                 Copies     of


the complete             public    record     file     may be     obtained    during business             hours at the

commission's Records                    Management              Center     Building   E    First     Floor Records Customer


Service       MC 199          12100 Park 35 Circle Austin Texas 78753                                 800 633 9363               or   512

239 2920           Photocopying              of file    information is subject        to   payment         of    a fee       Parking for


person with         disabilities        is   available       on the east     side of Building         D     convenient         to access


ramps     that are         between       Buildings          D   and   E

Information         is   also available            regarding     the state Superfund            program          at


www tceq state tx usremediation superfund                                 sites index html




Persons with             disabilities    who have            special    communication           or other     accommodation

needs who are planning                   to attend          the meeting should        contact        the agency at


1 800 633 9363               or    512 239 2141                 Requests     should be      made          as far      in   advance    as


possible




For further information about                        this   site or the public    meeting please                call   Bruce McAnally

TCEQ Community                    Relations at          1 800 633 9363           extension       2141




                                                                                                                                  VODA_AR_00017918
Buddy Garcia Chairman
Larry   R    Soward Commissioner

Bryan    W    Shaw Ph        D     Commissioner

Mark    R   Vickery       PG       Executive      Director




                             TEXAS COMMISSION ON ENVIRONMENTAL                                                                                QUALITY
                                                   Protecting Texas              by Reducing              and Preventing            Pollution


                                                                                September             12       2008




   CERTIFIED MAIL
    91       7108          2133           3934          5604            8287

   BAXTER OIL SERVICE LTD
   MR SAM BAXTER PRESIDENT
   POBOX20255
   BEAUMONT TX                       77720 0255


   Re           Proposed           Remedial Action                  for    the   Voda Petroleum Inc                             Proposed         State    Superfund              Site
                Clarksville City Gregg County Texas



   Dear Sir or         Madam

   Pursuant to the               Texas          Solid    Waste          Disposal           Act Tex                 Health            Safety Code           Ch 361               the     Texas
   Commission               on Environmental                  Quality           TCEQ            is   required             to   publish      notice      of a public meeting                    to

   discuss      the proposed               remedial action                for    the    Voda Petroleum Inc Proposed                                      State       Superfund           Site
   The      TCEQ shall           publish notice of the meeting in the Texas Register and in a newspaper circulating                                                                            in

   the county in which                    the   facility      is    located      at least         30 days before the                   date      of the public meeting The
   TCEQ        is also       required to mail the same information to each potentially                                                        responsible party                   PRP         by
   certified      mail       return receipt              requested at least 30 days                                before the        public meeting                  This       letter   is to

   notify     you     that   the     TCEQ         will       publish a notice               of the public meeting                     to   discuss      the    proposed           remedial

   action      for    the    Voda Petroleum Inc                           Proposed          State          Superfund Site                  The    notice       is   scheduled            to   be
   published         in    the Texas Register and the Longview                                    News             Journal on September                  19 2008                The notice
   will     provide        information           regarding the proposed                        remedial action                   and the date time and place                            of    the

   meeting which              is    also    included          in this letter



   The       public    meeting for the                  Voda        Petroleum Inc Proposed                                  State    Superfund           Site       is    schedul ed for
   Thursqay October                   23 2008                in   the     Broadway            Elementary                  School      Cafeteria 200                 East        Broadway
   Gladewater              Texas      beginning              at   7 00p m Tbe                 public           comment period begins September                                    23     2008
   and ends October                  23 2008            at   the    close       of the public meeting                           The public meeting                   is   legislative          in

   nature      and not a contested                      case       hearing under                the       Texas Government Code Chapter 2001                                              The
   meeting        shall     be held to discuss the proposed                                remedial action                     receive comments from the public                               on
   the proposed remedial action                              obtain       additional          information regarding the facility                                    and    identify       any
   additional        potentially           responsible            parties


   According          to    Section        361.187           of the Solid Waste                  Disposal            Act PRPs          have sixty          60 days following
   the public meeting on the proposed                                   remedial action                   to   respond         in   writing to the        TCEQ with a Good
   Faith Offer to fu           lly    fund       or conduct             the proposed             remedial action at the Site                           A Good             Faith Offer          is

   defined      at    Section        335.342        5        of 30 Texas          Administrative                     Code           A Good       Faith Offer              may     be     made
   by submitting correspondence                              to   the     TCEQ         Project Manager                      which     states      the PRP's              intent       to enter

   into     an Agreed Administrative Order with the                                         TCEQ           to fully        fund      or conduct         a remedial              action         In

   accordance          with the           sixty    60        day     statutory         time frame                   the    Good      Faith    Offer must be received                          by
   the      TCEQ       Project       Manager no                   later   than     5 00 p m                    on December             22     2008            If    after       the    public

   meeting on the proposed                       remedial actjon the                   TCEQ               determines that comments received                                at   the public
   meeting will            not significantly change                       the    proposed             remedial             action     then       the   TCEQ          will       again    mail




             PO   Box 13087           •   Austin Texas 78711 3087                      •    512 239 1000                  • Internet address           www tceq state tx us
                                                                                  printed   on recycled    paper




                                                                                                                                                                                 VODA_AR_00017945
BAXTER OIL SERVICE LTD
Page2
September               12    2008




notice to         all   identified         PRPs        to    confirm that December                22 2008          is   the date by which            the    Good    Faith
Offer to fully                fund    or    perform          the    proposed        remedial       action    must be received              by the       TCEQ            If   a

Good     Faith          Offer        is    made     by       all    or some        of   the    PRPs within          this   period        those      parties      have    an
additional          60 days          to   negotiate          an Agreed Administrative                  Order from the           TCEQ       which        shall     include
a scope of          work The TCEQ may not require an admission of liability in the Agreed Administrative
Order        If    a Good Faith Offer not received within the specified time period the TCEQ will proceed
                                                        is


with    an Administrative Order and may complete the remedial                                                action       utilizing   state      funds pursuant to

the Solid Waste                   Disposal Act               In    such case the        TCEQ       will    seek to recover         all   of   its   costs including
oversight costs as set out in Section                                361.197        of the Solid Waste Disposal Act


Enclosed           is   the Proposed             Remedial Action                   Document        which     includes       the proposed            remedial action
alternatives             Based            on consideration of                the    requirements of the             Solid    Waste Disposal                Act    and 30
Texas    Administrative Code                           Chapter        335     Subchapters          K   and   S     the    TCEQ      is   proposing           excavation
with    off site disposal                  for   the    on site       surface       and subsurface          soil   containing       contaminants              above the
applicable cleanup                   levels and the installation                    of reactive     biobarrier          wells with collection              and analysis
of groundwater samples to confirm that the reactive                                             biobarrier    system       is   reducing the concentrations

of contaminants in the shallow groundwater at the Site                                             The     reactive       biobarrier     system would remain

in   place    until      it    is   demonstrated             that    the   concentrations          of contaminants in the groundwater                         no longer
exceed their applicable cleanup                              standards         An    institutional        control       would be placed          on each property
which overlies groundwater contaminated above the cleanup                                                    levels      and would describe the specific

area    ofthe contaminated groundwater plume on the affected                                                property        The    institutional           controls are
to   be secured               and    implemented               in   accordance          with     the Texas     Risk Reduction              Program Rules                and
would remain              in      place    until   it   is    demonstrated           that     concentrations        of contaminants           in    groundwater no

longer       exceed           the    applicable             cleanup        levels       These     recommended              alternatives       are     the    most cost
effective         reasonable              and appropriate remedy to address the Site


Correspondence                 should       be sent to         my    attention      using mail code          MC 136        at   the address         listed   below and
must include the following                         assigned          reference   number specified in this letter SUP0670016                                        If   you




                          L
have any questions please contact                             me     at    512 239 2501 or email at cboucher tceq state txus


Sincerely




Carol Boucher                 P   G   Project      Manager
State   Lead Section
Remediation             Division
Texas Commission on Environmental Quality



CBsr

Enclosures




                                                                                                                                                                   VODA_AR_00017946
            UNITEDSTilTE5
                                                                                                                          o6
           POSTl L SERVICE


Date Produced           09 29 2008




TEXAS COMMISSION ON ENVIRONMENTAL QUALIT



The   following    is   the delivery      information for Certified              Mail   ™item   number 7108 2133 3934
5604 8287     Our records           indicate    that    this   item   was     delivered on      09 24 2008       at   11 07 a m   in

BEAUMONT TX 77707 The                       scanned       image       of   the   recipient information      is   provided   below



                                            rv                 XJ1er
Signature of Recipient
                                                        t4of




Address of Recipient                                       0                             5
Thank you    for   selecting the Postal Service                 for your mailing         needs    If   you require additional
assistance    please contact             your   local   post   office      or Postal Service representitive




Sincerely




United   States Postal       Service




The customer       reference        number shown           below      is   not validated   or endorsed by the United
States Postal Service          It   is   solely for customer            use




Customer Reference           Number 136




                                                                                                                            VODA_AR_00017947
VODA_AR_00017948
Buddy Garcia Chaitman
Larry   R    Soward Commissioner
Bryan    W    Shaw Ph        D     Commissioner

Mark    R   Vickery        PG     Executive         Director




                              TEXAS COMMISSION ON ENVIRONMENTAL                                                                            QUALITY
                                                     Protecting          Texas   by Reducing             and Preventing          Pollution


                                                                                 September          12 2008



    CERTIFIED MAIL
   91       7108          2133          3934          5604           8294


    BAXTER OIL SERVICE LTD
   MR SAM BAXTER                              PRESIDENT
    5070 IRVING ST
   BEAUMONT TX                          77705 5231


   Re           Proposed           Remedial Action                   for   the    Voda Petroleum Inc                       Proposed          State    Superfund            Site

                Clarksville             City Gregg County Texas


   Dear       Sir    or   Madam

   Pursuant to the                Texas        Solid       Waste         Disposal Act              Tex           Health           Safety     Code      Ch      361        the    Texas
   Commission               on Environmental                   Quality           TCEQ         is   required to publish notice of a public meeting to

   discuss      the        proposed          remedial          action for the            Voda Petroleum Inc                        Proposed          State     Superfund           Site

   The      TCEQ          shall   publish          notice of the meeting in the Texas Register and in a newspaper                                                   circulating          in

   the county in which                      the facility       is    located      at least      30 days before the date of the public meeting                                       The
   TCEQ         is   also    required to mail the                     same information                   to      each potentially          responsible party                PRP         by
   certified         mail    return          receipt       requested at least 30 days before the public meeting                                                This       letter   is    to

   notify      you that the         TCEQ            will   publish         a notice of the public meeting to discuss the proposed remedial

   action      for    the Voda              Petroleum Inc Proposed                         State         Superfund Site              The      notice     is   scheduled            to   be

   published          in   the Texas Register and the Longview                                  News             Journal on September                19 2008              The notice
   will     provide        information regarding the proposed                                 remedial action and the date                          time and place of the
   meeting which                 is also      included in this letter


   The public             meeting for the                Voda Petroleum                    Inc      Proposed             State    Superfund          Site     is    scheduled           for
   Thursday           October           23        2008        in   the     Broadway          Elementary              School        Cafeteria         200 East Broadway
   Gladewater              Texas        beginning             at   7 00p m          The public comment period begins September                                              23     2008
   and ends October                 23 2008              at   the close          of the public            meeting          The public meeting                  is   legislative          in

   nature      and not           a contested             case hearing             under       the        Texas Government                  Code      Chapter          2001          The
   meeting shall be held                     to   discuss          the proposed          remedial action receive                     comments            from       the public          on
   the      proposed        remedial           action         obtain additional              information regarding the                        facility        and identify any

   additional         potentially            responsible parties


   According          to    Section          361   187        of the Solid Waste               Disposal            Act PRPs         have sixty         60 days following
   the      public    meeting on the proposed                         remedial action to respond                          in    writing to the        TCEQ with a Good
   Faith Offer to fully                 fund or conduct                  the proposed remedial                     action at the Site               A Good          Faith   Offer        is

   defined      at    Section       335.342           5 of         30 Texas Administrative Code                                A Good        Faith     Offer        may     be    made
   by submitting             correspondence                   to   the     TCEQ        Project Manager which                       states     the    PRP's         intent   to     enter

   into     an Agreed Administrative Order with                                    the     TCEQ          to fully        fund or conduct            a remedial action                    In

   accordance             with    the       sixty     60      day     statutory        time frame the                    Good     Faith    Offer must be received                       by
   the      TCEQ          Project       Manager no                 later   than    5 00 p m               on December               22 2008              f    after       the    public
   meeting on the proposed                         remedial action               the   TCEQ         determines that comments                         received        at   the public

   meeting wiiJ not significantly change                                   the   proposed remedial action then the                               TCEQ          will       again mail




             PO      Box 13087          •    Austin    Texas        78711 3087         •   512 239 1000              •   Internet address       www tceq state tx us
                                                                                   printed on recycled   paper




                                                                                                                                                                           VODA_AR_00017949
BAXTER OIL SERVICE LTD
Page2
September            12    2008




notice to      all    identified       PRPs         to    confirm that December               22 2008          is   the date by which the                Good   Faith
Offer to fully             fund    or perform             the proposed remedial                action      must be received            by the       TCEQ           If   a
Good     Faith        Offer is         made     by        all    or some      of the PRPs           with in this period              those      parties     have    an
additional      60 days           to negotiate            an    Agreed Administrative Order from the                         TCEQ      which sbaU include
a scope of       work            Tbe   TCEQ may                 not require an admission of liability                   in    the Agreed Administrative
Order If a Good                  Faith   Offer       is   not received        within the specified time period                   the   TCEQ         will    proceed
with    an Administrative                Order and              may   complete the remedial action utilizing state funds pursuant to

the Solid Waste Disposal                    Act           In such case the           TCEQ      will     seek to recover        all   of   its   costs     including
oversight costs as set out in Section                            361.197      of the Solid Waste Disposal Act


Enc1osed       is    the    Proposed         Remedial Action                Document           which incJudes           the    proposed         remedial        action
alternatives           Based on consideration of the requirements of                                     the    Solid Waste          Disposal       Act      and 30
Texas    Administrative                Code Chapter 335 Subchapters                            K   and    S    the    TCEQ      is   proposing           excavation
with off site disposal for the                       on site      surface     and subsurface            soil   containing       contaminants above                 the

applicable cleanup                levels and the installation                  of   reactive      biobarrier        wells   witb collection         and analysis
of groundwater samples                    to   confirm that the reactive                    biobarrier     system      is   reducing the concentrations

of contaminants             in    the shallow groundwater at the Site                             The   reactive      biobarrier     system would remain
in   place    until   it   is    demonstrated             that   the concentrations           of contaminants           in    the groundwater             no longer
exceed their applicable cleanup                           standards      An        institutional      control       would be placed          on each property
which    overlies          groundwater              contaminated above                the   cleanup      levels      and would describe              the specific

area of the contaminated                   groundwater plume on the affected                            property        The     institutional        controls are
to   be secured and implemented                            in    accordance         with    the    Texas      Risk    Reduction        Program Rules               and
would remain           in      place   until   it    is   demonstrated that concentrations                     of contaminants            in    groundwater         no
longer       exceed        the    applicable             cJeanup      levels        These     recommended              alternatives       are     the    most cost
effective      reasonable          and appropriate remedy                     to   address the Site


Correspondence              should       be sent to        my     attention    using       mail code     MC 136        at   the adaress         listed   below and




               L
must include the following                     assigned           reference        number      specified       in this letter         SUP0670016                Ifyou
have any questions please contact                          me    at   512 2392501             or email at      cboucher         tceq state tx us


Sincerely




Carol Boucher              PG      Project     Manager
State   Lead Section

Remediation          Division
Texas Commission on Environmental Quality


CBsr

Enclosures




                                                                                                                                                                VODA_AR_00017950
                                                                                                        6b
            UNITED STIJTES
            POSTAL SERVTCE                    w




Date Produced         11 03 2008




TEXAS COMMISSION ON ENVIRONMENTAL QUALIT



The following is the delivery information for Certified Mail                  ™
                                                             item number 7108 2133 3934
5604 8294 Our records indicate that this item was delivered on 10 28 2008 at 03 20 p                             m   in

BEAUMONT TX 77705 The                    scanned        image    of the recipient information is provided      below




Signature of Recipient




Address of Recipient




Thank   you   for   selecting the Postal Service           for   your mailing needs       If   you require additional
assistance    please contact           your   local   post office or Postal Service      representitive




Sincerely




United States Postal Service




The customer        reference     number shown below             is   not validated   or endorsed    by the United
States Postal Service        It   is   solely for customer        use



Customer Reference Number 136




                                                                                                               VODA_AR_00017951
Buddy Garcia Chairman
Larry   R   Soward Commissioner

Bryan   W    Shaw Ph       D   Commissioner

Mark    R   Vickery    PG      Executive          Director




                            TEXAS COMMISSION ON ENVIRONMENTAL                                                                                   QUALITY
                                                  Protecting         Texas      by   Reducing            and Preventing Pollution

                                                                             September               12 2008



    CERTIFIED MAIL
   91       7108       2133         3934            5604          8300


    BAXTER OIL SERVICE LTD
    MR SAM BAXTER PRESIDENT
    RR8BOX50
    BEAUMONT TX                    77720


   Re          Proposed           Remedial Action                for    the     Voda Petroleum Inc                              Proposed            State   Superfund Site
               Clarksville City Gregg County Texas


   Dear Sir or        Madam

   Pursuant to the             Texas         Solid       Waste Disposal                   Act Tex                 Health               Safety       Code     Ch      361      the      Texas
   Commission on Environmental                             Quality           TCEQ               is   required to publish                     notice of a pubHc               meeting to

   discuss      the proposed            remedial           action for the             Voda Petroleum Inc                                   Proposed         State    Superfund           Site

   The      TCEQ      shall    publish notice              of the meeting                 in   the Texas Register and in a newspaper                                      circulating          in

   the county in which the facility                        is    located        at least         30 days before                      the   date of the public             meeting        The
   TCEQ        is   also    required         to   mail the same information                               to      each       potentially       responsible party                  PRP         by
   certified        mail    return      receipt      requested             at    least         30 days before                   the public          meeting          This    letter      is    to

   notify     you that the         TCEQ           wiiJ   publish a notice                  of the public meeting to discuss the proposed                                          remedial

   action for the           Voda Petroleum Inc                         Proposed            State          Superfund Site                    The     notice     is   scheduled           to be

   published in the Texas Register and                               the   Longview News Journal on September                                               19 2008          The notice
   will     provide       informatiqn regarding the proposed                                   remedial action                   and the date              time and place of the
   meeting          which    is   also included            in this letter



   The      public meeting             for    the    Voda        Petroleum                 Inc       Proposed                State     Superfund            Site    is    scheduled           for

   Thursday          October        23 2008               in   the     Broadway Elementary                                   School        Cafeteria        200 East Broadway
   Gladewater          Texas        beginning             at    7 00pm               The public comment period begins                                        September          23      2008
   and ends October               23 2008            at   the close          of the public                    meeting            The public meeting                  is   legislative          in

   nature and         not     a contested            case       hearing         under the                Texas       Government                 Code        Chapter         2001         The
   meeting shall be held to discuss                            the proposed               remedial action                     receive        comments from the public on
   the proposed            remedial action                obtain additional                    information regarding                         the facility           and identify any
   additional        potentially       responsible parties



   According         to    Section     361.187            of   the   Solid Waste                Disposal            Act PRPs                have sixty        60 days following
   the public meeting on the proposed remedial action                                                    to   respond           in   writing to the          TCEQ with a Good
   Faith     Offer to fully        fund       or conduct             the proposed                remedjal action at the Site                               A Good         Faith    Offer       is

   defined at Section              335.342          5     of 30 Texas Administrative Code                                            A Good         Faith Offer           may     be   made
   by submitting            correspondence                to   the     TCEQ          Project             Manager which                     states    the    PRP's        intent to enter

   into     an Agreed Administrative                      Order with the                   TCEQ           to fully           fund     or conduct           a remedial action                  In

   accordance         with     the sixty           60     day statutory time frame the                                       Good      Faith    Offer must be received                        by
   the      TCEQ      Project      Manager no                  later   than          500 p m                  on December                  22 2008            If    after    the       public

   meeting on the proposed remedial action                                    the     TCEQ               determines that comments received at the public
   meeting will           not significantly              change        the proposed                  remedial action then                       the    TCEQ          will    again mail




            PO      Box 13087      •   Austin Texas 78711 3087                        •    512 239 1000                  •    Internet     address     www     tceq state txus
                                                                                 printed   on recycled    paper




                                                                                                                                                                             VODA_AR_00017952
BAXTER OIL SERVICE LTD
Page2
September          12    2008




notice    to all   identified             PRPs     to   confirm that December                     22    2008      is   the   date by which             the     Good    Faith

Offer to fully           fund    or perform                 the    proposed        remedial action           must be received                by the       TCEQ           If    a
Good     Faith     Offer        is    made by               aiJ    or   some    of the      PRPs        within this period                 those      parties     have        an

additional     60 days          to negotiate                an Agreed Administrative Order from the                                TCEQ      which        shall   include

a scope ofwork The TCEQ may not require an admission of liability in the Agreed Administrative
Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed
with an Administrative Order and may complete the remedial action utilizing state funds pursuant to

the Solid Waste           Disposal           Act            ln    such case     the    TCEQ        wiU seek to recover                aU   of   its   costs     including
oversight costs as set out in Section                               361.197     ofthe Solid Waste Disposal Act


Enclosed      is   the Proposed               Remedial Action                  Document            which     includes         the proposed            remedial action

alternatives        Based            on    consideration                of the requirements of the Solid Waste                             Disposal Act            and 30
Texas     Administrative              Code Chapter 335 Subchapters                                 K   and   S     the   TCEQ         is   proposing           excavation
with off site disposal for the                         on site       sutface and subsurface                soil    containing         contaminants              above    the

applicable cleanup              levels and the installation                       of reactive       biobarrier         wells with collection                 and analysis

of groundwater samples                      to    confirm that the reactive                     biobarrier     system        is   reducing the concentrations
of contaminants           in the          shaJlow groundwater at the Site                          The    reactive       biobarrier        system would remain

in   place until    it   is    demonstrated                 that   the concentrations of contaminants                         in   the groundwater              no longer
exceed their applicable cleanup                             standards         An     institutional      control        would be placed             on each property
which     overlies       groundwater contaminated above                                   the   cleanup      levels      and would          describe         the specific

area    ofthe contaminated groundwater plume on the affected                                               property           The     institutional          controls are

to   be secured          and implemented                     in    accordance         with the         Texas      Risk   Reduction           Program Rules and
would remain         in    place          until   it   is   demonstrated           that    concentrations          of contaminants              in    groundwater         no
longer    exceed         the    applicable              cleanup          levels       These       recommended             alternatives          are     the     most cost
effective    reasonable              and appropriate                remedy      to   address the Site


Correspondence            should          be sent to         my     attention     using     mail code        MC136           at the   address         listed   below and
must include the following                        assigned          reference  number specified in this letter SUP0670016                                             If you




                     L
have any questions              please contact               me    at    512 239 2501 or email at cboucher tceg state tx us


Sincerely




Carol Boucher            PG      Project          Manager
State   Lead Section
Remediation        Division
Texas    Commission on Environmental Quality


CB sr

Enclosures




                                                                                                                                                                      VODA_AR_00017953
                                                                                                                          o6
  f         UNITED STATES
            POSTIJL SERVICE



Date Produced        09 29 2008




TEXAS COMMISSION ON ENVIRONMENTAL QUALIT



The following is the delivery information for Certified Mail                        ™
                                                             item number 7108 2133 3934
5604 8300 Our records indicate that this item was delivered on 09 25 2008 at 12 32      in                          pm
BEAUMONT TX 77707 The scanned image of the recipient information is provided below



Signature    of   Recipient




Address of Recipient




Thank you    for   selecting the Postal Service for your mailing                     needs     If   you require additional
assistance    please contact            your   local   post   office    or Postal   Service   representitive




Sincerely




United   States Postal Service




The customer       reference       number shown below              is   not validated   or endorsed       by the United
States Postal Service         It   is   solely for customer            use



Customer Reference        Number           136




                                                                                                                    VODA_AR_00017954
                                                                   November           6    2000




CERTIFIED              MAIL           Z     444 998 482

RETURN RECEIPT REQUESTED

BAXTER S OIL SERVICE INC
Mr Sam Baxter
PO      Box 20255
RR 8 Box              50

Beaumont          TX         77720


Re          Voda Petroleum Inc                    Clarksville City Gregg                   County Texas


Dear    Mr   Baxter


This    letter    is   a notification          that   the Texas          Natural     Resource Conservation                        Commission           TNRCC
considers    BAXTER'S OIL SERVICE INC                                     to   be a Potentially Responsible Party PRP                           for    the   Voda
Petroleum Inc                site   located     at    211    Duncan Road              in Clarksville                City Gregg County              Texas           A
description       of the       site    is   included    with this letter             as   Enclosure            3    Potentially Responsible               Parties

include     current and former landowners                         and    facility    operators and persons                      who were      involved       in   the

generation        transport storage               processing or disposal                  of   solid    waste           at   the site   Person      is   defined

at     361.003 of the Texas Solid Waste Disposal Act                                      TEX HEALTH AND                     SAFETY     CODE   Chapter        361
to   mean   an individual corporation organization government                                       or governmental                 subdivision     or   agency
business trust partnership                     association          or other legal          entity        A        copy of pertinent       portions          of the

Texas Solid Waste Disposal Act and                           Title       30 ofthe Texas Administrative Code                             TAC       Subchapter

K    are enclosed              Also enclosed           for   your convenience                  is   a   list       of    persons which          the      TNRCC
considers        to    be PRPs       for this site      This letter is also a notification that the                               TNRCC       has conducted

a reasonable search for                PRPs


The    TNRCC           is   required      by the Texas Solid Waste Disposal Act                            to identify           and assess    facilities      that

may     constitute           an imminent          and   substantial             endangerment             to        public      health   and    safety     or the

environment            due   to   a release or threatened release                   of hazardous substances                       The Voda      site   has been

identified   as such a facility               therefore      it   is eligible       for listing on the Registry of State Superfund Sites

the     Registry               For    this    reason the          site   was referred          to   the Superfund                Cleanup Section by the
Superfund        Site       Discovery and Assessment Team                           ofTNRCC             for further            action




                                                                                                                                                             VODA_AR_00030601
BAXTER'S              OIL SERVICE INC
November         6    2000

Page2




NOTICE OF INTENT TO LIST                                  VODA PETROLEUM                                      INC SITE               ON THE REGISTRY                        OF
STATE SUPERFUND                          SITES


The     TNRCC              will    publish a notice         of     intent       to    list    the facility               on the       state    registry in the Texas

Register        on December              1 2000           and in the Longview                          News          Journal Gregg County                         Texas     on

December          1 2000               This    notice     provides         interested              parties           the       opportunity        to   submit written

comments         to   the     TNRCC           concerning          the proposed                listing         on the Registry                 and the       identification

of   PRPs       or attend a public meeting                  to    discuss the proposed listing                                      Under Section 361.184              a     of

the Texas Solid Waste Disposal                        Act     the        TNRCC          shall          publish notice                of the meeting in the Texas

Register       and    in    a newspaper            of general circulation                in       the county              in   which        the facility     is   located at

least   30days before the date of the public meeting                                          The        notice          shall      provide     the date      time place

of the meeting The                     TNRCC       has scheduled            a public meeting for                           7 00p m January                   11 2001         at

the City Hall Council                  Chambers         located at 631               US           80    in Clarksville City                   Texas




GOOD       FAITH OFFER                   TO COMPLETE                     RifFS



According        to   Texas Solid Waste Disposal Act                                   361.185 PRPs have 90 days following                                          the date

of     notice    of the          TNRCC's           intent to      list    the    facility          on the Registry                     not later than             5 00 p    m
March     1 2001            to    respond     in   writing to       TNRCC             with a           Good         Faith Offer to fully               fund or conduct

a Remedial        Investigation Feasibility Study                          RifFS             at   the site                A Good        Faith Offer is defined               at

30     TAC           335.342                 The purpose           of an RifFS                    is    to     determine              the     nature    and        extent    of

contamination associated                      with the     site     and evaluate                  potential              remedial       options         A     Good     Faith

Offer    may     be made by submitting correspondence                                        which           states       the PRP's           intent   to   enter into an

agreed administrative order with the                        TNRCC               to fully          fund or perform an RifFS



If   a Good Faith Offer                 is   received      by the        TNRCC               within           the    specified         time period           respondents

will    have    an additional            sixty       60    days      to   negotiate               an agreed              administrative order                 including a

scope ofwork               to fully      fund or conduct            an RifFS



If   a good     faith      offer to fully          fund    or conduct            an    RI FS            is    not     received         within     the specified            time

period the       TNRCC may                   complete      the RifFS utilizing                     state       funds           or   may     issue an administrative

order to require            the implementation               of an RifFS in accordance                                   with Texas Solid Waste Disposal
Act       361.272                 If   an agreed administrative                      order         is        not    successfully             negotiated           within    the

specified       time period            the    TNRCC        will    seek to recover                     all   of    its   costs including oversite costs                      as

set out in Texas            Solid      Waste       Disposal       Act       361.197




                                                                                                                                                                      VODA_AR_00030602
BAXTER S OIL SERVICE INC
November             6   2000
Page 3




REQUEST               FOR PRODUCTION OF FINANCIAL DOCUMENTS


In    accordance             with    Texas        Solid      Waste Disposal               Act         361.201    and       30      TAC           335.347           the

executive         director      of the       TNRCC           will   make        a determination whether             a    PRP       is   financially capable

of participating in a                  facility       investigation         or remediation              The     executive          director          may submit
requests         for the        production            of documents               by any person          who     has      or   may        have        information

relevant        to   the ability of a person to pay for or perform an investigation or a remedial action at a

State Superfund               site   under Texas Solid Waste Disposal Act                                361.182           Therefore            if   you believe
that   you are financially incapable                        of funding          or conducting         an RifFS the           TNRCC         hereby requests
the production of financial                       information        and documents               to   determine       whether           you are financially
capable of participating in a facility                           investigation          or remediation



The    requested financial                  information must be submitted to the                        TNRCC            not later than              5 00p m on
January         15 2001         to   allow     TNRCC             time to evaluate          the information          before the end of the                    90 day
good    faith        offer   period



BANKRUPTCY

If   you believe         that   your responsibility as a PRP has been Discharged                                    in   Bankruptcy           under      Title     11

United States Code                   USC       Section           524 or    if    you contend that        this   action        is   stayed pursuant            to   11

USC     Section          362 due       to   a pending         bankruptcy            proceeding        PLEASE IMMEDIATELY                              provide      us

with    certified        file   stamped copies of the following                           documents       from the bankruptcy                        court   where

your     bankruptcy             case        was    filed      so    that        these   pleadings       can    be     immediately             reviewed           and

appropriate           action taken                1    Petition      2      Schedules       and Statement of Affairs                      3     Matrix along

with the following               pleadings            if   applicable           4   Disclosure Statement                 5    Plan of Reorganization

6      Order Confirming Plan of Reorganization and                                        7     Discharge      Order          Please also furnish any

additional pleadings                 from the bankruptcy               court which            you or your attorneys believe                     to    be relevant

to   your   responsibilities for              the site



NOTICE FOR CHANGE                             IN   USE OF FACILITY


Please      be aware            that    according           to   Texas Solid Waste                  Disposal     Act          361.186           the    owner        or

operator        of the       site    must provide            the  TNRCC with a written notice of any proposed                                         substantial

changes         in the use of the site sixty                     60 days prior to any proposed change in use A                                        substantial

change      in   use includes but is not limited to such actions                                 as


            •            erection        of a building or other structure

            •             agricultural        activities

            •            paving for use               as   a roadway        or parking        lot

            •            creation        of a park or other public or private recreational                               facility       and

            •            any other activity which might                           interfere     with an RifFS




                                                                                                                                                             VODA_AR_00030603
BAXTER'S               OIL SERVICE INC
November           6    2000

Page4




In addition        to   the    above       please be aware that according               to    30   TAC       335.346     a    no person        may
perform        any      partial      or    total    removal     activities    at    State     Superfund        sites   or   conduct          on site
sampling           testing      or      preliminary         investigations     of       any    type    without     the      advance          written

authorization of          TNRCC

REVIEW AND COPIES OF SITE RECORDS

Interested     parties        may    review        site   records during normal business hours at



          Texas Natural Resource Conservation                          Commission
          Central Records

          Building         D Room           190

          12100 Park 35 Circle

          Austin Texas 78753



Building       D   of the      TNRCC         contains a copy service which is available                     for copying      file   information

for a fee which           may be          billed to the requestor            Due   to   manpower           limitations   TNRCC          is   unable

to   provide    copies of        file     material in response to telephone              calls



MAILING ADDRESS                         OF TNRCC PROJECT                MANAGER

The    mailing address            of the Superfund            Cleanup Section Project Manager for the Voda Petroleum
Site is



          Ms       Carol      Boucher        MC      143
          Superfund Cleanup Section

          Texas         Natural      Resource Conservation             Commission
          P 0 Box             13087

          Austin Texas 78711 3087



If    you have any questions concerning                       this   matter please       call   me    at    512 239 2493


Sincerely




Carol Boucher            Project        Manager
Superfund Cleanup Section



cc        Mr       Garrett Arthur            TNRCC          Legal



Enclosure       1       List   of PRPs

Enclosure      2        Texas     Solid Waste Disposal               Act Sections 361.182 361.184 361.185 361.186

                        361.197           361.271         and 30 Texas Administrative                 Code Subchapter               K   335.342
                        335.346 and 335.347

Enclosure      3        Legal Description of the site



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                                                                                                                                                                                                                                                                                                                                                                                  VODA_AR_00030605
                                                                                                                                       1 17251
Buddy Garcia Chairman

Larry    R   Soward Commissioner
                                                                                                                                  5            Of rJO C
Bryan    W    Shaw Ph         D Commissioner
Mark    R    Vickery      PG     Executive     Director




                               TEXAS COMMISSION ON ENVIRONMENTAL                                                                  QUALITY
                                                Protecting    Texas   by   Reducing         and Preventing Pollution

                                                                           June      2    2009




    BAXTER OIL SERVICE INC
    POBOX20255
    BEAUMONT TX 77720 0255

    Re             Voda Petroleum Inc Proposed                   State     Superfund           Site Clarksville             City Gregg County Texas

                   Extension of Deadline             for   Response Concerning                 Good         Faith   Offer



    DEAR          SIR    I   MADAM

    The Texas Commission on Environmental Quality                                      TCEQ            is   extending       the deadline         for   making   a   good
    faith     offer      to   fully   fund     or   perform the       proposed         remedial action               at     the   above   referenced       site      The
    deadline        is   extended thirty        30    days from the expiration of the prior deadline therefore the                                      new   deadline

    is   Monday          June   22 2009


    Correspondence              to the      TCEQ    regarding   the    Voda        site   should be sent to            my attention            using mail code      MC
    136      at   the address listed below           and must include the following                          assigned reference                number    specified    in

    this      letter          SUP0670016             If    you have      any       questions            please      contact       me      t•    5•12 239 2501         or

    cboucher             tceq state tx us



                   Texas Commission on Environmental Quality
                   PO        Box 13087
                   MC 136
                   Austin      TX 78711         3087



    Sincerely




    Carol Boucher              PG
    Project       Manager        SSDAP         Superfund     Section

    Remediation              Division




              PO     Box 13087          •   Austin Texas 78711 3087            •   512 239 1000              •   Internet   address   www tceq state tx us
                                                                           prmted on recycled pilper




                                                                                                                                                                    VODA_AR_00033053
Buddy Garcia Chairman

Larry   R   Soward Commissioner
Bryan    W   Shaw Ph            D Commissioner
Mark    R   Vickery         P   G     Executive       Director




                                    TEXAS COMMISSION                                        ON ENVIRONMENTAL                                               QUALITY
                                                            Protecting Texas            by Reducing                  and Preventing            Pollution


                                                                                            March           2    2009


    BAXTER OIL SERVICE INC
    BAXTER OIL SERVICE INC
    P 0 BOX 20255
    BEAUMONT TX 77720 0255

    Re         Voda Petroleum Inc Proposed State Superfund Site                                                                     Clarksville        City Gregg County Texas
               Extension of Deadline for Response Concerning                                                           Good          Faith     Offer


    DEAR       SIR      I    MADAM

    The Texas Commission on                                 Environmental               Quality             TCEQ               is   extending the            deadline for making a good
    faith    offer      to      fully    fund       or   perform        the       proposed                  remedial               action      at   the    above referenced              site        The
    deadline         is     extended               ninety        90    days from                 the       expiration               of   the    prior      deadline        therefore      the        new
    deadline       is       Friday           May 21 2009                 As stated                in       prior      correspondence                      potentially      responsible      parties

        PAPs    are provided                   by     statute     the    opportunity                  to    make a good faith offer to fully                            fund    or perform the
    proposed remedial                        action    at   the site         If   a good          faith     offer is made by all or some of                             the   PAPs       before       the

    new      deadline            of     May 21 2009                   those       parties         will      have          an        additional       sixty      60    days     to   negotiate          an
    Agreed Administrative                          Order     with      the    TCEQ           to       fully     fund          or    perform         the selected        remedial action                As
    part of    the Agreed Administrative                              Order the PAPs must also reimburse the TCEQ's expendi ures                                                             for      the
    site in   accordance                 with      Section 361         188        of   the Texas Health and Safety                                   Code

    This     extension              is       granted        at   the    request             of    the         Voda            Site       Group        Group a           group       of   potentially

    responsible              parties           PAPs          voluntarily          formed              for     the      purpose            of    negotiating       a settlement            and        final


    administrative               order with the             TCEQ         As stated               in    the Texas Administrative                            Code and        underscored in this

    correspondence                      the    executive          director's           ED         goal        in      negotiating            settlements         is   to    obtain a complete

    remedial       investigation                   and      remedial      action                      by      PAPs or to collect                      from      PAPs 100        percent         of    the
    agency's cost               s        Tex Admin Code                           335.351             a       The ED anticipates                       working closely with the Group

    to   achieve        this      goal and encourages                    all      PAPs           to join       the Group and participate in the process                                    The law
    affords     several important                      advantages             and       opportunities                   to     cooperative            parties    and       participating     PAPs
    For more information about the                                Group           please contact                      Steve         Morton Moltz Morton                       O'Toole       LLP at
        512 439 2172 orsmorton mmotlaw com

    Correspondence                      to   the    TCEQ         regarding the               Voda           site      should be sent to                    my   attention      using mail code
    MC 136         at       the    address            listed     below and              must           include                the    following            assigned reference              number
    specified         in        this     letter          SUP0670016                    If   you       have           any questions please contact                             me    at   512 239
    2501      or   cboucher tceg state txus

    Sincerely




         lfiL
    Carol Boucher                 P     G      Project Manager

    State     Lead Section
    Remediation                 Division




               PO           Box 13087          •   Austin Texas 78711 3087                        •    512 239 1000                  •   Internet address       www tceq state tx us
                                                                                            printed    on recycled    paper




                                                                                                                                                                                            VODA_AR_00033054
Buddy    Garcia Chairman

Larry   R Soward                  Commissioner

Bryan   W      Shaw Ph              D Commissioner
Mark    R     Vickery             PG         Executive      Director




                                             TEXAS COMMISSION ON ENVIRONMENTAL                                                                                  QUALITY
                                                                 Protecting       Texas      by   Reducing            and Preventing                Pollution


                                                                                                 March            2   2009


    BAXTER OIL SERVICE INC
    SAM L BAXTER
    5070 IRVING ST
    BEAUMONT TX 77705 5231

    Re              Voda Petroleum Inc Proposed State Superfund Site                                                                    Clarksville         City Gregg County Texas
                    Extension of Deadline for Response Concerning                                                          Good          Faith      Offer


    DEAR            SIR       I   MADAM

    The Texas Commission                                   on Environmental                  Quality              TCEQ             is   extending the deadline for making a good

    faith      offer          to    fully         fund     or   perform      the       proposed                   remedial          action          at   the     above referenced                site        The
    deadline             is       extended               ninety       90    days from                 the        expiration             of   the     prior      deadline            therefore     the        new
    deadline             is       Friday           May 21 2009                As stated                in        prior     correspondence                      potentially          responsible      parties

        PAPs            are provided                 by    statute     the    opportunity                   to    make a good                  faith     offer to    fully      fund    or perform the
    proposed remedial action                                at    the site        If   a good          faith       offer     is    made by           all   or   some   of       the   PAPs       before the
    new        deadline                 of    May 21 2009                 those        parties         will        have       an        additional         sixty     60        days    to   negotiate          an
    Agreed Administrative                                Order     with     the    TCEQ           to       fully      fund        or perform the                selected        remedial action                As
    pc   rt   of    the Agreed Administrative                             Order the PAPs must also reimburse the TCEQ's expenditures                                                                 for      the
    site      in   accordance                     with   Section 361.188               of   the Texas Health and Safety                                    Code

    This       extension                     is    granted       at   the    request             of    the         Voda           Site       Group         Group           a    group       of   potentially

    responsible                    parties           PAPs         voluntarily          formed              for     the     purpose             of    negotiating       a settlement               and        final


    administrative                   order with the               TCEQ        As stated               in    the Texas Administrative                            Code and            underscored         in   this

    correspondence                            the    executive        director's            ED         goal        in     negotiating            settlements          is       to   obtain a complete

    remedial             investigation                   and remedial action                                by     PAPs or to collect                      from      PAPs 100              percent      of    the

    agency's cost                   s             Tex Admin Code                       335.351              a      The ED anticipates                       working closely with the                    Group
   to    achieve              this      goal and encourages                   all      PAPs           to join         the Group and participate                       in       the process         The law
    affords         several important                       advantages             and opportunities                        to     cooperative             parties    and        participating       PAPs
                                 Group please
    For more information about the                                                                     contact            Steve         Morton Moltz Morton                           O'Toole        LLP        at

       512 439 2172 or smorton mmotlaw com

    Correspondence                            to   the    TCEQ        regarding the               Voda            site     should be sent to                    my   attention         using     mail code

    MC 136              at        the    address           listed     below        and       must            include              the    following             assigned reference                 number
    specified             in       this           letter        SUP0670016                  If   you        have          any questions please contact                                me    at   512 239
   2501            or   cboucher tceg state txus




                                              L
    Sincerely




    Carol Boucher                        PG         Project Manager
    State          Lead Section
    Remediation Division




                    PO        Box 13087              •   Austin Texas 78711 3087                       •    512 239 1000                 •   Internet address        www tceq state tx us
                                                                                                  printed   on recycled   pnper




                                                                                                                                                                                                   VODA_AR_00033055
Buddy

Larry   R
         Garcia Chairman

             Soward Commissioner
                                                                                                                                                     SC35
Bryan    W    Shaw Ph D Commissioner                                                                                                                           c7   oo
Mark    R   Vickery P G        Executive    Director



                              TEXAS COMMISSION ON ENVIRONMENTAL                                                                  QUALITY
                                               Protecting Texas         by Reducing               and Preventing      Pollution


                                                                         January          5       2009




    BAXTER OIL SERVICE INC
    BAXTER OIL SERVICE INC
    POBOX20255
    BEAUMONT TX 77720 0255

    Re          Voda Petroleum Inc Proposed                      State   Superfund                Site

                SUP0670016


    Dear Sir or       Madam

    You      are invited     to   a settlement      conference        in the referenced               matter as follows



                Date         Monday         February        2   2009

                Time         1 00 p m
                Place        TCEQ         Austin Headquarters

                             Bldg     E Agenda           Room E201S
                             12100 Park 35 Circle               See attached             map
                             Austin Texas 78753


    You may         participate     by conference         call if   you prefer however                      please   be aware that the       call   is   limited to   125
    participants       due to technical        constraints




                Dial in      number                                1 866 456 0016

                                                                    Expect an         8      to     10 second        delay before connection              is   made
                Conference room number                                5033661

    The purpose of           this   meeting    is   to   facilitate    the forming of a                    PRP   potentially      responsible       party group and
    the     beginning       of negotiations      among       the    PRPs toward a                  settlement      agreement with the Texas Commission

    on      Environmental         Quality      Copies      of relevant     evidence                will    be available     or   can   be ordered         Please try to

    attend     in   person or by phone or send a representative



    Thank you         for   your cooperation         in this    matter



    Sincerely




    Carol Boucher            PG      Project   Manager
    State     Lead Section
    Remediation         Division




               PO     Box 13087       •   Austin Texas 78711 3087             •     512 239 1000             •   Internet   address    www   tceq state tx us
                                                                          printed   on recycled    paper




                                                                                                                                                               VODA_AR_00033056
Buddy    Garcia Chairman

Larry   R    Soward Commissioner

Bryan    W     Shaw Ph         D    Commissioner

Mark    R    Vickery      PG       Executive           Director




                                TEXAS COMMISSION ON ENVIRONMENTAL                                                                                            QUALITY
                                                       Protecting Texas by                 Reducing           and Preventing                   Pollution


                                                                                     December              12      2008




    BAXTER OIL SERVICE LTD
    POBOX20255
    BEAUMONT TX 77720 0255

    Re            Voda         Petroleum             Inc         Proposed           State      Superfund                 Site       Clarksville             City        Gregg County Texas
                  Confirmation                of Sixty           60     Day Good            Faith       Offer Period to Conduct                              Remedial           Design Remedial
                  Action           RD RA

    Dear Sir or          Madam

    On       October          23 2008           the        Texas        Commission on Environmental Quality                                                  TCEQ            conducted           a public
    meeting        to present the              proposed           remedial actions for the Voda Petroleum                                              Inc     Proposed State Superfund

    Site       Site           A TCEQ            letter         dated        September               12 2008              was        sent        to    notify      all       identified       potentially

    responsible          parties         PRPs         for the Site            about a public meeting to provide notice of the date of the statuary

    Good        Faith     Offer period                and        to   provide a copy                of the        Proposed            Remedial               Action          Document            PRAD
    which       described the proposed                         remedial alternatives                  available           for the site




    The public comment period                              for   the proposed remedial action ended on October                                                    23 2008            The     TCEQ         has
    reviewed        and        considered            all    public comments a summary of which                                                 is   enclosed        and determined                that    no

    modification              to   the    proposed               remedial alternatives                     is     needed              Accordingly                 the        TCEQ         has    selected

    excavation           with      offsite      disposal              for   the    contaminated                  soil     and       enhanced            bioremediation using                      reactive

    biobarriers for the             contaminated                  groundwater             as the final            remedial           actions          for    the Site



    This       letter    serves      to       confirm          the     dates       for   the    Good          Faith       Offer           period        as    established            in   the    TCEQ's
    September            12 2008          letter           As described             in that letter               any Good Faith Offer must be received                                       in writing

    by the TCEQ's Project Manager                                     no    later than         5 00p m             on     December                   22 2008            However            a request       to

    extend the Good Faith Offer period has been                                             received             and granted               by the       TCEQ                Therefore        any Good
    Faith      Offer      must be received                       in    writing       by    the      TCEQ's               Project          Manager            no    later      than        5 00 p m        on
    February        20 2009


    According           to     Section        361.187            of the       Texas Health              and Safety              Code                Code      PRPs have              sixty       60   days
    following           the    public meeting on                      the   proposed           remedy            to   respond             in    writing       to the         TCEQ         with a Good

   Faith       Offer      to fully        fund       or     conduct          the    proposed           remedial actions                        at the    Site           A   Good      Faith      Offer     is


    defined       at Section         335.342               5   of 30 Texas Administrative                             Code           If    a Good Faith Offer                   is    made by some
    or   all    of the        potentially        responsible                 parties      before        the       extended            deadline           of February                20 2009           those

    parties      have     up to an additional                     sixty       60     days      to negotiate               an Agreed                 Administrative             Order pursuant              to

    Section       361.188          of the      Code            to fully       fund perform              the      selected           remedial actions                    As    part    of the Agreed
    Administrative                 Order         the        potentially             responsible             parties         must               also     reimburse             the     TCEQ's           past

    expenditures              for the    Site

   If    a   Good        Faith     Offer        is    not      received           within       the     specified           time       period            the    TCEQ           may complete                the

    remedial        actions         utilizing          state          funds    and pursue              cost        recovery           actions           against         responsible             parties    to

    recover       all   response costs pursuant to Section                                361.197 for the                  Code




               P O Box         13087      •    Austin Texas 78711 3087                         •    512 239 1000                •   Internet          address      www        tceq state tx us
                                                                                          prinlcd   on rccydcd   paper




                                                                                                                                                                                                    VODA_AR_00033057
BAXTER          OIL SERVICE             LTD
Page 2
December         12   2008




The     TCEQ      has prepared an updated               PRP     contact     information   spreadsheet        If   you     would     like    a copy of
this    spreadsheet      please contact          the   TCEQ       Project    Manager     and   a copy   will      be    sent to   you      via    regular

mail email or facsimile                 Please   be sure to include          a current   mailing address          email address or facsimile
telephone number with your request



As     the   TCEQ     Project   Manager       for the    Site   my     contact   information is


Carol Boucher           PG
State    Lead Remediation          Section

Remediation         Division

MC 136
Texas        Commission on Environmental                Quality

P O Box         13087

Austin Texas       78711 3087
Facsimile         512 239 2303
Email cboucher tceq state tx us


Correspondence           should    be    sent to   my    attention      using    mail code     MC 136   at the         address    listed    above       and

must include the following                assigned       reference        number    specified    in this   letter         SUP0670016               If   you

have     any questions          please    do not       hesitate   to   contact    me   by telephone     at     512 239 2501                or    email at

cboucher tceq           state   txus




                          L
Sincerely




Carol        Boucher    PG      Project   Manager
State    Lead Section
Remediation         Division
Texas Commission on Environmental Quality


CB     sr




Enclosure




                                                                                                                                                    VODA_AR_00033058
Buddy    Garcia Chairman

Larry   R   Soward Commissioner
Bryan    W     Shaw Ph        D        Commissioner

Mark    R   Vickery       PG           Executive         Director




                                  TEXAS COMMISSION ON ENVIRONMENTAL                                                                                               QUALITY
                                                          Protecting Texas by               Reducing               and Preventing                     Pollution


                                                                                      December                  12 2008



    BAXTER OIL SERVICE LTD
    MR SAM BAXTER PRESIDENT                                                REGISTERED AGENT
    5070 IRVING                   ST

    BEAUMONT TX                          77705 5231


    Re            Voda        Petroleum               Inc      Proposed              State           Superfund                  Site       Clarksville            City Gregg County                     Texas
                  Confirmation                   of Sixty      60     Day Good                  Faith          Offer Period to Conduct                             Remedial          Design Remedial
                  Action          RD RA

    Dear       Sir or    Madam

    On      October          23 2008               the     Texas      Commission                         on   Environmental                      Quality           TCEQ          conducted             a public

    meeting        to present the                 proposed remedial actions                              for the        Voda Petroleum Inc Proposed                                       State    Superfund

    Site       Site          A TCEQ                letter     dated       September                      12 2008                was        sent       to     notify      all    identified        potentially

    responsible          parties         PRPs            for the Site      about a public meeting to provide                                                 notice     of the date of the statuary

    Good        Faith     Offer         period and             to   provide a copy                        of the Proposed                    Remedial              Action        Document              PRAD
    which       described the proposed remedial alternatives                                                  available          for the site



    The      public     comment period                     for the    proposed             remedial action ended on October                                           23 2008 The TCEQ                         has

    reviewed           and considered                all    public       comments a summary                                     of   which            is   enclosed        and determined               that   no
    modification             to    the       proposed          remedial              alternatives               is      needed               Accordingly                  the    TCEQ           has    selected

    excavation           with      offsite          disposal        for   the        contaminated                      soil      and       enhanced              bioremediation using reactive
    biobarriers for the                contaminated             groundwater                as        the      final     remedial actions for the Site



    This       letter   serves          to       confirm      the    dates       for    the           Good        Faith           Offer          period as established                     in   the    TCEQ's
    September           12 2008              letter        As described              in that letter                    any Good Faith Offer must be received in writing
    by the       TCEQ's           Project          Manager          no    later      than       5 00p m                     on December                    22 2008             However           a request to

    extend the Good Faith                         Offer period            has been           received                  and granted               by        the   TCEQ           Therefore any Good
   Faith       Offer      must         be        received      in   writing           by    the           TCEQ's                Project          Manager           no     later than            5 00 pm        on
   February         20       2009


    According           to    Section            361.187       of the Texas Health and                                  Safety         Code            Code         PRPs        have       sixty       60   days

   following            the public               meeting      on the propos d remedy                                   to   respond              in    writing      to    the    TCEQ           with   a Good
   Faith       Offer to fully                fund    or conduct            the       proposed                 remedial actions                    at       the   Site       A   Good        Faith Offer         is



   defined        at    Section         335.342           5   of 30 Texas Administrative                                    Code            If    a Good Faith Offer                  is   made by some
    or   all    of the       potentially             responsible          parties          before              the      extended             deadline             of February             20 2009           those

    parties      have up to an additional sixty                            60         days to negotiate                          an Agreed                 Administrative           Order pursuant              to


    Section       361.188          of the         Code        to fully     fund perform the                            selected            remedial actions                    As   part    of the      Agreed

   Administrative                  Order            the     potentially              responsible                  parties            must             also       reimburse          the     TCEQ's           past

   expenditures              for the         Site




               PO      Box    I   3087       •    Austin      Texas   787    I   I    3087           •    512 239 1000                 •   Internet address               www       tceq state tx us
                                                                                           p1   in   led on rer ydcd    paper




                                                                                                                                                                                                            VODA_AR_00033059
BAXTER             OIL SERVICE            LTD
Page 2

December           12 2008




If   a Good         Faith    Offer   is   not   received     within      the    specified   time    period the          TCEQ   may complete             the

remedial actions             utilizing     state   funds    and pursue          cost   recovery     actions    against      responsible      parties     to

recover      all   response costs pursuant to Section 361.197 for the                       Code


The     TCEQ        has     prepared an updated           PRP     contact      information spreadsheet             If   you would    like    a copy of
this    spreadsheet          please contact        the   TCEQ       Project     Manager     and a copy        will      be sent to you      via   regular

mail email          or   facsimile        Please   be sure to include           a current   mailing address             email address or facsimile

telephone          number with your request


As     the   TCEQ        Project   Manager      for the    Site     my   contact   information is




Carol Boucher             PG
State    Lead Remediation             Section

Remediation          Division

MC 136
Texas Commission on Environmental                          Quality

PO       Box 13087
Austin Texas         78711 3087
Facsimile           512 239 2303
Email        cboucher         tceg state txus



Correspondence              should    be sent to      my   attention      using    mail   code    MC 136      at the     address   listed    above      and

must include the following                   assigned      reference        number      specified    in this    letter      SUP0670016             If   you

have     any questions             please    do not      hesitate   to   contact       me by   telephone      at     512 239 2501           or   email   at


cboucher           tceg state txus




                              L
Sincerely




Carol Boucher             PG       Project   Manager
State    Lead Section
Remediation          Division
Texas Commission on Environmental                          Quality


CBsr

Enclosure




                                                                                                                                                     VODA_AR_00033060
Buddy Garcia Chairman

Larry   R   Soward Commissioner
Bryan    W     Shaw Ph          D Commissioner
Mark    R   Vickery        PG        Executive         Director



                                 TEXAS COMMISSION ON ENVIRONMENTAL                                                                                        QUALITY
                                                        Protecting     Texas       by   Reducing                and Preventing                  Pollution


                                                                                December                     12 2008



    BAXTER OIL SERVICE LTD
    MR SAM BAXTER PRESIDENT                                             REGISTERED                           AGENT
    RR 8 BOX 50
    BEAUMONT TX 77720

    Re            Voda          Petroleum          Inc       Proposed          State        Superfund                       Site         Clarksville      City Gregg County Texas
                  Confirmation                 of Sixty      60     Day Good             Faith          Offer Period to Conduct                             Remedial             Design Remedial
                  Action            RD RA

    Dear       Sir   or   Madam

    On      October            23   2008         the     Texas     Commission on Environmental                                                 Quality      TCEQ              conducted          a public

    meeting to present the proposed                           remedial actions for the Voda Petroleum                                                   Inc     Proposed             State    Superfund
    Site       Site            A TCEQ            letter     dated      September                12 2008 was                              sent    to    notify      all       identified       potentially

    responsible           parties         PRPs         for the Site     about a public meeting to provide                                              notice    of the date of the statuary

    Good        Faith      Offer period and to provide                         a    copy of the Proposed                                   Remedial         Action            Document           PRAD
    which       described           the    proposed remedial alternatives                              available               for   the site


    The public comment period                            for the    proposed            remedial action ended on October                                         23 2008              The     TCEQ       has

    reviewed           and considered              all    public     comments               a     summary of which                              is   enclosed        and determined               that   no
    modification               to   the    proposed          remedial alternatives                           is       needed               Accordingly              the       TCEQ         has   selected

    excavation            with      offsite       disposal        for the     contaminated                           soil     and        enhanced        bioremediation                using     reactive

    biobarriers for the               contaminated            groundwater               as the final                  remedial            actions      for the      Site



    This       letter     serves      to    confirm         the    dates      for   the         Good            Faith          Offer period as established                            in   the   TCEQ's
    September       12 2008 letter As described                                in that letter                     any Good Faith Offer must be received in writing
    by the       TCEQ's Project Manager no later                               than        5 00p m                     on      December               22 2008            However            a request to
    extend       the      Good      Faith        Offer period          has been received                          and granted                  by the    TCEQ                Therefore        any Good
    Faith      Offer       must       be       received      in   writing       by      the       TCEQ's                      Project          Manager      no      later      than        5 00 p m      on

    February         20        2009


    According             to    Section        361.187       of   the Texas Health                      and Safety                   Code            Code     PRPs have               sixty      60   days

    following           the public meeting                  on the proposed                 remedy                   to     respond in writing                to    the       TCEQ         with a Good

    Faith      Offer to fully              fund     or    conduct       the    proposed                remedial actions                         at the    Site           A   Good      Faith     Offer    is


    defined       at    Section       335.342           5   of 30 Texas         Administrative                            Code            If   a Good Faith Offer                is    made by some
    or   all    of the         potentially         responsible         parties          before          the           extended             deadline       of February                20 2009          those

    parties      have up to an                 additional     sixty     60      days to negotiate                             an    Agreed           Administrative             Order pursuant            to

    Section       361.188           of the       Code       to fully    fund perform                    the          selected            remedial actions                As    part    of the Agreed

    Administrative                  Order         the     potentially         responsible                      parties             must         also     reimburse             the     TCEQ's          past

    expenditures               for the     Site




               P O Box          13087      •    Austin Texas 78711 3087 • 512 239 1000                                               •   Internet      address      www        tceq state txus
                                                                                        prinlcd   on   rcL   ycled    rmpcr




                                                                                                                                                                                                   VODA_AR_00033061
BAXTER              OIL SERVICE             LTD
Page 2

December 12 2008




If   a Good         Faith    Offer    is    not    received       within      the    specified     time period      the      TCEQ         may complete              the

remedial        actions       utilizing      state    funds      and pursue          cost   recovery     actions    against         responsible          parties     to

recover       all   response costs         pursuant to Section 361.197 for the                    Code


The     TCEQ         has prepared an updated                 PRP       contact      information spreadsheet             If   you would           like    a copy of
this    spreadsheet          please contact          the    TCEQ        Project      Manager       and a copy      will      be    sent   to    you via regular

mail email or facsimile                     Please    be sure to include             a current     mailing address           email address or facsimile
telephone           number    with    your request



As     the   TCEQ      Project      Manager        for the      Site   my     contact   information is



Carol        Boucher    PG
State    Lead Remediation              Section

Remediation           Division
MC 136
Texas Commission on Environmental Quality

PO      Box 13087
Austin Texas          78711 3087
Facsimile            512 239 2303
Email cboucher tceq state txus


Correspondence              should     be sent to          my   attention      using    mail     code   MC 136     at the         address      listed    above      and

must include the following                     assigned         reference        number      specified    in this    letter          SUP067001                 If   you

have     any questions              please    do     not   hesitate      to   contact       me   by telephone      at     512       239 2501            or   email at
cboucher tceq               state   tx us


Sincerely




         ys L
Carol Boucher           P    G      Project    Manager
State    Lead Section
Remediation           Division
Texas Commission on Environmental Quality



CBsr

Enclosure




                                                                                                                                                                 VODA_AR_00033062
Buddy    Garcia Chairman

Larry   R    Soward Commissioner

Bryan    W     Shaw Ph        D     Commissioner

Mark    R   Vickery       PG        Executive         Director



                                  TEXAS COMMISSION ON ENVIRONMENTAL                                                                                    QUALITY
                                                       Protecting Texas by                Reducing              and Preventing               Pollution


                                                                                    December 12 2008




    BAXTER OIL SERVICE LTD
    MR SAM BAXTER PRESIDENT                                             REGISTERED                          AGENT
    4828 N SHEPPARD
    HOUSTON TX 77018 2216

    Re           Voda         Petroleum           Inc       Proposed              State       Superfund                   Site       Clarksville      City Gregg                County      Texas
                 Confirmation                 of Sixty      60     Day Good                Faith          Offer Period to Conduct                        Remedial         Design Remedial
                 Action            RDIRA

    Dear       Sir or    Madam

    On      October          23 2008            the     Texas     Commission on Environmental                                              Quality     TCEQ            conducted           a public

    meeting       to present         the proposed               remedial actions for the Voda Petroleum                                             Inc     Proposed State              Superfund

    Site       Site        A TCEQ Jetter                   dated       September                  12 2008 was                        sent    to    notify     all    identified        potentially

    responsible          parties PRPs for                  the   Site    about a public meeting                              to      provide       notice     of the date of the statuary

    Good        Faith     Offer      period        and      to   provide a copy                     of the        Proposed             Remedial          Action        Document            PRAD
    which described                the   proposed          remedial alternatives                         available         for the         site




    The      public     comment period                  for the    proposed              remedial action ended on October                                   23 2008             The     TCEQ       has
    reviewed           and    considered          all    public comments a summary of which                                                 is   enclosed       and determined              that   no

    modification              to   the    proposed          remedial alternatives                           is    needed               Accordingly             the     TCEQ          has   selected

    excavation           with      offsite      disposal         for   the        contaminated                   soil      and       enhanced        bioremediation using                  reactive

    biobarriers for the              contaminated            groundwater                 as the          final    remedial actions for the Site



    This       Jetter   serves       to       confirm      the    dates       for    the          Good          Faith      Offer period as established                          in   the   TCEQ's
    September      12 2008 letter As described                                     in that letter                any Good Faith Offer must be received in writing
    by the      TCEQ's Project Manager no later                                    than     5 00p m                   on December                22 2008            However           a request to

    extend the Good Faith Offer period                                 has        been     received              and granted by the                  TCEQ            Therefore any Good
    Faith      Offer      must       be       received      in    writing          by     the       TCEQ's                Project          Manager       no    later     than        5 00 p m      on

    February        20 2009


    According           to    Section         361.187       of the Texas                Health            and Safety             Code         Code        PRPs       have       sixty      60   days

    following           the   public meeting on the proposed                                 remedy              to   respond              in writing to       the     TCEQ          with a Good
    Faith      Offer to fully             fund    or     conduct        the       proposed               remedial actions                   at the   Site        A   Good        Faith     Offer    is


    defined       at    Section      335.342           5   of    30 Texas Administrative                              Code            If   a Good Faith Offer              is   made by some
    or   all    of the        potentially         responsible           parties          before           the     extended            deadline        of February              20 2009          those

    parties      have up to an additional sixty                          60        days to negotiate an Agreed Administrative                                            Order pursuant             to

    Section       361.1       88 of the        Code        to fully     fund perform                      the     selected           remedial       actions         As   part    of the     Agreed

    Administrative                 Order         the     potentially              responsible                parties         must           also     reimburse           the     TCEQ's          past

    expenditures             for the     Site




               PO      Box    I   3087    •    Austin Texas 7871              I    3087       •     512 239 1000                 •   Internet address          www       tceq state tx us
                                                                                          prinlcd   on   nxydcd   parer




                                                                                                                                                                                                VODA_AR_00033063
BAXTER              OIL SERVICE           LTD
Page 2
December 12 2008




If   a Good         Faith   Offer    is   not     received    within      the    specified   time period         the    TCEQ         may complete               the

remedial actions             utilizing     state    funds    and    pursue       cost   recovery    actions    against         responsible          parties      to

recover       all   response costs        pursuant to Section 361.197 for the                Code


The     TCEQ         has prepared an updated                PRP    contact      information spreadsheet            If   you would           like    a copy       of

this    spreadsheet         please contact         the   TCEQ       Project      Manager     and   a   copy   will      be    sent   to   you      via   regular

mail email or facsimile                   Please    be sure to include           a current   mailing address            email address or facsimile

telephone number with your request



As     the   TCEQ      Project   Manager          for the   Site    my    contact   information is



Carol        Boucher    PG
State    Lead Remediation            Section

Remediation           Division

MC 136
Texas Commission on Environmental Quality
PO      Box 13087
Austin Texas           78711 3087
Facsimile            512 239 2303
Email cboucher tceq                  state   tx us



Correspondence              should   be sent to my attention               using    mail   code    MC 136     at the         address      listed    above      and

must include the following                   assigned        reference       number       specified    in this   letter         SUP0670016                If   you

have     any questions           please      do    not   hesitate    to   contact       me by telephone       at     512 239 2501                  or   email    at

cboucher tceq           state tx     us




                             L
Sincerely




Carol        Boucher    P   G    Project     Manager
State    Lead Section
Remediation           Division

Texas Commission on Environmental                           Quality


CB     sr




Enclosure




                                                                                                                                                            VODA_AR_00033064
