      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00277-CV



                 Northeast Neighbors Coalition and TJFA, L.P., Appellants

                                                v.

                     Texas Commission on Environmental Quality and
                   BFI Waste Systems of North America, L.L.C., Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. D-1-GN-09-004113, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is a suit for judicial review of appellee Texas Commission on

Environmental Quality’s (TCEQ) order modifying appellee BFI Waste Systems of North America,

L.L.C.’s solid-waste-disposal permit. Appellant TJFA, L.P. appeals from the district court’s order

striking its intervention in the case, and appellant Northeast Neighbors Coalition (NNC) appeals

from the district court’s judgment that TCEQ’s grant of BFI’s permit amendment was supported by

substantial evidence in the record. We will affirm the district court’s judgment.


                                        BACKGROUND

               BFI owns and operates the Sunset Farms landfill in east-central Travis County. The

Sunset Farms landfill, which has been permitted as a municipal solid-waste landfill since 1982,

covers approximately 350 acres, with a waste-disposal footprint of 250 acres. It is adjacent to

the Austin Community landfill operated by Waste Management of Texas and is located in
Austin’s “Desired Development Zone.”1 The predominant land use within a mile of the landfill is

characterized as “open,” but 11% of the use is residential. In fact, appellant NNC’s members include

persons living in residential developments near the landfill. Appellant TJFA, a real estate investment

company, owns property near the landfill.

               In late 2005, BFI applied to TCEQ for an amendment to its Sunset Farms permit,

seeking to increase the height of allowable waste disposal by 50 to 75 feet—i.e., a vertical expansion

of the landfill—and to continue operating the landfill 24 hours per day, seven days per week (24/7).2

Because TJFA, NNC, and other parties, including the City of Austin, opposed BFI’s proposed

permit amendment and requested contested-case hearings on the matter, TCEQ referred the matter

to the State Office of Administrative Hearings. After conducting the contested-case hearing, the

administrative law judge (ALJ) recommended that TCEQ approve BFI’s application.3 TCEQ

ultimately adopted the ALJ’s recommendations and issued an order in September 2009 granting

BFI’s application for vertical expansion.4




       1
         “Desired Development Zone” is an area that City of Austin planners have designated as
the most appropriate and preferred location for growth.
       2
       The height limit under the 1982 permit was 720 feet. The 2006 amendment sought a
maximum height of 770 feet for the eastern part of the landfill and 795 feet for the western part.
       3
          Initially, the ALJ’s proposal for decision rejected BFI’s request to operate 24/7, but after
deciding that the burden of proof on this issue was on the permit opponents, the ALJ amended
its PFD to allow BFI to operate 24/7. TCEQ ultimately determined that while the ALJ was incorrect
as to the burden of proof, BFI had produced sufficient evidence supporting 24/7 operations and
approved the permit accordingly.
       4
          During the pendency of the administrative proceedings, but before the contested-case
hearing, BFI and the City of Austin entered into a settlement agreement that required BFI to
implement certain erosion and sedimentation controls that exceeded TCEQ regulatory requirements
and to stop accepting waste at the Sunset Farms facility after November 1, 2015. BFI also agreed

                                                  2
                Shortly after TCEQ granted BFI’s permit expansion, NNC and TJFA filed separate

suits in Travis County district court seeking judicial review of TCEQ’s order on various issues. But

while NNC executed service of citation of its suit on TCEQ within 30 days of filing suit as required

by statute, TJFA did not execute service of its citation on TCEQ until 41 days after it filed suit. See

Tex. Health & Safety Code Ann. § 361.321(c) (West 2010) (providing that in suit for judicial review

of TCEQ decision, “[s]ervice of citation must be accomplished not later than the 30th day after the

date on which the petition is filed”). As a result, TCEQ filed a plea to the jurisdiction in TJFA’s suit,

arguing that this statutory service requirement is a jurisdictional prerequisite to suit that results in

dismissal for failure to comply. Ultimately, the district court granted TCEQ’s plea to the jurisdiction

and dismissed TJFA’s case for lack of jurisdiction, finding that the 30–day deadline for executing

service of citation was a jurisdictional prerequisite to suit and, alternatively, dismissing TJFA’s case

on non-jurisdictional grounds based on its determination that the 30-day, statutory deadline was

“mandatory, not directory.” See, e.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)

(discussing mandatory versus directory statutory language and consequences of such designations).

In TJFA’s appeal of that decision to this Court, we affirmed the district court’s dismissal on the

ground that, while TJFA’s failure to timely execute service was not a jurisdictional bar to suit, it did

require mandatory dismissal of TJFA’s case. See TJFA, L.P. v. Texas Comm’n on Envtl. Quality,

368 S.W.3d 272, 730–39 (Tex. App.—Austin 2012, pet. denied) (TJFA).

                Before the district court had granted TCEQ’s plea to the jurisdiction, however, TJFA

filed a pleading in NNC’s case that sought to consolidate the two causes or, in the alternative, to



that it would not use the Sunset Farms landfill site as a transfer station. TCEQ included these
settlement terms in its final permit.

                                                   3
allow TJFA to intervene in NNC’s suit for judicial review. While acknowledging that consolidation

would be proper if TJFA’s separate suit survived TCEQ’s plea to the jurisdiction, BFI opposed

TJFA’s intervention in the event that it did not survive, arguing that TJFA should not be allowed to

intervene in NNC’s case if TJFA’s own case was dismissed for failure to timely execute service on

TCEQ. After a hearing on the matter, which took place after the district court granted TCEQ’s plea

to the jurisdiction and dismissed TJFA’s separate case, the district court granted BFI’s motion to

strike TJFA’s intervention, finding that TJFA’s failure to comply with the statutory service

requirements in its case also barred it from challenging TCEQ’s order through intervention in

NNC’s case. Thereafter, NNC’s case proceeded to trial, with the district court ultimately finding that

TCEQ’s decision to grant the permit was supported by substantial evidence and affirming TCEQ’s

order. It is from this judgment that both TJFA and NNC appeal.


                                                TJFA

                In two issues, TJFA challenges the district court’s interlocutory order striking its

intervention in this case.5 The first issue stems, in part, from our holding in TJFA that TJFA’s failure

to timely execute service of process, while requiring dismissal of TJFA’s suit, did not deprive the

district court of subject-matter jurisdiction over TJFA’s case. See TJFA, 368 S.W.3d at 733–39.

TJFA argues that, as a result of this holding in TJFA, we must reverse and remand for a new hearing

the district court’s order striking TJFA’s intervention in this case because, TJFA argues, that order


       5
          Because TJFA’s briefing in this matter was completed before we issued our holding in
TJFA, L.P. v. Texas Comm’n on Envtl. Quality, 368 S.W.3d 727 (Tex. App.—Austin 2012,
pet. denied) (TJFA), TJFA frames its appellate issues as being in the alternative depending on the
outcome of that case. Consequently, TJFA’s issues here that depend on an alternate outcome in
TJFA have been mooted. Accordingly, we have framed TJFA’s issues in this opinion in a manner
that takes into account our decision in TJFA.

                                                   4
was based solely on the district court’s erroneous determination that it lacked subject-matter

jurisdiction over TJFA’s separate case as a result of TJFA’s failure to timely execute service. In its

second issue, TJFA asserts that the district court abused its discretion in striking TJFA’s

intervention.


Standard of review

                As we have previously noted, the right of intervention is rooted in equity. See

Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App.—Austin 2007, no pet.) (citing Highlands Ins.

Co. v. Lumbermen’s Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.—Austin 1990, no writ)

(“The right of intervention is an equitable right. It does not depend upon a rule or statute for

its existence.”)). This right is recognized in rule 60 of the Texas Rules of Civil Procedure: “Any

party may intervene by filing a pleading, subject to being stricken by the court for sufficient cause

on the motion of any party.” See Tex. R. Civ. P. 60; Zeifman, 229 S.W.3d at 465; Highlands,

794 S.W.2d at 601–02.

                Sufficient cause exists for striking an intervention when a would-be intervenor faced

with a motion to strike cannot demonstrate a justiciable interest in the lawsuit. Zeifman, 229 S.W.3d

at 464 (citing Mendez v. Brewer, 626 S.W.2d 498, 499–500 (Tex. 1982); Law Offices of Windle

Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no pet.); McCord

v. Watts, 777 S.W.2d 809, 812 (Tex. App.—Austin 1989, no writ)). This justiciable interest may

be either legal or equitable in nature, but must be present and not merely remote or contingent. Id.

(citing Mendez, 626 S.W.2d at 499; McCord, 777 S.W.2d at 811–12 (“An intervenor must show

some present legal or equitable interest in the subject matter which makes it proper for him to

participate in the proceedings.”)). This interest is “analogous to that essential for a party to maintain

                                                   5
or defend an action.” McCord, 777 S.W.2d at 811–12; see also Turley, 109 S.W.3d at 70 (“A party

has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected

by the litigation.”). Whether an intervenor possesses a present justiciable interest is determined,

in the first instance, by the facts alleged in the petition in intervention, which “also should be

construed along with the allegations of fact set forth in the pleadings of the other parties.” Zeifman,

229 S.W.3d at 464 (citing McCord, 777 S.W.2d at 812).

                While the determination of whether a justiciable interest exists based on the pleadings

would appear to present a pure question of law, cf. Texas Dept. of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226–27 (Tex. 2004), the ultimate determination of whether an intervention should

be struck, even if a justiciable interest is shown, has long been held to be vested in the sound

discretion of the trial court. Zeifman, 229 S.W.3d at 465 (citing Mendez, 626 S.W.2d at 499 (“It is

settled law that a motion to strike an intervention is addressed to the sound discretion of the

trial court.”); Turley, 109 S.W.3d at 70; McCord, 777 S.W.2d at 812). We accordingly review a

trial court’s decision on a motion to strike an intervention for an abuse of discretion. See In re

Lumbermen’s Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006) (citing Guaranty Fed. Sav. Bank

v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)). An abuse of discretion denotes

“act[ing] without reference to guiding rules or principles; in other words . . . the act was arbitrary or

unreasonable.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).


Order striking intervention

                TJFA argues first that the district court’s decision to strike TJFA’s intervention

was an abuse of discretion because that order was based on the court’s erroneous legal conclusion

that it lacked jurisdiction over TJFA’s claims as a result of TJFA’s failure to timely execute service

                                                    6
on TCEQ as required by the health and safety code. Based on our recent holding in TJFA that

section 361.321’s service requirement is not jurisdictional, we agree here that it would be an abuse

of discretion for the district court to strike TJFA’s intervention on the grounds that it lacked

jurisdiction due to TJFA’s service failure. See In re United Scaffolding, Inc., 301 S.W.3d 661, 663

(Tex. 2010) (holding that “an erroneous legal conclusion is an abuse of discretion”) (citing Walker

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). But the district court’s order here provides another

basis for striking the TJFA’s intervention:


        Since TJFA’s suit was dismissed because of TJFA’s failure to comply with the
        statutory prerequisite to suit, TJFA cannot now challenge the TCEQ order by
        intervening in this lawsuit and TJFA does not otherwise meet the test for
        intervention.


(Emphasis added.) In other words, the district court struck TJFA’s intervention because it found that

(1) TJFA had failed to meet statutory prerequisites to suit, which it determined deprived the court

of jurisdiction, and (2) TJFA did not otherwise meet the requirements for intervention. Thus, even

though the first ground is legally incorrect in light of our ruling in TJFA, we must nevertheless affirm

the order if the district court’s alternative ground for striking the intervention was not an abuse

discretion. See Tex. R. Civ. P. 60 (“Any party may intervene by filing a pleading, subject to being

stricken out by the court for sufficient cause on the motion of any party.”) (emphasis added).

                TJFA suggests in its briefing that we cannot rely on the district court’s second ground,

or any other ground for that matter, because BFI raised only the jurisdictional ground in its motion to

strike. We disagree. As emphasized above, a trial court has broad discretion in determining whether

to strike an intervention. See Guaranty, 793 S.W.2d at 657. Presumably, that broad discretion

would include consideration of all issues related to whether intervention was proper in the case under

                                                   7
the circumstances—i.e., for any sufficient cause. See Tex. R. Civ. P. 60. Further, unlike the rules

for summary judgment, which require that a motion for summary judgment “expressly present the

grounds upon which it is made, and must stand or fall on these grounds alone,” Science Spectrum,

Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) (citing Tex. R. Civ. P. 166(a)(c) (“The motion

for summary judgment shall state the specific grounds therefor.”)), rule 60 merely requires the party

opposing the intervention to challenge the intervention by filing a motion to strike, see Tex. R. Civ.

P. 60; Guaranty, 793 S.W.2d at 657 (holding that party opposed to intervention has the burden to

challenge with motion to strike, and that trial court abuses its discretion if it strikes intervention in

the absence of a motion to strike). And also unlike summary judgment motions, once a motion to

strike is filed, the burden is on the intervenor, not the movant, to show that intervention is proper.

                We overrule TJFA’s first issue on appeal.


Grounds for intervention

                In its second issue, TJFA argues that even if its separate lawsuit was properly

dismissed, it still has a justiciable interest in NNC’s suit that makes its intervention in this case

proper. TJFA asserts that it has a justiciable interest in this litigation because “if [NNC’s separate]

action had never been commenced, and [TJFA] had first brought it as the sole plaintiff, [TJFA]

would have been entitled to recover in [its] own name.” See In re Union Carbide Corp., 273 S.W.3d

152, 155 (Tex. 2008) (“To constitute a justiciable interest, ‘[t]he intervenor’s interest must be such

that if the original action had never been commenced, and he had first brought it as the sole plaintiff,

he would have been entitled to recover in his own name to the extent at least of a part of the relief

sought’ in the original suit.” (quoting King v. Olds, 12 S.W. 65, 65 (Tex. 1888)). TJFA points out

that not only could it have brought its own suit as the sole plaintiff, it actually did so. The fact that

                                                   8
we subsequently determined that TJFA’s separate case had to be dismissed for failure to meet

statutory service requirements does not eliminate its justiciable interest, TJFA argues, because

justiciable interests can exist even if there is a procedural obstacle to the intervenor filing its

own lawsuit. See, e.g., Antonov v. Walters, 168 S.W.3d 901, 906–07 (Tex. App.—Fort Worth 2005,

pet. denied) (holding that trustee retained justiciable interest in litigation even though his claims were

barred by limitations because the trustee’s intervention in the suit related back to the timely-filed

suit) (citing Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997)).

                The cases relied upon by TJFA in support of its argument are distinguishable. Both

Antonov and Franks involved statute of limitations issues in personal injury claims, not statutory

service requirements for government defendants that result in mandatory dismissal if not met. Also,

each involved a personal-injury claim that the respective courts characterized as giving rise to only

one cause of action that belonged to one person, although in which other parties had an interest. See

Antonov, 168 S.W.3d at 905; Franks, 936 S.W.2d at 960. Here, in contrast, although both NNC’s

and TJFA’s suits involve judicial review of an agency decision, TJFA brings additional claims not

brought by NNC. That fact, coupled with the mandatory dismissal of TJFA’s suit, suggests that,

at the very least, what we have here is more than a “procedural bar” to TJFA bringing its own suit.

                But assuming without deciding that TJFA has a justiciable interest in NNC’s case that

was not otherwise eliminated by the mandatory dismissal, the district court nevertheless had the

discretion to strike the intervention on other grounds: “[T]he ultimate determination of whether an

intervention should be struck, even if a justiciable interest is shown, has long been held to be vested

in the sound discretion of the trial court.” Zeifman, 229 S.W.3d at 465 (emphasis added). In other

words, a trial court may decide to strike the intervention of a party who has a justiciable interest


                                                    9
in the case for other reasons, as long as the court’s action in doing so is not arbitrary or

unreasonable—i.e., an abuse of discretion. See id. In the present case, it appears from the reporter’s

record that the district court, in addition to its jurisdictional questions, was concerned with the equity

of allowing a party whose claims against TCEQ were otherwise statutorily barred to nevertheless

proceed with those claims by intervening in another party’s case. See id. (noting that the right of

intervention is an equitable right). Certainly, having failed to preserve its own right to proceed

against TCEQ, TJFA could not argue that equity was in its favor. Cf. Miers v. Brouse, 271 S.W.2d

419, 421 (Tex. 1954) (noting that the “first maxim of equity is that it will not suffer a right to be

without a remedy”). Further, as will be discussed in more detail below, TJFA’s intervention

would add several additional issues not brought by NNC. For these reasons, we cannot say that the

district court abused its discretion in striking TJFA’s intervention.

                TJFA argues that the district court had no discretion to strike its intervention because

TJFA’s intervention meets the three-part Guaranty test created by the Texas Supreme Court. See

Guaranty, 793 S.W.2d at 657. In Guaranty, the supreme court held that it was an abuse of discretion

for a trial court to strike a plea in intervention if all of the following factors were met: (1) the

intervenor has a justiciable interest in the case—i.e., the intervenor could have brought the same

action in his own name—(2) the intervention will not complicate the case by an excessive

multiplication of the issues, and (3) the intervention is almost essential to effectively protect

the intervenor’s interest. See id. In other words, an intervenor who meets all of these three factors

is entitled to intervene in a case as a matter law. See id. TJFA argues that, in addition to having a

justiciable interest, its intervention will not complicate the case because it is an administrative appeal

determined on the basis of a fixed record and preserved issues, and that its intervention is essential


                                                   10
to protect TJFA’s interests because, as a result of the mandatory dismissal of its separate case,

NNC’s case is the only remaining judicial avenue for this particular administrative order by TCEQ;

therefore, TJFA argues, it was an abuse of discretion for the trial court to strike its intervention. We

disagree that TJFA meets all the Guaranty tests.

                First, and again assuming without deciding that TJFA retains a justiciable interest in

NNC’s case, we do not agree that TJFA’s intervention would not have “complicated the case by an

excessive multiplication of the issues.” NNC’s petition in the district court asserted three issues that

it had preserved at the administrative level. TJFA’s petition in intervention, in contrast, asserted at

least eleven separate issues, some of which included sub-issues. Given that disparity, we cannot say

that the district court would abuse its discretion here if it determined that TJFA’s intervention would

have multiplied the issues and excessively complicated the case.

                Finally, we do not agree that “intervention is almost essential to effectively protect

the intervenor’s interest.” See id. TJFA itself created the need to intervene in NNC’s case by failing

to timely execute service in its separately filed case. Had it timely executed service as required,

intervention would not have been necessary. Stated another way, TJFA created the problem from

which it needs protection. Considering, again, the equitable nature of intervention, we cannot say

that this is the type of “necessity” that the supreme court envisioned in Guaranty.

                We overrule TJFA’s second and final issue on appeal.


                                  Northeast Neighbors Coalition

                NNC challenges the district court’s judgment affirming TCEQ’s grant of a permit

amendment to BFI in what it describes as four issues, but what are more accurately characterized as

one assertion regarding the proper standard of review in this case and three issues challenging

                                                  11
whether the agency decision here is supported by substantial evidence. Specifically, NNC argues

(1) that the substantial-evidence standard of review for agency decisions requires an examination

of the actual content of evidence rather than just the volume of evidence submitted. It then asserts

that (2) TCEQ’s findings of land-use compatibility; (3) TCEQ’s approval of 24/7 landfill operations;

and (4) TCEQ’s finding of “no substantial alteration of natural drainage patterns” are not supported

by substantial evidence.


Standard of review

               Section 2001.174 of the Administrative Procedures Act (APA) governs our review

of TCEQ’s order:


       A court may not substitute its judgment for the judgment of the state agency on the
       weight of the evidence on questions committed to agency discretion but:

       (1)     may affirm the agency decision in whole or in part; and

       (2)     shall reverse or remand the case for further proceedings if substantial rights
               of the appellant have been prejudiced because the administrative findings,
               inferences, conclusions, or decisions are:

               (A)     in violation of a constitutional or statutory provision;

               (B)     in excess of the agency’s statutory authority;

               (C)     made through unlawful procedure;

               (D)     affected by other error of law;

               (E)     not reasonably supported by substantial evidence considering the
                       reliable and probative evidence in the record as a whole; or

               (F)     arbitrary or capricious or characterized by abuse of discretion or
                       clearly unwarranted exercise of discretion.



                                                 12
Tex. Gov’t Code Ann. § 2001.174 (West 2008). “Substantial evidence,” in the sense that it is used

in subpart (2)(E), is essentially a rational-basis test whereby courts determine, as a matter of law,

whether an agency’s order finds reasonable factual support in the record. City of Waco v. Texas

Comm’n on Envtl. Quality, 346 S.W.3d 781, 813 (Tex. App.—Austin 2011, pet. granted) (op. on

reh’g) (citing Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446,

452–53 (Tex. 1984)). We consider whether the evidence as a whole is such that reasonable minds

could have reached the same conclusion as the agency in the disputed action. Id. (citing Collins

v. Texas Natural Res. Comm’n, 94 S.W.3d 876, 881 (Tex. App.—Austin 2002, no pet.)). The issue

is not whether the agency reached the correct conclusion, but rather whether there is some reasonable

basis in the record for its action. Id. (citing City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179,

185 (Tex. 1994)). Although substantial evidence is more than a mere scintilla, the evidence in the

record actually may preponderate against the decision of the agency and nonetheless amount to

substantial evidence. City of El Paso, 883 S.W.2d at 185. We presume that the agency’s findings,

inferences, conclusions, and decisions are supported by substantial evidence, and the burden is on

the contestant to prove otherwise. City of Waco, 346 S.W.3d at 813; Collins, 94 S.W.3d at 881.

               With regard to NNC’s argument regarding the type of evidence necessary to support

a substantial-evidence inquiry, we emphasize that section 2001.174(2)(E) limits our consideration

to the “reliable and probative evidence in the record as a whole.” See Tex. Gov’t Code Ann.

§ 2001.174(2)(E) (emphasis added); Sanchez v. Texas State Bd. of Med. Exam’rs, 229 S.W.3d

498, 510 (Tex. App.—Austin 2007, no pet.). The APA provides that the rules of evidence apply to

a contested case. See Tex. Gov’t Code Ann. § 2001.081 (West 2008). The APA also requires that

“evidence that is irrelevant, immaterial, or unduly repetitious” be excluded from the record of a


                                                  13
contested-case hearing. Id. § 2001.082 (West 2008). Accordingly, the APA itself answers NNC’s

question of whether the substantial-evidence standard of review requires examination of the actual

content of evidence, and that answer is clearly yes.


Land-use compatibility

               In its second issue on appeal, NNC challenges TCEQ’s conclusion that the proposed

vertical expansion of the Sunset Farms landfill would be compatible with surrounding land uses,

arguing that this conclusion is not supported by the substantial evidence in the administrative record

because of continuing odor issues with the landfill and problems with BFI’s expert evidence.


       TCEQ regulations regarding land use

               The Solid Waste Disposal Act (SWDA)6 allows TCEQ, for good cause, to deny a

municipal solid-waste (MSW) permit for reasons pertaining to, among others, land use:


       The commission may, for good cause, deny or amend a permit it issues or has
       authority to issue for reasons pertaining to public health, air or water pollution, or
       land use, or for having a compliance history that is classified as unsatisfactory
       according to commission standards under Sections 5.753 and 5.754, Water Code, and
       rules adopted and procedures developed under those sections.


Tex. Health & Safety Code Ann. § 361.089 (West Supp. 2012); see 30 Tex. Admin. Code

§ 305.66(c) (2005) (Tex. Comm’n Envtl. Quality, Permit Denial, Suspension, and Revocation)




       6
         The Solid Waste Disposal Act (SWDA) is codified in Chapter 316 of the Texas Health &
Safety Code. See Tex. Health & Safety Code Ann. §§ 361.001–.992 (West 2010 & Supp. 2012).

                                                 14
(authority to deny).7 Relatedly, section 361.069 gives TCEQ the discretion to make a separate

determination on the question of land-use compatibility in processing a permit application:


       The commission in its discretion may, in processing a permit application, make a
       separate determination on the question of land use compatibility, and, if the site
       location is acceptable, may at another time consider other technical matters
       concerning the application. A public hearing may be held for each determination in
       accordance with Section 361.088. In making a determination on the question of land
       use compatibility, the commission shall not consider the position of a state or federal
       agency unless the position is fully supported by credible evidence from that agency
       during the public hearing.


Tex. Health & Safety Code Ann. § 361.069 (West 2010); see 30 Tex. Admin. Code § 330.61 (2005)

(Tex. Comm’n Envtl. Quality, Land-Use Public Hearing). The SWDA does not, however, define

“land use” or “land use compatibility.” See Tex. Health & Safety Code Ann. §§ 361.001–.992

(West 2010 & Supp. 2012).

               In promulgating rules to enforce the SWDA, including the above provisions regarding

land-use compatibility, TCEQ requires municipal solid-waste (MSW) permit applicants to include

in their permit applications a land-use map—


       showing the boundary of the property and any existing zoning on or surrounding the
       property and actual uses (e.g., agricultural, industrial, residential, etc.) both within
       the site and within one mile of the site. The applicant shall make every effort to
       show the location of residences, commercial establishments, schools, licensed child
       care facilities, churches, cemeteries, ponds or lakes, and recreational areas within one
       mile of the site boundary. Drainage, pipeline, and utility easements within the site
       shall be shown. Access roads serving the site shall also be shown.




       7
           The parties agree that the TCEQ regulations in effect prior to 2006 amendments to those
rules are the regulations that govern our disposition of that case. Accordingly, all references to the
Texas Administrative Code will be to the version in effect in 2005.

                                                 15
30 Tex. Admin. Code § 330.53(b)(7) (2005) (Tex. Comm’n Envtl. Quality, Technical Requirements

of Part II of Application). That same rule then provides a framework for TCEQ’s analysis of land-

use compatibility:


       (8)     A primary concern [regarding land use] is that the use of any land for an
               MSW site not adversely impact human health or the environment. The
               impact of the site upon a city, community, group of property owners, or
               individuals must be considered in terms of compatibility of land use, zoning
               in the vicinity, community growth patterns, and other factors associated with
               the public interest. To assist the executive director in evaluating the impact
               of the site on the surrounding area, the applicant shall provide the following:

               (A)     zoning at the site and in the vicinity. If the site requires approval as
                       a nonconforming use or a special permit from the local government
                       having jurisdiction, a copy of such approval shall be submitted;

               (B)     character of surrounding land uses within one mile of the proposed
                       facility;

               (C)     growth trends of the nearest community with directions of major
                       development;

               (D)     proximity to residences and other uses (e.g., schools, churches,
                       cemeteries, historic structures and sites, archaeologically significant
                       sites, sites having exceptional aesthetic quality, etc.). Give the
                       approximate number of residences and business establishments
                       within one mile of the proposed facility including the distances and
                       directions to the nearest residences and businesses; and

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


Id. § 330.53(b) (8). Thus, although neither the act nor the regulations define compatibility or provide

a specific standard by which to determine compatibility, the regulations do emphasize that the

primary concern in this inquiry is “that the use of any land for an MSW site not adversely

impact human health or the environment.” See id.; see also Tex. Local Gov’t Code Ann. § 241.003


                                                  16
(West 2005) (defining “compatible land use” as use that “does not endanger the health, safety, or

welfare of the owners, occupants, or users of the [adjacent] land” in connection with the Airport

Zoning Act). But they also seem to give TCEQ the discretion to consider land use-compatibility

issues that go beyond health and environmental concerns. See Merriam Webster’s Collegiate

Dictionary 253 (11th ed. 2008) (defining “compatible” as “existing together in harmony”); see also

16 U.S.C. § 668ee (defining “compatible” as “not materially interfering with or detracting from”).

Thus, under the plain language of the SWDA, TCEQ may deny an MSW permit for good cause

related to land use and may, in its discretion, conduct such an inquiry separately from the other

aspects of the permitting process, but it is not required to do either. See Tex. Health & Safety Code

Ann. §§ 361.089, .069. MSW permit applicants, however, must provide TCEQ with the information

needed to make a determination of land-use compatibility. See 30 Tex. Admin. Code §§ 330.61, .53.

Once made, however, a land-use-compatibility decision is subject to the substantial-evidence review

described above, keeping in mind that we will presume that TCEQ’s decision is supported by the

substantial evidence unless NNC proves otherwise. See Charter Med.–Dallas, 665 S.W.2d at 453.

Thus, in reviewing TCEQ’s decision here, we must determine whether there is substantial evidence

in the administrative record to support TCEQ’s conclusion that the landfill will be compatible with

existing land uses.


       Offensive odors

               NNC focuses its first land-use argument on the existence of an alleged ongoing odor

problem at the landfill. During the contested-case hearing, NNC offered the testimony of several

landfill neighbors who, generally stated, testified that they can sometimes smell the landfill in the

vicinity of the landfill. Most of the neighbors described the smell as “rotting garbage,” while others

                                                 17
used more descriptive phrases. Three of the neighbors testified that the smells sometimes made them

sick or nauseated. Some of these same neighbors testified that they thought the instances of odors

from the landfill were increasing, while another thought that the frequency of the odors had been

decreasing. NNC asserts that this testimony was unrebutted by BFI and, therefore, conclusively

established that the landfill had “continuing, systematic, and disruptive odor problems” such that

TCEQ was precluded from finding the landfill compatible with existing land use. We disagree.

               First, the neighbors’ testimony does not establish that the landfill has “continuing,

systematic, and disruptive odor problems.” At best, their testimony can be said to establish only that

some of the neighbors, depending on the wind and other weather-related factors, can occasionally

smell offensive odors from the landfill and that, on those occasions, the odors make some of the

neighbors ill or nauseated. And while the testimony may establish that the odors are continuing in

the sense that they sometimes occur in the present, the neighbors’ testimony does not conclusively

establish that the “odor problem” is systematic—i.e., regular or methodical—or that it is disruptive.

               Second, the record does not support NNC’s assertion that the neighbors’ testimony

regarding odors was unrebutted. BFI submitted evidence showing that, although the landfill had

experienced odor problems several years ago that prompted complaints from neighbors, it has since

taken steps to control the odors and, as a result, the odors have declined to low levels in more recent

years and have not been extreme since. For example, Brad Dugas, a vice president of BFI’s parent

company, testified that in addition to its overall odor-management plan implemented at the landfill,

BFI keeps the working face of the landfill small and appropriately covered, its gate operators provide

additional care to “odorous loads,” and its operations manager patrols the landfill perimeter daily to

assess odor conditions in the area. Regarding odor complaints concerning the Sunset Farms landfill,


                                                  18
Dugas explained that the Austin area experienced a large rainfall event in November 2001 that

created an odor problem at the landfill. He explained that before the rainfall event, both BFI and the

neighboring Waste Management facility had been accepting “significant amounts of construction and

demolition waste, which contains wallboard.” Wallboard, he explained further, generates hydrogen

sulfide when it decays, which smells like rotten eggs. These factors led to a surge in the production

of landfill gas containing hydrogen sulfide at the landfills, which in turn caused an odor problem in

the area. Dugas testified that, as a result of this odor problem, BFI hired a consultant and expanded

its gas collection and control system (GCCS) to remedy problems caused by landfill gas. Dugas

also testified that TCEQ issued notices of violation against both landfills in the vicinity and began

an investigation of those landfills during this same period. Specifically, TCEQ performed a week-

long, 24-hour-per-day investigation of odors at the site. Dugas explained that although TCEQ’s

investigation did not document or note any odor violations, BFI agreed to pay an administrative

penalty.   He also stated that although odor complaints have not stopped completely, the

improvements to the GCCS have been “very effective in reducing odor and complaints about odors

fell off over the following months.” Specifically, Dugas testified, “Since approximately 2003, odor

complaints to the TCEQ and Travis County have dropped from a peak of hundreds in 2002 down

to an average of around four per month until 2008 when, through August 8th, there had been a total

of nine complaints.” Finally, Dugas testified that it was his belief that vertical expansion of the

landfill would not have an impact on the landfill’s ability to prevent odors from becoming

a nuisance.

               BFI also offered the expert testimony of Matt Stutz, a civil/environmental engineer

who designed the GCCS expansion at the Sunset Farms landfill after the 2001-2002 odor problems.


                                                 19
Stutz testified regarding the landfill’s monitoring system and expansions, including the causes of the

2001-2002 odor problems and the need for expanding the GCCS. He testified that by the fall of

2003, the GCCS at the landfill was operating at the optimal level for its intended purpose, including

odor control. He noted that it was his personal observation that the installation of the new GCCS

in 2003 resolved the odor problems. He also testified that increasing the height of the landfill would

not cause any more or less odor and that the implementation of the GCCS for the new permit would

reduce the potential for odors from the landfill. Finally, he explained that it was his opinion that the

GCCS satisfied solid-waste regulations.

                BFI also offered the expert testimony of Dr. Shari Libicki—a chemical engineer

who consults on numerous landfill air quality assessments and teaches environmental policy and

regulations at Stanford University. She testified that she had reviewed the more than 900 odor

complaints made during the period between 2001 and 2008 and the investigation reports covering

the same period by TCEQ and a private firm. The landfill received its highest number of odor

complaints during 2001 through 2003, a fact she attributed to the 2001-2002 odor problems

discussed above. Specifically, she testified that of the six major causes of landfill odors,8 landfill

gas was the most likely cause of odor complaints near the Sunset Farms landfill during that 2001-

2003 period, which could be attributed to the rainfall event and the acceptance of construction waste.

She then explained that, based on the decrease in odor complaints in the area since BFI improved

the GCCS, it was her opinion that those improvements had controlled and are preventing the


       8
           According to Dr. Libicki’s testimony, the six major sources of landfill odors are:
(1) arriving waste-haul trucks, (2) disturbed green waste/composting piles, (3) the landfill’s working
face where active disposal operations are occurring, (4) leachate collection/treatment systems,
(5) cracks in capped cells, and (6) leaking gas wells and gas collection systems that have poor
coverage or not operating properly.

                                                  20
recurrence of severe odors at the landfill.9 She also referenced a newspaper article that reported,

“Commissioners, residents who live near the landfills and officials with [TCEQ], which regulates

landfills, all say the odor problem has improved” since 2002. She also testified about how the

history of exposure and annoyance can have an impact on odor sensitivity, explaining that someone

who has experienced odors in the past is likely to be more sensitive to those odors in the future,

while newcomers to the area may not notice the odors.

               Regarding current conditions at the landfill, Dr. Libicki testified that BFI conducts

daily inspections at the landfill that include examination of odor conditions. She testified about

the monitoring systems at the landfill that would monitor potential odor problems and also that

several of the major contributors of odor problems were not present at the Sunset Farms landfill. In

conclusion, she testified that the increased height of the landfill would not cause any additional

odor problems at the Sunset Farms landfill. Finally, she testified that it was her opinion that

BFI’s application contained adequate provisions for odor control, that it would not create

odors adverse to human health, safety, or welfare, and that it would be protective of human health

and the environment.

               In addition to Dr. Libicki’s testimony, BFI offered into evidence the TCEQ strike-

team report regarding its December 2002 week-long investigation of the odor problems in the


       9
         Specifically, she testified that of the 939 complaints made, 776 were reported between
December 2001 and September 2003, with the highest day being February 22, 2002 with
37 complaints. From September 2003 through February 2008, 157 odor complaints were reported,
with no more than four reported on any single day. NNC contends that the decrease in complaints
after 2003 happened because, as one of its witnesses testified, the neighbors were frustrated
by TCEQ’s failure to act on those complaints. But the testimony and documentary evidence,
as concluded by the ALJ, show that TCEQ quickly responded to odor complaints, even on nights
and weekends.


                                                21
landfill. TCEQ set up monitoring systems to sample the air and categorized those samples on a scale

from one to five. Category one indicates that no odor was detected; category two and three are odors

that are barely detectable or noticeable, but not unpleasant; category four odors are light to moderate

or strong but intermittent and not of sufficient duration to be objectionable; and category five odors

are capable of causing health effects, are highly objectionable, and can have an impact on the use of

property. Of the 409 samples taken, 49% were determined to be category one, 41% were category

two or three, and 10% were category four, with the majority of those occurring at the BFI fence line.

No category five odors were observed. Finally, BFI offered evidence of the fact that, in its 26 years

of operation, it had received only one odor-related notice of violation from TCEQ and that was in

April 2001 before it made the changes to the GCCS.

               Based on the evidence in the record, we cannot say that the neighbors’ testimony

regarding odors was completely unrebutted. But more important, there is substantial evidence in

the record that supports TCEQ’s conclusion that the landfill is compatible with existing land uses.

Even if we were to assume, however, that the neighbors’ odor testimony is conclusive—i.e., the

landfill continues to have a significant odor problem that is systematic and disruptive—that fact

alone would not preclude TCEQ from concluding that the landfill was compatible with existing land

use in the area. First, as the ALJ indicated, there is no rule that prohibits a landfill from producing

any odor; rather, TCEQ rules simply require an applicant to control odors, see, e.g., 30 Tex. Admin.

Code § 330.125(b) (2005) (Tex. Comm’n on Envtl. Quality, Air Criteria) (requiring landfill to

have an odor management plan that addresses the sources of odors and includes instructions on how

to control odors or sources of odors). As delineated above, there is substantial evidence in the record




                                                  22
supporting TCEQ’s conclusion that BFI has an odor management plan that addresses the sources of

odors and that controls the odors at the landfill.

               The issue NNC puts before us here, however, is not whether there is substantial

evidence to support TCEQ’s odor-control decision. Instead, NNC challenges whether there is

substantial evidence in the record to support TCEQ’s conclusion that the landfill is compatible

with existing land use. But odor is a not a specifically delineated factor for land-use-compatibility

determinations. See 30 Tex. Admin. Code § 330.61, .53. At best, odor could be fairly characterized

as only one part of these multiple considerations. See id. Thus, even if the evidence here

conclusively establishes that there is an ongoing odor problem, it does not preclude TCEQ from

concluding that the Sunset Farms landfill is compatible with existing land uses. TCEQ must only

account for or balance all compatibility factors in its overall determination of whether the landfill

adversely affects human health or the environment or is otherwise incompatible. As long as that

balancing is not arbitrary or capricious and its determination of compatible land use is supported by

substantial evidence, we may not disturb TCEQ’s decision on appeal simply because the landfill

may, despite regulatory-compliant odor protections, emit a rotting-garbage smell from time to time.


       BFI’s land-use experts

               In the second prong of its land-use compatibility issue, NNC asserts that even if we

disregard the odor problems discussed above, the substantial evidence in the record does not support

TCEQ’s land-compatibility findings and conclusions because, NNC contends, the expert testimony

of John Worrall and Charles Heimsath was so “fundamentally flawed” that it cannot provide a

reasonable basis for TCEQ’s finding that the landfill is compatible with existing land use. We

disagree.

                                                     23
                1. John Worrall

                Worrall prepared the land-use analysis in BFI’s permit application and testified in the

contested-case hearing as BFI’s land-use expert. On appeal, NNC complains that he disregarded

TCEQ regulation 330.53(b)(8), see 30 Tex. Admin. Code § 330.53(b)(8) (2005) (Tex. Comm’n

Envtl. Qual., Technical Requirements of Part II of Application) (describing factors in land-use

determination), in his land-use determinations and instead applied a “per se rule that no landfill can

ever be an incompatible use if the landfill existed before surrounding development,” as did the

Sunset Farms landfill. (Emphasis in original.) Therefore, NNC argues, Worrall’s testimony cannot

be substantial evidence supporting TCEQ’s land-use compatibility finding.

                Initially, we note that we find nothing in the record, nor does NNC make any record

references in its brief, see Tex. R. App. P. 38.1 (requiring record references in appellant’s brief), to

support its suggestion that Worrall applied the “per se” rule described above rather than TCEQ

regulations. To the contrary, Worrall testified that he was familiar with TCEQ regulations regarding

solid-waste facilities, specifically referring to chapter 330 of Title 30 of the Texas administrative

code and more specifically to section 330.53, and that his testimony and report comply with those

rules. To that extent, we see no merit in NNC’s assertion here.

                BFI suggests that NNC bases its assertion that Worrall uses a “per se” rule on

Worrall’s cross-examination testimony that he has never testified against a landfill.10 If so, that

argument is also without merit. Although Worrall did testify that he had never testified against a

landfill, it is not reasonable to infer from that testimony that he has any sort of “per se rule” regarding



        10
          The ALJ noted that Worrall has never testified against a landfill, but does not suggest that
was a basis for his conclusion here.

                                                    24
land-use compatibility or that he disregards TCEQ regulations. Further, Worrall testified that he was

familiar with TCEQ regulations and that he follows them in determining land-use compatibility. The

inference is also not reasonable in light of his additional cross-examination testimony that he has

declined opportunities to testify on behalf of other solid-waste facilities because he “didn’t feel

that [he] could testify to the compatibility.” Thus, the most we can reasonably infer from Worrall’s

testimony is that he testifies regarding land-use compatibility for solid-waste facilities when he

believes they are compatible. That is not a basis for disregarding his testimony or rendering it

incompetent to support TCEQ’s finding of compatible land use.


               2. Charles Heimsath

               NNC claims that Charles Heimsath, BFI’s expert on growth trends and changes in

use in the vicinity of the Sunset Farms landfill, also improperly applied a “per se” rule to determine

land-use compatibility, arguing that he concluded that the Sunset Farms landfill was compatible

with surrounding land use “simply because there has been substantial growth in the area around

Sunset Farms.” In other words, “if development has occurred in the vicinity of a landfill—regardless

of the reasons or circumstances—then [Heimsath will conclude that] the landfill is a land use

compatible with that development.” We disagree.

               NNC’s contention here overly simplifies Heimsath’s conclusions. Heimsath testified

that the Sunset Farms landfill was compatible with existing and planned uses in the area because

the growth in the landfill market area has not been adversely affected by the existing landfill and is

not expected to be affected by the proposed expansion. In fact, he testified that the growth in the

area, both residential and commercial, has been “extremely robust” and that trend seems likely to

continue in future. He did not say that the landfill was compatible simply because there had been

                                                 25
substantial growth in the area. And to the extent that his conclusion might seem to be narrowly

based considering the variety of factors relevant to a land-use determination, Heimsath’s admitted

area of expertise here was limited to growth trends and market analysis, and he testified accordingly.

Thus, his opinion regarding land-use compatibility would necessarily be limited to the areas he

was charged with investigating. That is not a reason for disregarding his evidence or rendering it

incompetent to support TCEQ’s conclusions regarding land-use compatibility.


                3. Substantial evidence

                Having determined that NNC’s specific challenges to TCEQ’s land-use-compatibility

conclusion are without merit—i.e., that the odor issue is not dispositive of land-use compatibility

and that Worrall’s and Heimsath’s testimony are not incompetent—we hold that NNC has not

overcome the presumption that TCEQ’s conclusion as to land-use compatibility is supported by

substantial evidence. See City of Waco, 346 S.W.3d at 813; Collins, 94 S.W.3d at 881 (holding that

we must presume that agency’s findings, inferences, conclusions, and decisions are supported by

substantial evidence unless contestant proves otherwise). We note additionally, however, that there

is other substantial evidence in the record to support TCEQ’s land-use-compatibility conclusion and

its unchallenged supporting findings. For example, TCEQ found that the only zoning ordinance

applicable to the landfill did not restrict or prohibit the proposed vertical expansion of the landfill.

In support of that finding was the testimony of Worrall that a small strip of the landfill was zoned

“DR” by the City of Austin, but that designation does not restrict or prohibit the proposed expansion,

and that there were no other zoning restrictions applicable to the landfill. This evidence was

undisputed and uncontroverted. TCEQ also found that the predominant land use (62%) within

one mile of the permit boundary was “open,” which includes agricultural property, vacant property,

                                                  26
and rights-of-way, that the next largest land use (21%) was industrial, which designation includes

the two active landfills, and that the next largest land use (11%) was residential. The evidence

supporting this finding includes the application materials and the testimony of Worrall, both of

which stated these facts and figures, which were not disputed or controverted. TCEQ also found that

“[s]olid-waste disposal has been an historically and geographically significant land use within

one mile of the landfill since at least 1968.” In support of that finding is Worrall’s undisputed

and uncontradicted testimony regarding the same. TCEQ found that “[w]hile substantial residential

growth is occurring within one mile of the permit boundaries . . . , most of this activity is relatively

distant from the Landfill.” Again, this finding is taken directly from Worrall’s and also Heimsath’s

undisputed and uncontroverted testimony regarding the same. TCEQ found that “[t]he nearest

residence to the landfill is approximately 1,045 feet east of the permit boundary and 1,830 feet from

the limit of the fill.” This finding is again based on Worrall’s testimony. Finally, for example,

TCEQ found that BFI included in its application sufficient information regarding land use and land-

use compatibility. That testimony is supported by the existence of the application, which includes

all information required by TCEQ regulations.

               We overrule NNC’s second issue on appeal.


24/7 landfill operations

               In its third issue, NNC challenges TCEQ’s order regarding the landfill’s operating

hours. Section 330.118 of TCEQ regulations requires landfills to operate between 7am and 7pm,

Monday through Friday, unless they get TCEQ approval to operate outside those hours. See 30 Tex.

Admin. Code § 330.118(a) (2005) (Tex. Comm’n Envtl. Quality, Facility Operating Hours). In this

case, TCEQ approved BFI’s request that it be allowed to maintain the 24/7 operating hours allowed

                                                  27
under its prior permit. On appeal, NNC asserts that TCEQ’s decision that 24/7 operating hours are

appropriate is not supported by substantial evidence.11 We disagree and hold that there is substantial

evidence to support TCEQ’s approval of the 24/7 operations. The following is a summary of the

substantial evidence supporting 24/7 operating hours:


       •       BFI’s existing permit authorizes it to operate on a 24/7 basis;

       •       The landfill’s current operating hours are 24 hours per day Monday through
               Friday and from 12am to 3pm on Saturdays, with no hours on Sundays;

       •       Sunset Farms landfill has operated during the above hours since at least 1982;

       •       TCEQ approved 24/7 operating hours for the Sunset Farms landfill in its
               original permit and in 2006;

       •       BFI has established long-standing waste-delivery schedules and acceptance
               procedures that its customers rely on;

       •       These operating hours are consistent with other similar landfills in the
               county;

       •       24/7 operating hours are consistent with industry practices;

       •       There are no zoning ordinances prohibiting 24/7 operating hours;

       •       TCEQ’s executive director is “not aware of potential impacts rising to a level
               that would justify restricting the proposed operating hours”;

       •       BFI will post a sign at the entrance of the Sunset Farms landfill showing its
               operating hours;


       11
           Before approval of the permit amendment at issue in this case, the Sunset Farms landfill
operated 24 hours a day, seven days a week. In its application for a vertical-expansion amendment
to its permit, BFI requested authorization to continue 24/7 operations. After the contested-case
hearing, the ALJ initially found that the evidence did not support 24/7 operations and recommended
that the hours be restricted to 7 a.m. to 7 p.m., Monday through Friday. The ALJ later changed his
ruling to support 24/7 operations on the ground that the protestants, including NNC, carried the
burden of proof on this issue, not BFI. TCEQ rejected the ALJ’s burden-of-proof explanation, but
found that BFI had produced sufficient evidence to support 24/7 operations.

                                                 28
        •       When the landfill is not open for waste acceptance, landfill construction and
                maintenance, waste composting and processing, gas plant operation and
                maintenance, landfill maintenance, equipment maintenance, office work, and
                other activities may be performed at the landfill site;

        •       BFI will not operate heavy construction equipment after 9pm Saturday or
                before 8am or after 9pm on Sunday, except for emergencies or weather-
                related events; and

        •       A September 8, 2008 traffic study showed that 23% of the Sunset Farms
                landfill’s daily volume arrived at the facility between 7pm and 7am.


Although this evidence may not compel the conclusion reached by TCEQ—i.e., that 24/7 operations

were appropriate—it is sufficient to withstand a “substantial evidence” attack. Clearly, reasonable

minds could have concluded that 24/7 operations were appropriate.

                NNC argues that BFI’s evidence is too limited and “unremarkable” to constitute

substantial evidence in light of, NNC asserts, the “extensive” evidence showing that 24/7 operations

are not warranted. Specifically, it contends that BFI’s “only” evidence is that the current permit

allows 24/7 operations, other Travis County landfills allow 24/7 operations, and that such hours

are industry standard. But, as can be clearly seen in the above summary, the evidence relating to

24/7 operations is not so limited. We also disagree that the evidence opposing 24/7 operations

was “extensive.” Although Greg Guernsey, who is the City of Austin’s director of neighborhood

planning and zoning, recommended that the landfill’s operations be limited to daylight hours “to

lessen the impact on existing and proposed residential uses and adjacent civic uses,” he did not state

that 24/7 operations would be inappropriate, nor did he explain how operations would affect existing

uses. Further, although three landfill neighbors testified briefly about noise complaints related to

nighttime operations of the landfill, it would be difficult to characterize their testimony as extensive.

Even if the evidence in the record preponderates against TCEQ’s decision to allow 24/7 operations,

                                                   29
the evidence may nonetheless amount to substantial evidence. See City of El Paso, 883 S.W.2d

at 185; see also Mireless v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (holding that

we must affirm agency findings if there is more than a scintilla of evidence to support them).

                We overrule NNC’s third issue.


Natural drainage patterns

                In its fourth and final issue on appeal, NNC asserts that TCEQ’s findings regarding

“no substantial alteration of natural drainage patterns” are not supported by substantial evidence and

are arbitrary and capricious because BFI’s own drainage analyses from 2002, 2005, and 2006

“plainly show” that the landfill’s drainage patterns have been significantly altered. Specifically,

NNC asserts that BFI’s drainage analysis from 2005 for two particular outfall locations12 differs

“drastically” from drainage analyses submitted in 2002 and 2006. Relatedly, NNC argues that

BFI’s drainage expert, Adam Mehevec, failed to adequately explain these discrepancies in light of

the fact that NNC and the other protestants had no opportunity to bring their own experts to

challenge the analyses because the discrepancies were not disclosed prior to the contested-case

hearing. We disagree.

                Under TCEQ rules, MSW landfills may not significantly alter the landfill site’s

natural drainage patterns. See Tex. Admin. Code § 330.55(b)(5)(D) (2005) (Tex. Comm’n Envtl.

Quality, Site Development Plan). To ensure that the landfill will not alter the natural drainage

patterns, section 330.56 requires MSW permits to include, in relevant part, a groundwater and



       12
          In this context, an outfall is the discharge point of a waste stream into a body of water.
According to the record, there are six outfall locations at the Sunset Farms landfill, but only outfalls
4 and 5 are addressed in this case.

                                                  30
surface water protection plan and a drainage plan showing that the natural drainage patterns at the

site will not be significantly altered and “discussion and analyses to demonstrate that natural

drainage patterns will not be significantly altered as a result of the proposed landfill development.”

Id. §§ 330.56(f)(2), (f)(4)(iv) (2005) (Tex. Comm’n Envtl. Quality, Attachments to Site

Development Plan). TCEQ also provides regulations to help calculate this information. See, e.g.,

Guidelines for Preparing a Surface Water Drainage Plan for a Municipal Solid Waste Facility (June

2004) available at http://www.tceq.state.tx.us/assets/public/comm_exec/pubs/archive/rg417.pdf.

               In 2002, BFI submitted this type of drainage information for the Sunset Farms landfill

in connection with a requested modification of its then-existing permit, and TCEQ ultimately granted

the modification.13 The drainage information offered with the 2002 application showed peak flow

rates for outflow 4 were 26 cfs for both the existing and proposed conditions, and the peak flow rates

for outflow 5 were 66 cfs for both the existing and proposed conditions. According to the expert

who calculated these numbers, they were determined using methodologies in place in 2002.

               In 2006, BFI submitted an application with TCEQ to amend its MSW permit by

reducing the landfill permit and reconfiguring certain disposal cells. In connection with this permit

application, however, BFI did not recalculate peak flow rates for outflows 4 and 5 using the

new methodologies; instead, BFI simply used the same numbers for outflows 4 and 5 from the

2002 permit application because the proposed changes in the 2006 application would not affect the

flow rates for those two outflows.




       13
           The 2002 modification to the Sunset Farms landfill increased the allowable height of the
landfill by ten feet.

                                                 31
               As required, BFI likewise submitted drainage information in connection with the

2005 permit application that is at issue in this case. That drainage information shows that the peak

flow rates for outfall 4 were 66 cfs under existing conditions and 61 cfs under the proposed

conditions, and that the peak flow rates for outfall 5 were 175.4 cfs under existing conditions and

171 cfs under the proposed conditions—i.e., both peak flow rates decrease under the proposed

condition. These numbers were calculated using the post-2004 methodologies.

               The following chart summarizes the peak-flow information BFI submitted in 2002,

2005, and 2006 with regard to a 25-year rainfall event:



                                            Outflow 4     Outflow 4     Outflow 5      Outflow 5
                                             existing     proposed       existing      proposed
 2002 permit                                  26 cfs        26 cfs        66 cfs         66 cfs
 2006 permit (2002 numbers)                   26 cfs        26 cfs        66 cfs         66 cfs
 2005 permit application (using newer         66 cfs        61 cfs       175 cfs        171 cfs
 methodologies)


NNC argues that if the proposed peak flows for outflows 4 and 5 were 26 and 66 respectively

in 2002 and 2006, then the existing peak flows for the 2005 application should also logically be

26 and 66 respectively. In other words, NNC asserts that the proposed flow rates in the 2002 and

2006 permit applications must logically be the existing flow rates after the permits were approved

and the application changes were implemented. Thus, NNC argues, because the 2005 proposed peak

flows—66 and 171 cfs respectively—are more than twice the respective peak flows from the prior

permits, the evidence in the record “plainly” shows that the drainage patterns at the site were




                                                32
significantly altered. But in fact, NNC’s argument here is not logical at all, either on the face of

these documents or, more appropriately, taken in context of the testimony explaining these figures.

                Given the purpose of the information—i.e., to show whether the existing drainage

patterns will be significantly altered by the requested proposed landfill changes—the most logical

way to interpret these documents in isolation is to confine the comparison of peak-flow numbers to

the information contained within the document itself. First, the documents present as self-contained

to the extent that they do not refer to or incorporate other information. Further, while the proposed

peak flow at an outflow as determined in 2002 may, in fact, be the existing peak flow at that site after

the proposed changes to the landfill were made, it is also possible that the existing peak flow is

different. On the other hand, by treating each document as self-contained, we are assured that the

information calculated refers to the then-existing and then-proposed numbers. For these reasons, it

is not logical to pull information from one document and insert it into another, and on its face, the

peak-flow information submitted as part of the 2005 permit amendment conforms to TCEQ rules

and shows no significant alteration in the drainage pattern.

                But we do not have to interpret the peak-flow information in isolation. BFI’s witness

Adam Mehevec testified about why the peak-flow data from the 2002 and 2006 documents appear

so different from the 2005 data. First, he explained that the 2002 peak-flow numbers were calculated

using outdated methodology, including a different runoff coefficient. Second, he explained that

BFI had more accurate topographical information in 2005 than it did in 2002 that would affect the

peak-flow calculations. Finally, he explained that the 2002 numbers would be different from the

2005 numbers because the 2002 calculations accounted for certain buffer areas of the landfill that

were not included in the 2005 calculations. In sum, he testified that while the numbers might appear


                                                  33
to be manipulated in such as way as to show a change in peak flow, they are not comparable—i.e.,

they are “apples to oranges” versus “apples to apples”—because they use different base assumptions

and different methodology. He then reasserted that, based on the calculations of peak flow as set

forth in the 2005 application documents, the existing drainage patterns would not be significantly

altered by the proposed height increase to the landfill.

               NNC also complains that Mehevec’s explanation for the alleged discrepancies

came as a surprise to it and the other protestants during the contested-case hearing because the

anomalies were never disclosed by BFI in the application. As a result, NNC contends, it and the

other protestants “were deprived of the opportunity to meaningfully test Mr. Mehevec’s eleventh-

hour drainage anomalies at Outfalls 4 and 5.” We disagree. First, as discussed above, there are no

anomalies on the face of the 2005 drainage documents upon which Mehevec based his testimony.

And even if we assume there are anomalies by incorporating 2002 and 2006 documents, NNC had

access to pre-trial discovery documents that would have included these so-called anomalies and all

of Mehevec’s documents, and Mehevec was presumably available for deposition prior to the

contested-case hearing. Further, NNC’s attorney did not object to the testimony or otherwise request

relief related to Mehevec’s testimony.

               Having determined that the drainage information for outflows 4 and 5 is not

contradictory and that BFI’s expert witness provided an adequate explanation for the differences in

peak-flow figures, we hold that NNC has not overcome the presumption that TCEQ’s findings of

fact regarding drainage flow are supported by substantial evidence. Further, TCEQ’s conclusion

that the proposed changes to the landfill will not significantly alter the natural drainage patterns is

supported by substantial evidence in the record as a whole.


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              We overrule NNC’s fourth issue.


                                       CONCLUSION

              Having considered and overruled each issue on appeal, we affirm the district court’s

judgment affirming TCEQ’s order.




                                            __________________________________________

                                            Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: March 28, 2013




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